[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2006 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          25

                         Revised as of April 1, 2006


          Indians
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2006
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 25:
          Chapter I--Bureau of Indian Affairs, Department of 
          the Interior                                               3
          Chapter II--Indian Arts and Crafts Board, Department 
          of the Interior                                          825
          Chapter III--National Indian Gaming Commission, 
          Department of the Interior                               841
          Chapter IV--The Office of Navajo and Hopi Indian 
          Relocation                                               993
          Chapter V--Bureau of Indian Affairs, Department of 
          the Interior, and Indian Health Service, Department 
          of Health and Human Services                            1081
          Chapter VI--Office of the Assistant Secretary, 
          Indian Affairs, Department of the Interior              1145
          Chapter VII--Office of the Special Trustee for 
          American Indians, Department of the Interior            1209
  Finding Aids:
      Table of CFR Titles and Chapters........................    1221
      Alphabetical List of Agencies Appearing in the CFR......    1239
      List of CFR Sections Affected...........................    1249

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 25 CFR 1.2 refers to 
                       title 25, part 1, section 
                       2.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
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evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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January 1, 2001, consult either the List of CFR Sections Affected, 1949-
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Sections Affected'' is published at the end of each CFR volume.

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the revision dates of the 50 CFR titles.

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[[Page vii]]

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2006.

[[Page ix]]



                               THIS TITLE

    Title 25--Indians is composed of one volume. The contents of this 
volume represent all current regulations codified under this title of 
the CFR as of April 1, 2006.

    For this volume, Carol A. Conroy was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page 1]]



                            TITLE 25--INDIANS




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                                                                    Part

chapter i--Bureau of Indian Affairs, Department of the 
  Interior..................................................           1

chapter ii--Indian Arts and Crafts Board, Department of the 
  Interior..................................................         301

chapter iii--National Indian Gaming Commission, Department 
  of the Interior...........................................         501

chapter iv--The Office of Navajo and Hopi Indian Relocation.         700

chapter v--Bureau of Indian Affairs, Department of the 
  Interior, and Indian Health Service, Department of Health 
  and Human Services........................................         900

chapter vi--Office of the Assistant Secretary, Indian 
  Affairs, Department of the Interior.......................        1000

chapter vii--Office of the Special Trustee for American 
  Indians, Department of the Interior.......................        1200

[[Page 3]]



     CHAPTER I--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR




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                  SUBCHAPTER A--PROCEDURES AND PRACTICE
Part                                                                Page
1               Applicability of rules of the Bureau of 
                    Indian Affairs..........................           9
2               Appeals from administrative actions.........          10
5               Preference in employment....................          16
                       SUBCHAPTER B--LAW AND ORDER
10              Indian country detention facilities and 
                    programs................................          17
11              Law and order on Indian reservations........          19
12              Indian country law enforcement..............          55
13              Tribal reassumption of jurisdiction over 
                    child custody proceedings...............          60
                          SUBCHAPTER C--PROBATE
15              Probate of Indian estates, except for 
                    members of the Five Civilized Tribes....          64
16              Estates of Indians of the Five Civilized 
                    Tribes..................................          69
17              Action on wills of Osage Indians............          72
                      SUBCHAPTER D--HUMAN SERVICES
20              Financial assistance and social services 
                    programs................................          75
23              Indian Child Welfare Act....................          96
26              Employment assistance for adult Indians.....         116
27              Vocational training for adult Indians.......         119
                         SUBCHAPTER E--EDUCATION
30              Adequate yearly progress....................         124
31              Federal schools for Indians.................         130
32              Indian education policies...................         131
33              Transfer of Indian education functions......         136
36              Minimum academic standards for the basic 
                    education of Indian children and 
                    national criteria for dormitory 
                    situations..............................         138
37              Geographic boundaries.......................         156

[[Page 4]]

38              Education personnel.........................         158
39              The Indian school equalization program......         172
40              Administration of educational loans, grants 
                    and other assistance for higher 
                    education...............................         197
41              Grants to tribally controlled community 
                    colleges and Navajo Community College...         198
42              Student rights..............................         208
43              Maintenance and control of student records 
                    in Bureau schools.......................         211
44              Grants under the Tribally Controlled Schools 
                    Act.....................................         217
46              Adult Education Program.....................         219
47              Uniform direct funding and support for 
                    Bureau-operated schools.................         222
                     SUBCHAPTER F--TRIBAL GOVERNMENT
61              Preparation of rolls of Indians.............         225
62              Enrollment appeals..........................         235
63              Indian child protection and family violence 
                    prevention..............................         238
67              Preparation of a roll of independent 
                    Seminole Indians of Florida.............         247
75              Revision of the membership roll of the 
                    Eastern Band of Cherokee Indians, North 
                    Carolina................................         252
81              Tribal reorganization under a Federal 
                    statute.................................         256
82              Petitioning procedures for tribes 
                    reorganized under Federal statute and 
                    other organized tribes..................         265
83              Procedures for establishing that an American 
                    Indian group exists as an Indian tribe..         268
84              Encumbrances of tribal land--Contract 
                    approvals...............................         281
87              Use or distribution of Indian judgment funds         283
88              Recognition of attorneys and agents to 
                    represent claimants.....................         288
89              Attorney contracts with Indian tribes.......         289
90              Election of officers of the Osage Tribe.....         291
91              Government of Indian villages, Osage 
                    Reservation, Oklahoma...................         297
                   SUBCHAPTER G--FINANCIAL ACTIVITIES
101             Loans to Indians from the Revolving Loan 
                    Fund....................................         303
103             Loan guaranty, insurance, and interest 
                    subsidy.................................         314
111             Annuity and other per capita payments.......         331
114             Special deposits [Reserved]
115             Trust funds for tribes and individual 
                    Indians.................................         332
117             Deposit and expenditure of individual funds 
                    of members of the Osage Tribe of Indians 
                    who do not have certificates of 
                    competency..............................         357

[[Page 5]]

122             Management of Osage judgment funds for 
                    education...............................         365
124             Deposits of proceeds from lands withdrawn 
                    for Native selection....................         367
134             Partial payment construction charges on 
                    Indian irrigation projects..............         368
135             Construction assessments, Crow Indian 
                    irrigation project......................         370
136             Fort Hall Indian irrigation project, Idaho..         372
137             Reimbursement of construction costs, San 
                    Carlos Indian irrigation project, 
                    Arizona.................................         372
138             Reimbursement of construction costs, Ahtanum 
                    Unit, Wapato Indian irrigation project, 
                    Washington..............................         374
139             Reimbursement of construction costs, Wapato-
                    Satus Unit, Wapato Indian irrigation 
                    project, Washington.....................         375
140             Licensed Indian traders.....................         376
141             Business practices on the Navajo, Hopi and 
                    Zuni Reservations.......................         381
142             Alaska Resupply Operation...................         395
143             Charges for goods and services provided to 
                    non-Federal users.......................         398
                      SUBCHAPTER H--LAND AND WATER
150             Land records and title documents............         400
151             Land acquisitions...........................         403
152             Issuance of patents in fee, certificates of 
                    competency, removal of restrictions, and 
                    sale of certain Indian lands............         407
153             Determination of competency: Crow Indians...         416
158             Osage lands.................................         417
159             Sale of irrigable lands, special water 
                    contract requirements...................         418
160             Inclusion of liens in all patents and 
                    instruments executed....................         419
161             Navajo partitioned lands grazing permits....         420
162             Leases and permits..........................         436
163             General forestry regulations................         465
166             Grazing permits.............................         492
167             Navajo grazing regulations..................         524
168             Grazing regulations for the Hopi Partitioned 
                    Lands area..............................         529
169             Rights-of-way over Indian lands.............         535
170             Indian Reservation Roads Program............         548
171             Operation and maintenance...................         614

[[Page 6]]

172             Pueblo Indian lands benefited by irrigation 
                    and drainage works of Middle Rio Grande 
                    Conservancy District, New Mexico........         624
173             Concessions, permits and leases on lands 
                    withdrawn or acquired in connection with 
                    Indian irrigation projects..............         624
175             Indian electric power utilities.............         628
179             Life estates and future interests...........         633
181             Indian Highway Safety Program...............         636
183             Use and distribution of the San Carlos 
                    Apache Tribe Development Trust Fund and 
                    San Carlos Apache Tribe Lease Fund......         638
                    SUBCHAPTER I--ENERGY AND MINERALS
200             Terms and conditions: Coal leases...........         642
211             Leasing of tribal lands for mineral 
                    development.............................         642
212             Leasing of allotted lands for mineral 
                    development.............................         656
213             Leasing of restricted lands of members of 
                    Five Civilized Tribes, Oklahoma, for 
                    mining..................................         665
214             Leasing of Osage Reservation lands, 
                    Oklahoma, for mining, except oil and gas         678
215             Lead and zinc mining operations and leases, 
                    Quapaw Agency...........................         683
216             Surface exploration, mining, and reclamation 
                    of lands................................         692
217             Management of tribal assets of Ute Indian 
                    Tribe, Uintah and Ouray Reservation, 
                    Utah, by the tribe and the Ute 
                    Distribution Corp.......................         698
225             Oil and gas, geothermal, and solid minerals 
                    agreements..............................         699
226             Leasing of Osage Reservation lands for oil 
                    and gas mining..........................         710
227             Leasing of certain lands in Wind River 
                    Indian Reservation, Wyoming, for oil and 
                    gas mining..............................         726
                     SUBCHAPTER J--FISH AND WILDLIFE
241             Indian fishing in Alaska....................         735
242             Commercial fishing on Red Lake Indian 
                    Reservation.............................         738
243             Reindeer in Alaska..........................         739
247             Use of Columbia River Treaty fishing access 
                    sites...................................         742
248             Use of Columbia River Indian in-lieu fishing 
                    sites...................................         746

[[Page 7]]

249             Off-reservation treaty fishing..............         747
                          SUBCHAPTER K--HOUSING
256             Housing Improvement Program.................         751
                   SUBCHAPTER L--HERITAGE PRESERVATION
262             Protection of archaeological resources......         761
265             Establishment of roadless and wild areas on 
                    Indian reservations.....................         766
  SUBCHAPTER M--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT 
                                 PROGRAM
273             Education contracts under Johnson-O'Malley 
                    Act.....................................         767
275             Staffing....................................         781
276             Uniform administrative requirements for 
                    grants..................................         783
                   SUBCHAPTER N--ECONOMIC ENTERPRISES
286             Indian Business Development Program.........         806
290             Tribal revenue allocation plans.............         811
291             Class III gaming procedures.................         815
                 SUBCHAPTER O--MISCELLANEOUS [RESERVED]
Appendix to Chapter I--Extension of the Trust or Restricted 
  Status of Certain Indian Lands............................         819

[[Page 9]]



                  SUBCHAPTER A_PROCEDURES AND PRACTICE





PART 1_APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS--Table 
of Contents




Sec.
1.1 [Reserved]
1.2 Applicability of regulations and reserved authority of the Secretary 
          of the Interior.
1.3 Scope.
1.4 State and local regulation of the use of Indian property.
1.10 Availability of forms.

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2.



Sec. 1.1  [Reserved]



Sec. 1.2  Applicability of regulations and reserved authority of the 
Secretary of the Interior.

    The regulations in chapter I of title 25 of the Code of Federal 
Regulations are of general application. Notwithstanding any limitations 
contained in the regulations of this chapter, the Secretary retains the 
power to waive or make exceptions to his regulations as found in chapter 
I of title 25 CFR in all cases where permitted by law and the Secretary 
finds that such waiver or exception is in the best interest of the 
Indians.

[25 FR 3124, Apr. 12, 1960]



Sec. 1.3  Scope.

    Chapters I and II of this title contain the bulk of the regulations 
of the Department of the Interior of general application relating to 
Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal 
Regulations contains rules relating to the relationship of Indians to 
public lands and townsites. Subtitle A of title 43 CFR has application 
to certain aspects of Indian affairs and, among other things, contains 
procedural rules for appellate and other administrative review and for 
practice before the Department of the Interior, of which the Bureau of 
Indian Affairs is a part. Indian health matters are covered in 42 CFR 
part 36. Title 30 CFR contains regulations on oil and gas and other 
mining operations, which, under certain circumstances, may be applicable 
to Indian resources.

[25 FR 3124, Apr. 12, 1960, as amended at 40 FR 20625, May 12, 1975; 48 
FR 13414, Mar. 31, 1983]



Sec. 1.4  State and local regulation of the use of Indian property.

    (a) Except as provided in paragraph (b) of this section, none of the 
laws, ordinances, codes, resolutions, rules or other regulations of any 
State or political subdivision thereof limiting, zoning or otherwise 
governing, regulating, or controlling the use or development of any real 
or personal property, including water rights, shall be applicable to any 
such property leased from or held or used under agreement with and 
belonging to any Indian or Indian tribe, band, or community that is held 
in trust by the United States or is subject to a restriction against 
alienation imposed by the United States.
    (b) The Secretary of the Interior or his authorized representative 
may in specific cases or in specific geographic areas adopt or make 
applicable to Indian lands all or any part of such laws, ordinances, 
codes, resolutions, rules or other regulations referred to in paragraph 
(a) of this section as he shall determine to be in the best interest of 
the Indian owner or owners in achieving the highest and best use of such 
property. In determining whether, or to what extent, such laws, 
ordinances, codes, resolutions, rules or other regulations shall be 
adopted or made applicable, the Secretary or his authorized 
representative may consult with the Indian owner or owners and may 
consider the use of, and restrictions or limitations on the use of, 
other property in the vicinity, and such other factors as he shall deem 
appropriate.

[30 FR 7520, June 9, 1965]



Sec. 1.10  Availability of forms.

    Forms upon which applications and related documents may be filed and 
upon which rights and privileges may be granted may be inspected and 
procured at the Bureau of Indian Affairs, Washington, DC, and at the 
office of

[[Page 10]]

any Area Director or Agency Superintendent.

[25 FR 3124, Apr. 12, 1960]



PART 2_APPEALS FROM ADMINISTRATIVE ACTIONS--Table of Contents




Sec.
2.1 Information collection.
2.2 Definitions.
2.3 Applicability.
2.4 Officials who may decide appeals.
2.5 Appeal bond.
2.6 Finality of decisions.
2.7 Notice of administrative decision or action.
2.8 Appeal from inaction of official.
2.9 Notice of an appeal.
2.10 Statement of reasons.
2.11 Answer of interested party.
2.12 Service of appeal documents.
2.13 Filing documents.
2.14 Record address.
2.15 Computation of time.
2.16 Extensions of time.
2.17 Summary dismissal.
2.18 Consolidation of appeals.
2.19 Action by Area Directors and Education Programs officials on 
          appeal.
2.20 Action by the Assistant Secretary--Indian Affairs on appeal.
2.21 Scope of review.

    Authority: R.S. 463, 465; 5 U.S.C. 301, 25 U.S.C. 2, 9.

    Source: 54 FR 6480, Feb. 10, 1989, unless otherwise noted.



Sec. 2.1  Information collection.

    In accordance with Office of Management and Budget regulations in 5 
CFR 1320.3(c), approval of information collections contained in this 
regulation is not required.



Sec. 2.2  Definitions.

    Appeal means a written request for review of an action or the 
inaction of an official of the Bureau of Indian Affairs that is claimed 
to adversely affect the interested party making the request.
    Appellant means any interested party who files an appeal under this 
part.
    Interested party means any person whose interests could be adversely 
affected by a decision in an appeal.
    Legal holiday means a Federal holiday as designated by the President 
or the Congress of the United States.
    Notice of appeal means the written document sent to the official 
designated in this part, indicating that a decision is being appealed 
(see Sec. 2.9).
    Person includes any Indian or non-Indian individual, corporation, 
tribe or other organization.
    Statement of reasons means a written document submitted by the 
appellant explaining why the decision being appealed is in error (see 
Sec. 2.10).

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.3  Applicability.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all appeals from decisions made by officials of the Bureau of 
Indian Affairs by persons who may be adversely affected by such 
decisions.
    (b) This part does not apply if any other regulation or Federal 
statute provides a different administrative appeal procedure applicable 
to a specific type of decision.



Sec. 2.4  Officials who may decide appeals.

    The following officials may decide appeals:
    (a) An Area Director, if the subject of appeal is a decision by a 
person under the authority of that Area Director.
    (b) An Area Education Programs Administrator, Agency Superintendent 
for Education, President of a Post-Secondary School, or the Deputy to 
the Assistant Secretary--Indian Affairs/Director (Indian Education 
Programs), if the appeal is from a decision by an Office of Indian 
Education Programs (OIEP) official under his/her jurisdiction.
    (c) The Assistant Secretary--Indian Affairs pursuant to the 
provisions of Sec. 2.20 of this part.
    (d) A Deputy to the Assistant Secretary--Indian Affairs pursuant to 
the provisions of Sec. 2.20(c) of this part.
    (e) The Interior Board of Indian Appeals, pursuant to the provisions 
of 43 CFR part 4, subpart D, if the appeal is from a decision made by an 
Area Director or a Deputy to the Assistant Secretary--Indian Affairs 
other than the Deputy to the Assistant Secretary--Indian Affairs/
Director (Indian Education Programs).

[[Page 11]]



Sec. 2.5  Appeal bond.

    (a) If a person believes that he/she may suffer a measurable and 
substantial financial loss as a direct result of the delay caused by an 
appeal, that person may request that the official before whom the appeal 
is pending require the posting of a reasonable bond by the appellant 
adequate to protect against that financial loss.
    (b) A person requesting that a bond be posted bears the burden of 
proving the likelihood that he/she may suffer a measurable and 
substantial financial loss as a direct result of the delay caused by the 
appeal.
    (c) In those cases in which the official before whom an appeal is 
pending determines that a bond is necessary to protect the financial 
interests of an Indian or Indian tribe, that official may require the 
posting of a bond on his/her own initiative.
    (d) Where the official before whom an appeal is pending requires a 
bond to be posted or denies a request that a bond be posted, he/she 
shall give notice of his/her decision pursuant to Sec. 2.7.



Sec. 2.6  Finality of decisions.

    (a) No decision, which at the time of its rendition is subject to 
appeal to a superior authority in the Department, shall be considered 
final so as to constitute Departmental action subject to judicial review 
under 5 U.S.C. 704, unless when an appeal is filed, the official to whom 
the appeal is made determines that public safety, protection of trust 
resources, or other public exigency requires that the decision be made 
effective immediately.
    (b) Decisions made by officials of the Bureau of Indian Affairs 
shall be effective when the time for filing a notice of appeal has 
expired and no notice of appeal has been filed.
    (c) Decisions made by the Assistant Secretary--Indian Affairs shall 
be final for the Department and effective immediately unless the 
Assistant Secretary--Indian Affairs provides otherwise in the decision.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.7  Notice of administrative decision or action.

    (a) The official making a decision shall give all interested parties 
known to the decisionmaker written notice of the decision by personal 
delivery or mail.
    (b) Failure to give such notice shall not affect the validity of the 
decision or action but the time to file a notice of appeal regarding 
such a decision shall not begin to run until notice has been given in 
accordance with paragraph (c) of this section.
    (c) All written decisions, except decisions which are final for the 
Department pursuant to Sec. 2.6(c), shall include a statement that the 
decision may be appealed pursuant to this part, identify the official to 
whom it may be appealed and indicate the appeal procedures, including 
the 30-day time limit for filing a notice of appeal.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.8  Appeal from inaction of official.

    (a) A person or persons whose interests are adversely affected, or 
whose ability to protect such interests is impeded by the failure of an 
official to act on a request to the official, can make the official's 
inaction the subject of appeal, as follows:
    (1) Request in writing that the official take the action originally 
asked of him/her;
    (2) Describe the interest adversely affected by the official's 
inaction, including a description of the loss, impairment or impediment 
of such interest caused by the official's inaction;
    (3) State that, unless the official involved either takes action on 
the merits of the written request within 10 days of receipt of such 
request by the official, or establishes a date by which action will be 
taken, an appeal shall be filed in accordance with this part.
    (b) The official receiving a request as specified in paragraph (a) 
of this section must either make a decision on the merits of the initial 
request within 10 days from receipt of the request for a decision or 
establish a reasonable later date by which the decision shall be made, 
not to exceed 60 days from the

[[Page 12]]

date of request. If an official establishes a date by which a requested 
decision shall be made, this date shall be the date by which failure to 
make a decision shall be appealable under this part. If the official, 
within the 10-day period specified in paragraph (a) of this section, 
neither makes a decision on the merits of the initial request nor 
establishes a later date by which a decision shall be made, the 
official's inaction shall be appealable to the next official in the 
process established in this part.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.9  Notice of an appeal.

    (a) An appellant must file a written notice of appeal in the office 
of the official whose decision is being appealed. The appellant must 
also send a copy of the notice of appeal to the official who will decide 
the appeal and to all known interested parties. The notice of appeal 
must be filed in the office of the official whose decision is being 
appealed within 30 days of receipt by the appellant of the notice of 
administrative action described in Sec. 2.7. A notice of appeal that is 
filed by mail is considered filed on the date that it is postmarked. The 
burden of proof of timely filing is on the appellant. No extension of 
time shall be granted for filing a notice of appeal. Notices of appeal 
not filed in the specified time shall not be considered, and the 
decision involved shall be considered final for the Department and 
effective in accordance with Sec. 2.6(b).
    (b) When the appellant is an Indian or Indian tribe not represented 
by counsel, the official who issued the decision appealed shall, upon 
request of the appellant, render such assistance as is appropriate in 
the preparation of the appeal.
    (c) The notice of appeal shall:
    (1) Include name, address, and phone number of appellant.
    (2) Be clearly labeled or titled with the words ``NOTICE OF 
APPEAL.''
    (3) Have on the face of any envelope in which the notice is mailed 
or delivered, in addition to the address, the clearly visible words 
``NOTICE OF APPEAL.''
    (4) Contain a statement of the decision being appealed that is 
sufficient to permit identification of the decision.
    (5) If possible, attach either a copy of the notice of the 
administrative decision received under Sec. 2.7, or when an official 
has failed to make a decision or take any action, attach a copy of the 
appellant's request for a decision or action under Sec. 2.8 with a 
written statement that the official failed to make a decision or take 
any action or to establish a date by which a decision would be made upon 
the request.
    (6) Certify that copies of the notice of appeal have been served on 
interested parties, as prescribed in Sec. 2.12(a).



Sec. 2.10  Statement of reasons.

    (a) A statement of reasons shall be filed by the appellant in every 
appeal, and shall be accompanied by or otherwise incorporate all 
supporting documents.
    (b) The statement of reasons may be included in or filed with the 
notice of appeal.
    (c) If the statement of reasons is not filed with the notice of 
appeal, the appellant shall file a separate statement of reasons in the 
office of the official whose decision is being appealed within 30 days 
after the notice of appeal was filed in that office.
    (d) The statement of reasons whether filed with the notice of appeal 
or filed separately should:
    (1) Be clearly labeled ``STATEMENT OF REASONS''.
    (2) Have on the face of any envelope in which the statement of 
reasons is mailed or delivered, in addition to the address, the clearly 
visible words ``STATEMENT OF REASONS''.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.11  Answer of interested party.

    (a) Any interested party wishing to participate in an appeal 
proceeding should file a written answer responding to the appellant's 
notice of appeal and statement of reasons. An answer should describe the 
party's interest.
    (b) An answer shall state the party's position or response to the 
appeal in any manner the party deems appropriate and may be accompanied 
by or

[[Page 13]]

otherwise incorporate supporting documents.
    (c) An answer must be filed within 30 days after receipt of the 
statement of reasons by the person filing an answer.
    (d) An answer and any supporting documents shall be filed in the 
office of the official before whom the appeal is pending as specified in 
Sec. 2.13.
    (e) An answer should:
    (1) Be clearly labelled or titled with the words ``ANSWER OF 
INTERESTED PARTY.''
    (2) Have on the face of any envelope in which the answer is mailed 
or delivered, in addition to the address, the clearly visible words 
``ANSWER OF INTERESTED PARTY,'' and
    (3) Contain a statement of the decision being appealed that is 
sufficient to permit identification of the decision.



Sec. 2.12  Service of appeal documents.

    (a) Persons filing documents in an appeal must serve copies of those 
documents on all other interested parties known to the person making the 
filing. A person serving a document either by mail or personal delivery 
must, at the time of filing the document, also file a written statement 
certifying service on each interested party, showing the document 
involved, the name and address of the party served, and the date of 
service.
    (b) If an appeal is filed with the Interior Board of Indian Appeals, 
a copy of the notice of appeal shall also be sent to the Assistant 
Secretary--Indian Affairs. The notice of appeal sent to the Interior 
Board of Indian Appeals shall certify that a copy has been sent to the 
Assistant Secretary--Indian Affairs.
    (c) If the appellant is an Indian or Indian tribe not represented by 
counsel, the official with whom the appeal is filed (i.e., official 
making the decision being appealed) shall, in the manner prescribed in 
this section, personally or by mail serve a copy of all appeal documents 
on the official who will decide the appeal and on each interested party 
known to the official making such service.
    (d) Service of any document under this part shall be by personal 
delivery or by mail to the record address as specified in Sec. 2.14. 
Service on a tribe shall be to the principal or designated tribal 
official or to the governing body.
    (e) In all cases where a party is represented by an attorney in an 
appeal, service of any document on the attorney is service on the party 
represented. Where a party is represented by more than one attorney, 
service on any one attorney is sufficient. The certificate of service on 
an attorney shall include the name of the party whom the attorney 
represents and indicate that service was made on the attorney 
representing that party.
    (f) When an official deciding an appeal determines that there has 
not been service of a document affecting a person's interest, the 
official shall either serve the document on the person or direct the 
appropriate legal counsel to serve the document on the person and allow 
the person an opportunity to respond.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.13  Filing documents.

    (a) An appeal document is properly filed with an official of the 
Bureau of Indian Affairs:
    (1) By personal delivery during regular business hours to the person 
designated to receive mail in the immediate office of the official, or
    (2) By mail to the facility officially designated for receipt of 
mail addressed to the official; the document is considered filed by mail 
on the date that it is postmarked.
    (b) Bureau of Indian Affairs offices receiving a misdirected appeal 
document shall forward the document to the proper office promptly. If a 
person delivers an appeal document to the wrong office or mails an 
appeal document to an incorrect address, no extension of time should be 
allowed because of the time necessary for a Bureau office to redirect 
the document to the correct address.
    (c) Notwithstanding any other provision of this section, an official 
deciding an appeal shall allow late filing of a misdirected document, 
including a notice of appeal, where the official finds that the 
misdirection is the fault of the government.

[[Page 14]]



Sec. 2.14  Record address.

    (a) Every interested party who files a document in connection with 
an appeal shall, when he/she files the document, also indicate his/her 
address. Thereafter, any change of address shall be promptly reported to 
the official with whom the previous address was filed. The most current 
address on file under this subsection shall be deemed the proper address 
for all purposes under this part.
    (b) The successors in interest of a party shall also promptly inform 
the official specified in paragraph (a) of this section of their 
interest in the appeal and their address.
    (c) An appellant or interested party failing to file an address or 
change of address as specified in this section may not object to lack of 
notice or service attributable to his/her failure to indicate a new 
address.



Sec. 2.15  Computation of time.

    In computing any period of time prescribed or allowed in this part, 
calendar days shall be used. Computation shall not include the day on 
which a decision being appealed was made, service or notice was 
received, a document was filed, or other event occurred causing time to 
begin to run. Computation shall include the last day of the period, 
unless it is a Saturday, a Sunday, or a legal holiday, in which event 
the period runs until the end of the next day which is not a Saturday, a 
Sunday, or a legal holiday.



Sec. 2.16  Extensions of time.

    An official to whom an appeal is made may, upon a showing of good 
cause by a party and with notice to all other parties, extend the period 
for filing or serving any document; provided, however, that no extension 
will be granted for filing a notice of appeal under Sec. 2.9 of this 
part or serve by itself to extend any period specified by law or 
regulation other than in this part.



Sec. 2.17  Summary dismissal.

    (a) An appeal under this part will be dismissed if the notice of 
appeal is not filed within the time specified in Sec. 2.9(a).
    (b) An appeal under this part may be subject to summary dismissal 
for the following causes:
    (1) If after the appellant is given an opportunity to amend them, 
the appeal documents do not state the reasons why the appellant believes 
the decision being appealed is in error, or the reasons for the appeal 
are not otherwise evident in the documents, or
    (2) If the appellant has been required to post a bond and fails to 
do so.



Sec. 2.18  Consolidation of appeals.

    Separate proceedings pending before one official under this part and 
involving common questions of law or fact may be consolidated by the 
official conducting such proceedings, pursuant to a motion by any party 
or on the initiative of the official.



Sec. 2.19  Action by Area Directors and Education Programs officials 
on appeal.

    (a) Area Directors, Area Education Programs Administrators, Agency 
Superintendents for Education, Presidents of Post-Secondary Schools and 
the Deputy to the Assistant Secretary--Indian Affairs/Director (Indian 
Education Programs) shall render written decisions in all cases appealed 
to them within 60 days after all time for pleadings (including all 
extensions granted) has expired. The decision shall include a statement 
that the decision may be appealed pursuant to this part, identify the 
official to whom it may be appealed and indicate the appeal procedures, 
including the 30-day time limit for filing a notice of appeal.
    (b) A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record.



Sec. 2.20  Action by the Assistant Secretary--Indian Affairs on appeal.

    (a) When a decision is appealed to the Interior Board of Indian 
Appeals, a copy of the notice of appeal shall be sent to the Assistant 
Secretary--Indian Affairs.
    (b) The notice of appeal sent to the Interior Board of Indian 
Appeals shall

[[Page 15]]

certify that a copy has been sent to the Assistant Secretary--Indian 
Affairs.
    (c) In accordance with the provisions of Sec. 4.332(b) of title 43 
of the Code of Federal Regulations, a notice of appeal to the Board of 
Indian Appeals shall not be effective until 20 days after receipt by the 
Board, during which time the Assistant Secretary--Indian Affairs shall 
have authority to decide to:
    (1) Issue a decision in the appeal, or
    (2) Assign responsibility to issue a decision in the appeal to a 
Deputy to the Assistant Secretary--Indian Affairs.

The Assistant Secretary--Indian Affairs will not consider petitions to 
exercise this authority. If the Assistant Secretary--Indian Affairs 
decides to issue a decision in the appeal or to assign responsibility to 
issue a decision in the appeal to a Deputy to the Assistant Secretary--
Indian Affairs, he/she shall notify the Board of Indian Appeals, the 
deciding official, the appellant, and interested parties within 15 days 
of his/her receipt of a copy of the notice of appeal. Upon receipt of 
such notification, the Board of Indian Appeals shall transfer the appeal 
to the Assistant Secretary--Indian Affairs. The decision shall be signed 
by the Assistant Secretary--Indian Affairs or a Deputy to the Assistant 
Secretary--Indian Affairs within 60 days after all time for pleadings 
(including all extensions granted) has expired. If the decision is 
signed by the Assistant Secretary--Indian Affairs, it shall be final for 
the Department and effective immediately unless the Assistant 
Secretary--Indian Affairs provides otherwise in the decision. Except as 
otherwise provided in Sec. 2.20(g), if the decision is signed by a 
Deputy to the Assistant Secretary--Indian Affairs, it may be appealed to 
the Board of Indian Appeals pursuant to the provisions of 43 CFR part 4, 
subpart D.
    (d) A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record.
    (e) If the Assistant Secretary--Indian Affairs or the Deputy to the 
Assistant Secretary--Indian Affairs to whom the authority to issue a 
decision has been assigned pursuant to Sec. 2.20(c) does not make a 
decision within 60 days after all time for pleadings (including all 
extensions granted) has expired, any party may move the Board of Indian 
Appeals to assume jurisdiction subject to 43 CFR 4.337(b). A motion for 
Board decision under this section shall invest the Board with 
jurisdiction as of the date the motion is received by the Board.
    (f) When the Board of Indian Appeals, in accordance with 43 CFR 
4.337(b), refers an appeal containing one or more discretionary issues 
to the Assistant Secretary--Indian Affairs for further consideration, 
the Assistant Secretary--Indian Affairs shall take action on the appeal 
consistent with the procedures in this section.
    (g) The Assistant Secretary--Indian Affairs shall render a written 
decision in an appeal from a decision of the Deputy to the Assistant 
Secretary--Indian Affairs/Director (Indian Education Programs) within 60 
days after all time for pleadings (including all extensions granted) has 
expired. A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record. 
The decision shall be final for the Department and effective immediately 
unless the Assistant Secretary--Indian Affairs provides otherwise in the 
decision.



Sec. 2.21  Scope of review.

    (a) When a decision has been appealed, any information available to 
the reviewing official may be used in reaching a decision whether part 
of the record or not.
    (b) When the official deciding an appeal believes it appropriate to 
consider documents or information not contained in the record on appeal, 
the official shall notify all interested parties of the information and 
they shall be given not less than 10 days to comment on the information 
before the appeal is decided. The deciding official shall include in the 
record copies of documents or a description of the information used in 
arriving at the decision. Except where disclosure of the actual 
documents used may be prohibited by law, copies of the information shall 
be made

[[Page 16]]

available to the parties upon request and at their expense.



PART 5_PREFERENCE IN EMPLOYMENT--Table of Contents




Sec.
5.1 Definitions.
5.2 Appointment actions.
5.3 Application procedure for preference eligibility.
5.4 Information collection.

    Authority: 4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46; 28 
Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48 Stat. 986, 
25 U.S.C. 472 and 479.



Sec. 5.1  Definitions.

    For purposes of making appointments to vacancies in all positions in 
the Bureau of Indian Affairs a preference will be extended to persons of 
Indian descent who are:
    (a) Members of any recognized Indian tribe now under Federal 
Jurisdiction;
    (b) Descendants of such members who were, on June 1, 1934, residing 
within the present boundaries of any Indian reservation;
    (c) All others of one-half or more Indian blood of tribes indigenous 
to the United States;
    (d) Eskimos and other aboriginal people of Alaska; and
    (e) For one (1) year or until the Osage Tribe has formally 
organized, whichever comes first, effective January 5, 1989, a person of 
at least one-quarter degree Indian ancestry of the Osage Tribe of 
Indians, whose rolls were closed by an act of Congress.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 283, Jan. 5, 1989]



Sec. 5.2  Appointment actions.

    (a) Preference will be afforded a person meeting any one of the 
standards of Sec. 5.1 whether the appointment involves initial hiring, 
reinstatement, transfer, reassignment or promotion.
    (b) Preference eligibles may be given a Schedule A excepted 
appointment under Exception Number 213.3112(a)(7). However, if the 
individuals are within reach on a Civil Service Register, they may be 
given a competitive appointment.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 12702, Mar. 30, 1984]



Sec. 5.3  Application procedure for preference eligibility.

    (a) Proof of eligibility must be submitted with the person's 
application for a position.
    (b) In order for a person to be considered a preference eligible 
according to the standards of Sec. 5.1, they must submit proof of 
membership, descendancy or degree of Indian ancestry as indicated on 
rolls or records acceptable to the Secretary.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 5.4  Information collection.

    The Office of Management and Budget has informed the Department of 
the Interior that the information collection requirements contained in 
part 5 need not be reviewed by them under the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.).

[54 FR 283, Jan. 5, 1989]

[[Page 17]]



                       SUBCHAPTER B_LAW AND ORDER





PART 10_INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS--Table of 
Contents




Sec.
10.1 Why are policies and standards needed for Indian country detention 
          programs?
10.2 Who is responsible for developing and maintaining the policies and 
          standards for detention and holding facilities in Indian 
          country?
10.3 Who must follow these policies and standards?
10.4 What happens if the policies and standards are not followed?
10.5 Where can I find the policies and standards for the administration, 
          operation, services, and physical plant/construction of Indian 
          country detention, community residential, and holding 
          facilities?
10.6 How is the BIA assured that the policies and standards are being 
          applied uniformly and facilities are properly accredited?
10.7 Where do I find help or receive technical assistance in complying 
          with the policies and standards?
10.8 What minimum records must be kept and reports made at each 
          detention, community residential, or holding facility in 
          Indian country?
10.9 If a person is detained or incarcerated in an Indian country 
          detention, community residential, or holding facility, how 
          would they know what their rights, privileges, safety, 
          protection and expected behavior would be?
10.10 What happens if I believe my civil rights have been violated while 
          incarcerated in an Indian country detention or holding 
          facility?
10.11 How would someone detained or incarcerated, or their 
          representative, get the BIA policies and standards?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.

    Source: 61 FR 34374, July 2, 1996, unless otherwise noted.



Sec. 10.1  Why are policies and standards needed for Indian country 
detention programs?

    Policies and standards are required to ensure that all Bureau of 
Indian Affairs (BIA) and tribal entities that receive Federal funding 
for the operation, maintenance, design and construction or renovation of 
detention facilities, community residential, or holding facilities are 
supporting constitutional rights and are complying with the Indian Law 
Enforcement Reform Act of 1990. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. The provision for funding 
tribes for detention programs under the Indian Alcohol and Substance 
Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453) 
requires standards and procedures for such facilities.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.2  Who is responsible for developing and maintaining the 
policies and standards for detention and holding facilities in 
Indian country?

    The Director, Office of Law Enforcement Services who reports to the 
Deputy Commissioner of Indian Affairs, BIA, establishes policies, 
procedures, and standards for the operations, design, planning, 
maintenance, renovation, and construction of detention programs in the 
BIA and by tribal contract under Indian Self-Determination and Education 
Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.



Sec. 10.3  Who must follow these policies and standards?

    You must follow these minimum policies, standards, and guides if you 
are part of the BIA or tribal detention or rehabilitation program 
receiving Federal funding. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. Detention officers, guards, 
cooks and other staff conducting business in the facilities must meet 
minimum standards of law enforcement personnel as prescribed in 25 CFR 
part 12, subpart D, ``Qualifications and Training Requirements.'' Those 
tribal programs not receiving Federal funding under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638, as 
amended) who wish to be accredited are encouraged to use the policies 
and standards in that

[[Page 18]]

part since they have been modified and approved for Indian country.



Sec. 10.4  What happens if the policies and standards are not followed?

    The risk for human and civil rights violations due to lack of common 
standards will subject the operation and/or facility to unnecessary 
exposure to liability. Lack of employee standards, particularly for 
training and background checks, will increase the risk of misconduct and 
vicarious liability of the tribes and the Federal government through 
tort claims. Funding sources for detention programs may become scarce to 
nonexistent because of contract noncompliance. The tribes' opportunity 
to receive funding from potential resource sharing agreements with other 
law enforcement agencies may be damaged because the facility may have to 
be closed for cause due to violation of the life safety codes.



Sec. 10.5  Where can I find the policies and standards for the 
administration, operation, services, and physical plant/construction 
of Indian country detention, community residential, and holding facilities?

    The Bureau of Indian Affairs, Department of the Interior, maintains 
a manual of policies and procedures called the Bureau of Indian Affairs 
Manual (BIAM). The chapter 69 BIAM titled ``Indian Country Detention 
Facilities and Programs,'' contains the BIA's policies, procedures, and 
standards for detention and holding programs in Indian country. The 
standards for the programs within the BIAM are in handbook format for 
easy field reference and use. Copies of the chapter 69 BIAM and 
handbooks may be obtained from the Director, Office of Law Enforcement 
Services.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.6  How is the BIA assured that the policies and standards are 
being applied uniformly and facilities are properly accredited?

    The tribes and BIA programs will use a phased approach to meeting 
all non-mandatory detention standards and will document progress on 
uniform reporting. The BIA Office of Law Enforcement Services will 
conduct periodic operational evaluations for oversight.



Sec. 10.7  Where do I find help or receive technical assistance in 
complying with the policies and standards?

    The BIA has a trained Detention Specialist on the staff of the 
Office of Law Enforcement Services, Albuquerque, New Mexico, who is 
available to conduct evaluations and provide technical assistance or 
guidance in all facets of Indian country detention programs.



Sec. 10.8  What minimum records must be kept and reports made at each 
detention, community residential, or holding facility in Indian country?

    The Director, Office of Law Enforcement Services, BIA, will develop 
all necessary requirements for maintaining records, reporting data, and 
archiving information. These requirements will be published in 69 BIAM, 
``Indian Country Detention Facilities and Programs.''

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.9  If a person is detained or incarcerated in an Indian country 
detention, community residential, or holding facility, how would they know 
what their rights, privileges, safety, protection and expected behavior would be?

    When an individual is incarcerated in an Indian country detention, 
community residential, or holding facility, he/she will be given, or in 
some cases notified of the availability of, an Inmate Handbook. This 
book of guidelines describes in detail the inmate's rights, privileges, 
protection and safety, cleanliness and sanitation, and general health 
and nutritional standards. The Inmate Handbook describes the emergency 
evacuation procedures, medical, counseling, rehabilitation services, 
visitation procedures, and other appropriate information. The Inmate 
Handbook is published by the Director, Office of Law Enforcement 
Services and maintained by the detention facility administrator at each 
facility location.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

[[Page 19]]



Sec. 10.10  What happens if I believe my civil rights have been violated 
while incarcerated in an Indian country detention or holding facility?

    All allegations of civil rights violations must be reported 
immediately to the Internal Affairs Branch of the Office of Law 
Enforcement Services. This office will ensure that such allegations are 
immediately reported to the Civil Rights Division of the U.S. Department 
of Justice through established procedures. The BIA Internal Affairs 
Branch may also investigate alleged violations and make recommendations 
for additional action as necessary. Detailed instructions on the 
procedure to report violations can be found in the Inmate Handbook.



Sec. 10.11  How would someone detained or incarcerated, or their 
representative, get the BIA policies and standards?

    At each detention, community residential, or holding facility 
located in a tribal jurisdiction where federal funds are used for 
operations or maintenance programs, the BIA's policies, standards, and 
procedures will be made available upon request. The Inmate Handbook will 
be made available to all persons at the time they are incarcerated or 
detained in a facility. There may be times when this may be delayed due 
to the physical or mental condition of the person at time of 
incarceration. In these cases, the Inmate Handbook will be made 
available when the person is deemed receptive and cognizant by the 
detention officer in charge. All policies, standards, procedures, and 
guidelines are available at each facility to the public or by writing to 
the Director, Office of Law Enforcement Services.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



PART 11_LAW AND ORDER ON INDIAN RESERVATIONS--Table of Contents




                   Subpart A_Application; Jurisdiction

Sec.
11.100 Listing of Courts of Indian Offenses.
11.101 Prospective application of regulations.
11.102 Criminal jurisdiction; limitation of actions.
11.103 Civil jurisdiction; limitation of actions.
11.104 Jurisdictional limitations.

     Subpart B_Courts of Indian Offenses; Personnel; Administration

11.200 Composition of court.
11.201 Appointment of magistrates.
11.202 Removal of magistrates.
11.203 Court clerks.
11.204 Prosecutors.
11.205 Standards governing appearance of attorneys and lay counselors.
11.206 Court records.
11.207 Cooperation of Bureau of Indian Affairs employees.
11.208 Payment of judgments from individual Indian money accounts.
11.209 Disposition of fines.

                      Subpart C_Criminal Procedure

11.300 Complaints.
11.301 Arrests.
11.302 Arrest warrants.
11.303 Notification of rights prior to custodial interrogation.
11.304 Summons in lieu of warrant.
11.305 Search warrants.
11.306 Search without a warrant.
11.307 Disposition of seized property.
11.308 Commitments.
11.309 Arraignments.
11.310 Bail.
11.311 Subpoenas.
11.312 Witness fees.
11.313 Trial procedure.
11.314 Jury trials.
11.315 Sentencing.
11.316 Probation.
11.317 Parole.
11.318 Extradition.

                       Subpart D_Criminal Offenses

11.400 Assault.
11.401 Recklessly endangering another person.
11.402 Terroristic threats.
11.403 Unlawful restraint.
11.404 False imprisonment.
11.405 Interference with custody.
11.406 Criminal coercion.
11.407 Sexual assault.
11.408 Indecent exposure.
11.409 Reckless burning or exploding.
11.410 Criminal mischief.
11.411 Criminal trespass.
11.412 Theft.
11.413 Receiving stolen property.
11.414 Embezzlement.
11.415 Fraud.
11.416 Forgery.
11.417 Extortion.

[[Page 20]]

11.418 Misbranding.
11.419 Unauthorized use of automobiles and other vehicles.
11.420 Tampering with records.
11.421 Bad checks.
11.422 Unauthorized use of credit cards.
11.423 Defrauding secured creditors.
11.424 Neglect of children.
11.425 Persistent non-support.
11.426 Bribery.
11.427 Threats and other improper influence in official and political 
          matters.
11.428 Retaliation for past official action.
11.429 Perjury.
11.430 False alarms.
11.431 False reports.
11.432 Impersonating a public servant.
11.433 Disobedience to lawful order of court.
11.434 Resisting arrest.
11.435 Obstructing justice.
11.436 Escape.
11.437 Bail jumping.
11.438 Flight to avoid prosecution or judicial process.
11.439 Witness tampering.
11.440 Tampering with or fabricating physical evidence.
11.441 Disorderly conduct.
11.442 Riot; failure to disperse.
11.443 Harassment.
11.444 Carrying concealed weapons.
11.445 Driving violations.
11.446 Cruelty to animals.
11.447 Maintaining a public nuisance.
11.448 Abuse of office.
11.449 Violation of an approved tribal ordinance.
11.450 Maximum fines and sentences of imprisonment.

                         Subpart E_Civil Actions

11.500 Law applicable to civil actions.
11.501 Judgments in civil actions.
11.502 Costs in civil actions.
11.503 Applicable civil procedure.
11.504 Applicable rules of evidence.

                      Subpart F_Domestic Relations

11.600 Marriages.
11.601 Marriage licenses.
11.602 Solemnization.
11.603 Invalid or prohibited marriages.
11.604 Declaration of invalidity.
11.605 Dissolution.
11.606 Dissolution proceedings.
11.607 Temporary orders and temporary injunctions.
11.608 Final decree; disposition of property; maintenance; child 
          support; custody.
11.609 Determination of paternity and support.
11.610 Appointment of guardians.
11.611 Change of name.

                      Subpart G_Probate Proceedings

11.700 Probate jurisdiction.
11.701 Duty to present will for probate.
11.702 Proving and admitting will.
11.703 Petition and order to probate estate.
11.704 Appointment and duties of executor or administrator.
11.705 Removal of executor or administrator.
11.706 Appointment and duties of appraiser.
11.707 Claims against estate.
11.708 Sale of property.
11.709 Final account.
11.710 Determination of the court.
11.711 Descent and distribution.
11.712 Closing estate.
11.713 Small estates.

                     Subpart H_Appellate Proceedings

11.800 Jurisdiction of appellate division.
11.801 Procedure on appeal.
11.802 Judgment against surety.
11.803 Record on appeal.
11.804 Briefs and memoranda.
11.805 Oral argument.
11.806 Rules of court.

                       Subpart I_Children's Court

11.900 Definitions.
11.901 The children's court established.
11.902 Non-criminal proceedings.
11.903 Presenting officer.
11.904 Guardian ad litem.
11.905 Jurisdiction.
11.906 Rights of parties.
11.907 Transfer to Court of Indian Offenses.
11.908 Court records.
11.909 Law enforcement records.
11.910 Expungement.
11.911 Appeal.
11.912 Contempt of court.

                  Subpart J_Juvenile Offender Procedure

11.1000 Complaint.
11.1001 Warrant.
11.1002 Custody.
11.1003 Law enforcement officer's duties.
11.1004 Detention and shelter care.
11.1005 Preliminary inquiry.
11.1006 Investigation by the presenting officer.
11.1007 Petition.
11.1008 Date of hearing.
11.1009 Summons.
11.1010 Adjudicatory hearing.
11.1011 Dispositional hearing.
11.1012 Dispositional alternatives.
11.1013 Modification of dispositional order.
11.1014 Medical examination.

                Subpart K_Minor-in-Need-of-Care Procedure

11.1100 Complaint.

[[Page 21]]

11.1101 Warrant.
11.1102 Custody.
11.1103 Law enforcement officer's duties.
11.1104 Shelter care.
11.1105 Preliminary inquiry.
11.1106 Investigation by the presenting officer.
11.1107 Petition.
11.1108 Date of hearing.
11.1109 Summons.
11.1110 Minor-in-need-of-care adjudicatory hearing.
11.1111 Minor-in-need-of-care dispositional hearing.
11.1112 Dispositional alternatives.
11.1113 Modification of dispositional order.
11.1114 Termination.
11.1115 Information collection.

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 
9; 42 Stat. 208, 25 U.S.C. 13; 38 Stat. 586, 25 U.S.C. 200.

    Source: 58 FR 54411, Oct. 21, 1993, unless otherwise noted.



                   Subpart A_Application; Jurisdiction



Sec. 11.100  Listing of Courts of Indian Offenses.

    (a) Except as otherwise provided in this title, the regulations 
under this part are applicable to the Indian country (as defined in 18 
U.S.C. 1151) occupied by the following tribes:
    (1) Red Lake Band of Chippewa Indians (Minnesota).
    (2) Confederated Tribes of the Goshute Reservation (Nevada).
    (3) Lovelock Paiute Tribe (Nevada).
    (4) Te-Moak Band of Western Shoshone Indians (Nevada).
    (5) Yomba Shoshone Tribe (Nevada).
    (6) Kootenai Tribe (Idaho).
    (7) Shoalwater Bay Tribe (Washington).
    (8) Eastern Band of Cherokee Indians (North Carolina).
    (9) For the following tribes located in the former Oklahoma 
Territory (Oklahoma):
    (i) Absentee Shawnee Tribe of Indians of Oklahoma
    (ii) Apache Tribe of Oklahoma
    (iii) Caddo Tribe of Oklahoma
    (iv) Cheyenne-Arapaho Tribe of Oklahoma
    (v) Citizen Band of Potawatomi Indians of Oklahoma
    (vi) Comanche Tribe of Oklahoma (except Comanche Children's Court)
    (vii) Delaware Tribe of Western Oklahoma
    (viii) Fort Sill Apache Tribe of Oklahoma
    (ix) Iowa Tribe of Oklahoma
    (x) Kaw Tribe of Oklahoma
    (xi) Kickapoo Tribe of Oklahoma
    (xii) Kiowa Tribe of Oklahoma
    (xiii) Otoe-Missouria Tribe of Oklahoma
    (xiv) Pawnee Tribe of Oklahoma
    (xv) Ponca Tribe of Oklahoma
    (xvi) Tonkawa Tribe of Oklahoma
    (xvii) Wichita and Affiliated Tribes of Oklahoma.
    (10) Hoopa Valley Tribe, Yurok Tribe, and Coast Indian Community of 
California (California Jurisdiction limited to special fishing 
regulations).
    (11) Louisiana Area (includes Coushatta and other tribes in the 
State of Louisiana which occupy Indian country and which accept the 
application of this part);

Provided that this part shall not apply to any Louisiana tribe other 
than the Coushatta Tribe until notice of such application has been 
published in the Federal Register.
    (12) For the following tribes located in the former Indian Territory 
(Oklahoma):
    (i) Chickasaw Nation
    (ii) Choctaw Nation
    (iii) Thlopthlocco Tribal Town
    (iv) Seminole Nation
    (v) Eastern Shawnee Tribe
    (vi) Miami Tribe
    (vii) Modoc Tribe
    (viii) Ottawa Tribe
    (ix) Peoria Tribe
    (x) Quapaw Tribe
    (xi) Wyandotte Tribe
    (xii) Seneca-Cayuga Tribe
    (xiii) Osage Tribe.
    (13) Ute Mountain Ute Tribe (Colorado).
    (14) Santa Fe Indian School Property, including the Santa Fe Indian 
Health Hospital, and the Albuquerque Indian School Property (land held 
in trust for the 19 Pueblos of New Mexico).
    (15) Winnemucca Indian Tribe (land in trust for the Winnemucca 
Indian Tribe of Nevada).
    (b) It is the purpose of the regulations in this part to provide 
adequate machinery for the administration of justice for Indian tribes 
in those areas

[[Page 22]]

of Indian country where tribes retain jurisdiction over Indians that is 
exclusive of state jurisdiction but where tribal courts have not been 
established to exercise that jurisdiction.
    (c) The regulations in this part shall continue to apply to tribes 
listed under Sec. 11.100(a) until a law and order code which includes 
the establishment of a court system has been adopted by the tribe in 
accordance with its constitution and by-laws or other governing 
documents, has become effective, and the Assistant Secretary--Indian 
Affairs or his or her designee has received a valid tribal enactment 
identifying the effective date of the code's implementation, and the 
name of the tribe has been deleted from the listing of Courts of Indian 
Offenses under Sec. 11.100(a).
    (d) For the purposes of the enforcement of the regulations in this 
part, an Indian is defined as a person who is a member of an Indian 
tribe which is recognized by the Federal Government as eligible for 
services from the BIA, and any other individual who is an ``Indian'' for 
purposes of 18 U.S.C. 1152-1153.
    (e) The governing body of each tribe occupying the Indian country 
over which a Court of Indian Offenses has jurisdiction may enact 
ordinances which, when approved by the Assistant Secretary--Indian 
Affairs or his or her designee, shall be enforceable in the Court of 
Indian Offenses having jurisdiction over the Indian country occupied by 
that tribe, and shall supersede any conflicting regulation in this part.
    (f) Each Court of Indian Offenses shall apply the customs of the 
tribe occupying the Indian country over which it has jurisdiction to the 
extent that they are consistent with the regulations of this part.

[58 FR 54411, Oct. 21, 1993, as amended at 59 FR 48722, Sept. 22, 1994; 
61 FR 10674, Mar. 15, 1996; 66 FR 22121, May 3, 2001; 66 FR 48087, Sept. 
18, 2001; 67 FR 44355, July 2, 2002; 67 FR 59783, Sept. 24, 2002; 68 FR 
44616, July 30, 2003; 69 FR 51559, Aug. 20, 2004; 70 FR 15761, Mar. 29, 
2005]



Sec. 11.101  Prospective application of regulations.

    Civil and criminal causes of actions arising prior to the effective 
date of these regulations shall not abate but shall be determined in 
accordance with the regulations in effect at the time the cause arose.



Sec. 11.102  Criminal jurisdiction; limitation of actions.

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses shall have jurisdiction over any action by an Indian (hereafter 
referred to as person) that is made a criminal offense under this part 
and that occurred within the Indian country subject to the court's 
jurisdiction.
    (b) No person shall be prosecuted, tried or punished for any offense 
unless the complaint is filed within five years after such offense shall 
have been committed.



Sec. 11.103  Civil jurisdiction; limitation of actions.

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses shall have jurisdiction over any civil action arising within 
the territorial jurisdiction of the court in which the defendant is an 
Indian, and of all other suits between Indians and non-Indians which are 
brought before the court by stipulation of the parties.
    (b) Any civil action commenced in a Court of Indian Offenses shall 
be barred unless the complaint is filed within three years after the 
right of action first accrues.



Sec. 11.104  Jurisdictional limitations.

    (a) No Court of Indian Offenses may exercise any jurisdiction over a 
Federal or state official that it could not exercise if it were a tribal 
court.
    (b) Unless otherwise provided by a resolution or ordinance of the 
tribal governing body of the tribe occupying the Indian country over 
which a Court of Indian country over which a Court of Indian Offenses 
has jurisdiction, no Court of Indian Offenses may adjudicate an election 
dispute or take jurisdiction over a suit against the tribe or adjudicate 
any internal tribal government dispute.
    (c) The decision of the BIA on who is a tribal official is binding 
in a Court of Indian Offenses.

[[Page 23]]

    (d) The Department of the Interior will accord the same weight to 
decisions of a Court of Indian Offenses that it accords to decisions of 
a tribal court.
    (e) A tribe may not be sued in a Court of Indian Offenses unless its 
tribal governing body explicitly waives its tribal immunity by tribal 
resolution or ordinance.



     Subpart B_Courts of Indian Offenses; Personnel; Administration



Sec. 11.200  Composition of court.

    (a) Each court shall be composed of a trial division and an 
appellate division.
    (b) A chief magistrate will be appointed for each court who will, in 
addition to other judicial duties, be responsible for the administration 
of the court and the supervision of all court personnel.
    (c) Appeals shall be heard by a panel of three magistrates who were 
not involved in the trial of the case.
    (d) Decisions of the appellate division are final and are not 
subject to administrative appeals within the Department of the Interior.



Sec. 11.201  Appointment of magistrates.

    (a) Each magistrate shall be appointed by the Assistant Secretary--
Indian Affairs or his or her designee subject to confirmation by a 
majority vote of the tribal governing body of the tribe occupying the 
Indian country over which the court has jurisdiction, or, in the case of 
multi-tribal courts, confirmation by a majority of the tribal governing 
bodies of the tribes under the jurisdiction of a Court of Indian 
Offenses.
    (b) Each magistrate shall hold office for a period of four years, 
unless sooner removed for cause or by reason of the abolition of the 
office, but is eligible for reappointment.
    (c) No person is eligible to serve as a magistrate of a Court of 
Indian Offenses who has ever been convicted of a felony or, within one 
year of the date of service or application, of a misdemeanor.
    (d) No magistrate shall be qualified to act as such wherein he or 
she has any direct conflicting interest, real or apparent.
    (e) A tribal governing body may set forth such other qualifications 
for magistrates of the Court of Indian Offenses as it deems appropriate, 
subject to the approval of the Assistant Secretary--Indian Affairs, or 
his or her designee.
    (f) A tribal governing body may also recommend requirements for the 
training of magistrates of the Court of Indian Offenses to the Assistant 
Secretary--Indian Affairs.



Sec. 11.202  Removal of magistrates.

    Any magistrate of a Court of Indian Offenses may be suspended, 
dismissed or removed by the Assistant Secretary--Indian Affairs, or his 
or her designee, for cause, upon the written recommendation of the 
tribal governing body, and, in the case of multi-tribal courts, upon the 
recommendation of a majority of the tribal governing bodies of the 
tribes under the jurisdiction of a Court of Indian Offenses, or pursuant 
to his or her own discretion.



Sec. 11.203  Court clerks.

    (a) Except as may otherwise be provided in a contract with the tribe 
occupying the Indian country over which the court has jurisdiction, the 
chief magistrate shall appoint a clerk of court for the Court of Indian 
Offenses within his or her jurisdiction, subject to the superintendent's 
approval.
    (b) The clerk shall render assistance to the court, to local law 
enforcement officers and to individual members of the tribe in the 
drafting of complaints, subpoenas, warrants, commitments, and other 
documents incidental to the functions of the court. The clerk shall also 
attend and keep a record of all proceedings of the court and manage all 
monies received by the court.
    (c) The clerk of court shall forward any monies received on 
judgments due to the person, agency, or corporation to which entitled, 
within 30 days unless directed otherwise by a magistrate of the Court of 
Indian Offenses.



Sec. 11.204  Prosecutors.

    Except as may otherwise be provided in a contract with the tribe 
occupying the Indian country over which the

[[Page 24]]

court has jurisdiction, the superintendent shall appoint a prosecutor 
for each Court of Indian Offenses within his or her jurisdiction.



Sec. 11.205  Standards governing appearance of attorneys and lay 
counselors.

    (a) No defendant in a criminal proceeding shall be denied the right 
to counsel.
    (b) The chief magistrate shall prescribe in writing standards 
governing the admission and practice in the Court of Indian Offenses of 
professional attorneys and lay counselors.



Sec. 11.206  Court records.

    (a) Each Court of Indian Offenses shall keep a record of all 
proceedings of the court containing the title of the case, the names of 
the parties, the complaint, all pleadings, the names and addresses of 
all witnesses, the date of any hearing or trial, the name of any 
magistrate conducting such hearing or trial, the findings of the court 
or jury, the judgment and any other information the court determines is 
important to the case.
    (b) The record in each case shall be available for inspection by the 
parties to the case.
    (c) Except for cases in which a juvenile is a party or the subject 
of a proceeding, and for cases whose records have been sealed by the 
court, all case records shall be available for inspection by the public.
    (d) Such court records are part of the records of the BIA agency 
having jurisdiction over the Indian country where the Court of Indian 
Offenses is located and shall be protected in accordance with 44 U.S.C. 
3102.



Sec. 11.207  Cooperation by Bureau of Indian Affairs Employees.

    (a) No employee of the BIA may obstruct, interfere with, or control 
the functions of any Court of Indian Offenses, or influence such 
functions in any manner except as permitted by Federal statutes or the 
regulations in this part or in response to a request for advice or 
information from the court.
    (b) Employees of the BIA shall assist the court, upon its request, 
in the preparation and presentation of facts in the case and in the 
proper treatment of individual offenders.



Sec. 11.208  Payment of judgments from individual Indian money accounts.

    (a) Any Court of Indian Offenses may make application to the 
superintendent who administers the individual Indian money account of a 
defendant who has failed to satisfy a money judgment from the court to 
obtain payment of the judgment from funds in the defendant's account. 
The court shall certify the record of the case to the superintendent. If 
the superintendent so directs, the disbursing agent shall pay over to 
the injured party the amount of the judgment or such lesser amount as 
may be specified by the superintendent.
    (b) A judgment of a Court of Indian Offenses shall be considered a 
lawful debt in all proceedings held by the Department of the Interior or 
by a Court of Indian Offenses to distribute decedents' estates.



Sec. 11.209  Disposition of fines.

    All money fines imposed for the commission of an offense shall be in 
the nature of an assessment for the payment of designated court 
expenses. The fines assessed shall be paid over by the clerk of the 
court to the disbursing agent of the reservation for deposit as a 
``special deposit, court funds'' to the disbursing agent's official 
credit in the Treasury of the United States. The disbursing agent shall 
withdraw such funds, in accordance with existing regulations, upon order 
of the clerk of the court signed by a judge of the court for the payment 
of specified expenses. The disbursing agent and the clerk of the court 
shall keep an account of all such deposits and withdrawals available for 
public inspection.



                      Subpart C_Criminal Procedure



Sec. 11.300  Complaints.

    (a) A complaint is a written statement of the essential facts 
charging that a named individual(s) has committed a particular offense. 
All criminal prosecutions shall be initiated by a complaint filed with 
the court by a law enforcement officer and sworn to by a

[[Page 25]]

person having personal knowledge of the offense.
    (b) Complaints shall contain:
    (1) The signature of the complaining witness, or witnesses, sworn 
before a magistrate, a court clerk, a prosecutor, or any law enforcement 
officer.
    (2) A written statement by the complaining witness or witnesses 
having personal knowledge of the violation, describing in ordinary 
language the nature of the offense committed including the time and 
place as nearly as may be ascertained.
    (3) The name or description of the person alleged to have committed 
the offense.
    (4) A description of the offense charged and the section of the code 
allegedly violated.
    (c) Complaints must be submitted without unnecessary delay by a law 
enforcement officer to the prosecutor and, if he or she approves, to a 
judge to determine whether an arrest warrant or summons should be 
issued.
    (d) When an accused has been arrested without a warrant, a complaint 
shall be filed forthwith with the court for review as to whether 
probable cause exists to hold the accused, and in no instance shall a 
complaint be filed later than at the time of arraignment.



Sec. 11.301  Arrests.

    (a) Arrest is the taking of a person into police custody in order 
that he or she may be held to answer for a criminal offense.
    (b) No law enforcement officer shall arrest any person for a 
criminal offense except when:
    (1) The officer shall have a warrant signed by a magistrate 
commanding the arrest of such person, or the officer knows for a 
certainty that such a warrant has been issued; or
    (2) The offense shall occur in the presence of the arresting 
officer; or
    (3) The officer shall have probable cause to believe that the person 
arrested has committed an offense.



Sec. 11.302  Arrest warrants.

    (a) Each magistrate of a Court of Indian Offenses shall have the 
authority to issue warrants to apprehend any person the magistrate has 
probable cause to believe has committed a criminal offense in violation 
of the regulations under this part based on a written complaint filed 
with the court by a law enforcement officer and bearing the signature of 
the complainant.
    (b) The arrest warrant shall contain the following information:
    (1) Name or description and address, if known, of the person to be 
arrested.
    (2) Date of issuance of the warrant.
    (3) Description of the offense charged.
    (4) Signature of the issuing magistrate.
    (c) Such warrants may be served only by a BIA or tribal police 
officer or other officer commissioned to enforce the regulations of this 
part.



Sec. 11.303  Notification of rights prior to custodial interrogation.

    Prior to custodial interrogation, the suspect shall be advised of 
the following rights:
    (a) That he or she has the right to remain silent.
    (b) That any statements made by him or her may be used against him 
or her in court.
    (c) That he or she has the right to obtain counsel and, if indigent, 
to have counsel appointed for him/her.



Sec. 11.304  Summons in lieu of warrant.

    (a) When otherwise authorized to arrest a suspect, a law enforcement 
officer or a magistrate may, in lieu of a warrant, issue a summons 
commanding the accused to appear before the Court of Indian Offenses at 
a stated time and place and answer to the charge.
    (b) The summons shall contain the same information as a warrant, 
except that it may be signed by a police officer.
    (c) The summons shall state that if a defendant fails to appear in 
response to a summons, a warrant for his or her arrest shall be issued.
    (d) The summons, together with a copy of the complaint, shall be 
served upon the defendant by delivering a copy to the defendant 
personally or by leaving a copy at his or her usual residence or place 
of business with any person 18 years of age or older who also resides or 
works there. Service shall be made by an authorized law enforcement 
officer, who shall file with the

[[Page 26]]

record of the case a form indicating when the summons was served.



Sec. 11.305  Search warrants.

    (a) Each magistrate of a Court of Indian Offenses shall have the 
authority to issue a warrant for the search of premises and for the 
seizure of physical evidence of a criminal violation under the 
regulations of this part located within the Indian country over which 
the court has jurisdiction.
    (b) No warrant for search or seizure may be issued unless it is 
based on a written and signed statement establishing, to the 
satisfaction of the magistrate, that probable cause exists to believe 
that the search will lead to discovery of evidence of a criminal 
violation under the regulations of this part.
    (c) No warrant for search or seizure shall be valid unless it 
contains the name or description of the person, vehicle, or premises to 
be searched, describes the evidence to be seized, and bears the 
signature of the magistrate who issued it.
    (d) Warrants may be executed only by a BIA or tribal police officer 
or other official commissioned to enforce the regulations under this 
part. The executing officer shall return the warrant to the Court of 
Indian Offenses within the time limit shown on the face of the warrant, 
which in no case shall be longer than ten (10) days from the date of 
issuance. Warrants not returned within such time limits shall be void.



Sec. 11.306  Search without a warrant.

    No law enforcement officer shall conduct any search without a valid 
warrant except:
    (a) Incident to making a lawful arrest; or
    (b) With the voluntary consent of the person being searched; or
    (c) When the search is of a moving vehicle and the officer has 
probable cause to believe that it contains contraband, stolen property, 
or property otherwise unlawfully possessed.



Sec. 11.307  Disposition of seized property.

    (a) The officer serving and executing a warrant shall make an 
inventory of all seized property, and a copy of such inventory shall be 
left with every person from whom property is seized.
    (b) A hearing shall be held by the Court of Indian Offenses to 
determine the disposition of all seized property. Upon satisfactory 
proof of ownership, the property shall be delivered immediately to the 
owner, unless such property is contraband or is to be used as evidence 
in a pending case. Property seized as evidence shall be returned to the 
owner after final judgment. Property confiscated as contraband shall be 
destroyed or otherwise lawfully disposed of as ordered by the Court of 
Indian Offenses.



Sec. 11.308  Commitments.

    No person may be detained, jailed or imprisoned under the 
regulations of this part for longer than 48 hours unless the Court of 
Indian Offenses issues a commitment bearing the signature of a 
magistrate. A temporary commitment shall be issued for each person held 
before trial. A final commitment shall be issued for each person 
sentenced to jail after trial.



Sec. 11.309  Arraignments.

    (a) Arraignment is the bringing of an accused before the court, 
informing him or her of his or her rights and of the charge(s) against 
him or her, receiving the plea, and setting conditions of pretrial 
release as appropriate in accordance with this part.
    (b) Arraignment shall be held in open court without unnecessary 
delay after the accused is taken into custody and in no instance shall 
arraignment be later than the next regular session of court.
    (c) Before an accused is required to plead to any criminal charges 
the magistrate shall:
    (1) Read the complaint to the accused and determine that he or she 
understands it and the section(s) of this part that he or she is charged 
with violating, including the maximum authorized penalty; and
    (2) Advise the accused that he or she has the right to remain 
silent, to be tried by a jury if the offense charged is punishable by 
imprisonment, to be represented by counsel (which shall be

[[Page 27]]

paid for by the government if the accused is indigent) and that the 
arraignment will be postponed should he or she desire to consult with 
counsel.
    (d) The magistrate shall call upon the defendant to plead to the 
charge:
    (1) If the accused pleads ``not guilty'' to the charge, the 
magistrate shall then inform the accused of the trial date and set 
conditions for release prior to trial.
    (2) If the accused pleads ``guilty'' to the charge, the magistrate 
shall accept the plea only if he or she is satisfied that the plea is 
made voluntarily and that the accused understands the consequences of 
the plea, including the rights waived by the plea. The magistrate may 
then impose sentence or defer sentencing for a reasonable time in order 
to obtain any information he or she deems necessary for the imposition 
of a just sentence. The accused shall be afforded an opportunity to be 
heard by the court prior to sentencing.
    (3) If the accused refuses to plead, the judge shall enter a plea of 
``not guilty'' on his or her behalf.
    (e) The court may, in its discretion, allow a defendant to withdraw 
a plea of guilty if it appears that the interest of justice would be 
served by doing so.



Sec. 11.310  Bail.

    (a) Each person charged with a criminal offense under this part 
shall be entitled to release from custody pending trial under whichever 
one or more of the following conditions is deemed necessary to 
reasonably assure the appearance of the person at any time lawfully 
required:
    (1) Release on personal recognizance upon execution by the accused 
of a written promise to appear at trial and all other lawfully required 
times;
    (2) Release to the custody of a designated person or organization 
agreeing to assure the accused's appearance;
    (3) Release with reasonable restrictions on the travel, association, 
or place of residence of the accused during the period of release;
    (4) Release after deposit of a bond or other sufficient collateral 
in an amount specified by the magistrate or a bail schedule;
    (5) Release after execution of a bail agreement by two responsible 
members of the community; or
    (6) Release upon any other condition deemed reasonably necessary to 
assure the appearance of the accused as required.
    (b) Any law enforcement officer authorized to do so by the court may 
admit an arrested person to bail pending trial pursuant to a bail 
schedule and conditions prepared by the court.
    (c) A convicted person may be released from custody pending appeal 
on such conditions as the magistrate determines will reasonably assure 
the appearance of the accused unless the magistrate determines that 
release of the accused is likely to pose a danger to the community, the 
accused, or any other person.
    (d) The Court of Indian Offenses may revoke its release of the 
defendant and order him or her committed at any time where it determines 
that the conditions of release will not reasonably assure the appearance 
of the defendant, or if any conditions of release have been violated.



Sec. 11.311  Subpoenas.

    (a) Upon request of any party, the court shall issue subpoenas to 
compel the testimony of witnesses, or the production of books, records, 
documents or any other physical evidence relevant to the determination 
of the case and not an undue burden on the person possessing the 
evidence. The clerk of the court may act on behalf of the court and 
issue subpoenas which have been signed either by the clerk of the court 
or by a magistrate of the Court of Indian Offenses and which are to be 
served within Indian country over which the Court of Indian Offenses has 
jurisdiction.
    (b) A subpoena shall bear the signature of the chief magistrate of 
the Court of Indian Offenses, and it shall state the name of the court, 
the name of the person or description of the physical evidence to be 
subpoenaed, the title of the proceeding, and the time and place where 
the witness is to appear or the evidence is to be produced.
    (c) A subpoena may be served at any place but any subpoena to be 
served

[[Page 28]]

outside of the Indian country over which the Court of Indian Offenses 
has jurisdiction shall be issued personally by a magistrate of the Court 
of Indian Offenses.
    (d) A subpoena may be served by any law enforcement officer or other 
person appointed by the court for such purpose. Service of a subpoena 
shall be made by delivering a copy of it to the person named or by 
leaving a copy at his or her place of residence or business with any 
person 18 years of age or older who also resides or works there.
    (e) Proof of service of the subpoena shall be filed with the clerk 
of the court by noting on the back of the subpoena the date, time and 
place that it was served and noting the name of the person to whom it 
was delivered. Proof of service shall be signed by the person who 
actually served the subpoena.
    (f) In the absence of a justification satisfactory to the court, a 
person who fails to obey a subpoena may be deemed to be in contempt of 
court and a bench warrant may be issued for his or her arrest.



Sec. 11.312  Witness fees.

    (a) Each fact witness answering a subpoena is entitled to a fee of 
not less than the hourly minimum wage scale established by 29 U.S.C. 
206(a)(1) and any of its subsequent revisions, plus actual cost of 
travel. Each fact witness testifying at a hearing shall receive pay for 
a full day (eight hours) plus travel allowance.
    (b) The Court of Indian Offenses may order any party calling a 
witness to testify without a subpoena to compensate the witness for 
actual traveling and living expenses incurred in testifying.
    (c) If the Court of Indian Offenses finds that a complaint was not 
filed in good faith but with a frivolous or malicious intent, it may 
order the complainant to reimburse the court for expenditures incurred 
under this section, and such order may constitute a judgment upon which 
execution may levy.



Sec. 11.313  Trial procedure.

    (a) The time and place of court sessions, and all other details of 
judicial procedure shall be set out in rules of court approved by the 
chief magistrate of the Court of Indian Offenses.
    (b) Courts of Indian Offenses shall be bound by the Federal Rules of 
Evidence, except insofar as such rules are superseded by order of the 
court or by the existence of inconsistent tribal rules of evidence.



Sec. 11.314  Jury trials.

    (a) In any criminal case punishable by a sentence of six months in 
jail and in any criminal case in which the prosecutor informs the court 
before the case comes to trial that a jail sentence will be sought, the 
defendant has a right, upon demand, to a jury trial. If the prosecutor 
informs the court that no prison sentence will be sought, the court may 
not impose a prison sentence for the offense.
    (b) A jury shall consist of eight Indian residents of the vicinity 
in which trial is held, selected from a list of eligible jurors prepared 
each year by the court. An eligible juror shall be at least 18 years of 
age, shall not have been convicted of a felony, and shall not otherwise 
be unqualified according to standards established by the Court of Indian 
Offenses under its general rulemaking authority. Any party may challenge 
without cause not more than three members of the jury panel so chosen.
    (c) The magistrate shall instruct the jury with regard to the 
applicable law and the jury shall decide all questions of fact on the 
basis of the law.
    (d) The jury shall deliberate in secret and return a verdict of 
guilty or not guilty. Six out of the eight jurors must concur to render 
a verdict.
    (e) Each juror who serves on a jury is entitled to a fee not less 
than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1), 
and any of its subsequent revisions, plus mileage not to exceed the 
maximum rate per mile established by the Federal Government of jurors 
and witnesses. Each juror shall receive pay for a full day (eight hours) 
for any portion of a day served, plus travel allowance.



Sec. 11.315  Sentencing.

    (a) Any person who has been convicted in a Court of Indian Offenses 
of

[[Page 29]]

a criminal offense under the regulations of this part may be sentenced 
to one or a combination of the following penalties:
    (1) Imprisonment for a period not to exceed the maximum permitted by 
the section defining the offense, which in no case shall be greater than 
six months.
    (2) A money fine in an amount not to exceed the maximum permitted by 
the section defining the offense, which in no case shall be greater than 
five hundred dollars ($500).
    (3) Labor for the benefit of the tribe.
    (4) Rehabilitative measures.
    (b) In addition to or in lieu of the penalties provided in paragraph 
(a) of this section, the court may require a convicted offender who has 
inflicted injury upon the person or property of another to make 
restitution or compensate the injured person by means of the surrender 
of property, payment of money damages, or the performance of any other 
act for the benefit of the injured party.
    (c) If, solely because of indigence, a convicted offender is unable 
to pay forthwith a money fine assessed under any applicable section, the 
court shall allow him or her a reasonable period of time to pay the 
entire sum or allow him or her to make reasonable installment payments 
to the clerk of the court at specified intervals until the entire sum is 
paid. If the offender defaults on such payments the court may find him 
or her in contempt of court and imprison him or her accordingly.



Sec. 11.316  Probation.

    (a) Where a sentence of imprisonment has been imposed on a convicted 
offender, the Court of Indian Offenses may, in its discretion, suspend 
the serving of such sentence and release the person on probation under 
any reasonable conditions deemed appropriate by the court, provided that 
the period of probation shall not exceed one year.
    (b) Any person who violates the terms of his or her probation may be 
required by the court to serve the sentence originally imposed or such 
part of it as the court may determine to be suitable giving 
consideration to all the circumstances, provided that such revocation of 
probation shall not be ordered without a hearing before the court at 
which the offender shall have the opportunity to explain his or her 
actions.



Sec. 11.317  Parole.

    (a) Any person sentenced by the court of detention or labor shall be 
eligible for parole at such time and under such reasonable conditions as 
set by the Court of Indian Offenses.
    (b) Any person who violates the conditions of his or her parole may 
be required by the court to serve the whole original sentence, provided 
that such revocation or parole shall not be ordered without a hearing 
before the court at which the offender shall have the opportunity to 
explain his or her actions.



Sec. 11.318  Extradition.

    Any Court of Indian Offenses may order delivery to the proper state, 
tribal or BIA law enforcement authorities of any person found within the 
jurisdiction of the court, who is charged with an offense in another 
jurisdiction. Prior to delivery to the proper officials, the accused 
shall be accorded a right to contest the propriety of the court's order 
in a hearing before the court.



                       Subpart D_Criminal Offenses



Sec. 11.400  Assault.

    (a) A person is guilty of assault if he or she:
    (1) Attempts to cause or purposely, knowingly or recklessly causes 
bodily injury to another; or
    (2) Negligently causes bodily injury to another with a deadly 
weapon; or
    (3) Attempts by physical menace to put another in fear of imminent 
serious bodily injury.
    (b) Assault is a misdemeanor unless committed in a fight or scuffle 
entered into by mutual consent, in which case it is a petty misdemeanor.



Sec. 11.401  Recklessly endangering another person.

    A person commits a misdemeanor if he or she recklessly engages in 
conduct which places or may place another person in danger of death or 
serious bodily injury. Recklessness and danger shall

[[Page 30]]

be presumed where a person knowingly points a firearm at or in the 
direction of another person, whether or not the actor believed the 
firearm to be loaded.

[58 FR 54411, Oct. 21, 1993; 58 FR 58729, Nov. 3, 1993]



Sec. 11.402  Terroristic threats.

    A person is guilty of a misdemeanor if he or she threatens to commit 
any crime of violence with purpose to terrorize another or to cause 
evacuation of a building, place of assembly or facility of public 
transportation, or otherwise to cause serious public inconvenience or in 
reckless disregard of the risk of causing such terror or inconvenience.



Sec. 11.403  Unlawful restraint.

    A person commits a misdemeanor if he or she knowingly:
    (a) Restrains another unlawfully in circumstances exposing him or 
her to risk of serious bodily injury; or
    (b) Holds another in a condition of involuntary servitude.



Sec. 11.404  False imprisonment.

    A person commits a misdemeanor if he or she knowingly restrains 
another unlawfully so as to interfere substantially with his or her 
liberty.



Sec. 11.405  Interference with custody.

    (a) Custody of children. A person commits a misdemeanor if he or she 
knowingly or recklessly takes or entices any child under the age of 18 
from the custody of his or her parent, guardian or other lawful 
custodian, when he or she has no privilege to do so.
    (b) Custody of committed person. A person is guilty of a misdemeanor 
if he or she knowingly or recklessly takes or entices any committed 
person away from lawful custody when he or she does not have the 
privilege to do so. Committed person means, in addition to anyone 
committed under judicial warrant, any orphan, neglected or delinquent 
child, mentally defective or insane person, or other dependent or 
incompetent person entrusted to another's custody by or through a 
recognized social agency or otherwise by authority of law.



Sec. 11.406  Criminal coercion.

    (a) A person is guilty of criminal coercion if, with purpose to 
unlawfully restrict another's freedom of action to his or her detriment, 
he or she threatens to:
    (1) Commit any criminal offense; or
    (2) Accuse anyone of a criminal offense; or
    (3) Take or withhold action as an official, or cause an official to 
take or withhold action.
    (b) Criminal coercion is classified as a misdemeanor.



Sec. 11.407  Sexual assault.

    (a) A person who has sexual contact with another person not his or 
her spouse, or causes such other person to have sexual contact with him 
or her, is guilty of sexual assault as a misdemeanor, if:
    (1) He or she knows that the conduct is offensive to the other 
person; or
    (2) He or she knows that the other person suffers from a mental 
disease or defect which renders him or her incapable of appraising the 
nature or his or her conduct; or
    (3) He or she knows that the other person is unaware that a sexual 
act is being committed; or
    (4) The other person is less than 10 years old; or
    (5) He or she has substantially impaired the other person's power to 
appraise or control his or her conduct, by administering or employing 
without the other's knowledge drugs, intoxicants or other means for the 
purpose of preventing resistance; or
    (6) The other person is less than 16 years old and the actor is at 
least four years older than the other person; or
    (7) The other person is less than 21 years old and the actor is his 
or her guardian or otherwise responsible for general supervision of his 
or her welfare; or
    (8) The other person is in custody of law or detained in a hospital 
or other institution and the actor has supervisory or disciplinary 
authority over him or her.
    (b) Sexual contact is any touching of the sexual or other intimate 
parts of the person for the purpose of arousing or gratifying sexual 
desire, or for the

[[Page 31]]

purpose of abusing, humiliating, harassing, or degrading the victim.



Sec. 11.408  Indecent exposure.

    A person commits a misdemeanor if he or she exposes his or her 
genitals under circumstances in which he or she knows his or her conduct 
is likely to cause affront or alarm.



Sec. 11.409  Reckless burning or exploding.

    A person commits a misdemeanor if he or she purposely starts a fire 
or causes an explosion, whether on his or her property or another's, and 
thereby recklessly:
    (a) Places another person in danger of death or bodily injury; or
    (b) Places a building or occupied structure of another in danger of 
damage or destruction.



Sec. 11.410  Criminal mischief.

    (a) A person is guilty of criminal mischief if he or she:
    (1) Damages tangible property of another purposely, recklessly, or 
by negligence in the employment of fire, explosives, or other dangerous 
means; or
    (2) Purposely or recklessly tampers with tangible property of 
another so as to endanger person or property; or
    (3) Purposely or recklessly causes another to suffer pecuniary loss 
by deception or threat.
    (b) Criminal mischief is a misdemeanor if the actor purposely causes 
pecuniary loss in excess of $100, or a petty misdemeanor if he or she 
purposely or recklessly causes pecuniary loss in excess of $25. 
Otherwise, criminal mischief is a violation.



Sec. 11.411  Criminal trespass.

    (a) A person commits an offense if, knowing that he or she is not 
licensed or privileged to do so, he or she enters or surreptitiously 
remains in any building or occupied structure. An offense under this 
subsection is a misdemeanor if it is committed in a dwelling at night. 
Otherwise it is a petty misdemeanor.
    (b) A person commits an offense if, knowing that he or she is not 
licensed or privileged to do so, he or she enters or remains in any 
place as to which notice against trespass is given by:
    (1) Actual communication to the actor; or
    (2) Posting in a manner prescribed by law or reasonably likely to 
come to the attention of intruders; or
    (3) Fencing or other enclosure manifestly designed to exclude 
intruders.
    (c) An offense under this section constitutes a petty misdemeanor if 
the offender defies an order to leave personally communicated to him or 
her by the owner of the premises or other authorized person. Otherwise 
it is a violation.



Sec. 11.412  Theft.

    A person who, without permission of the owner, shall take, shoplift, 
possess or exercise unlawful control over movable property not his or 
her own or under his or her control with the purpose to deprive the 
owner thereof or who unlawfully transfers immovable property of another 
or any interest therein with the purpose to benefit himself or herself 
or another not entitled thereto shall be guilty of theft, a misdemeanor.



Sec. 11.413  Receiving stolen property.

    A person is guilty of receiving stolen property, a misdemeanor, if 
he or she purposely receives, retains, or disposes of movable property 
of another knowing that it has been stolen, or believing that it has 
probably been stolen, unless the property is received, retained, or 
disposed with purpose to restore it to the owner. Receiving means 
acquiring possession, control or title, or lending on the security of 
the property.



Sec. 11.414  Embezzlement.

    A person who shall, having lawful custody of property not his or her 
own, appropriate the same to his or her own use, with intent to deprive 
the owner thereof, shall be guilty of embezzlement, a misdemeanor.



Sec. 11.415  Fraud.

    A person who shall by willful misrepresentation or deceit, or by 
false interpreting, or by the use of false weights or measures obtain 
any money or other property, shall be guilty of fraud, a misdemeanor.

[[Page 32]]



Sec. 11.416  Forgery.

    (a) A person is guilty of forgery, a misdemeanor, if, with purpose 
to defraud or injure anyone, or with knowledge that he or she is 
facilitating fraud or injury to be perpetrated by anyone, he or she:
    (1) Alters, makes, completes, authenticates, issues or transfers any 
writing of another without his or her authority; or
    (2) Utters any writing which he or she knows to be forged in a 
manner above specified.
    (b) ``Writing'' includes printing or any other method of recording 
information, money, coins, tokens, stamps, seals, credit cards, badges, 
trademarks, and other symbols of value, right, privilege, or 
identification.



Sec. 11.417  Extortion.

    A person who shall willfully, by making false charges against 
another person or by any other means whatsoever, extort or attempt to 
extort any moneys, goods, property, or anything else of any value, shall 
be guilty of extortion, a misdemeanor.



Sec. 11.418  Misbranding.

    A person who shall knowingly and willfully misbrand or alter any 
brand or mark on any livestock of another person, shall be guilty of a 
misdemeanor.



Sec. 11.419  Unauthorized use of automobiles and other vehicles.

    A person commits a misdemeanor if he or she operates another 
person's automobile, airplane, motorcycle, motorboat, or other motor-
propelled vehicle without consent of the owner. It is an affirmative 
defense to prosecution under this section that the actor reasonably 
believed that the owner would have consented to the operation had he or 
she known of it.



Sec. 11.420  Tampering with records.

    A person commits a misdemeanor if, knowing that he or she has no 
privilege to do so, he or she falsifies, destroys, removes or conceals 
any writing or record, with purpose to deceive or injure anyone or to 
conceal any wrongdoing.



Sec. 11.421  Bad checks.

    (a) A person who issues or passes a check or similar sight order for 
the payment of money, knowing that it will not be honored by the drawee, 
commits a misdemeanor.
    (b) For the purposes of this section, an issuer is presumed to know 
that the check or order would not be paid, if:
    (1) The issuer had no account with the drawee at the time the check 
or order was issued; or
    (2) Payment was refused by the drawee for lack of funds, upon 
presentation within 30 days after issue, and the issuer failed to make 
good within 10 days after receiving notice of that refusal.



Sec. 11.422  Unauthorized use of credit cards.

    (a) A person commits a misdemeanor if he or she uses a credit card 
for the purpose of obtaining property or services with knowledge that:
    (1) The card is stolen or forged; or
    (2) The card has been revoked or cancelled; or
    (3) For any other reason his or her use of the card is unauthorized 
by the issuer.
    (b) Credit card means a writing or other evidence of an undertaking 
to pay for property or services delivered or rendered to or upon the 
order of a designated person or bearer.



Sec. 11.423  Defrauding secured creditors.

    A person commits a misdemeanor if he or she destroys, conceals, 
encumbers, transfers or otherwise deals with property subject to a 
security interest with purpose to hinder that interest.



Sec. 11.424  Neglect of children.

    (a) A parent, guardian, or other person supervising the welfare of a 
child under 18 commits a misdemeanor if he or she knowingly endangers 
the child's welfare by violating a duty of care, protection or support.
    (b) A parent, guardian, or other person supervising the welfare of a 
child under 18 commits a violation if he or she neglects or refuses to 
send the child to school.

[[Page 33]]



Sec. 11.425  Persistent non-support.

    A person commits a misdemeanor if he or she persistently fails to 
provide support which he or she can provide and which he or she knows he 
or she is legally obliged to provide to a spouse, child or other 
dependent.



Sec. 11.426  Bribery.

    (a) A person is guilty of bribery, a misdemeanor, if he or she 
offers, confers or agrees to confer upon another, or solicits, accepts 
or agrees to accept from another:
    (1) Any pecuniary benefit as consideration for the recipient's 
decision, opinion, recommendation, vote or other exercise of discretion 
as a public servant, party official or voter; or
    (2) Any benefit as consideration for the recipient's decision, vote, 
recommendation or other exercise of official discretion in a judicial or 
administrative proceeding; or
    (3) Any benefit as consideration for a violation of a known legal 
duty as a public servant or party official.
    (b) It is no defense to prosecution under this section that a person 
whom the actor sought to influence was not qualified to act in the 
desired way, whether because he or she had not yet assumed office, or 
lacked jurisdiction, or for any other reason.



Sec. 11.427  Threats and other improper influence in official and 
political matters.

    (a) A person commits a misdemeanor if he or she:
    (1) Threatens unlawful harm to any person with purpose to influence 
his or her decision, vote or other exercise of discretion as a public 
servant, party official or voter; or
    (2) Threatens harm to any public servant with purpose to influence 
his decision, opinion, recommendation, vote or other exercise of 
discretion in a judicial or administrative proceeding; or
    (3) Threatens harm to any public servant with purpose to influence 
his decision, opinion, recommendation, vote or other exercise of 
discretion in a judicial or administrative proceeding; or
    (b) It is no defense to prosecution under this section that a person 
whom the actor sought to influence was not qualified to act in the 
desired way, whether because he or she had not yet assumed office, or 
lacked jurisdiction, or for any other reason.



Sec. 11.428  Retaliation for past official action.

    A person commits a misdemeanor if he or she harms another by any 
unlawful act in retaliation for anything lawfully done by the latter in 
the capacity of public servant.



Sec. 11.429  Perjury.

    A person is guilty of perjury, a misdemeanor, if in any official 
proceeding he or she makes a false statement under oath or equivalent 
affirmation, or swears or affirms the truth of a statement previously 
made, when the statement is material and he or she does not believe it 
to be true.
    (a) No person shall be guilty of an offense under this section if he 
or she retracted the falsification in the course of the proceeding in 
which it was made before it became manifest that the falsification was 
or would be exposed and before the falsification substantially affected 
the proceeding.
    (b) No person shall be convicted of an offense under this section 
where proof of falsity rests solely upon contradiction by testimony of a 
single person other than the defendant.



Sec. 11.430  False alarms.

    A person who knowingly causes a false alarm of fire or other 
emergency to be transmitted to, or within any organization, official or 
volunteer, for dealing with emergencies involving danger to life or 
property commits a misdemeanor.



Sec. 11.431  False reports.

    (a) A person who knowingly gives false information to any law 
enforcement officer with the purpose to implicate another commits a 
misdemeanor.
    (b) A person commits a petty misdemeanor if he or she:
    (1) Reports to law enforcement authorities an offense or other 
incident within their concern knowing that it did not occur; or

[[Page 34]]

    (2) Pretends to furnish such authorities with information relating 
to an offense or incident when he or she knows he or she has no 
information relating to such offense or incident.



Sec. 11.432  Impersonating a public servant.

    A person commits a misdemeanor if he or she falsely pretends to hold 
a position in the public service with purpose to induce another to 
submit to such pretended official authority or otherwise to act in 
reliance upon that pretense to his or her prejudice.



Sec. 11.433  Disobedience to lawful order of court.

    A person who willfully disobeys any order, subpoena, summons, 
warrant or command duly issued, made or given by any Court of Indian 
Offenses or any officer thereof is guilty of a misdemeanor.



Sec. 11.434  Resisting arrest.

    A person commits a misdemeanor if, for the purpose of preventing a 
public servant from effecting a lawful arrest or discharging any other 
duty, he or she creates a substantial risk of bodily injury to the 
public servant or anyone else, or employs means justifying or requiring 
substantial force to overcome the resistance.



Sec. 11.435  Obstructing justice.

    A person commits a misdemeanor if, with purpose to hinder the 
apprehension, prosecution, conviction or punishment of another for a 
crime, he or she harbors or conceals the other, provides a weapon, 
transportation, disguise or other means of escape, warns the other of 
impending discovery, or volunteers false information to a law 
enforcement officer.



Sec. 11.436  Escape.

    A person is guilty of the offense of escape, a misdemeanor, if he or 
she unlawfully removes himself or herself from official detention or 
fails to return to official detention following temporary leave granted 
for a specific purpose or limited period.



Sec. 11.437  Bail jumping.

    A person set at liberty by court order, with or without bail, upon 
condition that he or she will subsequently appear at a specified time or 
place, commits a misdemeanor if, without lawful excuse, he or she fails 
to appear at that time and place.



Sec. 11.438  Flight to avoid prosecution or judicial process.

    A person who shall absent himself or herself from the Indian country 
over which the Court of Indian Offenses exercises jurisdiction for the 
purpose of avoiding arrest, prosecution or other judicial process shall 
be guilty of a misdemeanor.



Sec. 11.439  Witness tampering.

    (a) A person commits a misdemeanor if, believing that an official 
proceeding or investigation is pending or about to be instituted, he or 
she attempts to induce or otherwise cause a witness or informant to:
    (1) Testify or inform falsely; or
    (2) Withhold any testimony, information, document or thing; or
    (3) Elude legal process summoning him or her to supply evidence; or
    (4) Absent himself or herself from any proceeding or investigation 
to which he or she has been legally summoned.
    (b) A person commits a misdemeanor if he or she harms another by any 
unlawful act in retaliation for anything lawfully done in the capacity 
of witness or informant.



Sec. 11.440  Tampering with or fabricating physical evidence.

    A person commits a misdemeanor if, believing that an official 
proceeding or investigation is pending or about to be instituted, he or 
she:
    (a) Alters, destroys, conceals, or removes any record, document or 
thing with purpose to impair its verity or availability in such 
proceeding or investigation; or
    (b) Makes, presents or uses any record, document or thing knowing it 
to be false and with the purpose to mislead a public servant who is or 
may be engaged in such proceeding or investigation.

[[Page 35]]



Sec. 11.441  Disorderly conduct.

    (a) A person is guilty of disorderly conduct if, with purpose to 
cause public inconvenience, annoyance or alarm or recklessly creating a 
risk thereof, he or she:
    (1) Engages in fighting or threatening, or in violent or tumultuous 
behavior;
    (2) Makes unreasonable noise or offensively coarse utterance, 
gesture or display, or addresses abusive language to any person present; 
or
    (3) Creates a hazardous or physically offensive condition by any act 
which serves no legitimate purpose of the actor.
    (b) Public means affecting or likely to affect persons in a place to 
which the public has access; among the places included are highways, 
schools, prisons, apartments, places of business or amusement, or any 
neighborhood.
    (c) An offense under this section is a petty misdemeanor if the 
actor's purpose is to cause substantial harm or serious inconvenience, 
or if he or she persists in disorderly conduct after reasonable warning 
or request to desist. Otherwise, disorderly conduct is a violation.



Sec. 11.442  Riot; failure to disperse.

    (a) A person is guilty of riot, a misdemeanor, if he or she 
participates with two or more others in a course of disorderly conduct:
    (1) With purpose to commit or facilitate the commission of a felony 
or misdemeanor; or
    (2) With purpose to prevent or coerce official action; or
    (3) When the actor or any other participant to the knowledge of the 
actor uses or plans to use a firearm or other deadly weapon.
    (b) Where three or more persons are participating in a course of 
disorderly conduct likely to cause substantial harm or serious 
inconvenience, a law enforcement officer may order the participants and 
others in the immediate vicinity to disperse. A person who refuses or 
knowingly fails to obey such an order commits a misdemeanor.



Sec. 11.443  Harassment.

    A person commits a petty misdemeanor if, with purpose to harass 
another, he or she:
    (a) Makes a telephone call without purpose or legitimate 
communication; or
    (b) Insults, taunts or challenges another in a manner likely to 
provoke violent or disorderly response; or
    (c) Makes repeated communications anonymously or at extremely 
inconvenient hours, or in offensively coarse language; or
    (d) Subjects another to an offensive touching; or
    (e) Engages in any other course of alarming conduct serving no 
legitimate purpose.



Sec. 11.444  Carrying concealed weapons.

    A person who goes about in public places armed with a dangerous 
weapon concealed upon his or her person is guilty of a misdemeanor 
unless he or she has a permit to do so signed by a magistrate of the 
Court of Indian Offenses.



Sec. 11.445  Driving violations.

    (a) A person who shall operate any vehicle in a manner dangerous to 
the public safety is guilty of reckless driving, a petty misdemeanor, 
unless it is committed while under the influence of alcohol, in which 
case it is a misdemeanor.
    (b) A person who shall drive, operate or be in physical control of 
any motor vehicle when his or her alcohol concentration is 0.10 or more 
shall be guilty of driving while intoxicated, a misdemeanor.
    (c) Any person who drives, operates, or is in physical control of a 
motor vehicle within the Indian country under the jurisdiction of a 
Court of Indian Offenses consents to a chemical test of his or her 
blood, breath, or urine for the purpose of determining the presence of 
alcohol, to be administered at the direction of a law enforcement 
officer. The test may be required when the officer has reasonable cause 
to believe that a person is driving while intoxicated, and the person 
has either been lawfully placed under arrest for a violation of this 
section, or has been involved in a motor vehicle accident or

[[Page 36]]

collision resulting in property damage, personal injury, or death.
    (d) In the absence of an applicable tribal traffic code, the 
provisions of state traffic laws applicable in the state where a Court 
of Indian Offenses is located shall apply to the operation of motor 
vehicles within the Indian country under the jurisdiction of the Court 
of Indian Offenses with the exception that any person found guilty of 
violating such laws shall, in lieu of the penalties provided under state 
law, be sentenced according to the standards found in Sec. 11.450 
depending on the nature of the traffic code violation, and may be 
deprived of the right to operate any motor vehicle for a period not to 
exceed 6 months.



Sec. 11.446  Cruelty to animals.

    A person commits a misdemeanor if he or she purposely or recklessly:
    (a) Subjects any animal in his or her custody to cruel neglect; or
    (b) Subjects any animal to cruel mistreatment; or
    (c) Kills or injures any animal belonging to another without legal 
privilege or consent of the owner.
    (d) Causes one animal to fight with another.



Sec. 11.447  Maintaining a public nuisance.

    A person who permits his or her property to fall into such condition 
as to injure or endanger the safety, health, comfort, or property of his 
or her neighbors, is guilty of a violation.



Sec. 11.448  Abuse of office.

    A person acting or purporting to act in an official capacity or 
taking advantage of such actual or purported capacity commits a 
misdemeanor if, knowing that his or her conduct is illegal, he or she:
    (a) Subjects another to arrest, detention, search, seizure, 
mistreatment, dispossession, assessment, lien or other infringement of 
personal or property rights; or
    (b) Denies or impedes another in the exercise or enjoyment of any 
right, privilege, power or immunity.



Sec. 11.449  Violation of an approved tribal ordinance.

    A person who violates the terms of any tribal ordinance duly enacted 
by the governing body of the tribe occupying the Indian country under 
the jurisdiction of the Court of Indian Offenses and approved by the 
Assistant Secretary--Indian Affairs or his or her designee, is guilty of 
an offense and upon conviction thereof shall be sentenced as provided in 
the ordinance.



Sec. 11.450  Maximum fines and sentences of imprisonment.

    (a) A person convicted of an offense under this code may be 
sentenced as follows:
    (1) If the offense is a misdemeanor, to a term of imprisonment not 
to exceed six months or to a fine not to exceed $500.00, or both;
    (2) If the offense is a petty misdemeanor, to a term of imprisonment 
not to exceed three months or to a fine not to exceed $250.00, or both;
    (3) If the offense is a violation, to a term of imprisonment not to 
exceed one month or to a fine not to exceed $100.00, or both;
    (b) The fines listed above may be imposed in addition to any amounts 
ordered paid as restitution.



                         Subpart E_Civil Actions



Sec. 11.500  Law applicable to civil actions.

    (a) In all civil cases the Court of Indian Offenses shall apply any 
laws of the United States that may be applicable, any authorized 
regulations of the Interior Department, and any ordinances or customs of 
the tribe occupying the area of Indian country over which the court has 
jurisdiction, not prohibited by Federal laws.
    (b) Where any doubt arises as to the customs and usages of the tribe 
the court may request the advice of counselors familiar with these 
customs and usages.
    (c) Any matters that are not covered by the traditional customs and 
usages of the tribe, or by applicable Federal laws and regulations, 
shall be decided by the Court of Indian Offenses according to the law of 
the State in which the matter in dispute lies.

[[Page 37]]



Sec. 11.501  Judgments in civil actions.

    (a) In all civil cases, judgment shall consist of an order of the 
court awarding damages to be paid to the injured party, or directing the 
surrender of certain property to the injured party, or the performance 
of some other act for the benefit of the injured party, including 
injunctive relief and declaratory judgments.
    (b) Where the injury inflicted was the result of carelessness of the 
defendant, the judgment shall fairly compensate the injured party for 
the loss he or she has suffered.
    (c) Where the injury was deliberately inflicted, the judgment shall 
impose an additional penalty upon the defendant, which additional 
penalty may run either in favor of the injured party or in favor of the 
tribe.
    (d) Where the injury was inflicted as a result of accident, or where 
both the complainant and the defendant were at fault, the judgment shall 
compensate the injured party for a reasonable part of the loss he or she 
has suffered.
    (e) No judgment shall be given on any suit unless the defendant has 
actually received notice of such suit and ample opportunity to appear in 
court in his or her defense.



Sec. 11.502  Costs in civil actions.

    (a) The court may assess the accruing costs of the case against the 
party or parties against whom judgment is given. Such costs shall 
consist of the expenses of voluntary witnesses for which either party 
may be responsible and the fees of jurors in those cases where a jury 
trial is had, and any further incidental expenses connected with the 
procedure before the court as the court may direct.
    (b) In all civil suits the complainant may be required to deposit 
with the clerk of the court a fee or other security in a reasonable 
amount to cover costs and disbursements in the case.



Sec. 11.503  Applicable civil procedure.

    The procedure to be followed in civil cases shall be the Federal 
Rules of Civil Procedure applicable to United States district courts, 
except insofar as such procedures are superseded by order of the Court 
of Indian Offenses or by the existence of inconsistent tribal rules of 
procedure.



Sec. 11.504  Applicable rules of evidence.

    Courts of Indian Offenses shall be bound by the Federal Rules of 
Evidence, except insofar as such rules are superseded by order of the 
Court of Indian Offenses, or by the existence of inconsistent tribal 
rules of evidence.



                      Subpart F_Domestic Relations



Sec. 11.600  Marriages.

    (a) A magistrate of the Court of Indian Offenses shall have the 
authority to perform marriages.
    (b) A valid marriage shall be constituted by:
    (1) The issuance of a marriage license by the Court of Indian 
Offenses and by execution of a consent to marriage by both parties to 
the marriage and recorded with the clerk of the court; or
    (2) The recording of a tribal custom marriage with the Court of 
Indian Offenses within 30 days of the tribal custom marriage ceremony by 
the signing by both parties of a marriage register maintained by the 
clerk of the court.
    (c) A marriage license application shall include the following 
information:
    (1) Name, sex, occupation, address, social security number, and date 
and place of birth of each party to the proposed marriage;
    (2) If either party was previously married, his or her name, and the 
date, place, and court in which the marriage was dissolved or declared 
invalid or the date and place of death of the former spouse;
    (3) Name and address of the parents or guardian of each party;
    (4) Whether the parties are related to each other and, if so, their 
relationship; and
    (5) The name and date of birth of any child of which both parties 
are parents, born before the making of the application, unless their 
parental rights and the parent and child relationship with respect to 
the child have been terminated.
    (6) A certificate of the results of any medical examination required 
by either applicable tribal ordinances, or

[[Page 38]]

the laws of the State in which the Indian country under the jurisdiction 
of the Court of Indian Offenses is located.



Sec. 11.601  Marriage licenses.

    A marriage license shall be issued by the clerk of the court in the 
absence of any showing that the proposed marriage would be invalid under 
any provision of this part or tribal custom, and upon written 
application of an unmarried male and unmarried female, both of whom must 
be eighteen (18) years or older. If either party to the marriage is 
under the age of eighteen (18), that party must have the written consent 
of parent or his or her legal guardian.



Sec. 11.602  Solemnization.

    (a) In the event a judge, clergyman, tribal official or anyone 
authorized to do so solemnizes a marriage, he or she shall file with the 
clerk of the court certification thereof within thirty (30) days of the 
solemnization.
    (b) Upon receipt of the marriage certificate, the clerk of the court 
shall register the marriage.



Sec. 11.603  Invalid or prohibited marriages.

    (a) The following marriages are prohibited:
    (1) A marriage entered into prior to the dissolution of an earlier 
marriage of one of the parties;
    (2) A marriage between an ancestor and a descendant, or between a 
brother and a sister, whether the relationship is by the half or the 
whole blood;
    (3) A marriage between an aunt and a nephew or between an uncle and 
a niece, whether the relationship is by the half or the whole blood, 
except as to marriages permitted by established tribal custom;
    (4) A marriage prohibited by custom and usage of the tribe.
    (b) Children born of a prohibited marriage are legitimate.



Sec. 11.604  Declaration of invalidity.

    (a) The Court of Indian Offenses shall enter a decree declaring the 
invalidity of a marriage entered into under the following circumstances:
    (1) A party lacked capacity to consent to the marriage, either 
because of mental incapacity or infirmity or by the influence of 
alcohol, drugs, or other incapacitating substances; or
    (2) A party was induced to enter into a marriage by fraud or duress; 
or
    (3) A party lacks the physical capacity to consummate the marriage 
by sexual intercourse and at the time the marriage was entered into, the 
other party did not know of the incapacity; or
    (4) The marriage is prohibited under Sec. 11.603.
    (b) A declaration of invalidity may be sought by either party to the 
marriage or by the legal representative of the party who lacked capacity 
to consent.



Sec. 11.605  Dissolution.

    (a) The Court of Indian Offenses shall enter a decree of dissolution 
of marriage if:
    (1) The court finds that the marriage is irretrievably broken, if 
the finding is supported by evidence that (i) the parties have lived 
separate and apart for a period of more than 180 days next preceding the 
commencement of the proceeding, or (ii) there is serious marital discord 
adversely affecting the attitude of one or both of the parties towards 
the marriage;
    (2) The court finds that either party, at the time the action was 
commenced, was domiciled within the Indian country under the 
jurisdiction of the court, and that the domicile has been maintained for 
90 days next preceding the making of the findings; and
    (3) To the extent it has jurisdiction to do so, the court has 
considered, approved, or provided for child custody, the support of any 
child entitled to support, the maintenance of either spouse, and the 
disposition of property; or has provided for a separate later hearing to 
complete these matters.
    (b) If a party requests a decree of legal separation rather than a 
decree of dissolution of marriage, the Court of Indian Offenses shall 
grant the decree in that form unless the other party objects.



Sec. 11.606  Dissolution proceedings.

    (a) Either or both parties to the marriage may initiate dissolution 
proceedings.

[[Page 39]]

    (b) If a proceeding is commenced by one of the parties, the other 
party shall be served in the manner provided by the applicable rule of 
civil procedure and within thirty days after the date of service may 
file a verified response.
    (c) The verified petition in a proceeding for dissolution of 
marriage or legal separation shall allege that the marriage is 
irretrievably broken and shall set forth:
    (1) The age, occupation, and length of residence within the Indian 
country under the jurisdiction of the court of each party;
    (2) The date of the marriage and the place at which it was 
registered;
    (3) That jurisdictional requirements are met and that the marriage 
is irretrievably broken in that either (i) the parties have lived 
separate and apart for a period of more than 180 days next preceding the 
commencement of the proceeding or (ii) there is a serious marital 
discord adversely affecting the attitude of one or both of the parties 
toward the marriage, and there is no reasonable prospect of 
reconciliation;
    (4) The names, age, and addresses of all living children of the 
marriage and whether the wife is pregnant;
    (5) Any arrangement as to support, custody, and visitation of the 
children and maintenance of a spouse; and
    (6) The relief sought.



Sec. 11.607  Temporary orders and temporary injunctions.

    (a) In a proceeding for dissolution of marriage or for legal 
separation, either party may move for temporary maintenance or temporary 
support of a child of the marriage entitled to support. The motion shall 
be accompanied by an affidavit setting forth the factual basis for the 
motion and the amounts requested.
    (b) As a part of a motion for temporary maintenance or support or by 
an independent motion accompanied by an affidavit, either party may 
request the Court of Indian Offenses to issue a temporary injunction for 
any of the following relief:
    (1) Restraining any person from transferring, encumbering, 
concealing, or otherwise disposing of any property except in the usual 
course of business or for the necessities of life, and, if so 
restrained, requiring him or her to notify the moving party of any 
proposed extraordinary expenditures made after the order is issued;
    (2) Enjoining a party from molesting or disturbing the peace of the 
other party or of any child;
    (3) Excluding a party from the family home or from the home of the 
other party upon a showing that physical or emotional harm would 
otherwise result;
    (4) Enjoining a party from removing a child from the jurisdiction of 
the court; and
    (5) Providing other injunctive relief proper in the circumstances.
    (c) The court may issue a temporary restraining order without 
requiring notice to the other party only if it finds on the basis of the 
moving affidavit or other evidence that irreparable injury will result 
to the moving party if no order is issued until the time for responding 
has elapsed.
    (d) A response may be filed within 20 days after service of notice 
of a motion or at the time specified in the temporary restraining order.
    (e) On the basis of the showing made, the Court of Indian Offenses 
may issue a temporary injunction and an order for temporary maintenance 
or support in amounts and on terms just and proper under the 
circumstances.
    (f) A temporary order or temporary injunction:
    (1) Does not prejudice the rights of the parties or the child which 
are to be adjudicated at subsequent hearings in a proceeding;
    (2) May be revoked or modified before the final decree as deemed 
necessary by the court;
    (3) Terminates when the final decree is entered or when the petition 
for dissolution or legal separation is voluntarily dismissed.



Sec. 11.608  Final decree; disposition of property; maintenance; child 
support; custody.

    (a) A decree of dissolution of marriage or of legal separation is 
final when entered, subject to the right of appeal.
    (b) The Court of Indian Offenses shall have the power to impose 
judgment as

[[Page 40]]

follows in dissolution or separation proceedings:
    (1) Apportion or assign between the parties the non-trust property 
and non-trust assets belonging to either or both and whenever acquired, 
and whether the title thereto is in the name of the husband or wife or 
both;
    (2) Grant a maintenance order for either spouse in amounts and for 
periods of time the court deems just;
    (3) Order either or both parents owing a duty of support to a child 
to pay an amount reasonable or necessary for his or her support, without 
regard to marital misconduct, after considering all relevant factors. In 
addition:
    (i) When a support order is issued by a Court of Indian Offenses, 
the order may provide that a portion of an absent parent's wages be 
withheld to comply with the order on the earliest of the following 
dates: When an amount equal to one month's support becomes overdue; when 
the absent parent requests withholding; or at such time as the Court of 
Indian Offenses selects. The amount to be withheld may include an amount 
to be applied toward liquidation of any overdue support.
    (ii) If the Court of Indian Offenses finds that an absent parent who 
has been ordered to pay child support is now residing within the 
jurisdiction of another Court of Indian Offenses, an Indian tribal 
court, or a state court, it shall petition such court for reciprocal 
enforcement and provide it with a copy of the support order.
    (iii) If the Court of Indian Offenses receives a petition from 
another Court of Indian Offenses, an Indian tribal court or a state 
court, it shall take necessary steps to determine paternity, establish 
an order for child support, register a foreign child support order or 
enforce orders as requested in the petition.
    (iv) The Court of Indian Offenses shall assist a state in the 
enforcement and collection of past-due support from Federal tax refunds 
of absent parents living within the Indian country over which the court 
has jurisdiction.
    (v) Any person or agency who has provided support or assistance to a 
child under 18 years of age shall be a proper person to bring an action 
under this section and to recover judgment in an amount equal to such 
past-paid support or assistance, including costs of bringing the action.
    (4) Make child custody determinations in accordance with the best 
interest of the child.
    (5) Restore the maiden name of the wife.



Sec. 11.609  Determination of paternity and support.

    The Court of Indian Offenses shall have jurisdiction of all suits 
brought to determine the paternity of a child and to obtain a judgment 
for the support of the child. A judgment of the court establishing the 
identity of the father of the child shall be conclusive of that fact in 
all subsequent determinations of inheritance by the Court of Indian 
Offenses or by the Department of the Interior.



Sec. 11.610  Appointment of guardians.

    The court shall have the jurisdiction to appoint or remove legal 
guardians for minors and for persons who are incapable of managing their 
own affairs under terms and conditions to be prescribed by the court.



Sec. 11.611  Change of name.

    The Court of Indian Offenses shall have the authority to change the 
name of any person upon petition of such person or upon the petition of 
the parents of any minor, if at least one parent is Indian. Any order 
issued by the court for a change of name shall be kept as a permanent 
record and copies shall be filed with the agency superintendent, the 
governing body of the tribe occupying the Indian country under the 
jurisdiction of the court, and any appropriate agency of the State in 
which the court is located.



                      Subpart G_Probate Proceedings



Sec. 11.700  Probate jurisdiction.

    The Court of Indian Offenses shall have jurisdiction to administer 
in probate the estate of a deceased Indian who, at the time of his or 
her death, was domiciled or owned real or personal property situated 
within the Indian country under the jurisdiction of the court to the 
extent that such estate consists of property which does

[[Page 41]]

not come within the jurisdiction of the Secretary of the Interior.



Sec. 11.701  Duty to present will for probate.

    Any custodian of a will shall deliver the same to the Court of 
Indian Offenses within 30 days after receipt of information that the 
maker thereof is deceased. Any custodian who fails to do so shall be 
liable for damages sustained by any person injured thereby.



Sec. 11.702  Proving and admitting will.

    (a) Upon initiating the probate of an estate, the will of the 
decedent shall be filed with the court. Such will may be proven and 
admitted to probate by filing an affidavit of an attesting witness which 
identifies such will as being the will which the decedent executed and 
declared to be his or her last will. If the evidence of none of the 
attesting witnesses is available, the court may allow proof of the will 
by testimony that the signature of the testator is genuine.
    (b) At any time within 90 days after a will has been admitted to 
probate, any person having an interest in the decedent's estate may 
contest the validity of such will. In the event of such contest, a 
hearing shall be held to determine the validity of such will.
    (c) Upon considering all relevant information concerning the will, 
the Court of Indian Offenses shall enter an order affirming the 
admission of such will to probate, or rejecting such will and ordering 
that the probate of the decedent's estate proceed as if the decedent had 
died intestate.



Sec. 11.703  Petition and order to probate estate.

    (a) Any person having an interest in the administration of an estate 
which is subject to the jurisdiction of the court may file a written 
petition with the court requesting that such estate be administered in 
probate.
    (b) The Court of Indian Offenses shall enter an order directing that 
the estate be probated upon finding that the decedent was an Indian who, 
at the time of his or her death, was domiciled or owned real or personal 
property situated within the Indian country under the jurisdiction of 
the court other than trust or other restricted property, that the 
decedent left an estate subject to the jurisdiction of the court, and 
that it is necessary to probate such estate.



Sec. 11.704  Appointment and duties of executor or administrator.

    (a) Upon ordering the estate to be probated, the court shall appoint 
an administrator to administer the estate of the decedent. The person 
nominated by the decedent's will, if any, to be the executor of the 
estate shall be so appointed, provided such person is willing to serve 
in such capacity.
    (b) The executor or administrator appointed by the court shall have 
the following duties and powers during the administration of the estate 
and until discharged by the court:
    (1) To send by certified mail true copies of the order to probate 
the estate and the will of the decedent admitted to probate by such 
order, if any, to each heir, devisee and legatee of the decedent, at 
their last known address, to the governing body of the tribe or tribes 
occupying the Indian country over which the court has jurisdiction, and 
to the agency superintendent;
    (2) To preserve and protect the decedent's property within the 
estate and the heirs, so far as is possible;
    (3) To investigate promptly all claims against the decedent's estate 
and determine their validity;
    (4) To cause a written inventory of all the decedent's property 
within the estate to be prepared promptly with each article or item 
being separately set forth and cause such property to be exhibited to 
and appraised by an appraiser, and the inventory and appraisal thereof 
to be filed with the court;
    (5) To give promptly all persons entitled thereto such notice as is 
required under these proceedings;
    (6) To account for all property within the estate which may come 
into his or her possession or control, and to maintain accurate records 
of all income received and disbursements made during the course of the 
administration.



Sec. 11.705  Removal of executor or administrator.

    The Court of Indian Offenses may order the executor or administrator 
to

[[Page 42]]

show cause why he or she should not be discharged, and may discharge the 
executor or administrator for failure, neglect or improper performance 
of his or her duties.



Sec. 11.706  Appointment and duties of appraiser.

    (a) Upon ordering an estate to be probated, the court shall appoint 
a disinterested and competent person as an appraiser to appraise all of 
the decedent's real and personal property within the estate.
    (b) It shall be the duty of the appraiser to appraise separately the 
true cash value of each article or item of property within the estate, 
including debts due the decedent, and to indicate the appraised value of 
each such article or item of property set forth in the inventory of the 
estate and to certify such appraisal by subscribing his or her name to 
the inventory and appraisal.



Sec. 11.707  Claims against estate.

    (a) Creditors of the estate or those having a claim against the 
decedent shall file their claim with the clerk of the court or with the 
executor or administrator within 60 days from official notice of the 
appointment of the executor or administrator published locally in the 
press or posting of signs at the tribal and agency offices, giving 
appropriate notice for the filing of claims.
    (b) The executor or administrator shall examine all claims within 90 
days of his or her appointment and notify the claimant whether his or 
her claim is accepted or rejected. If the claimant is notified of 
rejection, he or she may request a hearing before the court by filing a 
petition requesting such hearing within 30 days following the notice of 
rejection.



Sec. 11.708  Sale of property.

    After filing the inventory and appraisal, the executor or 
administrator may petition the court for authority to sell personal 
property of the estate for purposes of paying the expenses of last 
illness and burial expenses, expenses of administration, claims, if any, 
against the estate, and for the purpose of distribution. If, in the 
court's judgment, such sale is in the best interest of the estate, the 
court shall order such sale and prescribe the terms upon which the 
property shall be sold.



Sec. 11.709  Final account.

    (a) When the affairs of an estate have been fully administered, the 
executor or administrator shall file a final account with the court, 
verified by his or her oath. Such final account shall affirmatively set 
forth:
    (1) That all claims against the estate have been paid, except as 
shown, and that the estate has adequate unexpended and unappropriated 
funds to fully pay such remaining claims;
    (2) The amount of money received and expended by him or her, from 
whom received and to whom paid, referring to the vouchers for each of 
such payments;
    (3) That there is nothing further to be done in the administration 
of the estate except as shown in the final account;
    (4) The remaining assets of the estate, including unexpended and 
unappropriated money, at the time of filing the final account;
    (5) The proposed determination of heirs and indicate the names, 
ages, addresses and relationship to the decedent of each distributee and 
the proposed distributive share and value thereof each heir, devisee or 
legatee is to receive; and
    (6) A petition that the court set a date for conducting a hearing to 
approve the final account, to determine the heirs, devisees and legatees 
of the decedent and the distributive share each distributee is to 
receive.



Sec. 11.710  Determination of the court.

    At the time set for hearing upon the final account, the Court of 
Indian Offenses shall proceed to examine all evidence relating to the 
distribution of the decedent's estate, and consider objections to the 
final account which may have been filed by any heir, devisee, legatee, 
or other person having an interest in the distribution of the estate. 
Upon conclusion of the hearing, the court shall enter an order:
    (a) Providing for payment of approved claims;
    (b) Determining the decedent's heirs, devisees and legatees, 
indicating the names, ages and addresses of each, and

[[Page 43]]

the distributive share of the remaining estate which each distributee is 
to receive; and
    (c) Directing the administrator or executor to distribute such 
distributive share to those entitled thereto.



Sec. 11.711  Descent and distribution.

    (a) The court shall distribute the estate according to the terms of 
the will of the decedent which has been admitted to probate.
    (b) If the decedent died intestate or having left a will which has 
been rejected by the court, the estate shall be distributed as follows:
    (1) According to the laws and customs of the tribe if such laws and 
customs are proved; or
    (2) According to state law absent the existence of tribal laws or 
customs.
    (c) If no person takes under the above subsections, the estate shall 
escheat to the tribe.



Sec. 11.712  Closing estate.

    (a) Upon finding that the estate has been fully administered and is 
in a condition to be closed, the court shall enter an order closing the 
estate and discharging the executor or administrator.
    (b) If an order closing the estate has not been entered by the end 
of nine months following appointment of executor or administrator, the 
executor or administrator shall file a written report with the court 
stating the reasons why the estate has not been closed.



Sec. 11.713  Small estates.

    An estate having an appraised value which does not exceed $2,000.00 
and which is to be inherited by a surviving spouse and/or minor children 
of the deceased may, upon petition of the executor or administrator, and 
a hearing before the court, be distributed without administration to 
those entitled thereto, upon which the estate shall be closed.



                     Subpart H_Appellate Proceedings



Sec. 11.800  Jurisdiction of appellate division.

    The jurisdiction of the appellate division shall extend to all 
appeals from final orders and judgments of the trial division, by any 
party except the prosecution in a criminal case where there has been a 
jury verdict. The appellate division shall review all issues of law 
presented to it which arose in the case, but shall not reverse the trial 
division decision unless the legal error committed affected a 
substantial right of a party or the outcome of the case.



Sec. 11.801  Procedure on appeal.

    (a) An appeal must be taken within 15 days from the judgment 
appealed from by filing a written notice of appeal with the clerk of the 
court.
    (b) The notice of appeal shall specify the party or parties taking 
the appeal, shall designate the judgment, or part thereof appealed from, 
and shall contain a short statement of reasons for the appeal. The clerk 
of the court shall mail a copy of the notice of appeal to all parties 
other than parties taking the appeal.
    (c) In civil cases, other parties shall have 15 days to respond to 
the notice of appeal.
    (d) In civil cases, the appellant may request the trial division to 
stay the judgment pending action on the notice of appeal, and, if the 
appeal is allowed, either party may request the trial division to grant 
or stay an injunction pending appeal. The trial division may condition a 
stay or injunction pending appeal on the depositing of cash or bond 
sufficient to cover damages awarded by the court together with interest.



Sec. 11.802  Judgment against surety.

    Any surety to a bond submits himself or herself to the jurisdiction 
of the Court of Indian Offenses, and irrevocably appoints the clerk of 
the court as his or her agent upon whom any papers affecting his or her 
liability on the bond may be served.



Sec. 11.803  Record on appeal.

    Within 20 days after a notice of appeal is filed, the clerk of court 
shall certify and file with the appellate division the record of the 
case.



Sec. 11.804  Briefs and memoranda.

    (a) Within 30 days after the notice of appeal is filed, the 
appellant may file a

[[Page 44]]

written brief in support of his or her appeal. An original and one copy 
for each appellee shall be filed with the clerk of court who shall mail 
one copy by registered or certified mail to each appellee.
    (b) The appellee shall have 30 days after receipt of the appellant's 
brief within which to file an answer brief. An original and one copy for 
each appellant shall be filed with the clerk of the court who shall mail 
one copy, by registered or certified mail, to each appellant.



Sec. 11.805  Oral argument.

    The appellate division shall assign all criminal cases for oral 
argument. The court may in its discretion assign civil cases for oral 
argument or may dispose of civil cases on the briefs without argument.



Sec. 11.806  Rules of court.

    The chief magistrate of the appellate division shall prescribe all 
necessary rules concerning the operation of the appellate division and 
the time and place of meeting of the court.



                       Subpart I_Children's Court



Sec. 11.900  Definitions.

    For purposes of sections pertaining to the children's court:
    (a) Abandon means the leaving of a minor without communication or 
failing to support a minor for a period of one year or more with no 
indication of the parents' willingness to assume a parental role.
    (b) Adult means a person eighteen (18) years or older.
    (c) Counsel means an attorney admitted to the bar of a state or the 
District of Columbia or a lay advocate admitted to practice before the 
Court of Indian Offenses.
    (d) Custodian means one who has physical custody of a minor and who 
is providing food, shelter and supervision to the minor.
    (e) Custody means the power to control the day-to-day activities of 
the minor.
    (f) Delinquent act means an act which, if committed by an adult, 
would be designated a crime under this part or under an ordinance of the 
tribe.
    (g) Detention means the placement of a minor in a physically 
restrictive facility.
    (h) Guardian means a person other than the minor's parent who is by 
law responsible for the care of the minor.
    (i) Guardian ad Litem means a person appointed by the court to 
represent the minor's interests before the court.
    (j) Juvenile offender means a person who commits a delinquent act 
prior to his or her eighteenth birthday.
    (k) Minor means:
    (1) A person under 18 years of age,
    (2) A person 18 years of age or older concerning whom proceedings 
are commenced in the children's court prior to his or her eighteenth 
birthday, or
    (3) A person 18 years of age or older who is under the continuing 
jurisdiction of the children's court.
    (l) Minor-in-need-of-care means a minor who:
    (1) Has no parent or guardian available and willing to take care of 
him or her;
    (2) Is unwilling to allow his or her parent or guardian to take care 
of him or her;
    (3) Has suffered or is likely to suffer a physical or emotional 
injury, inflicted by other than accidental means, which causes or 
creates a substantial risk of death, disfigurement, impairment of bodily 
functions or emotional health;
    (4) Has not been provided with adequate food, clothing, shelter, 
medical care, education or supervision by his or her parent, guardian or 
custodian;
    (5) Has been sexually abused;
    (6) Has been committing delinquent acts as a result of parental 
pressure, guidance or approval; or,
    (7) Has been committing status offenses.
    (m) Status offense means an offense which, if committed by an adult, 
would not be designated a crime under this part or under an ordinance of 
the tribe.



Sec. 11.901  The children's court established.

    When conducting proceedings under Sec. Sec. 11.900-11.1114 of this 
part, the Court of Indian Offenses shall be known as the ``Children's 
Court''.

[[Page 45]]



Sec. 11.902  Non-criminal proceedings.

    No adjudication upon the status of any minor in the jurisdiction of 
the children's court shall be deemed criminal or be deemed a conviction 
of a crime, unless the children's court refers the matter to the Court 
of Indian Offenses. Neither the disposition nor evidence given before 
the children's court shall be admissible as evidence against the child 
in any proceeding in another court.



Sec. 11.903  Presenting officer.

    (a) The agency superintendent and the chief magistrate of the 
children's court shall jointly appoint a presenting officer to carry out 
the duties and responsibilities set forth under Sec. Sec. 11.900-
11.1114 of this part. The presenting officer's qualifications shall be 
the same as the qualifications for the official who acts as prosecutor 
for the Court of Indian Offenses. The presenting officer may be the same 
person who acts as prosecutor in the Court of Indian Offenses.
    (b) The presenting officer shall represent the tribe in all 
proceedings under Sec. Sec. 11.900-11.1114 of this part.



Sec. 11.904  Guardian ad litem.

    The children's court, under any proceeding authorized by this part, 
shall appoint, for the purposes of the proceeding, a guardian ad litem 
for a minor, where the court finds that the minor does not have a 
natural or adoptive parent, guardian or custodian willing and able to 
exercise effective guardianship, or where the parent, guardian, or 
custodian has been accused of abusing or neglecting the minor.



Sec. 11.905  Jurisdiction.

    The children's court has exclusive, original jurisdiction of the 
following proceedings:
    (a) Proceedings in which a minor who resides in a community for 
which the court is established is alleged to be a juvenile offender, 
unless the children's court transfers jurisdiction to the Court of 
Indian Offenses pursuant to Sec. 11.907 of this part.
    (b) Proceedings in which a minor who resides in a community for 
which the court is established is alleged to be a minor-in-need-of-care.



Sec. 11.906  Rights of parties.

    (a) In all hearings and proceedings under Sec. Sec. 11.900-11.1114 
of this part the following rights will be observed unless modified by 
the particular section describing a hearing or proceeding:
    (1) Notice of the hearing or proceeding shall be given the minor, 
his or her parents, guardian or custodian and their counsel. The notice 
shall be delivered by certified mail. The notice shall contain:
    (i) The name of the court;
    (ii) The title of the proceeding; and
    (iii) The date, time and place of the proceeding.
    (b) The children's court magistrate shall inform the minor and his 
or her parents, guardian or custodian of their right to retain counsel, 
and, in juvenile delinquency proceedings, shall tell them: ``You have a 
right to have a lawyer or other person represent you at this proceeding. 
If you cannot afford to hire counsel, the court will appoint counsel for 
you.''
    (c) If the children's court magistrate believes there is a potential 
conflict of interest between the minor and his or her parents, guardian, 
or custodian with respect to legal representation, the court shall 
appoint another person to act as counsel for the minor.
    (d) The minor need not be a witness against, nor otherwise 
incriminate, himself or herself.
    (e) The children's court shall give the minor, and the minor's 
parent, guardian or custodian the opportunity to introduce evidence, to 
be heard on their own behalf and to examine witnesses.



Sec. 11.907  Transfer to Court of Indian Offenses.

    (a) The presenting officer or the minor may file a petition 
requesting the children's court to transfer the minor to the Court of 
Indian Offenses if the minor is 14 years of age or older and is alleged 
to have committed an act that would have been considered a crime if 
committed by an adult.
    (b) The children's court shall conduct a hearing to determine 
whether jurisdiction of the minor should be transferred to the Court of 
Indian Offenses.

[[Page 46]]

    (1) The transfer hearing shall be held no more than 30 days after 
the petition is filed.
    (2) Written notice of the transfer hearing shall be given to the 
minor and the minor's parents, guardian or custodian at least 72 hours 
prior to the hearing.
    (c) All the rights listed in Sec. 11.906 shall be afforded the 
parties at the transfer hearing.
    (d) The following factors shall be considered when determining 
whether to transfer jurisdiction of the minor to the Court of Indian 
Offenses:
    (1) The nature and seriousness of the offense with which the minor 
is charged.
    (2) The nature and condition of the minor, as evidenced by his or 
her age; mental and physical condition; past record of offenses; and 
responses to past children's court efforts at rehabilitation.
    (e) The children's court may transfer jurisdiction of the minor to 
the Court of Indian Offenses if the children's court finds clear and 
convincing evidence that both of the following circumstances exist:
    (1) There are no reasonable prospects for rehabilitating the minor 
through resources available to the children's court; and
    (2) The offense allegedly committed by the minor evidences a pattern 
of conduct which constitutes a substantial danger to the public.
    (f) When a minor is transferred to the Court of Indian Offenses, the 
children's court shall issue a written transfer order containing reasons 
for its order. The transfer order constitutes a final order for purposes 
of appeal.



Sec. 11.908  Court records.

    (a) A record of all hearings under Sec. Sec. 11.900-11.1114 of this 
part shall be made and preserved.
    (b) All children's court records shall be confidential and shall not 
be open to inspection to anyone but the minor, the minor's parents or 
guardian, the presenting officer, or others by order of the children's 
court.



Sec. 11.909  Law enforcement records.

    (a) Law enforcement records and files concerning a minor shall be 
kept separate from the records and files of adults.
    (b) All law enforcement records and files shall be confidential and 
shall not be open to inspection to anyone but the minor, the minor's 
parents or guardian, the presenting officer, or others by order of the 
children's court.



Sec. 11.910  Expungement.

    When a minor who has been the subject of any proceeding before the 
children's court attains his or her twenty-first birthday, the 
children's court magistrate shall order the court records and the law 
enforcement records pertaining to the minor to be destroyed, except for 
adoption records which shall not be destroyed under any circumstances.



Sec. 11.911  Appeal.

    (a) For purposes of appeal, a record of the proceedings shall be 
made available to the minor and parents, guardian or custodian. Costs of 
obtaining the record shall be paid by the party seeking the appeal.
    (b) Any party to a children's court hearing may appeal a final order 
or disposition of the case by filing a written notice of appeal with the 
children's court within 30 days of the final order of disposition.
    (c) No decree or disposition of a hearing shall be stayed by such 
appeal.
    (d) All appeals shall be conducted in accordance with this part.



Sec. 11.912  Contempt of court.

    Any willful disobedience or interference with any order of the 
children's court constitutes contempt of court which may be punished in 
accordance with this part.



                  Subpart J_Juvenile Offender Procedure



Sec. 11.1000  Complaint.

    A complaint must be filed by a law enforcement officer or by the 
presenting officer and sworn to by a person who has knowledge of the 
facts alleged. The complaint shall be signed by the complaining witness, 
and shall contain:

[[Page 47]]

    (a) A citation to the specific section(s) of this part which gives 
the children's court jurisdiction of the proceedings;
    (b) A citation to the section(s) of this part which the minor is 
alleged to have violated;
    (c) The name, age, and address of the minor who is the subject of 
the complaint, if known; and
    (d) A plain and concise statement of the facts upon which the 
allegations are based, including the date, time, and location at which 
the alleged facts occurred.



Sec. 11.1001  Warrant.

    The children's court may issue a warrant directing that a minor be 
taken into custody if the court finds there is probable cause to believe 
the minor committed the delinquent act alleged in the complaint.



Sec. 11.1002  Custody.

    A minor may be taken into custody by a law enforcement officer if:
    (a) The officer observes the minor committing a delinquent act; or
    (b) The officer has reasonable grounds to believe a delinquent act 
has been committed that would be a crime if committed by an adult, and 
that the minor has committed the delinquent act; or
    (c) A warrant pursuant to Sec. 11.1001 has been issued for the 
minor.



Sec. 11.1003  Law enforcement officer's duties.

    A law enforcement officer who takes a minor into custody pursuant to 
Sec. 11.1002 of this part shall:
    (a) Give the following warnings to any minor taken into custody 
prior to any questioning:
    (1) The minor has a right to remain silent;
    (2) Anything the minor says can be used against the minor in court;
    (3) The minor has the right to the presence of counsel during 
questioning; and
    (4) If he or she cannot afford counsel, the court will appoint one.
    (b) Release the minor to the minor's parent, guardian, or custodian 
and issue a verbal advice or warning as may be appropriate, unless 
shelter care or detention is necessary.
    (c) If the minor is not released, make immediate and recurring 
efforts to notify the minor's parents, guardian, or custodian to inform 
them that the minor has been taken into custody and inform them of their 
right to be present with the minor until an investigation to determine 
the need for shelter care or detention is made by the court.



Sec. 11.1004  Detention and shelter care.

    (a) A minor alleged to be a juvenile offender may be detained, 
pending a court hearing, in the following places:
    (1) A foster care facility approved by the tribe;
    (2) A detention home approved by the tribe; or
    (3) A private family home approved by the tribe.
    (b) A minor who is 16 years of age or older may be detained in a 
jail facility used for the detention of adults only if:
    (1) A facility in paragraph (a) of this section is not available or 
would not assure adequate supervision of the minor;
    (2) The minor is housed in a separate room from the detained adults; 
and
    (3) Routine inspection of the room where the minor is housed is 
conducted every 30 minutes to assure his or her safety and welfare.



Sec. 11.1005  Preliminary inquiry.

    (a) If a minor is placed in detention or shelter care, the 
children's court shall conduct a preliminary inquiry within 24 hours for 
the purpose of determining:
    (1) Whether probable cause exist to believe the minor committed the 
alleged delinquent act; and
    (2) Whether continued detention or shelter care is necessary pending 
further proceedings.
    (b) If a minor has been released to the parents, guardian or 
custodian, the children's court shall conduct a preliminary inquiry 
within three days after receipt of the complaint for the sole purpose of 
determining whether probable cause exists to believe the minor committed 
the alleged delinquent act.

[[Page 48]]

    (c) If the minor's parents, guardian or custodian is not present at 
the preliminary inquiry, the children's court shall determine what 
efforts have been made to notify and to obtain the presence of the 
parents, guardian, or custodian. If it appears that further efforts are 
likely to produce the parents, guardian or custodian, the children's 
court shall recess for no more than 24 hours and direct that continued 
efforts be made to obtain the presence of parents, guardian or 
custodian.
    (d) All the rights listed in Sec. 11.906 shall be afforded the 
parties in a preliminary inquiry.
    (e) The children's court shall hear testimony concerning:
    (1) The circumstances that gave rise to the complaint or the taking 
of the minor into custody; and
    (2) The need for detention or shelter care.
    (f) If the children's court finds that probable cause exists to 
believe the minor performed the delinquent act, the minor shall be 
released to the parents, guardian or custodian, and ordered to appear at 
the adjudicatory hearing unless:
    (1) The act is serious enough to warrant continued detention or 
shelter care;
    (2) There is reasonable cause to believe the minor will run away and 
be unavailable for further proceedings; or
    (3) There is reasonable cause to believe that the minor will commit 
a serious act causing damage to person or property.
    (g) The children's court may release a minor pursuant to paragraph 
(f) of this section to a relative or other responsible adult tribal 
member if the parent, guardian, or custodian of the minor consents to 
the release. If the minor is ten years of age or older, the minor and 
the parents, guardian or custodian must both consent to the release.
    (h) Upon a finding that probable cause exists to believe that the 
minor has committed the alleged delinquent act and that there is need 
for detention or shelter care, the minor's detention or shelter care 
shall be continued. Otherwise, the complaint shall be dismissed and the 
minor released.



Sec. 11.1006  Investigation by the presenting officer.

    (a) The presenting officer shall make an investigation following the 
preliminary inquiry or the release of the minor to his or her parents, 
guardian or custodian to determine whether the interests of the minor 
and the public require that further action be taken. Upon the basis of 
this investigation, the presenting officer may:
    (1) Determine that no further action be taken;
    (2) Begin transfer proceedings to the Court of Indian Offenses 
pursuant to Sec. 11.907 of this part; or
    (3) File a petition pursuant to Sec. 11.1007 of this part to 
initiate further proceedings. The petition shall be filed within 48 
hours of the preliminary inquiry if the minor is in detention or shelter 
care. If the minor has been previously released to his or her parents, 
guardian or custodian, relative or responsible adult, the petition shall 
be filed within ten days of the preliminary inquiry.



Sec. 11.1007  Petition.

    (a) Proceedings under Sec. Sec. 11.1000-11.1014 of this part shall 
be instituted by a petition filed by the presenting officer on behalf of 
the tribe and in the interests of the minor. The petition shall state:
    (1) The name, birth date, and residence of the minor;
    (2) The names and residences of the minor's parents, guardian or 
custodian;
    (3) A citation to the specific section(s) of this part which gives 
the children's court jurisdiction of the proceedings;
    (4) A citation to the section(s) of this part which the minor is 
alleged to have violated; and
    (5) If the minor is in detention or shelter care, the time the minor 
was taken into custody.



Sec. 11.1008  Date of hearing.

    Upon receipt of the petition, the children's court shall set a date 
for the hearing which shall not be more than 15 days after the 
children's court receives the petition from the presenting officer. If 
the adjudicatory hearing is not held within 15 days after filing of

[[Page 49]]

the petition, the petition shall be dismissed and cannot be filed again, 
unless;
    (a) The hearing is continued upon motion of the minor; or
    (b) The hearing is continued upon motion of the presenting officer 
by reason of the unavailability of material evidence or witnesses and 
the children's court finds the presenting officer has exercised due 
diligence to obtain the material evidence or witnesses and reasonable 
grounds exist to believe that the material evidence or witnesses will 
become available.



Sec. 11.1009  Summons.

    (a) At least five working days prior to the adjudicatory hearing, 
the children's court shall issue summons to:
    (1) The minor;
    (2) The minor's parents, guardian or custodian; and
    (3) Any person the children's court or the minor believes necessary 
for the adjudication of the hearing.
    (b) The summons shall contain the name of the court, the title of 
the proceedings, and the date, time and place of the hearing.
    (c) A copy of the petition shall be attached to the summons.
    (d) The summons shall be delivered personally by a law enforcement 
officer or appointee of the children's court. If the summons cannot be 
delivered personally, the court may deliver it by certified mail.



Sec. 11.1010  Adjudicatory hearing.

    (a) The children's court shall conduct the adjudicatory hearing for 
the sole purpose of determining the guilt or innocence of the minor. The 
hearing shall be private and closed.
    (b) All the rights listed in Sec. 11.906 shall be afforded the 
parties at the adjudicatory hearing. The notice requirements of Sec. 
11.906(a) are met by a summons issued pursuant to Sec. 11.1009.
    (c) If the minor admits the allegations of the petition, the 
children's court shall proceed to the dispositional stage only if the 
children's court finds that:
    (1) The minor fully understands his or her rights as set forth in 
Sec. 11.906 of this part and fully understands the potential 
consequences of admitting the allegations;
    (2) The minor voluntarily, intelligently and knowingly admits to all 
facts necessary to constitute a basis for children's court action; and
    (3) The minor has not, in the purported admission to the 
allegations, set forth facts which, if found to be true, constitute a 
defense to the allegations.
    (d) The children's court shall hear testimony concerning the 
circumstances which gave rise to the complaint.
    (e) If the allegations of the petition are sustained by proof beyond 
a reasonable doubt, the children's court shall find the minor to be a 
juvenile offender and proceed to the dispositional hearing.
    (f) A finding that a minor is a juvenile offender constitutes a 
final order for purposes of appeal.



Sec. 11.1011  Dispositional hearing.

    (a) A dispositional hearing shall take place not more than 15 days 
after the adjudicatory hearing.
    (b) At the dispositional hearing, the children's court shall hear 
evidence on the question of proper disposition.
    (c) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the dispositional hearing.
    (d) At the dispositional hearing, the children's court shall 
consider any predisposition report, physician's report or social study 
it may have ordered and afford the parents an opportunity to controvert 
the factual contents and conclusions of the reports. The children's 
court shall also consider the alternative predisposition report prepared 
by the minor and his or her attorney, if any.
    (e) The dispositional order constitutes a final order for purposes 
of appeal.



Sec. 11.1012  Dispositional alternatives.

    (a) If a minor has been adjudged a juvenile offender, the children's 
court may make the following disposition:
    (1) Place the minor on probation subject to conditions set by the 
children's court;
    (2) Place the minor in an agency or institution designated by the 
children's court; or

[[Page 50]]

    (3) Order restitution to the aggrieved party.
    (b) The dispositional orders are to be in effect for the time limit 
set by the children's court, but no order may continue after the minor 
reaches 18 years of age, unless the dispositional order was made within 
six months of the minor's eighteenth birthday or after the minor had 
reached 18 years of age, in which case the disposition may not continue 
for more than six months.
    (c) The dispositional order is to be reviewed at the children's 
court discretion, but at least once every six months.



Sec. 11.1013  Modification of dispositional order.

    (a) A dispositional order of the children's court may be modified 
upon a showing of a change of circumstances.
    (b) The children's court may modify a dispositional order at any 
time upon the motion of the minor or the minor's parents, guardian or 
custodian.
    (c) If the modification involves a change of custody, the children's 
court shall conduct a hearing pursuant to paragraph (d) of this section.
    (d) A hearing to review a dispositional order shall be conducted as 
follows:
    (1) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the hearing to review the dispositional order. The notice 
required by paragraph (a) of Sec. 11.906 shall be given at least 48 
hours before the hearing.
    (2) The children's court shall review the performance of the minor, 
the minor's parents, guardian or custodian, and other persons providing 
assistance to the minor and the minor's family.
    (3) In determining modification of disposition, the procedures 
prescribed in Sec. 11.1011 of this part shall apply.
    (4) If the request for review of disposition is based upon an 
alleged violation of a court order, the children's court shall not 
modify its dispositional order unless it finds clear and convincing 
evidence of the violation.



Sec. 11.1014  Medical examination.

    The children's court may order a medical examination for a minor who 
is alleged to be a juvenile offender.



                Subpart K_Minor-in-Need-of-Care Procedure



Sec. 11.1100  Complaint.

    A complaint must be filed by a law enforcement officer or by the 
presenting officer and sworn to by a person who has knowledge of the 
facts alleged. The complaint shall be signed by the complaining witness 
and shall contain:
    (a) A citation to the specific section of this part which gives the 
children's court jurisdiction of the proceedings;
    (b) The name, age and address of the minor who is the subject of the 
complaint, if known; and
    (c) A plain and concise statement of the facts upon which the 
allegations are based, including the date, time and location at which 
the alleged facts occurred.



Sec. 11.1101  Warrant.

    The children's court may issue a warrant, directing that a minor be 
taken into custody if the children's court finds there is probable cause 
to believe the minor is a minor-in-need-of-care.



Sec. 11.1102  Custody.

    A minor may be taken into custody by a law enforcement officer if:
    (a) The officer has reasonable grounds to believe that the minor is 
a minor-in-need-of-care and that the minor is in immediate danger from 
his or her surroundings and that removal is necessary; or
    (b) A warrant pursuant to Sec. 11.1101 of this part has been issued 
for the minor.



Sec. 11.1103  Law enforcement officer's duties.

    Upon taking a minor into custody the officer shall:
    (a) Release the minor to the minor's parents, guardian or custodian 
and issue a verbal advice or warning as may be appropriate, unless 
shelter care is necessary.
    (b) If the minor is not released, make immediate and recurring 
efforts to notify the minor's parents, guardian or custodian to inform 
them that the minor has been taken into custody and inform them of their 
right to be

[[Page 51]]

present with the minor until an investigation to determine the need for 
shelter care is made by the children's court.



Sec. 11.1104  Shelter care.

    (a) A minor alleged to be a minor-in-need-of-care may be detained, 
pending a court hearing, in the following places:
    (1) A foster care facility authorized under tribal or state law to 
provide foster care, group care or protective residence;
    (2) A private family home approved by the tribe; or
    (3) A shelter care facility operated by a licensed child welfare 
services agency and approved by the tribe.
    (b) A minor alleged to be a minor-in-need-of care may not be 
detained in a jail or other facility used for the detention of adults. 
If such minor is detained in a facility used for the detention of 
juvenile offenders, he or she must be detained in a room separate from 
juvenile offenders, and routine inspection of the room where the minor 
is detained must be conducted every 30 minutes to assure his or her 
safety and welfare.



Sec. 11.1105  Preliminary inquiry.

    (a) If a minor is placed in shelter care, the children's court shall 
conduct a preliminary inquiry with 24 hours for the purpose of 
determining:
    (1) Whether probable cause exists to believe the minor is a minor-
in-need-of care; and
    (2) Whether continued shelter care is necessary pending further 
proceedings.
    (b) If a minor has been released to the parents, guardian or 
custodian, the children's court shall conduct a preliminary inquiry 
within three days after receipt of the complaint for the sole purpose of 
determining whether probable cause exists to believe the minor is a 
minor-in-need-of-care.
    (c) If the minor's parents, guardian or custodian is not present at 
the preliminary inquiry, the children's court shall determine what 
efforts have been made to notify and obtain the presence of the parent, 
guardian or custodian. If it appears that further efforts are likely to 
produce the parent, guardian or custodian, the children's court shall 
recess for no more than 24 hours and direct that continued efforts be 
made to obtain the presence of the parents, guardian or custodian.
    (d) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the minor-in-need-of care preliminary inquiry 
except that the court is not required to appoint counsel if the parties 
cannot afford one. Notice of the inquiry shall be given to the minor, 
and his or her parents, guardian or custodian and their counsel as soon 
as the time for the inquiry has been established.
    (e) The children's court shall hear testimony concerning:
    (1) The circumstances that gave rise to the complaint or the taking 
of the minor into custody; and
    (2) The need for shelter care.
    (f) If the children's court finds that probable cause exists to 
believe the minor is a minor-in-need-of-care, the minor shall be 
released to the parents, guardian or custodian, and ordered to appear at 
the adjudicatory hearing, unless:
    (1) There is reasonable cause to believe that the minor will run 
away and be unavailable for further proceedings;
    (2) There is reasonable cause to believe that the minor is in 
immediate danger from parents, guardian or custodian and that removal 
from them is necessary; or
    (3) There is a reasonable cause to believe that the minor will 
commit a serious act causing damage to person or property.
    (g) The children's court may release the minor pursuant to paragraph 
(f) of this section to a relative or other responsible adult tribal 
member if the parents, guardian or custodian of the minor consent to the 
release. If the minor is ten years to age or older, the minor and the 
parents, guardian or custodian must both consent to the release.
    (h) Upon finding that probable cause exists to believe that the 
minor is a minor-in-need-of-care and that there is a need for shelter 
care, the minor's shelter care shall be continued. Otherwise, the 
complaint shall be dismissed and the minor released.

[[Page 52]]



Sec. 11.1106  Investigation by the presenting officer.

    The presenting officer shall make an investigation following the 
preliminary inquiry or the release of the minor to the parents, guardian 
or custodian to determine whether the interests of the minor and the 
public require that further action be taken. Upon the basis of this 
investigation, the presenting officer may:
    (a) Determine that no further action be taken; or
    (b) File a petition pursuant to Sec. 11.1107 of this part in the 
children's court to initiate further proceedings. The petition shall be 
filed within 48 hours of the preliminary inquiry if the minor is in 
shelter care. If the minor has been previously released to the parents, 
guardian or custodian, relative or responsible adult, the petition shall 
be filed within ten days of the preliminary inquiry.



Sec. 11.1107  Petition.

    Proceedings under Sec. Sec. 11.1100-11.1114 of this part shall be 
instituted by a petition filed by the presenting officer on behalf of 
the tribe and the interests of the minor. The petition shall state:
    (a) The name, birth date, and residence of the minor;
    (b) The names and residences of the minor's parents, guardian or 
custodian;
    (c) A citation to the specific section of this part which gives the 
children's court jurisdiction of the proceedings; and
    (d) If the minor is in shelter care, the place of shelter care and 
the time he or she was taken into custody.



Sec. 11.1108  Date of hearing.

    Upon receipt of the minor-in-need-of-care petition, the children's 
court shall set a date for the hearing which shall not be more than 15 
days after the children's court receives the petition from the 
presenting officer. If the adjudicatory hearing is not held within 15 
days after the filing of the petition, it shall be dismissed unless;
    (a) The hearing is continued upon motion of the minor; or
    (b) The hearing is continued upon motion of the presenting officer 
by reason of the unavailability of material evidence or witnesses and 
the children's court finds the presenting officer has exercised due 
diligence to obtain the material evidence or witnesses and reasonable 
grounds exist to believe that the material evidence or witnesses will 
become available.



Sec. 11.1109  Summons.

    (a) At least five working days prior to the adjudicatory hearing for 
a minor-in-need-of-care, the children's court shall issue summons to:
    (1) The minor;
    (2) The minor's parents, guardian or custodian; and
    (3) Any person the children's court or the minor believes necessary 
for the proper adjudication of the hearing.
    (b) The summons shall contain the name of the court; the title of 
the proceedings, and the date, time and place of the hearing.
    (c) A copy of the petition shall be attached to the summons.
    (d) The summons shall be delivered personally by a tribal law 
enforcement officer or appointee of the children's court. If the summons 
cannot be delivered personally, the court may deliver it by certified 
mail.



Sec. 11.1110  Minor-in-need-of-care adjudicatory hearing.

    (a) The children's court shall conduct the adjudicatory hearing for 
the sole purpose of determining whether the minor is a minor-in-need-of-
care. The hearing shall be private and closed.
    (b) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the adjudicatory hearing, except that the court 
may not appoint counsel if the parties cannot afford one. The notice 
requirements of Sec. 11.906(a) are met by a summons issued pursuant to 
Sec. 11.1109.
    (c) The children's court shall hear testimony concerning the 
circumstances which gave rise to the complaint.
    (d) If the circumstances of the petition are sustained by clear and 
convincing evidence, the children's court shall find the minor to be a 
minor-in-need-of-care and proceed to the dispositional hearing.
    (e) A finding that a minor is a minor-in-need-of-care constitutes a 
final order for purposes of appeal.

[[Page 53]]



Sec. 11.1111  Minor-in-need-of-care dispositional hearing.

    (a) No later than 15 days after the adjudicatory hearing, a 
dispositional hearing shall take place to hear evidence on the question 
of proper disposition.
    (b) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the dispositional hearing except the right to 
free court-appointed counsel. Notice of the hearing shall be given to 
the parties at least 48 hours before the hearing.
    (c) At the dispositional hearing the children's court shall consider 
any predisposition report or other study it may have ordered and afford 
the parties an opportunity to controvert the factual contents and 
conclusions of the reports. The children's court shall also consider the 
alternative predisposition report prepared by the minor and his or her 
attorney, if any.
    (d) The dispositional order constitutes a final order for purposes 
of appeal.



Sec. 11.1112  Dispositional alternatives.

    (a) If a minor has been adjudged a minor-in-need-of-care, the 
children's court may:
    (1) Permit the minor to remain with his or her parents, guardian or 
custodian subject to such limitations and conditions as the court may 
prescribe; or, if reasonable efforts to have the minor return or remain 
in his or her own home are unsuccessful, the children's court may make 
whichever of the following dispositions is in the best interest of the 
minor;
    (2) Place the minor with a relative within the boundaries of the 
reservation subject to such limitations and conditions as the court may 
prescribe;
    (3) Place the minor in a foster home within the boundaries of the 
reservation which has been approved by the tribe subject to such 
limitations and conditions as the court may prescribe;
    (4) Place the minor in shelter care facilities designated by the 
court;
    (5) Place the minor in a foster home or a relative's home outside 
the boundaries of the reservation subject to such limitations and 
conditions as the court may prescribe; or
    (6) Recommend that termination proceedings begin.
    (b) Whenever a minor is placed in a home or facility located outside 
the boundaries of the reservation, the court may require the party 
receiving custody of the minor to sign an agreement that the minor will 
be returned to the court upon order of the court.
    (c) The dispositional orders are to be in effect for the time limit 
set by the children's court, but no order may continue after the minor 
reaches 18 years of age, unless the dispositional order was made within 
six months of the minor's eighteenth birthday, in which case the 
disposition may not continue for more than six months.
    (d) The dispositional orders are to be reviewed at the children's 
court discretion, but at least once every six months to determine the 
continuing need for and appropriateness of placement, to determine the 
extent of progress made, and to assess the probability of the minor's 
return to his or her home.
    (e) A permanency planning hearing must be held within 18 months 
after the original placement and every six months thereafter to 
determine the future status of the minor except when the minor is 
returned to his or her home and court supervision ceases.



Sec. 11.1113  Modification of dispositional order.

    (a) A dispositional order of the children's court may be modified 
upon a showing of a change of circumstances.
    (b) The children's court may modify a dispositional order at any 
time upon motion of the minor or the minor's parents, guardian or 
custodian.
    (c) If the modification involves a change of custody, the children's 
court shall conduct a hearing pursuant to paragraph (d) of this section 
to review the dispositional order.
    (d) A hearing to review a dispositional order shall be conducted as 
follows:
    (1) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the review of the disposition hearing except the 
right to free court-appointed counsel. Notice of the hearing shall be 
given the parties at least 48 hours before the hearing.

[[Page 54]]

    (2) The children's court shall review the performance of the minor, 
the minor's parents, guardian or custodian, and other persons providing 
assistance to the minor and the minor's family.
    (3) In determining modification of disposition, the procedures 
prescribed in Sec. 11.1111 of this part shall apply.
    (4) If the request for review of disposition is based upon an 
alleged violation of a court order, the children's court shall not 
modify its dispositional order unless it finds clear and convincing 
evidence of the violation.



Sec. 11.1114  Termination.

    (a) Parental rights to a child may be terminated by the children's 
court according to the procedures in this section.
    (b) Proceedings to terminate parental rights shall be instituted by 
a petition filed by the presenting officer on behalf of the tribe or by 
the parents or guardian of the child. The petition shall state:
    (1) The name, birth date, and residence of the minor;
    (2) The names and residences of the minor's parents, guardian or 
custodian;
    (3) If the child is in detention or shelter care, the place of 
detention or shelter care and the time he was taken into custody; and
    (4) The reasons for the petition.
    (c) Upon receipt of the petition, the children's court shall set a 
date for the termination hearing which shall not be more than 15 days 
after the children's court receives the petition from the presenting 
officer. The hearing may be continued:
    (1) On motion of the minor's parents, guardian or custodian; or
    (2) Upon motion of the presenting officer by reason of the 
unavailability of material evidence or witnesses and the children's 
court finds the presenting officer has exercised due diligence to obtain 
the material evidence or witnesses and reasonable grounds exist to 
believe that the material evidence or witnesses will become available.
    (d) Summons:
    (1) At least five working days prior to the termination hearing, the 
children's court shall issue summons to the minor, the minor's parents, 
guardian or custodian, and any other person the court or the minor's 
parents, guardian or custodian believes necessary for the proper 
adjudication of the hearing.
    (2) The summons shall contain the name of the court, the title of 
the proceedings, and the date, time and place of the hearing.
    (3) A copy of the petition shall be attached to the summons.
    (4) The summons shall be delivered personally by a law enforcement 
officer or appointee of the children's court. If the summons cannot be 
delivered personally, the court may deliver it by certified mail.
    (e) The children's court shall conduct the termination hearing for 
the sole purpose of determining whether parental rights shall be 
terminated. The hearing shall be private and closed.
    (1) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the termination hearing except the right to a free court-
appointed counsel. The minor's parents may not be compelled to be 
witnesses against, nor otherwise incriminate themselves.
    (2) The children's court shall hear testimony concerning the 
circumstances that gave rise to the petition, and the need for 
termination of parental rights.
    (3) The children's court may terminate parental rights if, following 
efforts to prevent or eliminate the need to remove the minor, it finds 
such efforts to have been unsuccessful, and it finds beyond a reasonable 
doubt that:
    (i) The child has been abandoned;
    (ii) The minor has suffered physical injuries, willfully and 
repeatedly inflicted by his or her parent(s) which cause or create a 
substantial risk of death, disfigurement, or impairment of bodily 
functions;
    (iii) The parent(s) has subjected the minor to willful and repeated 
acts of sexual abuse;
    (iv) The minor has suffered serious emotional or mental harm due to 
the act of the parent(s); or
    (v) The voluntary written consent of both parents has been 
acknowledged before the court.
    (f) Dispositional alternatives:
    (1) If parental rights to a child are terminated, the children's 
court shall

[[Page 55]]

place the minor in a foster care or shelter care facility which has been 
approved by the tribe, and follow the adoption procedures of the tribe, 
or, in their absence, the adoption procedures of the state within which 
it is located.
    (2) If parental rights to a child are not terminated, the children's 
court shall make a disposition according to Sec. 11.1112 of this part.
    (g) The termination order constitutes a final order for purposes of 
appeal.
    (h) No adjudication of termination of parental rights shall affect 
the minor's enrollment status as a member of any tribe or the minor's 
degree of blood quantum of any tribe.



Sec. 11.1115  Information collection.

    (a) The information collection requirements contained in Sec. 
11.600 and Sec. 11.606 have been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq., and assigned approval number 
1076-0094. The information is being collected to obtain a marriage 
license (Sec. 11.600) and a divorce decree (Sec. 11.606) from the 
Courts of Indian Offenses, and will be used by the courts to issue a 
marriage license or divorce decree. Response to this request is required 
to obtain a benefit.
    (b) Public reporting for this information collection is estimated to 
average .25 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any other aspect of this information collection to 
the Bureau of Indian Affairs, Information Collection Clearance Officer, 
Room 336-SIB, 1849 C Street, NW., Washington, DC 20240; and the Office 
of Information and Regulatory Affairs [Project 1076-0094], Office of 
Management and Budget, Washington, DC 20502.



PART 12_INDIAN COUNTRY LAW ENFORCEMENT--Table of Contents




                       Subpart A_Responsibilities

Sec.
12.1 Who is responsible for the Bureau of Indian Affairs law enforcement 
          function?
12.2 What is the role of the Bureau of Indian Affairs Director of Law 
          Enforcement Services?
12.3 Who supervises Bureau of Indian Affairs criminal investigators?
12.4 Who supervises the Bureau of Indian Affairs uniformed police, 
          detention, and conservation enforcement functions?

                    Subpart B_Policies and Standards

12.11 Do I have to follow these regulations?
12.12 What about self-determination?
12.13 What happens if I do not follow the rules in this part?
12.14 Where can I find specific policies and standards for law 
          enforcement functions in Indian country?

                  Subpart C_Authority and Jurisdiction

12.21 What authority is given to Indian country law enforcement officers 
          to perform their duties?
12.22 Can Bureau of Indian Affairs law enforcement officers enforce 
          tribal laws?
12.23 What are the jurisdictional limits in Indian country?

           Subpart D_Qualifications and Training Requirements

12.31 Are there any minimum employment standards for Indian country law 
          enforcement personnel?
12.32 Do minimum employment standards include a background 
          investigation?
12.33 Are Indian country law enforcement officers paid less than other 
          law enforcement officers?
12.34 Do minimum salaries and position classifications apply to a tribe 
          that has contracted or compacted law enforcement under self-
          determination?
12.35 Do Indian country law enforcement officers complete any special 
          training?
12.36 Does other law enforcement training count?

                    Subpart E_Records and Information

12.41 Who keeps statistics for Indian country law enforcement 
          activities?
12.42 Do Indian country law enforcement programs share information with 
          their own communities or other agencies?

                            Subpart F_Conduct

12.51 Must Indian country law enforcement officers follow a code of 
          conduct?
12.52 How do I report misconduct?
12.53 Who investigates officer misconduct?
12.54 What can I do if I believe my civil rights have been violated?
12.55 Are there any limits on how much force an officer can use when 
          performing law enforcement duties?

[[Page 56]]

                       Subpart G_Support Functions

12.61 Can I be paid for information that helps solve a crime?
12.62 Who decides what uniform an Indian country law enforcement officer 
          can wear and who pays for it?
12.63 Do Indian country law enforcement officers perform other duties as 
          well?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.

    Source: 62 FR 15611, Apr. 2, 1997, unless otherwise noted.



                       Subpart A_Responsibilities



Sec. 12.1  Who is responsible for the Bureau of Indian Affairs law 
enforcement function?

    The Commissioner of Indian Affairs, or in the absence of a 
Commissioner, the Deputy Commissioner, is responsible for Bureau of 
Indian Affairs-operated and contracted law enforcement programs, and for 
overall policy development and implementation of the Indian Law 
Enforcement Reform Act, Public Law 101-379 (25 U.S.C. 2801 et seq.).



Sec. 12.2  What is the role of the Bureau of Indian Affairs Director 
of Law Enforcement Services?

    The Director of the Office of Law Enforcement Services for the 
Bureau of Indian Affairs (Director) has been delegated the 
responsibility for the development of law enforcement and detention 
policies, standards, and management of all Bureau of Indian Affairs 
(BIA) criminal investigations, drug enforcement, training, internal 
affairs, inspection and evaluation, emergency response forces, and other 
national level Indian country law enforcement initiatives. The Director 
publishes these policies and standards in law enforcement manuals and 
handbooks. The Director is also directly responsible for developing 
crime prevention and outreach programs within Indian country law 
enforcement.



Sec. 12.3  Who supervises Bureau of Indian Affairs criminal 
investigators?

    All BIA criminal investigators are supervised by other criminal 
investigators within the Office of Law Enforcement Services.



Sec. 12.4  Who supervises the Bureau of Indian Affairs uniformed 
police, detention, and conservation enforcement functions?

    The agency superintendent is directly responsible for the operation 
and management of BIA uniformed police operations, detention facilities, 
and conservation enforcement operations at any agency having these 
programs. The agency superintendent must also ensure technical support 
is provided to any agency contracting the law enforcement and/or 
detention program.



                    Subpart B_Policies and Standards



Sec. 12.11  Do I have to follow these regulations?

    You must follow the minimum standards outlined in the regulations in 
this part if you are part of a BIA or tribal law enforcement program 
receiving Federal funding or operating under a BIA law enforcement 
commission.



Sec. 12.12  What about self-determination?

    The regulations in this part are not intended to discourage 
contracting of Indian country law enforcement programs under the Indian 
Self-determination and Education Assistance Act (Pub. L. 93-638, as 
amended, 25 U.S.C. 450). The Deputy Commissioner of Indian Affairs will 
ensure minimum standards are maintained in high risk activities where 
the Federal government retains liability and the responsibility for 
settling tort claims arising from contracted law enforcement programs. 
It is not fair to law abiding citizens of Indian country to have 
anything less than a professional law enforcement program in their 
community. Indian country law enforcement programs that receive Federal 
funding and/or commissioning will be subject to a periodic inspection or 
evaluation to provide technical assistance, to ensure compliance with 
minimum Federal standards, and to identify necessary changes or 
improvements to BIA policies.



Sec. 12.13  What happens if I do not follow the rules in this part?

    Your BIA law enforcement commission may be revoked, your law 
enforcement contract may be canceled, and

[[Page 57]]

you may no longer be eligible for tribal shares allocated from the law 
enforcement budget.



Sec. 12.14  Where can I find specific policies and standards for law 
enforcement functions in Indian country?

    BIA will ensure that all Indian country law enforcement programs are 
provided a copy of the most current policy manuals and handbooks. Every 
Indian country law enforcement program covered by the regulations in 
this part must maintain an effective and efficient law enforcement 
program meeting minimal qualitative standards and procedures specified 
in chapter 68 Bureau of Indian Affairs Manual (BIAM) and the Law 
Enforcement Handbook.



                  Subpart C_Authority and Jurisdiction



Sec. 12.21  What authority is given to Indian country law enforcement 
officers to perform their duties?

    BIA law enforcement officers are commissioned under the authority 
established in 25 U.S.C. 2803. BIA may issue law enforcement commissions 
to other Federal, State, local and tribal full-time certified law 
enforcement officers to obtain active assistance in enforcing applicable 
Federal criminal statutes, including Federal hunting and fishing 
regulations, in Indian country.
    (a) BIA will issue commissions to other Federal, State, local and 
tribal full-time certified law enforcement officers only after the head 
of the local government or Federal agency completes an agreement with 
the Commissioner of Indian Affairs asking that BIA issue delegated 
commissions. The agreement must include language that allows the BIA to 
evaluate the effectiveness of these special law enforcement commissions 
and to investigate any allegations of misuse of authority.
    (b) Tribal law enforcement officers operating under a BIA contract 
or compact are not automatically commissioned as Federal officers; 
however, they may be commissioned on a case-by-case basis.



Sec. 12.22  Can Bureau of Indian Affairs law enforcement officers 
enforce tribal laws?

    BIA officers will enforce tribal laws only with the permission of 
the tribe. Local programs are encouraged to make arrangements and 
agreements with local jurisdictions to facilitate law enforcement 
objectives.



Sec. 12.23  What are the jurisdictional limits in Indian country?

    The Department of the Interior and the Department of Justice must 
maintain and periodically review and update a memorandum of 
understanding describing the relationship between the Federal Bureau of 
Investigation and the Bureau of Indian Affairs in the investigation and 
prosecution of major crimes in Indian country. Any law enforcement 
programs performing duties under the authority of 25 U.S.C. 2803 must 
follow the guidelines in the memorandum of understanding and any local 
United States Attorney's guidelines for the investigation and 
prosecution of Federal crimes.



           Subpart D_Qualifications and Training Requirements



Sec. 12.31  Are there any minimum employment standards for Indian 
country law enforcement personnel?

    The Director must develop, maintain, and periodically review the 
qualification standards, including medical qualification standards, for 
all BIA law enforcement, detention, and conservation enforcement 
occupational series. The standards will be no less stringent than the 
minimum standards established by the U.S. Office of Personnel Management 
(OPM) for these occupational series, and may exceed the OPM standards. 
BIA standards are available for review at any BIA personnel office. All 
tribal programs are encouraged to develop standards at least as 
stringent as those established for BIA officers.



Sec. 12.32  Do minimum employment standards include a background 
investigation?

    Law enforcement authority is only entrusted to personnel possessing 
adequate education and/or experience,

[[Page 58]]

training, aptitude, and high moral character. All Indian country law 
enforcement programs receiving Federal funding and/or authority must 
ensure that all law enforcement officers successfully complete a 
thorough background investigation no less stringent than required of a 
Federal officer performing the same duties. The background 
investigations of applicants and employees must be adjudicated by 
trained and qualified security professionals. All background 
investigations must be documented and available for inspection by the 
Bureau of Indian Affairs.



Sec. 12.33  Are Indian country law enforcement officers paid less than 
other law enforcement officers?

    An officer's pay is determined by his/her grade and classification. 
The Commissioner of Indian Affairs must ensure that all BIA law 
enforcement officer positions are established at no lower grade level on 
the Federal scale than similar Federal law enforcement officer positions 
in other agencies. No BIA position performing commissioned law 
enforcement duties will be classified in other than the GS 0083, police 
officer series, for uniformed officers and the GS 1811, criminal 
investigating series, for criminal investigators.



Sec. 12.34  Do minimum salaries and position classifications apply to a tribe 
that has contracted or compacted law enforcement under self-determination?

    Any contract or compact with the BIA to provide law enforcement 
services for an Indian tribe must require a law enforcement officer to 
be paid at least the same salary as a BIA officer performing the same 
duties.



Sec. 12.35  Do Indian country law enforcement officers complete any 
special training?

    Law enforcement personnel of any program funded by the Bureau of 
Indian Affairs must not perform law enforcement duties until they have 
successfully completed a basic law enforcement training course 
prescribed by the Director. The Director will also prescribe mandatory 
supplemental and in-service training courses.



Sec. 12.36  Does other law enforcement training count?

    All requests for evaluation of equivalent training must be submitted 
to the Indian Police Academy for review, with final determination made 
by the Director. Requests for a waiver of training requirements to use 
personnel before completing the required courses of instruction must be 
submitted to the Director and approved or disapproved by the 
Commissioner of Indian Affairs. In no case will such a waiver allow 
personnel to be used in any position for more than one year without 
achieving training standards. Failure to complete basic training 
requirements will result in removal from a law enforcement position.



                    Subpart E_Records and Information



Sec. 12.41  Who keeps statistics for Indian country law enforcement 
activities?

    The Director maintains a criminal justice information system for 
Indian country. The Director will prescribe the types of data to be 
collected and the reporting format to be used to collect information and 
assemble reports on crime reported in Indian country. These reports may 
be provided to the Department of Justice. Any law enforcement program 
receiving funding from the BIA must use the same reporting format and 
submit the same statistical reports to the Office of Law Enforcement 
Services as prescribed by the Director and as are required of all BIA 
law enforcement programs.



Sec. 12.42  Do Indian country law enforcement programs share 
information with their own communities or other agencies?

    At intervals established by the Director, each BIA criminal 
investigations program, and any investigations program receiving BIA 
funds will consult with local tribal leaders and managers of local 
patrol and detention programs. They will discuss the quality of the 
local investigations program and offer feedback and technical 
assistance. There will be no requirement to disclose confidential 
investigative information or to compromise ongoing investigations during 
this process.

[[Page 59]]



                            Subpart F_Conduct



Sec. 12.51  Must Indian country law enforcement officers follow a code 
of conduct?

    All law enforcement programs receiving Bureau of Indian Affairs 
funding or commissioning must establish a law enforcement code of 
conduct which establishes specific guidelines for conduct on and off 
duty, impartiality, and professional conduct in the performance of duty, 
and acceptance of gifts or favors. Each officer must acknowledge in 
writing receiving and understanding of this code of conduct. The 
acknowledgment will remain on file with the law enforcement program 
manager as long as the officer is employed there. Training will be 
conducted on this code of conduct and other ethics issues at least once 
each year.



Sec. 12.52  How do I report misconduct?

    The Director will develop and maintain a reporting system that 
allows any resident of or visitor to Indian country to report officer 
misconduct. Each law enforcement program in Indian country will maintain 
instructions on how to register a complaint. An overview of these steps 
must be posted for public viewing at each law enforcement facility in 
Indian country.



Sec. 12.53  Who investigates officer misconduct?

    The Director, Office of Law Enforcement Services maintains an 
internal affairs program that investigates all allegations of misconduct 
by BIA officers, and any officer receiving funding and/or authority from 
the BIA. All allegations of misconduct must be thoroughly investigated 
and appropriate action taken when warranted. Any person having knowledge 
of officer misconduct must report that information to the officer's 
supervisor. The supervisor must immediately report allegations to the 
internal affairs unit. Depending upon the severity of the allegation, 
the matter may be dealt with locally or it will be investigated by the 
internal affairs unit. Failure of any BIA employee to report known 
allegations may be considered misconduct in itself. Citizens may report 
officer misconduct directly to the internal affairs unit if that is more 
practical.



Sec. 12.54  What can I do if I believe my civil rights have been 
violated?

    All allegations of civil rights violations must be reported 
immediately to the internal affairs unit. That office will ensure that 
allegations are immediately reported to the Civil Rights Division of the 
U. S. Department of Justice through established procedures. BIA's 
internal affairs unit may also investigate the matter and make 
recommendations for additional action as necessary.



Sec. 12.55  Are there any limits on how much force an officer can use 
when performing law enforcement duties?

    The Director will develop and maintain the use of force policy for 
all BIA law enforcement personnel, and for programs receiving BIA 
funding or authority. Training in the use of force, to include non-
lethal measures, will be provided annually. All officers will 
successfully complete a course of instruction in firearms, to include 
judgement pistol shooting, approved by the Indian Police Academy before 
carrying a firearm on or off duty.



                       Subpart G_Support Functions



Sec. 12.61  Can I be paid for information that helps solve a crime?

    The Director can spend money to purchase evidence or information, or 
to offer a reward, in the investigation of a crime. This is subject to 
the availability of funds. This authority may be delegated in writing to 
supervisory criminal investigators within the Office of Law Enforcement 
Services in the BIA. The Director must develop policies and procedures 
for the expenditure, control, and audit of these funds before their use.



Sec. 12.62  Who decides what uniform an Indian country law enforcement 
officer can wear and who pays for it?

    Each local law enforcement program must establish its own uniform 
requirements for patrol and detention

[[Page 60]]

personnel. Uniformed BIA police officers may be paid an annual uniform 
allowance not to exceed $400. Local programs may provide uniforms and 
related equipment to officers in lieu of this payment. All law 
enforcement officers must also have their official identification on 
their person at all times when performing law enforcement duties. 
Uniforms, when worn, will be plainly distinguishable from the uniforms 
of any non-law enforcement personnel working on the reservation.



Sec. 12.63  Do Indian country law enforcement officers perform other 
duties as well?

    Law enforcement commissions will only be issued by the Bureau of 
Indian Affairs to persons occupying positions as full-time officers. 
Bureau of Indian Affairs funded or commissioned criminal investigators 
will not be responsible for supervising or managing any patrol, 
detention, or other uniformed police programs.



PART 13_TRIBAL REASSUMPTION OF JURISDICTION OVER CHILD CUSTODY 
PROCEEDINGS--Table of Contents




                            Subpart A_Purpose

Sec.
13.1 Purpose.
13.2 Information collection.

                         Subpart B_Reassumption

13.11 Contents of reassumption petitions.
13.12 Criteria for approval of reassumption petitions.
13.13 Technical assistance prior to petitioning.
13.14 Secretarial review procedure.
13.15 Administrative appeals.
13.16 Technical assistance after disapproval.

    Authority: 25 U.S.C. 1952.

    Source: 44 FR 45095, July 31, 1979, unless otherwise noted.



                            Subpart A_Purpose



Sec. 13.1  Purpose.

    (a) The regulations of this part establish the procedures by which 
an Indian tribe that occupies a reservation as defined in 25 U.S.C. 
1903(10) over which a state asserts any jurisdiction pursuant to the 
provisions of the Act of August 15, 1953 (67 Stat. 588) Pub. L. 83-280, 
or pursuant to any other federal law (including any special federal law 
applicable only to a tribe or tribes in Oklahoma), may reassume 
jurisdiction over Indian child custody proceedings as authorized by the 
Indian Child Welfare Act, Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1918.
    (b) On some reservations there are disputes concerning whether 
certain federal statutes have subjected Indian child custody proceedings 
to state jurisdiction or whether any such jurisdiction conferred on a 
state is exclusive of tribal jurisdiction. Tribes located on those 
reservations may wish to exercise exclusive jurisdiction or other 
jurisdiction currently exercised by the state without the necessity of 
engaging in protracted litigation. The procedures in this part also 
permit such tribes to secure unquestioned exclusive, concurrent or 
partial jurisdiction over Indian child custody matters without 
relinquishing their claim that no Federal statute had ever deprived them 
of that jurisdiction.
    (c) Some tribes may wish to join together in a consortium to 
establish a single entity that will exercise jurisdiction over all their 
members located on the reservations of tribes participating in the 
consortium. These regulations also provide a procedure by which tribes 
may reassume jurisdiction through such a consortium.
    (d) These regulations also provide for limited reassumptions 
including jurisdiction restricted to cases transferred from state courts 
under 25 U.S.C. 1911(b) and jurisdiction over limited geographical 
areas.
    (e) Unless the petition for reassumption specifically states 
otherwise, where a tribe reassumes jurisdiction over the reservation it 
occupies, any land or community occupied by that tribe which 
subsequently acquires the status of reservation as defined in 25 U.S.C. 
1903(10) also becomes subject to tribal jurisdiction over Indian child 
custody matters.



Sec. 13.2  Information collection.

    The information collection requirement contained in Sec. 13.11 has 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq.

[[Page 61]]

and assigned clearance number 1076-0112. The information is being 
collected when federally recognized tribes request reassumption of 
jurisdiction over child custody proceedings. The information will be 
used to determine if reassumption of jurisdiction over Indian child 
custody proceedings is feasible. Response is required to obtain a 
benefit.

[53 FR 21994, June 13, 1988]



                         Subpart B_Reassumption



Sec. 13.11  Contents of reassumption petitions.

    (a) Each petition to reassume jurisdiction over Indian child custody 
proceedings and the accompanying plan shall contain, where available, 
the following information in sufficient detail to permit the Secretary 
to determine whether reassumption is feasible:
    (1) Full name, address and telephone number of the petitioning tribe 
or tribes.
    (2) A resolution by the tribal governing body supporting the 
petition and plan. If the territory involved is occupied by more than 
one tribe and jurisdiction is to be reassumed over all Indians residing 
in the territory, the governing body of each tribe involved must adopt 
such a resolution. A tribe that shares territory with another tribe or 
tribes may reassume jurisdiction only over its own members without 
obtaining the consent of the other tribe or tribes. Where a group of 
tribes form a consortium to reassume jurisdiction, the governing body of 
each participating tribe must submit a resolution.
    (3) The proposed date on which jurisdiction would be reassumed.
    (4) Estimated total number of members in the petitioning tribe or 
tribes, together with an explanation of how the number was estimated.
    (5) Current criteria for membership in the tribe or tribes.
    (6) Explanation of procedure by which a participant in an Indian 
child custody proceeding may determine whether a particular individual 
is a member of a petitioning tribe.
    (7) Citation to provision in tribal constitution or similar 
governing document, if any, that authorizes the tribal governing body to 
exercise jurisdiction over Indian child custody matters.
    (8) Description of the tribal court as defined in 25 U.S.C. 1903(12) 
that has been or will be established to exercise jurisdiction over 
Indian child custody matters. The description shall include an 
organization chart and budget for the court. The source and amount of 
non-tribal funds that will be used to fund the court shall be 
identified. Funds that will become available only when the tribe 
reassumes jurisdiction may be included.
    (9) Copy of any tribal ordinances or tribal court rules establishing 
procedures or rules for the exercise of jurisdiction over child custody 
matters.
    (10) Description of child and family support services that will be 
available to the tribe or tribes when jurisdiction reassumed. Such 
services include any resource to maintain family stability or provide 
support for an Indian child in the absence of a family--regardless of 
whether or not they are the type of services traditionally employed by 
social services agencies. The description shall include not only those 
resources of the tribe itself, but also any state or federal resources 
that will continue to be available after reassumption of jurisdiction.
    (11) Estimate of the number of child custody cases expected during a 
year together with an explanation of how the number was estimated.
    (12) Copy of any tribal agreements with states, other tribes or non-
Indian local governments relating to child custody matters.
    (b) If the petition is for jurisdiction other than transferral 
jurisdiction under 25 U.S.C. 1911(b), the following information shall 
also be included in the petition and plan:
    (1) Citation of the statute or statutes upon which the state has 
based its assertion of jurisdiction over Indian child custody matters.
    (2) Clear and definite description of the territory over which 
jurisdiction will be reassumed together with a statement of the size of 
the territory in square miles.
    (3) If a statute upon which the state bases its assertion of 
jurisdiction is a surplus land statute, a clear and definite description 
of the reservation

[[Page 62]]

boundaries that will be reestablished for purposes of the Indian Child 
Welfare Act.
    (4) Estimated total number of Indian children residing in the 
affected territory together with an explanation of how the number was 
estimated.



Sec. 13.12  Criteria for approval of reassumption petitions.

    (a) The Assistant Secretary--Indian Affairs shall approve a tribal 
petition to reassume jurisdiction over Indian child custody matters if:
    (1) Any reservation, as defined in 25 U.S.C. 1903(10), presently 
affected by the petition is presently occupied by the petitioning tribe 
or tribes;
    (2) The constitution or other governing document, if any, of the 
petitioning tribe or tribes authorizes the tribal governing body or 
bodies to exercise jurisdiction over Indian child custody matters;
    (3) The information and documents required by Sec. 13.11 of this 
part have been provided;
    (4) A tribal court, as defined in 25 U.S.C. 1903(12), has been 
established or will be established before reassumption and that tribal 
court will be able to exercise jurisdiction over Indian child custody 
matters in a manner that meets the requirements of the Indian Civil 
Rights Act, 25 U.S.C. 1302;
    (5) Child care services sufficient to meet the needs of most 
children the tribal court finds must be removed from parental custody 
are available or will be available at the time of reassumption of 
jurisdiction; and
    (6) The tribe or tribes have established a procedure for clearly 
identifying persons who will be subject to the jurisdiction of the tribe 
or tribes upon reassumption of jurisdiction.
    (b) If the technical assistance provided by the Bureau to the tribe 
to correct any deficiency which the Assistant Secretary--Indian Affairs 
has identified as a basis for disapproving a petition for reassumption 
of exclusive jurisdiction has proved unsuccessful in eliminating 
entirely such problem, the Bureau, at the request of the tribe, shall 
assist the tribe to assert whatever partial jurisdiction as provided in 
25 U.S.C. 1918(b) that is feasible and desired by the tribe. In the 
alternative, the Bureau, if requested by the concerned tribe, shall 
assist the tribe to enter into agreements with a state or states 
regarding the care and custody of Indian children and jurisdiction over 
Indian child custody proceedings, including agreements which may provide 
for the orderly transfer of jurisdiction to the tribe on a case-by-case 
basis or agreements which provide for concurrent jurisdiction between 
the state and the Indian tribe.



Sec. 13.13  Technical assistance prior to petitioning.

    (a) Upon the request of a tribe desiring to reassume jurisdiction 
over Indian child custody matters, Bureau agency and Area Offices shall 
provide technical assistance and make available any pertinent documents, 
records, maps or reports in the Bureau's possession to enable the tribe 
to meet the requirements for Secretarial approval of the petition.
    (b) Upon the request of such a tribe, to the extent funds are 
available, the Bureau may provide funding under the procedures 
established under 25 CFR 23.22 to assist the tribe in developing the 
tribal court and child care services that will be needed when 
jurisdiction is reassumed.



Sec. 13.14  Secretarial review procedure.

    (a) Upon receipt of the petition, the Assistant Secretary--Indian 
Affairs shall cause to be published in the Federal Register a notice 
stating that the petition has been received and is under review and that 
it may be inspected and copied at the Bureau agency office that serves 
the petitioning tribe or tribes.
    (1) No final action shall be taken until 45 days after the petition 
has been received.
    (2) Notice that a petition has been disapproved shall be published 
in the Federal Register no later than 75 days after the petition has 
been received.
    (3) Notice that a petition has been approved shall be published on a 
date requested by the petitioning tribe or within 75 days after the 
petition has been received--whichever is later.
    (b) Notice of approval shall include a clear and definite 
description of the

[[Page 63]]

territory presently subject to the reassumption of jurisdiction and 
shall state the date on which the reassumption becomes effective. A copy 
of the notice shall immediately be sent to the petitioning tribe and to 
the attorney general, governor and highest court of the affected State 
or States.
    (c) Reasons for disapproval of a petition shall be sent immediately 
to the petitioning tribe or tribes.
    (d) When a petition has been disapproved a tribe or tribes may 
repetition after taking action to overcome the deficiencies of the first 
petition.



Sec. 13.15  Administrative appeals.

    The decision of the Assistant Secretary--Indian Affairs may be 
appealed under procedures established in 43 CFR 4.350-4.369.\1\
---------------------------------------------------------------------------

    \1\ Sections 4.350-4.369 of 43 CFR part 4, were removed at 46 FR 
7335, Jan. 23, 1981.
---------------------------------------------------------------------------



Sec. 13.16  Technical assistance after disapproval.

    If a petition is disapproved, the Bureau shall immediately offer 
technical assistance to the tribal governing body for the purpose of 
overcoming the defect in the petition or plan that resulted in the 
disapproval.

[[Page 64]]



                          SUBCHAPTER C_PROBATE





PART 15_PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE 
CIVILIZED TRIBES--Table of Contents




                         Subpart A_Introduction

Sec.
15.1 What is the purpose of this part?
15.2 What terms do I need to know?
15.3 Will the Secretary probate all the property in Indian estates?
15.4 How does the probate process work?

                 Subpart B_Starting the Probate Process

15.101 How do I begin the BIA probate process?
15.102 May I notify BIA of a death if I am not related to the decedent?
15.103 When should BIA be notified of a death?
15.104 What other documents does BIA need to prepare a probate package?
15.105 Will BIA wait to begin the probate process until it is notified 
          of the decedent's death?
15.106 Can I get emergency assistance for funeral expenses from the 
          decedent's IIM account?
15.107 Who prepares an Indian probate package?
15.108 If the decedent was not an enrolled member of a tribe or was a 
          member of more than one tribe, who prepares the package?

                 Subpart C_Preparing the Probate Package

15.201 What will BIA do with the documents that I provide?
15.202 If the decedent owed me money, how do I file a claim against the 
          estate?
15.203 What must the complete probate package contain?

             Subpart D_Probate Processing and Distributions

15.301 What happens after BIA prepares the probate package?
15.302 What happens after the probate package is referred to OHA?
15.303 What happens after the probate decision is made?

                    Subpart E_Information and Records

15.401 How can I find out the status of a probate?
15.402 Who owns the records associated with this part?
15.403 How must records associated with this part be preserved?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; 44 U.S.C. 3101 
et seq.
    Cross Reference: For special rules applying to proceedings in Indian 
Probate (Determination of Heirs and Approval of Wills, Except for 
Members of the Five Civilized Tribes and Osage Indians), including 
hearings and appeals within the jurisdiction of the Office of Hearings 
and Appeals, see Title 43, Code of Federal Regulations, Part 4, Subpart 
D; Funds of deceased Indians other than the Five Civilized Tribes, see 
Title 25 Code of Federal Regulations, Part 115.

    Source: 70 FR 11808, Mar. 9, 2005, unless otherwise noted.



                         Subpart A_Introduction



Sec. 15.1  What is the purpose of this part?

    This part contains the procedures that the Secretary follows to 
initiate the probate of the trust estate of a deceased individual Indian 
who owned trust or restricted property. This part tells you how to file 
the necessary documents to probate the trust estate. This part also 
describes how probates will be processed by BIA, and how probates will 
be sent to the OHA for disposition.



Sec. 15.2  What terms do I need to know?

    Agency means the Bureau of Indian Affairs (BIA) agency office, or 
any other designated office in BIA, having jurisdiction over trust or 
restricted property and money. This term also means any office of a 
tribe that has contracted or compacted the BIA probate function under 25 
U.S.C. 450f or 458cc.
    ALJ means an administrative law judge with the Office of Hearings 
and Appeals (OHA) appointed pursuant to the Administrative Procedure 
Act, 5 U.S.C. 3105.
    Attorney decision maker means an attorney with OHA who conducts an 
informal hearing and renders a decision in any probate case that does 
not require a formal hearing and a decision by an ALJ or Indian probate 
judge.

[[Page 65]]

    Beneficiary means any individual who is designated in a decedent's 
will to receive trust or restricted property or money. The term includes 
both a devisee (someone who receives real property in a will) and a 
legatee (someone who receives personal property in a will).
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Codicil means a supplement or addition to a will, executed with the 
same formalities as a will. It may explain, modify, add to, or revoke 
provisions in an existing will.
    Creditor means any individual or entity that submits a claim for 
payment from a decedent's estate.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Deciding official means an ALJ, Indian probate judge, or attorney 
decision maker.
    Decision or order means a written document issued by a deciding 
official making determinations as to heirs, wills, beneficiaries, and 
creditors' claims, and ordering distribution of property and money.
    Estate means the trust cash assets, restricted or trust lands, and 
other trust property owned by the decedent at the time of his or her 
death.
    Form OHA-7 means a form used by OHA (or an automated database 
equivalent) to record data for heirship and family history and to 
provide information on any wills, trust and restricted property, 
adoptions, and names and addresses of all interested parties.
    Formal hearing means a trial-type proceeding, conducted by an ALJ or 
Indian probate judge, in which evidence is obtained through the 
testimony of witnesses and the introduction of relevant documents.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian money (IIM) 
account by the Office of the Special Trustee for American Indians (OST) 
or by a tribe performing this function under a contract or compact.
    Indian probate judge means an employee of OHA, other than an 
administrative law judge or attorney decision maker, to whom the 
Secretary has delegated authority to conduct hearings in probate cases 
in accordance with 43 CFR part 4, subpart D.
    Informal hearing means a meeting convened by an attorney decision 
maker in which interested parties are asked to present relevant 
information on uncontested issues.
    Interested party means any probable or actual heir, any beneficiary 
under a will, any party asserting a claim against a deceased Indian's 
estate, and any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent.
    Intestate means the decedent died without a valid will.
    LTRO means the Land Titles and Records Office within BIA.
    OHA means the Office of Hearings and Appeals, Department of the 
Interior.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior.
    Probate means the legal process by which applicable tribal law, 
state law, or federal law that affects the distribution of a decedent's 
estate is applied to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine beneficiaries;
    (3) Determine whether claims against the estate will be paid from 
trust funds; and
    (4) Transfer any funds or property held in trust by the Secretary 
for a decedent, or any restricted property of the decedent, to the 
heirs, beneficiaries, or other persons or entities entitled by law to 
receive it.
    Probate clerk means a BIA or tribal employee who is responsible for 
preparing a probate package.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted land means land the title to which is held by an 
individual Indian or a tribe and which can be alienated or encumbered by 
the owner only with the approval of the Secretary because of limitations 
contained in the conveyance instrument pursuant to federal law.

[[Page 66]]

    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Testate means the decedent executed a valid will before his or her 
death.
    Trust cash assets means the funds held in an IIM account that had 
accumulated or were due and owing to the decedent as of the date of 
death.
    Trust land means the land, or an interest therein, for which the 
United States holds fee title in trust for the benefit of an individual 
Indian.
    We or us means either an official of BIA or a tribe performing 
probate functions under a BIA contract or compact.
    Will means a written testamentary document that was signed by the 
decedent and attested to by two disinterested adult witnesses, and that 
states who will receive the decedent's trust or restricted property.
    You or I means an interested party, as defined herein, with an 
interest in the decedent's trust estate unless a specific section says 
otherwise.



Sec. 15.3  Will the Secretary probate all the property in Indian estates?

    (a) No. We will probate only the trust or restricted property in the 
estate of an Indian decedent.
    (b) We will not probate:
    (1) Real or personal property in an estate of an Indian decedent 
that is not trust or restricted property;
    (2) Restricted property derived from allotments in the estates of 
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, 
Creek and Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests.
    (c) We will probate the estate of a deceased member of the Five 
Civilized Tribes or Osage Nation who owns an interest in land derived 
from an individual Indian other than the Five Civilized Tribes or Osage 
Nation.



Sec. 15.4  How does the probate process work?

    The basic steps of the probate process are:
    (a) We find out about a person's death (see subpart B of this part 
for details);
    (b) We prepare a probate package that includes documents you send us 
(see subpart C of this part for details);
    (c) We refer the completed probate package to OHA for assignment to 
a deciding official (see subpart D of this part for details); and
    (d) The deciding official decides how to distribute the property 
and/or funds deposited in an IIM account and we make the distribution 
(see subpart D of this part for details).



                 Subpart B_Starting the Probate Process



Sec. 15.101  How do I begin the BIA probate process?

    As soon as possible you should contact the nearest BIA agency or 
regional office where the decedent was enrolled to inform us of the 
decedent's death.
    (a) You should provide a certified copy of the death certificate, if 
one exists.
    (b) If a death certificate does not exist, you should provide an 
affidavit of death prepared by the tribe with whom the decedent was 
associated or someone who knows about the decedent's death that 
specifies what is known about the date and cause of the decedent's 
death. A copy of any supporting documents that may be available, such as 
an obituary or death notice or a church or court record, should be 
provided along with the affidavit.



Sec. 15.102  May I notify BIA of a death if I am not related to the 
decedent?

    Yes. You do not need to be related to the decedent in order to 
notify us of the death. You can be a friend, neighbor, or any other 
interested party.



Sec. 15.103  When should BIA be notified of a death?

    There is no deadline for notifying us of a death. However, you 
should notify us of a death as soon as possible after the person dies.



Sec. 15.104  What other documents does BIA need to prepare a probate 
package?

    (a) You should provide us with the following documents and 
information

[[Page 67]]

before we can begin to process the probate package:
    (1) Social Security number of the decedent;
    (2) The birth certificate or other record of birth of the decedent, 
if available;
    (3) The death certificate or other reliable evidence of death as 
required by Sec. 15.101;
    (4) A list of known creditors against the estate and their 
addresses;
    (5) Current names and addresses of potential heirs and 
beneficiaries;
    (6) Any statements renouncing an interest in the estate;
    (7) Documents from a court of competent jurisdiction, including but 
not limited to:
    (i) All marriage licenses of the decedent;
    (ii) All divorce decrees of the decedent;
    (iii) Adoption and guardianship records relevant to the decedent;
    (iv) Any sworn statements regarding the decedent's family, including 
any statements of paternity or maternity;
    (v) Any name changes; and
    (vi) Any order requiring payment of child support;
    (8) All originals or copies of wills and codicils, and any 
revocations; and
    (9) Any additional documents you provide or that we request.
    (b) You must inform us if any of the documents or information 
identified in this part are not available.



Sec. 15.105  Will BIA wait to begin the probate process until it is 
notified of the decedent's death?

    No, we will not wait to begin the probate process until we are 
notified of the decedent's death. If we find out about the death of a 
person, and if the decedent meets the criteria in Sec. 15.3, we will 
initiate the process to collect the necessary documentation. You should 
not assume that we will find out about a death. To assure timely 
distribution of the estate, you should notify us as provided in Sec. 
15.101.



Sec. 15.106  Can I get emergency assistance for funeral services from 
the decedent's IIM account?

    (a) You may ask BIA for up to $1,000 from the decedent's IIM account 
if:
    (1) You are responsible for making the funeral arrangements on 
behalf of the family of a decedent who had an IIM account;
    (2) You have an immediate need to pay for funeral arrangements 
before burial; and
    (3) The decedent's IIM account contains more than $2,500 on the date 
of death.
    (b) You must apply for assistance under paragraph (a) of this 
section and submit to BIA an original itemized estimate of the cost of 
the service to be rendered and the identification of the service 
provider.
    (c) We may approve reasonable costs up to $1,000 that are necessary 
for the burial services, taking into consideration:
    (1) The total amount in the account;
    (2) The number of probable heirs or beneficiaries of whom we are 
aware;
    (3) The amount of any claims against the account of which we are 
aware; and
    (4) The availability of non-trust funds, and any other relevant 
factor.
    (d) We will make payments directly to the providers of the services.



Sec. 15.107  Who prepares an Indian probate package?

    The probate specialist or probate clerk at the agency or tribe where 
the decedent is an enrolled member will prepare the probate package in 
consultation with the probable heirs or beneficiaries who can be 
located.



Sec. 15.108  If the decedent was not an enrolled member of a tribe or 
was a member of more than one tribe, who prepares the probate package?

    Unless otherwise provided by Federal law, the BIA agency that has 
jurisdiction over the tribe with the strongest association with the 
decedent will serve as the home agency and will prepare the probate 
package if the decedent either:
    (a) Was not an enrolled member of a tribe, but owns interests in 
trust or restricted property; or
    (b) Was a member of more than one tribe.

[[Page 68]]



                 Subpart C_Preparing the Probate Package



Sec. 15.201  What will BIA do with the documents that I provide?

    Once we receive the documents that you provide us under Sec. 
15.104, the probate specialist or probate clerk will:
    (a) Use the documents to prepare a probate package; and
    (b) Consult with you and any other sources to obtain any additional 
information needed for a complete package.



Sec. 15.202  If the decedent owed me money, how do I file a claim 
against the estate?

    (a) If you wish to make a claim against the estate of a decedent, 
you must submit to us an original and two copies of an itemized 
statement of the debt. The statement must show the amount of the 
original debt and the remaining balance on the date of the decedent's 
death.
    (b) The itemized statement must state whether you have filed a claim 
against the decedent's non-trust assets.
    (c) We must receive your claim within 60 days from the date we 
received the verification of the decedent's death in Sec. 15.101 to 
include the claim as part of the probate package.



Sec. 15.203  What must the complete probate package contain?

    The complete probate package must contain all of the following:
    (a) A certified copy of the death certificate, or if one does not 
exist, some other reliable evidence of death as required by Sec. 
15.101;
    (b) A completed Form OHA-7, ``Data for Heirship Findings and Family 
History,'' certified by BIA, with the enrollment or other identifying 
number shown for each potential heir or beneficiary, if such number has 
been assigned;
    (c) A certified inventory of trust or restricted real property;
    (d) A statement describing all income generating activity;
    (e) A copy of the decedent's IIM account ledger showing the balance 
of the account at the date of death and the balance of the account at 
the date of probate package submission;
    (f) All original or certified copies of wills, codicils, and any 
revocations of wills or codicils;
    (g) Any statements renouncing interest that have been submitted to 
the agency;
    (h) Claims of creditors against the estate, date stamped to show 
when the agency received them;
    (i) All documentation of payment of claims before the probate 
proceeding;
    (j) All other documents required in Sec. 15.104;
    (k) Tribal options to purchase interests of a decedent;
    (l) Affidavit of the probate clerk or probate specialist describing 
what efforts have been made to locate any missing probable heirs and 
beneficiaries; and
    (m) Any other documentation that may be required at the time of 
probate proceedings.



             Subpart D_Probate Processing and Distributions



Sec. 15.301  What happens after BIA prepares the probate package?

    (a) After we have assembled all the documents required by Sec. 
15.203, a probate specialist will refer the case to OHA for assignment 
to a deciding official.
    (b) At the same time the probate specialist refers the case to OHA, 
we will notify all interested parties of:
    (1) The right of the probable heirs or beneficiaries to request a 
formal hearing before an ALJ or Indian probate judge;
    (2) The identification of the probable legal heirs or the submission 
of an original or certified copy of a will or revocation and listed 
beneficiaries;
    (3) Any known claims against the estate; and
    (4) The address of the OHA office where the probate package has been 
sent.
    (c) We will send the notice described in paragraph (b) of this 
section by regular mail. It will inform the probable heirs or 
beneficiaries that:
    (1) They may ask OHA for an in-person hearing at a site convenient 
to most of the parties, a video conference or teleconference hearing (if 
available),

[[Page 69]]

or a decision based on documents in the probate package; and
    (2) If they do not request a formal hearing, the probate case may be 
assigned to an attorney decision maker, who will convene an in-person 
informal hearing at a site convenient to most of the parties.



Sec. 15.302  What happens after the probate package is referred to OHA?

    After OHA receives the probate package, it will assign the case to a 
deciding official, who will conduct the probate proceeding and issue a 
written decision or order in accordance with 43 CFR part 4, subpart D.



Sec. 15.303  What happens after the probate decision is made?

    (a) We will not pay claims, transfer title to land, or distribute 
trust cash assets for 75 days after the final OHA decision or order is 
mailed to the interested parties.
    (b) If an interested party files a timely request for de novo 
review, a request for rehearing, or an appeal in accordance with 43 CFR 
part 4, subpart D, we will not pay claims, transfer title to land, or 
distribute trust cash assets until the request or appeal is resolved.
    (c) After 75 days, if no request for de novo review, request for 
rehearing, or appeal has been filed, or after any request or appeal has 
been resolved, the following actions will take place:
    (1) The LTRO will change its land title records for the trust and 
restricted property in accordance with the final decision or order; and
    (2) OST will pay claims and distribute the IIM account in accordance 
with the final decision or order.



                    Subpart E_Information and Records



Sec. 15.401  How can I find out the status of a probate?

    You may request information about the status of an Indian probate 
from any BIA agency or regional office.



Sec. 15.402  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under this part, including the 
operation of a trust program pursuant to Public Law 93-638 as amended; 
and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.
    (b) Records are the property of the tribe if they are:
    (1) Not covered by paragraph (a) of this section; and
    (2) Are made or received by a tribe or tribal organization in the 
conduct of business with the Department of the Interior under this part.



Sec. 15.403  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that has records identified in Sec. 15.402(a):
    (1) Must preserve the records in accordance with approved 
Departmental records retention procedures under the Federal Records Act, 
44 U.S.C. Chapters 29, 31 and 33; and
    (2) Is subject to inspection by the Secretary and the Archivist of 
the United States with respect to these records and related records 
management practices and safeguards required under the Federal Records 
Act.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec. 15.402(b) for the period authorized by the Archivist 
of the United States for similar Department of the Interior records 
under 44 U.S.C. Chapter 33. If a tribe or tribal organization does not 
do so, it may be unable to adequately document essential transactions or 
furnish information necessary to protect its legal and financial rights 
or those of persons affected by its activities.



PART 16_ESTATES OF INDIANS OF THE FIVE CIVILIZED TRIBES--Table of Contents




Sec.
16.1 Definitions.
16.2 Scope of regulations.
16.3 Legal representation in State courts.
16.4 Exchange of information within the Department.
16.5 Acceptance and acknowledgement of service of process.

[[Page 70]]

16.6 Authority of attorneys in State court litigation.
16.7 Performance of Federal functions by successor State courts.
16.8 Summary distribution of small liquid estates.
16.9 Escheat of estates of decedents.

    Authority: 5 U.S.C. 301 (Interprets or applies Act of Apr. 26, 1906, 
ch. 1876, 34 Stat. 137, see 25 U.S.C. 355nt (1970); Act of May 27, 1908, 
ch. 199, 35 Stat. 312, see 25 U.S.C. 355nt (1970); Act of June 14, 1918, 
ch. 101, 40 Stat. 606, 25 U.S.C. 355, 375 (1970); Act of Apr. 12, 1926, 
ch. 115, 44 Stat. 239, see 25 U.S.C. 355nt (1970); Act of June 26, 1936, 
ch. 831, 49 Stat. 1967, 25 U.S.C. 501-509 (1970); Act of Aug. 4, 1947, 
ch. 458, 61 Stat. 731, 25 U.S.C. 502 (1970) and see 25 U.S.C. 355nt 
(1970); Act of Aug. 12, 1953, ch. 409, 67 Stat. 558, 25 U.S.C. 375c 
(1970) and see 25 U.S.C. 355nt (1970); Act of Aug. 11, 1955, ch. 786, 69 
Stat. 666, see 25 U.S.C. 355nt (1970); Act of Aug. 29, 1967, Pub. L. 90-
76, 81 Stat. 177, 25 U.S.C. 786-788 (1970); and Act of May 7, 1970, Pub. 
L. 91-240, 84 Stat. 203, 25 U.S.C. 375d (1970)).

    Source: 37 FR 7082, Apr. 8, 1972, unless otherwise noted.



Sec. 16.1  Definitions.

    (a) The term Secretary means the Secretary of the Interior and his 
authorized representatives.
    (b) The term Bureau means the Bureau of Indian Affairs, acting 
through the Commissioner of Indian Affairs and his authorized 
representatives, including field officials who are responsible for 
matters affecting properties in which a restricted interest is owned by 
an Indian of the Five Civilized Tribes.
    (c) The term Field Solicitor means the Regional Solicitor, Southwest 
Region, Page Belcher Federal Building, P.O. Box 3156, Tulsa, Oklahoma 
74101.
    (d) The term Indian of the Five Civilized Tribes means an individual 
who is either an enrolled member of the Cherokee, Chickasaw, Choctaw, 
Creek, or Seminole Tribes of Oklahoma, or a descendant of an enrolled 
member thereof.
    (e) The term restricted interest means an interest owned in real or 
personal property subject to restraints upon alienation imposed either 
by Federal statute or by administrative action authorized by Federal 
statute. Although this term includes property subject to restraints 
which may be removed by administrative action, its use in this part 
refers primarily to property subject to restraints which State courts 
have jurisdiction to remove in proceedings such as those specified in 
Sec. 16.2.

[37 FR 7082, Apr. 8, 1972, as amended at 50 FR 12529, Mar. 29, 1985]



Sec. 16.2  Scope of regulations.

    The regulations in this part set forth procedures for discharging 
the responsibilities of the Secretary in connection with the performance 
by State courts, as authorized by Federal statutes, of certain functions 
which affect properties in which a restricted interest is owned by an 
Indian of the Five Civilized Tribes. These State court functions pertain 
to such proceedings as guardianship, heirship determination, will 
probate, estate administration, conveyance approval, partition of real 
property, confirmation of title to real property, and appeal from action 
removing or failing to remove restrictions against alienation. In 
addition, the regulations in this part set forth procedures for 
discharging certain other responsibilities of the Secretary not 
necessarily involving State court functions, such as escheat of estates 
of deceased Indians of the Five Civilized Tribes.



Sec. 16.3  Legal representation in State courts.

    The statutory duties of the Secretary to furnish legal advice to any 
Indian of the Five Civilized Tribes, and to represent such Indian in 
State courts, in matters affecting a restricted interest owned by such 
Indian, shall be performed by attorneys on the staff of the Solicitor, 
under the supervision of the Field Solicitor. Such advice and 
representation shall be undertaken to the extent that the Field 
Solicitor in his discretion shall consider necessary to discharge said 
duties, with due regard to the complexity of the legal action 
contemplated, the availability of staff attorneys for such purposes, the 
value and extent of the restricted interests involved, possible 
conflicts between Indians claiming to be owners of such interests, the 
preference of such owners concerning legal representation, the financial 
resources available to such owners, the extent to which such owners 
require similar legal services in

[[Page 71]]

connection with their unrestricted properties, and any other factor 
appropriate for consideration.



Sec. 16.4  Exchange of information within the Department.

    To the extent that information may be useful in discharging the 
duties covered by the regulations in this part, the Bureau shall furnish 
to the Field Solicitor, either on a current basis or at periodic 
intervals, processes and notices received concerning court cases and 
information, as current and complete as may reasonably be obtainable, 
concerning the estate and status of an Indian of the Five Civilized 
Tribes for whom legal assistance should be rendered pursuant to the 
regulations in this part. Similarly, to the extent that such information 
may be useful for Bureau action or records, the Field Solicitor shall 
advise the Bureau of court proceedings, information received, and action 
taken in furnishing legal services pursuant to the regulations in this 
part.



Sec. 16.5  Acceptance and acknowledgement of service of process.

    Service by the Field Solicitor or any other person of any process or 
notice, pursuant to any Federal statute which by its express terms is 
applicable to Indians of the Five Civilized Tribes, may be accepted and 
acknowledged by the Field Solicitor, or by any attorney authorized to 
perform the duties specified in Sec. 16.3, on behalf of the Secretary 
and the Bureau, notwithstanding any specific designation in such statute 
of the official to be served (such as the Secretary, superintendent for 
the Five Civilized Tribes, Probate Attorney, etc.).



Sec. 16.6  Authority of attorneys in State court litigation.

    Attorneys authorized to perform the duties specified in Sec. 16.3 
appearing in State court litigation in their official capacities are 
authorized to take such action as the Secretary could take if he were 
personally appearing in his official capacity as counsel therein, 
including but not limited to the filing or decision against filing of 
initial, responsive, or supplemental pleadings and appeals from adverse 
judgments, the exercise or decision against exercise of a preferential 
right to purchase property subject to sale, the removal or decision 
against removal of actions to Federal courts, and the waiver or decision 
against waiver of the failure to make timely service of process or 
notice.



Sec. 16.7  Performance of Federal functions by successor State courts.

    All authority to perform functions relating to Indians of the Five 
Civilized Tribes which by express provisions of Federal statute had been 
conferred upon probate or county courts of Oklahoma before such county 
courts were abolished on January 12, 1969, has since that date been 
vested in the successor district courts of that State, and all rights of 
litigants continue undiminished in the successor forum, including the 
right to appeal from adverse decisions rendered therein to the successor 
appellate court.

(Interprets or applies Okla. Op. Atty. Gen. No. 68-381 (Dec. 20, 1968))



Sec. 16.8  Summary distribution of small liquid estates.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes contains no restricted land but consists of a 
restricted interest in funds not exceeding $500 on deposit to the credit 
of the decedent, the Field Solicitor shall, in the absence of any final 
decree determining the heirs or legatees of the decedent, prepare and 
furnish to the Bureau a finding and order of distribution, based on 
affidavit or other proof of death and heirship or bequest, setting forth 
the facts of death and heirship or bequest and the amount payable from 
the estate to each person determined to be an heir or legatee of the 
decedent. The Field Solicitor shall mail to each person considered a 
possible claimant to any portion of the estate, as an heir or legatee or 
otherwise, a copy of the order with a notice that the order shall become 
final 30 days after the date of mailing thereof unless within that 
period the officer by whom the order was signed shall have received a 
written request for reconsideration of the order. After

[[Page 72]]

final action on any order has been taken by the Field Solicitor, the 
Bureau shall distribute the funds in the estate of the decedent in 
accordance with such final action, unless a timely appeal therefrom has 
been filed in accordance with part 2 of this title.



Sec. 16.9  Escheat of estates of decedents.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes, who has been dead 5 or more years after having 
died intestate without heirs, consists of restricted interests in lands 
or rents or profits therefrom, the Field Solicitor shall, in the absence 
of any final decree determining that the decedent died without heirs or 
devisees, prepare and furnish to the Bureau a finding and order of 
escheat, based on affidavit or other proof of intestate death without 
heirs, setting forth the restricted interests in lands or rents or 
profits therefrom which have by escheat vested in the tribe which 
allotted the lands. The Field Solicitor shall mail to each person 
considered a possible claimant to any portion of the estate, as an heir 
or devisee or otherwise, a copy of the order with a notice that the 
order shall become final 30 days after the date of mailing thereof 
unless within that period the officer by whom the order was signed shall 
have received a written request for reconsideration of the order. After 
final action on any order has been taken by the Field Solicitor, the 
Bureau shall cause a certified copy thereof to be filed in the land 
records of each county within which are located any escheated lands 
described therein and shall cause the tribe to be credited with any 
funds in said estate which arose from rents or profits from such lands, 
unless a timely appeal therefrom has been filed in accordance with part 
2 of this title.



PART 17_ACTION ON WILLS OF OSAGE INDIANS--Table of Contents




Sec.
17.1 Definitions.
17.2 Attorneys.
17.3 Pleadings, notice and hearings.
17.4 Service on interested parties.
17.5 Minors represented at hearings.
17.6 Examination of witness.
17.7 Limiting number of witnesses.
17.8 Supplemental hearing.
17.9 Briefs.
17.10 Record.
17.11 Inspection of wills and approval as to form during testator's 
          lifetime.
17.12 Approval.
17.13 Government employees as beneficiaries.
17.14 Appeals.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10530, Dec. 24, 1957, unless otherwise noted.



Sec. 17.1  Definitions.

    When used in the regulations in this part the following words or 
terms shall have the meaning shown below:
    (a) Secretary means the Secretary of the Interior.
    (b) Commissioner means the Commissioner of Indian Affairs.
    (c) Superintendent means the superintendent of the Osage Indian 
Agency.
    (d) Special attorney means the special attorney for Osage Indians, 
or other legal officer designated by the Commissioner.



Sec. 17.2  Attorneys.

    Interested parties may appear in person or by attorneys at law. 
Attorneys must file written authority to appear for their clients in the 
proceedings.



Sec. 17.3  Pleadings, notice and hearings.

    (a) The petition for approval of the will of a deceased Osage Indian 
may be set down for hearing at a date not less than 30 days from the 
date the petition is filed. Hearings shall be conducted only after 
notice of the time and place of such hearings shall have been given by 
mail. The notice shall be mailed not less than 10 days preceding the 
date of the hearing and shall state that the special attorney will, at 
the time and place specified therein, take testimony to determine 
whether the will of the deceased Osage Indian shall be approved or 
disapproved. The notice shall list the presumptive heirs of the decedent 
and the beneficiaries under such will, and shall notify the attesting 
witnesses to be present and testify. It shall state that all persons 
interested in the estate of the decedent may be present at the hearing. 
The notice shall

[[Page 73]]

further state that the special attorney may, in his discretion, continue 
the hearing to another time or place to be announced at the original 
hearing.
    (b) Any interested party desiring to contest approval of the will 
may, not less than 5 days before the date set for hearing, file written 
objections in triplicate, showing that a copy thereof was served upon 
attorneys for the proponent and other attorneys of record in the case. 
Such contestant shall clearly state the interest he takes under the will 
and, if a presumptive heir, the interest he would take under the 
Oklahoma law. The contestant shall further state specifically the ground 
on which his contest is based.



Sec. 17.4  Service on interested parties.

    A copy of the notice of hearing shall be served by mail, at his last 
known place of residence, on each presumptive heir; each beneficiary 
under the will offered for consideration; and each attesting witness 
thereto. Such notice must be mailed not less than 10 days preceding the 
date set for the hearing.



Sec. 17.5  Minors represented at hearings.

    Minor heirs at law, who by the terms of the will are devised a 
lesser interest in the estate than they would take by descent, of whose 
interests are challenged, shall, with the approval of the special 
attorney, be represented at the hearing by guardians ad litem. Such 
minors 14 years of age or over may indicate in writing their choice of 
guardians ad litem. If no such choice has been indicated on the date of 
the hearing, the special attorney shall make the selection and 
appointment.



Sec. 17.6  Examination of witness.

    All testimony taken at the hearing shall be reduced to writing. Any 
interested party may cross-examine any witness. Attorneys and others 
will be required to adhere to the rules of evidence of the State of 
Oklahoma. If, in addition to oral testimony, affidavits or dispositions 
are introduced, they must be read, and any opposing claimant may require 
the presence of the affiant, if practicable, either at that or a 
subsequent hearing, and opportunity shall be given for cross-examination 
or for having counter interrogatories answered.



Sec. 17.7  Limiting number of witnesses.

    When the evidence seems clear and conclusive, the special attorney 
may, in his discretion, limit the number of witnesses to be examined 
formally upon any matter.



Sec. 17.8  Supplemental hearing.

    When it appears that a supplemental hearing is necessary to secure 
material evidence, such a hearing may be conducted after notice has been 
given to those persons on whom notice of the original hearing was served 
and to such other persons as the testimony taken at the original hearing 
indicates may have a possible interest in the estate.



Sec. 17.9  Briefs.

    When there are two or more parties with conflicting interests, the 
party upon whom the burden of proof may fall may be allowed a reasonable 
time, not to exceed 30 days following the conclusion of the hearing, in 
which to file a brief or other statement of his contentions, showing 
service on opposing counsel or litigant. The latter shall then be 
allowed not to exceed 20 days in which to file an answer brief or 
statement, and his opponent shall have 10 days thereafter to file a 
reply brief or statement. Upon proper showing the special attorney may 
grant extensions of time. Each brief or statement shall be filed in 
duplicate.



Sec. 17.10  Record.

    After the hearing or hearings on the will have been terminated the 
special attorney shall make up the record and transmit it with his 
recommendation to the superintendent. The record shall contain:
    (a) Copy of notices mailed to the attesting witnesses and the 
interested parties.
    (b) Proof of mailing of notices.
    (c) The evidence received at the hearing or hearings.
    (d) The original of the will or wills considered at the hearings.
    (e) A copy of all the pleadings.

The record, except the original will, shall be a part of the permanent 
files of the Osage Agency.

[[Page 74]]



Sec. 17.11  Inspection of wills and approval as to form during 
testator's lifetime.

    When a will has been executed and filed with the superintendent 
during the lifetime of the testator, the will shall be considered by the 
special attorney who may endorse on such will ``approved as to form.'' A 
will shall be held in absolute confidence and its contents shall not be 
divulged prior to the death of the testator.



Sec. 17.12  Approval.

    After hearings have been concluded in conformity with this part the 
superintendent shall approve or disapprove the wills of deceased Osage 
Indians.



Sec. 17.13  Government employees as beneficiaries.

    In considering the will of a deceased Osage Indian the 
superintendent may disapprove any will which names as a beneficiary 
thereunder a government employee who is not related to the testator by 
blood, or otherwise the natural object of the testator's bounty.



Sec. 17.14  Appeals.

    (a) Notwithstanding the provisions in part 2 of this chapter 
concerning appeals generally from administrative actions, any appeal 
from the action of the superintendent of approving or disapproving a 
will shall be taken to the Secretary. Upon the superintendent's final 
action of approval or disapproval of a will, he shall immediately notify 
by mail all attorneys appearing in the case, together with interested 
parties who are not represented by attorneys, of his decision and of 
their right to file an appeal.
    (b) Any party desiring to appeal from the action of the 
superintendent shall, within 15 days after the date of the mailing of 
notice of the decision file with the superintendent a notice in writing 
of his intention to appeal to the Secretary, and shall, within 30 days 
after the mailing date of such notice by the superintendent, perfect his 
appeal to the Secretary by service of the appeal upon the superintendent 
who will transmit the entire record to the Secretary. If no notice of 
intention to appeal is given within 15 days, the superintendent's 
decision will be final.
    (c) Upon the filing of notice with the superintendent of intention 
to appeal or the perfecting of an appeal by service upon the 
superintendent, at the same time similar notice and service shall be 
effected by the party taking an appeal upon opposing counsel or 
litigants, and a statement included in the appeal that this has been 
done. A party taking an appeal may, within the same 30-day period 
allowed for perfecting an appeal, file a brief or other written 
statement of his contentions, showing also service of that brief upon 
opposing counsel or litigants. Opposing counsel or litigants shall have 
30 days from the date of the service of appellant's brief upon them in 
which to file an answer brief, copies of which also shall be served upon 
the appellant or opposing counsel and litigants. Except by special 
permission, no other briefs will be allowed on appeal.

[26 FR 10930, Nov. 22, 1961]

[[Page 75]]



                       SUBCHAPTER D_HUMAN SERVICES





PART 20_FINANCIAL ASSISTANCE AND SOCIAL SERVICES PROGRAMS--Table of 
Contents




                Subpart A_Definitions, Purpose and Policy

Sec.
20.100 What definitions clarify the meaning of the provisions of this 
          part?
20.101 What is the purpose of this part?
20.102 What is the Bureau's policy in providing financial assistance and 
          social services under this part?
20.103 Have the information collection requirements in this part been 
          approved by the Office of Management and Budget?

                        Subpart B_Welfare Reform

20.200 What contact will the Bureau maintain with State, tribal, county, 
          local, and other Federal agency programs?
20.201 How does the Bureau designate a service area and what information 
          is required?
20.202 What is a tribal redesign plan?
20.203 Can a tribe incorporate assistance from other sources into a 
          tribal redesign plan?
20.204 Must all tribes submit a tribal redesign plan?
20.205 Can tribes change eligibility criteria or levels of payments for 
          General Assistance?
20.206 Must a tribe get approval for a tribal redesign plan?
20.207 Can a tribe use savings from a tribal redesign plan to meet other 
          priorities of the tribe?
20.208 What if the tribal redesign plan leads to increased costs?
20.209 Can a tribe operating under a tribal redesign plan go back to 
          operating under this part?
20.210 Can eligibility criteria or payments for Burial Assistance, Child 
          Assistance, and Disaster Assistance and Emergency Assistance 
          change?

                       Subpart C_Direct Assistance

                    Eligibility for Direct Assistance

20.300 Who qualifies for Direct Assistance under this subpart?
20.301 What is the goal of General Assistance?
20.302 Are Indian applicants required to seek assistance through 
          Temporary Assistance for Needy Families?
20.303 When is an applicant eligible for General Assistance?
20.304 When will the Bureau review eligibility for General Assistance?
20.305 What is redetermination?
20.306 What is the payment standard for General Assistance?

                       Determining Need and Income

20.307 What resources does the Bureau consider when determining need?
20.308 What does earned income include?
20.309 What does unearned income include?
20.310 What recurring income must be prorated?
20.311 What amounts will the Bureau deduct from earned income?
20.312 What amounts will the Bureau deduct from income or other 
          resources?
20.313 How will the Bureau compute financial assistance payments?

                         Employment Requirements

20.314 What is the policy on employment?
20.315 Who is not covered by the employment policy?
20.316 What must a person covered by the employment policy do?
20.317 How will the ineligibility period be implemented?
20.318 What case management responsibilities does the social services 
          worker have?
20.319 What responsibilities does the general assistance recipient have?

                  Tribal Work Experience Program (TWEP)

20.320 What is TWEP?
20.321 Does TWEP allow an incentive payment?
20.322 Who can receive a TWEP incentive payment?
20.323 Will the local TWEP be required to have written program 
          procedures?

                            Burial Assistance

20.324 When can the Bureau provide Burial Assistance?
20.325 Who can apply for Burial Assistance?
20.326 Does Burial Assistance cover transportation costs?

                           Disaster Assistance

20.327 When can the Bureau provide Disaster Assistance?
20.328 How can a tribe apply for Disaster Assistance?

                          Emergency Assistance

20.329 When can the Bureau provide Emergency Assistance payments?
20.330 What is the payment standard for Emergency Assistance?

[[Page 76]]

                          Adult Care Assistance

20.331 What is Adult Care Assistance?
20.332 Who can receive Adult Care Assistance?
20.333 How do I apply for Adult Care Assistance?
20.334 What happens after I apply?
20.335 What is the payment standard for Adult Care Assistance?

          Subpart D_Services to Children, Elderly, and Families

20.400 Who should receive Services to Children, Elderly, and Families?
20.401 What is included under Services to Children, Elderly, and 
          Families?
20.402 When are protective services provided?
20.403 What do protective services include?
20.404 What information is contained in a social services assessment?

                       Subpart E_Child Assistance

20.500 Who is eligible for Child Assistance?

                 How Child Assistance Funds Can Be Used

20.501 What services can be paid for with Child Assistance funds?
20.502 Can Child Assistance funds be used to place Indian children in 
          residential care facilities?
20.503 When can Child Assistance funds be used for Indian adoption or 
          guardianship subsidies?
20.504 What short-term homemaker services can Child Assistance pay for?
20.505 What services are provided jointly with the Child Assistance 
          Program?

                               Foster Care

20.506 What information is required in the foster care case file?
20.507 What requirements must foster care providers meet?
20.508 What must the social services agency do when a child is placed in 
          foster care, residential care or guardianship home?
20.509 What must the social services worker do when a child is placed in 
          foster care or residential care facility?
20.510 How is the court involved in child placements?
20.511 Should permanency plans be developed?
20.512 Can the Bureau/tribal contractors make Indian adoptive 
          placements?
20.513 Should Interstate Compacts be used for the placement of children?
20.514 What assistance can the courts request from social services on 
          behalf of children?
20.515 What is required for case management?
20.516 How are child abuse, neglect or exploitation cases to be handled?

                   Subpart F_Administrative Procedures

20.600 Who can apply for financial assistance or social services?
20.601 How can applications be submitted?
20.602 How does the Bureau verify eligibility for social services?
20.603 How is an application approved or denied?
20.604 How is an applicant or recipient notified that benefits or 
          services are denied or changed?
20.605 What happens when an applicant or recipient appeals a decision 
          under this subpart?
20.606 How is an incorrect payment adjusted or recovered?
20.607 What happens when applicants or recipients knowingly and 
          willfully provide false or fraudulent information?

                     Subpart G_Hearings and Appeals

20.700 Can an applicant or recipient appeal the decision of a Bureau 
          official?
20.701 Does a recipient receive financial assistance while an appeal is 
          pending?
20.702 When is an appeal hearing scheduled?
20.703 What must the written notice of hearing include?
20.704 Who conducts the hearing or appeal of a Bureau decision or action 
          and what is the process?
20.705 Can an applicant or recipient appeal a tribal decision?

    Authority: 25 U.S.C. 13; Pub. L. 93-638; Pub. L. 98-473; Pub. L. 
102-477; Pub. L. 104-193; Pub. L. 105-83.

    Source: 65 FR 63159, Oct. 20, 2000, unless otherwise noted.



                Subpart A_Definitions, Purpose and Policy



Sec. 20.100  What definitions clarify the meaning of the provisions 
of this part?

    Adult means an Indian person age 18 or older.
    Adult care assistance means financial assistance provided on behalf 
of an Indian adult who is not eligible for any other state, federal, or 
tribal assistance as documented in the case file and who requires non-
medical personal care and supervision due to advanced age, infirmity, 
physical condition or mental impairment.
    Appeal means a written request for correction of an action or 
decision of a specific program decision by a Bureau

[[Page 77]]

official (Sec. 20.700) or a tribal official (Sec. 20.705).
    Applicant means an Indian individual by or on whose behalf an 
application for financial assistance and/or social services has been 
made under this part.
    Application means the written or oral process through which a 
request is made for financial assistance or social services.
    Assistant Secretary means the Assistant Secretary--Indian Affairs.
    Authorized representative means a parent or other caretaker 
relative, conservator, legal guardian, foster parent, attorney, 
paralegal acting under the supervision of an attorney, friend or other 
spokesperson duly authorized and acting on behalf or representing the 
applicant or recipient.
    Bureau means the Bureau of Indian Affairs of the United States 
Department of the Interior.
    Bureau Standard of Assistance means payment standards established by 
the Assistant Secretary for burial, disaster, emergency, TWEP and 
adoption and guardian subsidy. In accordance with Public Law 104-193, 
the Bureau standard of assistance for general assistance is the state 
rate for TANF in the state where the applicant resides. Where the Bureau 
provides general assistance on a reservation that extends into another 
state, the Bureau will provide general assistance to eligible Indians 
based on the standard of assistance where the applicant resides if the 
applicant is not eligible for state general assistance or TANF. The 
Bureau standard of assistance for adult care assistance is the state 
rate for adult care assistance in the state where the applicant resides. 
The Bureau standard of assistance for foster care is the state rate for 
foster care in the state where the applicant resides as provided by 
Title IV of the Social Security Act (49 Stat. 620).
    Burial assistance means a financial assistance payment made on 
behalf of an indigent Indian who meets the eligibility criteria to 
provide minimum burial expenses according to Bureau payment standards 
established by the Assistant Secretary.
    Case means a single type of assistance and/or service provided to an 
individual or household in response to an identified need which requires 
intervention by social services.
    Case management means the activity of a social services worker in 
assessing client and family problem(s), case planning, coordinating and 
linking services for clients, monitoring service provisions and client 
progress, advocacy, tracking and evaluating services provided, such as 
evaluation of child's treatment being concurrent with parent's 
treatment, and provision of aftercare service. Activities may also 
include resource development and providing other direct services such as 
accountability of funds, data collection, reporting requirements, and 
documenting activities in the case file.
    Case plan means a written plan with time limited goals which is 
developed and signed by the service recipient and social services 
worker. The case plan will include documentation of referral and 
disapproval of eligibility for other services. The plan must incorporate 
the steps needed to assist individuals and families to resolve social, 
economic, psychological, interpersonal, and/or other problems, to 
achieve self-sufficiency and independence. All plans for children in 
foster care or residential care must include a permanency plan which 
contains a time specific goal of the return of the child to the natural 
parents or initiation of a guardianship/adoption.
    Child means an Indian person under the age of 18 except that no 
person who has been emancipated by marriage will be deemed a child.
    Child assistance means financial assistance provided on behalf of an 
Indian child, who has special needs as specified in Sec. 20.100. In 
addition, assistance includes services to a child who requires placement 
in a foster home or a residential care facility in accordance with 
standards of payment levels established by the state or county in which 
the child resides. Further, assistance includes services to a child in 
need of adoption or guardianship in accordance with payment levels 
established by the Assistant Secretary.
    Designated representative means an official of the Bureau who is 
designated by a Superintendent to hold a hearing as prescribed in 
Sec. Sec. 20.700 through 20.705 and who has had no prior involvement

[[Page 78]]

in the proposed decision under Sec. 20.603 and whose hearing decision 
under Sec. Sec. 20.700 through 20.705 will have the same force and 
effect as if rendered by the Superintendent.
    Disaster means a situation where a tribal community is adversely 
affected by a natural disaster or other forces which pose a threat to 
life, safety, or health as specified in Sec. Sec. 20.327 and 20.328.
    Emergency means a situation where an individual or family's home and 
personal possessions are either destroyed or damaged through forces 
beyond their control as specified in Sec. 20.329.
    Employable means an eligible Indian person who is physically and 
mentally able to obtain employment, and who is not exempt from seeking 
employment in accordance with the criteria specified in Sec. 20.315.
    Essential needs means shelter, food, clothing and utilities, as 
included in the standard of assistance in the state where the eligible 
applicant lives.
    Extended family means persons related by blood, marriage or as 
defined by tribal law or custom.
    Family assessment means a social services assessment of a family's 
history and present abilities and resources to provide the necessary 
care, guidance and supervision for individuals within the family's 
current living situation who may need social service assistance and/or 
services.
    Financial Assistance means any of the following forms of assistance 
not provided by other federal, state, local or tribal sources:
    (1) Adult Care Assistance for adults who require non-medical 
personal care and supervision;
    (2) Burial Assistance for indigent burials;
    (3) Child Assistance for any child with special needs, in need of 
placement in a foster home or residential care facility, or in need of 
adoption or guardianship;
    (4) Disaster Assistance;
    (5) Emergency Assistance for essential needs to prevent hardship 
caused by burnout, flooding of homes, or other life threatening 
situations that may cause loss or damage of personal possessions;
    (6) General Assistance for basic essential needs; or
    (7) Tribal Work Experience Program for participants in work 
experience and training.
    Foster care services means those social services provided to an 
eligible Indian child that is removed from his or her home due to 
neglect, abandonment, abuse or other maltreatment and placed in a foster 
home. Services must also be extended to the affected family members and 
foster parent(s) with a goal of reuniting and preserving the family.
    General Assistance means financial assistance payments to an 
eligible Indian for essential needs provided under Sec. Sec. 20.300 
through 20.319.
    Guardianship means long-term, social services and court approved 
placement of a child.
    Head of household means a person in the household that has primary 
responsibility and/or obligation for the financial support of others in 
the household. In the case of a two parent household, one will be 
considered the head of household for the purpose of making an 
application for benefits.
    Homemaker services means non-medical services provided by social 
services, in the absence of other resources, to assist an eligible 
Indian in maintaining self-sufficiency, and preventing placement into 
foster care or residential care. Examples of services included in 
homemaker services are: cleaning an individual's home, preparing meals 
for an individual, and maintaining or performing basic household 
functions.
    Household means persons living together who may or may not be 
related to the ``head of household.''
    Indian means:
    (1) Any person who is a member of an Indian tribe; or
    (2) In the Alaska service area only, any person who meets the 
definition of ``Native'' as defined under 43 U.S.C. 1602(b): ``A citizen 
of the United States and one-fourth degree or more Alaska Indian 
(including Tsimshian Indians not enrolled in the Metlakatla Indian 
Community) Eskimo, or Aleut blood, or combination thereof. The term 
includes any Native as so defined either or both of whose adoptive 
parents are

[[Page 79]]

not Natives. It also includes, in the absence of proof of a minimum 
blood quantum, any citizen of the United States who is regarded as an 
Alaska Native by the Native village or Native group of which he claims 
to be a member and whose father or mother is (or, if deceased, was) 
regarded as Native by any village or group. Any decision of the 
Secretary regarding eligibility for enrollment shall be final.''
    Indian court means Indian tribal court or Court of Indian Offenses.
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village, or community which is recognized as eligible for the 
special programs and services provided by the United States because of 
their status as Indians.
    Individual Self-sufficiency Plan (ISP) means a plan designed to meet 
the goal of employment through specific action steps and is incorporated 
within the case plan for the general assistance recipient. The plan is 
jointly developed and signed by the recipient and social services 
worker.
    Near Reservation means those areas or communities designated by the 
Assistant Secretary that are adjacent or contiguous to reservations 
where financial assistance and social service programs are provided.
    Need means the deficit after consideration of income and other 
resources necessary to meet the cost of essential need items and special 
need items as defined by the Bureau standard of assistance for the state 
in which the applicant or recipient resides.
    Permanency plan means the documentation in a case plan which 
provides for permanent living alternatives for the child in foster care, 
a residential care facility, or in need of adoption or guardianship. 
Permanency plans are developed and implemented in accordance with 
tribal, cultural, and tribal/state legal standards when the parent or 
guardian is unable to resolve the issues that require out-of-home 
placement of the child.
    Protective services means those services necessary to protect an 
Indian who is the victim of an alleged and/or substantiated incident of 
abuse, neglect or exploitation or who is under the supervision of the 
Bureau in regard to the use and disbursement of funds in his or her 
Individual Indian Money (IIM) account.
    Public assistance means those programs of financial assistance 
provided by state, tribal, county, local and federal organizations 
including programs under Title IV of the Social Security Act (49 Stat. 
620), as amended, and Public Law 104-193.
    Recipient is an eligible Indian receiving financial assistance or 
social services under this part.
    Recurring income means any cash or in-kind payment, earned or 
unearned, received on a monthly, quarterly, semiannual, or annual basis.
    Regional Director means the Bureau official in charge of a Regional 
Office.
    Reservation means any federally recognized Indian tribe's 
reservation, pueblo, or colony, including Alaska Native regions 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688).
    Residential care services means those rehabilitation services 
provided to an eligible Indian child that is removed from his or her 
home due to lack of resources in the home to care for him or her and 
placed in a residential care facility.
    Resources means income, both earned and unearned, and other liquid 
assets available to an Indian person or household to meet current living 
costs, unless otherwise specifically excluded by federal statute. Liquid 
assets are those properties in the form of cash or other financial 
instruments which can be converted to cash, such as savings or checking 
accounts, promissory notes, mortgages and similar properties, and 
retirements and annuities.
    Secretary means the Secretary of the Interior.
    Service area means a geographic area designated by the Assistant 
Secretary where financial assistance and social services programs are 
provided. Such a geographic area designation can include a reservation, 
near reservation, or other geographic location. ``The Assistant 
Secretary has designated the entire State of Alaska as a service area.''
    Services to children, elderly and families means social services, 
including protective services provided through the

[[Page 80]]

social work skills of casework, group work or community development to 
assist in solving social problems involving children, elderly and 
families. These services do not include money payments.
    Special needs means a financial assistance payment made to or on 
behalf of children under social services supervision for circumstances 
that warrant financial assistance that is not included in the foster 
care rates; for example, respite care, homemaker service, day care 
service, and may include basic needs (special diets) which are not 
considered as a medical need where other resources are not available.
    Superintendent means the Bureau official in charge of an agency 
office.
    Supplemental Security Income (SSI) means cash assistance provided 
under Title XVI of the Social Security Act (49 Stat. 620), as amended.
    Temporary Assistance for Needy Families (TANF) means one of the 
programs of financial assistance provided under the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).
    Tribal governing body means the federally recognized governing body 
of an Indian tribe.
    Tribal redesign plan means a tribally designed method for changing 
general assistance eligibility and/or payment levels in accordance with 
25 U.S.C.A. Sec. 13d-3.
    Tribal Work Experience Program (TWEP) means a program operated by 
tribal contract/grant or self-governance annual funding agreement, which 
provides eligible participants with work experience and training that 
promotes and preserves work habits and develops work skills aimed toward 
self-sufficiency. The Bureau payment standard is established by the 
Assistant Secretary.
    Unemployable means a person who meets the criteria specified in 
Sec. 20.315.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000, as amended at 66 
FR 15030, Mar. 15, 2001]



Sec. 20.101  What is the purpose of this part?

    The regulations in this part govern the provision to eligible 
Indians of the following kinds of financial assistance and social 
services:
    (a) Adult Care Assistance;
    (b) Burial Assistance;
    (c) Child Assistance;
    (d) Disaster Assistance;
    (e) Emergency Assistance;
    (f) General Assistance;
    (g) Services to Children, Elderly and Families; and
    (h) Tribal Work Experience Program.



Sec. 20.102  What is the Bureau's policy in providing financial 
assistance and social services under this part?

    (a) Bureau social services programs are a secondary, or residual 
resource, and must not be used to supplement or supplant other programs.
    (b) The Bureau can provide assistance under this part to eligible 
Indians when comparable financial assistance or social services are 
either not available or not provided by state, tribal, county, local or 
other federal agencies.
    (c) Bureau financial assistance and social services are subject to 
annual Congressional appropriations.



Sec. 20.103  Have the information collection requirements in this part 
been approved by the Office of Management and Budget?

    The information collection requirements contained in Sec. Sec. 
20.300, 20.400, and 20.500 were submitted for clearance to the Office of 
Management and Budget under 44 U.S.C. 35d et seq. This information 
collection was approved by OMB with OMB Control 1076-0017. The 
expiration date is on the form. The information is collected to 
determine applicant eligibility for services. The information will be 
used to determine applicant eligibility and to insure uniformity of 
services. Response is required to obtain a benefit. The public reporting 
burdens for this form are estimated to average 15 minutes per response 
including time for reviewing the instructions, gathering and maintaining 
data, and completing and reviewing the form.



                        Subpart B_Welfare Reform



Sec. 20.200  What contact will the Bureau maintain with State, tribal, 
county, local, and other Federal agency programs?

    We will coordinate all financial assistance and social services 
programs

[[Page 81]]

with state, tribal, county, local and other federal agency programs to 
ensure that the financial assistance and social services program avoids 
duplication of assistance.



Sec. 20.201  How does the Bureau designate a service area and what 
information is required?

    The Assistant Secretary can designate or modify service areas for a 
tribe. If you are a tribe requesting a service area designation, you 
must submit each of the following:
    (a) A tribal resolution that certifies that:
    (1) All eligible Indians residing within the service area will be 
served; and
    (2) The proposed service area will not include counties or parts 
thereof that have reasonably available comparable services.
    (b) Additional documentation showing that:
    (1) The area is administratively feasible (that is, an adequate 
level of services can be provided to the eligible Indians residing in 
the area.);
    (2) No duplication of services exists; and
    (3) A plan describing how services will be provided to all eligible 
Indians can be implemented.
    (c) Documentation should be sent to the Regional Director or Office 
of Self-Governance.
    The Director or office will evaluate the information and make 
recommendations to the Assistant Secretary. The Assistant Secretary can 
make a determination to approve or disapprove and publish notice of the 
designation of service area and the Indians to be served in the Federal 
Register. Tribes currently providing services are not required to 
request designation for service areas unless they make a decision to 
modify their existing service areas.



Sec. 20.202  What is a tribal redesign plan?

    If you are a tribe administering a general assistance program, you 
can develop and submit to us a tribal redesign plan to change the way 
that you administer the program.
    (a) A tribal redesign plan allows a tribe to:
    (1) Change eligibility for general assistance in the service area; 
or
    (2) Change the amount of general assistance payments for individuals 
within the service area.
    (b) If you develop a tribal redesign plan it must:
    (1) Treat all persons in the same situation equally; and
    (2) Will not result in additional expenses for the Bureau solely 
because of any increased level of payments.



Sec. 20.203  Can a tribe incorporate assistance from other sources into 
a tribal redesign plan?

    Yes, when a tribe redesigns its general assistance program, it may 
include assistance from other sources (such as Public Law 102-477 
federal funding sources) in the plan.



Sec. 20.204  Must all tribes submit a tribal redesign plan?

    No, you must submit a tribal redesign plan under Sec. 20.206 only 
if you want to change the way that the General Assistance program 
operates in your service area.



Sec. 20.205  Can tribes change eligibility criteria or levels of 
payments for General Assistance?

    Yes, if you have a redesign plan, you can change eligibility 
criteria or levels of payment for general assistance.
    (a) The funding level for your redesigned general assistance program 
will be the same funding received in the most recent fiscal or calendar 
year, whichever applies.
    (b) If you do not have a prior year level of funding, the Bureau or 
Office of Self-Governance will establish a tentative funding level based 
upon best estimates for caseload and expenditures.
    (c) A Bureau servicing office can administer a tribal redesign plan 
as requested by a tribal resolution.



Sec. 20.206  Must a tribe get approval for a tribal redesign plan?

    If you have a Public Law 93-638 contract or receive direct services 
from us, you must obtain our approval before implementing a redesign 
plan. You can apply for approval to the Regional Director through the 
Bureau servicing office.

[[Page 82]]

    (a) You must submit your redesign plan for approval at least 3 
months before the effective date.
    (b) If you operate with a self-governance annual funding agreement, 
you must obtain the approval of the redesign from the Office of Self-
Governance.
    (c) If you operate with a Public Law 102-477 grant, you must obtain 
approval from the Bureau Central Office.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.207  Can a tribe use savings from a tribal redesign plan to 
meet other priorities of the tribe?

    Yes, you may use savings from a redesign of the general assistance 
program to meet other priorities.



Sec. 20.208  What if the tribal redesign plan leads to increased costs?

    The tribe must meet any increase in cost to the General Assistance 
program that results solely from tribally increased payment levels due 
to a redesign plan.



Sec. 20.209  Can a tribe operating under a tribal redesign plan go 
back to operating under this part?

    Yes, a tribe operating under a tribal redesign plan can choose to 
return to operation of the program as provided in Sec. Sec. 20.300 
through 20.323.



Sec. 20.210  Can eligibility criteria or payments for Burial 
Assistance, Child Assistance, and Disaster Assistance and Emergency 
Assistance change?

    No, unless otherwise provided by law, the Bureau nor a tribe may 
change eligibility criteria or levels of payment for Burial Assistance, 
Child Assistance, Disaster Assistance, and Emergency Assistance awarded 
in Public Law 93-638 contracts, Public Law 102-477 grants, or Public Law 
103-413 self-governance annual funding agreements.



                       Subpart C_Direct Assistance

                    Eligibility for Direct Assistance



Sec. 20.300  Who qualifies for Direct Assistance under this subpart?

    To be eligible for assistance or services under this part, an 
applicant must meet all of the following criteria:
    (a) Meet the definition of Indian as defined in this part;
    (b) Not have sufficient resources to meet the essential need items 
defined by the Bureau standard of assistance for those Bureau programs 
providing financial payment;
    (c) Reside in the service area as defined in Sec. 20.100; and
    (d) Meet the additional eligibility criteria for each of the 
specific programs of financial assistance or social services in 
Sec. Sec. 20.301 through 20.516.

[65 FR 63159, Oct. 20, 2000, as amended at 66 FR 15030, Mar. 15, 2001]



Sec. 20.301  What is the goal of General Assistance?

    The goal of the General Assistance program is to increase self-
sufficiency. Each General Assistance recipient must work with the social 
services worker to develop and sign an Individual Self-Sufficiency Plan 
(ISP). The plan must outline the specific steps the individual will take 
to increase independence by meeting the goal of employment.



Sec. 20.302  Are Indian applicants required to seek assistance through 
Temporary Assistance for Needy Families?

    Yes, all Indian applicants with dependent children are required to 
apply for Temporary Assistance for Needy Families (TANF) and follow TANF 
regulations.



Sec. 20.303  When is an applicant eligible for General Assistance?

    To be eligible for General Assistance an applicant must:
    (a) Meet the criteria contained in Sec. 20.300;
    (b) Apply concurrently for financial assistance from other state, 
tribal, county, local, or other federal agency programs for which he/she 
is eligible;

[[Page 83]]

    (c) Not receive any comparable public assistance; and
    (d) Develop and sign an employment strategy in the ISP with the 
assistance of the social services worker to meet the goal of employment 
through specific action steps including job readiness and job search 
activities.



Sec. 20.304  When will the Bureau review eligibility for General 
Assistance?

    The Bureau will review eligibility for General Assistance:
    (a) Every 3 months for individuals who are not exempt from seeking 
or accepting employment in accordance with Sec. 20.315 or the ISP;
    (b) Every 6 months for all recipients; and
    (c) Whenever there is a change in status that can affect a 
recipient's eligibility or amount of assistance. Recipients must 
immediately inform the social services office of any such changes.



Sec. 20.305  What is redetermination?

    Redetermination is an evaluation by a social services worker to 
assess the need for continued financial assistance as outlined in Sec. 
20.304. It includes:
    (a) A home visit;
    (b) An estimate of income, living circumstances, household 
composition for the month(s) for which financial assistance is to be 
provided; and
    (c) Appropriate revisions to the case plan and the ISP.



Sec. 20.306  What is the payment standard for General Assistance?

    (a) Under Public Law 104-193, the Bureau must use the same TANF 
payment standard (and any associated rateable reduction) that exists in 
the state or service area where the applicant or recipient resides. This 
payment standard is the amount from which the Bureau subtracts net 
income and resources to determine General Assistance eligibility and 
payment levels;
    (b) If the state does not have a standard for an adult, we will use 
either the difference between the standard for a child and the standard 
for a household of two, or one-half of the standard for a household of 
two, whichever is greater; and
    (c) If the state does not have a TANF program, we will use the AFDC 
payment standard which was in effect on September 30, 1995, in the State 
where the applicant or recipient resides.

                       Determining Need and Income



Sec. 20.307  What resources does the Bureau consider when determining 
need?

    When the Bureau determines General Assistance eligibility and 
payment levels, we consider income and other resources as specified in 
Sec. Sec. 20.308 and 20.309.
    (a) All income, earned or unearned, must be calculated in the month 
it is received and as a resource thereafter, except that certain income 
obtained from the sale of real or personal property may be exempt as 
provided in Sec. 20.309.
    (b) Resources are considered to be available when they are converted 
to cash.



Sec. 20.308  What does earned income include?

    Earned income is cash or any in-kind payment earned in the form of 
wages, salary, commissions, or profit, from activities by an employee or 
self-employed individual. Earned income includes:
    (a) Any one-time payment to an individual for activities which were 
sustained over a period of time (for example, the sale of farm crops, 
livestock, or professional artists producing art work); and
    (b) With regard to self-employment, total profit from a business 
enterprise (i.e., gross receipts less expenses incurred in producing the 
goods or services). Business expenses do not include depreciation, 
personal business and entertainment expenses, personal transportation, 
capital equipment purchases, or principal payments on loans for capital 
assets or durable goods.



Sec. 20.309  What does unearned income include?

    Unearned income includes, but is not limited to:
    (a) Income from interest; oil and gas and other mineral royalties; 
gaming income per capita distributions; rental property; cash 
contributions, such as child support and alimony, gaming winnings; 
retirement benefits;

[[Page 84]]

    (b) Annuities, veteran's disability, unemployment benefits, and 
federal and state tax refunds;
    (c) Per capita payments not excluded by federal statute;
    (d) Income from sale of trust land and real or personal property 
that is set aside for reinvestment in trust land or a primary residence, 
but has not been reinvested in trust land or a primary residence at the 
end of one year from the date the income was received;
    (e) In-kind contributions providing shelter at no cost to the 
individual or household, this must equal the amount for shelter included 
in the state standard, or 25 percent of the state standard, whichever is 
less; and
    (f) Financial assistance provided by a state, tribal, county, local, 
or other federal agency.



Sec. 20.310  What recurring income must be prorated?

    The social services worker will prorate the following recurring 
income:
    (a) Recurring income received by individuals over a 12-month period 
for less than a full year's employment (for example, income earned by 
teachers who are not employed for a full year);
    (b) Income received by individuals employed on a contractual basis 
over the term of a contract; and
    (c) Intermittent income received quarterly, semiannually, or yearly 
over the period covered by the income.



Sec. 20.311  What amounts will the Bureau deduct from earned income?

    (a) The social services worker will deduct the following amounts 
from earned income:
    (1) Other federal, state, and local taxes;
    (2) Social Security (FICA);
    (3) Health insurance;
    (4) Work related expenses, including reasonable transportation 
costs;
    (5) Child care costs for children under the age of 6 except where 
the other parent in the home is unemployed and physically able to care 
for the children; and
    (6) The cost of special clothing, tools, and equipment directly 
related to the individual's employment.
    (b) For self-employed individuals, the social services worker will 
deduct the costs of conducting business and all of the amounts in 
paragraph (a) of this section.



Sec. 20.312  What amounts will the Bureau deduct from income or other 
resources?

    The social services worker will deduct the following amounts from 
income, or other resources:
    (a) The first $2,000 of liquid resources annually available to the 
household;
    (b) Any home produce from a garden, livestock, and poultry used by 
the applicant or recipient and his/her household for their consumption; 
and
    (c) Resources specifically excluded by federal statute.



Sec. 20.313  How will the Bureau compute financial assistance payments?

    (a) The social services worker will compute financial assistance 
payments by beginning with the Bureau standard of assistance and doing 
the following:
    (1) Subtracting from all resources calculated under Sec. Sec. 
20.307 through 20.310;
    (2) Subtracting the rateable reduction or maximum payment level used 
by the state where the applicant lives;
    (3) Subtracting an amount for shelter (see paragraph (b) of this 
section for details on how to calculate a shelter amount); and
    (4) Rounding the result down to the next lowest dollar.
    (b) The social services worker must calculate a shelter amount for 
purposes of paragraph (a)(3) of this section. To calculate the shelter 
amount:
    (1) The shelter amount must not exceed the amount for shelter in the 
state TANF standard;
    (2) If the state TANF does not specify an amount for shelter, the 
social services worker must calculate the amount as 25 percent of the 
total state TANF payment; and
    (3) If there is more than one household in a dwelling, the social 
services worker must prorate the actual shelter cost among the 
households receiving General Assistance; this amount cannot exceed the 
amount in the standard for individuals in similar circumstances. The 
head of each household is responsible for his/her portion of the 
documented shelter cost.

[[Page 85]]

    (c) The social services worker must not provide General Assistance 
payments for any period before the date of the application for 
assistance.

                         Employment Requirements



Sec. 20.314  What is the policy on employment?

    (a) An applicant or recipient must:
    (1) Actively seek employment, including the use of available state, 
tribal, county, local or Bureau-funded employment services;
    (2) Make satisfactory progress in an ISP; and
    (3) Accept local and seasonable employment when it is available.
    (b) A head of household who does not comply with this section will 
not be eligible for General Assistance for a period of at least 60 days 
but not more than 90 days. This action must be documented in the case 
file.
    (c) The policy in this section does not apply to any person meeting 
the criteria in Sec. 20.315.



Sec. 20.315  Who is not covered by the employment policy?

    The employment policy in Sec. 20.314 does not apply to the persons 
shown in the following table.

------------------------------------------------------------------------
  The employment policy in
 Sec. 20.314 does not apply        if . . .              and . . .
          to . . .
------------------------------------------------------------------------
(a) Anyone younger than 16..
------------------------------------------------------------------------
(b) A full-student under the  He/she is attending   He/she is making
 age of 19.                    an elementary or      satisfactory
                               secondary school or   progress.
                               a vocational or
                               technical school
                               equivalent to a
                               secondary school.
------------------------------------------------------------------------
(c) A person enrolled at      He/she is making      He/she was an active
 least half-time in a          satisfactory          General Assistance
 program of study under        progress.             recipient for a
 Section 5404 of Pub. L. 100-                        minimum of 3 months
 297.                                                before
                                                     determination/
                                                     redetermination of
                                                     eligibility.
------------------------------------------------------------------------
(d) A person suffering from   It is documented in   He/she must be
 a temporary medical injury    the case plan that    referred to SSI if
 or illness.                   the illness or        the disability
                               injury is serious     status exceeds 3
                               enough to             months.
                               temporarily prevent
                               employment.
------------------------------------------------------------------------
(e) An incapacitated person   A physician,          The assessment is
 who has not yet received      psychologist, or      documented in the
 Supplemental Security         social services       case plan.
 Income (SSI) assistance.      worker certifies
                               that a physical or
                               mental impairment
                               (either by itself,
                               or in conjunction
                               with age) prevents
                               the individual from
                               being employed.
------------------------------------------------------------------------
(f) A caretaker who is        A physician or        The case plan
 responsible for a person in   certified             documents that: the
 the home who has a physical   psychologist          condition requires
 or mental impairment.         verifies the          the caretaker to be
                               condition.            home on a virtually
                                                     continuous basis;
                                                     and there is no
                                                     other appropriate
                                                     household member
                                                     available to
                                                     provide this care.
------------------------------------------------------------------------
(g) A parent or other         He/she personally
 individual who does not       provides full-time
 have access to child care.    care to a child
                               under the age of 6.
------------------------------------------------------------------------
(h) A person for whom         There is a minimum
 employment is not             commuting time of
 accessible.                   one hour each way.
------------------------------------------------------------------------



Sec. 20.316  What must a person covered by the employment policy do?

    (a) If you are covered by the employment policy in Sec. 20.314, you 
must seek employment and provide evidence of your monthly efforts to 
obtain employment in accordance with your ISP.
    (b) If you do not seek and accept available local and seasonal 
employment, or you quit a job without good cause, you cannot receive 
General Assistance for a period of at least 60 days but not more than 90 
days after you refuse or quit a job.

[[Page 86]]



Sec. 20.317  How will the ineligibility period be implemented?

    (a) If you refuse or quit a job, your ineligibility period will 
continue as provided in Sec. 20.316(b) until you seek and accept 
appropriate available local and seasonal employment and fulfill your 
obligations already agreed to in the ISP;
    (b) The Bureau will reduce your suspension period by 30 days when 
you show that you have sought local and seasonal employment in 
accordance with the ISP; and
    (c) Your eligibility suspension will affect only you. The Bureau 
will not apply it to other eligible members of the household.



Sec. 20.318  What case management responsibilities does the social 
services worker have?

    In working with each recipient, you, the social services worker 
must:
    (a) Assess the general employability of the recipient;
    (b) Assist the recipient in the development of the ISP;
    (c) Sign the ISP;
    (d) Help the recipient identify the service(s) needed to meet the 
goals identified in their ISP;
    (e) Monitor recipient participation in work related training and 
other employment assistance programs; and
    (f) Document activities in the case file.



Sec. 20.319  What responsibilities does the general assistance 
recipient have?

    In working with the social services worker, you, the recipient, 
must:
    (a) Participate with the social services worker in developing an ISP 
and sign the ISP;
    (b) Perform successfully in the work related activities, community 
service, training and/or other employment assistance programs developed 
in the ISP;
    (c) Participate successfully in treatment and counseling services 
identified in the ISP;
    (d) Participate in evaluations of job readiness and/or any other 
testing required for employment purposes; and
    (e) Demonstrate that you are actively seeking employment by 
providing the social services worker with evidence of job search 
activities as required in the ISP.

                  Tribal Work Experience Program (TWEP)



Sec. 20.320  What is TWEP?

    TWEP is a program that provides work experience and job skills to 
enhance potential job placement for the general assistance recipient. 
TWEP programs can be incorporated within Public Law 93-638 self-
determination contracts, Public Law 102-477 grants, and Public Law 103-
413 self-governance annual funding agreements at the request of the 
tribe.



Sec. 20.321  Does TWEP allow an incentive payment?

    Yes, incentive payments to participants are allowed under TWEP.
    (a) Incentive payments are separate. The Bureau will not consider 
incentive payments as wages or work related expenses, but as grant 
assistance payments under Sec. Sec. 20.320 through 20.323.
    (b) The approved payment will not exceed the Bureau maximum TWEP 
payment standard established by the Assistant Secretary.



Sec. 20.322  Who can receive a TWEP incentive payment?

    (a) The head of the family unit normally receives the TWEP 
assistance payment.
    (b) The social services worker can designate a spouse or other adult 
in the assistance group to receive the TWEP assistance payment. The 
social services worker will do this only if:
    (1) The recognized head of the family unit is certified as 
unemployable; and
    (2) The designation is consistent with the ISP.
    (c) Where there are multiple family units in one household, one 
member of each family unit will be eligible to receive the TWEP 
incentive payment.



Sec. 20.323  Will the local TWEP be required to have written program 
procedures?

    Yes, the local TWEP must have specific written program procedures 
that cover hours of work, acceptable reasons for granting leave from 
work, evaluation criteria and monitoring

[[Page 87]]

plans and ISP's for participants. Work readiness progress must be 
documented in each ISP.

                            Burial Assistance



Sec. 20.324  When can the Bureau provide Burial Assistance?

    In the absence of other resources, the Bureau can provide Burial 
Assistance for eligible indigent Indians meeting the requirements 
prescribed in Sec. 20.300.



Sec. 20.325  Who can apply for Burial Assistance?

    If you are a relative of a deceased Indian, you can apply for burial 
assistance for the deceased Indian under this section.
    (a) To apply for burial assistance under this section, you must 
submit the application to the social services worker. You must submit 
this application within 30 days following death.
    (b) The Bureau will determine eligibility based on the income and 
resources available to the deceased in accordance with Sec. 20.100. 
This includes but is not limited to SSI, veterans' death benefits, 
social security, and Individual Indian Money (IIM) accounts. 
Determination of need will be accomplished on a case-by-case basis using 
the Bureau payment standard.
    (c) The Bureau will not approve an application unless it meets the 
criteria specified at Sec. 20.300.
    (d) The approved payment will not exceed the Bureau maximum burial 
payment standard established by the Assistant Secretary.



Sec. 20.326  Does Burial Assistance cover transportation costs?

    Transportation costs directly associated with burials are normally a 
part of the established burial rate. If a provider adds an additional 
transportation charge to the burial rate because of extenuating 
circumstances, the social services worker can pay the added charge. To 
do this, the social services worker must ensure and document in the case 
plan that:
    (a) The charges are reasonable and equitable;
    (b) The deceased was an eligible indigent Indian who was socially, 
culturally, and economically affiliated with his or her tribe; and
    (c) The deceased resided in the service area for at least the last 6 
consecutive months of his/her life.

                           Disaster Assistance



Sec. 20.327  When can the Bureau provide Disaster Assistance?

    Disaster assistance is immediate and/or short-term relief from a 
disaster and can be provided to a tribal community in accordance with 
Sec. 20.328.



Sec. 20.328  How can a tribe apply for Disaster Assistance?

    (a) The tribe affected by the disaster is considered the applicant 
and must submit the following to the Regional Director through the local 
Superintendent:
    (1) A tribal resolution requesting disaster assistance;
    (2) A copy of county, state, or Presidential declaration of 
disaster; and
    (3) The projected extent of need in the service area not covered by 
other federal funding sources.
    (b) The Regional Director must forward the above tribal documents 
and his/her recommendation to the Assistant Secretary for final decision 
on whether disaster assistance will be provided and to what extent.

                          Emergency Assistance



Sec. 20.329  When can the Bureau provide Emergency Assistance payments?

    Emergency Assistance payments can be provided to individuals or 
families who suffer from a burnout, flood, or other destruction of their 
home and loss or damage to personal possessions. The Bureau will make 
payments only for essential needs and other non-medical necessities.



Sec. 20.330  What is the payment standard for Emergency Assistance?

    The approved payment will not exceed the Bureau's maximum Emergency 
Assistance payment standard established by the Assistant Secretary.

[[Page 88]]

                          Adult Care Assistance



Sec. 20.331  What is Adult Care Assistance?

    Adult care assistance provides non-medical care for eligible adult 
Indians who:
    (a) Have needs that require personal care and supervision due to 
advanced age, infirmity, physical condition, or mental impairments; and
    (b) Cannot be cared for in their own home by family members.



Sec. 20.332  Who can receive Adult Care Assistance?

    An adult Indian is eligible to receive adult care assistance under 
this part if he/she:
    (a) Is unable to meet his/her basic needs, including non-medical 
care and/or protection, with his/her own resources; and
    (b) Does not require intermediate or skilled nursing care.



Sec. 20.333  How do I apply for Adult Care Assistance?

    To apply for adult care assistance, you or someone acting on your 
behalf must submit an application form to the social services worker.



Sec. 20.334  What happens after I apply?

    (a) The Bureau will determine eligibility based upon the income and 
available resources of the person named in the application.
    (b) Upon approval by the Bureau Line Officer, payments will be 
approved under purchase of service agreements for adult care provided in 
state or tribally licensed or certified group settings, or by individual 
service providers licensed or certified for homemaker service.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.335  What is the payment standard for Adult Care Assistance?

    The approved payment for adult care assistance will not exceed the 
applicable state payment rate for similar care.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



          Subpart D_Services to Children, Elderly, and Families



Sec. 20.400  Who should receive Services to Children, Elderly, and 
Families?

    Services to Children, Elderly, and Families will be provided for 
Indians meeting the requirements prescribed in Sec. 20.300 who request 
these services or on whose behalf these services are requested.



Sec. 20.401  What is included under Services to Children, Elderly, 
and Families?

    Services to Children, Elderly, and Families include, but are not 
limited to, the following:
    (a) Assistance in solving problems related to family functioning and 
interpersonal relationships;
    (b) Referral to the appropriate resource for problems related to 
illness, physical or mental handicaps, drug abuse, alcoholism, and 
violation of the law; and
    (c) Protective services.
    In addition, economic opportunity and money management may also be 
provided.



Sec. 20.402  When are protective services provided?

    Protective services are provided when children or adults:
    (a) Are deprived temporarily or permanently of needed supervision by 
responsible adults;
    (b) Are neglected, abused or exploited;
    (c) Need services when they are mentally or physically handicapped 
or otherwise disabled; or
    (d) Are under the supervision of the Bureau in regard to the use and 
disbursement of funds in the child's or adult's Individual Indian Money 
(IIM) account. Those IIM accounts that are established for children will 
be supervised by the Bureau until the child becomes an adult as defined 
in 25 CFR 115.



Sec. 20.403  What do protective services include?

    Protective services provided to a child, family or elderly person 
will be documented in the case files and:

[[Page 89]]

    (a) Can include, but are not limited to, any of the following:
    (1) Providing responses to requests from members of the community on 
behalf of children or adults alleged to need protective services;
    (2) Providing services to children, elderly, and families, including 
referrals for homemaker and day care services for the elderly and 
children;
    (3) Coordinating with Indian courts to provide services, which may 
include, but are not limited to, the following:
    (i) Investigating and reporting on allegations of child abuse and 
neglect, abandonment, and conditions that may require referrals (such as 
mental or physical handicaps);
    (ii) Providing social information related to the disposition of a 
case, including recommendation of alternative resources for treatment; 
and
    (iii) Providing placement services by the court order before and 
after adjudication.
    (4) Coordinating with other community services, including groups, 
agencies, and facilities in the community. Coordination can include, but 
are not limited to:
    (i) Evaluating social conditions that affect community well-being;
    (ii) Treating conditions identified under paragraph (b)(1) of this 
section that are within the competence of social services workers; and
    (iii) Working with other community agencies to identify and help 
clients to use services available for assistance in solving the social 
problems of individuals, families, and children.
    (5) Coordinating with law enforcement and tribal courts, to place 
the victim of an alleged and/or substantiated incident of abuse, neglect 
or exploitation out of the home to assure safety while the allegations 
are being investigated. Social services workers may remove individuals 
in life threatening situations. After a social services assessment, the 
individual must be either returned to the parent(s) or to the home from 
which they were removed or the social services worker must initiate 
other actions as provided by the tribal code; and
    (6) Providing social services in the home, coordinating and making 
referrals to other programs/services, including Child Protection, and/or 
establishing Multi-Disciplinary Teams.
    (b) Must include, where the service population includes IIM account 
holders:
    (1) Conducting, upon the request of an account holder or other 
interested party, a social services assessment to evaluate an adult 
account holder's circumstances and abilities and the extent to which the 
account holder needs assistance in managing his or her financial 
affairs; and
    (2) Managing supervised IIM accounts of children and adults (in 
conjunction with legal guardians), which includes, but is not limited 
to, the following:
    (i) Evaluating the needs of the account holder;
    (ii) Developing, as necessary and as permitted under 25 CFR 115, a 
one-time or an annual distribution plan for funds held in an IIM account 
along with any amendments to the plan for approval by the Bureau;
    (iii) Monitoring the implementation of the approved distribution 
plan to ensure that the funds are expended in accordance with the 
distribution plan;
    (iv) Reviewing the supervised account every 6 months or more often 
as necessary if conditions have changed to warrant a recommendation to 
change the status of the account holder, or to modify the distribution 
plan;
    (v) Reviewing receipts for an account holder's expenses and 
verifying that expenditures of funds from a supervised IIM account were 
made in accordance with the distribution plan approved by the Bureau, 
including any amendments made to the plan; and
    (vi) Petitioning a court of competent jurisdiction for the 
appointment of, or change in, a legal guardian for a client, where 
appropriate.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.404  What information is contained in a social services 
assessment?

    A social services assessment must contain, but is not limited to, 
the following:
    (a) Identifying information about the client (for example, name, 
address, age, gender, social security number, telephone number, 
certificate of Indian blood, education level), family history

[[Page 90]]

and medical history of the account holder;
    (b) Description of the household composition: information on each 
member of the household (e.g., name, age, and gender) and that person's 
relationship to the client;
    (c) The client's current resources and future income (e.g., VA 
benefits, retirement pensions, trust assets, employment income, judgment 
funds, general assistance benefits, unemployment benefits, social 
security income, supplemental security income and other governmental 
agency benefits);
    (d) A discussion of the circumstances which justify special 
services, including ability of the client to handle his or her financial 
affairs and to conduct day-to-day living activities. Factors to be 
considered should include, but are not limited to:
    (1) Age;
    (2) Developmental disability;
    (3) Chronic alcoholism or substance abuse;
    (4) Lack of family assistance or social support systems, or 
abandonment;
    (5) Self-neglect;
    (6) Financial exploitation or abuse;
    (7) Physical exploitation, neglect or abuse;
    (8) Senility; and
    (9) Dementia.
    (e) Documentation supporting the need for assistance (e.g., medical 
reports, police reports, court orders, letters from interested parties, 
prior assessments or evaluations, diagnosis by psychologist/
psychiatrist); and
    (f) Summary of findings and proposed services to meet the identified 
needs of the client.



                       Subpart E_Child Assistance



Sec. 20.500  Who is eligible for Child Assistance?

    A child is eligible for Child Assistance under this subpart if all 
of the following criteria are met:
    (a) The child must meet the requirements in Sec. 20.300.
    (b) The child's legally responsible parent, custodian/guardian, or 
Indian court having jurisdiction must:
    (1) Request assistance under this part in writing;
    (2) State that they are unable to provide necessary care and 
guidance for the child, or to provide for the child's special needs in 
his/her own home; and
    (3) Provide a documented social services assessment from the social 
services worker of whether parent(s), custodian, guardian(s) are able to 
care for their child.
    (c) All income accruing to the child, except income exempted by 
federal statute, must be used to meet the cost of special needs, foster 
home or residential care facility as authorized and arranged by social 
services.

                 How Child Assistance Funds Can Be Used



Sec. 20.501  What services can be paid for with Child Assistance funds?

    The social services program can use Child Assistance funds to pay 
for services as shown in the following table.

------------------------------------------------------------------------
                              Conditions that must     Maximum payment
  Service that can be paid           be met                 level
------------------------------------------------------------------------
(a) Room and board at         There must be no      The state or county
 residential care facilities   other resources       residential care
 licensed by the tribe or      available to pay      rate in the state
 state.                        these costs. See      in which the child
                               Sec.  20.502 for     resides.
                               other conditions
                               that must be met.
------------------------------------------------------------------------
(b) Adoption or guardianship  There must be no      The Bureau's maximum
 subsidies.                    other resources       adoption and
                               available to pay      guardianship
                               for this service.     payment standard.
                               See Sec.  20.503
                               for other
                               conditions that
                               must be met.
------------------------------------------------------------------------
(c) Short-term homemaker      There must be no      As approved by the
 services.                     other resources       Bureau line
                               (such as Medicaid)    officer.
                               available to pay
                               for this service.
                               Services can be
                               purchased for a
                               maximum of 3
                               months. See Sec.
                               20.504 for other
                               conditions that
                               must be met.
------------------------------------------------------------------------

[[Page 91]]

 
(d) Temporary foster care...  See Sec.  20.509     The state or county
                               for conditions that   foster care rate in
                               must be met.          the state in which
                                                     the child resides.
------------------------------------------------------------------------



Sec. 20.502  Can Child Assistance funds be used to place Indian children 
in residential care facilities?

    You, the social service program, can use Child Assistance funds to 
purchase or contract for room and board in licensed residential care 
facilities.
    (a) You can use Child Assistance funds to pay only for room and 
board. You must pay for other services that may be needed, including 
mental health, education, and physical therapy from other sources.
    (b) Before placement the various funding sources must sign an 
agreement that specifies the services each source will pay. The Bureau 
Line Officer must approve this agreement.



Sec. 20.503  When can Child Assistance funds be used for Indian adoption 
or guardianship subsidies?

    You, the social services program, can use Child Assistance funds to 
provide either adoption or guardianship subsidies if all of the 
following are true:
    (a) The child is 17 or younger;
    (b) The child has been in foster care prior to approval of the 
subsidy;
    (c) The social services worker has considered all other available 
resources, attempted permanency planning, and documented in the case 
file that placement was in the best interest of the child; and
    (d) The Bureau Line Officer approves the subsidy before it is 
authorized and redetermines eligibility on a yearly basis.



Sec. 20.504  What short-term homemaker services can Child Assistance 
pay for?

    You, the social services program, can use Child Assistance funds to 
pay for homemaker services as specified in Sec. 20.501 and this 
section. While housekeeping services are covered, homemaker services 
must focus on training household members in such skills as child care 
and home management. Homemaker services are provided for:
    (a) A child who would otherwise need foster care placement or who 
would benefit from supportive (protective) supervision;
    (b) A severely handicapped or special needs child whose care places 
undue stress on the family; or
    (c) A child whose care would benefit from specialized training and 
supportive services provided to family members.



Sec. 20.505  What services are provided jointly with the Child 
Assistance Program?

    The services listed in this section are provided by Services to 
Children, Elderly, and Families under this subpart jointly with the 
Child Assistance Program.
    (a) Social services provided for children in their own home aimed at 
strengthening the family's ability to provide for and nurture their 
child. These supportive services can include:
    (1) Social work case management;
    (2) Counseling for parents and children;
    (3) Group work, day care; and
    (4) Homemaker services, when necessary.
    (b) Protection of Indian children from abuse, neglect or 
exploitation in coordination with law enforcement and courts.
    (c) A written case plan must be established within 30 days of 
placement and reviewed within 60 days of placement or as outlined in 
tribally established standards, when temporary placement outside the 
home is necessary. The case plan must contain a written agreement signed 
among the various funding sources to identify the services that will be 
paid by each source in those instances where the child requires services 
outside the authority of the Child Assistance program.

                               Foster Care



Sec. 20.506  What information is required in the foster care case file?

    At a minimum the following information is required:

[[Page 92]]

    (a) Tribal enrollment verification in accordance with Sec. 20.100;
    (b) A written case plan (established within 30 days of placement), 
which would include a permanency plan detailing the need for and 
expected length of placement;
    (c) Information on each child's health status and school records, 
including medications and immunization records;
    (d) Parental consent(s) for emergency medical care, school, and 
transportation;
    (e) A signed plan for payment, including financial responsibility of 
parents and use of other appropriate resources;
    (f) A copy of the certification/license of the foster home;
    (g) A current photo of each child;
    (h) A copy of the social security card, birth certificate, Medicaid 
card and current court order;
    (i) For a placement beyond 30 days, copy of the action taken or 
authorized by a court of competent jurisdiction that documents the need 
for protection of the child;
    (j) For an involuntary placement, a social services assessment 
completed by a social services worker within 30 days of placement;
    (k) Documentation of a minimum of one visit to the placement setting 
per month by the social services worker with each child; and
    (l) A list of all prior placements, including the names of the 
foster parents and dates of placements.



Sec. 20.507  What requirements must foster care providers meet?

    If a child needs foster care, the social services worker must select 
care that meets the physical, behavioral, and emotional needs of the 
child. Foster care is intended to be short-term. The case plan must show 
that all of the requirements in paragraphs (a) through (c) of this 
section are met:
    (a) All foster homes must be certified or licensed by the tribe or 
other appropriate authority. Foster care placements beyond 30 days must 
be made through a court of competent jurisdiction to ensure that:
    (1) Federal background checks are completed prior to placement as 
required by Public Law 101-630; and
    (2) Training (optional for placements with relatives) is provided to 
the foster family.
    (b) If the child is placed with relatives in an adoption and 
guardian placement, the case file must contain an approved current home 
study.
    (c) An off-reservation foster home, or residential care facility 
under contract must meet the licensing standards of the state in which 
it is located or tribally established certifying/licensing standards.



Sec. 20.508  What must the social services agency do when a child is 
placed in foster care, residential care or guardianship home?

    The social services agency must make efforts to secure child support 
for the child in foster care or residential care through a court of 
competent jurisdiction.



Sec. 20.509  What must the social services worker do when a child is 
placed in foster care or residential care facility?

    When a child is placed in foster care or a residential care facility 
the social services worker must do all of the following:
    (a) Discuss with foster parents or caretakers, the child's special 
needs, including disabilities;
    (b) Provide counseling or referral to available resources;
    (c) Refer any child requiring medical, substance abuse, or 
behavioral (mental) health services to an appropriate health services to 
be assessed and to receive services;
    (d) Ensure that the case plan provides for all necessary costs of 
care (including clothing, incidentals, and personal allowance) in 
accordance with established state standards of payments;
    (e) Develop a foster family agreement signed and dated by the 
parties involved that specifies the roles and responsibilities of the 
biological parents, foster parents, and placing agency; the terms of 
payment of care; and the need for adherence to the established case 
plan;
    (f) Immediately report any occurrences of suspected child abuse or 
neglect in a foster home or residential care facility to law enforcement 
and protective services in accordance with

[[Page 93]]

tribal standards and reporting requirements under Public Law 101-630; 
and
    (g) Complete a yearly assessment of each tribal or state licensed 
foster home or residential care facility evaluating how the home has 
fulfilled its function relative to the needs of the child placed in the 
home.



Sec. 20.510  How is the court involved in child placements?

    The court retains custody of a child in placement and the care and 
supervision must be given to the appropriate social services agency. 
While the court can issue any court order consistent with tribal law, 
the courts do not have the authority to require expenditure of federal 
funds to pay for specifically prescribed or restrictive services or out-
of-home placements of children. Case plans must be reviewed with the 
appropriate court at least every 6 months and a permanency hearing held 
within 12 months after a child enters foster care or residential care, 
or according to established tribal standards. These standards can be 
established in the tribal code and can be in accordance with available 
funding source requirements.



Sec. 20.511  Should permanency plans be developed?

    Permanency planning must be developed for all child placements 
within 6 months after initial placement of the child. Every reasonable 
effort will be made to preserve the family and/or reunify the children 
with the family and relatives when developing permanency plans. However, 
the child's health and safety are the paramount concern.



Sec. 20.512  Can the Bureau/tribal contractors make Indian adoptive 
placements?

    The Bureau is not an authorized adoption agency and staff must not 
arrange adoptive placements. However, long-term permanency planning can 
involve the Bureau social services workers cooperating with tribal 
courts to provide an adoption subsidy. Tribal contractors will provide 
adoption services as authorized by the tribal courts in accordance with 
tribal codes/law.



Sec. 20.513  Should Interstate Compacts be used for the placement 
of children?

    Interstate compact agreements should be used when appropriate for 
foster care, adoption and guardianship to protect the best interests of 
the child and to assure the availability of the funding resources and 
services from the originating placement source.



Sec. 20.514  What assistance can the courts request from social services 
on behalf of children?

    The courts can request the following:
    (a) Investigations of law enforcement reports of child abuse and 
neglect;
    (b) Assessment of the need for out-of-home placement of the child; 
and
    (c) Provision of court-related services following adjudication, such 
as monitoring, foster care, or residential care, or pre/post placement 
services.



Sec. 20.515  What is required for case management?

    Social services workers must document regular contact with children 
and families in accordance with specific program requirements. The 
social services agency is responsible for implementation of quality case 
management; this requires the supervisor's review of case plans every 90 
days.



Sec. 20.516  How are child abuse, neglect or exploitation cases to 
be handled?

    Reported child abuse, neglect or exploitation cases and the 
requirement for background clearances will be handled in accordance with 
the Indian Child Protection and Family Violence Prevention Act of 1990, 
Public Law 101-630, 25 CFR part 63, federal and/or state laws where 
applicable, and tribal codes which protect Indian children and victims 
of domestic violence. This includes developing and maintaining Child 
Protection Teams in accordance to Public Law 101-630 and collection of 
child abuse, neglect and exploitation data according to Public Law 99-
570. Those cases referred by the state will be handled according to the 
Indian Child Welfare Act, Public Law 95-608, and 25 CFR part 23.

[[Page 94]]



                   Subpart F_Administrative Procedures



Sec. 20.600  Who can apply for financial assistance or social services?

    (a) You can apply for financial assistance or social services under 
this part if you:
    (1) Believe that you are eligible to receive benefits; or
    (2) Are applying on behalf of someone who you believe is eligible to 
receive benefits.
    (b) Under paragraph (a) of this section, any of the following may 
apply for benefits on behalf of another person: relatives, interested 
individuals, social services agencies, law enforcement agencies, courts, 
or other persons or agencies.



Sec. 20.601  How can applications be submitted?

    You can apply for financial assistance or social services under this 
part by:
    (a) Completing an application that you can get from your social 
services worker or tribe; or
    (b) Through an interview with a social services worker who will 
complete an application for you based on the oral interview.



Sec. 20.602  How does the Bureau verify eligibility for social services?

    (a) You, the applicant, are the primary source of information used 
to determine eligibility and need. If it is necessary to secure 
information such as medical records from other sources, you must 
authorize the release of information.
    (b) You must immediately report to your social services worker any 
changes in circumstances that may affect your eligibility or the amount 
of financial assistance that you receive.



Sec. 20.603  How is an application approved or denied?

    (a) Each application must be approved if the applicant meets the 
eligibility criteria in this part for the type of assistance requested 
and all recipients will be redetermined for eligibility every 6 months. 
Financial assistance will be made retroactive to the application date.
    (b) An application must be denied if the applicant does not meet the 
eligibility criteria in Sec. Sec. 20.300 through 20.516.
    (c) The social services worker must approve or deny an application 
within 30 days of the application date. The local social services worker 
must issue written notice of the approval or denial of each application 
within 45 days of the application date.
    (d) If for a good reason the social services worker cannot meet the 
deadline in paragraph (c) of this section, he or she must notify the 
applicant in writing of:
    (1) The reasons why the decision cannot be made; and
    (2) The deadline by which the social services worker will send the 
applicant a decision.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.604  How is an applicant or recipient notified that benefits 
or services are denied or changed?

    If the Bureau increases, decreases, suspends, or terminates 
financial assistance, the social services worker must mail or hand 
deliver to the applicant or recipient a written notice of the action. 
The notice must:
    (a) State the action taken, the effective date, and the reason(s) 
for the decision;
    (b) Inform the applicant or recipient of the right to request a 
hearing if dissatisfied with the decision;
    (c) Advise the applicant or recipient of the right to be represented 
by an authorized representative at no expense to the Bureau;
    (d) Include the address of the local Superintendent or his/her 
designated representative to whom the request for a hearing must be 
submitted;
    (e) Advise the applicant or recipient that failure to request a 
hearing within 20 days of the date of the notice will cause the decision 
to become final and not subject to appeal under 25 CFR part 2; and
    (f) Be delivered to the applicant 20 days in advance of the 
effective date of the action.

[[Page 95]]



Sec. 20.605  What happens when an applicant or recipient appeals a 
decision under this subpart?

    If you are an applicant or recipient and appeal a decision made 
under Sec. 20.604, you can continue to receive your assistance while 
your appeal is pending. For this to happen, you must submit your appeal 
by the deadline in Sec. 20.604(e).



Sec. 20.606  How is an incorrect payment adjusted or recovered?

    (a) When an incorrect payment of financial assistance has been made 
to an individual or family, a proper adjustment or recovery is required.
    (b) The proper adjustment or recovery is based upon individual need 
as appropriate to the circumstances that resulted in an incorrect 
payment.
    (c) Before adjustment or recovery, the recipient will be notified of 
the proposal to correct the payment and given an informal opportunity to 
resolve the matter.
    (d) If an informal resolution cannot be attained, the recipient must 
be given a written notice of decision and the procedures of Sec. 20.604 
will apply.
    (e) If a hearing is requested, the hearing will be conducted in 
accordance with the procedures under Sec. Sec. 20.700 through 20.705.



Sec. 20.607  What happens when applicants or recipients knowingly and 
willfully provide false or fraudulent information?

    Applicants or recipients who knowingly and willfully provide false 
or fraudulent information are subject to prosecution under 18 U.S.C. 
Sec. 1001, which carries a fine of not more than $10,000 or 
imprisonment for not more than 5 years, or both. The social services 
worker will prepare a written report detailing the information 
considered to be false and submit the report to the Superintendent or 
his/her designated representative for appropriate investigative action.



                     Subpart G_Hearings and Appeals



Sec. 20.700  Can an applicant or recipient appeal the decision of a 
Bureau official?

    Yes, if you are an applicant or recipient, and are dissatisfied with 
a Bureau decision made under this part, you can request a hearing before 
the Superintendent or his/her designated representative. You must submit 
your request by the deadline in Sec. 20.604. The Superintendent or his/
her designated representative can extend the deadline if you show good 
cause.



Sec. 20.701  Does a recipient receive financial assistance while an 
appeal is pending?

    Yes, if you appeal under this subpart, financial assistance will be 
continued or reinstated to insure there is no break in financial 
assistance until the Superintendent or his/her designated representative 
makes a decision. The Superintendent or his/her designated 
representative can adjust payments or recover overpayments to conform 
with his/her decision.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.702  When is an appeal hearing scheduled?

    The Superintendent or his/her designated representative must set a 
date for the hearing within 10 days of the date of request for a hearing 
and give written notice to the applicant or recipient.



Sec. 20.703  What must the written notice of hearing include?

    The written notice of hearing must include:
    (a) The date, time and location of the hearing;
    (b) A statement of the facts and issues giving rise to the appeal;
    (c) The applicant's or recipient's right to be heard in person, or 
to be represented by an authorized representative at no expense to the 
Bureau;
    (d) The applicant or recipient's right to present both oral and 
written evidence during the hearing;

[[Page 96]]

    (e) The applicant's or recipient's right to confront and cross-
examine witnesses at the hearing;
    (f) The applicant's or recipient's right of one continuance of not 
more than 10 days with respect to the date of hearing; and
    (g) The applicant's or recipient's right to examine and copy, at a 
reasonable time before the hearing, his/her case record as it relates to 
the proposed action being contested.



Sec. 20.704  Who conducts the hearing or appeal of a Bureau decision 
or action and what is the process?

    (a) The Superintendent or his/her designated representative conducts 
the hearing in an informal but orderly manner, records the hearing, and 
provides the applicant or recipient with a transcript of the hearing 
upon request.
    (b) The Superintendent or his/her designated representative must 
render a written decision within 10 days of the completion of the 
hearing. The written decision must include:
    (1) A written statement covering the evidence relied upon and 
reasons for the decision; and
    (2) The applicant's or recipient's right to appeal the 
Superintendent or his/her designated representative's decision pursuant 
to 25 CFR part 2 and request Bureau assistance in preparation of the 
appeal.



Sec. 20.705  Can an applicant or recipient appeal a tribal decision?

    Yes, the applicant or recipient must pursue the appeal process 
applicable to the Public Law 93-638 contract, Public Law 102-477 grant, 
or Public Law 103-413 self-governance annual funding agreement. If no 
appeal process exists, then the applicant or recipient must pursue the 
appeal through the appropriate tribal forum.



PART 23_INDIAN CHILD WELFARE ACT--Table of Contents




               Subpart A_Purpose, Definitions, and Policy

Sec.
23.1 Purpose.
23.2 Definitions.
23.3 Policy.
23.4 Information collection.

 Subpart B_Notice of Involuntary Child Custody Proceedings and Payment 
                  for Appointed Counsel in State Courts

23.11 Notice.
23.12 Designated tribal agent for service of notice.
23.13 Payment for appointed counsel in involuntary Indian child custody 
          proceedings in state courts.

 Subpart C_Grants to Indian Tribes for Title II Indian Child and Family 
                            Service Programs

23.21 Noncompetitive tribal government grants.
23.22 Purpose of tribal government grants.
23.23 Tribal government application contents.

 Subpart D_Grants to Off-Reservation Indian Organizations for Title II 
                Indian Child and Family Service Programs

23.31 Competitive off-reservation grant process.
23.32 Purpose of off-reservation grants.
23.33 Competitive off-reservation application contents and application 
          selection criteria.
23.34 Review and decision on off-reservation applications by Area 
          Director.
23.35 Deadline for Central Office action.

   Subpart E_General and Uniform Grant Administration Provisions and 
                              Requirements

23.41 Uniform grant administration provisions, requirements and 
          applicability.
23.42 Technical assistance.
23.43 Authority for grant approval and execution.
23.44 Grant administration and monitoring.
23.45 Subgrants.
23.46 Financial management, internal and external controls and other 
          assurances.
23.47 Reports and availability of information to Indians.
23.48 Matching shares and agreements.
23.49 Fair and uniform provision of services.
23.50 Service eligibility.
23.51 Grant carry-over authority.
23.52 Grant suspension.
23.53 Cancellation.

                            Subpart F_Appeals

23.61 Appeals from decision or action by Agency Superintendent, Area 
          Director or Grants Officer.
23.62 Appeals from decision or action by Area Director under subpart D.
23.63 Appeals from inaction of official.

[[Page 97]]

                   Subpart G_Administrative Provisions

23.71 Recordkeeping and information availability.

                  Subpart H_Assistance to State Courts

23.81 Assistance in identifying witnesses.
23.82 Assistance in identifying language interpreters.
23.83 Assistance in locating biological parents of Indian child after 
          termination of adoption.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.

    Source: 59 FR 2256, Jan. 13, 1994, unless otherwise noted.



               Subpart A_Purpose, Definitions, and Policy



Sec. 23.1  Purpose.

    The purpose of the regulations in this part is to govern the 
provision of funding for, and the administration of Indian child and 
family service programs as authorized by the Indian Child Welfare Act of 
1978 (Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 2, 9, 1901-1952).



Sec. 23.2  Definitions.

    Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92 
Stat. 3069, 25 U.S.C. 1901 et seq.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
the Department of the Interior.
    Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, 
the Department of the Interior.
    Child custody proceeding includes:
    (1) Foster care placement, which shall mean any action removing an 
Indian child from his or her parent or Indian custodian for temporary 
placement in a foster home or institution or the home of a guardian or 
conservator where the parent or Indian custodian cannot have the child 
returned upon demand, but where parental rights have not been 
terminated;
    (2) Termination of parental rights, which shall mean any action 
resulting in the termination of the parent-child relationship;
    (3) Preadoptive placement, which shall mean the temporary placement 
of an Indian child in a foster home or institution after the termination 
of parental rights, but prior to or in lieu of adoptive placement;
    (4) Adoptive placement, which shall mean the permanent placement of 
an Indian child for adoption, including any action resulting in a final 
decree of adoption; and
    (5) Other tribal placements made in accordance with the placement 
preferences of the Act, including the temporary or permanent placement 
of an Indian child in accordance with tribal children's codes and local 
tribal custom or tradition;
    (6) The above terms shall not include a placement based upon an act 
which, if committed by an adult, would be deemed a crime in the 
jurisdiction where the act occurred or upon an award, in a divorce 
proceeding, of custody to one of the parents.
    Consortium means an association or partnership of two or more 
eligible applicants who enter into an agreement to administer a grant 
program and to provide services under the grant to Indian residents in a 
specific geographical area when it is administratively feasible to 
provide an adequate level of services within the area.
    Extended family member shall be as defined by the law or custom of 
the Indian child's tribe or, in the absence of such law or custom, shall 
be a person who has reached the age of 18 and who is the Indian child's 
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-
in-law, niece or nephew, first or second cousin, or stepparent.
    Grant means a written agreement between the BIA and the governing 
body of an Indian tribe or Indian organization wherein the BIA provides 
funds to the grantee to plan, conduct or administer specific programs, 
services, or activities and where the administrative and programmatic 
provisions are specifically delineated.
    Grantee means the tribal governing body of an Indian tribe or Board 
of Directors of an Indian organization responsible for grant 
administration.
    Grants officer means an officially designated officer who 
administers ICWA grants awarded by the Bureau of Indian Affairs, the 
Department of the Interior.
    Indian means any person who is a member of an Indian tribe, or who 
is an

[[Page 98]]

Alaska Native and a member of a Regional Corporation as defined in 
section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606.
    Indian child means any unmarried person who is under age 18 and is 
either a member of an Indian tribe, or is eligible for membership in an 
Indian tribe and is the biological child of a member of an Indian tribe.
    Indian child's tribe means the Indian tribe in which an Indian child 
is a member or is eligible for membership or, in the case of an Indian 
child who is a member of or is eligible for membership in more than one 
tribe, the Indian tribe with which the Indian child has the more 
significant contacts, to be determined in accordance with the BIA's 
``Guidelines for State Courts--Indian Child Custody Proceedings.''
    Indian custodian means any Indian person who has legal custody of an 
Indian child under tribal law or custom or under state law or to whom 
temporary physical care, custody and control has been transferred by the 
parent of such child.
    Indian organization, solely for purposes of eligibility for grants 
under subpart D of this part, means any legally established group, 
association, partnership, corporation, or other legal entity which is 
owned or controlled by Indians, or a majority (51 percent or more) of 
whose members are Indians.
    Indian preference means preference and opportunities for employment 
and training provided to Indians in the administration of grants in 
accordance with section 7 (b) of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians federally recognized as eligible 
for the services provided to Indians by the Secretary because of their 
status as Indians, including any Alaska Native village as defined in 
section 3 (c) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602 
(c).
    Off-reservation ICWA program means an ICWA program administered in 
accordance with 25 U.S.C. 1932 by an off-reservation Indian 
organization.
    Parent means the biological parent or parents of an Indian child or 
any Indian person who has lawfully adopted an Indian child, including 
adoptions under tribal law or custom. The term does not include the 
unwed father where paternity has not been acknowledged or established.
    Reservation means Indian country as defined in 18 U.S.C. 1151 and 
any lands not covered under such section, title to which is either held 
by the United States in trust for the benefit of any Indian tribe or 
individual or held by any Indian tribe or individual subject to a 
restriction by the United States against alienation.
    Secretary means the Secretary of the Interior.
    Service areas solely for newly recognized or restored Indian tribes 
without established reservations means those service areas 
congressionally established by Federal law to be the equivalent of a 
reservation for the purpose of determining the eligibility of a newly 
recognized or restored Indian tribe and its members for all Federal 
services and benefits.
    State court means any agent or agency of a state, including the 
District of Columbia or any territory or possession of the United 
States, or any political subdivision empowered by law to terminate 
parental rights or to make foster care placements, preadoptive 
placements, or adoptive placements.
    Subgrant means a secondary grant that undertakes part of the 
obligations of the primary grant, and assumes the legal and financial 
responsibility for the funds awarded and for the performance of the 
grant-supported activity.
    Technical assistance means the provision of oral, written, or other 
relevant information and assistance to prospective grant applicants in 
the development of their grant proposals. Technical assistance may 
include a preliminary review of an application to assist the applicant 
in identifying the strengths and weaknesses of the proposal, ongoing 
program planning, design and evaluation, and such other program-specific 
assistance as is necessary for ongoing grant administration and 
management.
    Title II means title II of Public Law 95-608, the Indian Child 
Welfare Act of 1978, which authorizes the Secretary to make grants to 
Indian tribes and off-

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reservation Indian organizations for the establishment and operation of 
Indian child and family service programs.
    Tribal Court means a court with jurisdiction over child custody 
proceedings and which is either a Court of Indian Offenses, a court 
established and operated under the code or custom of an Indian tribe, or 
any other administrative body of a tribe which is vested with authority 
over child custody proceedings.
    Tribal government means the federally recognized governing body of 
an Indian tribe.
    Value means face, par, or market value, or cost price, either 
wholesale or retail, whichever is greater.



Sec. 23.3  Policy.

    In enacting the Indian Child Welfare Act of 1978, Pub. L. 95-608, 
the Congress has declared that it is the policy of this Nation to 
protect the best interests of Indian children and to promote the 
stability and security of Indian tribes and Indian families by the 
establishment of minimum Federal standards to prevent the arbitrary 
removal of Indian children from their families and tribes and to ensure 
that measures which prevent the breakup of Indian families are followed 
in child custody proceedings (25 U.S.C. 1902). Indian child and family 
service programs receiving title II funds and operated by federally 
recognized Indian tribes and off-reservation Indian organizations shall 
reflect the unique values of Indian culture and promote the stability 
and security of Indian children, Indian families and Indian communities. 
It is the policy of the Bureau of Indian Affairs to emphasize and 
facilitate the comprehensive design, development and implementation of 
Indian child and family service programs in coordination with other 
Federal, state, local, and tribal programs which strengthen and preserve 
Indian families and Indian tribes.



Sec. 23.4  Information collection.

    (a) The information collection requirements contained in Sec. 23.13 
of this part have been approved by the Office of Management and Budget 
(OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1076-
0111.
    (1) This information will be used to determine eligibility for 
payment of legal fees for indigent Indian parents and Indian custodians, 
involved in involuntary Indian child custody proceedings in state 
courts, who are not eligible for legal services through other 
mechanisms. Response to this request is required to obtain a benefit.
    (2) Public reporting for this information collection is estimated to 
average 10 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any aspect of this information collection should be 
mailed or hand-delivered to the Bureau of Indian Affairs, Information 
Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., 
Washington, DC 20240; and the Office of Information and Regulatory 
Affairs Paperwork Reduction Project--1076-0111, Office of Management and 
Budget, Washington, DC 20503.
    (b) The information collection requirements contained in Sec. Sec. 
23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the Office 
of Management and Budget under 44 U.S.C. 3501 et seq. and assigned 
clearance number 1076-0131. The information collection requirements 
under Sec. Sec. 23.21 and 23.31 are collected in the form of ICWA grant 
applications from Indian tribes and off-reservation Indian 
organizations. A response to this request is required to obtain grant 
funds. The information collection requirements under Sec. 23.46 are 
collected in compliance with applicable OMB circulars on financial 
management, internal and external controls and other fiscal assurances 
in accordance with existing Federal grant administration and reporting 
requirements. The grantee information collection requirements under 
Sec. 23.47 are collected in the form of quarterly and annual program 
performance narrative reports and statistical data as required by the 
grant award document. Pursuant to 25 U.S.C. 1951, the information 
collection requirement under Sec. 23.71 is collected from state courts 
entering final adoption decrees for any Indian child and is provided to 
and maintained by the Secretary.

[[Page 100]]

    (1) Public reporting for the information collection at Sec. Sec. 
23.21 and 23.31 is estimated to average 32 hours per response, including 
the time for reviewing the grant application instructions, gathering the 
necessary information and data, and completing the grant application. 
Public reporting for the information collection at Sec. Sec. 23.46 and 
23.47 is estimated to average a combined total of 16 annual hours per 
grantee, including the time for gathering the necessary information and 
data, and completing the required forms and reports. Public reporting 
for the information collection at Sec. 23.71 is estimated to average 4 
hours per response, including the time for obtaining and preparing the 
final adoption decree for transmittal to the Secretary.
    (2) Direct comments regarding any of these burden estimates or any 
aspect of these information collection requirements should be mailed or 
hand-delivered to the Bureau of Indian Affairs, Information Collection 
Clearance Officer, room 336-SIB, 1849 C Street, NW., Washington, DC, 
20240; and the Office of Information and Regulatory Affairs Paperwork 
Reduction Project--1076-0131, Office of Management and Budget, 
Washington, DC 20503.



 Subpart B_Notice of Involuntary Child Custody Proceedings and Payment 
                  for Appointed Counsel in State Courts



Sec. 23.11  Notice.

    (a) In any involuntary proceeding in a state court where the court 
knows or has reason to know that an Indian child is involved, and where 
the identity and location of the child's Indian parents or custodians or 
tribe is known, the party seeking the foster care placement of, or 
termination of parental rights to, an Indian child shall directly notify 
the Indian parents, Indian custodians, and the child's tribe by 
certified mail with return receipt requested, of the pending proceedings 
and of their right of intervention. Notice shall include requisite 
information identified at paragraphs (d)(1) through (4) and (e)(1) 
through (6) of this section, consistent with the confidentiality 
requirement in paragraph (e)(7) of this section. Copies of these notices 
shall be sent to the Secretary and the appropriate Area Director listed 
in paragraphs (c)(1) through (12) of this section.
    (b) If the identity or location of the Indian parents, Indian 
custodians or the child's tribe cannot be determined, notice of the 
pendency of any involuntary child custody proceeding involving an Indian 
child in a state court shall be sent by certified mail with return 
receipt requested to the appropriate Area Director listed in paragraphs 
(c)(1) through (12) of this section. In order to establish tribal 
identity, it is necessary to provide as much information as is known on 
the Indian child's direct lineal ancestors including, but not limited 
to, the information delineated at paragraph (d)(1) through (4) of this 
section.
    (c)(1) For proceedings in Alabama, Connecticut, Delaware, District 
of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, 
Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North 
Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, 
Vermont, Virginia, West Virginia or any territory or possession of the 
United States, notices shall be sent to the following address: Eastern 
Area Director, Bureau of Indian Affairs, 3701 N. Fairfax Drive, Suite 
260, Arlington, Virginia 22201.
    (2) For proceedings in Illinois, Indiana, Iowa, Michigan, Minnesota, 
Ohio, or Wisconsin, notices shall be sent to the following address: 
Minneapolis Area Director, Bureau of Indian Affairs, 331 Second Avenue 
South, Minneapolis, Minnesota 55401-2241.
    (3) For proceedings in Nebraska, North Dakota, or South Dakota, 
notices shall be sent to the following address: Aberdeen Area Director, 
Bureau of Indian Affairs, 115 Fourth Avenue, SE, Aberdeen, South Dakota 
57401.
    (4) For proceedings in Kansas, Texas (except for notices to the 
Ysleta del Sur Pueblo of El Paso County, Texas), and the western 
Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo, Canadian, 
Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, 
Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, 
Logan, Major, Noble, Oklahoma, Pawnee, Payne,

[[Page 101]]

Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods and Woodward, 
notices shall be sent to the following address: Anadarko Area Director, 
Bureau of Indian Affairs, P.O. Box 368, Anadarko, Oklahoma 73005. 
Notices to the Ysleta del Sur Pueblo of El Paso County, Texas shall be 
sent to the Albuquerque Area Director at the address listed in paragraph 
(c)(6) of this section.
    (5) For proceedings in Wyoming or Montana (except for notices to the 
Confederated Salish & Kootenai Tribes of the Flathead Reservation, 
Montana), notices shall be sent to the following address: Billings Area 
Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings, 
Montana 59101. Notices to the Confederated Salish & Kootenai Tribes of 
the Flathead Reservation, Montana, shall be sent to the Portland Area 
Director at the address listed in paragraph (c)(11) of this section.
    (6) For proceedings in the Texas counties of El Paso and Hudspeth 
and proceedings in Colorado or New Mexico (exclusive of notices to the 
Navajo Tribe from the New Mexico counties listed in paragraph (c)(9) of 
this section), notices shall be sent to the following address: 
Albuquerque Area Director, Bureau of Indian Affairs, 615 First Street, 
P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the Navajo 
Tribe shall be sent to the Navajo Area Director at the address listed in 
paragraph (c)(9) of this section.
    (7) For proceedings in Alaska (except for notices to the Metlakatla 
Indian Community, Alaska), notices shall be sent to the following 
address: Juneau Area Director, Bureau of Indian Affairs, 709 West 9th 
Street, Juneau, Alaska 99802-1219. Notices to the Metlakatla Indian 
Community of the Annette Islands Reserve, Alaska, shall be sent to the 
Portland Area Director at the address listed in paragraph (c)(11) of 
this section.
    (8) For proceedings in Arkansas, Missouri, and the eastern Oklahoma 
counties of Adair, Atoka, Bryan, Carter, Cherokee, Craig, Creek, 
Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes, Jefferson, 
Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, McIntosh, 
Murray, Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg, 
Pontotoc, Pushmataha, Marshall, Rogers, Seminole, Sequoyah, Wagoner, 
Washington, Stephens, and Tulsa, notices shall be sent to the following 
address: Muskogee Area Director, Bureau of Indian Affairs, 101 North 
Fifth Street, Muskogee, Oklahoma 74401.
    (9) For proceedings in the Arizona counties of Apache, Coconino 
(except for notices to the Hopi and San Juan Paiute Tribes) and Navajo 
(except for notices to the Hopi Tribe); the New Mexico counties of 
McKinley (except for notices to the Zuni Tribe), San Juan, and Socorro; 
and the Utah county of San Juan, notices shall be sent to the following 
address: Navajo Area Director, Bureau of Indian Affairs, P.O. Box 1060, 
Gallup, New Mexico 87301. Notices to the Hopi and San Juan Paiute Tribes 
shall be sent to the Phoenix Area Director at the address listed in 
paragraph (c)(10) of this section. Notices to the Zuni Tribe shall be 
sent to the Albuquerque Area Director at the address listed in paragraph 
(c)(6) of this section.
    (10) For proceedings in Arizona (exclusive of notices to the Navajo 
Tribe from those counties listed in paragraph (c)(9) of this section), 
Nevada or Utah (exclusive of San Juan county), notices shall be sent to 
the following address: Phoenix Area Director, Bureau of Indian Affairs, 
1 North First Street, P.O. Box 10, Phoenix, Arizona 85001.
    (11) For proceedings in Idaho, Oregon or Washington, notices shall 
be sent to the following address: Portland Area Director, Bureau of 
Indian Affairs, 911 NE 11th Avenue, Portland, Oregon 97232. All notices 
to the Confederated Salish & Kootenai Tribes of the Flathead 
Reservation, located in the Montana counties of Flathead, Lake, 
Missoula, and Sanders, shall also be sent to the Portland Area Director.
    (12) For proceedings in California or Hawaii, notices shall be sent 
to the following address: Sacramento Area Director, Bureau of Indian 
Affairs, Federal Office Building, 2800 Cottage Way, Sacramento, 
California 95825.
    (d) Notice to the appropriate Area Director pursuant to paragraph 
(b) of this section may be sent by certified mail with return receipt 
requested or by

[[Page 102]]

personal service and shall include the following information, if known:
    (1) Name of the Indian child, the child's birthdate and birthplace.
    (2) Name of Indian tribe(s) in which the child is enrolled or may be 
eligible for enrollment.
    (3) All names known, and current and former addresses of the Indian 
child's biological mother, biological father, maternal and paternal 
grandparents and great grandparents or Indian custodians, including 
maiden, married and former names or aliases; birthdates; places of birth 
and death; tribal enrollment numbers, and/or other identifying 
information.
    (4) A copy of the petition, complaint or other document by which the 
proceeding was initiated.
    (e) In addition, notice provided to the appropriate Area Director 
pursuant to paragraph (b) of this section shall include the following:
    (1) A statement of the absolute right of the biological Indian 
parents, the child's Indian custodians and the child's tribe to 
intervene in the proceedings.
    (2) A statement that if the Indian parent(s) or Indian custodian(s) 
is (are) unable to afford counsel, and where a state court determines 
indigency, counsel will be appointed to represent the Indian parent or 
Indian custodian where authorized by state law.
    (3) A statement of the right of the Indian parents, Indian 
custodians and child's tribe to be granted, upon request, up to 20 
additional days to prepare for the proceedings.
    (4) The location, mailing address, and telephone number of the court 
and all parties notified pursuant to this section.
    (5) A statement of the right of the Indian parents, Indian 
custodians and the child's tribe to petition the court for transfer of 
the proceeding to the child's tribal court pursuant to 25 U.S.C. 1911, 
absent objection by either parent: Provided, that such transfer shall be 
subject to declination by the tribal court of said tribe.
    (6) A statement of the potential legal consequences of the 
proceedings on the future custodial and parental rights of the Indian 
parents or Indian custodians.
    (7) A statement that, since child custody proceedings are conducted 
on a confidential basis, all parties notified shall keep confidential 
the information contained in the notice concerning the particular 
proceeding. The notices shall not be handled by anyone not needing the 
information contained in the notices in order to exercise the tribe's 
rights under the Act.
    (f) Upon receipt of the notice, the Secretary or his/her designee 
shall make reasonable documented efforts to locate and notify the 
child's tribe and the child's Indian parents or Indian custodians. The 
Secretary or his/her designee shall have 15 days, after receipt of the 
notice from the persons initiating the proceedings, to notify the 
child's tribe and Indian parents or Indian custodians and send a copy of 
the notice to the court. If within the 15-day time period the Secretary 
or his/her designee is unable to verify that the child meets the 
criteria of an Indian child as defined in 25 U.S.C. 1903, or is unable 
to locate the Indian parents or Indian custodians, the Secretary or his/
her designee shall so inform the court prior to initiation of the 
proceedings and state how much more time, if any, will be needed to 
complete the search. The Secretary or his/her designee shall complete 
all research efforts, even if those efforts cannot be completed before 
the child custody proceeding begins.
    (g) Upon request from a party to an Indian child custody proceeding, 
the Secretary or his/her designee shall make a reasonable attempt to 
identify and locate the child's tribe, Indian parents or Indian 
custodians to assist the party seeking the information.



Sec. 23.12  Designated tribal agent for service of notice.

    Any Indian tribe entitled to notice pursuant to 25 U.S.C. 1912 may 
designate by resolution, or by such other form as the tribe's 
constitution or current practice requires, an agent for service of 
notice other than the tribal chairman and send a copy of the designation 
to the Secretary or his/her designee. The Secretary or his/her designee 
shall update and publish as necessary the names and addresses of the

[[Page 103]]

designated agents in the Federal Register. A current listing of such 
agents shall be available through the area offices.



Sec. 23.13  Payment for appointed counsel in involuntary Indian child 
custody proceedings in state courts.

    (a) When a state court appoints counsel for an indigent Indian party 
in an involuntary Indian child custody proceeding for which the 
appointment of counsel is not authorized under state law, the court 
shall send written notice of the appointment to the BIA Area Director 
designated for that state in Sec. 23.11. The notice shall include the 
following:
    (1) Name, address, and telephone number of attorney who has been 
appointed.
    (2) Name and address of client for whom counsel is appointed.
    (3) Relationship of client to child.
    (4) Name of Indian child's tribe.
    (5) Copy of the petition or complaint.
    (6) Certification by the court that state law makes no provision for 
appointment of counsel in such proceedings.
    (7) Certification by the court that the Indian client is indigent.
    (b) The Area Director shall certify that the client is eligible to 
have his or her appointed counsel compensated by the BIA unless:
    (1) The litigation does not involve a child custody proceeding as 
defined in 25 U.S.C. 1903 (1);
    (2) The child who is the subject of the litigation is not an Indian 
child as defined in 25 U.S.C. 1903 (4);
    (3) The client is neither the Indian child who is the subject of the 
litigation, the Indian child's parent as defined in 25 U.S.C. 1903 (9), 
nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);
    (4) State law provides for appointment of counsel in such 
proceedings;
    (5) The notice to the Area Director of appointment of counsel is 
incomplete; or
    (6) Funds are not available for the particular fiscal year.
    (c) No later than 10 days after receipt of the notice of appointment 
of counsel, the Area Director shall notify the court, the client, and 
the attorney in writing whether the client has been certified as 
eligible to have his or her attorney fees and expenses paid by the BIA. 
If certification is denied, the notice shall include written reasons for 
that decision, together with a statement that complies with 25 CFR 2.7 
and that informs the applicant that the decision may be appealed to the 
Assistant Secretary. The Assistant Secretary shall consider appeals 
under this subsection in accordance with 25 CFR 2.20 (c) through (e). 
Appeal procedures shall be as set out in part 2 of this chapter.
    (d) When determining attorney fees and expenses, the court shall:
    (1) Determine the amount of payment due appointed counsel by the 
same procedures and criteria it uses in determining the fees and 
expenses to be paid appointed counsel in state juvenile delinquency 
proceedings; and
    (2) Submit approved vouchers to the Area Director who certified 
eligibility for BIA payment, together with the court's certification 
that the amount requested is reasonable under the state standards 
considering the work actually performed in light of criteria that apply 
in determining fees and expenses for appointed counsel in state juvenile 
delinquency proceedings.
    (e) The Area Director shall authorize the payment of attorney fees 
and expenses in the amount requested in the voucher approved by the 
court unless:
    (1) The amount of payment due the state-appointed counsel is 
inconsistent with the fees and expenses specified in Sec. 23.13 (d)(1); 
or
    (2) The client has not been certified previously as eligible under 
paragraph (c) of this section; or
    (3) The voucher is submitted later than 90 days after completion of 
the legal action involving a client certified as eligible for payment of 
legal fees under paragraph (b) of this section.
    (f) No later than 15 days after receipt of a payment voucher, the 
Area Director shall send written notice to the court, the client, and 
the attorney stating the amount of payment, if any, that has been 
authorized. If the payment has been denied, or the amount authorized is 
less than the amount requested in the voucher approved by the

[[Page 104]]

court, the notice shall include a written statement of the reasons for 
the decision together with a statement that complies with 25 CFR 2.7 and 
that informs the client that the decision may be appealed to the 
Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 
CFR 4.310 through 4.318 and 43 CFR 4.330 through 4.340.
    (g) Failure of the Area Director to meet the deadline specified in 
paragraphs (c) and (f) of this section may be treated as a denial for 
purposes of appeal under paragraph (f) of this section.
    (h) Payment for appointed counsel does not extend to Indian tribes 
involved in state court child custody proceedings or to Indian families 
involved in Indian child custody proceedings in tribal courts.



 Subpart C_Grants to Indian Tribes for Title II Indian Child and Family 
                            Service Programs



Sec. 23.21  Noncompetitive tribal government grants.

    (a) Grant application information and technical assistance. 
Information on grant application procedures and related information may 
be obtained from the appropriate Agency Superintendent or Area Director. 
Pre-award and ongoing technical assistance to tribal governments shall 
be provided in accordance with Sec. 23.42 of this part.
    (b) Eligibility requirements for tribal governments. The tribal 
government(s) of any Indian tribe or consortium of tribes may submit a 
properly documented application for a grant to the appropriate Agency 
Superintendent or Area Director. A tribe may neither submit more than 
one application for a grant nor be the beneficiary of more than one 
grant under this subpart.
    (1) Through the publication of a Federal Register announcement at 
the outset of the implementation of the noncompetitive grant award 
process during which tribal applications will be solicited, the 
Assistant Secretary will notify eligible tribal applicants under this 
subpart of the amount of core funds available for their ICWA program. 
The funding levels will be based on the service area population to be 
served. Upon the receipt of this notice from the Agency Superintendent 
or appropriate Area Director, tribal applicants shall submit a completed 
ICWA application no later than 60 days after the receipt of this notice.
    (2) A grant to be awarded under this subpart shall be limited to the 
tribal governing body(ies) of the tribe(s) to be served by the grant.
    (3) For purposes of eligibility for newly recognized or restored 
Indian tribes without established reservations, such tribes shall be 
deemed eligible to apply for grants under this subpart to provide ICWA 
services within those service areas legislatively identified for such 
tribes.
    (4) A grantee under this subpart may make a subgrant to another 
Indian tribe or an Indian organization subject to the provisions of 
Sec. 23.45.
    (c) Revision or amendment of grants. A grantee under this subpart 
may submit a written request and justification for a post-award grant 
modification covering material changes to the terms and conditions of 
the grant, subject to the approval of the grants officer. The request 
shall include a narrative description of any significant additions, 
deletions, or changes to the approved program activities or budget in 
the form of a grant amendment proposal.
    (d) Continued annual funding of an ICWA grant under this subpart 
shall be contingent upon the fulfillment of the requirements delineated 
at Sec. 23.23(c).
    (e) Monitoring and program reporting requirements for grantees under 
this subpart are delineated at Sec. Sec. 23.44 and 23.47.



Sec. 23.22  Purpose of tribal government grants.

    (a) Grants awarded under this subpart are for the establishment and 
operation of tribally designed Indian child and family service programs. 
The objective of every Indian child and family service program shall be 
to prevent the breakup of Indian families and to ensure that the 
permanent removal of an Indian child from the custody of his or her 
Indian parent or Indian custodian shall be a last resort. Such child and 
family service programs may include, but need not be limited to:
    (1) A system for licensing or otherwise regulating Indian foster and 
adoptive homes, such as establishing tribal

[[Page 105]]

standards for approval of on-reservation foster or adoptive homes;
    (2) The operation and maintenance of facilities for counseling and 
treatment of Indian families and for the temporary custody of Indian 
children with the goal of strengthening Indian families and preventing 
parent-child separations;
    (3) Family assistance, including homemaker and home counselors, 
protective day care and afterschool care, recreational activities, 
respite care, and employment support services with the goal of 
strengthening Indian families and contributing to family stability;
    (4) Home improvement programs with the primary emphasis on 
preventing the removal of children due to unsafe home environments by 
making homes safer, but not to make extensive structural home 
improvements;
    (5) The employment of professional and other trained personnel to 
assist the tribal court in the disposition of domestic relations and 
child welfare matters, but not to establish tribal court systems;
    (6) Education and training of Indians, including tribal court judges 
and staff, in skills relating to child and family assistance and service 
programs;
    (7) A subsidy program under which Indian adoptive children not 
eligible for state or BIA subsidy programs may be provided support 
comparable to that for which they could be eligible as foster children, 
taking into account the appropriate state standards of support for 
maintenance and medical needs;
    (8) Guidance, legal representation and advice to Indian families 
involved in tribal, state, or Federal child custody proceedings; and
    (9) Other programs designed to meet the intent and purposes of the 
Act.
    (b) Grants may be provided to tribes in the preparation and 
implementation of child welfare codes within their jurisdiction or 
pursuant to a tribal-state agreement.
    (c) Grantees under this subpart may enhance their capabilities by 
utilizing ICWA funds as non-Federal matching shares in connection with 
funds provided under titles IV-B, IV-E and XX of the Social Security Act 
or other Federal programs which contribute to and promote the intent and 
purposes of the Act through the provision of comprehensive child and 
family services in coordination with other tribal, Federal, state, and 
local resources available for the same purpose.
    (d) Program income resulting from the operation of programs under 
this subpart, such as day care operations, may be retained and used for 
purposes similar to those for which the grant was awarded.



Sec. 23.23  Tribal government application contents.

    (a) The appropriate Area Director shall, subject to the tribe's 
fulfillment of the mandatory application requirements and the 
availability of appropriated funds, make a grant to the tribal governing 
body of a tribe or consortium of tribes eligible to apply for a grant 
under this subpart.
    (b) The following mandatory tribal application requirements must be 
submitted to the appropriate Agency Superintendent or Area Director in 
accordance with the timeframe established in Sec. 23.21 (b) of this 
subpart:
    (1) A current tribal resolution requesting a grant by the Indian 
tribe(s) to be served by the grant. If an applicant is applying for a 
grant benefiting more than one tribe (consortium), an authorizing 
resolution from each tribal government to be served must be included. 
The request must be in the form of a current tribal resolution by the 
tribal governing body and shall include the following information:
    (i) The official name of tribe(s) applying for the grant and who 
will directly benefit from or receive services from the grant;
    (ii) The proposed beginning and ending dates of the grant;
    (iii) A provision stating that the resolution will remain in effect 
for the duration of the program or until the resolution expires or is 
rescinded; and
    (iv) The signature of the authorized representative of the tribal 
government and the date thereof.
    (2) A completed Application for Federal Assistance form, SF-424.
    (3) A narrative needs assessment of the social problems or issues 
affecting the resident Indian population to be served; the geographic 
area(s) to be

[[Page 106]]

served; and estimated number of resident Indian families and/or persons 
to receive benefits or services from the program.
    (4) A comprehensive developmental multi-year plan in narrative form 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems or 
issues. At a minimum, the plan must include:
    (i) The program goals and objectives, stated in measurable terms, to 
be achieved through the grant;
    (ii) A narrative description of how Indian families and communities 
will benefit from the program; and
    (iii) The methodology, including culturally defined approaches, and 
procedures by which the tribe(s) will accomplish the identified goals 
and objectives.
    (5) An internal monitoring system to measure progress and 
accomplishments, and to assure that the quality and quantity of actual 
performance conforms to the requirements of the grant.
    (6) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services.
    (i) The plan must include proposed key personnel; their 
qualifications, training or experience relevant to the services to be 
provided; responsibilities; Indian preference criteria for employment; 
and position descriptions.
    (ii) In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), 
title IV, the Indian Child Protection and Family Violence Prevention 
Act, grantees shall conduct character and background investigations of 
those personnel identified in that statute. Grantees must initiate 
character and background investigations of said personnel prior to their 
actual employment, and complete the investigations in a timely manner.
    (7) A program budget and budget narrative justification submitted on 
an annual basis for the amount of the award and supported by the 
proposed plan, appropriate program services and activities for the 
applicable grant year.
    (8) Identification of any consultants and/or subgrantees the 
applicant proposes to employ; a description of the consultant and/or 
subgrantee services to be rendered; the qualifications and experience in 
performing the identified services; and the basis for the cost and 
amount to be paid for such services.
    (9) A certification by a licensed accountant that the bookkeeping 
and accounting procedures which the tribe(s) uses or intends to use meet 
existing Federal standards for grant management and administration 
specified at Sec. 23.46.
    (10) A system for managing property and recordkeeping which complies 
with subpart D of 43 CFR part 2 implementing the Privacy Act (5 U.S.C. 
552a) and with existing Federal requirements for grants at 25 CFR 276.5 
and 276.11, including the maintenance and safeguarding of direct service 
case records on families and/or individuals served by the grant.
    (11) A listing of equipment, facilities, and buildings necessary to 
carry out the grant program. Liability insurance coverage for buildings 
and their contents is recommended for grantees under this subpart.
    (12) Pursuant to the Drug-Free Workplace Act of 1988, tribal 
programs shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory requirement for Federal grant recipients.
    (c) Continued annual funding of an ICWA program under this subpart 
shall be contingent upon the existing grant program receiving a 
satisfactory program evaluation from the area social services office for 
the previous year of operation. A copy of this evaluation must be 
submitted together with an annual budget and budget narrative 
justification in accordance with paragraph (b)(7) of this section. 
Minimum standards for receiving a satisfactory evaluation shall include:
    (1) The timely submission of all fiscal and programmatic reports;
    (2) A narrative program report indicating work accomplished in 
accordance with the applicant's approved multi-year plan and, if 
applicable, a description of any modification in programs or activities 
to be funded in the next fiscal year; and
    (3) The implementation of mutually determined corrective action 
measures, if applicable.

[[Page 107]]



 Subpart D_Grants to Off-Reservation Indian Organizations for Title II 
                Indian Child and Family Service Programs



Sec. 23.31  Competitive off-reservation grant process.

    (a) Grant application procedures and related information may be 
obtained from the Area Director designated at Sec. 23.11 for processing 
ICWA notices for the state in which the applicant is located. Pre-award 
and ongoing technical assistance of off-reservation Indian organization 
grantees shall be provided in accordance with Sec. 23.42.
    (b) Prior to the beginning of or during the applicable year(s) in 
which grants for off-reservation programs will be awarded competitively, 
the Assistant Secretary--Indian Affairs shall publish in the Federal 
Register an announcement of the grant application process for the 
year(s), including program priorities or special considerations (if 
any), applicant eligibility criteria, the required application contents, 
the amount of available funding and evaluation criteria for off-
reservation programs.
    (c) Based on the announcement described in paragraph (b) of this 
section, an off-reservation applicant shall prepare a multi-year 
developmental application in accordance with Sec. 23.33 of this 
subpart. To be considered in the area competitive review and scoring 
process, a complete application must be received by the deadline 
announced in the Federal Register by the Area Director designated at 
Sec. 23.11 for processing ICWA notices for the state in which the 
applicant is located.
    (d) Eligibility requirements for off-reservation Indian 
organizations. The Secretary or his/her designee shall, contingent upon 
the availability of funds, make a multi-year grant under this subpart 
for an off-reservation program when officially requested by a resolution 
of the board of directors of the Indian organization applicant, upon the 
applicant's fulfillment of the mandatory application requirements and 
upon the applicant's successful competition pursuant to Sec. 23.33 of 
this subpart.
    (e) A grant under this subpart for an off-reservation Indian 
organization shall be limited to the board of directors of the Indian 
organization which will administer the grant.
    (f) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon the 
grantee's fulfillment of the requirements delineated at Sec. 23.33 (e).
    (g) Monitoring and program reporting requirements for grants awarded 
to off-reservation Indian organizations under this subpart are 
delineated at Sec. Sec. 23.44 and 23.47.



Sec. 23.32  Purpose of off-reservation grants.

    The Secretary or his/her designee is authorized to make grants to 
off-reservation Indian organizations to establish and operate off-
reservation Indian child and family service programs for the purpose of 
stabilizing Indian families and tribes, preventing the breakup of Indian 
families and, in particular, to ensure that the permanent removal of an 
Indian child from the custody of his/her Indian parent or Indian 
custodian shall be a last resort. Child and family service programs may 
include, but are not limited to:
    (a) A system for regulating, maintaining, and supporting Indian 
foster and adoptive homes, including a subsidy program under which 
Indian adoptive children may be provided support comparable to that for 
which they would be eligible as Indian foster children, taking into 
account the appropriate state standards of support for maintenance and 
medical needs;
    (b) The operation and maintenance of facilities and services for 
counseling and treatment of Indian families and Indian foster and 
adoptive children with the goal of strengthening and stabilizing Indian 
families;
    (c) Family assistance (including homemaker and home counselors), 
protective day care and afterschool care, employment support services, 
recreational activities, and respite care with the goal of strengthening 
Indian families and contributing toward family stability; and
    (d) Guidance, legal representation and advice to Indian families 
involved in state child custody proceedings.

[[Page 108]]



Sec. 23.33  Competitive off-reservation application contents and 
application selection criteria.

    (a) An application for a competitive multi-year grant under this 
subpart shall be submitted to the appropriate Area Director prior to or 
on the announced deadline date published in the Federal Register. The 
Area Director shall certify the application contents pursuant to Sec. 
23.34 and forward the application within five working days to the area 
review committee, composed of members designated by the Area Director, 
for competitive review and action. Modifications and/or information 
received after the close of the application period, as announced in the 
Federal Register, shall not be reviewed or considered by the area review 
committee in the competitive process.
    (b) Mandatory application requirements for Indian organization 
applicants shall include:
    (1) An official request for an ICWA grant program from the 
organization's board of directors covering the duration of the proposed 
program;
    (2) A completed Application for Federal Assistance form, SF 424;
    (3) Written assurances that the organization meets the definition of 
Indian organization at Sec. 23.2;
    (4) A copy of the organization's current Articles of Incorporation 
for the applicable grant years;
    (5) Proof of the organization's nonprofit status;
    (6) A copy of the organization's IRS tax exemption certificate and 
IRS employer identification number;
    (7) Proof of liability insurance for the applicable grant years; and
    (8) Current written assurances that the requirements of Circular A-
128 for fiscal management, accounting, and recordkeeping are met.
    (9) Pursuant to the Drug-Free Workplace Act of 1988, all grantees 
under this subpart shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory requirement for Federal grant recipients.
    (c) Competitive application selection criteria. The Area Director or 
his/her designated representative shall select those proposals which 
will in his/her judgment best promote the proposes of the Act. Selection 
shall be made through the area review committee process in which each 
application will be scored individually and ranked according to score, 
taking into consideration the mandatory requirements as specified above 
and the following selection criteria:
    (1) The degree to which the application reflects an understanding of 
the social problems or issues affecting the resident Indian client 
population which the applicant proposes to serve;
    (2) Whether the applicant presents a narrative needs assessment, 
quantitative data and demographics of the client Indian population to be 
served;
    (3) Estimates of the number of Indian people to receive benefits or 
services from the program based on available data;
    (4) Program goals and objectives to be achieved through the grant;
    (5) A comprehensive developmental multi-year narrative plan 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems or 
issues. At a minimum, the plan must include a narrative description of 
the program; the program goals and objectives, stated in measurable 
terms, to be achieved through the grant; and the methodology, including 
culturally defined approaches, and procedures by which the grantee will 
accomplish the identified goals and objectives;
    (6) An internal monitoring system the grantee will use to measure 
progress and accomplishments, and to ensure that the quality and 
quantity of actual performance conforms to the requirements of the 
grant;
    (7) Documentation of the relative accessibility which the Indian 
population to be served under a specific proposal already has to 
existing child and family service programs emphasizing the prevention of 
Indian family breakups, such as mandatory state services. Factors to be 
considered in determining accessibility include:
    (i) Cultural barriers;
    (ii) Discrimination against Indians;
    (iii) Inability of potential Indian clientele to pay for services;
    (iv) Technical barriers created by existing public or private 
programs;

[[Page 109]]

    (v) Availability of transportation to existing programs;
    (vi) Distance between the Indian community to be served under the 
proposal and the nearest existing programs;
    (vii) Quality of services provided to Indian clientele; and
    (viii) Relevance of services provided to specific needs of the 
Indian clientele.
    (8) If the proposed program duplicates existing Federal, state, or 
local child and family service programs emphasizing the prevention of 
Indian family breakups, proper and current documented evidence that 
repeated attempts to obtain services have been unsuccessful;
    (9) Evidence of substantial support from the Indian community or 
communities to be served, including but not limited to:
    (i) Tribal support evidenced by a tribal resolution or cooperative 
service agreements between the administrative bodies of the affected 
tribe(s) and the applicant for the duration of the grant period, or
    (ii) Letters of support from social services organizations familiar 
with the applicant's past work experience;
    (10) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services. The plan must include 
proposed key personnel, their qualifications, training or experience 
relevant to the services to be provided, responsibilities, Indian 
preference criteria for employment and position descriptions. In 
accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), title IV, the 
Indian Child Protection and Family Violence Prevention Act, grantees 
shall conduct character and background investigations of those personnel 
identified in that statute prior to their actual employment;
    (11) The reasonableness and relevance of the estimated overall costs 
of the proposed program or services and their overall relation to the 
organization's funding base, activities, and mission;
    (12) The degree to which the detailed annual budget and 
justification for the requested funds are consistent with, and clearly 
supported by, the proposed plan and by appropriate program services and 
activities for the applicable grant year;
    (13) The applicant's identification of any consultants and/or 
subgrantees it proposes to employ; description of the services to be 
rendered; the qualifications and experience of said personnel, 
reflecting the requirements for performing the identified services; and 
the basis for the cost and the amount to be paid for such services;
    (14) Certification by a licensed accountant that the bookkeeping and 
accounting procedures that the applicant uses or intends to use meet 
existing Federal standards for grant administration and management 
specified at Sec. 23.46;
    (15) The compliance of property management and recordkeeping systems 
with subpart D of 43 CFR part 2 (the Privacy Act, 5 U.S.C. 552a), and 
with existing Federal requirements for grants at 25 CFR 276.5 and 
276.11, including the maintenance and safeguarding of direct service 
case records on families and/or individuals served by the grant;
    (16) A description of the proposed facilities, equipment, and 
buildings necessary to carry out the grant activities; and
    (17) Proof of liability insurance coverage for the applicable grant 
year(s).
    (d) Two or more applications receiving the same competitive score 
will be prioritized in accordance with announcements made in the Federal 
Register pursuant to Sec. 23.31 (b) for the applicable year(s).
    (e) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon the 
availability of appropriated funds and upon the existing grant program 
receiving a satisfactory program evaluation from the area social 
services office for the previous year of operation. A copy of this 
evaluation shall be submitted together with an annual budget and budget 
narrative justification in accordance with paragraph (c)(10) of this 
section. Minimum standards for receiving a satisfactory evaluation shall 
include the timely submission of all fiscal and programmatic reports; a 
narrative program report indicating

[[Page 110]]

work accomplished in accordance with the initial approved multi-year 
plan; and the implementation of mutually determined corrective action 
measures, if applicable.



Sec. 23.34  Review and decision on off-reservation applications by 
Area Director.

    (a) Area office certification. Upon receipt of an application for a 
grant by an off-reservation Indian organization at the area office, the 
Area Director shall:
    (1) Complete and sign the area office certification form. In 
completing the area certification form, the Area Director shall assess 
and certify whether applications contain and meet all the application 
requirements specified at Sec. 23.33. Area Directors shall be 
responsible for the completion of the area office certification forms 
for all applications submitted by off-reservation Indian organizations.
    (2) Acknowledge receipt of the application to the applicant and 
advise the applicant of the disposition of the application within 10 
days of receipt; and
    (3) Transmit all applications within five working days of receipt to 
the area review committee for competitive review and subsequent approval 
or disapproval of the applications.
    (b) Area office competitive review and decision for off-reservation 
applications. Upon receipt of an application for an off-reservation 
grant under this part requiring the approval of the Area Director, the 
Area Director shall:
    (1) Establish and convene an area review committee, chaired by a 
person qualified by knowledge, training and experience in the delivery 
of Indian child and family services.
    (2) Review the area office certification form required in paragraph 
(a) of this section.
    (3) Review the application in accordance with the competitive review 
procedures prescribed in Sec. 23.33. An application shall not receive 
approval for funding under the area competitive review and scoring 
process unless a review of the application determines that it:
    (i) Contains all the information required in Sec. 23.33 which must 
be received by the close of the application period. Modifications of the 
grant application received after the close of the application period 
shall not be considered in the competitive review process.
    (ii) Receives at least the established minimum score in an area 
competitive review, using the application selection criteria and scoring 
process set out in Sec. 23.33. The minimum score shall be established 
by the Central Office prior to each application period and announced in 
the Federal Register for the applicable grants year(s).
    (4) Approve or disapprove the application and promptly notify the 
applicant in writing of the approval or disapproval of the application. 
If the application is disapproved, the Area Director shall include in 
the written notice the specific reasons therefore.
    (c) The actual funding amounts for the initial grant year shall be 
subject to appropriations available nationwide and the continued funding 
of an approved off-reservation grant application under subpart D of this 
part shall be subject to available funds received by the respective area 
office for the applicable grant year. Initial funding decisions and 
subsequent decisions with respect to funding level amounts for all 
approved grant applications under this part shall be made by the Area 
Director.



Sec. 23.35  Deadline for Central Office action.

    Within 30 days of the receipt of grant reporting forms from the Area 
Directors identifying approved and disapproved applications pursuant to 
subpart D of this part and recommended funding levels for approved 
applications, the Secretary or his/her designee shall process the Area 
Directors' funding requests.



   Subpart E_General and Uniform Grant Administration Provisions and 
                              Requirements



Sec. 23.41  Uniform grant administration provisions, requirements and 
applicability.

    The general and uniform grant administration provisions and 
requirements specified at 25 CFR part 276 and under this subpart are 
applicable to all grants awarded to tribal governments

[[Page 111]]

and off-reservation Indian organizations under this part, except to the 
extent inconsistent with an applicable Federal statute, regulation or 
OMB circular.



Sec. 23.42  Technical assistance.

    (a) Pre-award and ongoing technical assistance may be requested by 
an Indian tribe or off-reservation Indian organization from the 
appropriate agency or area office to which the tribe or organization 
will be submitting an application for funds under subparts C and D of 
this part. A request for pre-award technical assistance by an off-
reservation Indian organization must be received by the Area Director 
designated at Sec. 23.11 for the state in which the applicant is 
located no later than 10 days prior to the application deadline to 
assure sufficient time for area response.
    (b) Pre-award and ongoing technical assistance may be provided by 
the appropriate BIA agency or area office for purposes of program 
planning and design, assistance in establishing internal program 
monitoring and evaluation criteria for ongoing grant administration and 
management, and for other appropriate assistance requested.
    (c) The area social services staff shall provide technical 
assistance to grantees upon receipt of an authorized request from the 
grantee or when review of the grantee's quarterly performance reports 
shows that:
    (1) An ICWA program is yielding results that are or will be 
detrimental to the welfare of the intended Indian beneficiaries of the 
program;
    (2) A program has substantially failed to implement its goals and 
objectives;
    (3) There are serious irregularities in the fiscal management of the 
grant; or
    (4) The grantee is otherwise deficient in its program performance.
    (5) Upon receiving an authorized request from the grantee, the area 
social services staff and/or grants officer shall provide the necessary 
technical assistance to arrive at mutually determined corrective action 
measures and their actual implementation, if necessary, and the 
timeframes within which said corrective actions will be implemented.



Sec. 23.43  Authority for grant approval and execution.

    (a) Tribal government programs. The appropriate Agency 
Superintendent or Area Director may approve a grant application and its 
subsequent execution under subpart C when the intent, purpose and scope 
of the application pertains solely to reservations located within the 
service area jurisdiction of the agency or area office.
    (b) Off-reservation programs. The appropriate Area Director may 
approve a grant application and its subsequent execution under subpart D 
when the intent, purpose and scope of the grant proposal pertains to 
off-reservation Indian service populations or programs.



Sec. 23.44  Grant administration and monitoring.

    All grantees under this part shall be responsible for managing day-
to-day program operations to ensure that program performance goals are 
being achieved and to ensure compliance with the provisions of the grant 
award document and other applicable Federal requirements. Unless 
delegated to the Agency Superintendent, appropriate area office 
personnel designated by the Area Director shall be responsible for all 
grant program and fiscal monitoring responsibilities.



Sec. 23.45  Subgrants.

    A tribal government grantee may make a subgrant under subpart C of 
this part, provided that such subgrants are for the purpose for which 
the grant was made and that the grantee retains administrative and 
financial responsibility over the activity and the funds.



Sec. 23.46  Financial management, internal and external controls and 
other assurances.

    Grantee financial management systems shall comply with the following 
standards for accurate, current and complete disclosure of financial 
activities.
    (a) OMB Circular A-87 (Cost principles for state and local 
governments and federally recognized Indian tribal governments).
    (b) OMB Circular A-102 (Common rule 43 CFR part 12).

[[Page 112]]

    (c) OMB Circular A-128 (Single Audit Act).
    (d) OMB Circular A-110 or 122 (Cost principles for non-profit 
organizations and tribal organizations, where applicable).
    (e) Internal control. Effective control and accountability must be 
maintained for all grants. Grantees must adequately safeguard any 
property and must ensure that it is used solely for authorized purposes.
    (f) Budget control. Actual expenditures must be compared with 
budgeted amounts for the grant. Financial information must be related to 
program performance requirements.
    (g) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, grant documents, or other information 
required by the grantee's financial management system. The Secretary or 
his/her designee may review the adequacy of the financial management 
system of an Indian tribe(s) or off-reservation Indian organization 
applying for a grant under this part.
    (h) Pursuant to 18 U.S.C. 641, whoever embezzles, steals, purloins, 
or knowingly converts to his or her use or the use of another, or 
without authority, sells, conveys or disposes of any record, voucher, 
money, or thing of value of the United States or of any department or 
agency thereof, or any property made or being made under contract for 
the United States or any department or agency thereof; or whoever 
receives, conceals, or retains the same with intent to convert it to his 
or her use or gain, knowing it to have been embezzled, stolen, 
purloined, or converted shall be fined not more than $10,000 or 
imprisoned not more than 10 years, or both; but if the value of such 
property does not exceed the sum of $100, he or she shall be fined not 
more than $1,000 or imprisoned not more than one year, or both.



Sec. 23.47  Reports and availability of information to Indians.

    (a) Any tribal government or off-reservation Indian organization 
receiving a grant under this part shall make general programmatic 
information and reports concerning that grant available to the Indian 
people it serves or represents. Access to this information may be 
requested in writing and shall be made available within 10 days of 
receipt of the request. Except as required by title IV of Pub. L. 101-
630, the Indian Child Protection and Family Violence Prevention Act, 
grantees shall hold confidential all information obtained from persons 
receiving services from the program, and shall not release such 
information without the individual's written consent. Information may be 
disclosed in a manner which does not identify or lead to the 
identification of particular individuals.
    (b) Grantees shall submit Standard Form 269 or 269A on a quarterly 
and an annual basis to report their status of funds by the dates 
specified in the grant award document.
    (c) Grantees shall furnish and submit the following written 
quarterly and annual program reports by the dates specified in the award 
document:
    (1) Quarterly and annual statistical and narrative program 
performance reports which shall include, but need not be limited to, the 
following;
    (i) A summary of actual accomplishments and significant activities 
as related to program objectives established for the grant period;
    (ii) The grantee's evaluation of program performance using the 
internal monitoring system submitted in their application;
    (iii) Reports on all significant ICWA direct service grant 
activities including but not limited to the following information:
    (A) Significant title II activities;
    (B) Data reflecting numbers of individuals referred for out-of-home 
placements, number of individuals benefiting from title II services and 
types of services provided, and
    (C) Information and referral activities.
    (iv) Child abuse and neglect statistical reports and related 
information as required by 25 U.S.C. 2434, Pub. L. 99-570, the Indian 
Alcohol and Substance Abuse Prevention and Treatment Act of 1986;
    (v) A summary of problems encountered or reasons for not meeting 
established objectives;

[[Page 113]]

    (vi) Any deliverable or product required in the grant; and
    (vii) Additional pertinent information when appropriate.
    (2) The BIA may negotiate for the provision of other grant-related 
reports not previously identified.
    (d) Events may occur between scheduled performance reporting dates 
which have significant impact on the grant-supported activity. In such 
cases, the grantee must inform the awarding agency as soon as problems, 
delays, adverse conditions, or serious incidents giving rise to 
liability become known and which will materially impair its ability to 
meet the objectives of the grant.



Sec. 23.48  Matching shares and agreements.

    (a) Grant funds provided to Indian tribes under subpart C of this 
part may be used as non-Federal matching shares in connection with funds 
provided under titles IV-B, IV-E and XX of the Social Security Act or 
such other Federal programs which contribute to and promote the purposes 
of the Act as specified in Sec. Sec. 23.3 and 23.22 (25 U.S.C. 1931).
    (b) Pursuant to 25 U.S.C. 1933, in furtherance of the establishment, 
operation, and funding of programs funded under subparts C and D of this 
part, the Secretary may enter into agreements with the Secretary of 
Health and Human Services. The latter Secretary is authorized by the Act 
to use funds appropriated for the Department of Health and Human 
Services for programs similar to those funded under subparts C and D of 
this part (25 U.S.C. 1931 and 1932), provided that authority to make 
payment pursuant to such agreements shall be effective only to the 
extent and in such amounts as may be provided in advance by 
appropriation Acts.



Sec. 23.49  Fair and uniform provision of services.

    (a) Grants awarded under this part shall include provisions assuring 
compliance with the Indian Civil Rights Act; prohibiting discriminatory 
distinctions among eligible Indian beneficiaries; and assuring the fair 
and uniform provision by the grantees of the services and assistance 
they provide to eligible Indian beneficiaries under such grants. Such 
procedures must include criteria by which eligible Indian beneficiaries 
will receive services, recordkeeping mechanisms adequate to verify the 
fairness and uniformity of services in cases of formal complaints, and 
an explanation of what rights will be afforded an individual pending the 
resolution of a complaint.
    (b) Indian beneficiaries of the services to be rendered under a 
grant shall be afforded access to administrative or judicial bodies 
empowered to adjudicate complaints, claims, or grievances brought by 
such Indian beneficiaries against the grantee arising out of the 
performance of the grant.



Sec. 23.50  Service eligibility.

    (a) Tribal government Indian child and family service programs. Any 
person meeting the definition of Indian, Indian child, Indian custodian, 
or Indian parent of any unmarried person under the age of 18 as defined 
in Sec. 23.2 is eligible for services provided under 25 U.S.C. 1931 of 
the Act. Tribal membership status shall be determined by tribal law, 
ordinance, or custom. The tribe may, under subpart C, extend services to 
nontribal family members related by marriage to tribal members, provided 
such services promote the intent and purposes of the Act. A tribe may 
also, within available resources, extend services under this part to 
individuals who are members of, or are eligible for membership in other 
Indian tribes, and who reside within the tribe's designated service 
area.
    (b) Off-reservation Indian child and family service programs and 
agreements with the Secretary of Health and Human Services pursuant to 
25 U.S.C. 1933. For purposes of eligibility for services provided under 
25 U.S.C. 1932 and 1933 of the Act, any person meeting the definition of 
Indian, Indian child, Indian custodian, or Indian parent of any 
unmarried person under the age of 18 as defined in Sec. 23.2, or the 
definition of Indian as defined in 25 U.S.C. 1603(c), shall be eligible 
for services. Tribal membership status shall be determined by tribal 
law, ordinance, or custom.

[[Page 114]]



Sec. 23.51  Grant carry-over authority.

    Unless restricted by appropriation, and contingent upon satisfactory 
program evaluations from the appropriate area or agency office for an 
existing program, grantees are authorized to carry over unliquidated 
grant funds which remain at the end of a budget period. Such funds may 
be carried over for a maximum period of two years beyond the initial 
grant funding period and must be utilized only for the intent, purpose 
and scope of the original grant. These carry-over grant funds shall not 
be reprogrammed into other appropriation activities or subactivities. 
Funds carried over into another fiscal year will be added to the 
grantee's new fiscal year funding amount.



Sec. 23.52  Grant suspension.

    (a) When a grantee has materially failed to comply and remains out 
of compliance with the terms and conditions of the grant, the grants 
officer may, after reasonable notice to the grantee and the provision of 
requested technical assistance, suspend the grant. The notice preceding 
the suspension shall include the effective date of the suspension, the 
corrective measures necessary for reinstatement of the grant and, if 
there is no immediate threat to safety, a reasonable timeframe for 
corrective action prior to actual suspension.
    (b) No obligation incurred by the grantee during the period of 
suspension shall be allowable under the suspended grant, except that the 
grants officer may at his/her discretion allow necessary and proper 
costs which the grantee could not reasonably avoid during the period of 
suspension if such costs would otherwise be allowable under the 
applicable cost principles.
    (c) Appropriate adjustments to the payments under the suspended 
grant will be made either by withholding the payments or by not allowing 
the grantee credit for disbursements which the grantee may make in 
liquidation of unauthorized obligations the grantee incurs during the 
period of suspension.
    (d) Suspension shall remain in effect until the grantee has taken 
corrective action to the satisfaction of the grants officer, or given 
assurances satisfactory to the grants officer that corrective action 
will be taken, or until the grants officer cancels the grant.



Sec. 23.53  Cancellation.

    (a) The grants officer may cancel any grant, in whole or in part, at 
any time before the date of completion whenever it is determined that 
the grantee has:
    (1) Materially failed to comply with the terms and conditions of the 
grant;
    (2) Violated the rights as specified in Sec. 23.49 or endangered 
the health, safety, or welfare of any person; or
    (3) Been grossly negligent in, or has mismanaged the handling or use 
of funds provided under the grant.
    (b) When it appears that cancellation of the grant will become 
necessary, the grants officer shall promptly notify the grantee in 
writing of this possibility. This written notice shall advise the 
grantee of the reason for the possible cancellation and the corrective 
action necessary to avoid cancellation. The grants officer shall also 
offer, and shall provide, if requested by the grantee, any technical 
assistance which may be required to effect the corrective action. The 
grantee shall have 60 days in which to effect this corrective action 
before the grants officer provides notice of intent to cancel the grant 
as provided for in paragraph (c) of this section.
    (c) Upon deciding to cancel for cause, the grants officer shall 
promptly notify the grantee in writing of that decision, the reason for 
the cancellation, and the effective date. The Area Director or his/her 
designated official shall also provide a hearing for the grantee before 
cancellation. However, the grants officer may immediately cancel the 
grant, upon notice to the grantee, if the grants officer determines that 
continuance of the grant poses an immediate threat to safety. In this 
event, the Area Director or his/her designated official shall provide a 
hearing for the grantee within 10 days of the cancellation.
    (d) The hearing referred to in paragraph (c) of this section shall 
be conducted as follows:
    (1) The grantee affected shall be notified, in writing, at least 10 
days before the hearing. The notice should give the date, time, place, 
and purpose of the hearing.

[[Page 115]]

    (2) A written record of the hearing shall be made. The record shall 
include written statements submitted at the hearing or within five days 
following the hearing.



                            Subpart F_Appeals



Sec. 23.61  Appeals from decision or action by Agency Superintendent, 
Area Director or Grants Officer.

    A grantee or prospective applicant may appeal any decision made or 
action taken by the Agency Superintendent, Area Director, or grants 
officer under subpart C or E of this part. Such an appeal shall be made 
to the Assistant Secretary who shall consider the appeal in accordance 
with 25 CFR 2.20 (c) through (e). Appeal procedures shall be as set out 
in part 2 of this chapter.



Sec. 23.62  Appeals from decision or action by Area Director under 
subpart D.

    A grantee or applicant may appeal any decision made or action taken 
by the Area Director under subpart D that is alleged to be in violation 
of the U.S. Constitution, Federal statutes, or the regulations of this 
part. These appeals shall be filed with the Interior Board of Indian 
Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through 4.318 
and 43 CFR 4.330 through 4.340. However, an applicant may not appeal a 
score assigned to its application or the amount of grant funds awarded.



Sec. 23.63  Appeals from inaction of official.

    A person or persons whose interests are adversely affected, or whose 
ability to protect such interests is impeded by the failure of an 
official to act on a request to the official, may make the official's 
inaction the subject of an appeal under part 2 of this chapter.



                   Subpart G_Administrative Provisions



Sec. 23.71  Recordkeeping and information availability.

    (a)(1) Any state court entering a final decree or adoptive order for 
any Indian child shall provide the Secretary or his/her designee within 
30 days a copy of said decree or order, together with any information 
necessary to show:
    (i) The Indian child's name, birthdate and tribal affiliation, 
pursuant to 25 U.S.C. 1951;
    (ii) Names and addresses of the biological parents and the adoptive 
parents; and
    (iii) Identity of any agency having relevant information relating to 
said adoptive placement.
    (2) To assure and maintain confidentiality where the biological 
parent(s) have by affidavit requested that their identity remain 
confidential, a copy of such affidavit shall be provided to the 
Secretary or his/her designee. Information provided pursuant to 25 
U.S.C. 1951(a) is not subject to the Freedom of Information Act (5 
U.S.C. 552), as amended. The Secretary or his/her designee shall ensure 
that the confidentiality of such information is maintained. The address 
for transmittal of information required by 25 U.S.C. 1951(a) is: Chief, 
Division of Social Services, Bureau of Indian Affairs, 1849 C Street, 
NW., Mail Stop 310-SIB, Washington, DC 20240. The envelope containing 
all such information should be marked ``Confidential.'' This address 
shall be sent to the highest court of appeal, the Attorney General and 
the Governor of each state. In some states, a state agency has been 
designated to be repository for all state court adoption information. 
Where such a system is operative, that agency may assume reporting 
responsibilities for the purposes of the Act.
    (b) The Division of Social Services, Bureau of Indian Affairs, is 
authorized to receive all information and to maintain a central file on 
all state Indian adoptions. This file shall be confidential and only 
designated persons shall have access to it. Upon the request of an 
adopted Indian individual over the age of 18, the adoptive or foster 
parents of an Indian child, or an Indian tribe, the Division of Social 
Services shall disclose such information as may be necessary for 
purposes of tribal enrollment or determining any rights or benefits 
associated with tribal membership, except the names of the biological 
parents where an affidavit of confidentiality has been filed, to those 
persons eligible under the Act to request such

[[Page 116]]

information. The chief tribal enrollment officer of the BIA is 
authorized to disclose enrollment information relating to an adopted 
Indian child where the biological parents have by affidavit requested 
anonymity. In such cases, the chief tribal enrollment officer shall 
certify the child's tribe, and, where the information warrants, that the 
child's parentage and other circumstances entitle the child to 
enrollment consideration under the criteria established by the tribe.



                  Subpart H_Assistance to State Courts



Sec. 23.81  Assistance in identifying witnesses.

    Upon the request of a party in an involuntary Indian child custody 
proceeding or of a court, the Secretary or his/her designee shall assist 
in identifying qualified expert witnesses. Such requests for assistance 
shall be sent to the Area Director designated in Sec. 23.11(c). The BIA 
is not obligated to pay for the services of such expert witnesses.



Sec. 23.82  Assistance in identifying language interpreters.

    Upon the request of a party in an Indian child custody proceeding or 
of a court, the Secretary or his/her designee shall assist in 
identifying language interpreters. Such requests for assistance should 
be sent to the Area Director designated in Sec. 23.11(c). The BIA is 
not obligated to pay for the services of such language interpreters.



Sec. 23.83  Assistance in locating biological parents of Indian child 
after termination of adoption.

    Upon the request of a child placement agency, the court or an Indian 
tribe, the Secretary or his/her designee shall assist in locating the 
biological parents or prior Indian custodians of an adopted Indian child 
whose adoption has been terminated pursuant to 25 U.S.C. 1914. Such 
requests for assistance should be sent to the Area Director designated 
in Sec. 23.11(c).



PART 26_EMPLOYMENT ASSISTANCE FOR ADULT INDIANS--Table of Contents




 Subpart A_Definitions, Scope of the Employment Assistance Program and 
                         Information Collection

Sec.
26.1 Definitions.
26.2 Scope of the Employment Assistance Program.
26.3 Information collection.

                   Subpart B_Administrative Procedures

26.4 Filing applications.
26.5 Selection of applicants.
26.6 Program services and client participation.
26.7 Financial assistance for program participants.

                            Subpart C_Appeals

26.8 Appeals.

    Authority: 25 U.S.C. 13.

    Source: 49 FR 2098, Jan. 18, 1984, unless otherwise noted.



 Subpart A_Definitions, Scope of the Employment Assistance Program and 
                         Information Collection



Sec. 26.1  Definitions.

    (a) Agency office means the current organization unit of the Bureau 
which provides direct services to the governing body or bodies and 
members of one or more specified Indian tribes.
    (b) Appeal means a written request for correction of an action or 
decision claimed to violate a person's legal rights or privileges as 
provided in part 2 of this chapter.
    (c) Applicant means an individual applying under this part.
    (d) Application means the process through which a request is made 
for assistance or services.
    (e) Area Director means the Bureau official in charge of an Area 
Office.
    (f) Contract office means the office established by a tribe or 
tribes who have a contract to administer the Employment Assistance 
Program.
    (g) Indian means any person of Indian or Alaska native descent who 
is an enrolled member of any of those tribes listed or eligible to be 
listed in the Federal Register pursuant to 25 CFR

[[Page 117]]

83.6 as recognized by and receiving services from the Bureau of Indian 
Affairs or a descendant of one-fourth degree or more Indian blood of an 
enrolled member; and any person not a member of one of the listed or 
eligible to be listed tribes who possesses at least one-half degree of 
Indian blood which is not derived from a tribe whose relationship is 
terminated by an Act of Congress.
    (h) Indian tribe means any Indian tribe, band, nation or other 
organized group or community including any Alaska Native Village which 
is recognized by the Secretary of the Interior as having special rights 
and responsibilities and is recognized as eligible for the services 
provided by the United States to Indians because of their status as 
Indians.
    (i) Near reservation means those areas or communities adjacent or 
contiguous to reservations which are designated by the Assistant 
Secretary upon recommendation of the local Bureau superintendent, which 
recommendation shall be based upon agreement with the tribal governing 
body of those reservations, as locales appropriate for the extension of 
financial and/or social services, on the basis of such general criteria 
as:
    (1) Number of Indian people native to the reservation residing in 
the area,
    (2) Geographical proximity of the area to the reservation, and
    (3) Administrative feasibility of providing an adequate level of 
services to the area. The Assistant Secretary shall designate each area 
and publish the designations in the Federal Register.
    (j) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order or interpreted by court 
decision and over which a federally recognized Indian Tribal entity may 
exercise certain jurisdiction.
    (k) Superintendent means the Superintendent or Officer in Charge of 
any one of the Agency offices of the Bureau of Indian Affairs or his/her 
authorized representative.
    (l) Tribal governing body means the recognized entity empowered to 
exercise the governmental authority of a federally recognized tribe.



Sec. 26.2  Scope of the Employment Assistance Program.

    The purpose of the Employment Assistance Program is to assist Indian 
people who have a job skill to obtain and retain permanent employment. 
Within that framework, the program provides services to eligible 
Indians, as provided in Sec. 26.5, including vocational counseling and 
employment services on reservations and at other home areas, in 
communities near reservations and in off-reservation areas. Support 
services are also included, as provided in Sec. 26.6.



Sec. 26.3  Information collection.

    The information collection requirements contained in Sec. Sec. 26.4 
and 26.6 have been approved by the Office of Management and Budget (OMB) 
under 44 U.S.C. 3504(h) and are assigned clearance numbers 1076-0062 and 
1076-0061. Information necessary for an application for employment 
assistance will be submitted on an application form which may be 
obtained at a local Bureau of Indian Affairs Agency or tribal program 
contractor office. This information is being collected for the purpose 
of applying for Federal assistance. The information will be used to 
determine if an Indian person is eligible to participate in this program 
and to determine the amount of assistance needed. The obligation to 
respond is a requirement to obtain the benefits.



                   Subpart B_Administrative Procedures



Sec. 26.4  Filing applications.

    (a) Application for Employment Assistance services must be filed at 
Bureau of Indian Affairs Agency offices, or at facilities under contract 
with the Bureau or contract offices which are located on or near 
reservations or other geographic areas of eligibility. Applications are 
approved by the Agency Superintendent or designated contractor. An 
eligible applicant should apply, be funded and receive services at the 
servicing office nearest to his/her residence at the time of 
application.
    (b) For clarity and uniformity, application forms used will be in 
accordance

[[Page 118]]

with the requirements of the Paperwork Reduction Act, section 3504(h) of 
Pub. L. 96-511.



Sec. 26.5  Selection of applicants.

    (a) Applicants must be adult Indians residing on or near Indian 
reservations and demonstrate a need for employment services.
    (b) An applicant must be unemployed or underemployed in order to 
receive employment services.
    (c) Selection of applicants shall be made without regard to sex or 
marital status.
    (d) Only those applicants who declare a desire and intent to accept 
and retain full time permanent employment at the employment location 
chosen shall be selected, with the exception of those individuals 
participating in the temporary summer placement program as provided in 
Sec. 26.6(b)(1).
    (e) Repeat employment services involving expenditure of grant funds 
are to be determined on an individual basis, considering ability, prior 
performance, need and motivation. No client shall automatically be 
entitled to funded repeat services. No more than two (2) funded repeat 
services for a client shall be allowed. Exceptions may be made if 
additional funded services not provided would create extreme hardship on 
the client. Applications are to be submitted with proper justification 
for repeat service to the Area Director for approval or disapproval.



Sec. 26.6  Program services and client participation.

    (a) When a request is made for employment services, the applicant 
shall be offered assistance to assess his/her job skills and work 
experience and to relate these to available employment opportunities. In 
many cases, applicants for placement services will already possess 
training skills, and/or experience sufficient for entry into job 
placement. In other cases, applicants may be encouraged to consider 
further education or training options as a preliminary to permanent 
employment. In any case, vocational counseling appropriate to the 
individual situation shall be made available.
    (b) Services may be provided either with or without the expenditure 
of financial grants depending upon the type of service requested and the 
need for financial assistance. Funds shall not be provided to finance 
temporary employment except for the following:
    (1) High school students who are at least 17 years of age or college 
students participating in summer placement programs to gain work 
experience and temporary income may receive limited funding as needed to 
enable such persons to secure and hold summer jobs. This special service 
will not count against the number of services allowed under Sec. 
26.5(e).
    (2) Persons who have moved to an off-reservation area for permanent 
employment, through services of the Employment Assistance program, may 
at times be required to accept temporary employment until permanent 
employment is available. Such persons may receive funds as needed within 
established limitations and justifiable circumstances, as allowed by the 
Area Director, until permanent employment is found and/or the need is 
met.
    (c) Permanent employment shall normally be defined as employment 
which is generally anticipated to be of one year or more in duration. 
Employment in the construction or other trades where moving from one job 
to another is generally required of persons engaged in such occupations 
shall be considered as permanent employment.
    (d) In those cases where applicants apply and are selected for 
employment services in off-reservation urban locations, a variety of 
services may be provided, based upon individual client needs and 
requests for assistance. These may include advice in rental of housing, 
shopping, money management, community adjustment, counseling, applying 
for and seeking employment, and emergency financial assistance for up to 
six months from the date of entry into this program. Continuing non-
financial assistance, as needed, shall remain indefinitely available.
    (e) Assistance as needed may be provided to enable clients who move 
for employment to an off-reservation urban or non-urban area to accept a

[[Page 119]]

specific job offer. In such cases, however, transportation or financial 
assistance may be provided only after confirmation has been obtained 
from the employer, giving details of employment, including the 
following:
    (1) Job title,
    (2) Beginning wage,
    (3) Date to start work,
    (4) First payday,
    (5) First full payday, and
    (6) A statement that the job is anticipated to be of a permanent 
nature.



Sec. 26.7  Financial assistance for program participants.

    (a) Individuals or families with a family member participating in 
the Employment Assistance program may be granted financial assistance, 
as needed, based upon rates established by the Area Director for the 
respective areas or jurisdictions within those areas.
    (b) Not more than thirty (30) percent of the funds appropriated for 
any program year may be used to pay for the costs of administration. 
Administrative costs include salaries and fringe benefits of direct 
program administrative positions such as program director or program 
officer, program/financial analyst, labor market analyst, clerical 
personnel, travel costs, materials, supplies, equipment, space and 
utilities. The remaining seventy (70) percent of funds available may be 
used for transportation and subsistence enroute to employment location; 
subsistence for one month or until the first paycheck from employment is 
received; emergency assistance is allowed where verified emergencies 
justify such grants and must have Area Director approval; and supportive 
services. Supportive services includes tools for employment, initial 
union dues, transportation of household effects, security and safety 
deposits, personal appearance and housewares, child care, and costs of 
employment counselors engaged in providing services to applicants 
(salaries, fringe benefits and travel costs).
    (c) Marital status of applicants is not a consideration for 
determining eligibility for services, but this factor is a consideration 
for determining appropriate subsistence grants. Proof of a legal 
relationship requiring support shall be required as a basis for 
application of family subsistence rates. In the case of married persons, 
proof of marriage shall be required to satisfy this requirement.
    (d) Financial assistance shall not be used to supplement the income 
of a person already employed.



                            Subpart C_Appeals



Sec. 26.8  Appeals.

    The decision of any Bureau official under this part can be appealed 
pursuant to the procedures in 25 CFR part 2.



PART 27_VOCATIONAL TRAINING FOR ADULT INDIANS--Table of Contents




  Subpart A_Definitions, Scope of the Vocational Training Program and 
                         Information Collection

Sec.
27.1 Definitions.
27.2 Scope of the vocational training program.
27.3 Information collection.

                   Subpart B_Administrative Procedures

27.4 Filing applications.
27.5 Selection of applicants.
27.6 Satisfactory progress during training.
27.7 Approval of courses for vocational training at institutions.
27.8 Approval of apprenticeship training.
27.9 Approval of on-the-job training.
27.10 Financial assistance for trainees.
27.11 Contracts and agreements.

                            Subpart C_Appeals

27.12 Appeals.

    Authority: Sec. 1, Pub. L. 84-959, 70 Stat. 986 as amended by Pub. 
L. 88-230, 77 Stat. 471 (25 U.S.C. 309).

    Source: 49 FR 2101, Jan. 18, 1984, unless otherwise noted.



  Subpart A_Definitions, Scope of the Vocational Training Program and 
                         Information Collection



Sec. 27.1  Definitions.

    (a) Agency office means the current organization unit of the Bureau 
which

[[Page 120]]

provides direct services to the governing body or bodies and members of 
one or more specified Indian tribes.
    (b) Appeal means a written request for correction of an action or 
decision claimed to violate a person's legal rights or privileges as 
provided in part 2 of this chapter.
    (c) Applicant means an individual applying under this part.
    (d) Application means the process through which a request is made 
for assistance or services.
    (e) Area Director means the Bureau official in charge of an Area 
Office or his/her authorized representative.
    (f) Assistant Secretary means the Assistant Secretary of the 
Interior for Indian Affairs or his/her authorized representative.
    (g) Contract office means the office established by a tribe or 
tribes who have a contract to administer the adult vocational training 
program.
    (h) Full time institutional training is:
    (1) An institutional trade or technical course offered on a clock-
hour basis below the college level, involving shop practices as an 
integral part thereof when a minimum of thirty (30) hours per week of 
attendance is required with not more than 2\1/2\ hours of rest periods 
per week allowed.
    (2) An institutional vocational course offered on a clock-hour basis 
below the college level in which theoretical or classroom instruction 
predominates when a minimum of twenty-five (25) hours per week net of 
instruction is required, or
    (3) An institutional undergraduate vocational course offered by a 
college or university on a quarter or semester-hour basis when a minimum 
of twelve (12) semester credit hours or its equivalent is required.
    (i) Indian means any person of Indian or Alaska native descent who 
is an enrolled member of any of those tribes listed or eligible to be 
listed in the Federal Register pursuant to 25 CFR 83.6 as recognized by 
and receiving services from the Bureau of Indian Affairs or a descendant 
of one-fourth degree or more Indian blood of an enrolled member and any 
person not a member of one of the listed or eligible to be listed tribes 
who possesses at least one-half degree of Indian blood which is not 
derived from a tribe whose relationship is terminated by an Act of 
Congress.
    (j) Indian tribe means any Indian tribe, band, nation or other 
organized group or community, including any Alaska native village, which 
is recognized by the Secretary of the Interior as having special rights 
and responsibilities and is recognized as eligible for the services 
provided by the United States to Indians because of their status as 
Indians.
    (k) Near reservation means those areas or communities adjacent or 
contiguous to reservations which are designated by the Assistant 
Secretary upon recommendation of the local Bureau superintendent, which 
recommendation shall be based upon agreement with the tribal governing 
body of those reservations, as locales appropriate for the extension of 
financial assistance and/or social services, on the basis of such 
general criteria as:
    (1) Number of Indian people native to the reservation residing in 
the area,
    (2) Geographical proximity of the area to the reservation, and
    (3) Administrative feasibility of providing an adequate level of 
services to the area. The Assistant Secretary shall designate each area 
and publish the designations in the Federal Register.
    (l) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order or as interpreted by court 
decision and over which a Federally recognized Indian tribal entity may 
exercise certain jurisdiction.
    (m) Superintendent means the Superintendent or Officer in Charge of 
any of the Agency offices of the Bureau of Indian Affairs or his/her 
authorized representative.
    (n) Tribal governing body means the recognized entity empowered to 
exercise the governmental authority of a Federally recognized tribe.



Sec. 27.2  Scope of the vocational training program.

    The purpose of the vocational training program is to assist Indian 
people to acquire the job skills necessary for full time satisfactory 
employment. Within that framework, the program provides testing, 
vocational counseling

[[Page 121]]

or guidance to assist program participants to make career choices 
relating personal assets to training option and availability of jobs in 
the labor market. The program provides for full time institutional 
training in any vocational or trade school as provided in Sec. 27.7. 
Apprenticeship and on-the-job training are also provided. Institutional, 
apprenticeship, or on-the-job training courses shall not exceed twenty-
four (24) months in length, with the exception that Registered Nurses 
training may be for periods not to exceed thirty-six (36) months. 
Individual program recipients may not receive more than twenty-four (24) 
months of full-time training, except that Registered Nursing students 
may receive not more than thirty-six (36) months of training.



Sec. 27.3  Information collection.

    The information collection requirements contained in Sec. Sec. 
27.4, 27.6 and 27.9 have been approved by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3504(h) and are assigned clearance numbers 
1076-0062, 1076-0063 and 1076-0069. Information necessary for an 
application for vocational training assistance will be submitted on an 
application form which may be obtained at a local Bureau of Indian 
Affairs Agency or tribal program contractor office. This information is 
being collected for the purpose of applying for Federal assistance. The 
information will be used to determine if an Indian individual is 
eligible to participate in this program and to determine the amount of 
assistance needed. The obligation to respond is a requirement to obtain 
the benefits.



                   Subpart B_Administrative Procedures



Sec. 27.4  Filing applications.

    (a) Applications for adult vocational training services must be 
filed at Bureau of Indian Affairs agency offices, or at facilities under 
contract with the Bureau or contract offices located on or near 
reservations or other geographic areas of eligibility. Applications are 
approved by the Agency Superintendent or designated contractor. An 
eligible applicant should apply, be funded and receive services at the 
servicing office nearest to his/her residence at the time of 
application.
    (b) For clarity and uniformity, application forms used will be in 
accordance with the requirements of the Paperwork Reduction Act, section 
3504(h) of Pub. L. 96-511.



Sec. 27.5  Selection of applicants.

    (a) Applicants must be adult Indians residing on or near Indian 
reservations.
    (b) Eligible individuals shall be at least eighteen (18) years of 
age, except that high school graduates shall be eligible at the age of 
seventeen (17) years. Also, while the program is designed primarily for 
persons between the ages of eighteen (18) and thirty-five (35), persons 
over the age of thirty-five (35) shall be eligible, assuming training 
and permanent employment to be otherwise feasible in terms of health and 
physical capability.
    (c) An applicant must be in need of training in order to obtain 
reasonable and satisfactory employment or is underemployed and without 
additional training would result in extreme hardship for the applicant, 
and is in need of financial assistance in order to obtain such training. 
It must also be feasible for the applicant to pursue training.
    (d) Selection of applicants shall be made without regard to sex or 
marital status, providing they meet the requirements of paragraphs (a), 
(b), and (c) of this section. Non-Indian spouses shall not be eligible 
for training.
    (e) No more than two (2) repeat training services will be allowed. 
Repeat training services will be on a lower priority than the initial 
service and will be determined on an individual basis, considering need, 
ability, prior performance and present motivation of the applicant. In 
order to be in need of repeat institutional training, an applicant must 
be unemployed, underemployed, or unable to work in his/her primary 
occupation due to physical or other disabilities. Time spent in on-the-
job training programs will be deducted from the maximum of institutional 
training eligibility.
    (f) Only those applicants who willingly declare intent to accept 
full time employment as soon as possible after completion of training 
shall be selected. Plans may subsequently

[[Page 122]]

change, but the intent of the training program is preparation for 
employment, and this must be the initial intent of program participants. 
The program is not meant to serve as a preliminary to immediate further 
education.



Sec. 27.6  Satisfactory progress during training.

    An individual who enters training pursuant to the provisions of this 
part is required to make satisfactory progress in training. Individuals 
in institutional vocational training courses are required to give 
evidence of progress by authorizing the institution attended to provide 
grade and/or progress reports to the appropriate Bureau of Indian 
Affairs or contract office. Program participants shall maintain a 
reasonable standard of conduct. Failure to meet these requirements due 
to reasons within the trainee's control may result in termination of 
training benefits.



Sec. 27.7  Approval of courses for vocational training at institutions.

    (a) A course of vocational training at any institution, public or 
private, offering vocational training may be approved by the Assistance 
Secretary; provided:
    (1) The institution is accredited by a recognized national regional 
accrediting association; or
    (2) The institution is approved for training by a state agency 
authorized to make such approvals; and
    (3) It is determined that there is reasonable certainty of 
employment for graduates of the institution in their respective fields 
of training.
    (b) Cooperative education (a combination of classroom theory with 
related practical job experience) is considered as valuable learning 
experience and is specifically allowed and encouraged.
    (c) Vocational training courses offered through Indian tribal 
governments need not be accredited but must show reasonable expectation 
of leading to employment and be approved by the Area Director.



Sec. 27.8  Approval of apprenticeship training.

    A program of apprenticeship training may be approved when such 
training:
    (a) Is offered by a corporation or association which has furnished 
such training to bona fide apprentices for at least one year preceding 
participation in this program;
    (b) Is under the supervision of a State apprenticeship agency, a 
State Apprenticeship Council, or the Federal Apprenticeship Training 
Services;
    (c) Leads to an occupation which requires the use of skills that 
normally are learned through training on the job and employment which is 
based upon training on the job rather than upon such elements as length 
of service, normal turnover, personality, and other personal 
characteristics; and
    (d) Is identified expressly as apprenticeship training by the 
establishment offering it.



Sec. 27.9  Approval of on-the-job training.

    (a) On-the-job training contracts shall be approved only by the 
official to whom such authority has been delegated in the 10 BIAM.
    (b) On-the-job training may be approved when such training is 
offered by a corporation, small business, association, tribe or tribal 
enterprise which provides an on-the-job training program offering 
definite potential for skilled permanent employment.
    (c) Yearly on-the-job training contractual agreements with a 
specific contractor shall not be renewed beyond the second year without 
review and written approval from the Assistant Secretary-Indian Affairs. 
Extension of contracts exceeding two years will be based upon a 
contractors demonstrated expansion of the enterprise, need for 
additional trainees, and placement of trainees completing the program.
    (d) Reimbursement to the on-the-job training contractor may include 
one-half of the hourly wage paid during the training period with the 
contractor paying the other half. The hourly rate must be at least the 
established minimum wage under the Fair Labor Standards Act of 1938, as 
amended.

[[Page 123]]



Sec. 27.10  Financial assistance for trainees.

    (a) Applicants entering full-time training under this part may be 
granted financial assistance as needed, based upon rates established by 
the Area Director for the respective areas, or jurisdictions within 
those areas. Trainees may be assisted to secure educational grants from 
other sources for which they qualify. Such income shall be considered in 
computing amounts of financial assistance to be provided by the Bureau 
of Indian Affairs. Marital status of trainees is not a consideration for 
determining eligibility for training, but this factor is a consideration 
in determining appropriate subsistence grants. Proof of a legal 
relationship requiring support shall be required as a basis for 
application of family subsistence rates. In the case of married persons, 
proof of marriage shall be required to satisfy this requirement. 
Financial assistance may be provided for transportation and subsistence 
enroute to training; tuition and related training costs; subsistence 
while in training; emergency assistance is allowed where verified 
emergencies justify such grants and must have Area Director approval; 
and supportive services while in training. Supportive services includes 
tools for employment, initial union dues, transportation of household 
effects, security and safety deposits, personal appearance and 
housewares, child care, and cost of vocational training counselors 
engaged in providing services to trainees (salaries, fringe benefits and 
travel costs).
    (b) Not more than thirty (30) percent of the funds appropriated for 
any program year may be used to pay for the costs of administration. 
Administrative costs include salaries and fringe benefits of direct 
program administrative positions such as program director or program 
officer, program/financial analyst, labor market analyst, clerical 
personnel, travel costs, materials, supplies, equipment, space and 
utilities.



Sec. 27.11  Contracts and agreements.

    Training facilities and services required for programs of vocational 
training may be arranged through contracts or agreements with agencies, 
establishments or organizations. These may include:
    (a) Indian tribal governing bodies,
    (b) Appropriate Federal, State or local government agencies,
    (c) Public or private schools which have a recognized reputation in 
vocational education as successfully obtaining employment for graduates 
in the fields of training approved by the Assistant Secretary or his/her 
authorized representative for purposes of the program,
    (d) Educational firms to operate residential training centers, or
    (e) Corporations and associations or small business establishments 
with apprenticeship or on-the-job training programs leading to skilled 
employment.



                            Subpart C_Appeals



Sec. 27.12  Appeals.

    The decisions of any Bureau official under this part can be appealed 
pursuant to the procedures in 25 CFR part 2.

[[Page 124]]



                         SUBCHAPTER E_EDUCATION





PART 30_ADEQUATE YEARLY PROGRESS--Table of Contents




Sec.
30.100 What is the purpose of this part?
30.101 What definitions apply to terms in this part?

               Subpart A_Defining Adequate Yearly Progress

30.102 Does the Act require the Secretary of the Interior to develop a 
          definition of AYP for Bureau-funded schools?
30.103 Did the Committee consider a separate Bureau definition of AYP?
30.104 What is the Secretary's definition of AYP?

                      Alternative Definition of AYP

30.105 Can a tribal governing body or school board use another 
          definition of AYP?
30.106 How does a tribal governing body or school board propose an 
          alternative definition of AYP?
30.107 What must a tribal governing body or school board include in its 
          alternative definition of AYP?
30.108 May an alternative definition of AYP use parts of the Secretary's 
          definition?

                          Technical Assistance

30.109 Will the Secretary provide assistance in developing an 
          alternative AYP definition?
30.110 What is the process for requesting technical assistance to 
          develop an alternative definition of AYP?
30.111 When should the tribal governing body or school board request 
          technical assistance?

                   Approval of Alternative Definition

30.113 How does the Secretary review and approve an alternative 
          definition of AYP?

              Subpart B_Assessing Adequate Yearly Progress

30.114 Which students must be assessed?
30.115 Which students' performance data must be included for purposes of 
          AYP?
30.116 If a school fails to achieve its annual measurable objectives, 
          what other methods may it use to determine whether it made 
          AYP?

           Subpart C_Failure To Make Adequate Yearly Progress

30.117 What happens if a Bureau-funded school fails to make AYP?
30.118 May a Bureau-funded school present evidence of errors in 
          identification before it is identified for school improvement, 
          corrective action, or restructuring?
30.119 Who is responsible for implementing required remedial actions at 
          a Bureau-funded school identified for school improvement, 
          corrective action or restructuring?
30.120 Are Bureau-funded schools exempt from school choice and 
          supplemental services when identified for school improvement, 
          corrective action, and restructuring?
30.121 What funds are available to assist schools identified for school 
          improvement, corrective action, or restructuring?
30.122 Must the Bureau assist a school it identified for school 
          improvement, corrective action, or restructuring?
30.123 What is the Bureau's role in assisting Bureau-funded schools to 
          make AYP?
30.124 Will the Department of Education provide funds for schools that 
          fail to meet AYP?
30.125 What happens if a State refuses to allow a school access to the 
          State assessment?

              Subpart D_Responsibilities and Accountability

30.126 What is required for the Bureau to meet its reporting 
          responsibilities?
30.150 Information Collection.

    Authority: Public Law 107-110, 115 Stat. 1425.

    Source: 70 FR 22200, Apr. 28, 2005, unless otherwise noted.



Sec. 30.100  What is the purpose of this part?

    This part establishes for schools receiving Bureau funding a 
definition of ``Adequate Yearly Progress (AYP).'' Nothing in this part:
    (a) Diminishes the Secretary's trust responsibility for Indian 
education or any statutory rights in law;
    (b) Affects in any way the sovereign rights of tribes; or
    (c) Terminates or changes the trust responsibility of the United 
States to Indian tribes or individual Indians.

[[Page 125]]



Sec. 30.101  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and amends the 
Education Amendments of 1978.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Department means the Department of the Interior.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs.
    School means a school funded by the Bureau of Indian Affairs.
    Secretary means the Secretary of the Interior or a designated 
representative.
    Secretaries means the Secretary of the Interior and the Secretary of 
Education.



               Subpart A_Defining Adequate Yearly Progress



Sec. 30.102  Does the Act require the Secretary of the Interior to 
develop a definition of AYP for Bureau-funded schools?

    Yes, the Act requires the Secretary to develop a definition of AYP 
through negotiated rulemaking. In developing the Secretary's definition 
of AYP, the No Child Left Behind Negotiated Rulemaking Committee 
(Committee) considered a variety of options. In choosing the definition 
in Sec. 30.104, the Committee in no way intended to diminish the 
Secretary's trust responsibility for Indian education or any statutory 
rights in law. Nothing in this part:
    (a) Affects in any way the sovereign rights of tribes; or
    (b) Terminates or changes the trust responsibility of the United 
States to Indian tribes or individual Indians.



Sec. 30.103  Did the Committee consider a separate Bureau definition 
of AYP?

    Yes, the Committee considered having the Bureau of Indian Affairs 
develop a separate Bureau definition of AYP. For a variety of reasons, 
the Committee reached consensus on the definition in Sec. 30.104. This 
definition is in no way intended to diminish the United States' trust 
responsibility for Indian education nor is it intended to give States 
authority over Bureau-funded schools.



Sec. 30.104  What is the Secretary's definition of AYP?

    The Secretary defines AYP as follows. The definition meets the 
requirements in 20 U.S.C. 6311(b).
    (a) Effective in the 2005-2006 school year, the academic content and 
student achievement standards, assessments, and the definition of AYP 
are those of the State where the school is located, unless an 
alternative definition of AYP is proposed by the tribal governing body 
or school board and approved by the Secretary.
    (1) If the geographic boundaries of the school include more than one 
State, the tribal governing body or school board may choose the State 
definition it desires. Such decision shall be communicated to the 
Secretary in writing.
    (2) This section does not mean that the school is under the 
jurisdiction of the State for any purpose, rather a reference to the 
State is solely for the purpose of using the State's assessment, 
academic content and student achievement standards, and definition of 
AYP.
    (3) The use of the State's definition of AYP does not diminish or 
alter the Federal Government's trust responsibility for Indian 
education.
    (b) School boards or tribal governing bodies may seek a waiver that 
may include developing their own definition of AYP, or adopting or 
modifying an existing definition of AYP that has been accepted by the 
Department of Education. The Secretary is committed to providing 
technical assistance to a school, or a group of schools, to develop an 
alternative definition of AYP.

                      Alternative Definition of AYP



Sec. 30.105  May a tribal governing body or school board use another 
definition of AYP?

    Yes. A tribal governing body or school board may waive all or part 
of the Secretary's definition of academic content and achievement 
standards, assessments, and AYP. However, unless an alternative 
definition is approved

[[Page 126]]

under Sec. 30.113, the school must use the Secretary's definition of 
academic content and achievement standards, assessments, and AYP.



Sec. 30.106  How does a tribal governing body or school board propose 
an alternative definition of AYP?

    If a tribal governing body or school board decides that the 
definition of AYP in Sec. 30.104 is inappropriate, it may decide to 
waive all or part of the definition. Within 60 days of the decision to 
waive, the tribal governing body or school board must submit to the 
Secretary a proposal for an alternative definition of AYP. The proposal 
must meet the requirements of 20 U.S.C. 6311(b) and 34 CFR 200.13-
200.20, taking into account the unique circumstances and needs of the 
school or schools and the students served.



Sec. 30.107  What must a tribal governing body or school board include 
in its alternative definition of AYP?

    (a) An alternative definition of AYP must meet the requirements of 
20 U.S.C. 6311(b)(2) of the Act and 34 CFR 200.13-200.20, taking into 
account the unique circumstances and needs of the school or schools and 
the students served.
    (b) In accordance with 20 U.S.C. 6311(b) of the Act and 34 CFR 
200.13-200.20, an alternative definition of AYP must:
    (1) Apply the same high standards of academic achievement to all 
students;
    (2) Be statistically valid and reliable;
    (3) Result in continuous and substantial academic improvement for 
all students;
    (4) Measure the progress of all students based on a high-quality 
assessment system that includes, at a minimum, academic assessments in 
mathematics and reading or language arts;
    (5) Measure progress separately for reading or language arts and for 
mathematics;
    (6) Unless disaggregation of data cannot yield statistically 
reliable information or reveals personally identifiable information, 
apply the same annual measurable objectives to each of the following:
    (i) The achievement of all students; and
    (ii) The achievement of economically disadvantaged students, 
students from major racial or ethnic groups, students with disabilities, 
and students with limited English proficiency;
    (7) Establish a starting point;
    (8) Create a timeline to ensure that all students are proficient by 
the 2013-2014 school year;
    (9) Establish annual measurable objectives;
    (10) Establish intermediate goals;
    (11) Include at least one other academic indicator which, for any 
school with a 12th grade, must be graduation rate; and
    (12) Ensure that at least 95 percent of the students enrolled in 
each group under Sec. 30.107(b)(6) are assessed.
    (c) If a Bureau-funded school's alternative definition of AYP does 
not use a State's academic content and student achievement standards and 
academic assessments, the school must include with its alternative 
definition the academic standards and assessment it proposes to use. 
These standards and assessments must meet the requirements in 20 U.S.C. 
6311(b) and 34 CFR 200.1-200.9.



Sec. 30.108  May an alternative definition of AYP use parts of the 
Secretary's definition?

    Yes, a tribal governing body or school board may take part of the 
Secretary's definition and propose to waive the remainder. The proposed 
alternative definition of AYP must, however, include both the parts of 
the Secretary's AYP definition the tribal governing body or school board 
is adopting and those parts the tribal governing body or school board is 
proposing to change.

                          Technical Assistance



Sec. 30.109  Will the Secretary provide assistance in developing an 
alternative AYP definition?

    Yes, the Secretary through the Bureau, shall provide technical 
assistance either directly or through contract to the tribal governing 
body or the school board in developing an alternative AYP definition. A 
tribal governing body or school board needing assistance must submit a 
request to the Director of

[[Page 127]]

OIEP under Sec. 30.110. In providing assistance, the Secretary may 
consult with the Secretary of Education and may use funds supplied by 
the Secretary of Education in accordance with 20 U.S.C. 7301.



Sec. 30.110  What is the process for requesting technical assistance 
to develop an alternative definition of AYP?

    (a) The tribal governing body or school board requesting technical 
assistance to develop an alternative definition of AYP must submit a 
written request to the Director of OIEP, specifying the form of 
assistance it requires.
    (b) The Director of OIEP must acknowledge receipt of the request for 
technical assistance within 10 days of receiving the request.
    (c) No later than 30 days after receiving the original request, the 
Director of OIEP will identify a point of contact. This contact will 
immediately begin working with the tribal governing body or school board 
to jointly develop the specifics of the technical assistance, including 
identifying the form, substance, and timeline for the assistance.



Sec. 30.111  When should the tribal governing body or school board 
request technical assistance?

    In order to maximize the time the tribal governing body or school 
board has to develop an alternative definition of AYP and to provide 
full opportunity for technical assistance, the tribal governing body or 
school board should request technical assistance before formally 
notifying the Secretary of its intention to waive the Secretary's 
definition of AYP.

                   Approval of Alternative Definition



Sec. 30.113  How does the Secretary review and approve an alternative 
definition of AYP?

    (a) The tribal governing body or school board submits a proposed 
alternative definition of AYP to the Director, OIEP within 60 days of 
its decision to waive the Secretary's definition.
    (b) Within 60 days of receiving a proposed alternative definition of 
AYP, OIEP will notify the tribal governing body or the school board of:
    (1) Whether the proposed alternative definition is complete; and
    (2) If the definition is complete, an estimated timetable for the 
final decision.
    (c) If the proposed alternative definition is incomplete, OIEP will 
provide the tribal governing body or school board with technical 
assistance to complete the proposed alternative definition of AYP, 
including identifying what additional items are necessary.
    (d) The Secretaries will review the proposed alternative definition 
of AYP to determine whether it is consistent with the requirements of 20 
U.S.C. 6311(b). This review must take into account the unique 
circumstances and needs of the schools and students.
    (e) The Secretaries shall approve the alternative definition of AYP 
if it is consistent with the requirements of 20 U.S.C. 6311(b), taking 
into consideration the unique circumstances and needs of the school or 
schools and the students served.
    (f) If the Secretaries approve the alternative definition of AYP:
    (1) The Secretary shall promptly notify the tribal governing body or 
school board; and
    (2) The alternate definition of AYP will become effective at the 
start of the following school year.
    (g) The Secretaries will disapprove the alternative definition of 
AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b). 
If the alternative definition is disapproved, the tribal governing body 
or school board will be notified of the following:
    (1) That the definition is disapproved; and
    (2) The reasons why the proposed alternative definition does not 
meet the requirements of 20 U.S.C. 6311(b).
    (h) If the Secretaries deny a proposed definition under paragraph 
(g) of this section, they shall provide technical assistance to overcome 
the basis for the denial.



              Subpart B_Assessing Adequate Yearly Progress



Sec. 30.114  Which students must be assessed?

    All students in grades three through eight and at least once in 
grades ten

[[Page 128]]

through twelve who are enrolled in a Bureau-funded school must be 
assessed.



Sec. 30.115  Which students' performance data must be included for 
purposes of AYP?

    The performance data of all students assessed pursuant to Sec. 
30.114 must be included for purposes of AYP if the student is enrolled 
in a Bureau-funded school for a full academic year as defined by the 
Secretary or by an approved alternative definition of AYP.



Sec. 30.116  If a school fails to achieve its annual measurable 
objectives, what other methods may it use to determine whether it made AYP?

    A school makes AYP if each group of students identified in Sec. 
30.107(b)(6) meets or exceeds the annual measurable objectives and 
participation rate identified in Sec. Sec. 30.107(b)(9) and 
30.107(b)(12) respectively, and the school meets the other academic 
indicators identified in Sec. 30.107(b)(11). If a school fails to 
achieve its annual measurable objectives for any group identified in 
Sec. 30.107(b)(6), there are two other methods it may use to determine 
whether it made AYP:
    (a) Method A--``Safe Harbor.'' Under ``safe harbor,'' the following 
requirements must be met for each group referenced under Sec. 
30.107(b)(6) that does not achieve the school's annual measurable 
objectives:
    (1) In each group that does not achieve the school's annual 
measurable objectives, the percentage of students who were below the 
``proficient'' level of academic achievement decreased by at least 10 
percent from the preceding school year; and
    (2) The students in that group made progress on one or more of the 
other academic indicators; and
    (3) Not less than 95 percent of the students in that group 
participated in the assessment.
    (b) Method B--Uniform Averaging Procedure. A school may use uniform 
averaging. Under this procedure, the school may average data from the 
school year with data from one or two school years immediately preceding 
that school year and determine if the resulting average makes AYP.



           Subpart C_Failure To Make Adequate Yearly Progress



Sec. 30.117  What happens if a Bureau-funded school fails to make AYP?

------------------------------------------------------------------------
                                                     Action required by
  Number of yrs of failing to                         entity operating
   make AYP in same academic          Status           school for the
            subject                                following school year
------------------------------------------------------------------------
1st year of failing AYP.......  No status change.  Analyze AYP data and
                                                    consider
                                                    consultation with
                                                    outside experts.
2nd year of failing AYP.......  School             Develop a plan or
                                 improvement,       revise an existing
                                 year one.          plan for school
                                                    improvement in
                                                    consultation with
                                                    parents, school
                                                    staff and outside
                                                    experts.
3rd year of failing AYP.......  School             Continue revising or
                                 Improvement,       modifying the plan
                                 year two.          for school
                                                    improvement in
                                                    consultation with
                                                    parents, school
                                                    staff and outside
                                                    experts.
4th year of failing AYP.......  Corrective Action  Implement at least
                                                    one of the six
                                                    corrective actions
                                                    steps found in 20
                                                    U.S.C.
                                                    6316(b)(7)(C)(iv).
5th year of failing AYP.......  Planning to        Prepare a
                                 Restructure.       restructuring plan
                                                    and make
                                                    arrangements to
                                                    implement the plan.
6th year of failing AYP.......  Restructuring....  Implement the
                                                    restructuring plan
                                                    no later than the
                                                    beginning of the
                                                    school year
                                                    following the year
                                                    in which it
                                                    developed the plan.
7th year (and beyond) of        Restructuring....  Continue
 failing AYP.                                       implementation of
                                                    the restructuring
                                                    plan until AYP is
                                                    met for two
                                                    consecutive years.
------------------------------------------------------------------------


[[Page 129]]



Sec. 30.118  May a Bureau-funded school present evidence of errors in 
identification before it is identified for school improvement, corrective 
action, or restructuring?

    Yes. The Bureau must give such a school the opportunity to review 
the data on which the bureau would identify a school for improvement, 
and present evidence as set out in 20 U.S.C. 6316(b)(2).



Sec. 30.119  Who is responsible for implementing required remedial 
actions at a Bureau-funded school identified for school improvement, 
corrective action or restructuring?

    (a) For a Bureau-operated school, implementation of remedial actions 
is the responsibility of the Bureau.
    (b) For a tribally operated contract school or grant school, 
implementation of remedial actions is the responsibility of the school 
board of the school.



Sec. 30.120  Are Bureau-funded schools exempt from offering school 
choice and supplemental educational services when identified for 
school improvement, corrective action, and restructuring?

    Yes, Bureau-funded schools are exempt from offering public school 
choice and supplemental educational services when identified for school 
improvement, corrective action, and restructuring.



Sec. 30.121  What funds are available to assist schools identified for 
school improvement, corrective action, or restructuring?

    From fiscal year 2004 to fiscal year 2007, the Bureau will reserve 4 
percent of its title I allocation to assist Bureau-funded schools 
identified for school improvement, corrective action, and restructuring.
    (a) The Bureau will allocate at least 95 percent of funds under this 
section to Bureau-funded schools identified for school improvement, 
corrective action, and restructuring to carry out those schools' 
responsibilities under 20 U.S.C. 6316(b). With the approval of the 
school board the Bureau may directly provide for the remedial activities 
or arrange for their provision through other entities such as school 
support teams or educational service agencies.
    (b) In allocating funds under this section, the Bureau will give 
priority to schools that:
    (1) Are the lowest-achieving schools;
    (2) Demonstrate the greatest need for funds; and
    (3) Demonstrate the strongest commitment to ensuring that the funds 
enable the lowest-achieving schools to meet progress goals in the school 
improvement plans.
    (c) Funds reserved under this section must not decrease total 
funding under title I, part A of the Act, for any school below the level 
for the preceding year. To the extent that reserving funds under this 
section would reduce the title I, part A dollar amount of any school 
below the amount of title I, part A dollars the school received the 
previous year, the Secretary is authorized to reduce the title I, part A 
allocations of those schools receiving an increase in the title I, part 
A funds over the previous year to create the 4 percent reserve. This 
section does not authorize a school to receive title I, part A dollars 
it is not otherwise eligible to receive.
    (d) The Bureau will publish in the Federal Register a list of 
schools receiving funds under this section.



Sec. 30.122  Must the Bureau assist a school it identified for school 
improvement, corrective action, or restructuring?

    Yes, if a Bureau-funded school is identified for school improvement, 
corrective action, or restructuring, the Bureau must provide technical 
or other assistance described in 20 U.S.C. 6316(b)(4) and 20 U.S.C. 
6316(g)(3) .



Sec. 30.123  What is the Bureau's role in assisting Bureau-funded 
schools to make AYP?

    The Bureau must provide support to all Bureau-funded schools to 
assist them in achieving AYP. This includes technical assistance and 
other forms of support.



Sec. 30.124  Will the Bureau apply for funds that are available to help 
schools that fail to meet AYP?

    Yes, to the extent that Congress appropriates other funds to assist 
schools not meeting AYP, the Bureau will apply to the Department of 
Education for these funds.

[[Page 130]]



Sec. 30.125  What happens if a State refuses to allow a school access 
to the State assessment?

    (a) The Department will work directly with State officials to assist 
schools in obtaining access to the State's assessment. This can include 
direct communication with the Governor of the State. A Bureau-funded 
school may, if necessary, pay a State for access to its assessment tools 
and scoring services.
    (b) If a State does not provide access to the State's assessment, 
the Bureau-funded school must submit a waiver for an alternative 
definition of AYP.



              Subpart D_Responsibilities and Accountability



Sec. 30.126  What is required for the Bureau to meet its reporting 
responsibilities?

    The Bureau has the following reporting responsibilities to the 
Department of Education, appropriate Committees of Congress, and the 
public.
    (a) In order to provide information about annual progress, the 
Bureau must obtain from all Bureau-funded schools the results of 
assessments administered for all tested students, special education 
students, students with limited English proficiency, and disseminate 
such results in an annual report.
    (b) The Bureau must identify each school that did not meet AYP in 
accordance with the school's AYP definition.
    (c) Within its annual report to Congress, the Secretary shall 
include all of the reporting requirements of 20 U.S.C. 6316(g)(5).



Sec. 30.150  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)(PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec. 
30.104(a)(1), 30.104(b), 30.106, 30.107, 30.110, and 30.118. These 
collections have been approved by OMB under control number 1076-0163.



PART 31_FEDERAL SCHOOLS FOR INDIANS--Table of Contents




Sec.
31.0 Definitions.
31.2 Use of Federal school facilities.
31.3 Non-Indian pupils in Indian schools.
31.4 Compulsory attendance.
31.6 Coercion prohibited.
31.7 Handling of student funds in Federal school facilities.

    Authority: Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise 
noted.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.



Sec. 31.0  Definitions.

    As used in this part:
    (a) School district means the local unit of school administration as 
defined by the laws of the State in which it is located.
    (b) Cooperative school means a school operated under a cooperative 
agreement between a school district and the Bureau of Indian Affairs in 
conformance with State and Federal school laws and regulations.

(35 Stat. 72, 25 U.S.C. 295)

[33 FR 6472, Apr. 27, 1968]



Sec. 31.2  Use of Federal school facilities.

    Federal Indian school facilities may be used for community 
activities and for adult education activities upon approval by the 
superintendent or officer in charge.



Sec. 31.3  Non-Indian pupils in Indian schools.

    Indian and non-Indian children who are not eligible for enrollment 
in Bureau-operated schools under Sec. 31.1 may be enrolled in such 
schools under the following conditions:
    (a) In boarding schools upon payment of tuition fees, which shall 
not exceed the per capita cost of maintenance in the school attended, 
when their presence will not exclude Indian pupils eligible under Sec. 
31.1.
    (b) In day schools in areas where there are no other adequate free 
school

[[Page 131]]

facilities available, tuition fees may be charged for such enrollment at 
the discretion of the superintendent or other officer in charge provided 
such fees shall not exceed the tuition fees allowed or charged by the 
State or county in which such school is located for the children 
admitted in the public schools of such State or county.

(34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 U.S.C. 288, 289, 297)

[29 FR 5828, May 2, 1964]



Sec. 31.4  Compulsory attendance.

    Compulsory school attendance of Indian children is provided for by 
law.

(60 Stat. 962; 25 U.S.C. 231)

    Cross Reference: For penalties for the failure of Indians to send 
children to school and for contributing to the delinquency of minors, 
see Sec. 11.424 of this chapter.



Sec. 31.6  Coercion prohibited.

    There shall be no coercion of children in the matter of transfers 
from one school to another, but voluntary enrollment should be effected 
through maintenance of Federal Indian schools or programs which suit the 
needs and interests of the areas in which they are located.

(Sec. 1, 29 Stat. 348; 25 U.S.C. 287)



Sec. 31.7  Handling of student funds in Federal school facilities.

    The Secretary or his authorized representative may authorize 
officials and employees of the Bureau of Indian Affairs to accept and to 
disburse deposits of funds of students and student activity associations 
in schools operated by the Bureau in accordance with the purposes of 
such deposits. The following steps shall be taken to safeguard these 
funds:
    (a) A written plan of operation shall be developed by the membership 
of each student activity group. The plan of operation subject to the 
approval of authorized officials shall outline procedures and provide 
for a system of accounting for the student funds commensurate with the 
age and grade level of the students yet adequate for financial control 
purposes and shall stipulate the maximum operating capital of activity.
    (b) Appropriate safekeeping facilities shall be provided for all 
student personal and group funds and for the accounting or bookkeeping 
records.
    (c) Employees handling student funds in cumulative amounts in excess 
of $100 shall be covered by a comprehensive fidelity bond the penal sum 
of which shall be appropriately related to fund amounts handled.
    (d) Student funds accumulated in excess of the amount authorized for 
operating purposes by the plan of operation shall be deposited in 
federally insured depositories.
    (e) Periodic administrative inspections and financial audit of 
student fund operations shall be conducted by authorized Bureau 
personnel.

[26 FR 10637, Nov. 14, 1961]



PART 32_INDIAN EDUCATION POLICIES--Table of Contents




Sec.
32.1 Purpose and scope.
32.2 Definitions.
32.3 Mission statement.
32.4 Policies.
32.5 Evaluation of implementation of Pub. L. 95-561.

    Authority: Secs. 1130 and 1133 of Title XI of the Education 
Amendments of 1978 (92 Stat. 2143, 2321 and 2325, Pub. L. 95-561; 25 
U.S.C. 2010 and 2013).

    Source: 44 FR 58098, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 32.1  Purpose and scope.

    The purpose of this part is to state the policies to be followed by 
all schools and education programs under the jurisdiction of the Bureau 
of Indian Affairs. Contract schools operated by Indian Tribes or Alaska 
Native entities may develop their independent policies, consistent with 
contractual obligations, or adhere to these. The adherence to the 
appropriate policies shall reflect the best interests of the student, 
the Federal government, the Tribes and Alaska Native entities, and shall 
be based on educationally sound judgment.



Sec. 32.2  Definitions.

    As used in this part, the term:

[[Page 132]]

    (a) Agency School Board means a body, the members of which are 
appointed by the school boards of the schools located within such 
agency, and the number of such members shall be determined by the 
Director in consultation with the affected Tribes or Alaska Native 
entities except that, in agencies serving a single school, the school 
board of such school shall fulfill these duties.
    (b) Alaska Native means an Indian, Eskimo, or Aleut who is a member 
of an Alaska Native entity.
    (c) Alaska Native Entity means any Alaska Native village or regional 
or village corporation as defined in or established pursuant to the 
Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et 
seq.).
    (d) Alaska Native Village means any Native village as defined in 
section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 689; 
43 U.S.C. 1602 (c)).
    (e) Boarding school, hereinafter referred to as residential school, 
means a Bureau school offering residential care and support services as 
well as an academic program.
    (f) Bureau means the Bureau of Indian Affairs of the Department of 
the Interior.
    (g) Consultation means a conferring process with Tribes, Alaska 
Native entities, and Tribal organizations on a periodic and systematic 
basis in which the Bureau and Department officials listen to and give 
effect, to the extent they can, to the views of these entities.
    (h) Contract school means a school (other than a public school) 
which is Tribally operated and aided by a financial assistance contract 
with the Bureau.
    (i) Day school means a Bureau school offering an academic program 
and certain support services such as counseling, food, transportation, 
etc., but excluding residential care.
    (j) Director means the Director, Office of Indian Education 
Programs, Bureau of Indian Affairs.
    (k) Early childhood education means comprehensive education 
activities with continuity of educational approach for children ages 0-8 
years and their families, appropriate for their age, development, 
language and culture which supplement and support usual family 
responsibilities for child growth and development. They are coordinated 
with, but do not supplant, existing educational, health, nutritional, 
social and other necessary services.
    (l) Exceptional Education Programs mean the provision of services to 
those children who are identified as handicapped and have been found to 
meet the criteria of handicapped as defined in Pub. L. 94-142, and 
programs for gifted and talented students.
    (m) Indian means a member of an Indian Tribe.
    (n) Indian Organization means any group, association, partnership, 
corporation, or other legal entity owned or controlled by a federally 
recognized Indian Tribe or Tribes, or a majority of whose members are 
members of federally recognized Indian Tribes.
    (o) Indian Tribe or Tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony, or community which is recognized as eligible 
for the special programs and services provided by the United States to 
Indians because of their status as Indians.
    (p) Local school board, when used with respect to a Bureau school, 
means a body chosen in accordance with the laws of the Tribe or Alaska 
Native entity to be served or, in the absence of such laws, elected by 
the parents of the Indian children attending the school, except that in 
schools serving a substantial number of students from different Tribes 
or Alaska Native entities the members shall be appointed by the 
governing bodies of the Tribes and entities affected; and, the number of 
such members shall be determined by the Director in consultation with 
the affected Tribes and entities.
    (q) Post-secondary education means any education program beyond the 
age of compulsory education, including higher education, career, 
vocational, and technical.
    (r) Tribal Organization means an organization composed of or duly 
representing Tribal governments which may be national or regional in 
scope and function.

[[Page 133]]



Sec. 32.3  Mission statement.

    Recognizing the special rights of Indian Tribes and Alaska Native 
entities and the unique government-to-government relationship of Indian 
Tribes and Alaska Native villages with the Federal Government as 
affirmed by the United States Constitution, U.S. Supreme Court 
decisions, treaties, Federal statutes, and Executive Orders, and as set 
out in the Congressional declaration in sections 2 and 3 of the Indian 
Self-Determination and Education Assistance Act (Pub. L. 93-638; 88 
Stat. 2203; 25 U.S.C. 450 and 450a), it is the responsibility and goal 
of the Federal government to provide comprehensive education programs 
and services for Indians and Alaska Natives. As acknowledged in section 
5 of the Indian Child Welfare Act of 1978 (Pub. L. 95-608; 92 Stat. 
3069; 25 U.S.C. 1901), in the Federal Government's protection and 
preservation of Indian Tribes and Alaska Native villages and their 
resources, there is no resource more vital to such Tribes and villages 
than their young people and the Federal Government has a direct 
interest, as trustee, in protecting Indian and Alaska Native children, 
including their education. The mission of the Bureau of Indian Affairs, 
Office of Indian Education Programs, is to provide quality education 
opportunities from early childhood through life in accordance with the 
Tribes' needs for cultural and economic well-being in keeping with the 
wide diversity of Indian Tribes and Alaska Native villages as distinct 
cultural and governmental entities. The Bureau shall manifest 
consideration of the whole person, taking into account the spiritual, 
mental, physical and cultural aspects of the person within family and 
Tribal or Alaska Native village contexts.



Sec. 32.4  Policies.

    In carrying out its Education mission, the Assistant Secretary for 
Indian Affairs through the Director shall:
    (a) Policy making. (1) Assure that no new policy shall be 
established nor any existing policy changed or modified without 
consultation with affected Tribes and Alaska Native Government entities.
    (2) Be guided in policy formulation and funding priorities, 
including the proposing and awarding of contracts and grants, by 
periodic and systematic consultation with governing bodies of Tribes and 
Alaska Native entities.
    (3) Ensure that Indian Tribes and Alaska Native entities fully 
exercise self-determination and control in planning, priority-setting, 
development, management, operation, staffing and evaluation in all 
aspects of the education process.
    (4) Ensure that each agency or local school board shall be 
authorized and empowered to function as the policy making body for the 
school, consistent with the authority granted by the tribes or Alaska 
Native entity(ies) served by the school(s).
    (b) Student rights. Ensure the constitutional, statutory, civil and 
human rights of all Indian and Alaska Native students, and respect the 
role of Tribal judicial systems where appropriate including, for 
example, ensuring that students have the right to be free from cruel and 
unusual punishment and that all disciplinary procedures shall be 
consistent with appropriate customs and practices of the appropriate 
Indian Tribe or Alaska Native village.
    (c) Equity funding. Assure that resources for all education programs 
are equitably distributed for the benefit of all Indian and Alaska 
Native students, taking into account special educational needs where 
they exist, as further described in part 39 of this subchapter.
    (d) Direction of programs. Ensure that the education function be 
structured in such a manner that all matters relating to the operation 
of education programs be administered by or be under the direction of 
education personnel.
    (e) Respect for family. Promote, respect and defend the cohesiveness 
and integrity of the family, and Tribal and Alaska Native community, as 
they relate to the educational and social prerogatives of the Tribes and 
Alaska Native entities.
    (f) Religious freedom. Promote and respect the right to cultural 
practices and religious freedom for all students, consistent with Tribal 
and Alaska Native entities' wishes and with the provisions of the 
American Indian Religious Freedom Act (92 Stat. 469; Pub. L. 95-341; 42 
U.S.C. 1996).

[[Page 134]]

    (g) Tribal rights regarding governing bodies and planning. (1) 
Develop in consultation with Tribes and Alaska Native entities a plan to 
include their direct involvement in short and long-range planning of 
Bureau operated post-secondary schools through the formation of policy 
making governing boards.
    (2) Encourage and defend the right of the Tribes and Alaska Native 
entities to govern their own internal affairs in all matters relating to 
education, and their right to determine the equitable and appropriate 
composition of governing boards at Bureau off-reservation and post-
secondary schools.
    (h) Multilingual education. Provide for a comprehensive 
multicultural and multilingual educational program including the 
production and use of instructional materials, culturally appropriate 
methodologies and teaching and learning strategies that will reinforce, 
preserve and maintain Indian and Alaska Native languages, cultures, and 
histories which school boards, Tribes and Alaska Native entities may 
utilize at their discretion.
    (i) Choice of school. Afford Indian and Alaska Native students the 
opportunity to attend local day schools and other schools of choice and 
the option to attend boarding schools when the student and parent or 
guardian determine it is in the student's best interest and consistent 
with the provisions of the Indian Child Welfare Act of 1978 (Pub. L. 95-
608) except that, residential schools shall not be used as substitutes 
for providing adequate local family social services. Each school shall 
establish its attendance area in cooperation with neighboring schools.
    (j) Tribal education plans. Assist Tribes and Alaska Native entities 
at their request in the development of Departments of Education, 
education codes, and comprehensive education plans.
    (k) Advocacy and coordination. (1) Serve as an advocate for Indian 
Tribes and Alaska Native entities in education matters before the 
Federal, State and local governments.
    (2) Assume an assertive role in coordinating comprehensive support 
for Indian and Alaska Native students internally and from other agencies 
in education, mental and physical health, juvenile justice, job 
training, including apprenticeship programs and other related Federal, 
State and local programs and services.
    (3) Serve as an advocate and carry out responsibilities for Indian 
and Alaska Native students in public and other non-Bureau operated 
schools consistent with the wishes of the appropriate Indian Tribes and 
Alaska Native entities, particularly in regard to Impact Aid (Pub. L. 
81-874), Johnson-O'Malley, and all Elementary and Secondary Education 
Act programs.
    (l) Student assessment. Establish and maintain a program of research 
and development to provide accurate and culturally specific assessment 
instruments to measure student performance in cooperation with Tribes 
and Alaska Native entities.
    (m) Recruitment of Indians. Adopt procedures to insure that 
qualified Indian and Alaska Native educators are recruited for positions 
appropriate to their cultural background and qualifications.
    (n) Priorities in contracts and grants. Provide financial support 
through contracts, grants or other funding mechanisms with first 
priority given to the Tribes and Alaska Native entities, Tribal 
organizations, Tribally controlled community colleges, and Indian or 
Alaska Native professional or technical assistance organizations which 
have the sanction of the benefitting Tribes and Alaska Native entities.
    (o) Community school concept. Promote the community school concept 
by encouraging year around multi-use of educational facilities, 
equipment and services for Tribal, Alaska Native village, and community 
development.
    (p) Education close to home. Provide day and residential educational 
services as close to an Indian or Alaska Native student's home as 
possible, except when a student elects to attend a school elsewhere for 
specialized curricular offerings or services.
    (q) Tribal notification and involvement and program flexibility. (1) 
Notify Indian Tribes and Alaska Native entities of proposed, pending or 
final Federal legislation, appropriations, Solicitor's and Attorney 
General's opinions and court decisions affecting Indian and Alaska

[[Page 135]]

Native education for the purposes of information and consultation, 
providing them ready access at the local level to all evaluations, data 
records, reports and other relevant information, consistent with the 
provisions of the Privacy and Freedom of Information Acts.
    (2) Implement rules, regulations, procedures, practices, and 
standards to insure flexibility in the exercise of local Tribal or 
Alaska Native village options, and provide for input in periodic 
reviews, evaluations, and revisions to meet changing needs and 
circumstances.
    (r) Career and higher education. (1) Ensure to the extent possible 
that all students who choose to pursue career and post-secondary 
education, including but not limited to, undergraduate and graduate 
programs, or preparation for skilled trades, receive adequate academic 
or other preparation, at the schools of their choice, assuring that 
students are provided adequate support services to enable them to meet 
their educational goals.
    (2) Extend to Tribes and Alaska Native entities the prerogative of 
determining those critical professions and fields of study in post-
secondary education which are of the highest priority to meet their 
economic and cultural goals.
    (s) Planning, maintenance and use of facilities. (1) Ensure that the 
needs of the students and Tribal or Alaska Native community will receive 
first priority in the planning, design, construction, operation and 
maintenance of Bureau schools and residential facilities, rather than 
other considerations, such as ease of maintenance, and that these 
facilities assure a supportive environment for learning, living and 
recreation.
    (2) Maintain all school and residential facilities to meet 
appropriate Tribal, State or Federal safety, health and child care 
standards. If a conflict exists in these standards, the Federal standard 
shall be followed; in the absence of a Federal standard, the Tribal 
standard shall be followed. In case of conflict, any such Tribal health 
or safety standards shall be no greater than any otherwise applicable 
State standard.
    (t) Alternative, innovative and exemplary programs. Vigorously 
encourage and support alternative, innovative and exemplary programs 
reflecting Tribal or Alaska Native village specific learning styles, 
including but not limited to, parent-based early childhood education 
programs, adult and vocational technical education, library and media 
services, special education including programs for handicapped, gifted 
and talented students, summer programs, and career development.
    (u) Training. Provide support and technical assistance at all levels 
for the training of duly sanctioned Tribal and Alaska Native education 
representatives involved in educational decisionmaking, including pre-
service and in-service training for educators.
    (v) Tribally controlled community colleges. Assist Tribes and Alaska 
Natives in their planning, designing, construction, operation and 
maintenance of Tribally controlled community colleges, consistent with 
all appropriate legislation. (See part 41 of this subchapter.)
    (w) Equal opportunity. Establish and enforce policies and practices 
to guarantee equal opportunity and open access to all Indian and Alaska 
Native students in all matters relating to their education programs 
consistent with the provisions of the Privacy and Freedom of Information 
Acts.
    (x) Accountability, evaluation of MIS. (1) Enforce a strict standard 
of fiscal, programmatic and contract accountability to the Tribes and 
Alaska Native entities and assist them in the development of their own 
standards of accountability and carry out annual evaluations of all 
Bureau-operated or funded education programs.
    (2) Provide and make available a computerized management information 
system which will provide statistical information such as, but not 
limited to, student enrollment, curriculum, staff, facilities, student 
assessments and related educational information.
    (y) Accreditation. (1) Encourage and assist all Bureau and contract 
schools to attain appropriate State, regional, Tribal or national 
accreditation.
    (2) Assist and promote the establishment of Indian regional and/or 
national accrediting associations for all levels of Indian Education.

[[Page 136]]

    (z) Eligibility for services. Serve Indian and Alaska Native 
students who are recognized by the Secretary of the Interior as eligible 
for Federal services, because of their status as Indians or Alaska 
Natives, whose Indian blood quantum is \1/4\ degree or more. In the 
absence of other available facilities, children of non-Indian Bureau 
personnel or other non-eligibles may be served subject to the provisions 
of 25 U.S.C. 288 and 289.
    (aa) Appropriations. Aggressively seek sufficient appropriations to 
carry out all policies herein established subject to the president's 
budget and the Department's budgetary process.



Sec. 32.5  Evaluation of implementation of Pub. L. 95-561.

    The Director, Office Indian Education Programs will develop 
guidelines for evaluating all functional and programmatic 
responsibilities associated with title XI of the Education Amendments of 
1978 (Pub. L. 95-561), and in the January 1, 1981 annual report, as 
provided in section 1136, of Pub. L. 95-561 include a statement of the 
specific program toward implementing these policies.



PART 33_TRANSFER OF INDIAN EDUCATION FUNCTIONS--Table of Contents




Sec.
33.1 Definitions.
33.2 Policy.
33.3 Delegation of authority.
33.4 Redelegation of authority.
33.5 Area education functions.
33.6 Agency education functions.
33.7 Implementing procedures.
33.8 Realignment of area and agency offices.
33.9 Development of procedures.
33.10 Issuance of procedures.

    Authority: Sec. 1126, Pub. L. 95-561, Education Amendments of 1978 
(92 Stat. 2143, 2391; 25 U.S.C. 2006).

    Source: 44 FR 58103, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 33.1  Definitions.

    (a) Agency means that organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    (b) Early childhood means education activities serving the 0 to 8 
year old child, including pre-natal, child care, kindergarten, homebase, 
homebound, and special education programs.
    (c) Elementary and secondary education means those programs serving 
the child from grade one through grade twelve.
    (d) Operating level means the organizational level at which direct 
educational services are performed.
    (e) Personnel directly and substantially involved means those 
persons who provide services which affect the operation of Indian 
education programs, including (but not limited to) school or institution 
custodial or maintenance personnel, and whose services for Indian 
education programs require the expenditure of at least 51 percent of the 
employee's working time.
    (f) Post-secondary means education programs that are provided for 
persons past the age for compulsory education to include continuing 
education, higher education, undergraduate and graduate, career and 
adult education. As used in this Act, the term Post-Secondary shall 
include those Bureau of Indian Affairs programs operated at Southwestern 
Indian Polytechnic Institute, the Institute of American Indian Arts, and 
Haskell Indian Junior College, and those operated at Tribally controlled 
community colleges under Pub. L. 95-471.



Sec. 33.2  Policy.

    It is the policy of the Department of the Interior that:
    (a) Indian control of Indian affairs in all matters relating to 
education shall be facilitated.
    (b) Authority to perform education functions shall be delegated 
directly from the Assistant Secretary-Indian Affairs to the Director, 
Office of Indian Education Programs.
    (c) Administrative authority shall be compatible with program 
authorities; and, both shall be delegated to the operating level to 
assure efficient and effective delivery of education services to Indian 
children, youth, and adults.
    (d) The Director, Office of Indian Education Programs shall 
supervise the operation of Indian education program personnel at the 
Arena, Agency,

[[Page 137]]

and the three Bureau of Indian Affairs post-secondary institutions.
    (e) Indian Education program functions to be performed at the Area 
office level shall include those dealing with higher education, Johnson-
O'Malley aid to non-Bureau schools, off-reservation boarding schools, 
those education program operations serving tribes from more than one 
Agency except those at the three post-secondary institutions, on-
reservation education functions located at an Agency where no 
educational personnel are assigned, education contract operations, and 
adult education.



Sec. 33.3  Delegation of authority.

    The administrative and programmatic authorities of the Assistant 
Secretary--Indian Affairs pertaining to Indian education functions shall 
not be delegated to other than the Director, Office of Indian Education 
Programs. The Assistant Secretary shall publish delegations of 
authorites to the Director in the Bureau of Indian Affairs Manual after 
the effective date of these regulations.



Sec. 33.4  Redelegation of authority.

    The authorities of the Assistant Secretary--Indian Affairs as 
delegated to the Director, Office of Indian Education Programs may be 
redelegated by the Director to a Bureau of Indian Affairs Agency 
Superintendent for Education, to a Bureau Area Education Programs 
Director, or to a President of a Bureau of Indian Affairs post-secondary 
education institution.



Sec. 33.5  Area education functions.

    A Bureau Area Education Programs Director shall perform those Bureau 
of Indian Affairs education functions related to Johnson-O'Malley aid to 
non-Bureau schools, higher education, Bureau peripheral dormitories, 
adult education, off-reservation residential schools, on-reservation 
functions located at an Agency where no education personnel are 
assigned, education contract operations, and those education program 
operations serving Tribes from more than one Agency, except those of the 
Bureau's post-secondary institutions.



Sec. 33.6  Agency education functions.

    A Bureau Agency Superintendent for Education shall perform those 
education functions related to elementary and secondary education, early 
childhood education, peripheral dormitories which have been supervised 
prior to Pub. L. 95-561, and exceptional education programs as defined 
in 25 CFR part 32. This section shall not be construed to remove higher 
education, adult education and/or Johnson-O'Malley programs currently 
administered at the Agency level. Further, the Director under the 
authority of Sec. 33.4 will periodically review Area programs such as 
higher education, adult education, and Johnson-O'Malley for 
consideration to assign to Agency level administration.



Sec. 33.7  Implementing procedures.

    (a) The Assistant Secretary--Indian Affairs shall:
    (1) Implement the transfer for Indian education functions from the 
jurisdiction of Agency Superintendents and Area Office Directors to the 
Director, Office of Indian Education Programs.
    (2) Modify existing descriptions of positions for Area Office 
Directors, Agency Superintendents, and all other personnel directly and 
substantially involved with the provisions of education services by the 
Bureau of Indian Affairs.
    (b) The Director, Office of Indian Education Programs shall:
    (1) For Area, Agency, and Bureau of Indian Affairs postsecondary 
institutional personnel:
    (i) Properly list the duties of each employee required to perform 
functions redelegated by the Director;
    (ii) Define the responsibilities for monitoring and evaluating 
education programs; and
    (iii) Exercise supervision of these employees.
    (2) Define responsibilities for employees providing technical and 
coordinating assistance for support services

[[Page 138]]

to the Director, Office of Indian Education Programs and his/her 
subordinates, including procurement, contracting, personnel, and other 
administrative support areas.

[44 FR 58103, Oct. 9, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 12702, Mar. 30, 1984]



Sec. 33.8  Realignment of area and agency offices.

    The Assistant Secretary--Indian Affairs shall implement Bureau of 
Indian Affairs Area Office and Agency Office reorganizations required to 
structure these offices consistent with education program activities to 
be undertaken at those levels.



Sec. 33.9  Development of procedures.

    The Director, Office of Indian Education Programs shall prepare and 
promulgate procedures to govern the provision of support services by the 
Bureau of Indian Affairs for the education function. These procedures 
shall be consistent with existing laws, regulations, Executive Orders, 
and Departmental policies governing administrative support services. 
These provisions shall be prepared in consultation with those personnel 
within the Bureau of Indian Affairs who are responsible to the 
Commissioner of Indian Affairs for providing support services.



Sec. 33.10  Issuance of procedures.

    The Assistant Secretary--Indian Affairs, directly or through the 
Commissioner of Indian Affairs, shall issue procedures in the Bureau of 
Indian Affairs Manual governing the provision of support services to the 
Bureau's Education Office function.



PART 36_MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF INDIAN 
CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS--Table of Contents




                      Subpart A_General Provisions

Sec.
36.1 Purpose, scope, and information collection requirements.
36.2 Applicability.
36.3 Definitions.

                    Subpart B_Educational Management

36.10 Standard I--Philosophy and goals.
36.11 Standard II--Administrative requirements.
36.12 Standard III--Program needs assessment.
36.13 Standard IV--Curriculum development.

                Subpart C_Minimum Program of Instruction

36.20 Standard V--Minimum academic programs/school calendar.
36.21 Standard VI--Kindergarten instructional program.
36.22 Standard VII--Elementary instructional program.
36.23 Standard VIII--Junior high/middle school instructional program.
36.24 Standard IX--Secondary instructional program.

               Subpart D_Student Instructional Evaluation

36.30 Standard X--Grading requirements.
36.31 Standard XI--Student promotion requirements.
36.32 Standard XII--Graduation requirements for a high school diploma.

                     Subpart E_Instructional Support

36.40 Standard XIII--Library/media program.
36.41 Standard XIV--Textbooks.
36.42 Standard XV--Counseling services.
36.43 Standard XVI--Student activities.

              Subpart F_Evaluation of Educational Standards

36.50 Standard XVII--School program evaluation and needs assessment.
36.51 Standard XVIII--Office of Indian Education Programs and Agency 
          monitoring and evaluation responsibilities.

                  Subpart G_National Dormitory Criteria

36.70 Scope of subpart.
36.71 General provisions.
36.72 Elementary level dormitories.
36.73 Secondary level dormitories.
36.74 Homeliving (dormitory operations).
36.75 Space and privacy.
36.76 Compliance for the National Criteria for Dormitory Situations.
36.77 Waivers and revisions.

    Authority: Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 
2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 
U.S.C. 2901, Title I of P.L. 101-477.

    Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted.

[[Page 139]]



                      Subpart A_General Provisions



Sec. 36.1  Purpose, scope, and information collection requirements.

    (a) The purpose of this rule is to establish minimum academic 
standards for the basic education of Indian children for Bureau-operated 
schools and for those Indian-controlled contract schools which adopt 
these standards and to establish national criteria for dormitory 
situations for schools operated by the Bureau of Indian Affairs and for 
Indian-controlled contract schools operating dormitories.
    (b) The information collection requirement contained in Sec. 
36.61(a) has been approved by the Office of Management and Budget under 
44 U.S.C. 3507 and assigned clearance number 1076-0092. The information 
is being collected to evaluate waiver request(s) from tribal 
government(s) and school board(s). The information will be used to 
ascertain the approval of academic waiver request. The obligation to 
respond is mandatory under 25 U.S.C. 2001. The information collection 
requirements contained in Sec. Sec. 36.71(g), 36.74(f), and 36.76(b) of 
this rule are not required to be approved by the Office of Management 
and Budget since less than ten persons or tribes are affected by the 
information collection requirement of this rule. However, when ten or 
more persons or tribes become affected by this requirement, the Bureau 
will submit an approval request.

[50 FR 36816, Sept. 9, 1985, as amended at 70 FR 21951, Apr. 28, 2005]



Sec. 36.2  Applicability.

    The national criteria for dormitory situations established under 
subpart H will serve as a minimum requirement and shall be mandatory for 
all Bureau-operated and Indian-controlled contract schools.

[50 FR 36816, Sept. 9, 1985, as amended at 70 FR 21951, Apr. 28, 2005]



Sec. 36.3  Definitions.

    For purposes of this part, the following definitions apply:
    Accreditation means a school has received an official decision by 
the State(s) department(s) of education, or another recognized agency 
having official authority, that, in its judgment, the school has met the 
established standards of quality.
    Agency means the current organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian tribes.
    Agency school board as defined in sec. 1139(1), Pub. L. 95-561, 
means a body, the members of which are appointed by the school boards of 
the schools located within such Agency. The number of such members shall 
be determined by the Director in consultation with the affected tribes. 
In Agencies serving a single school, the school board of that school 
shall function as the Agency school board.
    Agency Superintendent for Education means the Bureau official in 
charge of education functions at an Agency and to whom the school 
supervisor(s) and other educators under the Agency's jurisdiction 
report.
    Area Education Programs Administrator means the Bureau official in 
charge of Bureau education programs and functions in a Bureau Area 
Office and is responsible for off-reservation residential schools, and, 
in some cases, peripheral dormitories and on-reservation day schools not 
receiving services from the Agency Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Authentic assessment means the testing of higher order thinking 
skills by monitoring performance of tasks requiring analysis, 
creativity, and application skills in real life situations.
    Average daily membership (ADM) means the aggregate days membership 
of a given school during a given reporting period divided by the number 
of days school is in session during this period. Only days on which the 
students are under the guidance and direction of teachers shall be 
considered as days in session. The reporting period is generally a given 
regular school term.
    Basic academic skills means the abilities acquired by observation, 
study, or experience in mental and/or physical performance (e.g., 
proficiency in planning and investigating, operational

[[Page 140]]

techniques, comprehension, organization, execution, remembrance and 
application of knowledge to acquire a desired result) basic to the 
mastery of school work or other activity.
    Basic education means those components of education emphasizing 
literacy in language arts, mathematics, natural and physical sciences, 
history, and related social sciences.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Certification means the general process by which the State or Agency 
authorized by the State adjudges and stipulates that an individual meets 
the established standards which are prerequisite to employment for a 
teacher or administrator in education.
    Competency means having the requisite abilities, skills, or a 
specified level of mastery.
    Computer literacy used here means the general range of skills and 
understanding needed to function effectively in a society increasingly 
dependent on computer and information technology.
    Content area means the usual school subjects of instruction, such 
as: Language arts, mathematics, science, social studies, fine arts, 
practical arts, health, and physical education.
    Counselor means a staff member, including those in both academic and 
dormitory situations, who helps the students to understand educational, 
personal, and occupational strengths and limitations; to relate 
abilities, emotions, and aptitudes to educational and career 
opportunities; to utilize abilities in formulating realistic plans; and 
to achieve satisfying personal and social development.
    Course of study means a written guide prepared by administrators, 
supervisors, consultants, and teachers of a school system or school, as 
an aid to teaching a given course or an aspect of subject-matter content 
to a given category of pupil.
    Criterion-referenced test means an achievement test designed to 
measure specific skills within a subject area. Test results indicate 
which skills a student has or has not learned.
    Days means calendar days.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau.
    Dormitory means a facility which provides students boarding and 
lodging on a temporary residential basis for the purpose of attending a 
Bureau-operated or Indian-controlled contract or public school.
    Dormitory manager means a staff member who manages the day-to-day, 
24-hour operation of one or more dormitories.
    Elementary school is defined as any combination of grades K-8 except 
when any of these grades are included in the junior high or middle 
school level.
    Exceptional child program means a program for students who are 
eligible to receive education and related services as defined by 25 CFR 
39.11(i).
    Feeder school means a school whose exiting students are absorbed by 
a school offering instruction on the next higher grade level.
    Formative evaluation is an evaluation of progress during the 
implementation of a program. Its purpose is to provide immediate 
feedback on results to enable modifying the processes used in order to 
enhance success and prevent failure.
    Goals means a statement of what the school system is attempting to 
do to meet the comprehensive educational needs and interests of its 
pupils, in accordance with its statement of philosophy.
    Grade means the portion of a school program which represents the 
work of one regular school year; identified by a designation such as 
kindergarten, grade 1 or grade 10.
    Grade level is a designation applied to that portion of the 
curriculum which represents the work of one regular school year.
    High school is defined as grades nine through twelve, except when 
grade nine is included in the junior high or middle school 
organizational unit.
    Higher order thinking skills (or advanced skills) means skills such 
as reading comprehension, written composition, and mathematical 
reasoning. They differ from basic or discrete skills such as phonetic 
decoding and arithmetic operations.

[[Page 141]]

    Indian-controlled contract school means a school that is operated by 
a tribal organization and funded under a contract with the Bureau.
    Indian student means a student who is a member of an Indian tribe 
and is one-quarter (\1/4\) or more degree of Indian blood quantum.
    Indian tribe or tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony or community, including any Alaska Native 
village or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    Intense residential guidance means the program for residential 
students who need special residential services due to one or more of the 
problems as stated in 25 CFR 39.11(h).
    Junior high or middle school is defined as grades seven and eight, 
but may include grade six when it is not included in the elementary 
school level and/or grade nine when it is not included in the high 
school level.
    Kindergarten means a group of students or a class that is organized 
to provide educational experiences for children for the year immediately 
preceding the first grade.
    Librarian means a certificated school employee whose principal 
responsibilities include selection, acquisition, preparation, 
cataloging, and circulation of books and other printed materials; 
planning the use of the library by teachers and students; and 
instructing students in the use of library books and materials, whether 
the library is maintained separately or as a part of an instructional 
materials center.
    Local school board when used with respect to a Bureau-operated 
school means a body chosen in accordance with the laws of the tribe to 
be served or, in the absence of such laws, the body elected by the 
parents of the Indian children attending a Bureau-operated school. In 
schools serving a substantial number of students from different tribes, 
the members shall be appointed by the governing bodies of the tribes 
affected and the number of such members shall be determined by the 
Director in consultation with the affected tribes.
    Objectives means a statement of the general, long-range aims and the 
specific, short-range aims which indicate what the school is attempting 
to do to meet the needs of the students in accordance with the 
philosophy, goals, and policies of the school system.
    Paraprofessional means a staff member who works with and is under 
the supervision of a professional staff member but who does not have 
full professional status, e.g., teacher aide. The term denotes a level 
of knowledge and skills possessed by an individual or required of an 
individual to perform an assignment. The level of skills is usually at a 
predetermined minimum level.
    Parent means a natural parent or guardian or a person legally acting 
as parent.
    Peripheral dormitory is a facility which provides students boarding 
and lodging during the school year for the purpose of attending a public 
school.
    Regular program student means all students including those 
determined to be eligible for services as defined under the Exceptional 
Child Program, 25 CFR 39.11(i).
    Residential school means an educational institution in which 
students are boarded and lodged as well as taught.
    Residential Services under Exceptional Child Program means a program 
providing specialized residential care as determined by 25 CFR 39.11(i).
    School means an educational institution, including elementary, 
junior high or middle, high school, peripheral, cooperative, and 
contract schools serving students in grades Kindergarten through 12 and 
as further defined under 25 CFR 39.2(q).
    School board means an Agency or local school board.
    School day, instructional day, or teaching day is a day on which the 
school is open and students are under the guidance and direction of 
teachers in instructional activities where the minimum number of 
instructional hours are met.
    School Supervisor means the official in charge of a school and/or 
peripheral dormitory who reports to an Agency

[[Page 142]]

School Superintendent or an Area Education Programs Administrator, as 
appropriate.
    Secretary means the Secretary of the Interior.
    Self-contained class means a class having the same teacher or team 
of teachers for all or most of the daily session.
    Standard means the established criterion and/or specified 
requirement which must be met and maintained.
    Summative evaluation means a systematic analysis of the results or 
products of a program after it is completed. Its purpose is to determine 
the extent to which the objectives of the program have or have not been 
achieved. One form of summative evaluation compares results with those 
of another ``control'' program using different procedures. Other forms 
compare results with past results or predetermined target outcomes.
    Teacher means a certified staff member performing assigned 
professional activities in guiding and directing the learning 
experiences of pupils in an instructional situation.
    Unit/Unit of instruction means a major subdivision of instruction 
generally composed of several topics including content and learning 
experiences developed around a central focus such as a limited scope of 
subject matter, a central program, one or more related concepts, one or 
more related skills, or a combination of these. One unit equals one full 
year of instruction in a subdivision thereof. Unit and credit shall be 
used interchangeably.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



                    Subpart B_Educational Management



Sec. 36.10  Standard I--Philosophy and goals.

    (a) Each school shall develop a written mission statement and 
philosophy of education that addresses the accumulation of knowledge and 
development of skills, interests, appreciations, ideals, and attitudes 
within the school's total educational program. A statement of expected 
outcomes shall outline what the school is attempting to do to meet the 
needs and interests of its students and community in accordance with the 
school's mission statement and philosophy.
    (b) The statement of philosophy and goals shall be developed with 
the involvement of students, parents, lay citizens, school staff, and 
tribe(s) and shall be formally adopted by the local school board.
    (c) The philosophy and goals shall be reviewed annually and revised 
as necessary by each school.
    (d) A copy of the philosophy and goals shall be submitted to the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.
    (e) Informational provisions shall be developed in the form of a 
manual, handbook, brochure, or other written document(s) of the minimum 
academic standards of the school's programs and the basic rules and 
procedures of the school. The staff, students, and parents shall receive 
the written document or documents and have same explained to all who 
request explanation. The topics covered in the document(s) shall include 
but not be limited to the following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered;
    (3) A brief explanation of curricular offerings;
    (4) A copy of student rights handbook;
    (5) Basic practices related to:
    (i) Grading system;
    (ii) Graduation requirements, if applicable;
    (iii) Attendance policies;
    (iv) Special programs at the school; and
    (v) Student activities available for students.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.11  Standard II--Administrative requirements.

    (a) Staffing. Each school shall, at a minimum, meet the following 
requirements:
    (1) The overall school ratio of regular program students to regular 
program teachers in self-contained classrooms shall not exceed the 
following except

[[Page 143]]

under the conditions set forth in paragraphs (a)(4) (i) and (ii) of this 
section. Average daily membership (ADM) shall be used in meeting the 
following ratios.

------------------------------------------------------------------------
                           Level                                Ratio
------------------------------------------------------------------------
Kindergarten...............................................         20:1
1st grade--3rd grade.......................................         22:1
4th grade--high school.....................................         25:1
------------------------------------------------------------------------

    (2) Multi-grade classrooms that cross grade-level boundaries (e.g., 
K-1, 3-4, etc.) shall use the maximum of the lower grade. In grades K-8, 
grades shall be consolidated to meet the teacher ratios listed above.
    (3) The daily teaching load per teacher in departmentalized classes 
shall not exceed 150 students (ADM) except in activity type classes such 
as music and physical education.
    (4) Schools exceeding these specific staffing ratios for over 30 
consecutive days during one school year shall submit a justification for 
a request for a waiver to the Director, through the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate, which may be approved for a period not to exceed one 
school year and for the following reasons:
    (i) Additional classroom space is not available for establishing 
another class; or
    (ii) The school, Agency, Area and Office of Indian Education 
Programs Applicant Supply File has been exhausted and the required 
teacher position cannot be filled. However, efforts to fill the vacancy 
shall be continued.
    (5) Each school shall provide, in the absence of a regular teacher, 
a certified substitute teacher who meets the State substitute teacher 
qualifications. In the event that such a substitute is not available, 
coverage will be provided by a school employee designated by the school 
supervisor. A class cannot have as a teacher an employee without 
teaching credentials for more than 20 school days during any one school 
year.
    (b) Written school enrollment and attendance policies. Each school 
shall have written school enrollment and attendance policies in 
compliance with and/or consistent with 25 CFR 31, Federal Schools for 
Indians, the statutes of the State, and tribal education ordinances.
    (c) Immunization. School children shall be immunized in accordance 
with the regulations and requirements of the state in which they attend 
school or standards of the Indian Health Service.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994; 70 
FR 21951, Apr. 28, 2005]



Sec. 36.12  Standard III--Program needs assessment.

    The policy and procedures of each school and its curricula shall be 
developed and revised based on an assessment of educational needs. This 
needs assessment shall be conducted at least every seven (7) years at 
the same frequency as required in Sec. 36.50, School Program 
Evaluation. This assessment shall include at least the following:
    (a) A clear statement of student educational goals and objectives. A 
student educational goal is defined as a statement of the knowledge, 
skills, attitudes, or concepts students are expected to exhibit upon 
completion of a grade level. Student educational objectives are defined 
as statements of more specific knowledge, skills, attitudes, or concepts 
students must exhibit in order to achieve the goal.
    (b) The collection of appropriate data from which valid 
determinations, judgments, and decisions can be made with respect to the 
status of the educational program, e.g.,
    (1) Perceptions of the parents, tribes, educators, and the students 
with regard to the relevance and importance of the goals.
    (2) The extent to which educational goals and objectives have been 
achieved.
    (3) The data developed as a result of the evaluation outlined in 
Sec. 36.50 School Program Evaluation.
    (c) A statement of educational needs which identifies the difference 
between the current status of students and the desired goals for the 
students.
    (d) A plan of action to remediate assessed needs.

[[Page 144]]



Sec. 36.13  Standard IV--Curriculum development.

    (a) Each school shall implement an organized program of curriculum 
development involving certified and non-certified staff and shall 
provide the opportunity for involvement by members of the local 
community.
    (b) Curriculum development program activities shall be based on an 
analysis of school programs and shall be related to needs assessment and 
evaluation.
    (c) Each school shall involve staff and provide the opportunity for 
involvement by the tribal community in planning programs, objectives, 
and activities which meet student/teacher needs.



                Subpart C_Minimum Program of Instruction



Sec. 36.20  Standard V--Minimum academic programs/school calendar.

    (a) If an emergency arises from an uncontrollable circumstance 
during the school day which results in the dismissal of students by the 
school administration, the day may be counted as a school day provided 
that three-fourths of the instructional hours are met.
    (b) The educational program shall include multi-culture and multi-
ethnic dimensions designed to enable students to function effectively in 
a pluralistic society.
    (1) The school's language arts program shall assess the English and 
native language abilities of its students and provide instruction that 
teaches and/or maintains both the English and the primary native 
language of the school population. Programs shall meet local tribal 
approval.
    (2) The school program shall include aspects of the native culture 
in all curriculum areas. Content shall meet local tribal approval.
    (3) The school program shall assess the learning styles of its 
students and provide instruction based upon that assessment. The method 
for assessing learning styles shall be determined at the local level.
    (4) The school program shall provide for at least one field trip per 
child per year to broaden social and academic experiences.
    (c) All intraschool programs (e.g., library, instructional labs, 
physical education, music, etc.) which are directly related to or affect 
student instruction shall provide services from the beginning of the 
school term through the final class period at the close of the school 
term.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994; 70 
FR 21951, Apr. 28, 2005]



Sec. 36.21  Standard VI--Kindergarten instructional program.

    (a) The curriculum for kindergarten shall provide children with 
experiences which emphasize language development, native language where 
necessary as determined by 25 CFR 39.11(g), and performance of the 
requirements in paragraph (b) of this section. Such programs shall 
assist children in developing positive feelings toward themselves and 
others.
    (b) A kindergarten instructional program shall include but not be 
limited to:
    (1) Language (observing, listening, speaking).
    (2) Exploration of the environment (number, space and time 
relationships, natural science).
    (3) Psychomotor and socialization development.
    (4) Development of imaginative and creative tendencies.
    (5) Health education inclusive of the requirements contained in the 
Act of May 20, 1886, 24 Stat. 69.



Sec. 36.22  Standard VII--Elementary instructional program.

    (a) The elementary instruction programs, grades one through six, 
shall include but need not be limited to:
    (1) Language arts.
    (2) Mathematics.
    (3) Social studies.
    (4) Sciences.
    (5) Fine arts.
    (6) Physical education.
    (b) Each school shall integrate the following content areas into its 
curriculum:
    (1) Career awareness,
    (2) Environmental and safety education,
    (3) Health education (includes requirements contained in 24 Stat. 
69),

[[Page 145]]

    (4) Metric education, and
    (5) Computer literacy.



Sec. 36.23  Standard VIII--Junior high/middle school instructional 
program.

    (a) The instructional program shall reflect the school's philosophy 
and the needs of the students and the community. It shall be part of a 
progressive development that begins in the elementary program which 
precedes it and continues to the secondary program which follows.
    (b) The curriculum shall include the following required 
instructional content areas at each grade level but need not be limited 
to:
    (1) Language arts. One unit shall be required of each student every 
year.
    (2) Social studies. One unit shall be required of each student every 
year.
    (3) Mathematics. One unit shall be required of each student every 
year.
    (4) Science. One unit shall be required of each student every year.
    (5) Fine arts and practical arts. One unit each shall be required of 
each student in the junior high/middle school instructional program.
    (6) Computer literacy. One unit shall be required of each student in 
the junior high/middle school instructional program.
    (7) Physical education. One unit shall be required of each student 
in the junior high/middle school instructional program.
    (c) The following content areas shall be integrated into the 
curriculum.
    (1) Career exploration and orientation.
    (2) Environmental and safety education.
    (3) Metric education.
    (4) Consumer economics (including personal finances).
    (5) Health education (includes meeting the requirements contained in 
24 Stat. 69).
    (d) Languages other than English are encouraged to be offered as a 
content area beginning at junior high/middle school level.
    (e) Student enrollment in any laboratory or vocational exploration 
class shall be consistent with applicable health and safety standards.



Sec. 36.24  Standard IX--Secondary instructional program.

    (a) The secondary instructional program shall reflect the philosophy 
of the student, tribe, community, and school, and an awareness of the 
changing world.
    (b) The secondary instructional curriculum shall include the 
following content areas:
    (1) Language arts (communication skills).
    (2) Sciences.
    (3) Mathematics.
    (4) Social studies.
    (5) Fine arts and practical arts.
    (6) Physical education.
    (7) Languages other than English.
    (8) Driver education. (See guidelines available from the applicable 
State Department of Education.)
    (9) Vocational education. Curriculum shall be designed and directly 
related to actual occupational trends (national, regional, and local) 
and to introduce and familiarize students with various occupations in 
technology, industry and business, as well as required special skills 
and the training requisites. Programs shall be directed toward assisting 
students in making career choices and developing consumer skills and may 
include the following:
    (i) Vocational exploration,
    (ii) Vocational skill development, and
    (iii) School/on-the-job cooperative education programs.
    (c) The following shall be integrated into the curriculum:
    (1) Consumer economics (including personal finances),
    (2) Metric education,
    (3) Safety education, and
    (4) Health education. (In addition, the program shall meet the 
requirements contained in 24 Stat. 69.)
    (d) The high school program shall provide program coordination with 
feeder schools, career direction, and preparation for the student 
entering independent living through employment, post-secondary 
education, and/or marriage.
    (e) Yearly class schedules shall take into account the graduation 
requirements of each student.

[[Page 146]]

    (f) Student enrollment in any laboratory or vocational class shall 
be consistent with applicable health and safety standards.
    (g) Schools are encouraged to provide alternative programs that lead 
to high school completion for secondary students who do not function 
successfully in the regular academic setting.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



               Subpart D_Student Instructional Evaluation



Sec. 36.30  Standard X--Grading requirements.

    (a) Each school shall implement a uniform grading system which 
assesses a student's mastery of the prescribed objectives of the courses 
of study undertaken. The mastery of prescribed course objectives shall 
be the primary measure of academic attainment for reporting student 
grades on report cards.
    (b) The information derived from student instructional evaluations 
shall be shared with the student and with the parents and shall be used 
to give teachers and students direction for subsequent learning 
activities.
    (c) Parent/teacher and parent/teacher/student conferences focused on 
the student's instructional progress and development shall be held, 
where feasible and practical, to provide an additional means of 
communication between home and school. Residential schools may meet this 
standard by documenting the communication of student grades on report 
cards to parents.
    (d) Each school shall issue a report card to parents of students who 
are under the age of eighteen (18) and to students eighteen (18) years 
of age and older on a regular basis, but not less than four (4) times 
yearly. The report card shall include, but not be limited to, the 
following sections:
    (1) Recommendations and probable promotion status;
    (2) Appropriate signatures and request for return of report cards; 
and
    (3) Student attendance record.
    (e) A summary of each year's final card shall become part of the 
student's permanent school record.



Sec. 36.31  Standard XI--Student promotion requirements.

    Each school shall establish and implement a promotion policy which 
shall be submitted to and approved by the local school board and Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate. The requirements shall include, but not be limited to, 
the following:
    (a) Each grade level or equivalent shall have a minimum criteria for 
student promotion based primarily on measurable mastery of the 
instructional objectives.
    (b) Criterion-referenced tests that evaluate student skills shall be 
utilized for measuring the mastery of instructional objectives. The 
evaluation results shall form the basis for the promotion of each 
student.
    (c) A student who has not participated, either directly or through 
approved alternative instructional methods or programs, in a minimum of 
160 instructional days per academic term or 80 instructional days per 
semester without a written excused absence shall not be promoted. A 
school board or a school committee may review a promotion decision and, 
if warranted due to compelling and/or extenuating circumstances, rescind 
in writing such action on a case-by-case basis. Alternative 
instructional methods shall be submitted in writing for approval by the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.



Sec. 36.32  Standard XII--Graduation requirements for a high school 
diploma.

    Graduation requirements contained under this section shall be 
applied beginning with the graduating class of the 1987-88 school year.
    (a) Satisfactory completion of a minimum number of units shall be 
the measure for the issuance of a high school diploma.
    (b) To graduate, a student shall earn 20 units in a four year high 
school program unless the state in which the school is located exceeds 
these requirements, in which case the state's requirements shall apply; 
fifteen (15) units shall be required as follows:

[[Page 147]]

    (1) Language arts--four (4) units.
    (2) Mathematics--three (3) units.
    (3) Social studies--three (3) units.
    (i) One (1) unit in United States history;
    (ii) One-half (\1/2\) unit in civics/government;
    (iii) One-half (\1/2\) unit in tribal history/government;
    (iv) One-half (\1/2\) unit in Indian studies; and
    (v) One-half (\1/2\) unit in any other social studies;
    (4) Science--two (2) units.
    (i) One (1) unit in the general science area.
    (ii) One (1) unit in laboratory science areas, i.e., chemistry, 
physics, biology, zoology, laboratory anatomy.
    (5) Physical education--one (1) unit.
    (6) Practical arts--one (1) unit. Credit in any vocational course 
may also be used to satisfy this required unit.
    (7) Fine arts--one (1) unit. Music, art, dance, drama, theatre, and 
other fine arts courses may be used to satisfy this required unit. These 
are minimum requirements; local schools may establish academic or 
vocational requirements beyond those prescribed by these standards.
    (c) A school with an average enrollment of fewer than 75 students 
may offer subjects in alternate years. If schools use this pattern, 
alternating pairs of subjects shall be listed and approved by the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (d) Credits earned through approved correspondence or extension 
study may be accepted if such credits are from schools approved or 
accredited by the state in which they are located or by a college or 
university which is regionally accredited for such purposes.
    (e) Students who successfully complete the requirements of the High 
School Proficiency Examination in the State in which the school is 
located shall receive an endorsement so stating on their diplomas.



                     Subpart E_Instructional Support



Sec. 36.40  Standard XIII--Library/media program.

    (a) Each school shall provide a library/media program which shall, 
as a minimum, meet the applicable state and/or regional standards, but 
shall not be limited to these, and shall include the following:
    (1) A written set of instructional and service objectives shall be 
established that is integrated and consistent with the school's 
educational goals and philosophy. The librarian or educational media 
specialist, with students and staff, shall set objectives based on 
assessed academic and residential needs. The program and services will 
be evaluated yearly by the principal and the librarian or educational 
media specialist to determine the degree to which all objectives have 
been met.
    (2) A written policy for the selection of materials and equipment 
shall be developed by a library committee in collaboration with the 
librarian and be approved by the school board. The collection of 
materials shall include as a minimum the following:
    (i) A collection of books suitable for the range of student 
abilities and interests being served in the following ADM ratios.
    (A) Elementary K-6, 15 books per student
    (B) Middle 7-8, 12 books per student
    (C) Secondary 9-12, 10 books per student

It is required that materials pertaining to Indian Tribes and/or Alaskan 
Natives be integrated within this basic collection.
    (ii) Eight (8) to 12 percent of the basic collection must be 
composed of reference books, currently relevant and in a state of good 
physical condition, for practical use. Single copies of the principal 
textbooks used to complement instruction shall be in the collection, but 
textbooks cannot be counted toward this standard.
    (iii) A periodical collection, suitable for the range of student 
abilities and interests being served, consisting of one (1) periodical 
for every ten (10) students, shall be maintained. Schools of over 200 
will have a base collection of 20 periodicals.
    (iv) A professional collection for the school staff shall be 
developed and maintained by the librarian in cooperation with a faculty 
committee.

[[Page 148]]

    (v) A variety of audio-visual materials, suitable for the range of 
instruction being provided, of at least 750 items or five (5) items for 
each student, whichever is larger, and inclusive of materials located in 
the classrooms shall be maintained. This category includes some of each 
of the following: Tactile objects, globes, models, maps, films, film-
strips, microforms, slides, audio and video tapes, recordings, 
transparencies and graphics, and the equipment to use all of these. 
Multiple items within a specific set of materials will be counted as 
separate items.
    (3) There shall be a library media center serviced by a librarian. 
Schools with fewer than 200 students are encouraged, wherever feasible, 
to cooperate in sharing librarian resources. Schools within an Agency 
and/or Area may cooperatively share the costs and services of a 
librarian who shall facilitate sharing of the combined available 
resources among the cooperating schools in accordance with the following 
ratios:

                         School Enrollment (ADM)

Up to 100--\1/5\ time librarian
101-200--\1/5\ time librarian and \1/2\ time library aide or 20 hours of 
library activity
201-400--1 full-time librarian or \2/5\ time librarian provided the 
school has a full-time library aide
401+--1 full-time librarian and a full-time library aide

    (4) All libraries must conduct an annual inventory of available 
books, materials, and equipment in accordance with the acquisitions and 
selection policies.



Sec. 36.41  Standard XIV--Textbooks.

    (a) Each school shall establish a textbook review committee composed 
of teachers, parents, and students, and school board members. 
Appointment to the textbook review committee shall be subject to school 
board approval.
    (b) The textbook review committee shall establish a procedure and 
criteria for the annual review of textbooks and other materials used to 
complement instruction. The criteria shall include, but not be limited 
to, the following:
    (1) The textbook content shall meet the course objectives which are 
within the adopted school curriculum.
    (2) The textbooks shall, as much as possible, reflect cultures 
accurately.
    (3) The textbooks shall be current, in good physical condition, and 
varied in reading levels.
    (c) Each school shall equitably distribute instructional materials 
to all classrooms. Each school shall inventory all property and 
equipment annually prior to requisitioning additional materials. Copies 
of the inventory shall be kept on file by the school staff.



Sec. 36.42  Standard XV--Counseling services.

    Each school shall offer student counseling services concerned with 
physical, social, emotional, intellectual, and vocational growth for 
each individual. Counseling services shall be included in a school-wide 
assessment program.
    (a) Each Agency and Area, as appropriate, shall institute and 
supervise an assessment program for its schools in order to provide for 
the objective assessment of student academic performance. Required 
formal tests shall be administered annually to all regular program 
students in grades 4, 8, and 12. (The testing of special education and 
gifted/talented students shall be in accordance with respective 
regulations.) If required by state certification standards, schools may 
use the state mandated academic achievement tests and accompanying 
requirements. These formal tests and their subtest contents, as well as 
the test-related procedures, shall include, but not be limited to, the 
following:
    (1) Each Spring, schools shall conduct testing for grades 4, 8, and 
12 using a current version of a standardized academic achievement test 
based upon the national assessment standards designed to assess higher 
order thinking skills. All schools shall keep a current record, with the 
Office of Indian Education Programs, of the test the school administers 
each Spring and the testing dates.
    (2) Schools shall use some form of performance-based or authentic 
assessment in addition to standardized achievement testing.
    (3) Each school shall report the summative results of its assessment 
program to its respective Agency or

[[Page 149]]

Area, as appropriate, and its school board.
    (4) Parents/guardians shall be informed of their children's 
assessment results and provided with an explanation and interpretation 
to ensure adequate understanding of the results.
    (5) Each school's instructional program shall establish an ongoing 
student academic assessment program to ensure that defined assessment 
procedures are in place. The program shall include regular training in 
basic assessment procedures and routines for all teachers and other 
staff involved in student assessment.
    (6) Each Agency and Area, as appropriate, shall report the results 
of each school's formal Spring tests to the Office of Indian Education 
Programs by August 1 of each year. Summative information from 
performance-based and authentic assessments shall be reported at the 
same time.
    (b) Each counseling program shall provide the following:
    (1) Each school having a minimum school ADM of 200 students shall 
make provisions for the full-time professional services of a counselor, 
and each school enrolling fewer than 200 students shall make provisions 
for a part-time professional counselor.
    (2) The counselors shall be familiar with the unique tribal, social, 
and economic characteristics of students.
    (3) The counseling program shall contain the following:
    (i) A written referral procedure;
    (ii) Counseling techniques and documentation procedures to provide 
for the career, academic, social, and personal needs of the students 
which are based on the cultural beliefs and values of the students being 
served;
    (iii) Preventative and crisis counseling on both individual and 
group bases;
    (iv) Confidentiality and security of counseling records for each 
student; and
    (v) Design and implementation of orientation programs to facilitate 
the pupil's transition from elementary to junior high/middle school and 
from junior high/middle school to high school.
    (vi) Each junior or middle school and high school student shall 
receive academic counseling a minimum of twice yearly during which time 
the counselor shall assist the student in developing a written academic 
and career plan based on ability, aptitude, and interests. Additionally, 
counselors will assist high school students in selecting courses which 
satisfy the school's and the state's graduation requirements and the 
student's academic and career plan. Further, seniors will be given aid 
in completing registration and/or financial assistance applications for 
either vocational or academic post-secondary institutions.
    (vii) Each high school counseling program shall be required to have 
on file for each student a planned academic program of studies which is 
available from the regular course offerings of the school to meet the 
student's career objectives and which will show that the student has 
received counseling.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]



Sec. 36.43  Standard XVI--Student activities.

    All schools shall provide and maintain a well-balanced student 
activities program based on assessment of both student and program 
needs. Each activity program shall help develop leadership abilities and 
provide opportunities for student participation but not be limited to 
activities that include special interest clubs, physical activities, 
student government, and cultural affairs. The activity program shall be 
an integral part of the overall educational program.
    (a) All student activities shall be required to have qualified 
sponsors and be approved by the school supervisor, and the school board 
shall approve the overall activity plan. A qualified sponsor is a 
professional staff member of the school that is given responsibility to 
provide guidance or supervision for student activities.
    (b) A plan of student activity operations shall be submitted, by 
each activity at the beginning of each school year, to the school 
supervisor. The plan will include the purpose, structure, coordination, 
and planned types of fund-raising activities.
    (c) School may participate in interscholastic sports and activities 
on an

[[Page 150]]

informal or formal basis. On an informal basis, the Bureau-operated 
schools will coordinate with other schools in setting up a schedule of 
sports and games. Schools that participate in state-recognized leagues 
will abide by those state rules regulating inter-school competition.
    (d) Until comparable competitive opportunities are provided to all 
students, regardless of sex, no student shall be barred from 
participation in interscholastic competition in noncontact sports except 
on the basis of individual merit.
    (e) Residential schools shall plan and provide an intramural program 
for all students. The program shall include a variety of scholastic and 
sport activities.
    (f) Students shall be involved only in activities which are 
sanctioned by the school.
    (g) All student activities involved only in fund raising are 
required to establish a school/student activity bank account following 
school/student banking procedures outlined under 25 CFR 31.7. All 
student activity accounts shall be audited annually.
    (h) The school shall provide for the safety and welfare of students 
participating in school-sponsored activities.
    (i) Each sponsor of a student activity will be given orientation and 
training covering the responsibilities of a sponsor by the school 
supervisor.



              Subpart F_Evaluation of Educational Standards



Sec. 36.50  Standard XVII--School program evaluation and needs 
assessment.

    Each school shall complete a formal, formative evaluation at least 
once every seven (7) years beginning no later than the second complete 
school year following the effective date of this part. Schools shall 
follow state and/or regional accreditation, or accreditation 
requirements equal to the state in which a school is located. Each 
school shall follow the prescribed evaluation cycle. The primary purpose 
of this evaluation will be to determine the effects and quality of 
school programs and to improve the operations and services of the school 
programs.
    (a) Each school's evaluation design or model will provide objective 
and quantitative analysis of each area to be evaluated. The analysis 
shall include product and process evaluation methods. The areas to be 
reviewed will include, but not be limited to, the following:
    (1) School philosophy and objectives.
    (2) Administrative and organizational requirements.
    (3) Program planning and implementation.
    (4) Curriculum development and instruction.
    (5) Primary education.
    (6) Program of studies for elementary, junior high/middle, and high 
schools.
    (7) Grading requirements.
    (8) Promotion requirements.
    (9) High school graduation requirements.
    (10) Library/media.
    (11) Textbooks and other instructional materials.
    (12) Counseling services.
    (13) Medical and health services.
    (14) Student activities.
    (15) Transportation services.
    (16) Staff certification and performance.
    (17) Facilities (school plant).
    (18) Parent and community concerns.
    (19) School procedures and policies.
    (20) School board operations.
    (b) The Director, within six (6) months from the effective date of 
this part, shall distribute to each school, Agency or Area, as 
appropriate, a standardized needs assessment and evaluation instrument 
with guidelines for developing and applying a locally appropriate 
evaluation model for carrying out the requirements of this standard.



Sec. 36.51  Standard XVIII--Office of Indian Education Programs and Agency 
monitoring and evaluation responsibilities.

    (a) The Office of Indian Education Programs shall monitor and 
evaluate the conformance of each Agency or Area, as appropriate, and its 
schools with the requirements of this part. In addition, it shall 
annually conduct onsite monitoring at one-third of the Agencies and 
Areas, thereby monitoring onsite each Agency and/or Area

[[Page 151]]

at least once every three (3) years. Within 45 days of the onsite visit, 
the Director shall issue to each Agency Superintendent for Education or 
Area Education Programs Administrator, as appropriate, a written report 
summarizing the monitoring findings and ordering, as necessary, required 
actions to correct noted deficiencies.
    (b) Each Agency or Area, as appropriate, in conjunction with its 
school board shall monitor and evaluate the conformance of its school 
with the requirements of this part through an annual onsite evaluation 
involving one-third of the schools annually, thereby monitoring onsite 
each school at least once every three (3) years. Within 30 days of the 
onsite visit, the Agency Superintendent for Education or Area Education 
Programs Administrator, as appropriate, shall issue to the local school 
supervisor and local school board a written report summarizing the 
findings and ordering, as necessary, required actions to correct noted 
deficiencies.
    (c) Schools, Agencies, and Areas shall keep such records and submit 
to the responsible official or designee accurate reports at such times, 
in such form, and containing such information as determined by that 
official to be necessary to ascertain conformance with the requirements 
of this part.
    (d) Schools, Agencies, and Areas shall permit access for examination 
purposes by the responsible official, or any duly authorized designee, 
to any school records and other sources of information which are related 
or pertinent to the requirements of this part.
    (e) The Office of Indian Education Programs, Agency Superintendent 
for Education, or Area Education Programs Administrator, as appropriate, 
shall annually conduct a summative evaluation to assess the degree to 
which each Bureau educational policy and administrative procedure 
assists or hinders schools in complying with the requirements of this 
part. This will include, but not be limited to, the following actions:
    (1) Evaluate current policies and practices not related to this part 
and the effects thereof on the amount of time and resources required 
which otherwise would be available for these standards;
    (2) Modify any policies and practices which interfere with or 
compromise a school's capability to achieve and maintain these 
standards;
    (3) Invite non-Federal agencies to evaluate the effects current 
policies and procedures have had on complying with the requirements of 
this part; and
    (4) Submit annually to the Director a copy of the summative 
evaluation.



                  Subpart G_National Dormitory Criteria

    Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted. 
Redesignated at 70 FR 21951, Apr. 28, 2005.



Sec. 36.70  Scope of subpart.

    This subpart contains the criteria and mandatory requirements for 
all dormitories. The individual employee responsibilities, based on the 
terminology used to designate specific employee positions and their 
assigned responsibilities, may vary depending upon whether the dormitory 
is a direct Bureau operation or contract operation.



Sec. 36.71  General provisions.

    (a) The Homeliving Specialist is the administrative head of the 
dormitory who shall have sufficient autonomy and authority to ensure the 
successful functioning of all phases of the dormitory program, and, in 
dormitories attached to a school, shall report to the school supervisor.
    (b) In situations where a Bureau-funded dormitory is maintained, 
operated, and administered separately from the academic program, this 
dormitory will ensure access to or provide a guidance program equal to 
the standards as those under Sec. 36.42 of this part.
    (c) Students who qualify for residential services under the 
Exceptional Child Program must have, in their individualized education 
plan, objectives that are to be met in the homeliving program. 
Documentation to support completion of these objectives is required.

[[Page 152]]

    (d) Dormitories with intense residential guidance programs shall 
have updated written descriptions of the programs with stated purposes, 
objectives, activities, staffing, and evaluation system. Each student 
diagnosed as being in need of intense guidance services shall have a 
file which contains the following:
    (1) Documentation of eligibility according to the definition 
contained under 25 CFR 39.11(h);
    (2) Documentation of a diagnosis of the student's needs;
    (3) A placement decision signed by a minimum of three (3) staff 
members;
    (4) An individualized treatment plan which includes:
    (i) Referral date and referral sources;
    (ii) Diagnosis identifying specific needs;
    (iii) Specific goals and objectives to be met;
    (iv) Record of specific services including beginning and ending 
dates;
    (v) Designation of responsible staff person(s); and
    (vi) A means by which the student's progress and the effectiveness 
of the individualized treatment plan can be periodically reviewed and 
reevaluated.
    (e) Each dormitory program that does not have an academic program 
under subpart C shall make available career counseling information on 
educational and occupational opportunities and help students assess 
their aptitudes and interests. This shall be done on a continuing basis, 
beginning at the elementary level.
    (f) Counseling services shall be made available for students during 
non-academic hours.
    (g) Provisions shall be made to interpret to staff, students, and 
parents the administrative policies and practices of the dormitory. This 
provision shall be made in the form of a manual, handbook, brochure, or 
other written document that will be made available and explained to all 
who are interested. The topics shall include, but not be limited to, the 
following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered; and
    (3) A copy of the student rights handbook.
    (h) Program will be designed and orientation programs implemented to 
facilitate the pupils' transition from elementary to middle school and 
from middle to high school, where appropriate.
    (i) All dormitories shall provide and maintain a well-balanced 
student activities program based on assessment of both student and 
program needs. Programs shall provide opportunities for student 
participation in, but not limited to, activities that include special 
interest clubs, physical activities, student government, and cultural 
affairs. In addition, the following provisions shall be adhered to:
    (1) Dormitories shall plan and provide for an intramural program 
that includes a variety of scholastic and sport activities.
    (2) A plan of operation shall be submitted by each activity at the 
beginning of each school year to the school supervisor and approved by 
the school board. The plan shall include the purpose, structure, and 
coordination of all activities.
    (3) All dormitories conducting fund-raising activities are required 
to established a school/student activity bank account following school/
student banking procedures outlined under 25 CFR Sec. 31.7. All 
accounts shall be audited annually.



Sec. 36.72  Elementary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience in dealing with elementary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of counselor while holding the position of school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselors:

Less than 75 students: \1/2\ time counselor
75-150 students: 1 full-time counselor
151-225 students: 1 full-time and \1/2\ time counselor
226-300 students: 2 full-time counselors


For dormitories that exceed 300 students (ADM), additional counselor 
time

[[Page 153]]

shall be provided according to the above ratio. Dormitories within an 
Agency are encouraged to try a variety of approaches to guidance 
service. In this arrangement, the counselor's time may be shared between 
dormitories. As long as one half-time, professionally-trained counselor 
is provided, the dormitory program may use supportive personnel and 
teachers to meet the ratio.
    (d) Dormitory counselors' work hours shall be arranged to provide 
maximum availability of services to students when they are not in 
academic session.



Sec. 36.73  Secondary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience dealing with secondary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of a counselor while holding a position as a school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselor:

Less than 100 students: \1/2\ time counselor
100-199 students: 1 full-time counselor
200-300 students: 1 full-time and \1/2\ time counselor


For dormitories that exceed 300 students (ADM), counselor time will be 
provided according to the above radio. As long as one half-time, 
professionally trained counselor is provided, the dormitory program may 
use supportive personnel and teachers to meet the ratio.
    (d) Counselors' work hours shall be arranged to provide maximum 
availability of service to students when they are not in academic 
session.



Sec. 36.74  Homeliving (dormitory operations).

    Staff shall be provided so that at least one adult is on duty at all 
times when students are in the dormitory. Each dormitory program shall 
include, but not be limited to, the following:
    (a) Every dormitory facility shall be under the direct supervision 
of a dormitory manager. A building composed of separate wings or several 
floors shall be counted as one facility.
    (b) Each dormitory operation shall provide the following minimum on-
duty paraprofessional staff to student ratio (ADM):

 
                                                                Ratio
 
                              Grades 1 to 6
 
Weekdays:
  Mornings.................................................         1:30
  During school hours......................................         1:40
  Evenings.................................................         1:30
  Nights...................................................         1:40
Weekends:
  Mornings.................................................         1:30
  Evenings.................................................         1:30
  Nights...................................................         1:40
 
                             Grades 7 to 12
 
Weekdays:
  Mornings.................................................         1:50
  During school hours......................................         1:80
  Evenings.................................................         1:50
  Nights...................................................         1:80
Weekends:
  Mornings.................................................         1:50
  Evenings.................................................         1:50
  Nights...................................................         1:80
 


Dormitory operations for grades one through eight are encouraged to 
provide additional staff aides during the time children in the primary 
grades are dressing and preparing for breakfast and school. Staff ratios 
on weekends shall be reduced at boarding schools to adjust for those 
students who go home, according to the above ratio.
    (c) Group instruction and discussion session shall be held on 
various topics at least on a monthly basis, but preferably on a weekly 
basis. Topics to be presented may be determined by a committee comprised 
of students, staff, administrators, and parents. These topics shall 
include discussions of problems or needs that exist at the location and/
or community.
    (d) Each dormitory facility shall be cleaned daily when in operation 
to provide a safe and sanitary environment. Student assistance may be 
utilized; however, the responsibility for the cleanliness, safety, and 
sanitation of the facility shall rest with the dormitory administrator. 
Bed and bath linen shall be changed a minimum of once per week. 
Necessary toiletry items shall be made available to those

[[Page 154]]

students who are economically unable to provide them.
    (e) Dormitory operations shall have access to clothes washers and 
dryers. Equipment shall be utilized only for students' clothing. In 
grades one through six, residential paraprofessionals shall be 
responsible for the upkeep of clothing. Students in grades seven through 
12 shall be responsible for the upkeeping of their own clothing. In 
grades seven through 12, students shall be allowed to wash and dry their 
clothing after training is given in using the machines. Contracting for 
student clothing care may also be utilized under this part.
    (f) A system of student accountability shall be established at each 
residential facility. Minimum requirements of the system shall include 
an attendance procedure at least four (4) times per normal waking day 
for grades one through eight and two (2) times for grades nine through 
12. However, students in grades seven through 12 may be allowed to have 
a self check-in system provided that an employee reviews the roster 
within an hour of each designated check-in time. During sleeping hours, 
students in grades one through eight shall be checked on an hourly 
basis; students in grades nine through 12 shall be checked every two (2) 
hours. At the start of each school day, residential facilities 
supervisors shall report to the school office which students will not be 
in attendance. An intra-school pass system shall be developed and 
implemented.
    (g) Students shall be permitted to be released from the dormitory 
overnight, on weekends, or during vacation periods only when prior 
written approval is granted by the parent or guardian and only if the 
local school board adopts a policy governing the conditions of release. 
Such policy must adhere to the concept that the dormitory/school is 
acting in ``loco parentis.''
    (h) Dormitory facilities shall have a designated room or rooms which 
shall be utilized as an isolation room(s) for student health care needs. 
Students isolated in such room(s) shall be checked on a minimum of an 
hourly basis.
    (i) Each dormitory operation shall develop a written procedure for 
handling emergency situations. Such a procedure shall include names and 
telephone numbers of the responsible parties to contact in case of 
emergencies. Situations that shall be considered emergencies include 
life-threatening medical/health problems, power failures, walkaways, 
etc.
    (j) A tutoring program shall be developed and implemented to assist 
those students having academic difficulties. Each dormitory operation 
shall provide a time and place where tutoring, homework, reading, and/or 
studying can be done for at least one hour daily.
    (k) The responsible dormitory supervisor shall be accountable for 
reporting any hazardous or defective items in the dormitory to the 
appropriate supervisor and plant manager.
    (l) Leisure-time activities shall be provided to dormitory students. 
These activities may include recreational activities, clubs, arts/
crafts, and reading of newspapers and periodicals. Television viewing 
shall not be considered as structured leisure time unless a scheduled 
program provides educational benefit.
    (m) Lines of communication shall be established with other local 
social service agencies to assist in the resolution of problems that may 
extend beyond the confines of the dormitory. These agencies may be 
State, tribal, or Federal.
    (n) Dormitory personnel will receive training in emergency first aid 
procedures.



Sec. 36.75  Space and privacy.

    The configuration of sleeping space and other living areas will vary 
according to the grade levels of the occupants; however, sleeping rooms 
shall provide sufficient space and privacy for the resident students. 
The following space and privacy requirements shall be required for 
dormitories. A dormitory shall be considered at capacity when the 
addition of one more student would put the school out of compliance with 
the space standard; and additional students shall not be admitted for 
residential purposes.
    (a) Dormitory facilities for grades one through eight shall have 
space footage averaging from 40 to 60 square

[[Page 155]]

feet per student for sleeping rooms, exclusive of furniture (wardrobe, 
desks, beds, etc.).
    (b) Dormitories housing students who are in grades nine through 12 
shall provide sleeping rooms with a per student square footage averaging 
from 50 to 70 square feet, exclusive of furniture (wardrobe, desks, 
beds, etc.).
    (c) When new dormitories are constructed or existing dormitories are 
remodeled, sleeping rooms shall be constructed not to exceed a maximum 
of four students per room for grades one through 12.
    (d) Each peripheral dormitory shall have a set of encyclopedias, one 
dictionary for every ten students (ADM), and ten other general reference 
materials such as an atlas or periodical subscription.



Sec. 36.76  Compliance for the National Criteria for Dormitory 
Situations.

    Implementation of the National Criteria for Dormitory Situations 
shall begin immediately on the effective date of this part. A dormitory 
is in compliance when it has met and satisfied all the requirements 
under subpart H.
    (a) The education supervisor(s) or peripheral dormitory supervisor 
shall report to their supervisor(s) within 45 days after the start of 
each school term with a compliance report to the local school board that 
attests to whether a dormitory is in compliance or noncompliance; within 
15 days, the compliance report shall be submitted to the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (b) The school supervisor or the peripheral dormitory supervisor 
shall notify in writing each parent or legal guardian of the dormitory 
noncompliance status within 60 days after the beginning of the school 
term.
    (c) The compliance report shall contain the following:
    (1) A written statement attesting to the fact that the dormitory has 
or has not met all of the requirements.
    (2) A specific listing of the requirements that have not been met.
    (3) A detailed action plan designed to correct deficiencies.
    (4) A statement signed by the local school board attesting to the 
fact that it has been apprised of the school's compliance status and 
concurs or does not concur with the action plan to reach compliance.
    (d) The Agency Superintendent for Education or the Area Education 
Programs Administrator, as appropriate, shall review each dormitory 
compliance report and shall provide the Director with a detailed report 
by November 15 each year which shall include:
    (1) A list of dormitories indicating those not in compliance.
    (2) A detailed statement as to why each school indicated is not in 
compliance and how it is proposed to reach compliance.
    (3) A plan of action outlining what actions the Agency or Area 
education line officers, as appropriate, will take to assist the 
dormitories to reach compliance.
    (e) In the event a dormitory is not in compliance for two 
consecutive years due to conditions which can be corrected locally, 
appropriate personnel actions shall be initiated at all appropriate 
levels of school/dormitory administration. Noncompliance may be grounds 
for dismissal.
    (f) The Secretary shall submit to the appropriate committees of 
Congress at the time of the annual budget request a detailed plan to 
bring all Bureau and contract boarding schools up to the criteria 
established under section 1122 of Pub. L. 95-561, and 25 U.S.C. 2002. 
Such plan shall include, but not be limited to, predictions for the 
relative need for each boarding school in relation to the criteria 
established under this section and specific cost estimates for meeting 
such criteria at each school up to the level required by such criteria.



Sec. 36.77  Waivers and revisions.

    (a) The tribal governing body (tribe), or the local school board 
(LSB), if so designated by the tribe, shall have the local authority to 
waive or revise in part or in whole, the standard(s) established in this 
part if the standard(s) are determined to be inappropriate or if they 
fail to take into account specific needs of the tribe's children. This 
provision includes both tribal and Bureau-

[[Page 156]]

operated schools. When the tribe or LSB, if designated by the tribe, 
waives or revises a standard, it shall submit the waiver or revision to 
the Assistant Secretary for approval within 60 days. Until this approval 
is obtained, the standard of this part or minimum state standards shall 
apply to the affected school(s).
    (b) All revised standards shall be submitted to the Assistant 
Secretary in writing in accordance with the following procedure:
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the dormitory's annual standards compliance 
report.
    (2) The section or part to be waived shall be specified, and the 
extent to which it is to be deviated from shall be described.
    (3) A justification explaining why the alternative standard is 
determined necessary shall be included with the revised standard.
    (4) Measurable objectives and the method of achieving the 
alternative standard along with the estimated cost of implementation 
shall be stated.
    (c) The Assistant Secretary shall respond in writing within 45 days 
of receipt of the waiver or revision. The waiver shall be granted or the 
revision shall be accepted by the Assistant Secretary unless 
specifically rejected for good cause and in writing. The written 
rejection shall be sent to the affected tribe(s) and LSB. This rejection 
shall be final. The waiver is granted or revision is established 
automatically on the 46th day of receipt if no written response is 
provided by the Assistant Secretary.
    (d) The Assistant Secretary shall assist the school board of an 
Indian-controlled contract school in the implementation of the standards 
established in this part if the school board requests that these 
standards, in part or in whole, be implemented. At the request of an 
Indian-controlled contract school board, the Assistant Secretary shall 
provide alternative or modified standards to those established in this 
part to take into account the needs of the Indian children and Indian-
controlled contract school.

[59 FR 61766, Dec. 1, 1994]



PART 37_GEOGRAPHIC BOUNDARIES--Table of Contents




Sec.
37.100 What is the purpose of this part?
37.101 What definitions apply to the terms in this part?
37.102 How is this part organized?
37.103 Information collection.

                          Subpart A_All Schools

37.110 Who determines geographic attendance areas?
37.111 What role does a tribe have in issues relating to school 
          boundaries?
37.112 Must each school have a geographic attendance boundary?

 Subpart B_Day Schools, On-Reservation Boarding Schools, and Peripheral 
                                  Dorms

37.120 How does this part affect current geographic attendance 
          boundaries?
37.121 Who establishes geographic attendance boundaries under this part?
37.122 Once geographic attendance boundaries are established, how can 
          they be changed?
37.123 How does a Tribe develop proposed geographic attendance 
          boundaries or boundary changes?
37.124 How are boundaries established for a new school or dorm?
37.125 Can an eligible student living off a reservation attend a school 
          or dorm?

               Subpart C_Off-Reservation Boarding Schools

37.130 Who establishes boundaries for Off-Reservation Boarding Schools?
37.131 Who may attend an ORBS?

    Authority: Public Law 107-110, 115 Stat. 1425.

    Source: 70 FR 22204, Apr. 28, 2005, unless otherwise noted.



Sec. 37.100  What is the purpose of this part?

    (a) This part:
    (1) Establishes procedures for confirming, establishing, or revising 
attendance areas for each Bureau-funded school;
    (2) Encourages consultation with and coordination between and among 
all agencies (school boards, tribes, and others) involved with a 
student's education; and
    (3) Defines how tribes may develop policies regarding setting or 
revising

[[Page 157]]

geographic attendance boundaries, attendance, and transportation funding 
for their area of jurisdiction.
    (b) The goals of the procedures in this part are to:
    (1) Provide stability for schools;
    (2) Assist schools to project and to track current and future 
student enrollment figures for planning their budget, transportation, 
and facilities construction needs;
    (3) Adjust for geographic changes in enrollment, changes in school 
capacities, and improvement of day school opportunities; and
    (4) Avoid overcrowding or stress on limited resources.



Sec. 37.101  What definitions apply to the terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Geographic attendance area means a physical land area that is served 
by a Bureau-funded school.
    Geographic attendance boundary means a line of demarcation that 
clearly delineates and describes the limits of the physical land area 
that is served by a Bureau-funded school.
    Secretary means the Secretary of the Interior or a designated 
representative.



Sec. 37.102  How is this part organized?

    This part is divided into three subparts. Subpart A applies to all 
Bureau-funded schools. Subpart B applies only to day schools, on-
reservation boarding schools, and peripheral dorms--in other words, to 
all Bureau-funded schools except off-reservation boarding schools. 
Subpart C applies only to off-reservation boarding schools (ORBS).



Sec. 37.103  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec. 37.122(b), 
and 37.123(c). These collections have been approved by OMB under control 
number 1076-0163.



                          Subpart A_All Schools



Sec. 37.110  Who determines geographic attendance areas?

    The Tribal governing body or the Secretary determines geographic 
attendance areas.



Sec. 37.111  What role does a tribe have in issues relating to school 
boundaries?

    A tribal governing body may:
    (a) Establish and revise geographical attendance boundaries for all 
but ORB schools;
    (b) Authorize ISEP-eligible students, residing within the tribe's 
jurisdiction, to receive transportation funding to attend schools 
outside the geographic attendance area in which the student lives; and
    (c) Authorize tribal member students who are ISEP-eligible and are 
not residing within the tribe's jurisdiction to receive transportation 
funding to attend schools outside the student's geographic attendance 
area.



Sec. 37.112  Must each school have a geographic attendance boundary?

    Yes. The Secretary must ensure that each school has a geographic 
attendance area boundary.



 Subpart B_Day Schools, On-Reservation Boarding Schools, and Peripheral 
                                  Dorms



Sec. 37.120  How does this part affect current geographic attendance 
boundaries?

    The currently established geographic attendance boundaries of day 
schools, on-reservation boarding schools, and peripheral dorms remain in 
place unless the tribal governing body revises them.

[[Page 158]]



Sec. 37.121  Who establishes geographic attendance boundaries under this 
part?

    (a) If there is only one day school, on-reservation boarding school, 
or peripheral dorm within a reservation's boundaries, the Secretary will 
establish the reservation boundary as the geographic attendance 
boundary;
    (b) When there is more than one day school, on-reservation boarding 
school, or peripheral dorm within a reservation boundary, the Tribe may 
choose to establish boundaries for each;
    (c) If a Tribe does not establish boundaries under paragraph (b) of 
this section, the Secretary will do so.



Sec. 37.122  Once geographic attendance boundaries are established, how 
can they be changed?

    (a) The Secretary can change the geographic attendance boundaries of 
a day school, on-reservation boarding school, or peripheral dorm only 
after:
    (1) Notifying the Tribe at least 6 months in advance; and
    (2) Giving the Tribe an opportunity to suggest different 
geographical attendance boundaries.
    (b) A tribe may ask the Secretary to change geographical attendance 
boundaries by writing a letter to the Director of the Office of Indian 
Education Programs, explaining the tribe's suggested changes. The 
Secretary must consult with the affected tribes before deciding whether 
to accept or reject a suggested geographic attendance boundary change.
    (1) If the Secretary accepts the Tribe's suggested change, the 
Secretary must publish the change in the Federal Register.
    (2) If the Secretary rejects the Tribe's suggestion, the Secretary 
will explain in writing to the Tribe why the suggestion either:
    (i) Does not meet the needs of Indian students to be served; or
    (ii) Does not provide adequate stability to all affected programs.



Sec. 37.123  How does a Tribe develop proposed geographic attendance 
boundaries or boundary changes?

    (a) The Tribal governing body establishes a process for developing 
proposed boundaries or boundary changes. This process may include 
consultation and coordination with all entities involved in student 
education.
    (b) The Tribal governing body may delegate the development of 
proposed boundaries to the relevant school boards. The boundaries set by 
the school boards must be approved by the Tribal governing body.
    (c) The Tribal governing body must send the proposed boundaries and 
a copy of its approval to the Secretary.



Sec. 37.124  How are boundaries established for a new school or dorm?

    Geographic attendance boundaries for a new day school, on-
reservation boarding school, or peripheral dorm must be established by 
either:
    (a) The tribe; or
    (b) If the tribe chooses not to establish boundaries, the Secretary.



Sec. 37.125  Can an eligible student living off a reservation attend a 
school or dorm?

    Yes. An eligible student living off a reservation can attend a day 
school, on-reservation boarding school, or peripheral dorm.



               Subpart C_Off-Reservation Boarding Schools



Sec. 37.130  Who establishes boundaries for Off-Reservation Boarding 
Schools?

    The Secretary or the Secretary's designee, in consultation with the 
affected Tribes, establishes the boundaries for off-reservation boarding 
schools (ORBS).



Sec. 37.131  Who may attend an ORBS?

    Any student is eligible to attend an ORBS.



PART 38_EDUCATION PERSONNEL--Table of Contents




Sec.
38.1 Scope.
38.2 Information collection.
38.3 Definitions.
38.4 Education positions.
38.5 Qualifications for educators.
38.6 Basic compensation for educators and education positions.
38.7 Appointment of educators.
38.8 Nonrenewal of contract.
38.9 Discharge of educators.

[[Page 159]]

38.10 Conditions of employment of educators.
38.11 Length of the regular school term.
38.12 Leave system for education personnel.
38.13 Status quo employees in education positions.
38.14 Voluntary services.
38.15 Southwestern Indian Polytechnic Institute.

    Authority: 25 U.S.C. 2011 and 2015, Secs. 1131 and 1135 of the Act 
of November 1, 1978, 92 Stat. 2322 and 2327; Secs. 511 and 512, Pub. L. 
98-511; Secs. 8 and 9, Pub. L. 99-89; Title V of Pub. L. 100-297; Pub. 
L. 105-337.

    Source: 53 FR 37678, Sept. 27, 1988, unless otherwise noted.



Sec. 38.1  Scope.

    (a) Primary scope. This part applies to all individuals appointed or 
converted to contract education positions as defined in Sec. 38.3 in 
the Bureau of Indian Affairs after November 1, 1979. This part applies 
to elementary and secondary school positions and agency education 
positions.
    (b) Secondary scope. Section 38.13 applies to employees with 
continuing tenure in both the competitive and excepted service who 
encumber education positions.
    (c) Other. Where 25 CFR part 38 and a negotiated labor relations 
agreement conflict, the negotiated agreement will govern.



Sec. 38.2  Information collection.

    (a) The information collection requirements contained in Sec. 38.5 
use Standard Form 171 for collection, and have been approved by OMB 
under 25 U.S.C. 2011 and 2015 and assigned approval number 3206-0012. 
The sponsoring agency for the Standard Form 171, is the Office of 
Personnel Management. The information is being collected to determine 
eligibility for employment. The information will be used to rate the 
qualifications of applicants for employment. Response is mandatory for 
employment.
    (b) The information collection requirement for Sec. 38.14, 
Voluntary Services has been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-
0116. The information is being collected to determine an applicants 
eligibility and selection for appropriate volunteer assignments. 
Response is voluntary.



Sec. 38.3  Definitions.

    As used in this part, the term:
    Agency means the current organizational unit of the Bureau, which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    Agency school board as defined in section 1139(1), of Pub. L. 95-
561, means a body, the members of which are appointed by the school 
boards of the schools located within such Agency. The number of such 
members shall be determined by the Director in consultation with the 
affected tribes. In Agencies serving a single school, the school board 
of that school shall function as the Agency School Board.
    Agency Superintendent for Education (ASE) means the Bureau official 
in charge of education functions at an Agency Office and to whom the 
school supervisor(s) and other educators under the Agency's 
jurisdiction, report.
    Area Education Programs Administrator (AEPA) means the Bureau 
official in charge of an Area Education Office that provides services to 
off-reservation residential schools, peripheral dormitories or on-
reservation BIA funded schools that are not served by an Agency 
Superintendent for Education. The AEPA may also provide education 
program services to tribes not having an Agency Superintendent for 
Education at their agency. The AEPA has no line authority over agency 
education programs that are under the jurisdiction of an Agency 
Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Consult, as used in this part and provided in section 1131(d)(1) (B) 
and (C) of Pub. L. 95-561, means providing pertinent information to and 
being available for discussion with the school

[[Page 160]]

board, giving the school board the opportunity to reply and giving due 
consideration to the school board's response, subject to appeal rights 
provided in Sec. 38.7 (a), (b) and (c), and Sec. 38.9(e)(3).
    Director means the Deputy to the Assistant Secretary/Director--
Indian Affairs (Indian Education Programs) in the Bureau.
    Discharge means the separation of an employee during the term of the 
contract.
    Education function means the administration and implementation of 
the Bureau's education programs and activities (including school 
operations).
    Education position, means a position in the Bureau the duties and 
responsibilities of which:
    (a) Are performed on a school term basis principally in a Bureau 
elementary and secondary school which involve:
    (1) Classroom or other instruction or the supervision or direction 
of classroom or other instruction;
    (2) Any activity (other than teaching) that requires academic 
credits in educational theory and practice equal to the academic credits 
in educational theory and practice required for a bachelor's degree in 
education from an accredited institution of higher education; or
    (3) Any activity in or related to the field of education 
notwithstanding that academic credits in educational theory and practice 
are not a formal requirement for the conduct of such activity; or
    (4) Support services at or associated with the site of the school; 
or
    (b) Are performed at the Agency level of the Bureau and involve the 
implementation of education-related Bureau programs. The position of 
Agency Superintendent for Education is excluded.
    Educator, as defined in section 1131(n)(2) of Pub. L. 95-561 means 
an individual whose services are required, or who is employed, in an 
education position as defined in Sec. 38.3.
    Employment contract means a signed agreement executed by and between 
the Bureau and the individual employee hired or converted under this 
part, that specifies the position title, period of employment, and 
compensation attached thereto.
    Involuntary change in position means the release of an employee from 
his/her position instigated by a change in program or other occurrence 
beyond the control of the employee.
    Local school board, as used in this part and defined in section 
1139(7) of Pub. L. 95-561, means a body chosen in accordance with the 
laws of the tribe to be served or, in the absence of such laws, the body 
elected by the parents of the Indian children attending a Bureau-
operated school. In schools serving a substantial number of students 
from different tribes, the members shall be appointed by the governing 
bodies of the tribes affected and the number of such members shall be 
determined by the Director in consultation with the affected tribes.
    Probationary period means the extension of the appointed process 
during which a person's character and ability to satisfactorily meet the 
requirements of the position are reviewed.
    School board means an Agency school board or a local school board.
    School supervisor means the Bureau official in charge of a Bureau 
school who reports to an Agency Superintendent for Education. In the 
case of an off-reservation residential school(s), and, in some cases, 
peripheral dormitories and on-reservation day schools, the school 
supervisor shall report to the Area Education Programs Administrator.
    School term is that term which begins usually in the last summer or 
fall and ends in the Spring. It may be interrupted by one or more 
vacations.



Sec. 38.4  Education positions.

    (a) The Director shall establish the kinds of positions required to 
carry out the Bureau's education function. No position will be 
established or continued for which:
    (1) Funds are not available; or
    (2) There is not a clearly demonstrable need and intent for it to 
carry out an education function.
    (b) Positions established for regular school operations will be 
restricted to school term or program duration. Particular care shall be 
taken to insure

[[Page 161]]

that year-long positions are not established unless they are clearly 
required and involve essential 12-month assignments.



Sec. 38.5  Qualifications for educators.

    (a) Qualifications related to positions. Job qualification 
requirements shall be at least equivalent to those established by the 
appropriate licensing and certification authorities of the State in 
which the position is located.
    (b) Qualifications related to individuals. An applicant for an 
education position must establish that he/she meets the requirements of 
the position by submitting an application and a college transcript, as 
appropriate, to the local school supervisor, Agency Superintendent for 
Education (ASE), Area Education Programs Administrator (AEPA), or 
Director and appearing for an interview if requested by the official 
involved. The applicant's education and experience will be subject to 
verification by the ASE or the AEPA. Employees who falsify experience 
and employment history may be subject to disciplinary action or 
discharge from the position to which he/she is appointed.
    (1) School boards may waive formal education and State certification 
requirements for tribal members who are hired to teach tribal culture 
and language.
    (2) Tribal members appointed under this waiver may not have their 
basic pay rate set higher than the rate paid to qualified educators in 
teaching positions at that school.
    (c) Identification of qualified individuals. The Director shall 
require each ASE, AEPA, and other appropriate local official in the 
education program organization to maintain lists of qualified and 
interviewed applicants for each of the kinds of established positions. 
Applications on file shall be purged annually. Applicants whose 
qualifications are established and who indicate an interest in working 
in specified locations will be included on those local applicant lists. 
The Director shall maintain a national list of qualified applicants for 
each of the kinds of positions established. Applicants whose 
qualifications are established and who either do not indicate an 
interest in a specific location or indicate an interest in working in 
any location will be entered on the national list. The national list is 
a secondary source of applicants.
    (d) Special recruitment and training for Indian educators. The 
Director shall review annually the Bureau's ``Recruitment of Indian 
Educators Program'' and update as necessary. The Director will define 
individual training plans for trainees and subsequent promotional 
opportunities for advancement based upon satisfactory job performance in 
this program.



Sec. 38.6  Basic compensation for educators and education positions.

    (a) Schedule of basic compensation rates. The Director shall 
establish a schedule for each pay level specified in part 62 of the 
Bureau of Indian Affairs Manual (BIAM). The schedule will be revised at 
the same time as and be consistent with rates in effect under the 
General Schedule or Federal Wage System for individuals with comparable 
qualifications, and holding comparable positions.
    (b) Range of pay rates for positions within pay levels. The range of 
basic compensation rates for positions assigned to each pay level will 
be consistent with the General Schedule or Federal Wage System rates 
that would otherwise be applicable if the position were classified under 
chapter 51 or subchapter IV of chapter 53 of title 5 of the United 
States Code (U.S.C.). The maximum pay shall not exceed step 10 of the 
comparable General Schedule position by more than ten percent.
    (c) Schedule of compensation rates for teachers and counselors. The 
basic compensation for teachers and counselors, including dormitory 
counselors and homeliving counselors, shall be determined in accordance 
with rates set by the Defense Department Overseas Teachers Pay and 
Personnel Practices Act. The schedule used shall be the current 
published schedule for the school year beginning on or after July 1 of 
each year.
    (d) Adjusting employee basic compensation rates. (1) Except for 
employees occupying positions of teachers and counselors, including 
dormitory counselors

[[Page 162]]

and homeliving counselors, adjustments in an employee's basic 
compensation made in connection with each contract renewal will be based 
on the following:
    (i) Contract renewal incentive--one pay increment for each renewal, 
not to exceed four increments, unless the educator is covered by a 
negotiated labor union agreement.
    (ii) Performance--employees whose performance is rated ``above 
satisfactory''; one pay increment; employees whose performance is rated 
``outstanding''; two pay increments.
    (2) Pay increments based on education may be awarded as outlined in 
62 BIAM.
    (e) Special additions to basic compensation. The Director is 
authorized to established the following special additions to rates of 
basic compensation:
    (1) The Director may authorize payment of a staffing differential 
not exceeding 25 per centum of the rate of basic compensation based on a 
formally-documented request by an ASE or AEPA. Such a staffing 
differential shall only be authorized in writing when the Director 
determines that:
    (i) It is warranted by the geographic isolation of the work site or 
other unusually difficult environmental working or living conditions 
and/or,
    (ii) It is necessary as a recruitment or retention incentive. This 
staffing differential is to be computed on the basic schedule rate 
before any other additions are computed.
    (2) Special rates may be established for recruitment and retention 
applicable only to a specific position or to specific types of positions 
in specific locations based on a formally documented request by an ASE 
or AEPA and submitted to the Director for approval.
    (f) Payment of compensation to educators. This section applies to 
those individuals employed under the provisions of section 1131(m) of 
Pub. L. 95-561 or title 5 U.S.C.
    (1) Pay periods. Educators shall be paid on the basis of a biweekly 
pay period during the term of the contract. Chapter 55 of title 5 U.S.C. 
applies to the administration of pay for educators, except that section 
1131(m) of Pub. L. 95-561 provides that 5 U.S.C. 5533 does not apply 
with respect to the receipt of pay by educators during summer recess 
under certain circumstances.
    (2) Pay for contract educators. When an educator is appointed, 
payment under the contract is to begin as of the effective date of the 
contract. If an educator resigns or is discharged before the expiration 
of the term of the contract, pay ceases as of the date of resignation or 
discharge.
    (3) Prorating of pay. Within 30 days prior to the beginning of the 
academic school term, each educator must elect whether to have the 
annual contractual rate or basic pay prorated over the contractual 
academic school term, or to have the basic pay prorated over a 12-month 
period.
    (i) Each educator may change such election once during the academic 
school term, provided notice is given two weeks prior to the end of the 
fifth month after the beginning of the academic school term.
    (ii) An educator who elects a 12-month basis of prorated pay may 
further elect to be paid in one lump sum at the end of the academic 
school term for the then remaining amount of rate of basic pay otherwise 
due, provided notice is given four weeks prior to the end of the 
academic school term.
    (iii) No educator shall suffer a loss of pay or benefits because of 
elections made under this section.
    (4) Stipends for extracurricular activities. An employee, if 
assigned to sponsor an approved extracurricular activity, may elect 
annually at the beginning of the contract to be paid a stipend in lieu 
of overtime premium pay or compensatory time when the employee performs 
additional activities to provide services to students or otherwise 
support the school's academic and social programs.
    (i) The Director is authorized to establish a schedule of stipends 
for each Bureau Area, taking into consideration types of activities to 
be compensated and payments provided by public school districts in or 
near the Area.
    (ii) The stipend shall be a supplement to the employee's base pay 
and is not a part of salary for retirement computation purposes.

[[Page 163]]

    (iii) The employee shall be paid the stipend in equal payments over 
the period of the extracurricular activity.

[53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3, 1989]



Sec. 38.7  Appointment of educators.

    (a) Local school employees. Local Bureau school employees shall be 
appointed only by the school supervisor. Before the local school 
employee is employed, the school board shall be consulted. An 
individual's appointment may be finalized only upon receipt of a formal 
written determination certified by the local school board under such 
uniform procedures as it may adopt. Written determination by the school 
board should be received within a reasonable period, but not to exceed 
30 days. Failure of the school board to act within this period shall 
have the effect of approving the proposed appointment. The local school 
board shall use the same written procedure to disapprove an appointment. 
The school supervisor may appeal to the ASE, or, where appropriate, to 
the AEPA, any determination by the local school board concerning an 
individual's appointment. A written statement of appeal describing the 
action and the reasons the supervisor believes such action should be 
overturned must be filed within 10 days of receipt of the action from 
the local school board. A copy of such statement shall be submitted to 
the school board and the board shall be afforded an opportunity to 
respond, not to exceed 10 calendar days, in writing, to the appeal. 
After reviewing such written appeal and response, the ASE or AEPA may, 
for cause, overturn the action of the local school board. The ASE or 
AEPA must transmit the determination of the appeal (in the form of a 
written opinion) to the board and to the supervisor identifying the 
reasons for overturning the action within 10 calender days. Failure to 
act within the 10 calendar day period shall have the effect of approving 
the local school board's determination.
    (b) School supervisors. School supervisors may be appointed only by 
the ASE, except the AEPA shall appoint school supervisors for off-
reservation boarding schools and those few other schools supervised by 
the AEPA. The school board shall be consulted before the school 
supervisor is employed. The appointment may be finalized upon receipt of 
a formal written determination certified by the school board under any 
uniform procedures as it may adopt. Written determination by the school 
board shall be received within a reasonable period, but not to exceed 30 
days. Failure of the school board to act within this period shall have 
the effect of approving the proposed appointment. The school board shall 
use the same procedure to disapprove an appontment. Within 20 calendar 
days of receipt of any determination by the school board concerning an 
individual's appointment, the ASE or AEPA, as appropriate, may appeal to 
the Director by filing a written statement describing the determination 
and the reasons the supervisor believes the determination should be 
overturned. A copy of the statement shall be submitted to the local 
school board and the board shall be afforded an opportunity to respond, 
within 10 calendar days, in writing, to such an appeal. The Director may 
reverse the determination for cause set out in writing to the school 
board. Within 20 calendar days of the school board's response, the 
Director shall transmit the determination of the appeal (in the form of 
a written opinion) to the board and to the ASE or AEPA identifying the 
reasons for overturning the determination. Failure by the Director to 
act within the 20 calendar day period shall have the effect of approving 
the school board's determination.
    (c) Agency office education program employees. Appointments to 
Agency office education positions may be made only by the ASE. The 
Agency school board shall be consulted before the agency education 
employee is employed, and the appointment may be finalized upon receipt 
of a formal, written determination certified by the Agency school board 
under any uniform procedures as it may adopt. Written determination by 
the school board shall be received within a reasonable period, but not 
to exceed 30 days. Failure of the school board to act within this period 
shall have the effect of approving the proposed appointment. The Agency 
school

[[Page 164]]

board shall use the same written procedure to disapprove an appointment. 
Within 20 calendar days of receipt of any determination by the school 
board concerning an individual's appointment, the ASE may appeal to the 
Director by filing a written statement describing the determination and 
the reasons the supervisor believes the determination should be 
overturned. A copy of the statement shall be submitted to the Agency 
school board and the board shall be afforded an opportunity to respond, 
within 10 calendar days, in writing, to such appeal. After reviewing the 
written appeal and response, the Director may, for cause, overturn the 
determination of the Agency school board. Within 20 days of the board's 
response, the Director shall transmit the determination of the appeal 
(in the form of a written opinion) to the board and to the ASE 
identifying the reasons for overturning the determination. Failure of 
the Director to act within the 20 calendar day period shall have the 
effect of approving the school's board's determination.
    (d) Employment contracts. The Bureau shall issue employment 
contracts each year for individuals employed in contract education 
positions at the Agency or school levels.
    (e) Absence of local school boards. Where a local school board has 
not been established in accordance with section 1139(7) Pub. L. 95-561 
with respect to a Bureau school, or where a school board is not 
operational, and the local school board is required to be given a notice 
or required to be consulted by statute or these regulations, the 
official involved shall notify or consult with the Agency school board 
serving the tribe(s) to which the parents of the Indian children 
atending that school belong, or, in that absence, the tribal 
organization(s) of the tribe(s) involved.
    (f) Provisional contracts. Provisional certification or other 
limited certificates from the State are not considered full 
certification and only a provisional contract may be issued. There may 
be circumstances when no individual who has met the full certification 
or experience requirements is available for a professional position or 
when a status quo employee who does not meet full certification or 
experience requirements desires to convert to contract. When this 
situation exists, a provisional contract may be issued in accordance 
with the following:
    (1) The contract will be made only:
    (i) After it is determined that an individual already meeting 
certification or experience requirements is not available; or
    (ii) For conversion of a status quo employee who does not yet meet 
all established position requirements.
    (2) Consultation with the appropriate school board is required prior 
to the contract.
    (3) The contract may be of 12-month or school-term duration.
    (4) The employee will be required to make satisfactory progress 
toward meeting full qualification requirements.
    (5) If the employee fails to meet the requirements established under 
Sec. 38.7(f)(4), the contract will be terminated. Such termination 
cannot be grieved or appealed.
    (g) Conditional appointment. As provided in section 1131(d)(4), Pub. 
L. 95-561, if an individual who has applied at both the national and 
local levels is appointed from a local list of applicants, the 
appointment shall be conditional for 90 days. During that period, the 
individual's application and background shall be examined to determine 
if there is a more qualified individual for the position. Removal during 
this period is not subject to discharge, hearing or grievance 
procedures.
    (h) Short-term contracts. (1) There may be circumstances where 
immediate action is necessary and it is impossible to consult with the 
local school board. When this situation exists short-term contracts may 
be made by the school supervisor in accordance with the following:
    (i) The length of the contract will not exceed 60 days, or the next 
regularly scheduled school board meeting, whichever comes first.
    (ii) If the board meets and does not take action on the individual 
in question, the short-term contract may be extended for the duration of 
the school year.
    (iii) It shall be the responsibility of the school supervisor to 
fully inform

[[Page 165]]

the local school board of all such short-term contracts. Failure to do 
so may be cited as reason to discharge the school supervisor if so 
requested by the board.
    (2) The local school board may authorize the school supervisor to 
make an emergency short-term contract to classroom, dormitory and other 
positions directly related to the health and safety of students. When 
this situation exists, short-term contracts may be made in accordance 
with the following:
    (i) If local and agency lists of qualified applicants are exhausted, 
short-term contracts may be made without regard to qualifications for 
the position;
    (ii) The pay level will be based on the qualifications of the 
individual employed rather than the requirements of the position, if the 
qualifications of the individual are lower than required;
    (iii) The short-term contract may not exceed the school term and may 
not be renewed or extended;
    (iv) Every 60 days the school supervisor will determine if qualified 
individuals have been placed on the local or agency lists. If a 
qualified individual on the list accepts employment, the school 
supervisor must terminate the emergency appointment at the time the 
qualified individual is appointed.
    (i) Temporary contracts. There may be circumstances where a specific 
position is needed for a period of one year or less. Under these 
conditions a position may be advertised as a temporary position and be 
filled under a temporary contract. Such contract requires the same 
school board approval as a school year contract. If required for the 
completion of the activities specified in the original announcement, the 
position, may with school board approval be extended for up to one 
additional year. Temporary contracts may be terminated at any time and 
this action is not subject to approval or grievance procedures.
    (j) Waiver of Indian preference. Notwithstanding any provision of 
the Indian preference laws, such laws shall not apply in the case of any 
personnel action within the purview of this section respecting an 
application or employee not entitled to Indian preference if each tribal 
organization concerned grants, in writing, a waiver of the application 
of such laws with respect to such personnel action, where such a waiver 
is in writing deemed to be a necessity by the tribal organization, 
except that this shall in no way relieve the Bureau of its 
responsibility to issue timely and adequate announcements and 
advertisements concerning any such personnel action if it is intended to 
fill a vacancy (no matter how such vacancy is created). When a waiver is 
granted, it shall apply only to that particular position and as long as 
the employee remains in that position.
    (k) Prohibited reappointment. An educator who voluntarily terminates 
employment before the end of the school term may not be appointed to 
another Bureau education position before the beginning of the following 
school term. An educator will not be deemed to have voluntarily 
terminated employment if transferred elsewhere with the consent of the 
local school or Agency boards.
    (l) Contract renewals. The appropriate school board shall be 
notified in writing by the school supervisor and/or ASE or AEPA not less 
than 90 days before the end of the school term whether or not an 
individual's contract is recommended for renewal.
    (1) If the school board disagrees with the school supervisor's or 
ASE's or AEPA's recommendations, the board will submit a formal, written 
certification of its determinations to the school supervisor or ASE or 
AEPA within 25 days. If the board's determinations are not received 
within the 25 days, the school supervisor or ASE or AEPA shall issue the 
60 day notification of renewal or nonrenawal to the individual as 
required under Sec. 38.8.
    (2) When the school board submits its determination within the 25 
days and determines that a contract will be renewed, or nonrenewed, the 
appropriate official shall issue the required renewal notice, or 
nonrenawal, or appeal the determination of the school board to the 
appropriate official who will make a determination in accordance with 
the appeal procedure is Sec. 38.7(a) of this part. After the 
probationary period, if the determination is that the contract will not 
be renewed, the procedures specified in Sec. 38.8 shall apply.

[[Page 166]]



Sec. 38.8  Nonrenewal of contract.

    Where the determination is made that an employee's contract shall 
not be renewed for the following year, the following procedure will 
apply to those employees who have completed three full continuous school 
terms of service under consecutive contract appointments and 
satisfactory performance in the same or comparable education positions.
    (a) The employee will be given a written notice of the action and 
the reasons thereof not less than 60 days before the end of the school 
term.
    (b) The employee will be given 10 calendar days to request an 
informal hearing before the appropriate official or body. Upon request, 
the employee may be given official time, not to exceed eight hours, to 
prepare a written response to the reason(s).
    (c) If so requested, an informal hearing shall be held within 30 
calendar days of receipt of the request.
    (d) The appropriate official or body will render a written 
determination within seven calendar days after the informal hearing.
    (e) The employee has a right to request an administrative review by 
the ASE or AEPA of the determination within 10 calendar days of that 
determination. The ASE or AEPA then has 20 calendar days to render a 
final decision. Where the employee is the supervisor of the school or an 
agency education employee, any appeal of the ASE or AEPA would be 
addressed to the Director for a decision. If the Director or ASE's or 
AEPA's decision overturns the appropriate official or bodies 
determination, the appropriate official or body will be notified of the 
reasons in writing. Failure by the Director or ASE or AEPA to act within 
the 20 days will sustain the determination. This completes the 
administrative appeal process.
    (f) Failure of any of the parties to meet the requirements of the 
above procedures will serve to negate the particular action sought by 
the negligent party.
    (g) Those employees with less than three full continuous school 
terms of consecutive contract appointments are serving a probationary 
period. Nonrenewal of his/her contract will be considered a continuation 
of the examining process. This action cannot be appealed or grieved.
    (h) Independent of the procedures outlined in this section, the 
school supervisor or ASE or AEPA, for applicable positions, shall be 
required to submit to the ASE or AEPA or appropriate higher authority 
all nonrenewal actions. Within 60 days, the ASE or AEPA shall review the 
nonrenewal actions and may overturn the determination of nonrenewal. In 
the event that the ASE or AEPA makes a decision to overturn the school 
board determination, the ASE or AEPA shall notify the school board in 
writing of his/her reasons for doing so.
    (i) No more than the substantial standard of evidence shall be 
required to sustain the nonrenewal.
    (j) A procedural error shall not be grounds for overturning a 
determination of nonrenewal unless the employee shows harmful error in 
the application of the Agency's procedures in arriving at such a 
decision. For purposes of this section, ``harmful error'' means error by 
the Agency in the application of its procedures which, in the absence or 
cure of the error, might have caused the Agency to reach a conclusion 
different than the one reached. The burden is upon the appellant to show 
that based upon the record as a whole, the error was harmful. i.e., 
caused substantial harm or prejudice to his/her rights.
    (k) Nonrenewal of a contract is not discharge and will not follow 
the discharge procedures.



Sec. 38.9  Discharge of educators.

    (a) Discharge for cause. Educators covered under the provision of 
this section are excluded from coverage under 5 U.S.C. 7511 and 4303. In 
order to provide due process for educators, the Director shall publish 
in 62 BIAM representative conditions that could result in the discharge 
of educators for cause and procedures to be followed in discharge cases.
    (b) Discharge for inadequate performance. Action to remove educators 
for inadequate performance will be taken for failure to meet performance 
standards established under 5 U.S.C. 4302. Performance standards for all 
educators will include, among others, lack

[[Page 167]]

of student achievement. Willful failure to exercise properly assigned 
supervisory responsibilities by supervisors shall also be cause for 
discharge.
    (c) Other discharge. The Director shall publish in 62 BIAM a 
description of the budgetary and programmatic conditions that may result 
in the discharge of educators for other than cause during the school 
term. The individual's personnel record will clearly reflect that the 
action taken is based upon budgetary or programmatic restraints and is 
not a reflection on the employee's performance.
    (d) Procedures for discharge for cause. The Director shall publish 
in 62 BIAM the procedural steps to be followed by school supervisors, 
ASE's, and AEPA's in discharge for cause cases. These procedures shall 
provide (among other things) for the following:
    (1) The educator to be discharged shall receive a written notice of 
the proposal, specifying the causes or complaints upon which the 
proposal is based, not less than 30 calendar days before the discharge. 
However, this shall not prohibit the exclusion of the individual from 
the education facility in cases where exclusion is required for the 
safety of the students or the orderly operation of the facility.
    (2) A reasonable time, but not less than 10 calendar days, will be 
allotted for the individual to make written and/or oral responses to the 
charge.
    (3) An opportunity will be afforded the individual to review the 
material relied upon to support the charge.
    (4) Official time, not to exceed eight hours, will be provided to 
the individual to prepare a response to the charge.
    (5) The educator may elect to have a representative and shall 
furnish the identity of any representative to the ASE or AEPA. The ASE 
or AEPA may disallow, as an employee representative, any individual 
whose activities as a representative would cause a conflict of interest 
or position, or an employee whose release from his or her official 
position would give rise to unreasonable costs to the Government, or 
when priority work assignment precludes his or her release from official 
duties. The terms of any applicable collective bargaining agreement and 
5 U.S.C. 7114(a)(5) shall govern representation of employees in an 
exclusive bargaining unit.
    (6) The individual has a right to a final decision made by the 
appropriate level of supervision.
    (7) The individual has a right to appeal the final decision and have 
the merits of the case reviewed by a Departmental official not 
previously involved in the case. This right includes entitlement to a 
hearing upon request under procedures in accordance with the 
requirements of due process under section 1131(e)(1)(B) of Pub. L. 95-
561.
    (e) School board action. (1) The appropriate school board shall be 
notified as soon as possible, but in no case later than 10 calendar days 
from the date of issue of the notice of intent to discharge.
    (2) The appropriate school board, under any uniform procedure as it 
may adopt, may issue a formal written certification to the school 
supervisor, ASE, or AEPA either approving or disapproving the discharge 
before the expiration of the notice period and before actual discharge. 
Failure to respond before the expiration of the notice period will have 
the effect of approving the discharge.
    (3) The school supervisor initiating a discharge action may appeal 
the board's determination to the ASE or AEPA within 10 calendar days of 
receipt of the board's notice. The ASE or AEPA initiating a discharge 
may appeal the board's determination to the Director within 10 calendar 
days of receipt of the board's notice. Within 20 calendar days following 
the receipt of an appeal, the reviewing official may, for good cause, 
reverse the school board's determination by a notice in writing to the 
board. Failure to act within 20 calendar days shall have the effect of 
approving the board's determination.
    (f) School board recommendations for discharge. School boards may 
recommend in writing to school supervisors, ASE's, or AEPA's, and the 
Director that individuals in the education program be discharged. These 
written recommendations may follow any procedures formally established 
internally by the school board or tribal

[[Page 168]]

government. However, the written recommendations must contain specific 
causes or complaints that may be verified or established by 
investigation of factual situations. The official receiving a board 
recommendation for discharge of an individual shall acknowledge the 
recommendation in writing within 10 calendar days of receipt and proceed 
with a fact finding investigation. The official who finally disposes of 
the recommendation shall notify the school board of the disposition in 
writing within 60 calendar days of initiation of the fact finding 
investigation.



Sec. 38.10  Conditions of employment of educators.

    (a) Supervision not delegated to school boards. School boards may 
not direct, control, or interrupt the day-to-day activities of BIA 
employees carrying out Bureau-operated education programs.
    (b) Employee handbook. Employee handbook and recruiting guides shall 
be developed by each local school or agency to provide specific 
information regarding:
    (1) The working and hiring conditions for various tribal 
jurisdictions and Bureau locations;
    (2) The need for all education personnel to adapt to local 
situations; and
    (3) The requirement of all education personnel to comply with and 
support duly adopted school board policies, including those relating to 
tribal culture or language.
    (c) Contract renewal notification. Employees will be notified 60 
calendar days before the end of the school term of the intent to renew 
or not renew their contract. If an individual's contract is to be 
renewed, the individual must agree in writing to serve for the next 
school term. This agreement must be received within 14 calendar days of 
the date of the notice in order to complete the contract renewal. If 
this agreement is not received by the fourteenth day, the employee has 
voluntarily forfeited his or her right to continuing employment. If an 
individual agrees to serve for the next school term and fails to report 
for duty at the beginning of the next school term, the contract will be 
terminated and the individual's future appointment will be subject to 
the restriction in Sec. 38.7(k) of this part.
    (d) Dual compensation. An employee accepting a renewal of a school 
term contract may be appointed to another Federal position during the 
school recess period without regard to the dual compensation regulations 
in 5 U.S.C. 5533.
    (e) Discrimination complaints. Equal Employment Opportunity (EEO) 
procedures established under 29 CFR part 1613 are applicable to contract 
employees under this part. It is the policy of the BIA that all 
employees and applicants for employment shall be treated equally when 
considered for employment or benefits of employment, regardless of race, 
color, sex, religion, national origin, age, or mental or physical health 
(handicap), within the parameters of Indian preference.
    (f) Grievance procedures. The Director shall publish in 62 BIAM 
procedures for the rapid and equitable resolution of grievances. In 
locations and for positions covered by an exclusive bargaining 
agreement, the negotiated grievance procedure is the exclusive avenue of 
redress for all matters within the scope of the negotiated grievance 
procedure.
    (g) Performance evaluation. The minimum number of times a supervisor 
shall meet with an employee to discuss performance and suggest 
improvements shall be once every three months for the educator's first 
year at a school or Agency, and twice annually thereafter during the 
school term.



Sec. 38.11  Length of the regular school term.

    The length of the regular school term shall be at least 180 student 
instructional days, unless a waiver has been granted under the 
provisions of 25 CFR 36.61.



Sec. 38.12  Leave system for education personnel.

    (a) Full-time school-term employees. Employees on a full-time 
school-term contract are authorized the following types of leave:
    (1) Personal leave. A school-term employee will receive 28 hours of 
personal leave to be used for personal reasons and 12 hours of emergency 
leave. This

[[Page 169]]

leave only accrues provided the length of the contract exceeds 24 weeks.
    (i) The school-term employee will request the use of this leave in 
advance when it is for personal use or personal business (e.g., going to 
the bank, etc.). When this leave is requested for emergency purposes 
(e.g., death in immediate family), it will be requested immediately 
after the emergency is known, if possible, by the employee and before 
leave is taken or as soon as the supervisor reports to work on the 
official work day.
    (ii) Final approval rests with the supervisor. This leave shall be 
taken only during the school term. No compensation for or carryover of 
unused leave is authorized.
    (2) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments may be 
included under this part. However, whenever possible, medical and dental 
appointments should be scheduled after instructional time.
    (i) Sick leave shall accrue at the rate of four hours each biweekly 
pay period in pay status during the term of the contract; and no 
precredit or advance of sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (3) School vacation. School term employees may receive up to 136 
hours of school vacation time for use when school is not in session. 
School vacations are scheduled on the annual school calendar during the 
instructional year and may not be scheduled before the first day of 
student instruction or after the last day of student instruction. School 
vacations are not a right of the employee and cannot be paid for or 
carried over if the employee is required to work during the school 
vacation time or if the program will not permit school term employees to 
take such vacation time.
    (b) Leave for full-time, year-long employees. Employees who are on a 
full-time, year-long contract are authorized the following types of 
leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--120 hours; years 3-5 of employment--160 hours; 6 or more 
years--200 hours. The supervisor will determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment, provided 
the length of the contract exceeds 24 weeks. An employee may carry into 
succeeding years up to 200 hours of vacation leave. Leave unused at the 
time of separation is forfeited.
    (2) Sick leave. Sick leave accumulation and use is authorized on the 
same basis as for school term employees under Sec. 38.12(a)(2) of this 
part.
    (c) Leave for part-time year-long employees. Employees who are on 
part-time year-long contracts exceeding 20 hours per week are authorized 
the following types of leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--64 hours; years 3-5 of employment--80 hours; 6 or more 
years--104 hours. The supervisor shall determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment provided the 
length of the contract exceeds 24 weeks and may not be accumulated in 
excess of 104 hours from year to year. An employee may carry over up to 
104 hours from one contract year to the next. Leave unused at the time 
of separation is forfeited.
    (2) Sick leave. Sick leave is accumulated on the basis of three 
hours each biweekly pay period in pay status; no precredit or advance of 
sick leave is

[[Page 170]]

authorized. Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (d) Leave for school term employees on a part-time work schedule in 
excess of 20 hours per week. (1) Employees on a part-time work schedule 
in excess of 20 hours per week may receive a maximum of 102 hours of 
school vacation time; 20 hours of personal/emergency leave; and 63 hours 
of sick leave accrued at three hours per pay period for the first 21 pay 
periods of their contracts. Personal/emergency leave only accrues 
provided the length of the contract exceeds 24 weeks.
    (2) The part-time employee will request the use of this leave in 
writing in advance when it is for personal use or personal business 
(e.g., going to the bank, etc.). When this leave is requested for 
emergency purposes (e.g., death in immediate family), it will be 
requested immediately after the emergency is known, if possible, by the 
employee and before leave is taken or as soon as the supervisor reports 
to work on the official work day.
    (3) Final approval rests with the supervisor. This leave shall be 
taken only during the school year. No compensation for or carryover of 
unused leave is authorized.
    (4) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments may be 
included under this part. However, whenever possible, medical and dental 
appointments should be scheduled after instructional time.
    (i) Sick leave shall accrue at the rate of three hours each biweekly 
pay period in pay status for the first 21 pay periods of their contract; 
no precredit or advance for sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (5) School vacation time. Part-time employees may receive up to 102 
hours of school vacation time for use when school is not in session. 
Approval for the use of this time will be administratively determined by 
the school supervisor, ASE or AEPA, and this time may not be scheduled 
before the start of school or after the end of school.
    (i) All school vacation time for part-time employees will be 
approved at the convenience of the program and not as a right of the 
employee.
    (ii) Vacation time cannot be paid for or carried over for a part-
time employee if the employee is required to work during the school 
vacation time or if the program will not permit part-time employees to 
take such vacation time.
    (e) Accountable absences for all contract employees. The following 
are considered accountable absences:
    (1) Approved absence. If prescheduled and approved by the school 
supervisor, ASE or AEPA, as appropriate, an employee may be on leave 
without pay.
    (2) Absence without leave. Any absence is not prescheduled or 
approved in advance or excused by the supervisor is considered absence 
without leave.
    (3) Court and military leave. Employees are entitled to paid absence 
for jury or witness service and military duty as a member of the 
National Guard or Reserve under the same terms or conditions as outlined 
in sections 6322 and 6323 of title 5 U.S.C., and corresponding 
provisions of the Federal Personnel Manual, when the absence occurs 
during the regular contract period. Employees may be requested to 
schedule their military leave at times other than when school is in 
session.
    (4) Administrative leave. Administrative leave is an excused absence 
from duty administratively authorized without loss of pay or without 
charge to leave. This leave is not a substitute for other paid or unpaid 
leave categories. Administrative leave usually is authorized on an 
individual basis except when a school is closed or a group of employees 
are excused from work for a particular purpose. The school supervisor, 
ASE or AEPA will grant administrative leave. A school closing must be 
approved by the ASE or AEPA.
    (f) Educators serving with contracts with work weeks of 20 hours a 
week or less are not eligible for any type of paid leave.

[[Page 171]]

    (g) For school term educators, no paid leave is earned nor may 
accumulated leave be used during any period of employment with the 
Bureau between school terms.
    (h) Employees issued contracts for intermittent work are not 
eligible for any type of paid leave.
    (i) Leave transferred in. Annual leave credited to an employee's 
accrued leave balance immediately before conversion to a contract 
education position or appointment under this part will be carried over 
and made available to the employee. Sick leave credited to an employee's 
accrued sick leave balance immediately before conversion to a contract 
education position or appointment under this part shall be credited to 
the employee's sick leave account under the system in Sec. 38.12(a)(2) 
and (b)(2).



Sec. 38.13  Status quo employees in education positions.

    (a) Status quo employees. Individuals who were Bureau employees on 
October 31, 1979, with an appointment in either the competitive or 
excepted service without time limitation, and who are serving in an 
education position, shall be continued in their positions under the 
terms and conditions of that appointment with no change in their status 
or positions. Such employees are entitled to receive any changes in 
compensation attached to the position. Although such employees occupy 
``education positions'' as defined in this part, the terms and 
conditions of their appointment, status, and entitlements are determined 
by competitive service regulations and procedures. Under applicable 
procedures, these employees are eligible for consideration for movement 
to other positions that are defined as ``contract education'' positions. 
Such movement shall change the terms and conditions of their appointment 
to the terms and conditions of employment established under this part.
    (b) If the tribe or school board waives the Indian preference law, 
the employee loses the early-out retirement eligibility under Pub. L. 
96-135, ``early-out for non-Indians,'' if they are entitled to the 
early-out retirement. A memorandum for the record on BIA letterhead 
shall be signed by the employee and placed on the permanent side of his/
her Official Personnel Folder, along with the tribal resolution, if the 
tribe/school board has waived the Indian preference law to employ the 
non-Indian.''
    (c) Conversion of status quo employees to contract positions. Status 
quo employees may request in writing to the school supervisor, ASE or 
AEPA, as applicable, that their position be converted to contract. The 
appropriate school board will be consulted and a determination made by 
such school board whether such individual should be converted to a 
contract employee.
    (1) Written determination by the school board should be received 
within a reasonable period, but not to exceed 30 days from receipt of 
the request. Failure of the school board to act within this period shall 
have the effect of disapproving the proposed conversion.
    (2) With school board approval, an involuntary change in position 
shall not affect the current status of status quo education employees.



Sec. 38.14  Voluntary services.

    (a) Scope. An ASE or AEPA may, subject to the approval of the local 
school board concerned, accept voluntary services on behalf of Bureau 
schools from the private sector, including individuals, groups, or 
students. Voluntary service shall be for all non-hazardous activities 
where public services, special projects, or school operations are 
improved and enhanced. Volunteer service is limited to personal services 
received without compensation (salary or wages) by the Bureau from 
individuals, groups, and students. Nothing in this section shall be 
construed to require Federal employees to work without compensation or 
to allow the use of volunteer services to displace or replace Federal 
employees.
    (b) Volunteer service agreement. An agreement is a written document, 
jointly completed by the volunteer, the Bureau school supervisor, and 
the school board, that outlines the responsibilities of each. In the 
case of students receiving credit for their work (i.e., student 
teaching) from an education institution, the agreement will be jointly 
completed by the student, a

[[Page 172]]

representative of the institution, and the Bureau school supervisor. In 
the case of volunteer groups, the agreement shall be signed by an 
official of the volunteering organization, the Bureau school supervisor, 
and the school board and a list of signatures and emergency telephone 
numbers of all participants shall be attached.
    (c) Eligibility. Although no minimum age requirement exists for 
volunteers, schools shall comply with appropriate Federal and State laws 
and standards on using the services of minors. All volunteers under the 
age of 18 must obtain written permission from their parents or guardians 
to perform volunteer activities.
    (d) Status. Volunteers participating under this part are not 
considered Federal employees for any purpose other than:
    (1) Title 5 U.S.C. chapter 81, dealing with compensation for 
injuries sustained during the performance of work assignments.
    (2) Federal tort claims provisions published in 28 U.S.C. chapter 
171.
    (3) Department of the Interior Regulations Governing 
Responsibilities and Conduct.
    (e) Travel and other expenses. The decision to reimburse travel and 
other incidental expenses, as well as the amount of reimbursement, shall 
be made by the school supervisor, ASE, AEPA, and the respective school 
board. Payment is made in the same manner as for regular employees. 
Payment of travel and per diem expenses to a volunteer on a particular 
assignment must be supported by a specific travel authorization and 
cannot exceed the cost of employing a temporary employee of comparable 
qualification at the school for which a travel authorization is 
considered.
    (f) Annual report. School supervisors shall submit reports on 
volunteers to the ASE or AEPA by October 31 of each year for the 
preceding year.



Sec. 38.15  Southwestern Indian Polytechnic Institute.

    (a) The Southwestern Indian Polytechnic Institute has an independent 
personnel system established under Public Law 105-337, the 
Administrative Systems Act of 1998, 112 Stat. 3171. The details of this 
system are in the Indian Affairs Manual (IAM) at Part 20. This manual 
system may be found in Bureau of Indian Affairs Regional and Agency 
Offices, Education Line Offices, and the Central Office in Washington, 
DC.
    (b) The personnel system is in the excepted service and addresses 
the areas of classification, staffing, pay, performance, discipline, and 
separation. Other areas of personnel such as leave, retirement, life 
insurance, health benefits, thrift savings, etc., remain under the 
jurisdiction of the Office of Personnel Management.

[65 FR 58183, Sept. 27, 2000]



PART 39_THE INDIAN SCHOOL EQUALIZATION PROGRAM--Table of Contents




                            Subpart A_General

Sec.
39.1 What is the purpose of this part?
39.2 What definitions apply to terms in this part?
39.3 Information collection.

              Subpart B_Indian School Equalization Formula

39.100 What is the Indian School Equalization Formula?
39.101 Does ISEF assess the actual cost of school operations?

                      Base and Supplemental Funding

39.102 What is academic base funding?
39.103 What are the factors used to determine base funding?
39.104 How must a school's base funding provide for students with 
          disabilities?
39.105 Are additional funds available for special education?
39.106 Who is eligible for special education funding?
39.107 Are schools allotted supplemental funds for special student and/
          or school costs?

                      Gifted and Talented Programs

39.110 Can ISEF funds be distributed for the use of gifted and talented 
          students?
39.111 What does the term gifted and talented mean?
39.112 What is the limit on the number of students who are gifted and 
          talented?
39.113 What are the special accountability requirements for the gifted 
          and talented program?
39.114 What characteristics may qualify a student as gifted and talented 
          for purposes of supplemental funding?

[[Page 173]]

39.115 How are eligible gifted and talented students identified and 
          nominated?
39.116 How does a school determine who receives gifted and talented 
          services?
39.117 How does a school provide gifted and talented services for a 
          student?
39.118 How does a student receive gifted and talented services in 
          subsequent years?
39.119 When must a student leave a gifted and talented program?
39.120 How are gifted and talented services provided?
39.121 What is the WSU for gifted and talented students?

                      Language Development Programs

39.130 Can ISEF funds be used for Language Development Programs?
39.131 What is a Language Development Program?
39.132 Can a school integrate Language Development Programs into its 
          regular instructional program?
39.133 Who decides how Language Development funds can be used?
39.134 How does a school identify a Limited English Proficient student?
39.135 What services must be provided to an LEP student?
39.136 What is the WSU for Language Development programs?
39.137 May schools operate a language development program without a 
          specific appropriation from Congress?

                         Small School Adjustment

39.140 How does a school qualify for a Small School Adjustment?
39.141 What is the amount of the Small School Adjustment?
39.143 What is a small high school?
39.144 What is the small high school adjustment?
39.145 Can a school receive both a small school adjustment and a small 
          high school adjustment?
39.146 Is there an adjustment for small residential programs?

                     Geographic Isolation Adjustment

39.160 Does ISEF provide supplemental funding for extraordinary costs 
          related to a school's geographic isolation?

 Subpart C_Administrative Procedures, Student Counts, and Verifications

39.200 What is the purpose of the Indian School Equalization Formula?
39.201 Does ISEF reflect the actual cost of school operations?
39.202 What are the definitions of terms used in this subpart?
39.203 When does OIEP calculate a school's allotment?
39.204 How does OIEP calculate ADM?
39.205 How does OIEP calculate a school's total WSUs for the school 
          year?
39.206 How does OIEP calculate the value of one WSU?
39.207 How does OIEP determine a school's funding for the school year?
39.208 How are ISEP funds distributed?
39.209 When may a school count a student for membership purposes?
39.210 When must a school drop a student from its membership?
39.211 What other categories of students can a school count for 
          membership purposes?
39.212 Can a student be counted as enrolled in more than one school?
39.213 Will the Bureau fund children being home schooled?
39.214 What is the minimum number of instructional hours required in 
          order to be considered a full-time educational program?
39.215 Can a school receive funding for any part-time students?

                          Residential Programs

39.216 How does ISEF fund residential programs?
39.217 How are students counted for the purpose of funding residential 
          services?
39.218 Are there different formulas for different levels of residential 
          services?
39.219 What happens if a residential program does not maintain residency 
          levels required by this subpart?
39.220 What reports must residential programs submit to comply with this 
          rule?
39.221 What is a full school month?

                             Phase-in Period

39.230 How will the provisions of this subpart be phased in?

                        Subpart D_Accountability

39.401 What is the purpose of this subpart?
39.402 What definitions apply to terms used in this subpart?
39.403 What certification is required?
39.404 What is the certification and verification process?
39.405 How will verifications be conducted?
39.406 What documentation must the school maintain for additional 
          services it provides?
39.407 How long must a school maintain records?
39.408 What are the responsibilities of administrative officials?
39.409 How does the OIEP Director ensure accountability?
39.410 What qualifications must an audit firm meet to be considered for 
          auditing ISEP administration?
39.411 How will the auditor report its findings?
39.412 What sanctions apply for failure to comply with this subpart?

[[Page 174]]

39.413 Can a school appeal the verification of the count?

                       Subpart E_Contingency Fund

39.500 What emergency and contingency funds are available?
39.501 What is an emergency or unforeseen contingency?
39.502 How does a school apply for contingency funds?
39.503 How can a school use contingency funds?
39.504 May schools carry over contingency funds to a subsequent fiscal 
          year?
39.505 What are the reporting requirements for the use of the 
          contingency fund?

                Subpart F_School Board Training Expenses

39.600 Are Bureau-operated school board expenses funded by ISEP limited?
39.601 Is school board training for Bureau-operated schools considered a 
          school board expense subject to the limitation?
39.603 Is school board training required for all Bureau-funded schools?
39.604 Is there a separate weight for school board training at Bureau-
          operated schools?

                    Subpart G_Student Transportation

39.700 What is the purpose of this subpart?
39.701 What definitions apply to terms used in this subpart?

                          Eligibility for Funds

39.702 Can a school receive funds to transport residential students 
          using commercial transportation?
39.703 What ground transportation costs are covered for students 
          traveling by commercial transportation?
39.704 Are schools eligible to receive chaperone expenses to transport 
          residential students?
39.705 Are schools eligible for transportation funds to transport 
          special education students?
39.706 Are peripheral dormitories eligible for day transportation funds?
39.707 Which student transportation expenses are currently not eligible 
          for Student Transportation Funding?
39.708 Are miles generated by non-ISEP eligible students eligible for 
          transportation funding?

                    Calculating Transportation Miles

39.710 How does a school calculate annual bus transportation miles for 
          day students?
39.711 How does a school calculate annual bus transportation miles for 
          residential students?

                         Reporting Requirements

39.720 Why are there different reporting requirements for transportation 
          data?
39.721 What transportation information must off-reservation boarding 
          schools report?
39.722 What transportation information must day schools, on-reservation 
          boarding schools and peripheral dormitory schools report?

                        Miscellaneous Provisions

39.730 Which standards must student transportation vehicles meet?
39.731 Can transportation time be used as instruction time for day 
          school students?
39.732 How does OIEP allocate transportation funds to schools?

  Subpart H_Determining the Amount Necessary To Sustain an Academic or 
                           Residential Program

39.801 What is the formula to determine the amount necessary to sustain 
          a school's academic or residential program?
39.802 What is the student unit value in the formula?
39.803 What is a weighted student unit in the formula?
39.804 How is the SUIV calculated?
39.805 What was the student unit for instruction value (SUIV) for the 
          school year 1999-2000?
39.806 How is the SURV calculated?
39.807 How will the Student Unit Value be adjusted annually?
39.808 What definitions apply to this subpart?
39.809 Information collection.

           Subpart I_Interim Maintenance and Minor Repair Fund

39.900 Establishment and funding of an Interim Maintenance and Minor 
          Repair Fund.
39.901 Conditions for distribution.
39.902 Allocation.
39.903 Use of funds.
39.904 Limitations.

                  Subpart J_Administrative Cost Formula

39.1000 Purpose and scope.
39.1001 Definitions.
39.1002 Allotment of education administrative funds.
39.1003 Allotment exception for FY 1991.

                   Subpart K_Pre-kindergarten Programs

39.1100 Interim fiscal year 1980 and fiscal year 1981 funding for pre-
          kindergarten programs previously funded by the Bureau.

[[Page 175]]

39.1101 Addition of pre-kindergarten as a weight factor to the Indian 
          School Equalization Formula in fiscal year 1982.

        Subpart L_Contract School Operation and Maintenance Fund

39.1200 Definitions.
39.1201 Establishment of an interim fiscal year 1980 operation and 
          maintenance fund for contract schools.
39.1202 Distribution of funds.
39.1203 Future consideration of contract school operation and 
          maintenance funding.

    Authority: 25 U.S.C. 13, 2008; Public Law 107-110, 115 Stat. 1425.

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



                            Subpart A_General

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.1  What is the purpose of this part?

    This part provides for the uniform direct funding of Bureau-operated 
and tribally operated day schools, boarding schools, and dormitories. 
This part applies to all schools, dormitories, and administrative units 
that are funded through the Indian School Equalization Program of the 
Bureau of Indian Affairs.



Sec. 39.2  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Agency means an organizational unit of the Bureau which provides 
direct services to the governing body or bodies and members of one or 
more specified Indian Tribes. The term includes Bureau Area Offices only 
with respect to off-reservation boarding schools administered directly 
by such Offices.
    Agency school board means a body, the members of which are appointed 
by the school boards of the schools located within such agency, and the 
number of such members shall be determined by the Director in 
consultation with the affected tribes, except that, in agencies serving 
a single school, the school board of such school shall fulfill these 
duties.
    Assistant Secretary means the Assistant Secretary of Indian Affairs, 
Department of the Interior, or his or her designee.
    At no cost means provided without charge, but does not preclude 
incidental fees normally charged to non-disabled students or their 
parents as a part of the regular education program.
    Average Daily Membership (ADM) means the aggregated ISEP-eligible 
membership of a school for a school year, divided by the number of 
school days in the school's submitted calendar.
    Basic program means the instructional program provided to all 
students at any age level exclusive of any supplemental programs that 
are not provided to all students in day or boarding schools.
    Basic transportation miles means the daily average of all bus miles 
logged for round trip home-to-school transportation of day students.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Bureau-funded school means
    (1) Bureau school;
    (2) A contract or grant school; or
    (3) A school for which assistance is provided under the Tribally 
Controlled Schools Act of 1988.
    Bureau school means a Bureau-operated elementary or secondary day or 
boarding school or a Bureau-operated dormitory for students attending a 
school other than a Bureau school.
    Count Week means the last full week in September during which 
schools count their student enrollment for ISEP purposes.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau of Indian Affairs or a designee.
    Education Line Officer means the Bureau official in charge of Bureau 
education programs and functions in an Agency who reports to the 
Director.
    Eligible Indian student means a student who:
    (1) Is a member of, or is at least one-fourth degree Indian blood 
descendant

[[Page 176]]

of a member of, a tribe that is eligible for the special programs and 
services provided by the United States through the Bureau of Indian 
Affairs to Indians because of their status as Indians;
    (2) Resides on or near a reservation or meets the criteria for 
attendance at a Bureau off-reservation home-living school; and
    (3) Is enrolled in a Bureau-funded school.
    Home schooled means a student who is not enrolled in a school and is 
receiving educational services at home at the parent's or guardian's 
initiative.
    Homebound means a student who is educated outside the classroom.
    Individual supplemental services means non-base academic services 
provided to eligible students. Individual supplemental services that are 
funded by additional WSUs are gifted and talented or language 
development services.
    ISEP means the Indian School Equalization Program.
    Limited English Proficient (LEP) means a child from a language 
background other than English who needs language assistance in his/her 
own language or in English in the schools. This child has sufficient 
difficulty speaking, writing, or understanding English to deny him/her 
the opportunity to learn successfully in English-only classrooms and 
meets one or more of the following conditions:
    (1) The child was born outside of the United States or the child's 
Native language is not English;
    (2) The child comes from an environment where a language other than 
English is dominant; or
    (3) The child is an American Indian or Alaska Native and comes from 
an environment where a language other than English has had a significant 
impact on the child's level of English language proficiency.
    Local School Board means a body chosen in accordance with the laws 
of the tribe to be served or, in the absence of such laws, elected by 
the parents of the Indian children attending the school. For a school 
serving a substantial number of students from different tribes:
    (1) The members of the local school board shall be appointed by the 
tribal governing bodies affected; and
    (2) The Secretary shall determine number of members in consultation 
with the affected tribes.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs.
    Physical education means the development of physical and motor 
fitness, fundamental motor skills and patterns, and skills in aquatics, 
dance, and individual and group games and sports (including intramural 
and lifetime sports). The term includes special physical education, 
adapted physical education, movement education, and motor development.
    Resident means a student who is residing at a boarding school or 
dormitory during the weeks when student membership counts are conducted 
and is either:
    (1) A member of the instructional program in the same boarding 
school in which the student is counted as a resident; or
    (2) Enrolled in and a current member of a public school or another 
Bureau-funded school.
    Residential program means a program that provides room and board in 
a boarding school or dormitory to residents who are either:
    (1) Enrolled in and are current members of a public school or 
Bureau-funded school; or
    (2) Members of the instructional program in the same boarding school 
in which they are counted as residents and:
    (i) Are officially enrolled in the residential program of a Bureau-
operated or -funded school; and
    (ii) Are actually receiving supplemental services provided to all 
students who are provided room and board in a boarding school or a 
dormitory.
    Secretary means the Secretary of the Interior or a designated 
representative.
    School means a school funded by the Bureau of Indian Affairs. The 
term ``school'' does not include public, charter, or private schools.
    School bus means a passenger vehicle that is:
    (1) Used to transport day students to and/or from home and the 
school; and
    (2) Operated by an operator in the employ of, or under contract to, 
a Bureau-funded school, who is qualified to

[[Page 177]]

operate such a vehicle under Tribal, State or Federal regulations 
governing the transportation of students.
    School day means a day as defined by the submitted school calendar, 
as long as annual instructional hours are as they are reflected in Sec. 
39.213, excluding passing time, lunch, recess, and breaks.
    Special education means:
    (1) Specially designed instruction, at no cost to the parents, to 
meet the unique needs of a child with a disability, including:
    (i) Instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) The term includes each of the following, if it meets the 
requirements of paragraph (1) of this definition:
    (i) Speech-language pathology services, or any other related 
service, if the service is considered special education rather than a 
related service under State standards;
    (1) Travel training; and
    (2) Vocational education.
    Specially designed instruction means adapting, as appropriate, to 
the needs of an eligible child under this part, the content, 
methodology, or delivery or instruction:
    (1) To address the unique needs of the child that result from the 
child's disability; and
    (2) To ensure access of the child to the general curriculum, so that 
he or she can meet the educational standards within the jurisdiction of 
the public agency that apply to all children
    Three-year average means:
    (1) For academic programs, the average daily membership of the 3 
years before the current year of operation; and
    (2) For the residential programs, the count period membership of the 
3 years before the current year of operation.
    Travel training means providing instruction, as appropriate, to 
children with significant cognitive disabilities, and any other children 
with disabilities who require this instruction, to enable them to:
    (1) Develop an awareness of the environment in which they live; and
    (2) Learn the skills necessary to move efficiently and safely from 
place to place within that environment (e.g., in school, in the home, at 
work, and in the community).
    Tribally operated school means an elementary school, secondary 
school, or dormitory that receives financial assistance for its 
operation under a contract, grant, or agreement with the Bureau under 
section 102, 103(a), or 208 of 25 U.S.C. 450 et seq., or under the 
Tribally Controlled Schools Act of 1988.
    Vocational education means organized educational programs that are 
directly related to the preparation of individuals for paid or unpaid 
employment, or for additional preparation for a career requiring other 
than a baccalaureate or advanced degree.
    Unimproved roads means unengineered earth roads that do not have 
adequate gravel or other aggregate surface materials applied and do not 
have drainage ditches or shoulders.
    Weighted Student Unit means:
    (1) The measure of student membership adjusted by the weights or 
ratios used as factors in the Indian School Equalization Formula; and
    (2) The factor used to adjust the weighted student count at any 
school as the result of other adjustments made under this part.



Sec. 39.3  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part contains in 
Sec. Sec. 39.410 and 39.502 collections of information subject to the 
PRA. These collections have been approved by OMB under control number 
1076-0163.



              Subpart B_Indian School Equalization Formula

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.

[[Page 178]]



Sec. 39.100  What is the Indian School Equalization Formula?

    The Indian School Equalization Formula (ISEF) was established to 
allocate Indian School Equalization Program (ISEP) funds. OIEP applies 
ISEF to determine funding allocation for Bureau-funded schools as 
described in Sec. Sec. 39.204 through 39.206.



Sec. 39.101  Does ISEF assess the actual cost of school operations?

    No. ISEF does not attempt to assess the actual cost of school 
operations either at the local level or in the aggregate at the national 
level. ISEF provides a method of distribution of funds appropriated by 
Congress for all schools.

                      Base and Supplemental Funding



Sec. 39.102  What is academic base funding?

    Academic base funding is the ADM times the weighted student unit.



Sec. 39.103  What are the factors used to determine base funding?

    To determine base funding, schools must use the factors shown in the 
following table. The school must apply the appropriate factor to each 
student for funding purposes.

------------------------------------------------------------------------
                                                   Base          Base
                                                 academic    residential
                 Grade level                      funding      funding
                                                  factor        factor
------------------------------------------------------------------------
Kindergarten.................................          1.15      NA
Grades 1-3...................................          1.38    1.75
Grades 4-6...................................          1.15     1.6
Grades 7-8...................................          1.38     1.6
Grades 9-12..................................          1.5      1.6
------------------------------------------------------------------------



Sec. 39.104  How must a school's base funding provide for students with 
disabilities?

    (a) Each school must provide for students with disabilities by:
    (1) Reserving 15 percent of academic base funding to support special 
education programs; and
    (2) Providing resources through residential base funding to meet the 
needs of students with disabilities under the National Criteria for 
Home-Living Situations.
    (b) A school may spend all or part of the 15 percent academic base 
funding reserved under paragraph (a)(1) of this section on school-wide 
programs to benefit all students (including those without disabilities) 
only if the school can document that it has met all needs of students 
with disabilities with such funds, and after having done so, there are 
unspent funds remaining from such funds.



Sec. 39.105  Are additional funds available for special education?

    (a) Schools may supplement the 15 percent base academic funding 
reserved under Sec. 39.104 for special education with funds available 
under part B of the Individuals with Disabilities Education Act (IDEA). 
To obtain part B funds, the school must submit an application to OIEP. 
IDEA funds are available only if the school demonstrates that funds 
reserved under Sec. 39.104(a) are inadequate to pay for services needed 
by all eligible ISEP students with disabilities.
    (b) The Bureau will facilitate the delivery of IDEA part B funding 
by:
    (1) Providing technical assistance to schools in completing the 
application for the funds; and
    (2) Providing training to Bureau staff to improve the delivery of 
part B funds.



Sec. 39.106  Who is eligible for special education funding?

    To receive ISEP special education funding, a student must be under 
22 years old and must not have received a high school diploma or its 
equivalent on the first day of eligible attendance. The following 
minimum age requirements also apply:
    (a) To be counted as a kindergarten student, a child must be at 
least 5 years old by December 31; and
    (b) To be counted as a first grade student; a child must be at least 
6 years old by December 31.



Sec. 39.107  Are schools allotted supplemental funds for special student 
and/or school costs?

    Yes, schools are allotted supplemental funds for special student 
and/or school costs. ISEF provides additional funds to schools through 
add-on weights (called special cost factors).

[[Page 179]]

ISEF adds special cost factors as shown in the following table.

------------------------------------------------------------------------
                Cost Factor                   For more information see
------------------------------------------------------------------------
Gifted and talented students..............  Sec. Sec.  39.110 through
                                             39.121
Students with language development needs..  Sec. Sec.  39.130 through
                                             39.137
Small school size.........................  Sec. Sec.  39.140 through
                                             39.156
Geographic isolation of the school........  Sec.  39.160
------------------------------------------------------------------------

                      Gifted and Talented Programs



Sec. 39.110  Can ISEF funds be distributed for the use of gifted and 
talented students?

    Yes, ISEF funds can be distributed for the provision of services for 
gifted and talented students.



Sec. 39.111  What does the term gifted and talented mean?

    The term gifted and talented means students, children, or youth who:
    (a) Give evidence of high achievement capability in areas such as 
intellectual, creative, artistic, or leadership capacity, or in specific 
academic fields; and
    (b) Need services or activities not ordinarily provided by the 
school in order to fully develop those capabilities.



Sec. 39.112  What is the limit on the number of students who are gifted 
and talented?

    There is no limit on the number of students that a school can 
classify as gifted and talented.



Sec. 39.113  What are the special accountability requirements for the 
gifted and talented program?

    If a school identifies more than 13 percent of its student 
population as gifted and talented the Bureau will immediately audit the 
school's gifted and talented program to ensure that all identified 
students:
    (a) Meet the gifted and talented requirement in the regulations; and
    (b) Are receiving gifted and talented services.



Sec. 39.114  What characteristics may qualify a student as gifted and 
talented for purposes of supplemental funding?

    To be funded as gifted and talented under this part, a student must 
be identified as gifted and talented in at least one of the following 
areas.
    (a) Intellectual Ability means scoring in the top 5 percent on a 
statistically valid and reliable measurement tool of intellectual 
ability.
    (b) Creativity/Divergent Thinking means scoring in the top 5 percent 
of performance on a statistically valid and reliable measurement tool of 
creativity/divergent thinking.
    (c) Academic Aptitude/Achievement means scoring in the top 15 
percent of academic performance in a total subject area score on a 
statistically valid and reliable measurement tool of academic 
achievement/aptitude, or a standardized assessment, such as an NRT or 
CRT.
    (d) Leadership means the student is recognized as possessing the 
ability to lead, guide, or influence the actions of others as measured 
by objective standards that a reasonable person of the community would 
believe demonstrates that the student possess leadership skills. These 
standards include evidence from surveys, supportive documentation 
portfolios, elected or appointed positions in school, community, clubs 
and organization, awards documenting leadership capabilities. No school 
can identify more than 15 percent of its student population as gifted 
and talented through the leadership category.
    (e) Visual and Performing Arts means outstanding ability to excel in 
any imaginative art form; including, but not limited to, drawing, 
printing, sculpture, jewelry making, music, dance, speech, debate, or 
drama as documented from surveys, supportive documentation portfolios, 
awards from judged or juried competitions. No school can identify more 
than 15 percent of its student population as gifted and talented through 
the visual and performing arts category.



Sec. 39.115  How are eligible gifted and talented students identified 
and nominated?

    (a) Screening can be completed annually to identify potentially 
eligible students. A student may be nominated for gifted and talented 
designation using the criteria in Sec. 39.114 by any of the following:

[[Page 180]]

    (1) A teacher or other school staff;
    (2) Another student;
    (3) A community member;
    (4) A parent or legal guardian; or
    (5) The student himself or herself.
    (b) Students can be nominated based on information regarding the 
student's abilities from any of the following sources:
    (1) Collections of work;
    (2) Audio/visual tapes;
    (3) School grades;
    (4) Judgment of work by qualified individuals knowledgeable about 
the student's performances (e.g., artists, musicians, poets, historians, 
etc.);
    (5) Interviews or observations; or
    (6) Information from other sources.
    (c) The school must have written parental consent to collect 
documentation of gifts and talents under paragraph (b) of this section.



Sec. 39.116  How does a school determine who receives gifted and talented 
services?

    (a) To determine who receives gifted and talented funding, the 
school must use qualified professionals to perform a multi-disciplinary 
assessment. The assessment may include the examination of work samples 
or performance appropriate to the area under consideration. The school 
must have the parent or guardian's written permission to conduct 
individual assessments or evaluations. Assessments under this section 
must meet the following standards:
    (1) The assessment must use assessment instruments specified in 
Sec. 39.114 for each of the five criteria for which the student is 
nominated;
    (2) If the assessment uses a multi-criteria evaluation, that 
evaluation must be an unbiased evaluation based on student needs and 
abilities;
    (3) Indicators for visual and performing arts and leadership may be 
determined based on national, regional, or local criteria; and
    (4) The assessment may use student portfolios.
    (b) A multi-disciplinary team will review the assessment results to 
determine eligibility for gifted and talented services. The purpose of 
the team is to determine eligibility and placement to receive gifted and 
talented services.
    (1) Team members may include nominator, classroom teacher, qualified 
professional who conducted the assessment, local experts as needed, and 
other appropriate personnel such as the principal and/or a counselor.
    (2) A minimum of three team members is required to determine 
eligibility.
    (3) The team will design a specific education plan to provide gifted 
and talented services related in the areas identified.



Sec. 39.117  How does a school provide gifted and talented services 
for a student?

    Gifted and talented services are provided through or under the 
supervision of highly qualified professional teachers. To provide gifted 
and talented services for a student, a school must take the steps in 
this section.
    (a) The multi-disciplinary team formed under Sec. 39.116(b) will 
sign a statement of agreement for placement of services based on 
documentation reviewed.
    (b) The student's parent or guardian must give written permission 
for the student to participate.
    (c) The school must develop a specific education plan that contains:
    (1) The date of placement;
    (2) The date services will begin;
    (3) The criterion from Sec. 39.114 for which the student is 
receiving services and the student's performance level;
    (4) Measurable goals and objectives; and
    (5) A list of staff responsible for each service that the school is 
providing.



Sec. 39.118  How does a student receive gifted and talented services 
in subsequent years?

    For each student receiving gifted and talented services, the school 
must conduct a yearly evaluation of progress, file timely progress 
reports, and update the specific education plan.
    (a) If a school identifies a student as gifted and talented based on 
Sec. 39.114 (a), (b), or (c), then the student does not need to reapply 
for the gifted and talented program. However, the student must be 
reevaluated at least every 3 years through the 10th grade to verify 
eligibility for funding.

[[Page 181]]

    (b) If a school identifies a student as gifted and talented based on 
Sec. 39.114 (d) or (e), the student must be reevaluated annually for 
the gifted and talented program.



Sec. 39.119  When must a student leave a gifted and talented program?

    A student must leave the gifted and talented program when either:
    (a) The student has received all of the available services that can 
meet the student's needs;
    (b) The student no longer meets the criteria that have qualified him 
or her for the program; or
    (c) The parent or guardian removes the student from the program.



Sec. 39.120  How are gifted and talented services provided?

    In providing services under this section, the school must:
    (a) Provide a variety of programming services to meet the needs of 
the students;
    (b) Provide the type and duration of services identified in the 
Individual Education Plan established for each student; and
    (c) Maintain individual student files to provide documentation of 
process and services; and
    (d) Maintain confidentiality of student records under the Family 
Educational Rights and Privacy Act (FERPA).



Sec. 39.121  What is the WSU for gifted and talented students?

    The WSU for a gifted and talented student is the base academic 
weight (see Sec. 39.103) subtracted from 2.0. The following table shows 
the gifted and talented weights obtained using this procedure.

------------------------------------------------------------------------
                                                             Gifted and
                        Grade level                         talented WSU
------------------------------------------------------------------------
Kindergarten..............................................          0.85
Grades 1 to 3.............................................          0.62
Grades 4 to 6.............................................          0.85
Grades 7 to 8.............................................          0.62
Grades 9 to 12............................................          0.50
------------------------------------------------------------------------

                      Language Development Programs



Sec. 39.130  Can ISEF funds be used for Language Development Programs?

    Yes, schools can use ISEF funds to implement Language Development 
programs that demonstrate the positive effects of Native language 
programs on students' academic success and English proficiency. Funds 
can be distributed to a total aggregate instructional weight of 0.13 for 
each eligible student.



Sec. 39.131  What is a Language Development Program?

    A Language Development program is one that serves students who 
either:
    (a) Are not proficient in spoken or written English;
    (b) Are not proficient in any language;
    (c) Are learning their Native language for the purpose of 
maintenance or language restoration and enhancement;
    (d) Are being instructed in their Native language; or
    (e) Are learning non-language subjects in their Native language.



Sec. 39.132  Can a school integrate Language Development programs into 
its regular instructional program?

    A school may offer Language Development programs to students as part 
of its regular academic program. Language Development does not have to 
be offered as a stand-alone program.



Sec. 39.133  Who decides how Language Development funds can be used?

    Tribal governing bodies or local school boards decide how their 
funds for Language Development programs will be used in the 
instructional program to meet the needs of their students.



Sec. 39.134  How does a school identify a Limited English Proficient 
student?

    A student is identified as limited English proficient (LEP) by using 
a nationally recognized scientifically research-based test.



Sec. 39.135  What services must be provided to an LEP student?

    A school must provide services that assist each LEP student to:

[[Page 182]]

    (a) Become proficient in English and, to the extent possible, 
proficient in their Native language; and
    (b) Meet the same challenging academic content and student academic 
achievement standards that all students are expected to meet under 20 
U.S.C. 6311(b)(1).



Sec. 39.136  What is the WSU for Language Development programs?

    Language Development programs are funded at 0.13 WSUs per student.



Sec. 39.137  May schools operate a language development program without 
a specific appropriation from Congress?

    Yes, a school may operate a language development program without a 
specific appropriation from Congress, but any funds used for such a 
program must come from existing ISEP funds. When Congress specifically 
appropriates funds for Indian or Native languages, the factor to support 
the language development program will be no more than 0.25 WSU.

                         Small School Adjustment



Sec. 39.140  How does a school qualify for a Small School Adjustment?

    A school will receive a small school adjustment if either:
    (a) Its average daily membership (ADM) is less than 100 students; or
    (b) It serves lower grades and has a diploma-awarding high school 
component with an average instructional daily membership of less than 
100 students.



Sec. 39.141  What is the amount of the Small School Adjustment?

    (a) A school with a 3-year ADM of 50 or fewer students will receive 
an adjustment equivalent to an additional 12.5 base WSU; or
    (b) A school with a 3-year ADM of 51 to 99 students will use the 
following formula to determine the number of WSU for its adjustment. 
With X being the ADM, the formula is as follows:

WSU adjustment = ((100-X)/200)*X



Sec. 39.143  What is a small high school?

    For purposes of this part, a small high school:
    (a) Is accredited under 25 U.S.C. 2001(b);
    (b) Is staffed with highly qualified teachers;
    (c) Operates any combination of grades 9 through 12;
    (d) Offers high school diplomas; and
    (e) Has an ADM of fewer than 100 students.



Sec. 39.144  What is the small high school adjustment?

    (a) The small high school adjustment is a WSU adjustment given to a 
small high school that meets both of the following criteria:
    (1) It has a 3-year average daily membership (ADM) of less than 100 
students; and
    (2) It operates as part of a school that during the 2003-04 school 
year also included lower grades.
    (b) The following table shows the WSU adjustment given to small high 
schools. In the table, ``X'' stands for the ADM.

------------------------------------------------------------------------
                                                         School receives
                                                           a component
 ADM of high school  component   Amount of small high     small school
                                   school adjustment    adjustment under
                                                          Sec.  39.141
------------------------------------------------------------------------
50 or fewer students..........  6.25 base WSU.........  Yes.
51 to 99 students.............  determined using the    Yes.
                                 following formula:
                                 WSU = ((100-X)/200)*X/
                                 2.
50 or fewer students..........  12.5 base WSU.........  No.
51 to 99 students.............  determined using the    No.
                                 following formula:
                                 WSU = ((100-X)/200)*X.
------------------------------------------------------------------------



Sec. 39.145  Can a school receive both a small school adjustment and 
a small high school adjustment?

    A school that meets the criteria in Sec. 39.140 can receive both a 
small school adjustment and a small high school adjustment. The 
following table shows the total amount of adjustments for eligible 
schools by average daily membership (ADM) category.

[[Page 183]]



----------------------------------------------------------------------------------------------------------------
                                                     ADM--high                      Small high
               ADM--entire school                     school       Small school       school           Total
                                                     component      adjustment      adjustment      adjustment
----------------------------------------------------------------------------------------------------------------
1-50............................................              NA            12.5              NA            12.5
1-50............................................            1-50            12.5            6.25           18.75
51-99...........................................            1-50    \2\ 12.5-0.5            6.25      18.75-6.75
51-99...........................................           51-99    \1\ 12.5-0.5   \2\ 6.25-0.25       18.75-0.7
99..............................................            1-50             0.5            12.5            12.5
99..............................................           51-99             0.5    \2\ 12.5-0.5       12.5-0.5
----------------------------------------------------------------------------------------------------------------
\1\ The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
  the formula in Sec.  39.141.
\2\ The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
  the formula in Sec.  39.144.



Sec. 39.146  Is there an adjustment for small residential programs?

    In order to compensate for the additional costs of operating a small 
residential program, OIEP will add to the total WSUs of each qualifying 
school as shown in the following table:

------------------------------------------------------------------------
      Type of residential program              Number of WSUs added
------------------------------------------------------------------------
Residential student count of 50 or       12.5.
 fewer ISEP-eligible students.
Residential student count of between 51  Determined by the formula ((100-
 and 99 ISEP-eligible students.           X)/200))X, where X equals the
                                          residential student count.
------------------------------------------------------------------------

                     Geographic Isolation Adjustment



Sec. 39.160  Does ISEF provide supplemental funding for extraordinary 
costs related to a school's geographic isolation?

    Yes. Havasupai Elementary School, for as long as it remains in its 
present location, will be awarded an additional cost factor of 12.5 WSU.



 Subpart C_Administrative Procedures, Student Counts, and Verifications

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.200  What is the purpose of the Indian School Equalization 
Formula?

    OIEP uses the Indian School Equalization Formula (ISEF) to 
distribute Indian School Equalization Program (ISEP) appropriations 
equitably to Bureau-funded schools.



Sec. 39.201  Does ISEF reflect the actual cost of school operations?

    ISEF does not attempt to assess the actual cost of school operations 
either at the local school level or in the aggregate nationally. ISEF is 
a relative distribution of available funds at the local school level by 
comparison with all other Bureau-funded schools.



Sec. 39.202  What are the definitions of terms used in this subpart?

    Homebound means a student who is educated outside the classroom.
    Home schooled means a student who is not enrolled in a school and is 
receiving educational services at home at the parent's or guardian's 
initiative.
    School day means a day as defined by the submitted school calendar, 
as long as annual instructional hours are as they are reflected in Sec. 
39.213, excluding passing time, lunch, recess, and breaks.
    Three-year average means:
    (1) For academic programs, the average daily membership of the 3 
years before the current year of operation; and
    (2) For the residential programs, the count period membership of the 
3 years before the current year of operation.



Sec. 39.203  When does OIEP calculate a school's allotment?

    OIEP calculates a school's allotment no later than July 1. Schools 
must submit final ADM enrollment figures no later than June 15.



Sec. 39.204  How does OIEP calculate ADM?

    OIEP calculates ADM by:
    (a) Adding the total enrollment figures from periodic reports 
received from each Bureau-funded school; and

[[Page 184]]

    (b) Dividing the total enrollment for each school by the number of 
days in the school's reporting period.



Sec. 39.205  How does OIEP calculate a school's total WSUs for the 
school year?

    (a) OIEP will add the weights obtained from the calculations in 
paragraphs (a)(1), (a)(2), and (a)(3) of this section to obtain the 
total weighted student units (WSUs) for each school.
    (1) Each year's ADM is multiplied by the applicable weighted student 
unit for each grade level;
    (2) Calculate any supplemental WSUs generated by the students; and
    (3) Calculate any supplemental WSUs generated by the schools.
    (b) The total WSU for the school year is the sum of paragraphs 
(a)(1), (a)(2), and (a)(3) of this section.



Sec. 39.206  How does OIEP calculate the value of one WSU?

    (a) To calculate the appropriated dollar value of one WSU, OIEP 
divides the systemwide average number of WSUs for the previous 3 years 
into the current year's appropriation.
    (b) To calculate the average WSU for a 3-year period:
    (1) Step 1. Add together each year's total WSU (calculated under 
paragraph (b) of this section); and
    (2) Step 2. Divide the sum obtained in step 1 by 3.



Sec. 39.207  How does OIEP determine a school's funding for the school 
year?

    To determine a school's funding for the school year, OIEP uses the 
following seven-step process:
    (a) Step 1. Multiply the appropriate base academic and/or 
residential weight from Sec. 39.103 by the number of students in each 
grade level category.
    (b) Step 2. Multiply the number of students eligible for 
supplemental program funding under Sec. 39.107 by the weights for the 
program.
    (c) Step 3. Calculate the school-based supplemental weights under 
Sec. 639.107.
    (d) Step 4. Add together the sums obtained in steps 1 through 3 to 
obtain each school's total WSU.
    (e) Step 5. Add together the total WSUs for all Bureau-funded 
schools.
    (f) Step 6. Calculate the value of a WSU by dividing the current 
school year's funds by the average total WSUs as calculated under step 5 
for the previous 3 years.
    (g) Step 7. Multiply each school's WSU total by the base value of 
one WSU to determine funding for that school.



Sec. 39.208  How are ISEP funds distributed?

    (a) On July 1, schools will receive 80 percent of their funds as 
determined in Sec. 39.207.
    (b) On December 1, the balance will be distributed to all schools 
after verification of the school count and any adjustments made through 
the appeals process for the third year.



Sec. 39.209  When may a school count a student for membership purposes?

    If a student is enrolled, is in attendance during any of the first 
10 days of school, and receives at least 5 days' instruction, the 
student is deemed to be enrolled all 10 days and shall be counted for 
ADM purposes. The first 10 days of school, for purposes of this section, 
are determined by the calendar that the school submits to OIEP.
    (a) For ISEP purposes, a school can add a student to the membership 
when he or she has been enrolled and has received a full day of 
instruction from the school.
    (b) Except as provided in Sec. 39.210, to be counted for ADM, a 
student dropped under Sec. 39.209 must:
    (1) Be re-enrolled; and
    (2) Receive a full day of instruction from the school.



Sec. 39.210  When must a school drop a student from its membership?

    If a student is absent for 10 consecutive school days, the school 
must drop that student from the membership for ISEP purposes of that 
school on the 11th day.



Sec. 39.211  What other categories of students can a school count 
for membership purposes?

    A school can count other categories of students for membership 
purposes as shown in the following table.

[[Page 185]]



------------------------------------------------------------------------
                                            Circumstances under which
            Type of  student              student can be included in the
                                               school's membership
------------------------------------------------------------------------
(a) Homebound..........................  (1) The student is temporarily
                                          confined to the home for some
                                          or all of the school day for
                                          medical, family emergency, or
                                          other reasons required by law
                                          or regulation;
                                         (2) The student is being
                                          provided by the school with at
                                          least 5 documented contact
                                          hours each week of academic
                                          services by certified
                                          educational personnel; and
                                         (3) Appropriate documentations
                                          is on file at the school.
(b) Located in an institutional setting  The school is either:
 outside of the school.                  (1) Paying for the student to
                                          receive educational services
                                          from the facility; or
                                         (2) Providing educational
                                          services by certified school
                                          staff for at least 5
                                          documented contact hours each
                                          week.
(c) Taking college courses during the    The student is both:
 school day.                             (1) Concurrently enrolled in,
                                          and receiving credits for both
                                          the school's courses and
                                          college courses; and
                                         (2) In physical attendance at
                                          the school at least 3
                                          documented contact hours per
                                          day.
(d) Taking distance learning courses...  The student is both:
                                         (1) Receiving high school
                                          credit for grades; and
                                         (2) In physical attendance at
                                          the school at least 3
                                          documented contact hours per
                                          day.
(e) Taking internet courses............  The student is both:
                                         (1) Receiving high school
                                          credit for grades; and
                                         (2) Taking the courses at the
                                          school site under a teacher's
                                          supervision.
------------------------------------------------------------------------



Sec. 39.212  Can a student be counted as enrolled in more than one 
school?

    Yes, if a student attends more than one school during an academic 
year, each school may count the student as enrolled once the student 
meets the criteria in 39.209.



Sec. 39.213  Will the Bureau fund children being home schooled?

    No, the Bureau will not fund any child that is being home schooled.



Sec. 39.214  What is the minimum number of instructional hours required 
in order to be considered a full-time educational program?

    A full time program provides the following number of instructional/
student hours to the corresponding grade level:

------------------------------------------------------------------------
                           Grade                                Hours
------------------------------------------------------------------------
K..........................................................          720
1-3........................................................          810
4-8........................................................          900
9-12.......................................................          970
------------------------------------------------------------------------



Sec. 39.215  Can a school receive funding for any part-time students?

    (a) A school can receive funding for the following part-time 
students:
    (1) Kindergarten students enrolled in a 2-hour program; and
    (2) Grade 7-12 students enrolled in at least half but less than a 
full instructional day.
    (b) The school must count students classified as part-time at 50 
percent of their basic instructional WSU value.

                          Residential Programs



Sec. 39.216  How does ISEF fund residential programs?

    Residential programs are funded on a WSU basis using a formula that 
takes into account the number of nights of service per week. Funding for 
residential programs is based on the average of the 3 previous years' 
residential WSUs.



Sec. 39.217  How are students counted for the purpose of funding 
residential services?

    For a student to be considered in residence for purposes of this 
subpart, the school must be able to document that the student was:
    (a) In residence at least one night during the first full week of 
October;
    (b) In residence at least one night during the week preceding the 
first full week in October;
    (c) In residence at least one night during the week following the 
first full week in October; and
    (d) Present for both the after school count and the midnight count 
at least one night during each week specified in this section.



Sec. 39.218  Are there different formulas for different levels of 
residential services?

    (a) Residential services are funded as shown in the following table:

------------------------------------------------------------------------
                                              Each student is funded at
  If a residential program operates . . .        the level of . . .
------------------------------------------------------------------------
(1) 4 nights per week or less.............  Total WSU x 4/7.
(2) 5, 6 or 7 nights per week.............  Total WSU x 7/7.
------------------------------------------------------------------------


[[Page 186]]

    (b) In order to qualify for residential services funding under 
paragraph (a)(2) of this section, a school must document that at least 
10 percent of residents are present on 3 of the 4 weekends during the 
count period.
    (c) At least 50 percent of the residency levels established during 
the count period must be maintained every month for the remainder of the 
school year.
    (d) A school may obtain waivers from the requirements of this 
section if there are health or safety justifications.



Sec. 39.219  What happens if a residential program does not maintain 
residency levels required by this subpart?

    Each school must maintain its declared nights of service per week as 
certified in its submitted school calendar. For each month that a school 
does not maintain 25 percent of the residency shown in its submitted 
calendar, the school will lose one-tenth of its current year allocation.



Sec. 39.220  What reports must residential programs submit to comply 
with this subpart?

    Residential programs must report their monthly counts to the 
Director on the last school day of the month. To be counted, a student 
must have been in residence at least 10 nights during each full school 
month.



Sec. 39.221  What is a full school month?

    A full school month is each 30-day period following the first day 
that residential services are provided to students based on the school 
residential calendar.

                             Phase-in Period



Sec. 39.230  How will the provisions of this subpart be phased in?

    The calculation of the three-year rolling average of ADM for each 
school and for the entire Bureau-funded school system will be phased-in 
as shown in the following table.

------------------------------------------------------------------------
              Time period                  How OIEP must calculate ADM
------------------------------------------------------------------------
(a) First school year after May 31,      Use the prior 3 years' count
 2005.                                    period to create membership
                                          for funding purposes
(b) Second school year after May 31,     (1) The academic program will
 2005.                                    use the previous year's ADM
                                          school year and the 2 prior
                                          years' count periods; and
                                         (2) The residential program
                                          will use the previous year's
                                          count period and the 2 prior
                                          years' count weeks
(c) Each succeeding school year after    Add one year of ADM or count
 May 31, 2005.                            period and drop one year of
                                          prior count weeks until both
                                          systems are operating on a 3-
                                          year rolling average using the
                                          previous 3 years' count after
                                          period or ADM, respectively.
------------------------------------------------------------------------



                        Subpart D_Accountability

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.401  What is the purpose of this subpart?

    The purpose of this subpart is to ensure accountability of 
administrative officials by creating procedures that are systematic and 
can be verified by a random independent outside auditing procedures. 
These procedures will ensure the equitable distribution of funds among 
schools.



Sec. 39.402  What definitions apply to terms used in this subpart?

    Administrative officials means any persons responsible for managing 
and operating a school, including the school supervisor, the chief 
school administrator, tribal officials, Education Line Officers, and the 
Director, OIEP.
    Director means the Director of the Office of Indian Education 
Programs of the Bureau of Indian Affairs.
    Education Line Officer means the Bureau official in charge of Bureau 
education programs and functions in an Agency who reports to the 
Director.

[[Page 187]]



Sec. 39.403  What certification is required?

    (a) Each school must maintain an individual file on each student 
receiving basic educational and supplemental services. The file must 
contain written documentation of the following:
    (1) Each student's eligibility and attendance records;
    (2) A complete listing of all supplemental services provided, 
including all necessary documentation required by statute and 
regulations (e.g., a current and complete Individual Education Plan for 
each student receiving supplemental services); and
    (3) Documentation of expenditures and program delivery for student 
transportation to and from school provided by commercial carriers.
    (b) The School must maintain the following files in a central 
location:
    (1) The school's ADM and supplemental program counts and residential 
count;
    (2) Transportation related documentation, such as school bus 
mileage, bus routes;
    (3) A list of students transported to and from school;
    (4) An electronic student count program or database;
    (5) Class record books;
    (6) Supplemental program class record books;
    (7) For residential programs, residential student attendance 
documentation;
    (8) Evidence of teacher certification; and
    (9) The school's accreditation certificate.
    (c) The Director must maintain a record of required certifications 
for ELOs, specialists, and school superintendents in a central location.



Sec. 39.404  What is the certification and verification process?

    (a) Each school must:
    (1) Certify that the files required by Sec. 39.403 are complete and 
accurate; and
    (2) Compile a student roster that includes a complete list of all 
students by grade, days of attendance, and supplemental services.
    (b) The chief school administrator and the president of the school 
board are responsible for certifying the school's ADM and residential 
count is true and accurate to the best of their knowledge or belief and 
is supported by appropriate documentation.
    (c) OIEP's education line officer (ELO) will annually review the 
following to verify that the information is true and accurate and is 
supported by program documentation:
    (1) The eligibility of every student;
    (2) The school's ADM and supplemental program counts and residential 
count;
    (3) Evidence of accreditation;
    (4) Documentation for all provided basic and supplemental services, 
including all necessary documentation required by statute and 
regulations (e.g., a current and complete Individual Education Plan for 
each student receiving supplemental services); and
    (5) Documentation required by subpart G of this part for student 
transportation to and from school provided by commercial carriers.



Sec. 39.405  How will verifications be conducted?

    The eligibility of every student shall be verified. The ELO will 
take a random sampling of five days with a minimum of one day per 
grading period to verify the information in Sec. 39.404(c). The ELO 
will verify the count for the count period and verify residency during 
the remainder of the year.



Sec. 39.406  What documentation must the school maintain for additional 
services it provides?

    Every school must maintain a file on each student receiving 
additional services. (Additional services include homebound services, 
institutional services, distance courses, Internet courses or college 
services.) The school must certify, and its records must show, that:
    (a) Each homebound or institutionalized student is receiving 5 
contact hours each week by certified educational personnel;
    (b) Each student taking college, distance or internet courses is in 
physical attendance at the school for at least 3 certified contact hours 
per day.

[[Page 188]]



Sec. 39.407  How long must a school maintain records?

    The responsible administrative official for each school must 
maintain records relating to ISEP, supplemental services, and 
transportation-related expenditures. The official must maintain these 
records in appropriate retrievable storage for at least the four years 
prior to the current school year, unless Federal records retention 
schedules require a longer period.



Sec. 39.408  What are the responsibilities of administrative officials?

    Administrative officials have the following responsibilities:
    (a) Applying the appropriate standards in this part for classifying 
and counting ISEP eligible Indian students at the school for formula 
funding purposes;
    (b) Accounting for and reporting student transportation 
expenditures;
    (c) Providing training and supervision to ensure that appropriate 
standards are adhered to in counting students and accounting for student 
transportation expenditures;
    (d) Submitting all reports and data on a timely basis; and
    (e) Taking appropriate disciplinary action for failure to comply 
with requirements of this part.



Sec. 39.409  How does the OIEP Director ensure accountability?

    (a) The Director of OIEP must ensure accountability in student 
counts and student transportation by doing all of the following:
    (1) Conducting annual independent and random field audits of the 
processes and reports of at least one school per OIEP line office to 
ascertain the accuracy of Bureau line officers' reviews;
    (2) Hearing and making decisions on appeals from school officials;
    (3) Reviewing reports to ensure that standards and policies are 
applied consistently, education line officers treat schools fairly and 
equitably, and the Bureau takes appropriate administrative action for 
failure to follow this part; and
    (4) Reporting the results of the findings and determinations under 
this section to the appropriate tribal governing body.
    (b) The purpose of the audit required by paragraph (a)(1) of this 
section is to ensure that the procedures outlined in these regulations 
are implemented. To conduct the audit required by paragraph (a)(1) of 
this section, OIEP will select an independent audit firm that will:
    (1) Select a statistically valid audit sample of recent student 
counts and student transportation reports; and
    (2) Analyze these reports to determine adherence to the requirements 
of this part and accuracy in reporting.



Sec. 39.410  What qualifications must an audit firm meet to be 
considered for auditing ISEP administration?

    To be considered for auditing ISEP administration under this 
subpart, an independent audit firm must:
    (a) Be a licensed Certified Public Accountant Firm that meets all 
requirements for conducting audits under the Federal Single Audit Act;
    (b) Not be under investigation or sanction for violation of 
professional audit standards or ethics;
    (c) Certify that it has conducted a conflict of interests check and 
that no conflict exists; and
    (d) Be selected through a competitive bidding process.



Sec. 39.411  How will the auditor report its findings?

    (a) The auditor selected under Sec. 39.410 must:
    (1) Provide an initial draft report of its findings to the governing 
board or responsible Federal official for the school(s) involved; and
    (2) Solicit, consider, and incorporate a response to the findings, 
where submitted, in the final audit report.
    (b) The auditor must submit a final report to the Assistant 
Secretary--Indian Affairs and all tribes served by each school involved. 
The report must include all documented exceptions to the requirements of 
this part, including those exceptions that:
    (1) The auditor regards as negligible;
    (2) The auditor regards as significant, or as evidence of 
incompetence on the part of responsible officials, and that must be 
resolved in a manner similar

[[Page 189]]

to significant audit exceptions in a fiscal audit; or
    (3) Involve fraud and abuse.
    (c) The auditor must immediately report exceptions involving fraud 
and abuse directly to the Department of the Interior Inspector General's 
office.



Sec. 39.412  What sanctions apply for failure to comply with this 
subpart?

    (a) The employer of a responsible administrative official must take 
appropriate personnel action if the official:
    (1) Submits false or fraudulent ISEP-related counts;
    (2) Submits willfully inaccurate counts of student participation in 
weighted program areas; or
    (3) Certifies or verifies submissions described in paragraphs (a)(1) 
or (a)(2) of this section.
    (b) Unless prohibited by law, the employer must report:
    (1) Notice of final Federal personnel action to the tribal governing 
body and tribal school board; and
    (2) Notice of final tribal or school board personnel action to the 
Director of OIEP.



Sec. 39.413  Can a school appeal the verification of the count?

    Yes, a school may appeal to the Director any administrative action 
disallowing any academic, transportation, supplemental program or 
residential count. In this appeal, the school may provide evidence to 
indicate the student's eligibility, membership or residency or adequacy 
of a program for all or a portion of school year. The school must follow 
the applicable appeals process in 25 CFR part 2 or 25 CFR part 900, 
subpart L.



                       Subpart E_Contingency Fund

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.500  What emergency and contingency funds are available?

    The Secretary:
    (a) Must reserve 1 percent of funds from the allotment formula to 
meet emergencies and unforeseen contingencies affecting educational 
programs;
    (b) Can carry over to the next fiscal year a maximum of 1 percent 
the current year funds; and
    (c) May distribute all funds in excess of 1 percent equally to all 
schools or distribute excess as a part of ISEP.



Sec. 39.501  What is an emergency or unforeseen contingency?

    An emergency or unforeseen contingency is an event that meets all of 
the following criteria:
    (a) It could not be planned for;
    (b) It is not the result of mismanagement, malfeasance, or willful 
neglect;
    (c) It is not covered by an insurance policy in force at the time of 
the event;
    (d) The Assistant Secretary determines that Bureau cannot reimburse 
the emergency from the facilities emergency repair fund; and
    (e) It could not have been prevented by prudent action by officials 
responsible for the educational program.



Sec. 39.502  How does a school apply for contingency funds?

    To apply for contingency funds, a school must send a request to the 
ELO. The ELO must send the request to the Director for consideration 
within 48 hours of receipt. The Director will consider the severity of 
the event and will attempt to respond to the request as soon as 
possible, but in any event within 30 days.



Sec. 39.503  How can a school use contingency funds?

    Contingency funds can be used only for education services and 
programs, including repair of educational facilities.



Sec. 39.504  May schools carry over contingency funds to a subsequent 
fiscal year?

    Bureau-operated schools may carry over funds to the next fiscal 
year.



Sec. 39.505  What are the reporting requirements for the use of the 
contingency fund?

    (a) At the end of each fiscal year, Bureau/OIEP shall send an annual 
report to Congress detailing how the Contingency Funds were used during 
the previous fiscal year.
    (b) By October 1 of each year, the Bureau must send a letter to each 
school

[[Page 190]]

and each tribe operating a school listing the allotments from the 
Contingency Fund.



                Subpart F_School Board Training Expenses

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.600  Are Bureau-operated school board expenses funded by ISEP 
limited?

    Yes. Bureau-operated schools are limited to $8,000 or one percent 
(1%) of ISEP allotted funds (not to exceed $15,000).



Sec. 39.601  Is school board training for Bureau-operated schools 
considered a school board expense subject to the limitation?

    No, school board training for Bureau-operated schools is not 
considered a school board expense subject to the limitation in Sec. 
39.600.



Sec. 39.603  Is school board training required for all Bureau-funded 
schools?

    Yes. Any new member of a local school board or an agency school 
board must complete 40 hours of training within one year of appointment, 
provided that such training is recommended, but is not required, for a 
tribal governing body that serves in the capacity of a school board.



Sec. 39.604  Is there a separate weight for school board training at 
Bureau-operated schools?

    Yes. There is an ISEP weight not to exceed 1.2 WSUs to cover school 
board training and expenses at Bureau-operated schools.



                    Subpart G_Student Transportation

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.700  What is the purpose of this subpart?

    (a) This subpart covers how transportation mileage and funds for 
schools are calculated under the ISEP transportation program. The 
program funds transportation of students from home to school and return.
    (b) To use this part effectively, a school should:
    (1) Determine its eligibility for funds using the provisions of 
Sec. Sec. 39.702 through 39.708;
    (2) Calculate its transportation miles using the provisions of 
Sec. Sec. 39.710 and 39.711; and
    (3) Submit the required reports as required by Sec. Sec. 39.721 and 
39.722.



Sec. 39.701  What definitions apply to terms used in this subpart?

    ISEP means the Indian School Equalization Program.
    Transportation mileage count week means the last full week in 
September.
    Unimproved roads means unengineered earth roads that do not have 
adequate gravel or other aggregate surface materials applied and do not 
have drainage ditches or shoulders.

                          Eligibility for Funds



Sec. 39.702  Can a school receive funds to transport residential 
students using commercial transportation?

    A school transporting students by commercial bus, train, airplane, 
or other commercial modes of transportation will be funded at the cost 
of the commercial ticket for:
    (a) The trip from home to school in the Fall;
    (b) The round-trip return home at Christmas; and
    (c) The return trip home at the end of the school year.



Sec. 39.703  What ground transportation costs are covered for students 
traveling by commercial transportation?

    This section applies only if a school transports residential 
students by commercial bus, train or airplane from home to school. The 
school may receive funds for the ground miles that the school has to 
drive to deliver the students or their luggage from the bus, train, or 
plane terminal to the school.



Sec. 39.704  Are schools eligible to receive chaperone expenses to 
transport residential students?

    Yes. Schools may receive funds for actual chaperone expenses, 
excluding

[[Page 191]]

salaries, during the transportation of students to and from home at the 
beginning and end of the school year and at Christmas.



Sec. 39.705  Are schools eligible for transportation funds to transport 
special education students?

    Yes. A school that transports a special education student from home 
to a treatment center and back to home on a daily basis as required by 
the student's Individual Education Plan may count those miles for day 
student funding.



Sec. 39.706  Are peripheral dormitories eligible for day transportation 
funds?

    Yes. If the peripheral dormitory is required to transport dormitory 
students to the public school, the dormitory may count those miles 
driven transporting students to the public school for day transportation 
funding.



Sec. 39.707  Which student transportation expenses are currently not 
eligible for Student Transportation Funding?

    (a) The following transportation expenses are currently not eligible 
for transportation funding, however the data will be collected under the 
provisions in this subpart:
    (1) Fuel and maintenance runs;
    (2) Transportation home for medical or other emergencies;
    (3) Transportation from school to treatment or special services 
programs;
    (4) Transportation to after-school programs; and
    (5) Transportation for day and boarding school students to attend 
instructional programs less than full-time at locations other than the 
school reporting the mileage.
    (b) Examples of after-school programs covered by paragraph (a)(4) of 
this section include:
    (1) Athletics;
    (2) Band;
    (3) Detention;
    (4) Tutoring, study hall and special classes; and
    (5) Extra-curricular activities such as arts and crafts.



Sec. 39.708  Are miles generated by non-ISEP eligible students eligible 
for transportation funding?

    No. Only miles generated by ISEP-eligible students enrolled in and 
attending a school are eligible for student transportation funding.

                    Calculating Transportation Miles



Sec. 39.710  How does a school calculate annual bus transportation 
miles for day students?

    To calculate the total annual bus transportation miles for day 
students, a school must use the appropriate formula from this section. 
In the formulas, Tu = Miles driven on Tuesday of the transportation 
mileage count week, W = Miles driven on Wednesday of the transportation 
mileage count week, and Th = Miles driven on Thursday of the 
transportation mileage count week.
    (a) For ISEP-eligible day students whose route is entirely over 
improved roads, calculate miles using the following formula:
[GRAPHIC] [TIFF OMITTED] TR28AP05.087

    (b) For ISEP-eligible day students whose route is partly over 
unimproved roads, calculate miles using the following three steps.
    (1) Step 1. Apply the following formula to miles driven over 
improved roads only:
[GRAPHIC] [TIFF OMITTED] TR28AP05.088

    (2) Step 2. Apply the following formula to miles driven over 
unimproved roads only:
[GRAPHIC] [TIFF OMITTED] TR28AP05.089

    (3) Step 3. Add together the sums from steps 1 and 2 to obtain the 
total annual transportation miles.

[[Page 192]]



Sec. 39.711  How does a school calculate annual bus transportation 
miles for residential students?

    To calculate the total annual transportation miles for residential 
students, a school must use the procedures in paragraph (b) of this 
section.
    (a) The school can receive funds for the following trips:
    (1) Transportation to the school at the start of the school year;
    (2) Round trip home at Christmas; and
    (3) Return trip to home at the end of the school year.
    (b) To calculate the actual miles driven to transport students from 
home to school at the start of the school year, add together the miles 
driven for all buses used to transport students from their homes to the 
school. If a school transports students over unimproved roads, the 
school must separate the number of miles driven for each bus into 
improved miles and unimproved miles. The number of miles driven is the 
sum of:
    (1) The number of miles driven on improved roads; and
    (2) The number of miles driven on unimproved roads multiplied by 
1.2.
    (c) The annual miles driven for each school is the sum of the 
mileage from paragraphs (b)(1) and (b)(2) of this section multiplied by 
4.

                         Reporting Requirements



Sec. 39.720  Why are there different reporting requirements for 
transportation data?

    In order to construct an actual cost data base, residential and day 
schools must report data required by Sec. Sec. 39.721 and 39.722.



Sec. 39.721  What transportation information must off-reservation 
boarding schools report?

    (a) Each off-reservation boarding school that provides 
transportation must report annually the information required by this 
section. The report must:
    (1) Be submitted to OIEP by August 1 and cover the preceding school 
year;
    (2) Include a Charter/Commercial and Air Transportation Form signed 
and certified as complete and accurate by the School Principal and the 
appropriate ELO; and
    (3) Include the information required by paragraph (b) of this 
section.
    (b) Each annual transportation report must include the following 
information:
    (1) Fixed vehicle costs, including: the number and type of buses, 
passenger size, and local GSA rental rate and duration of GSA contract;
    (2) Variable vehicle costs;
    (3) Mileage traveled to transport students to and from school on 
school days, to sites of special services, and to extra-curricular 
activities;
    (4) Medical trips;
    (5) Maintenance and Service costs; and
    (6) Driver costs;
    (7) All expenses referred to in Sec. 39.707.



Sec. 39.722  What transportation information must day schools, 
on-reservation boarding schools and peripheral dormitory schools report?

    (a) By August 1 of each year, all schools and peripheral dorms that 
provide transportation must submit a report that covers the preceding 
year. This report must include:
    (1) Fixed vehicle costs and other costs, including: the number and 
type of buses, passenger size, and local GSA rental rate and duration of 
GSA contract;
    (2) Variable vehicle costs;
    (3) Mileage traveled to transport students to and from school on 
school days, to sites of special services, and to extra-curricular 
activities;
    (4) Mileage driven for student medical trips;
    (5) Costs of vehicle maintenance and service cost, including cost of 
miles driven to obtain maintenance and service;
    (6) Driver costs; and
    (7) All expenses referred to in Sec. 39.707.
    (b) In addition, all day schools and on-reservation boarding schools 
must include in their report a Day Student Transportation Form signed 
and certified as complete and accurate by the School Principal and the 
appropriate ELO.

[[Page 193]]

                        Miscellaneous Provisions



Sec. 39.730  Which standards must student transportation vehicles meet?

    All vehicles used by schools to transport students must meet or 
exceed all appropriate Federal motor vehicle safety standards and State 
or Tribal motor vehicle safety standards. The Bureau will not fund 
transportation mileage and costs incurred transporting students in 
vehicles that do not meet these standards.



Sec. 39.731  Can transportation time be used as instruction time for 
day school students?

    No. Transportation time cannot be used as instruction time for day 
school students in meeting the minimum required hours for academic 
funding.



Sec. 39.732  How does OIEP allocate transportation funds to schools?

    OIEP allocates transportation funds based on the types of 
transportation programs that the school provides. To allocate 
transportation funds OIEP:
    (a) Multiplies the one-way commercial costs for all schools by four 
to identify the total commercial costs for all schools;
    (b) Subtracts the commercial cost total from the appropriated 
transportation funds and allocates the balance of the transportation 
funds to each school with a per-mile rate;
    (c) Divides the balance of funds by the sum of the annual day miles 
and the annual residential miles to identify a per-mile rate;
    (d) For day transportation, multiplies the per-mile rate times the 
annual day miles for each school; and
    (e) For residential transportation, multiplies the per mile rate 
times the annual transportation miles for each school.



  Subpart H_Determining the Amount Necessary To Sustain an Academic or 
                           Residential Program

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.801  What is the formula to determine the amount necessary 
to sustain a school's academic or residential program?

    (a) The Secretary's formula to determine the minimum annual amount 
necessary to sustain a Bureau-funded school's academic or residential 
program is as follows:

Student Unit Value x Weighted Student Unit = Annual Minimum Amount per 
student.

    (b) Sections 39.802 through 39.807 explain the derivation of the 
formula in paragraph (a) of this section.
    (c) If the annual minimum amount calculated under this section and 
Sec. Sec. 39.802 through 39.807 is not fully funded, OIEP will pro rate 
funds distributed to schools using the Indian School Equalization 
Formula.



Sec. 39.802  What is the student unit value in the formula?

    The student unit value is the dollar value applied to each student 
in an academic or residential program. There are two types of student 
unit values: the student unit instructional value (SUIV) and the student 
unit residential value (SURV).
    (a) The student unit instructional value (SUIV) applies to a student 
enrolled in an instructional program. It is an annually established 
ratio of 1.0 that represents a student in grades 4 through 6 of a 
typical non-residential program.
    (b) The student unit residential value (SURV) applies to a 
residential student. It is an annually established ratio of 1.0 that 
represents a student in grades 4 through 6 of a typical residential 
program.



Sec. 39.803  What is a weighted student unit in the formula?

    A weighted student unit is an adjusted ratio using factors in the 
Indian School Equalization Formula to establish educational priorities 
and to provide for the unique needs of specific students, such as:
    (a) Students in grades kindergarten through 3 or grades 7 through 
12;
    (b) Special education students;
    (c) Gifted and talented students;
    (d) Distance education students;

[[Page 194]]

    (e) Vocational and industrial education students;
    (f) Native Language Instruction students;
    (g) Small schools;
    (h) Personnel costs;
    (i) Alternative schooling; and
    (j) Early Childhood Education programs.



Sec. 39.804  How is the SUIV calculated?

    The SUIV is calculated by the following 5-step process:
    (a) Step 1. Use the adjusted national average current expenditures 
(ANACE) of public and private schools determined by data from the U.S. 
Department of Education-National Center of Education Statistics (NCES) 
for the last school year for which data is available.
    (b) Step 2. Subtract the average specific Federal share per student 
(title I part A and IDEA part B) of the total revenue for Bureau-funded 
elementary and secondary schools for the last school year for which data 
is available as reported by NCES (15%).
    (c) Step 3. Subtract the administrative cost grant/agency area 
technical services revenue per student as a percentage of the total 
revenue (current expenditures) of Bureau-funded schools from the last 
year data is available.
    (d) Step 4. Subtract the day transportation revenue per student as a 
percentage of the total revenue (current revenue) Bureau-funded schools 
for the last school year for which data is available.
    (e) Step 5. Add Johnson O'Malley funding. (See the table, in Sec. 
39.805)



Sec. 39.805  What was the student unit for instruction value (SUIV) 
for the school year 1999-2000?

    The process described in Sec. 39.804 is illustrated in the table 
below, using figures for the 1999-2000 school year:

Step 1..........................................       $8,030  ANACE.
Step 2..........................................        -1205  Average specific Federal share of total revenue
                                                                for Bureau-funded schools.
Step 3..........................................         -993  Cost grant/technical services revenue as a
                                                                percentage total revenue.
Step 4..........................................         -658  Transportation revenue as a percentage of the
                                                                total revenue.
Step 5..........................................           85  Johnson O'Malley funding.
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Sec. 39.806  How is the SURV calculated?

    (a) The SURV is the adjusted national average current expenditures 
for residential schools (ANACER) of public and private residential 
schools. This average is determined using data from the Association of 
Boarding Schools.
    (b) Applying the procedure in paragraph (a) of this section, the 
SURV for school year 1999-2000 was $11,000.



Sec. 39.807  How will the Student Unit Value be adjusted annually?

    (a) The student unit instructional value (SUIV) and the student unit 
residential value (SURV) will be adjusted annually to derive the current 
year Student Unit Value (SUV) by dividing the calculated SUIV and the 
SURV into two parts and adjusting each one as shown in this section.
    (1) The first part consists of 85 percent of the calculated SUIV and 
the SURV. OIEP will adjust this portion using the personnel cost of 
living increase of the Department of Defense schools for each year.
    (2) The second part consists of 15 percent the calculated SUIV and 
the SURV. OIEP will adjust this portion using the Consumer Price Index-
Urban of the Department of Labor.
    (b) If the student unit value amount is not fully funded, the 
schools will receive their pro rata share using the Indian School 
Equalization Formula.

[[Page 195]]



Sec. 39.808  What definitions apply to this subpart?

    Adjusted National Average Current Expenditure [ANACE] means the 
actual current expenditures for pupils in fall enrollment in public 
elementary and secondary schools for the last school year for which data 
is available. These expenditures are adjusted annually to reflect 
current year expenditures of federally financed schools' cost of day and 
residential programs.
    Current expenditures means expenses related to classroom 
instruction, classroom supplies, administration, support services-
students and other support services and operations. Current expenditures 
do not include facility operations and maintenance, buildings and 
improvements, furniture, equipment, vehicles, student activities and 
debt retirement.



Sec. 39.809  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec. 39.410 and 
39.502. These collections have been approved by OMB under control 
numbers 1076-0122, 1076-0134, and 1076-0163.



           Subpart I_Interim Maintenance and Minor Repair Fund

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, 
June 9, 2005.



Sec. 39.900  Establishment and funding of an Interim Maintenance and 
Minor Repair Fund.

    There is established in the Division of Facilities Management a 
separate temporary fund entitled the Interim Maintenance and Minor 
Repair Fund. The Assistant Secretary shall cause the distribution of an 
amount of $1 million, under the FY 1980 Appropriation for the Bureau, 
from budget activity 3500, ``General Management and Facilities 
Operation'', to the direct use of schools, and shall create an 
appropriate account or subaccount for the Interim Maintenance and Minor 
Repair Fund and credit these funds thereto.



Sec. 39.901  Conditions for distribution.

    Funds from the Interim Maintenance and Minor Repair Fund shall be 
distributed to Bureau operated and funded schools and shall be 
separately earmarked in local school financial plans solely for 
expenditure at the discretion of the school supervisor for cost of 
school facility maintenance and minor repair. These funds shall be used 
to meet immediate minor repair and maintenance needs.



Sec. 39.902  Allocation.

    (a) Interim Maintenance and Minor Repair funds shall be allocated to 
all Bureau operated and contract schools based on the number of square 
feet of floor space used for that school's educational program, for 
student residence and for support facilities. Staff quarters shall be 
specifically excluded from the computation.
    (b) Square footage figures used in determining school allocations 
shall be taken from the facilities inventory maintained by the Division 
of Facilities Engineering.
    (c) In those cases, such as contract schools, where square footage 
figures are not now available, it shall be the responsibility of the 
Bureau's Division of Facilities Engineering to correct the information.
    (d) Schools in Alaska shall receive a 25% cost adjustment increase 
in the computation of their allocation.



Sec. 39.903  Use of funds.

    Funds allocated under this provision for maintenance and minor 
repair shall be used for no other purpose.



Sec. 39.904  Limitations.

    Nothing in this provision shall be interpreted as relieving the 
Bureau branch of Facilities Management or its field offices of any 
responsibility for continuing to provide maintenance and repair service 
to schools through existing procedures.

[[Page 196]]



                  Subpart J_Administrative Cost Formula

    Source: 56 FR 35795, July 26, 1991, unless otherwise noted. 
Redesignated at 70 FR 33702, June 9, 2005.



Sec. 39.1000  Purpose and scope.

    The purpose of this subpart is to provide funds at the agency and 
area education offices for FY 1991 and future years for administration 
of all Bureau of Indian Affairs education functions, including but not 
limited to school operations, continuing education, early childhood 
education, post-secondary education and Johnson-O'Malley Programs.



Sec. 39.1001  Definitions.

    (a) Agency Education Office means a field office of the Office of 
Indian Education Programs providing administrative direction and 
supervision to one or more Bureau-operated schools as well as being 
responsible for all other education functions serving tribes within that 
agency's jurisdiction.
    (b) Area Education Office means a field office of the Office of 
Indian Education Programs responsible for all education functions 
serving tribes not serviced by an agency education office an in some 
cases providing administrative direction to one or more off-reservation 
boarding schools not under an agency education office.



Sec. 39.1002  Allotment of education administrative funds.

    The total annual budget for agencies/areas shall be allotted to the 
Director and through him/her to agency and area education offices. This 
total budget shall be distributed to the various agency and area 
education offices as follows:
    (a) Each agency or area education office as defined above shall 
receive a base amount of $50,000 for basic administrative costs; and
    (b) Each agency or area education office as defined above shall 
receive an amount under these funds equal to two percent of the total 
higher education, Johnson-O'Malley and adult education funds 
administered by each office, except that the Navajo Agencies are 
restricted to a maximum of $50,000 for administering the Johnson-
O'Malley and higher education programs; and
    (c) Eighty percent of the remaining funds shall be distributed 
proportionately based on the number of schools operated under the 
jurisdiction of each agency or area education office, with Bureau-
operated schools counting as 1 and contract/grant schools counting as 
0.6; and
    (d) The remaining twenty percent shall be distributed 
proportionately based on the total weighted student units generated by 
all schools under the jurisdiction of each agency or area education 
office.



Sec. 39.1003  Allotment exception for FY 1991.

    For FY 1991 only, the Director may reserve an amount equal to no 
more than one half of the funds received in FY 1990 by those offices to 
be closed in FY 1991 to cover severance pay costs, lump sum leave 
payments and relocation costs for those individuals affected by the 
closures. Any balance uncommitted by March 31, 1991, shall be 
distributed in accordance with the formula in Sec. 39.122.



                   Subpart K_Pre-kindergarten Programs

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, 
June 9, 2005.



Sec. 39.1100  Interim fiscal year 1980 and fiscal year 1981 funding 
for pre-kindergarten programs previously funded by the Bureau.

    Those schools having pre-kindergarten programs funded fully or in 
part from Bureau education funds in fiscal year 1979 shall be funded 
from Bureau education funds by the Director in fiscal year 1980 and 
fiscal year 1981 at their fiscal year 1979 Bureau education funding 
levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for 
each Bureau funded school shall be deducted from the school's fiscal 
year 1979 Bureau Education Budget amount

[[Page 197]]

prior to application of the phase-in provision.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Redesignated and amended at 70 FR 33702, June 9, 2005]



Sec. 39.1101  Addition of pre-kindergarten as a weight factor to the 
Indian School Equalization Formula in fiscal year 1982.

    The Director, in consultation with the tribes and school boards, 
shall determine appropriate weight factors needed to include pre-
kindergarten programs in the Indian School Equalization Formula in 
fiscal year 1982. Based on a needs assessment, to be completed by 
January 1, 1980, pre-kindergarten programs shall be included in the 
Bureau's education request for fiscal year 1982.



        Subpart L_Contract School Operation and Maintenance Fund

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 70 FR 33702, June 9, 2005.



Sec. 39.1200  Definitions.

    Contract school operation and maintenance costs for fiscal year 1979 
means the sum of costs for custodial salaries and fringe benefits, 
related supplies and equipment and equipment repair, insurance, and 
school operation utilities costs, where such costs are not paid by the 
Division of Facilities Management or other noneducation Bureau sources.



Sec. 39.1201  Establishment of an interim fiscal year 1980 operation 
and maintenance fund for contract schools.

    There is established in the Division of Facilities Management a 
separate fund entitled the Contract School Operation and Maintenance 
Fund. The Secretary shall cause the distribution of an amount of $2.5 
million, under the fiscal year 1980 appropriation for the Bureau, from 
budget activity 3500. ``General Management and Facilities Operations'', 
to the schools through this fund and shall create an appropriate account 
or subaccount for the Contract School Operation and Maintenance Fund.



Sec. 39.1202  Distribution of funds.

    (a) Each contract school shall receive in fiscal year 1980 a portion 
of the Contract School Operation and Maintenance Fund determined by the 
percentage share which that school's fiscal year 1979 operation and 
maintenance cost represents in the total fiscal year 1979 operation and 
maintenance cost for all such schools.
    (b) To be eligible for these funds, a contract school shall submit a 
detailed report of actual operation and maintenance costs for fiscal 
year 1979 to the Director by November 23, 1979. These cost figures will 
be subject to verification by the Director to assure their accuracy 
prior to the allotment of any funds under this subpart.
    (c) Any funds generated under this subpart shall be included in the 
computation of the phase-in amount if supplemental operation and 
maintenance funds were included in a school's fiscal year 1979 3100 
contract funds.

[44 FR 61864, Oct. 26, 1979, unless otherwise noted. Redesignated at 47 
FR 13327, Mar. 30, 1982. Redesignated and amended at 70 FR 33702, June 
9, 2005]



Sec. 39.1203  Future consideration of contract school operation and 
maintenance funding.

    The Assistant Secretary shall arrange for full funding for operation 
and maintenance of contract schools by fiscal year 1981.



PART 40_ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS AND OTHER ASSISTANCE 
FOR HIGHER EDUCATION--Table of Contents




Sec.
40.1 Appropriations for loans or grants.
40.2 Working scholarships.
40.3 Applications.
40.4 Security.
40.5 Repayments.

    Authority: Sec. 11, 48 Stat. 986; 25 U.S.C. 471.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 40.1  Appropriations for loans or grants.

    Funds appropriated by Congress for the education of Indians may be 
used

[[Page 198]]

for making educational loans and grants to aid students of one-fourth or 
more degree of Indian blood attending accredited institutions of higher 
education or other accredited schools offering vocational and technical 
training who reside within the exterior boundaries of Indian 
reservations under the jurisdiction of the Bureau of Indian Affairs or 
on trust or restricted lands under the jurisdiction of the Bureau of 
Indian Affairs. Such educational loans and grants may be made also to 
students of one-fourth or more degree of Indian blood who reside near 
the reservation when a denial of such loans or grants would have a 
direct effect upon Bureau programs within the reservation. After 
students meeting these eligibility requirements are taken care of, 
Indian students who do not meet the residency requirements but are 
otherwise eligible may be considered.

[33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 40.2  Working scholarships.

    Working scholarships may be granted to Indians who wish to earn 
their board and room by part-time work at Federal boarding schools that 
are located near a college, trade, or vocational school.



Sec. 40.3  Applications.

    Applications for educational loans, grants, and working scholarships 
shall be submitted through the superintendent or officer in charge of 
the agency at which the applicant is enrolled in the manner prescribed 
by the Commissioner.



Sec. 40.4  Security.

    If a borrower or cosigner has security to offer for an educational 
loan it must be given in an amount adequate to protect the loan.



Sec. 40.5  Repayments.

    Repayment schedules for educational loans may provide not to exceed 
two years for repayment for each year in school.



PART 41_GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND NAVAJO 
COMMUNITY COLLEGE--Table of Contents




            Subpart A_Tribally Controlled Community Colleges

Sec.
41.1 Purpose.
41.2 Scope.
41.3 Definitions.
41.4 Eligible recipients.
41.5 Eligible activities.
41.6 HHS participation.
41.7 Feasibility studies.
41.8 Grants.
41.9 Reports.
41.10 Technical assistance.
41.11 General provisions.
41.12 Annual budget.
41.13 Criminal penalities.

                   Subpart B_Navajo Community College

41.20 Policy.
41.21 Scope.
41.22 Definitions.
41.23 Eligible activities.
41.24 Grants.
41.25 Reports.
41.26 Technical assistance.
41.27 General provisions.
41.28 Criminal penalties.

    Authority: Secs. 114 and 203(a), Pub. L. 95-471, 25 U.S.C. 1815, 25 
U.S.C. 640c-1(c).

    Source: 44 FR 67042, Nov. 21, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



            Subpart A_Tribally Controlled Community Colleges



Sec. 41.1  Purpose.

    The policy of the Department of the Interior is to support and 
encourage the establishment, operation, and improvement of tribally 
controlled community colleges to ensure continued and expanded 
educational opportunities for Indian students. The regulations in this 
subpart prescribe procedures for providing financial and technical 
assistance to this end under the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).



Sec. 41.2  Scope.

    The regulations in this subpart are applicable to the provision of 
financial

[[Page 199]]

and technical assistance to Community Colleges under title I of the Act. 
They do not apply to the provision of assistance to Navajo Community 
College. Subpart B of this part applies to assistance to Navajo 
Community College under title II of the Act.



Sec. 41.3  Definitions.

    As used in this subpart A:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which a community college 
normally subdivides its academic year, but does not include a summer 
term.
    (b) Academic year means a twelve month period established by a 
community college and approved by the Director of Education as the 
annual period for the operation of the college's education programs.
    (c) The Act means the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior, or his/her duly authorized 
representative.
    (e) Community College means an institution of higher education which 
(1) is formally controlled or operated and managed by the governing body 
of an Indian Tribe or by the governing bodies of two or more Indian 
Tribes, or (2) is established or is otherwise sanctioned or chartered by 
resolution, ordinance, or other official action (which is still in full 
force and effect) of such governing body or bodies. However, for 
purposes of this definition, only one such institution shall be 
recognized with respect to any one Tribe. A Community College that meets 
the requirements of this definition with respect to more than one Tribe 
must meet such requirements with respect to at least one Tribe that has 
no other currently formally controlled, operated and managed, 
established, sanctioned, or chartered Community College.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE, means the number of Indian students 
(1) enrolled full-time for an entire academic term at a community 
college, calculated on the basis of registrations as in effect at the 
conclusion of the sixth week of an academic term, plus (2) the full-time 
equivalent of the number of other Indian students who are enrolled part-
time for an entire academic term at a community college (determined on 
the basis of the quotient of the sum of credit hours for which all such 
part-time students are registered during such academic term, divided by 
twelve (12)), calculated on the basis of registrations as in effect at 
the conclusion of the sixth week of an academic term. The formula for 
calculating the Indian FTE for an academic term is expressed 
mathematically as FTE=FT+PTCR/12 where FT is the number of full time 
Indian students (those carrying 12 or more credit hours at the end of 
the sixth week of the academic term) and PTCR is the number of credit 
hours for which part-time Indian students are registered at the end of 
the sixth week of an academic term.
    (h) Indian means a person who is a member of an Indian Tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or regional or village corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Institution of higher education as defined in Pub. L. 95-471 
(incorporating in part 1201 of the Higher Education Act of 1965), means 
an educational institution in any State which
    (1) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate,
    (2) Provides an educational program for which it awards a bachelor's 
degree or provides not less than a two-year program which is acceptable 
for full credit toward such a degree,

[[Page 200]]

    (3) Is a public or other nonprofit institution, and
    (4) Is accredited by a nationally recognized accrediting agency or 
association or, if not so accredited,
    (A) Is an institution with respect to which the Commissioner of 
Education has determined that there is satisfactory assurance, 
considering the resources available to the institution, the period of 
time, if any, during which it has operated, the effort it is making to 
meet accreditation standards and the purpose for which this 
determination is being made, that the institution will meet the 
accreditation standards of such an agency or association within a 
reasonable time, or
    (B) Is an institution whose credits are accepted, on transfer, by 
not less than three institutions which are so accredited, for credit on 
the same basis as if transferred from an institution so accredited.

Such term also includes any school which provides not less than a one-
year program of training to prepare students for gainful employment in a 
recognized occupation and which meets the provisions of clauses (1), 
(2), (3), and (4). Such term also includes a public or nonprofit private 
educational institution in any State which, in lieu of the requirement 
in clause (1), admits as regular students persons who are beyond the age 
of compulsory school attendance in the State in which the institution is 
located and who have the ability to benefit from the training offered by 
the institution.
    (k) National Indian Organization means any organization of Indians, 
found by the Director of Education to be nationally based, representing 
a substantial Indian constituency, and expert in the field of Indian 
education. Notice of such findings shall be published in the Federal 
Register with an opportunity for comment from the public and no such 
finding shall be effective earlier than 30 days after publication.
    (l) Operating expenses of education programs means the obligations 
and expenditures of a community college for post-secondary activities, 
including administration, instruction, attendance, health and other 
student services, operation, maintenance and repair of plant, fixed 
charges, and other related expenses, but not including expenditures for 
the acquisition or construction of academic facilities. (The term 
academic facilities means structures suitable for use as classrooms, 
laboratories, libraries, and related facilities necessary or appropriate 
for instruction of students, or for research, or for administration of 
the educational or research programs of an institution of higher 
education or as dormitories or student services buildings, and 
maintenance, storage, support, or utility facilities essential to 
operation of the foregoing facilities.)
    (m) Part-time means registered for less than twelve (12) credit 
hours for an academic term; full-time means registered for twelve (12) 
or more credit hours for an academic term.
    (n) Unused portion of received funds means the amount of financial 
assistance provided under this subpart to a Community College for an 
academic year which has not been obligated or expended by the Community 
College by July 1 of that academic year.



Sec. 41.4  Eligible recipients.

    Financial assistance under this subpart shall be available only to a 
Community College which:
    (a) Is governed by a board of directors, regents, or trustees, a 
majority of whom are Indians;
    (b) Demonstrates its adherence to stated goals, a philosophy, or a 
plan of operation which is directed to meet the needs of Indians, and 
has formally adopted, in writing, such goals, philosophy, or plan of 
operation, which may be in the form of a constitution, by-laws, or 
policy statement of the Community College;
    (c) If in operation for more than one year, has students a majority 
of whom are Indian; and
    (d) Upon completion of a feasibility study, receives a positive 
determination, and;
    (e) Is not in violation of Sec. 41.11 of this subpart.



Sec. 41.5  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating expenses of education

[[Page 201]]

programs of Community Colleges. Financial assistance under this subpart 
shall not be used for religious worship or sectarian instruction, but 
nothing in this subpart shall be construed as barring instruction in 
comparative religions or cultures or in languages of Indian tribes.



Sec. 41.6  HHS participation.

    The Assistant Secretary for Indian Affairs is authorized to enter 
into an agreement with the Assistant Secretary for Education, Department 
of Health and Human Services, and to revise such agreement as necessary, 
to assist the Director of Education in the development of plans, 
procedures, and criteria for feasibility studies under this subpart, and 
to provide the Director with technical assistance in conducting such 
feasibility studies, including determinations as to the reasonable 
number of students required to support a Community College.

[44 FR 67042, Nov. 21, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 41.7  Feasibility studies.

    (a) Grants under Sec. 41.8 of this subpart may be made to a 
Community College only after a positive determination of feasibility as 
provided in this section.
    (b) Within thirty (30) days of receiving a resolution or other duly 
authorized request from the governing body of one or more Indian Tribes, 
the Director of Education shall initiate a feasibility study to 
determine whether there is justification to encourage and maintain a 
Community College for such tribe or tribes. The feasibility study shall 
give consideration to the following factors:
    (1) Financial feasibility based upon potential enrollment;
    (2) Evidence of low tribal levels of tribal matriculation in and 
graduation from postsecondary educational institutions;
    (3) Tribal, linguistics, or cultural differences;
    (4) Isolation;
    (5) Presence of alternate education sources;
    (6) Proposed curriculum;
    (7) The benefits of continued and expanded educational opportunities 
for Indian students.
    (c) The Director of Education will issue detailed guidelines for 
conducting and analyzing the feasibility studies.
    (d) Feasibility studies under this section shall be conducted in 
consultation with the tribal governing body or bodies involved or their 
designated representatives. Each feasibility study shall be completed 
and filed by the Director of Education within sixty (60) days after the 
feasibility study has been initiated. The study shall be filed with (1) 
the Assistant Secretary, (2) the tribal governing body or bodies 
requesting the studies, and (3) with the board of directors, regents, or 
trustees of the Community College, if already established.
    (e) In the case of any feasibility study which results in a negative 
determination by the Director of Education, a Tribe requesting the study 
may within thirty (30) days of receipt of the study or of notice of such 
determination file a notice of appeal with the Assistant Secretary. 
Following the timely filing of a Tribe's notice of appeal, the Tribe and 
Community College shall have a right to a formal review of the 
feasibility study, including a hearing upon reasonable notice within 
sixty (60) days before the Assistant Secretary (or his/her designee, 
other than the Director of Education or any federal employee under the 
Director's supervision). At the hearing, the appealing Tribe or the 
Community College (or both) may present additional evidence or arguments 
to justify feasibility. Within thirty (30) days of the hearing, the 
Assistant Secretary shall issue a written ruling either confirming, 
modifying, or reversing the original determination. The ruling, which 
shall be final for the Department, shall be mailed or otherwise 
delivered to the appealing Tribe and the Community College within one 
week of its issuance. In any case where the original negative 
determination is not reversed, the Assistant Secretary's ruling shall 
specify the grounds for the decision and state the manner in which the 
determination related to each of the factors specified.

[[Page 202]]

    (f) A negative determination shall not prevent a Tribe from 
requesting another feasibility study, but no more than one feasibility 
study shall be requested for any given Community College per year.



Sec. 41.8  Grants.

    (a) Each Community College which has received a positive feasibility 
study determination under Sec. 41.7 of this subpart shall be entitled 
to apply for financial assistance under this subpart.
    (b) Except with respect to applications for grants for the 1979-1980 
academic year, each Community College shall make an application to the 
Director of Education before January 31, of the year preceding the 
academic year for which financial assistance is requested. Each 
application must contain the following information:
    (1) The name and address of the Community College and the names of 
the members of the governing board and the number of its members who are 
Indian;
    (2) A statement that the Community College has received a positive 
feasibility determination and the date thereof;
    (3) A written statement of the goals, philosophy, or proposed plan 
of operation sufficient to demonstrate that its education program or 
proposed program is designed to meet the needs of Indians;
    (4) In the case of a Community College which has been in operation 
for more than one year, a statement of the total number of FTE Indian 
students and the total number of all FTE students;
    (5) If the Community College has not yet begun operations, a 
statement of expected enrollment, including the total number of FTE 
students and the number of FTE Indian students;
    (6) The name and address of the Indian Tribe or Tribes which control 
or operate and manage, or have established, sanctioned, or chartered the 
Community College, and a statement as to which of those Tribes have not 
done so with respect to any other Community College;
    (7) A curriculum, which may be in the form of a college catalog or 
like publication;
    (8) A proposed budget, showing total expected operating expenses of 
education programs and expected revenues from all sources for the 
academic year to which the information applies;
    (9) An assurance that the Community College will not deny admission 
to any Indian student because that student is not a member of a specific 
tribe or because such student is a member of a specific tribe, and will 
comply with the requirements set forth in Sec. 41.11 of this subpart 
together with any request and justification for a specific waiver of any 
requirement of 25 CFR part 276 which the Community College believes to 
be inappropriate;
    (10) Certification by the chief executive officer of the Community 
College that the information on the application is complete and correct 
and that the application has been filed with the governing body or 
bodies of the Tribe or Tribes which control or have sanctioned or 
chartered it.
    (c)(1) Within thirty (30) days of receiving an application required 
under paragraph (b) of this section, the Director of Education shall 
review the application submitted by the Community College and any 
comments with respect thereto filed by the Tribe(s) or by any national 
Indian organization(s) whose assistance has been requested by the 
Community College, and make a grant award in an amount determined under 
paragraph (d) of this section to the Community College if the 
application qualifies the Community College to receive a grant.
    (2) In the case of any Community College whose application is not 
approved, the Director shall promptly send a notice of such action to 
the Community College. Such notice shall include a statement of the 
specific reasons for not approving the application and a statement 
advising the College of its right within thirty (30) days to amend or 
supplement the application on file to rectify the defect.
    (3) Final disapproval of a grant application by the Director after 
the thirty day period referred to in paragraph (c)(2) of this section, 
or a failure of the Director of Education to approve an application 
within thirty (30) days of its receipt may be appealed by a Community 
College in the same manner as

[[Page 203]]

provided in paragraphs (d) and (f) of Sec. 41.7.
    (4) A Grant award under an approved application shall be evidenced 
by a grant agreement, signed by the Director of Education, incorporating 
the application and the provisions required by Sec. 41.11.
    (d)(1) In fiscal year 1980, each Community College which qualifies 
for a grant will receive a grant for academic year 1979-80; thereafter 
each Community College which qualifies for a grant shall receive a grant 
for the academic year commencing after the date of approval of its 
application. Except as provided in paragraph (d)(3) of this section 
grants shall be in an amount equal to $4,000 multiplied by the number of 
FTE Indian students in attendance at such college during each academic 
term divided by the number of academic terms in the academic year, 
except that no such grant shall exceed the annual operating expenses of 
the education programs provided by the Community College. The 
mathematical formula for calculating the base grant is BG (Base Grant)=
[GRAPHIC] [TIFF OMITTED] TC14NO91.120


where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.3(g) of this 
subpart and N is the number of academic terms in the academic year.
    (2) For the first Federal fiscal year for which funds are 
appropriated for grants under this subpart, not less than eight (8) nor 
more than fifteen (15) grants shall be approved; priority in awarding 
such grants shall be given to Community Colleges which are operating on 
October 17, 1978, and which have a history of service to the Indian 
people. (If more than fifteen (15) Community Colleges meeting these two 
(2) conditions submit applications for the first fiscal year, a further 
priority for awarding grants among them shall be given to those who 
appear to be in the best position to fulfill the purpose of the Act and 
to those whose continued existence would be threatened if they did not 
receive such a grant).
    (3) All grants under this section shall be subject to the 
availability of appropriations and the amount thereof shall be ratably 
reduced for all Community Colleges if the sums appropriated for any 
fiscal year for financial assistance under this subpart are not 
sufficient to pay the full amounts to which the eligible Community 
Colleges are otherwise entitled under paragraph (d)(1) of this section.
    (e) The Director of Education shall authorize payments to each such 
Community College in advance installments by letter of credit or 
Treasury check in an amount equal to fifty percent (50%) of the grant 
amount available for allotment to such Community College for such 
academic year under paragraph (d) of this section on or before October 
1st of such College's academic year (except for 1979-80) or the first 
day on which appropriations for the fiscal year beginning on such date 
are available for obligation by BIA whichever occurs later, based on the 
number of FTE Indian students calculated on the basis of registrations 
as in effect at the conclusion of the sixth week of the final academic 
term of the preceding academic year. On or before January 1st (or such 
other date that is the first day of the fifth month) of such College's 
academic year, payments shall be made in the form of advance 
installments to each Community College in an amount equal to seventy-
five percent (75%) of the grant amount available for allotment to such 
Community College for such academic year under paragraph (d) of this 
section, calculated on the basis of registrations at the conclusion of 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of each such academic year the 
balance

[[Page 204]]

of the grant amount to which each College is entitled under paragraph 
(d) of this section shall be paid to such College. In the event that 
additional sums are appropriated to which such Community Colleges are 
entitled under section 110(a) of the Act and paragraph (d) of this 
section, these amounts shall be included in such final payments.
    (f) If with respect to any academic year the amounts of financial 
assistance hereunder have been ratably reduced as provided in paragraph 
(d)(3) of this section and additional funds have not been appropriated 
to pay the full amount of such reductions on or before June 1st of such 
year, the Director of Education shall notify each Community College of 
such fact in writing, and each Community College shall report in writing 
to the Director of Education on or before July 1st of such year the 
amount of unused portion of received funds. The total of such reported 
unused portions of received funds shall be reallocated by the Director 
of Education in proportion to the amount of financial assistance to 
which each Community College is entitled under paragraph (d) but which 
has not been provided due to the ratable reductions provided for 
therein, (except that no Community College shall receive more than the 
total annual cost of the education programs provided by such College) 
and payments shall be made reflecting such reallocations on or before 
August 1st of such academic year.
    (g) If the Director of Education determines that a Community College 
has received, through mistake or fraud, payments of financial assistance 
under this subpart to which it was not entitled, the Director shall 
promptly notify the college, which may appeal the Director's 
determination under the procedures set forth in Sec. 41.7, and adjust 
the amount of payments to the college under this subpart for the same or 
subsequent academic years to compensate for such overpayments or 
otherwise attempt to recover such overpayments.
    (h) Eligibility for grants under this subpart shall not, by itself, 
bar a Community College from qualifying for or receiving financial 
assistance under any other Federal program for which it may qualify.



Sec. 41.9  Reports.

    Each Community College receiving financial assistance under this 
subpart shall provide to the Director of Education on or before December 
1st of each year a report which shall include an accounting of the 
amounts and purposes for which such financial assistance was expended 
during the preceding academic year; the annual cost of education 
programs of the Community College from all sources for such academic 
year; and a final report of the performance based upon the criteria set 
forth in the Community College's stated goals, philosophy or plan of 
operation. Upon reasonable cause, the Director of Education may extend 
the period for submitting the annual report. Each Community College 
shall in addition report to the Director of Education its FTE Indian 
student enrollment for each academic term of the academic year within 
three weeks of the date such FTE calculation is made.



Sec. 41.10  Technical assistance.

    The Director of Education shall furnish technical assistance either 
directly or through contract to any Community College requesting it. 
Such assistance shall be initiated within thirty (30) days of a 
Community College's request in writing. In any case, where the type and 
source of technical assistance is specified in the request, the 
Director, to the extent possible or feasible, shall provide the type of 
technical assistance through the source so specified. Technical 
assistance may include, but is not limited to, consulting services for 
the development of programs, plans, and feasibility studies and 
accounting, and other technical advice. In awarding of contracts for 
technical assistance, preference shall be given to an organization 
designated by the Community College to be assisted. Denials of requests 
for technical assistance under this section shall be made in writing and 
sent to the applicant within thirty (30) days of the request, together 
with a statement of the reason for denial. An appeal under this section 
may be undertaken in the same manner as in the case of negative 
determinations of feasibility under Sec. 41.7 of his subpart.

[[Page 205]]



Sec. 41.11  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to Community 
Colleges:
    (a) Services or assistance provided to Indians by Community Colleges 
aided under this subpart shall be provided in a fair and uniform manner, 
and admission to any such Community College shall not be denied to any 
Indian student because such individual is not a member of a specific 
Indian tribe or because such individual is a member of a specific Indian 
tribe.
    (b) Except as may be otherwise provided in this subpart, any 
Community College receiving financial assistance under this subpart 
shall comply with part 276 of this title, subject to any express waiver 
of specific inappropriate provisions of part 276 that may be granted by 
the Assistant Secretary after request and justification by the Community 
College.
    (c) A Community College shall have the right to appeal any adverse 
decision of the Director of Education under a grant agreement to the 
Assistant Secretary by filing written notice of appeal with the 
Assistant Secretary within thirty (30) days after the adverse decision. 
Within thirty (30) days after receiving notice of appeal, the Assistant 
Secretary shall conduct a formal hearing at which time the College may 
present evidence and argument to support its appeal. Within thirty (30) 
days of the hearing, the Assistant Secretary shall issue a written 
ruling on the appeal confirming, modifying, or reversing the Director of 
Education's decision, the Assistant Secretary shall state in detail the 
basis for his/her ruling. The ruling of the Assistant Secretary on an 
appeal shall be final for the Department of the Interior.



Sec. 41.12  Annual budget.

    Appropriations under title I of the Tribally Controlled Community 
College Assistance Act of 1978 shall be separately identified in the 
Bureau of Indian Affairs Budget Justification. Funds appropriated for 
grants under this subpart shall not be commingled with other funds 
expended by the Bureau of Indian Affairs.



Sec. 41.13  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of Federal financial assistance or 
any other payment of Federal funds is based, may be subject to criminal 
prosecution under provisions such as sections 287, 371, or 1001 of title 
18, U.S. Code.



                   Subpart B_Navajo Community College



Sec. 41.20  Policy.

    It is the policy of this Department to support and encourage the 
establishment, operation, and improvement of tribally controlled 
community colleges in order to ensure continued and expanded educational 
opportunities for Indian students. The regulations in this subpart 
prescribe procedures for providing financial and technical assistance to 
this end for the Navajo Community College under the Navajo Community 
College Act, as amended (25 U.S.C. 640a-c).



Sec. 41.21  Scope.

    The regulations in this subpart are applicable to the provision of 
financial and technical assistance to Navajo Community College pursuant 
to the Navajo Community College Act of December 15, 1971 (Pub. L. 92-
189, 85 Stat. 646, 25 U.S.C. 640a-c) as amended by the Navajo Community 
College Assistance Act of 1978, title II of the Tribally Controlled 
Community College Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 
1329, 25 U.S.C. 640c). Regulations applicable to Tribally Controlled 
Community Colleges other than Navajo Community College are found in 
subpart A of this part 41.



Sec. 41.22  Definitions.

    As used in this subpart:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which the college 
normally subdivides its academic year, but does not include a summer 
term.

[[Page 206]]

    (b) Academic year means a twelve month period established by the 
college and approved by the Director of Education as the annual period 
for the operation of the college's education programs.
    (c) The Act means the Navajo Community College Act of December 15, 
1971 (Pub. L. 92-189, 85 Stat. 646) as amended by the Navajo Community 
College Assistance Act of 1978, (Pub. L. 95-471, title II, 92 Stat. 
1329, 25 U.S.C. 640a et seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior or his/her duly authorized 
representative.
    (e) College means the institution known as Navajo Community College 
established by the Navajo Tribe.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE means the number of Indian students 
(1) enrolled full-time for an entire academic term at the College, 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term, plus (2) the full-time equivalent 
of the number of other Indian students who are enrolled part-time for an 
entire academic term at the College (determined on the basis of the 
quotient of the sum of credit hours for which all such part-time 
students are registered during such academic term divided by (12)), 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term. The formula for calculating the 
Indian FTE for an academic term is expressed mathematically as 
FTE=FT+PTCR/12 where FT is the number of full time Indian students 
(those carrying 12 or more credit hours at the end of the sixth week of 
the academic term) and PTCR is the number of credit hours for which 
part-time Indian students are registered at the end of the sixth week of 
an academic term.
    (h) Indian means a person who is a member of an Indian tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or Regional or Village Corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Operating and Maintenance Expenses of Education Programs means 
the obligation and expenditures by the College for post-secondary 
education activities including administration, instruction, attendance, 
health and other student services, operation, maintenance and repair of 
plant, and fixed charges, and other related expenses, but not including 
obligations or expenditures for the acquisition or construction of 
academic facilities (as defined in Sec. 41.3(l) of subpart A).



Sec. 41.23  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating and maintenance expenses of education programs of the 
College. Financial assistance under this subpart shall not be used for 
religious worship or sectarian instruction, but nothing in this subpart 
shall be construed as barring instruction in comparative religions or 
cultures or in languages of Indian tribes.



Sec. 41.24  Grants.

    (a) Navajo Community College is entitled to annual grants for 
operation and maintenance of the College in amounts based upon the 
number of Full-Time Equivalent Indian students in attendance.
    (b) Annually, in the manner and within the deadline established by 
the Director of Education, the Navajo Community College shall submit an 
application in the form of a statement of its FTE enrollment (total and 
Indian) for the next academic year. The statement shall include a 
description of the College's curriculum, which may be in the form of a 
College catalog or like publication, and a proposed budget showing total 
expected operating expenses of educational programs and expected revenue 
from all sources for the

[[Page 207]]

academic year for which the information applies. The statement shall be 
certified by the chief executive officer of the College and shall 
certify that a copy of that statement has been submitted to the Navajo 
Tribe.
    (c) Annual budget request for the College shall be sparately 
identified in the Bureau of Indian Affairs Budget Justifications. Funds 
appropriated for grants under this subpart shall not be commingled with 
other funds appropriations historically expended by the Bureau of Indian 
Affairs for programs and projects normally provided on the Navajo 
Reservation for Navajo beneficiaries.
    (d) Within thirty (30) days of submission of the statement required 
under paragraph (b) of this section, the Director of Education shall 
make a grant award to the College in an amount determined under 
paragraph (e) of this section. The grant award shall be evidenced by a 
grant agreement signed by the Director of Education, incorporating the 
grant application and including the provisions required by Sec. 41.27 
of this subpart.
    (e) The College shall be eligible to receive a grant for the fiscal 
year beginning October 1, 1979, and for each succeeding year, in an 
amount equal to $4,000 multiplied by the number of FTE Indian students 
in attendance at the College during each academic term divided by the 
number of academic terms in the academic year, except that no such grant 
shall exceed the annual operating expenses of the education programs 
provided by the College. The mathematical formula for calculating the 
base grant is BG (Base Grant)=
[GRAPHIC] [TIFF OMITTED] TC14NO91.121


where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.22(g) of this 
subpart and N is the number of academic terms in the academic year. The 
amount and payment of such grants shall be subject to the availability 
of annual appropriations.
    (f) The Director of Education shall authorize payments to the 
College in advance installments by letter of credit or Treasury check in 
an amount equal to fifty percent (50%) of the grant amount available for 
allotment to the College for such academic year under paragraph (e) of 
this section on or before October 1st of such academic year (except 
1979-80) or the first day on which appropriations for the fiscal year 
beginning on such date are available for obligation by BIA, whichever 
occurs later, based on the number of FTE Indian students calculated on 
the basis of registrations as in effect at the conclusion of the sixth 
week of the final academic term of the preceding year. On or before 
January 1st (or such other date that is the first day of the fifth 
month) of such academic year, payment shall be made in the form of such 
advance installments to the College in an amount equal to seventy-five 
percent (75%) of the grant amount available for allotment to the College 
for such academic year under paragraph (e) of this section, calculated 
on the basis of registrations as in effect at the conclusion of the 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of such academic year, the balance 
of the grant amount to which the College is entitled under paragraph (e) 
of this section shall be paid to the College. In the event that 
additional sums are appropriated for the benefit of the College, these 
sums shall be included in the final payment.
    (g) Overpayments of grants under this subpart may be recovered in 
the manner provided by Sec. 41.8(g) of subpart A.
    (h) Payments to the Navajo Community College under this subpart 
shall not disqualify the College from applying for or receiving grants 
or contracts

[[Page 208]]

under any other Federal programs for which it may qualify.



Sec. 41.25  Reports.

    The Navajo Community College shall provide the Director of Education 
on or before September 1st of each year a report which shall include an 
accounting of the amounts and purposes for which financial assistance 
under this subpart was expended during the preceding academic year, the 
annual cost of the education programs of the College from all sources 
for such academic year, and a final report of the performance based upon 
the criteria set forth in the College's stated goals, philosophy or plan 
of operation. Upon reasonable cause, the Director of Education may 
extend the period for submitting the annual report. The college shall in 
addition report to the Director of Education its FTE Indian Student 
enrollment for each academic term of the academic year within three 
weeks of the date such FTE calculation is made.



Sec. 41.26  Technical assistance.

    The Director of Education shall furnish technical assistance, either 
directly or through contract, to the College when requested in writing. 
Such assistance shall be initiated within thirty (30) days of the 
College's request. In any case in which the form and source of technical 
assistance is specified in the request, the Director of Education shall 
to the extent possible or feasible provide technical assistance in the 
form requested and through the source so specified. Technical assistance 
may include, but is not limited to, consulting services in the 
development of annual statements and reports required under this subpart 
and accounting, and other technical advice and assistance.



Sec. 41.27  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to the Navajo 
Community College.
    (a) Services or assistance provided to Indians by the College with 
the financial assistance provided under this subpart shall be provided 
in a fair and uniform manner, and admission to the College shall not be 
denied any Indian student because such individual is not a member of a 
specific Indian tribe or because such individual is a member of a 
specific Indian tribe.
    (b) Except as may be otherwise provided in this subpart, the College 
shall comply with part 276 of this title, subject to express waiver of 
specific inappropriate provisions of part 276 that may be granted, after 
request and justification by the College by the Assistant Secretary.
    (c) In addition to any other right the college may have under this 
subpart, the College shall have the right to appeal any adverse decision 
of the Director of Education under a grant agreement to the Assistant 
Secretary by filing written notice of appeal with the Assistant 
Secretary within thirty (30) days of the adverse decision. Within thirty 
(30) days after receiving notice of appeal, the Assistant Secretary 
shall conduct a formal hearing at which time the College may present 
evidence and argument to support its appeal. Within thirty (30) days of 
the hearing, the Assistant Secretary shall issue a written ruling on the 
appeal confirming, modifying or reversing the decision of the Director 
of Education. In the case of a ruling not reversing the Director of 
Education's decision, the Assistant Secretary shall state in detail the 
basis for his/her ruling. The ruling of the Assistant Secretary on an 
appeal shall be final for the Department of the Interior.



Sec. 41.28  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of the Federal financial assistance, 
or any other payment of Federal funds, is based, may be subject to 
criminal prosecution under provisions such as sections 287, 371, or 1001 
of title 18, U.S. Code.



PART 42_STUDENT RIGHTS--Table of Contents




Sec.
42.1 What general principles apply to this part?
42.2 What rights do individual students have?

[[Page 209]]

42.3 How should a school address alleged violations of school policies?
42.4 What are alternative dispute resolution processes?
42.5 When can a school use ADR processes to address an alleged 
          violation?
42.6 When does due process require a formal disciplinary hearing?
42.7 What does due process in a formal disciplinary proceeding include?
42.8 What are a student's due process rights in a formal disciplinary 
          proceeding?
42.9 What are victims' rights in formal disciplinary proceedings?
42.10 How must the school communicate individual student rights to 
          students, parents or guardians, and staff?
42.11 Information collection.

    Authority: 5 U.S.C. 301, Pub. L. 107-110, 115 Stat. 1425.

    Source: 70 FR 22218, Apr. 28, 2005, unless otherwise noted.



Sec. 42.1  What general principles apply to this part?

    (a) This part applies to every Bureau-funded school. The regulations 
in this part govern student rights and due process procedures in 
disciplinary proceedings in all Bureau-funded schools. To comply with 
this part, each school must:
    (1) Respect the constitutional, statutory, civil and human rights of 
individual students; and
    (2) Respect the role of Tribal judicial systems where appropriate.
    (b) All student rights, due process procedures, and educational 
practices should, where appropriate or possible, afford students 
consideration of and rights equal to the student's traditional Native 
customs and practices.



Sec. 42.2  What rights do individual students have?

    Individual students at Bureau-funded schools have, and must be 
accorded, at least the following rights:
    (a) The right to an education that may take into consideration 
Native American or Alaska Native values;
    (b) The right to an education that incorporates applicable Federal 
and Tribal constitutional and statutory protections for individuals; and
    (c) The right to due process in instances of disciplinary actions.



Sec. 42.3  How should a school address alleged violations of school 
policies?

    (a) In addressing alleged violations of school policies, each school 
must consider, to the extent appropriate, the reintegration of the 
student into the school community.
    (b) The school may address a student violation using alternative 
dispute resolution (ADR) processes or the formal disciplinary process.
    (1) When appropriate, the school should first attempt to use the ADR 
processes described in Sec. 42.4 that may allow resolution of the 
alleged violation without recourse to punitive action.
    (2) Where ADR processes do not resolve matters or cannot be used, 
the school must address the alleged violation through a formal 
disciplinary proceeding under Sec. 42.7 consistent with the due process 
rights described in Sec. 42.7.



Sec. 42.4  What are alternative dispute resolution processes?

    Alternative dispute resolution (ADR) processes are formal or 
informal processes that may allow resolution of the violation without 
recourse to punitive action.
    (a) ADR processes may:
    (1) Include peer adjudication, mediation, and conciliation; and
    (2) Involve appropriate customs and practices of the Indian Tribes 
or Alaska Native Villages to the extent that these practices are readily 
identifiable.
    (b) For further information on ADR processes and how to use them, 
contact the Office of Collaborative Action and Dispute Resolution by:
    (1) Sending an e-mail to: [email protected]; or
    (2) Writing to: Office of Collaborative Action and Dispute 
Resolution, Department of the Interior, 1849 C Street NW., MS 5258, 
Washington, DC 20240.



Sec. 42.5  When can a school use ADR processes to address an alleged 
violation?

    (a) The school may address an alleged violation through the ADR 
processes described in Sec. 42.4, unless one of the conditions in 
paragraph (b) of this section applies.

[[Page 210]]

    (b) The school must not use ADR processes in any of the following 
circumstances:
    (1) Where the Act requires immediate expulsion (``zero tolerance'' 
laws);
    (2) For a special education disciplinary proceeding where use of ADR 
would not be compatible with the Individuals with Disabilities Education 
Act (Pub. L. 105-17); or
    (3) When all parties do not agree to using alternative dispute 
resolution processes.
    (c) If ADR processes do not resolve matters or cannot be used, the 
school must address alleged violations through the formal disciplinary 
proceeding described in Sec. 42.8.



Sec. 42.6  When does due process require a formal disciplinary hearing?

    Unless local school policies and procedures provide for less, a 
formal disciplinary hearing is required before a suspension in excess of 
10 days or expulsion.



Sec. 42.7  What does due process in a formal disciplinary proceeding 
include?

    Due process must include written notice of the charges and a fair 
and impartial hearing as required by this section.
    (a) The school must give the student written notice of charges 
within a reasonable time before the hearing required by paragraph (b) of 
this section. Notice of the charges includes:
    (1) A copy of the school policy allegedly violated;
    (2) The facts related to the alleged violation;
    (3) Information about any statements that the school has received 
relating to the charge and instructions on how to obtain copies of those 
statements; and
    (4) Information regarding those parts of the student's record that 
the school will consider in rendering a disciplinary decision.
    (b) The school must hold a fair and impartial hearing before 
imposing disciplinary action, except under the following circumstances:
    (1) If the Act requires immediate removal (such as, if the student 
brought a firearm to school) or if there is some other statutory basis 
for removal;
    (2) In an emergency situation that seriously and immediately 
endangers the health or safety of the student or others; or
    (3) If the student (or the student's parent or guardian if the 
student is less than 18 years old) chooses to waive entitlement to a 
hearing.
    (c) In an emergency situation under paragraph (b)(2) of this 
section, the school:
    (1) May temporarily remove the student;
    (2) Must immediately document for the record the facts giving rise 
to the emergency; and
    (3) Must afford the student a hearing that follows due process, as 
set forth in this part, within ten days.



Sec. 42.8  What are a student's due process rights in a formal 
disciplinary proceeding?

    A student has the following due process rights in a formal 
disciplinary proceeding:
    (a) The right to have present at the hearing the student's parents 
or guardians (or their designee);
    (b) The right to be represented by counsel (legal counsel will not 
be paid for by the Bureau-funded school or the Secretary);
    (c) The right to produce, and have produced, witnesses on the 
student's behalf and to confront and examine all witnesses;
    (d) The right to the record of the disciplinary action, including 
written findings of fact and conclusions;
    (e) The right to administrative review and appeal under school 
policy;
    (f) The right not to be compelled to testify against himself or 
herself; and
    (g) The right to have an allegation of misconduct and related 
information expunged from the student's school record if the student is 
found not guilty of the charges.



Sec. 42.9  What are victims' rights in formal disciplinary proceedings?

    In formal disciplinary proceedings, each school must consider 
victims' rights when appropriate.
    (a) The victim's rights may include a right to:
    (1) Participate in disciplinary proceedings either in writing or in 
person;

[[Page 211]]

    (2) Provide a statement concerning the impact of the incident on the 
victim; and
    (3) Have the outcome explained to the victim and to his or her 
parents or guardian by a school official, consistent with 
confidentiality.
    (b) For the purposes of this part, the victim is the actual victim, 
not his or her parents or guardians.



Sec. 42.10  How must the school communicate individual student rights 
to students, parents or guardians, and staff?

    Each school must:
    (a) Develop a student handbook that includes local school policies, 
definitions of suspension, expulsion, zero tolerance, and other 
appropriate terms, and a copy of the regulations in this part;
    (b) Provide all school staff a current and updated copy of student 
rights and responsibilities before the first day of each school year;
    (c) Provide all students and their parents or guardians a current 
and updated copy of student rights and responsibilities every school 
year upon enrollment; and
    (d) Require students, school staff, and to the extent possible, 
parents and guardians, to confirm in writing that they have received a 
copy and understand the student rights and responsibilities.



Sec. 42.11  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part in Sec. Sec. 
42.6, 42.7, and 42.9 contains collections of information subject to the 
PRA. These collections have been approved by OMB under control number 
1076-0163.



PART 43_MAINTENANCE AND CONTROL OF STUDENT RECORDS IN BUREAU SCHOOLS
--Table of Contents




Sec.
43.1 Purpose and scope.
43.2 Definitions.
43.3 Student rights.
43.4 Annual notification of rights.
43.5 Access to records.
43.6 Limitations on access.
43.7 Access rights.
43.8 Destruction of records.
43.9 Procedures for granting access.
43.10 Right to challenge.
43.11 Informal proceedings.
43.12 Right to a hearing.
43.13 Right of appeal.
43.14 Consent.
43.15 Content of consent.
43.16 Copy to be provided to parents or eligible students.
43.17 Release of information for health or safety emergencies.
43.18 Record of access.
43.19 Transfer of information by third parties.
43.20 Directory information.
43.21 Standards for collection and maintenance of student records.
43.22 Assuring integrity of records.
43.23 Conduct of employees.

    Authority: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat. 
1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.

    Source: 43 FR 52024, Nov. 8, 1978, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 43.1  Purpose and scope.

    This part contains the regulations of the Bureau of Indian Affairs, 
U.S. Department of the Interior, governing the maintenance, control, and 
accessibility of student records. This part will apply to all 
educational institutions under the jurisdiction of the Bureau of Indian 
Affairs, whether operated under contract or otherwise.



Sec. 43.2  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary--Indian 
Affairs, Department of the Interior.
    (b) Educational institution means any institution operated under the 
jurisdiction of the Bureau of Indian Affairs either directly or by 
contract, including, but not limited to, schools or dormitories from 
which Indian students attend public schools.

[[Page 212]]

    (c) Eligible student means a student who has become 18 years of age 
or is attending an institution of post-secondary education. When a 
student becomes an eligible student, the permission required of and the 
rights given to the parents of the student shall thereafter only be 
required of and given to the student.
    (d) Parent means a natural parent, an adoptive parent, the legal 
guardian, or a legal custodian of a student. (Where the natural parents 
are unavailable, a required written parental consent may be obtained 
from the person who has assumed custody of the student.) For purposes of 
the Education of All Handicapped Children Act, the term parent also 
includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
    (e) Student records means those records, files, documents, and other 
materials which contain information directly related to a student and 
which are maintained by an educational institution, or by a person 
acting for that institution. The term does not include:
    (1) Records of any educational personnel which are in the sole 
possession of the maker and which are not accessible or revealed to any 
other person except a substitute.
    (2) Records made and maintained in the normal course of business 
which relate exclusively to persons who are employed in an educational 
institution but do not attend that institution.
    (3) Directory information as given in Sec. 43.20.
    (4) Records on a student who is 18 years of age or older, or is 
attending an institution of post-secondary education, which are made or 
maintained by a physician, psychiatrist, psychologist, or other 
recognized professional or paraprofessional acting in his professional 
or paraprofessional capacity, or assisting in that capacity, and which 
are made, maintained, or used only in connection with the provision of 
treatment to the student, and are not available to anyone other than 
persons providing such treatment, except that such records can be 
personally reviewed by a physician or other appropriate professional of 
the student's choice.



Sec. 43.3  Student rights.

    The regulations in this part do not prevent educational institutions 
from giving noneligible students rights similar to those given to 
parents and eligible students. Educational institutions may do so at 
their discretion.



Sec. 43.4  Annual notification of rights.

    (a) Each educational institution to which this part applies and 
which maintains records on students shall inform parents or eligible 
students of the rights given them by this part.
    (b) In meeting the requirement in paragraph (a) of this section the 
educational institution shall give notice to parents and eligible 
students at least annually of the following:
    (1) The types of education records and information contained in them 
which are directly related to students and maintained by the 
institution.
    (2) The name and position of the official responsible for 
maintaining each type of record, the persons who have access to those 
records, and the purpose for which they have access.
    (3) The policies of the institution for reviewing and expunging 
those records.
    (4) The procedures established by the institution under Sec. 43.5.
    (5) The procedures for challenging the content of education records 
including those in Sec. 43.10.
    (6) The cost, if any, which will be charged to the parent or 
eligible student for reproducing copies of records under Sec. 43.5.
    (7) The categories of information which the institution has 
designated as ``directory information'' under Sec. 43.20.
    (c) The notice given to a parent or eligible student under this 
section shall be in a language considered by the institution to be 
understandable by the parent or eligible student.



Sec. 43.5  Access to records.

    Educational institutions shall give parents of students or eligible 
students, who are or have been in attendance at the institutions, access 
to student records, except as stated in Sec. 43.6.



Sec. 43.6  Limitations on access.

    Educational institutions are not required to make available to 
students the following materials:

[[Page 213]]

    (a) Financial records of the parents of the student or any 
information contained in those records.
    (b) Confidential letters and statements of recommendations, which 
were placed in any student's record prior to January 1, 1975, and which 
are not used for purposes other than those for which they were 
specifically intended.
    (c) Those records listed in Sec. 43.2(e) which are exempt from the 
definition of student records.



Sec. 43.7  Access rights.

    The right of access specified in Sec. 43.5 shall include:
    (a) The right to obtain a list of the types of student records which 
are maintained by the institution.
    (b) The right to inspect and review the content of those records.
    (c) The right to obtain copies of those records, the cost, if any, 
not to exceed the actual cost to the educational institution of 
reproducing the copies.
    (d) The right to a response from the institution to reasonable 
requests for explanations and interpretations of those records.
    (e) The right to an opportunity for a hearing to challenge the 
content of records.
    (f) If any material or document in the record of a student includes 
information on more than one student, the right to inspect and review 
only that portion of such material or document as relates to that 
particular student or to be informed of the specific information 
contained in such part of such materials.



Sec. 43.8  Destruction of records.

    This part does not prevent educational institutions from destroying 
any records, if not otherwise prevented by law. However, access shall be 
granted under Sec. 43.5 before destroying student records where the 
parent or eligible student has requested access. Only records which are 
no longer relevant or necessary may be destroyed, subject to Sec. 
43.23(c).



Sec. 43.9  Procedures for granting access.

    Each educational institution shall establish appropriate procedures 
for granting a request by parents for access to the records of their 
children, or by eligible students for access to their own records within 
a reasonable period of time. In no case shall access be withheld more 
than forty-five (45) days after the request has been made.



Sec. 43.10  Right to challenge.

    Each educational institution shall give parents of students and 
eligible students, who are or have been in attendance at the 
institution, an opportunity to challenge the content of the student's 
records to:
    (a) Insure that the records are not inaccurate, misleading, or 
otherwise violating the privacy or other rights of students.
    (b) Provide an opportunity for correcting or deleting any 
inaccurate, misleading, or otherwise inappropriate data in the record.
    (c) Insert into such records a written comment by the parents or 
eligible students pertaining to the content of such records.



Sec. 43.11  Informal proceedings.

    Educational institutions may attempt to resolve differences with the 
parent of a student or the eligible student regarding the content of the 
student's records through informal meetings and discussions with the 
parent or eligible student.



Sec. 43.12  Right to a hearing.

    Upon the request of the educational institution, the parent, or 
eligible student, a hearing shall be conducted under the procedures 
adopted and published by the institution. Such procedures shall include 
at least the following elements:
    (a) The hearing shall be conducted and decided within a reasonable 
period of time following the request for the hearing.
    (b) The hearing shall be informal and a verbatim record of 
proceedings will not be required. Interpreters will be utilized when 
necessary.
    (c) The hearing shall be conducted by an institutional official or 
other party who does not have a direct interest in the outcome of the 
hearing.
    (d) The parents or eligible student shall be given a full and fair 
opportunity to present evidence relevant to the issues raised under 
Sec. 43.10.

[[Page 214]]

    (e) Within a reasonable period of time after the hearing ends, the 
hearing official shall make his recommendation in writing to the head of 
the educational institution. Within 20 days after receipt of the 
recommendation, the head of the institution shall issue his decision in 
writing to the parent or eligible student.



Sec. 43.13  Right of appeal.

    If any parent or eligible student is adversely affected by the 
decision of the head of the institution, that party shall have appeal 
rights as given in 25 CFR part 2. However, each official decision shall 
be issued within 30 days from receipt of the appeal.



Sec. 43.14  Consent.

    Educational institutions shall not permit access to or the release 
of student records or personally identifiable information contained in 
them, other than directory information of students, without the written 
consent of the parents or of an eligible student, to any party other 
than the following:
    (a) Local school officials, including teachers within the 
educational institution, who have been determined by the institution to 
have legitimate educational interests in the records.
    (b) Officials of other schools or school systems at which a student 
is interested in enrolling. The student or parent must be notified of 
such release except in cases involving Bureau of Indian Affairs schools. 
All Bureau of Indian Affairs schools are considered to be components of 
one school system whether operated under contract or otherwise.
    (c) Persons having official involvement with a student's application 
for or grant of financial aid.
    (d) Parents of a dependent student as defined in section 152 of the 
Internal Revenue Code of 1954, as amended.
    (e) Accreditation agencies in order to carry out their accrediting 
functions.
    (f) U.S. Office of Education officials and other governmental 
education officials when deemed necessary by the institution to carry 
out their official functions.
    (g) An education testing center or similar institution as a part of 
its validation research which has been authorized by the school.
    (h) In an emergency, any person to whom the information is necessary 
in the discretion of the school's administration in order to protect the 
student's health and safety, subject to Sec. 43.17.
    (i) Indian groups, contractors, grantees, professional social 
service organizations and personnel performing professional services, 
when necessary to carry out an official function authorized by the 
Bureau of Indian Affairs.
    (j) Pursuant to the order of a court of competent jurisdiction; 
however, the parent or eligible student must be notified of such order 
in advance of compliance therewith by the educational institution.



Sec. 43.15  Content of consent.

    The consent of a parent or eligible student requested under this 
part for the release of student records shall be in writing, signed and 
dated by the person giving the consent. The consent shall include:
    (a) A specification of the records to be released.
    (b) The reasons for release.
    (c) The names of the parties to whom the records will be released.



Sec. 43.16  Copy to be provided to parents or eligible students.

    Where the consent of a parent or eligible student is required under 
this part for the release of student records, a copy of the records to 
be released shall be provided on request to:
    (a) The student's parents or the eligible student.
    (b) The student who is not an eligible student, if desired by the 
parents.



Sec. 43.17  Release of information for health or safety emergencies.

    (a) Educational institutions may release information from student 
records to appropriate persons in an emergency if the information is 
necessary to protect the health or safety of a student or other person. 
The factors to be used in determining whether records may be released 
under this section include the following:

[[Page 215]]

    (1) The seriousness of the threat to the health or safety of the 
student or other persons.
    (2) The need for those records to meet the emergency.
    (3) Whether the persons to whom the records are released are in a 
position to deal with the emergency.
    (4) The extent to which time is of the essence in dealing with the 
emergency.



Sec. 43.18  Record of access.

    (a) Each educational institution shall maintain a record kept with 
the student records of each student, which will indicate all parties 
other than those specified in Sec. 43.14 which have requested or 
obtained access to those records and which will indicate specifically 
the legitimate interest that each party had in obtaining this 
information.
    (b) A record of access shall be available only to:
    (1) Parents or eligible students.
    (2) The school official and his or her assistants who are 
responsible for the custody of such records.
    (3) Persons or organizations authorized in and under the conditions 
of Sec. 43.14.



Sec. 43.19  Transfer of information by third parties.

    (a) Educational institutions shall not release personal information 
on a student except on the condition that the party to which the 
information is being transferred will not permit any other party to have 
access to the information without the written consent of the parents or 
of the eligible students.
    (b) With any information released to a party under paragraph (a) of 
this section, educational institutions shall include a written statement 
which informs the party of the requirement in paragraph (a) of this 
section.



Sec. 43.20  Directory information.

    (a) Any educational institution making public directory information 
shall make a reasonable effort to individually notify the parent or 
eligible student of the categories of information which it has 
designated as directory information. The institution shall allow a 
reasonable period of time after notice has been given for a parent or 
eligible student to inform the institution that any or all of the 
information designated should not be released without the prior consent 
of the parent or eligible student.
    (b) Directory information may include the following: A student's 
name, address, telephone listing, date and place of birth, major field 
of study, participation in officially recognized activities and sports, 
weight and height of members of athletic teams, dates of attendance, 
degrees and awards received, and the most recent previous educational 
agency or institution attended by the student, tribe, agency, area, name 
of parent, sex, and classification (grade). No other information may be 
included. Educational institutions have the right to limit the content 
of directory information.



Sec. 43.21  Standards for collection and maintenance of student records.

    (a) Records shall contain only information about an individual which 
is relevant and necessary to accomplish a purpose of the Bureau required 
to be accomplished by statute or Executive order of the President.
    (b) Student records which are used in making any determination about 
any student shall be maintained with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to assure 
fairness to the student in making the determination.
    (c) Information which may be used in determining a student's rights, 
benefits, and privileges under Federal programs shall be collected 
directly from the student or his parents, to the greatest extent 
practicable. In deciding whether collection of information from a parent 
or eligible student, as opposed to a third-party source is practicable, 
the following factors among others may be considered:
    (1) Whether the nature of the information sought is such that it can 
only be obtained from a third party.
    (2) Whether the cost of collecting the information from the parent 
or student is unreasonable, when compared with the cost of collecting it 
from a third party.
    (3) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse

[[Page 216]]

determination to the student concerned.
    (4) Whether the information, if supplied by the parent or student, 
would have to be verified by a third party.
    (5) Whether provisions can be made for verification by the parent of 
student of information collected from third parties.
    (d) Each individual parent or eligible student who is asked to 
supply information about himself which will be added to a system of 
student records shall be notified of the basis for requesting the 
information, how it may be used, and what the consequences, if any, are 
of not supplying the information. At a minimum, the notice to the parent 
or eligible student must state:
    (1) The authority (whether granted by statute or Executive Order of 
the President) which authorizes requesting the information and whether 
disclosure of such information is mandatory or voluntary.
    (2) The principle purpose or purposes for which the information is 
intended to be used.
    (3) The routine uses which may be made of the information.
    (4) The effects, if any, of not providing all or any part of the 
requested information.
    (e) When information is collected on a standard form, the notice to 
the parent or eligible student shall be on the form or on a tear-off 
sheet attached to the form or on a separate sheet, whichever, is most 
practical.
    (f) When information is collected by an interviewer, the interviewer 
shall provide the parent or eligible student with a written notice which 
the individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
that a copy be mailed to him.
    (g) A parent or eligible student may be asked to acknowledge, in 
writing, that he has been given the notice required by this section.
    (h) No student records may be maintained describing how any 
individual exercises rights guaranteed by the first amendment to the 
Constitution unless:
    (1) Expressly authorized by statute or by the individual about whom 
the student record is maintained; or
    (2) Pertinent to and within the scope of an authorized law 
enforcement activity.



Sec. 43.22  Assuring integrity of records.

    (a) Student records shall be maintained with appropriate 
administrative, technical and physical safeguards to insure the security 
and confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity which could result in 
substantial harm, embarrassment, inconvenience, or unfairness to any 
individual on whom information is maintained.
    (b) When maintained in manual form, student records shall be 
maintained, at a minimum, subject to the following safeguards, or 
safeguards giving comparable protection:
    (1) Areas in which the student records are maintained or regularly 
used shall be posted with an appropriate warning, stating that access to 
the records is limited to authorized persons. The warning shall also 
summarize the requirements of Sec. 43.23 and state that employees may 
be subject to a criminal penalty for the unauthorized disclosure of 
student records.
    (2) During working hours, the area in which the student records are 
maintained or regularly used shall be occupied by authorized personnel, 
or access to the student records shall be restricted by their storage in 
locked metal file cabinets or a locked room.
    (3) During nonworking hours, access to the student records shall be 
restricted by their storage in locked metal file cabinets or a locked 
room.
    (4) Where a locked room is the method of security provided for a 
system, the educational institution responsible for the system shall, no 
later than December 31, 1978, supplement that security by:
    (i) Providing lockable file cabinets or containers for the student 
records, or
    (ii) Changing the lock or locks for the room so that they may not be 
opened with a master key. For the purpose of this paragraph, a master is 
a key which may be used to open rooms

[[Page 217]]

other than the room containing student records, unless those rooms are 
used by officials or employees authorized to have access to the student 
records.
    (c) When maintained in computerized form, student records shall be 
maintained, at a minimum, subject to safeguards based on those 
recommended in the National Bureau of Standards' booklet, ``Computer 
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30, 
1975), and any supplements to it, which are adequate and appropriate to 
assure the integrity of records in the system.
    (d) The education institution responsible for a system of student 
records shall be responsible for assuring that specific procedures are 
developed to assure that the student records in the system for which it 
is responsible are maintained with security meeting the regulations in 
this section. These procedures shall be in writing and shall be posted 
or otherwise periodically brought to the attention of employees working 
with the student records contained in the system.



Sec. 43.23  Conduct of employees.

    (a) Employees whose duties require handling of student records 
shall, at all times, take care to protect the integrity, security, and 
confidentiality of these records.
    (b) No employee of the educational institution may disclose student 
records unless disclosure is permitted under Sec. 43.14 or made to the 
parent of the student or eligible student to whom the record pertains.
    (c) No employee of the educational institution may alter or destroy 
a student record, unless:
    (1) Alteration or destruction is properly undertaken in the course 
of the employee's regular duties, or
    (2) Alteration or destruction is required by an authorized 
administrative decision or the decision of a court of competent 
jurisdiction.
    (d) The educational institution responsible for a system of student 
records shall be responsible for assuring that employees with access to 
the system are made aware of the requirements of this section.



PART 44_GRANTS UNDER THE TRIBALLY CONTROLLED SCHOOLS ACT--Table of 
Contents




Sec.
44.101 What directives apply to a grantee under this part?
44.102 Does this part affect existing tribal rights?
44.103 Who is eligible for a grant?
44.104 How can a grant be terminated?
44.105 How does a tribal governing body retrocede a program to the 
          Secretary?
44.106 How can the Secretary revoke an eligibility determination?
44.107 Under what circumstances may the Secretary reassume a program?
44.108 How must the Secretary make grant payments?
44.109 What happens if the grant recipient is overpaid?
44.110 What Indian Self-Determination Act provisions apply to grants 
          under the Tribally Controlled Schools Act?
44.111 Does the Federal Tort Claims Act apply to grantees?
44.112 Information Collection

    Authority: Public Law 107-110, Title 10, Part D, the Native American 
Education Improvement Act, 115 Stat. 2007; Part B, Section 1138, 
Regional Meetings and Negotiated Rulemaking, 115 Stat. 2057.

    Source: 70 FR 22219, Apr. 28, 2005, unless otherwise noted.



Sec. 44.101  What directives apply to a grantee under this part?

    In making a grant under this part the Secretary will use only:
    (a) The Tribally Controlled Schools Act;
    (b) The regulations in this part; and
    (c) Guidelines, manuals, and policy directives agreed to by the 
grantee.



Sec. 44.102  Does this part affect existing tribal rights?

    This part does not:
    (a) Affect in any way the sovereign immunity from suit enjoyed by 
Indian tribes;
    (b) Terminate or change the trust responsibility of the United 
States to any Indian tribe or individual Indian;
    (c) Require an Indian tribe to apply for a grant; or
    (d) Impede awards by any other Federal agency to any Indian tribe or 
tribal organization to administer any Indian program under any other 
law.

[[Page 218]]



Sec. 44.103  Who is eligible for a grant?

    The Secretary can make grants to Indian tribes and tribal 
organizations that operate:
    (a) A school under the provisions of 25 U.S.C. 450 et seq.;
    (b) A tribally controlled school (including a charter school, 
community-generated school or other type of school) approved by tribal 
governing body; or
    (c) A Bureau-funded school approved by tribal governing body.



Sec. 44.104  How can a grant be terminated?

    A grant can be terminated only by one of the following methods:
    (a) Retrocession;
    (b) Revocation of eligibility by the Secretary; or
    (c) Reassumption by the Secretary.



Sec. 44.105  How does a tribal governing body retrocede a program 
to the Secretary?

    (a) To retrocede a program, the tribal governing body must:
    (1) Notify the Bureau in writing, by formal action of the tribal 
governing body; and
    (2) Consult with the Bureau to establish a mutually agreeable 
effective date. If no date is agreed upon, the retrocession is effective 
120 days after the tribal governing body notifies the Bureau.
    (b) The Bureau must accept any request for retrocession that meets 
the criteria in paragraph (a) of this section.
    (c) After the tribal governing body retrocedes a program:
    (1) The tribal governing body decides whether the school becomes 
Bureau-operated or contracted under 25 U.S.C. 450 et seq.; and
    (2) If the tribal governing body decides that the school is to be 
Bureau-operated, the Bureau must provide education-related services in 
at least the same quantity and quality as those that were previously 
provided.



Sec. 44.106  How can the Secretary revoke an eligibility determination?

    (a) In order to revoke eligibility, the Secretary must:
    (1) Provide the tribe or tribal organization with a written notice;
    (2) Furnish the tribe or tribal organization with technical 
assistance to take remedial action; and
    (3) Provide an appeal process.
    (b) The Secretary cannot revoke an eligibility determination if the 
tribe or tribal organization is in compliance with 25 U.S.C. 2505(c).
    (c) The Secretary can take corrective action if the school fails to 
be accredited by January 8, 2005.
    (d) In order to revoke eligibility for a grant, the Secretary must 
send the tribe or tribal organization a written notice that:
    (1) States the specific deficiencies that are the basis of the 
revocation or reassumption; and
    (2) Explains what actions the tribe or tribal organization must take 
to remedy the deficiencies.
    (e) The tribe or tribal organization may appeal a notice of 
revocation or reassumption by requesting a hearing under 25 CFR part 
900, subpart L or P.
    (f) After revoking eligibility, the Secretary will either contract 
the program under 25 U.S.C. 450 et seq. or operate the program directly.



Sec. 44.107  Under what circumstances may the Secretary reassume a 
program?

    The Secretary may only reassume a program in compliance with 25 
U.S.C. 450m and 25 CFR part 900, subpart P. The tribe or school board 
shall have a right to appeal the reassumption pursuant to 25 CFR part 
900, subpart L.



Sec. 44.108  How must the Secretary make grant payments?

    (a) The Secretary makes two annual grant payments.
    (1) The first payment, consisting of 80 per cent of the amount that 
the grantee was entitled to receive during the previous academic year, 
must be made no later than July 1 of each year; and
    (2) The second payment, consisting of the remainder to which the 
grantee is entitled for the academic year, must be made no later than 
December 1 of each year.

[[Page 219]]

    (b) For funds that become available for obligation on October 1, the 
Secretary must make payments no later than December 1.
    (c) If the Secretary does not make grant payments by the deadlines 
stated in this section, the Secretary must pay interest under the Prompt 
Payment Act. If the Secretary does not pay this interest, the grantee 
may pursue the remedies provided under the Prompt Payment Act.



Sec. 44.109  What happens if the grant recipient is overpaid?

    (a) If the Secretary has mistakenly overpaid the grant recipient, 
then the Secretary will notify the grant recipient of the overpayment. 
The grant recipient must return the overpayment within 30 days after the 
final determination that overpayment occurred.
    (b) When the grant recipient returns the money to the Secretary, the 
Secretary will distribute the money equally to all schools in the 
system.



Sec. 44.110  What Indian Self-Determination Act provisions apply to 
grants under the Tribally Controlled Schools Act?

    (a) The following provisions of 25 CFR part 900 apply to grants 
under the Tribally Controlled Schools Act.
    (1) Subpart F; Standards for Tribal or Tribal Organization 
Management Systems, Sec. 900.45.
    (2) Subpart H; Lease of Tribally-owned Buildings by the Secretary.
    (3) Subpart I; Property Donation Procedures.
    (4) Subpart N; Post-award Contract Disputes.
    (5) Subpart P; Retrocession and Reassumption Procedures.
    (b) To resolve any disputes arising from the Secretary's 
administration of the requirements of this part, the procedures in 
subpart N of part 900 apply if the dispute involves any of the 
following:
    (1) Any exception or problem cited in an audit;
    (2) Any dispute regarding the grant authorized;
    (3) Any dispute involving an administrative cost grant;
    (4) Any dispute regarding new construction or facility improvement 
or repair; or
    (5) Any dispute regarding the Secretary's denial or failure to act 
on a request for facilities funds.



Sec. 44.111  Does the Federal Tort Claims Act apply to grantees?

    Yes, the Federal Tort Claims Act applies to grantees.



Sec. 44.112  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part in Sec. 44.105 
contains collections of information subject to the PRA. These 
collections have been approved by OMB under control number 1076-0163.



PART 46_ADULT EDUCATION PROGRAM--Table of Contents




                      Subpart A_General Provisions

Sec.
46.1 Purpose and scope.
46.2 Definitions.
46.3 Information collection.
46.10 Eligible activities.
46.20 Program requirements.
46.30 Records and reporting requirements.

Subpart B [Reserved]

    Authority: 43 U.S.C. 1457; 25 U.S.C. 2, 9, 13.

    Source: 62 FR 44081, Aug. 19, 1997, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 46.1  Purpose and scope.

    The purpose of the Adult Education Program is to:
    (a) Improve educational opportunities for Indian adults who lack the 
level of literacy skills necessary for effective citizenship and 
productive employment;
    (b) Expand and improve existing programs for delivering adult 
education services, including delivery of these services to 
educationally disadvantaged Indian adults; and

[[Page 220]]

    (c) Encourage the establishment of adult education programs that 
will:
    (1) Enable Indian adults to acquire adult basic educational skills 
necessary for literate functioning;
    (2) Provide Indian adults with sufficient basic education to enable 
them to benefit from job training and retraining programs and to obtain 
and retain productive employment so that they might more fully enjoy the 
benefits and responsibilities of citizenship; and
    (3) Enable Indian adults, who so desire, to continue their education 
to at least the level of completion of adult secondary education.



Sec. 46.2  Definitions.

    As used in this part:
    Adult means an individual who has attained the age of sixteen or is 
beyond the age of compulsory school attendance under State or tribal law 
and not currently enrolled in a formal secondary or post-secondary 
educational program.
    Adult Basic Education (ABE) means instruction designed for an adult 
who:
    (1) Has minimal competence in reading, writing, and computation;
    (2) Cannot speak, read, or write the English language sufficiently 
to allow employment commensurate with the adult's real ability;
    (3) Is not sufficiently competent to meet the educational 
requirements of an adult consumer; or
    (4) In grade level measurements that would be designated as grades 0 
through 8.
    Adult Education means services or instruction below the college 
level for adults who:
    (1) Lack sufficient mastery of basic educational skills to enable 
them to function effectively in society, or
    (2) Do not have a certificate of graduation from a school providing 
secondary education and have not achieved a GED.
    Adult Education Office means the BIA or tribal office administering 
funds appropriated to the BIA, under the TPA, for Adult Education 
programs.
    Adult Secondary Education means instruction designed for an adult 
who:
    (1) Is literate and can function in everyday life, but is not 
proficient as a competitive consumer or employee; or
    (2) Does not have a certificate of graduation (or its equivalent) 
from a school providing secondary education and in grade level 
measurements that would be designated as grades 9 through 12.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
Department of the Interior, or his/her designee.
    Bureau means the Bureau of Indian Affairs.
    Department of Education (ED) means the U.S. Department of Education.
    Director means the Director, Office of Indian Education Programs, 
Bureau of Indian Affairs.
    Indian means a person who is a member of, or is at least a one-
fourth degree Indian blood descendent of a member of, an Indian tribe, 
and is eligible for the special programs and services provided by the 
United States through the Bureau of Indian Affairs to Indians because of 
their status as Indians;
    Indian tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony or community, including any Alaska native village or 
regional or village corporation as defined in, or established pursuant 
to, the Alaska Native Claims Settlement Act (85 Stat. 668) that is 
Federally recognized by the United States Government through the 
Secretary of the Interior for the special programs and services provided 
by the Secretary to Indians because of their status as Indians.
    Tribal Priority Allocation (TPA) means the BIA's budget formulation 
process that allows direct tribal government involvement in the setting 
of relative priorities for local operating programs.
    Secretary means the Secretary of the Department of the Interior.
    Service area means the geographic area served by the local Adult 
Education Program.



Sec. 46.3  Information collection.

    Information collection requirements contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned control number 1076-0120. This information is being 
collected to assess the need for adult education programs. The 
information collection is used to manage program resources and

[[Page 221]]

for fiscal accountability and appropriate direct services documentation. 
Response to this request is necessary to obtain or retain a benefit. 
Public reporting burden for this form is estimated to average 4 hours 
per response including time for reviewing instructions, gathering, 
maintaining data, completing and reviewing the form. Direct comments 
regarding the burden estimate or any other aspect of this form to the 
BIA Information Collection Clearance Officer, 1849 C Street NW., 
Washington, DC 20240.

[67 FR 13570, Mar. 25, 2002]



Sec. 46.10  Eligible activities.

    (a) Subject to availability of funds, funds appropriated for the 
BIA's Adult Education Program may be used to support local projects or 
programs designed to:
    (1) Enable Indian adults to acquire basic educational skills, 
including literacy;
    (2) Enable Indian adults to continue their education through the 
secondary school level;
    (3) Establish career education projects intended to improve 
employment opportunities;
    (4) Provide educational services or instruction for elderly, 
disabled, or incarcerated Indian adults;
    (5) Prepare individuals to benefit from occupational training; and
    (6) Teach employment-related skills.
    (b) Funds should not be used to support programs designed solely to 
prepare Indian adults to enter a specific occupation or cluster of 
closely related occupations.
    (c) The Adult Education Program must be implemented in accordance 
with a plan established by the tribe(s) affected by the program. The 
tribe(s) may determine to set standards in addition to those established 
in this part.



Sec. 46.20  Program requirements.

    (a) The Adult Education Office will implement the program or project 
that is designed to address the needs of the Indian adults in the 
service area. To determine the needs of Indian adults in the area, the 
Adult Education Office must consider:
    (1) Elementary/secondary school dropout or absentee rates;
    (2) Average grade level completed;
    (3) Unemployment rates; and
    (4) Other appropriate measures.
    (b) The Adult Education Office, to ensure efforts that no 
duplication of services exists, will identify other services in the 
area, including those offered by Federal, State and Tribal entities, 
that are designed to meet the same needs as those to be addressed by the 
project, and the number of Indian adults who receive those services.
    (c) The Adult Education Office must establish and maintain an 
evaluation plan.
    (1) The plan must be designed to measure the project's effectiveness 
in meeting each objective and the impact of the project on the adults 
involved; and
    (2) The plan must provide procedures for periodic assessment of the 
progress of the project and, if necessary, modification of the project 
as a result of that assessment.
    (d) Subject to the availability of funds, the project is to be 
supported under the funding level established for Adult Education in the 
formulation of the budget under the TPA process.



Sec. 46.30  Records and reporting requirements.

    (a) The Adult Education Office will annually submit a report on the 
previous project year's activities to the Director, Office of Indian 
Education Programs. The report must include the following information:
    (1) The type of eligible activity, under Sec. 46.10, conducted 
under the project(s);
    (2) The number of participants acquiring the GED, high school 
diploma, and other certificates of performance; and
    (3) A narrative summary of the activities conducted under the 
project.
    (b) Each Adult Education Office must:
    (1) Submit any records and information that the Director requires in 
connection with the administration of the program; and
    (2) Comply with any requirements that the Director may impose to 
ensure the accuracy of the reports required by this part.

[[Page 222]]

Subpart B [Reserved]



PART 47_UNIFORM DIRECT FUNDING AND SUPPORT FOR BUREAU-OPERATED SCHOOLS
--Table of Contents




Sec.
47.1 What is the purpose of this part?
47.2 What definitions apply to terms in this part?
47.3 How does a Bureau-operated school find out how much funding it will 
          receive?
47.4 When does OIEP provide funding?
47.5 What is the school supervisor responsible for?
47.6 Who has access to local education financial records?
47.7 What are the expenditure limitations for Bureau-operated schools?
47.8 Who develops the local educational financial plans?
47.9 What are the minimum requirements for the local educational 
          financial plan?
47.10 How is the local educational financial plan developed?
47.11 Can these funds be used as matching funds for other Federal 
          programs?
47.12 Information collection.

    Authority: Pub. L. 107-110, 115 Stat. 1425.

    Source: 70 FR 22221, Apr. 28, 2005, unless otherwise noted.



Sec. 47.1  What is the purpose of this part?

    This part contains the requirements for developing local educational 
financial plans that Bureau-operated schools need in order to receive 
direct funding from the Bureau of Indian Affairs under section 1127 of 
the Act.



Sec. 47.2  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Budget means that element in the local educational financial plan 
which shows all costs of the plan by discrete programs and sub-cost 
categories.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Consultation means soliciting and recording the opinions of Bureau-
operated school boards regarding each element of the local educational 
financial plan and incorporating these opinions to the greatest degree 
feasible in the development of the local educational financial plan at 
each stage.
    Director means the Director, Office of Indian Education Programs.
    Local educational financial plan means the plan that:
    (1) Programs dollars for educational services for a particular 
Bureau-operated school; and
    (2) Has been ratified in an action of record by the local school 
board or determined by the superintendent under the appeals process in 
25 CFR part 2.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs of the Department of the Interior.
    Secretary means the Secretary of the Interior or a designated 
representative.



Sec. 47.3  How does a Bureau-operated school find out how much funding 
it will receive?

    The Office of Indian Education Programs (OIEP) will notify each 
Bureau-operated school in writing of the annual funding amount it will 
receive as follows:
    (a) No later than July 1 OIEP will let the Bureau-operated school 
know the amount that is 80 percent of its funding; and
    (b) No later than September 30 OIEP will let the Bureau-operated 
school know the amount of the remaining 20 percent.



Sec. 47.4  When does OIEP provide funding?

    By July 1 of each year OIEP will make available for obligation 80 
percent of the funds for the fiscal year that begins on the following 
October 1.



Sec. 47.5  What is the school supervisor responsible for?

    Each Bureau-operated school's school supervisor has the 
responsibilities in this section. The school supervisor must do all of 
the following:
    (a) Ensure that the Bureau-operated school spends funds in 
accordance with the local educational financial plan, as ratified or 
amended by the school board;

[[Page 223]]

    (b) Sign all documents required to obligate or pay funds or to 
record receipt of goods and services;
    (c) Report at least quarterly to the local school board on the 
amounts spent, obligated, and currently remaining in funds budgeted for 
each program in the local educational financial plan;
    (d) Recommend changes in budget amounts to carry out the local 
educational financial plan, and incorporate these changes in the budget 
as ratified by the local school board, subject to provisions for appeal 
and overturn; and
    (e) Maintain expenditure records in accordance with financial 
planning system procedures.



Sec. 47.6  Who has access to local education financial records?

    The Comptroller General, the Assistant Secretary, the Director, or 
any of their duly authorized representatives have access for audit and 
explanation purposes to any of the local school's accounts, documents, 
papers, and records which are related to the Bureau-operated schools' 
operation.



Sec. 47.7  What are the expenditure limitations for Bureau-operated 
schools?

    Each Bureau-operated school must spend all allotted funds in 
accordance with applicable Federal regulations and local education 
financial plans. If a Bureau-operated school and OIEP region or Agency 
support services staff disagree over expenditures, the Bureau-operated 
school must appeal to the Director for a decision.



Sec. 47.8  Who develops the local educational financial plans?

    The local Bureau-operated school supervisor develops the local 
educational financial plan in active consultation with the local school 
board, based on the tentative allotment received.



Sec. 47.9  What are the minimum requirements for the local educational 
financial plan?

    (a) The local educational financial plan must include:
    (1) Separate funds for each group receiving a discrete program of 
services is to be provided, including each program funded through the 
Indian School Equalization Program;
    (2) A budget showing the costs projected for each program; and
    (3) A certification provision meeting the requirements of paragraph 
(b) of this section.
    (b) The certification required by paragraph (a)(3) of this section 
must provide for:
    (1) Certification by the chairman of the school board that the plan 
has been ratified in an action of record by the board; and
    (2) Certification by the Education Line Officer that he or she has 
approved the plan as shown in an action overturning the school board's 
rejection or amendment of the plan.



Sec. 47.10  How is the local educational financial plan developed?

    (a) The following deadlines apply to development of the local 
educational financial plan:
    (1) Within 15 days after receiving the tentative allotment, the 
school supervisor must consult with the local school board on the local 
educational financial plan.
    (2) Within 30 days of receiving the tentative allotment, the school 
board must review the local educational financial plan and, by a quorum 
vote, ratify, reject, or amend, the plan.
    (3) Within one week of the school board action under paragraph 
(a)(2) of this section, the supervisor must either:
    (i) Send the plan to the education line officer (ELO), along with 
the official documentation of the school board action; or
    (ii) Appeal the school board's decision to the ELO.
    (4) The ELO will review the local educational financial plan for 
compliance with laws and regulations and may refer the plan to the 
Solicitor's Office for legal review. If the ELO notes any problem with 
the plan, he or she must:
    (i) Notify the local board and local supervisor of the problem 
within two weeks of receiving the plan;
    (ii) Make arrangements to assist the local school supervisor and 
board to correct the problem; and

[[Page 224]]

    (iii) Refer the problem to the Director of the Office of Indian 
Education if it cannot be solved locally.
    (b) When consulting with the school board under paragraph (a)(1) of 
this section, the school supervisor must:
    (1) Discuss the present program of the Bureau-operated school and 
any proposed changes he or she wishes to recommend;
    (2) Give the school board members every opportunity to express their 
own ideas and views on the supervisor recommendations; and
    (3) After the discussions required by paragraphs (b)(1) and (b)(2) 
of this section, present a draft plan to the school board with 
recommendations concerning each of the elements.
    (c) If the school board does not act within the deadline in 
paragraph (a)(2) of this section, the supervisor must send the plan to 
the ELO for ratification. The school board may later amend the plan by a 
quorum vote; the supervisor must transmit this amendment in accordance 
with paragraph (a)(3) of this section.



Sec. 47.11  Can these funds be used as matching funds for other Federal 
programs?

    A Bureau-operated school may use funds that it receives under this 
part as matching funds for other Federal programs.



Sec. 47.12  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part contains 
collections of information subject to the PRA in Sec. Sec. 47.5, 47.7, 
47.9, and 47.10. These collections have been approved by OMB under 
control number 1076-1063.

[[Page 225]]



                     SUBCHAPTER F_TRIBAL GOVERNMENT





PART 61_PREPARATION OF ROLLS OF INDIANS--Table of Contents




Sec.
61.1 Definitions.
61.2 Purpose.
61.3 Information collection.
61.4 Qualifications for enrollment and the deadline for filing 
          application forms.
61.5 Notices.
61.6 Application forms.
61.7 Filing of application forms.
61.8 Verification forms.
61.9 Burden of proof.
61.10 Review of applications by tribal authorities.
61.11 Action by the Director or Superintendent.
61.12 Appeals.
61.13 Decision of the Assistant Secretary on appeals.
61.14 Preparation, certification and approval of the roll.
61.15 Special instructions.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9, 1300d-3(b), 1300d-26, 
1401 et seq.

    Source: 50 FR 46430, Nov. 8, 1985, unless otherwise noted.



Sec. 61.1  Definitions.

    As used in these regulations:
    Act means any act of Congress authorizing or directing the Secretary 
to prepare a roll of a specific tribe, band, or group of Indians.
    Adopted person means a person whose natural parents' parental rights 
have been given to others to exercise by court order.
    Approved roll means a roll of Indians approved by the Secretary.
    Assistant Secretary means the Assistant Secretary of the Interior 
for Indian Affairs or an authorized representative acting under 
delegated authority.
    Basic roll means the specified allotment, annuity, census or other 
roll designated in the Act or Plan as the basis upon which a new roll is 
to be compiled.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative acting under delegated authority.
    Descendant(s) means those persons who are the issue of the ancestor 
through whom enrollment rights are claimed; namely, the children, 
grandchildren, etc. It does not include collateral relatives such as 
brothers, sisters, nieces, nephews, cousins, etc. or adopted children, 
grandchildren, etc.
    Director means the Area Director of the Bureau of Indian Affairs 
area office which has administrative jurisdiction over the local field 
office responsible for administering the affairs of the tribe, band, or 
group for which a roll is being prepared or an authorized representative 
acting under delegated authority.
    Enrollee(s) means persons who have met specific requirements for 
enrollment and whose names appear on a particular roll of Indians.
    Lineal ancestor means an ancestor, living or deceased, who is 
related to a person by direct ascent; namely, the parent, grandparent, 
etc. It does not include collateral relatives such as brothers, sisters, 
aunts, uncles, etc., or adopted parents, grandparents, etc.
    Living means born on or before and alive on the date specified.
    Plan means any effective plan prepared under the provisions of the 
Act of October 19, 1973, Pub. L. 93-134, 87 Stat. 466, as amended, which 
authorizes and directs the Secretary to prepare a roll of a specific 
tribe, band, or group of Indians.
    Secretary means the Secretary of Interior or an authorized 
representative acting under delegated authority.
    Sponsor means any person who files an application for enrollment or 
appeal on behalf of another person.
    Staff Officer means the Enrollment Officer or other person 
authorized to prepare the roll.
    Superintendent means the official or other designated representative 
of the Bureau of Indian Affairs in charge of the field office which has 
immediate administrative responsibility for the affairs of the tribe, 
band, or group for which a roll is being prepared.
    Tribal Committee means the body of a federally recognized tribal 
entity vested with final authority to act on enrollment matters.

[[Page 226]]

    Tribal Governing Document means the written organizational statement 
governing the tribe, band, or group of Indians and/or any valid 
document, enrollment ordinance, or resolution enacted thereunder.



Sec. 61.2  Purpose.

    The regulations in this part 61 are to govern the compilation of 
rolls of Indians by the Secretary of the Interior pursuant to statutory 
authority. The regulations are not to apply in the compilation of tribal 
membership rolls where the responsibility for the preparation and 
maintenance of such rolls rests with the tribes.



Sec. 61.3  Information collection.

    The Office of Management and Budget has informed the Department of 
the Interior that the information collection requirements contained in 
Sec. 61.4 need not be reviewed by them under the Paperwork Reduction 
Act (44 U.S.C. 3501 et seq.).



Sec. 61.4  Qualifications for enrollment and the deadline for filing 
application forms.

    (a) The qualifications which must be met to establish eligibility 
for enrollment and the deadline for filing application forms will be 
included in this part 61 by appropriate amendments to this section; 
except that, when an Act or Plan states the qualifications for 
enrollment and the deadline for filing application forms and specifies 
that the regulations contained in this part 61 will apply, amendment to 
this section will not be required for the procedures contained in this 
part 61 to govern the preparation of the roll; provided further, the 
provisions contained in this part 61 that were in effect when the 
regulations were amended to include paragraphs (r), (s), (w), (x), (y), 
and (z) shall control the preparation of the rolls under paragraphs (r), 
(s), (w), (x), (y), and (z) of this section.
    (b) Pembina Band of Chippewa Indians. (1) Pursuant to section 7(a) 
of the Act of December 31, 1982, Pub. L. 97-403, 96 Stat. 2022, a roll 
is to be prepared and used as the basis for the distribution of an 
apportioned share of judgment funds awarded the Pembina Chippewa Indians 
in dockets numbered 113, 191, 221 and 246 of the Court of Claims of all 
persons who:
    (i) Are of at least \1/4\ degree Pembina Chippewa blood;
    (ii) Are citizens of the United States;
    (iii) Were living on December 31, 1982;
    (iv) Are not members of the Red Lake Band of Chippewa Indians, the 
Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of the 
Rocky Boy's Reservation, or Minnesota Chippewa Tribe, or the Little 
Shell Band of Chippewa Indians of Montana; and
    (v) Are enrolled or are lineal descendants of persons enrolled:
    (A) As Pembina descendants under the provisions of the Act of July 
29, 1971 (85 Stat. 158), for the disposition of the 1863 Pembina Award, 
or
    (B) On the McCumber roll of the Turtle Mountain Indians of 1892, or
    (C) On the Davis roll of the Turtle Mountain Indians of 1904; or
    (D) As Chippewa on the tentative roll of the Rocky Boy Indians of 
May 30, 1917, or the McLaughlin census report of the Rocky Boy Indians 
of July 7, 1917, or the Roe Cloud Roll of Landless Indians of Montana; 
or
    (vi) Are able to establish Pembina ancestry on the basis of any 
other rolls or records acceptable to the Secretary.
    (2) Application forms for eligibility must be filed with the 
Superintendent, Turtle Mountain Agency, Bureau of Indian Affairs, 
Belcourt, North Dakota 58316, by March 10, 1986. Application forms filed 
after that date will be rejected for failure to file on time regardless 
of whether the applicant otherwise meets the qualifications for 
eligibility.
    (3) Each application for enrollment as a member of any of the tribes 
specified in paragraph (b)(1)(iv) of this section, except the Red Lake 
Band of Chippewa Indians, which may be rejected by the tribes shall be 
reviewed by the Superintendent to determine whether the applicant meets 
the qualifications for eligibility as a descendant of the Pembina Band 
of Chippewas under paragraph (b)(1) of this section. Each rejection 
notice shall contain a statement to the effect that the application is 
being given such review.
    (c) Cherokee Band of Shawnee Indians. (1) Pursuant to section 5 of 
the Act of December 20, 1982, Pub. L. 97-372, 96 Stat. 1815, a roll is 
to be prepared and

[[Page 227]]

used as the basis for the distribution of an apportioned share of 
judgment funds awarded the Shawnee Tribe in dockets 64, 335, and 338 by 
the Indian Claims Commission and in docket 64-A by the U.S. Court of 
Claims of all persons of Cherokee Shawnee ancestry:
    (i) Who were living on December 20, 1982;
    (ii) Who are lineal descendants of the Shawnee Nation as it existed 
in 1854, based on the roll of the Cherokee Shawnee compiled pursuant to 
the Act of March 2, 1889 (25 Stat. 994), or any other records acceptable 
to the Secretary including eligibility to share in the distribution of 
judgment funds awarded the Absentee Shawnee Tribe of Oklahoma on behalf 
of the Shawnee Nation in Indian Claims Commission docket 334-B as a 
Cherokee Shawnee descendant; and
    (iii) Who are not members of the Absentee Shawnee Tribe of Oklahoma 
or the Eastern Shawnee Tribe of Oklahoma.
    (2) Application forms for enrollment must be filed with the 
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal 
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms 
filed after that date will be rejected for inclusion on the roll being 
prepared for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for enrollment.
    (d) Miami Indians of Indiana. (1) Pursuant to section 3 of the Act 
of December 21, 1982, Pub. L. 97-376, 96 Stat. 1828, a roll is to be 
prepared and used as the basis for the distribution of an apportioned 
share of judgment funds awarded the Miami Tribe of Oklahoma and the 
Miami Indians of Indiana in dockets 124-B and 254 by the U.S. Court of 
Claims of all persons of Miami Indian ancestry:
    (i) Who were living on December 21, 1982;
    (ii) Whose name or the name of a lineal ancestor appears on:
    (A) The roll of Miami Indians of Oklahoma and Indiana prepared 
pursuant to the Act of June 2, 1972 (86 Stat. 199), or
    (B) The roll of Miami Indians of Indiana of June 12, 1895, or
    (C) The roll of ``Miami Indians of Indiana, now living in Kansas, 
Quapaw Agency, I.T., and Oklahoma Territory,'' prepared and completed 
pursuant to the Act of March 2, 1895 (28 Stat. 903), or
    (D) The roll of the Eel River Miami Tribe of Indians of May 27, 
1889, prepared and completed pursuant to the Act of June 29, 1888 (25 
Stat. 223), or
    (E) The roll of the Western Miami Tribe of Indians of June 12, 1891 
(26 Stat. 1001); and
    (iii) Who are not members of the Miami Tribe of Oklahoma.
    (2) Application forms for enrollment must be filed with the 
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal 
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms 
filed after that date will be rejected for inclusion on the roll being 
prepared for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for enrollment.
    (e) Cow Creek Band of Umpqua Tribe of Indians. (1) Pursuant to 
section 5 of the Cow Creek Band of Umpqua Tribe of Indians Distribution 
of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a tribal 
membership roll is to be prepared comprised of all persons who are able 
to establish that they are of Cow Creek or other Indian ancestry 
indigenous to the United States based on any rolls or records acceptable 
to the Secretary and were not members of any other Federally recognized 
Indian tribe on July 30, 1987; and:
    (i) Who are named on the tribal roll dated September 13, 1980, the 
so-called Interrogatory No. 14 roll;
    (ii) Who are descendants of individuals named on the tribal roll 
dated September 13, 1980, the so-called Interrogatory No. 14 roll, and 
were born on or prior to October 26, 1987; or
    (iii) Who are descendants of individuals who were considered to be 
members of the Cow Creek Band of Umpqua Tribe of Indians for the 
purposes of the treaty entered between such Band and the United States 
on September 19, 1853.
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, 
Siletz, Oregon 97380

[[Page 228]]

by June 1, 1990. Application forms filed after that date will be 
rejected for inclusion on the tribal membership roll for failure to file 
on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.
    (f) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) 
Pursuant to section 6(a)(1) of the Cow Creek Band of Umpqua Tribe of 
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 
100-139, a roll of nontribal members eligible to participate in the 
Higher Education and Vocational Training Program and the Housing 
Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is 
to be prepared of individuals:
    (i) Who are descended from persons considered members of the Cow 
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered 
into between such band and the United States on September 19, 1853 (10 
Stat. 1027), as ratified by the Senate on April 12, 1854; and
    (ii) Who did not share or are not descendants of persons who shared 
in the distribution of funds under the Act entitled ``An Act to provide 
for the termination of Federal supervision over the property of the 
Klamath Tribe of Indians located in the State of Oregon and the 
individuals members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to 
provide for the termination of Federal supervision over the property of 
certain tribes and bands of Indians located in western Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 691 et seq.).
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, 
Siletz, Oregon 97380. Upon receipt of an application form, the 
Superintendent shall furnish a copy to the Cow Creek Band of Umpqua 
Tribe of Indians.
    (g) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) 
Pursuant to section 6(a)(2) of the Cow Creek Band of Umpqua Tribe of 
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 
100-139, a roll of nontribal members eligible to participate in the 
Elderly Assistance Program of the Cow Creek Band of Umpqua Tribe of 
Indians is to be prepared of individuals:
    (i) Who are descended from persons considered members of the Cow 
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered 
into between such Band and the United States on September 19, 1853 (10 
Stat. 1027), as ratified by the Senate on April 12, 1854;
    (ii) Who did not share or are not descendants of persons who shared 
in the distribution of funds under the Act entitled ``An act to provide 
for the termination of Federal supervision over the property of the 
Klamath Tribe of Indians located in the State of Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to 
provide for the termination of Federal supervision over the property of 
certain tribes and bands of Indians located in western Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 691 et seq.); and
    (iii) Who were 50 years or older as of December 31, 1985.
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, 
Siletz, Oregon 97380 by April 25, 1988, and with the Cow Creek Band of 
Umpqua Tribe of Indians. Application forms filed after that date will be 
rejected for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for eligibility for inclusion on the 
roll of persons eligible to participate in the Elderly Assistance 
Program, but will be considered for inclusion on the roll of persons 
eligible to participate in the Higher Education and Vocation Training 
Program and the Housing Assistance Program. Upon receipt of an 
application form, the Superintendent shall furnish a copy to the Cow 
Creek Band of Umpqua Tribe of Indians.
    (h) Indians of the Hoopa Valley Indian Reservation. Pursuant to 
section 5 of the Hoopa-Yurok Settlement Act of October 31, 1988, Pub. L. 
100-580, a roll of Indians of the Reservation eligible to participate in 
certain settlement provisions is to be prepared of all persons:

[[Page 229]]

    (1) Who were born on or prior to and living on October 31, 1988; and
    (2) Who are citizens of the United States; and
    (3) Who were not, on August 8, 1988, enrolled members of the Hoopa 
Valley Tribe; and
    (4) Who meet the criteria to qualify as an ``Indian of the 
Reservation'' under one of the following standards established by the 
U.S. Court of Claims in its March 31, 1982, decision, and the United 
States Claims Court in its May 14, 1987, and March 1, 1988, decisions in 
the cases of Short v. United States, (Cl. Ct. No. 102-63):
    (i) Standards A-E which are:
    (A) Allottees of land on any part of the Reservation, living on 
October 1, 1949, and lineal descendants of allottees living on October 
1, 1949;
    (B) Persons living on October 1, 1949, and resident on the 
reservation at that time, who have received Reservation benefits or 
services, and hold an assignment, or can make other proof that though 
eligible to receive an allotment, they have not been allotted, and the 
lineal descendants of such persons, living on October 1, 1949;
    (C) Persons living on June 2, 1953, who have at least \1/4\ degree 
Reservation blood, as defined in paragraph (h)(6)(i) of this section, 
have forebears born on the Reservation and were resident on the 
Reservation for 15 years prior to June 2, 1953;
    (D) Persons of at least \1/4\ degree Indian blood, born after 
October 1, 1949, and before August 9, 1963, to a parent who is or would 
have been, when alive a qualified Indian of the Reservation under the 
standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or 
has previously been held entitled to recover in the Short cases;
    (E) Persons born on or after August 9, 1963, who are of at least \1/
4\ degree Indian blood, derived exclusively from the qualified parent or 
parents who is or would have been, when alive, a qualified Indian of the 
Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C) 
of this section, or has previously been held entitled to recover in the 
Short cases; or
    (ii) Manifest Injustice Standard which is: Persons who do not 
qualify under the standards in paragraph (h)(4)(i) of this section, but 
who it would be manifestly unjust to exclude from enrollment. To qualify 
under the manifest injustice standard, persons must adequately 
demonstrate all of the following:
    (A) A significant degree of Indian blood (at least \1/4\ degree 
Indian blood, and
    (B) Personal connections to the Reservation shown through a 
substantial period of residence on the Reservation (nearly ten years of 
residence), and
    (C) Personal ties to the land of the Reservation and/or ties to the 
land through a lineal ancestor; and
    (5) Who file or have filed on their behalf application forms for 
enrollment with the Superintendent, Northern California Agency, Bureau 
of Indian Affairs, P.O. Box 494879, Redding, California 96049, by April 
10, 1989. Applications filed after that date will not be considered for 
inclusion on the roll regardless of whether the applicant otherwise 
meets the qualifications for enrollment, except for plaintiffs 
determined to be an ``Indian of the Reservation'' in the Short cases, 
who will, if they otherwise meet the requirements of the Act, be 
included on the roll.
    (6) As used in paragraph (h) of this section:
    (i) Reservation blood means the blood of the following tribes or 
bands: Yurok; Hoopa/Hupa; Grouse Creek; Hunstand/Hoonsotton/Hoonsolton; 
Miskut/Miscotts/Miscolts; Redwood/Chilula; Saiaz/Nongatl/Siahs; 
Sermaltion; South Fork; Tish-tang-atan; Karok; Tolowa; Sinkyone/
Sinkiene; Wailake/Wylacki; Wiyot/Humboldt; and Wintun.
    (ii) Short cases means the cases entitled Jessie Short et al. v. 
United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States, 
(Cl. Ct. No. 460-78); Bret Aastadt v. United States, (Cl. Ct. No. 146-
85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L).
    (i) [Reserved]
    (j) Coquille Tribe of Indians. (1) Pursuant to section 7 of the 
Coquille Restoration Act of June 28, 1989, Pub. L. 101-42, a tribal 
membership roll is to be prepared comprised of persons of Coquille 
Indian ancestry:
    (i) Who were born on or before and living on June 28, 1989;

[[Page 230]]

    (ii) Who possess at least one-eighth (\1/8\) degree or more Indian 
blood;
    (iii) Who are not enrolled members of another federally recognized 
tribe; and
    (iv) Whose names were listed on the Coquille roll prepared pursuant 
to the Act of August 30, 1954 (68 Stat. 979; 25 U.S.C. 771), and 
approved by the Bureau of Indian Affairs on August 29, 1960;
    (v) Whose names were not listed on but who met the requirements to 
be listed on the Coquille roll prepared pursuant to the Act of August 
30, 1954, and approved by the Bureau of Indian Affairs on August 29, 
1960; or
    (vi) Who are lineal descendants of persons, living or dead, 
identified in paragraphs (j)(1)(iv) and (j)(1)(v) of this section.
    (2) To establish eligibility for inclusion on the tribal membership 
roll, all persons must file an application form with the Superintendent, 
Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon 
97380 by January 10, 1991. Application forms filed after that date will 
be rejected for inclusion on the roll being prepared for failure to file 
on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.
    (3) For the purposes of establishing eligibility under paragraph (j) 
of this section, any available evidence establishing Coquille ancestry 
and the required degree of Indian blood shall be accepted. However, 
information shown on the Coquille roll prepared pursuant to the Act of 
August 30, 1954, shall be accepted as conclusive evidence of Coquille 
ancestry and blood degree information shown on the January 1, 1940, 
census roll of nonreservation Indians of the Grand Ronde-Siletz Agency 
shall be accepted as conclusive evidence in determining degree of Indian 
blood for applicants.
    (4) For the purposes of establishing eligibility under paragraph (j) 
of this section, persons who may be enrolled members of another 
federally recognized tribe or tribes may submit a conditional 
relinquishment of membership document in the other tribe or tribes with 
their application forms. A conditional relinquishment of membership 
document in the other tribe or tribes with their application forms. A 
conditional relinquishment will be accepted by the Superintendent only 
if it is executed by the person himself or herself unless the person is 
legally incompetent, in which case the legal guardian and only the legal 
guardian may execute the conditional relinquishment document. In the 
case of minors, only the parent or legal guardian may execute a 
conditional relinquishment document.
    (k)-(q) [Reserved]
    (r) Mdewakanton and Wahpakoota Tribe of Sioux Indians. (1) All 
lineal descendants of the Mdewakanton and Wahpakoota Tribe of Sioux 
Indians who were born on or prior to and were living on October 25, 
1972, whose names or the name of a lineal ancestor appears on any 
available records and rolls acceptable to the Secretary of the Interior 
and who are not members of the Flandreau Santee Sioux Tribe of South 
Dakota, the Santee Sioux Tribe of Nebraska, the Lower Sioux Indian 
Community at Morton, Minn., the Prairie Island Indian Community at 
Welch, Minn., or the Shakopee Mdewakanton Sioux Community of Minnesota 
shall be entitled to be enrolled under title I, section 101(b) of the 
act of October 25, 1972 (86 Stat. 1168), to share in the distribution of 
funds derived from a judgment awarded the Mississippi Sioux Indians.
    (2) Applications for enrollment must have been filed with the 
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main 
Street, Aberdeen, S. Dak. 57401, and must have been received no later 
than November 1, 1973. Applications received after that date will be 
denied for failure to file in time regardless of whether the applicant 
otherwise meets the requirements for enrollment.
    (3) Each application for enrollment with any of the tribes named in 
paragraph (r)(1) of this section which may be rejected by the tribes 
shall be reviewed by the Director to determine whether the applicant 
meets the requirements for enrollment as a descendant of the Mdewakanton 
and Wahpakoota Tribe of Sioux Indians under paragraph (r)(1) of this 
section. Each rejection notice issued by the tribes shall contain a 
statement to the effect that the application is being given such review.

[[Page 231]]

    (s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) Persons 
meeting the criteria in this paragraph are entitled to enroll under 25 
U.S.C. 1300d-3(b) to share in the distribution of certain funds derived 
from a judgment awarded to the Mississippi Sioux Indians. To be eligible 
a person must:
    (i) Be a lineal descendent of the Sisseton and Wahpeton Mississippi 
Sioux Tribe;
    (A) Those individuals who applied for enrollment before January 1, 
1998, and whose applications were approved by the Aberdeen Area Director 
before that same date, are deemed to appear in records and rolls 
acceptable to the Secretary or have a lineal ancestor whose name appears 
in these records;
    (B) Those individuals who apply for enrollment after January 1, 
1998, or whose application was not approved by the Aberdeen Area 
Director before that same date, must be able to trace ancestry to a 
specific Sisseton or Wahpeton Mississippi Sioux Tribe lineal ancestor 
who was listed on:
    (1) The 1909 Sisseton and Wahpeton annuity roll;
    (2) The list of Sisseton and Wahpeton Sioux prisoners convicted for 
participating in the outbreak referred to as the ``1862 Minnesota 
Outbreak'';
    (3) The list of Sioux scouts, soldiers, and heirs identified as 
Sisseton and Wahpeton Sioux on the roll prepared under the Act of March 
3, 1891 (26 Stat. 989 et seq., Chapter 543); or
    (4) Any other Sisseton or Wahpeton payment or census roll that 
preceded a roll referred to in paragraphs (s)(1)(i)(B)(1), (2), or (3) 
of this section.
    (ii) Be living on October 25, 1972;
    (iii) Be a citizen of the United States;
    (iv) Not be listed on the membership rolls for the following tribes:
    (A) The Flandreau Santee Sioux Tribe of South Dakota;
    (B) The Santee Sioux Tribe of Nebraska;
    (C) The Lower Sioux Indian Community at Morton, Minnesota;
    (D) The Prairie Island Indian Community at Welch, Minnesota;
    (E) The Shakopee Mdewakanton Sioux Community of Minnesota;
    (F) The Spirit Lake Tribe (formerly known as the Devils Lake Sioux 
of North Dakota);
    (G) The Sisseton-Wahpeton Sioux Tribe of South Dakota; or
    (H) The Assiniboine and Sioux Tribes of the Fort Peck Reservation.
    (v) Not be listed on the roll of Mdewakantan and Wahpakoota lineal 
descendants prepared under 25 U.S.C. 1300d-1(b).
    (2) The initial enrollment application period that closed on 
November 1, 1973, is reopened as of May 24, 1999. The application period 
will remain open until further notice.
    (t)-(v) [Reserved]
    (w) Lower Skagit Tribe of Indians. (1) All persons of Lower Skagit 
ancestry born on or prior to and living on February 18, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Lower Skagit Tribe in Indian Claims Commission docket 294. 
Proof of Upper Skagit ancestry will not be acceptable as proof of Lower 
Skagit ancestry.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 88201, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (x) Kikiallus Tribe of Indians. (1) All persons of Kikiallus 
ancestry born on or prior to and living on February 18, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Kikiallus Tribe in Indian Claims Commission docket 263.

[[Page 232]]

    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98021, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (y) Swinomish Tribe of Indians. (1) All persons of Swinomish 
ancestry born on or prior to and living on December 10, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Swinomish Tribe in Indian Claims Commission docket 233.
    (2) Application for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98201, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (z) Samish Tribe of Indians. (1) All persons of Samish ancestry born 
on or prior to and living on December 10, 1975, who are lineal 
descendants of a member of the tribe as it existed in 1859 based on any 
records acceptable to the Secretary, shall be entitled to have their 
names placed on the roll to be prepared and used as the basis to 
distribute the judgment funds awarded the Samish Tribe in Indian Claims 
Commission docket 261.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98201, and must have been received by close 
of business on May 31, 1977. Applicants received after that date will be 
denied for failure to file in time regardless of whether the applicant 
otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.

[50 FR 46430, Nov. 8, 1985, as amended at 53 FR 11272, Apr. 6, 1988; 54 
FR 14193, Apr. 7, 1989; 55 FR 7494, Mar. 2, 1990; 55 FR 41519, Oct. 12, 
1990; 56 FR 10806, Mar. 14, 1991; 64 FR 19898, Apr. 23, 1999]



Sec. 61.5  Notices.

    (a) The Director or Superintendent shall give notice to all 
Directors of the Bureau of Indian Affairs and all Superintendents within 
the jurisdiction of the Director, of the preparation of the roll for 
public display in Bureau field offices. Reasonable efforts shall be made 
to place notices for public display in community buildings, tribal 
buildings, and Indian centers.
    (b) The Director or Superintendent shall, on the basis of available 
residence data, publish, and republish when advisable, notices of the 
preparation of the roll in appropriate locales utilizing media suitable 
to the circumstances.
    (c) The Director or Superintendent shall, when applicable, mail 
notices of the preparation of the roll to previous enrollees or tribal 
members at the last address of record or in the case of tribal members, 
the last address available.
    (d) Notices shall advise of the preparation of the roll and the 
relevant procedures to be followed including the qualifications for 
enrollment and the deadline for filing application forms to be eligible 
for enrollment. The notices shall also state how and where application 
forms may be obtained as well as the name, address, and telephone number 
of a person who may be contacted for further information.



Sec. 61.6  Application forms.

    (a) Application forms to be filed by or for applicants for 
enrollment will be furnished by the Director, Superintendent, or other 
designated persons, upon written or oral request. Each person furnishing 
application forms shall keep a record of the names of individuals to 
whom forms are given, as well

[[Page 233]]

as the control numbers of the forms and the date furnished. Instructions 
for completing and filing applications shall be furnished with each 
form. The form shall indicate prominently the deadline for filing 
application forms.
    (b) Among other information, each application form shall contain:
    (1) Certification as to whether application form is for a natural 
child or an adopted child of the parent through whom eligibility is 
claimed.
    (2) If the application form is filed by a sponsor, the name and 
address of sponsor and relationship to applicant.
    (3) A control number for the purpose of keeping a record of forms 
furnished interested individuals.
    (4) Certification that the information given on the application form 
is true to the best of the knowledge and belief of the person filing the 
application. Criminal penalties are provided by statute for knowingly 
filing false information in such applications (18 U.S.C. 1001).
    (c) Application forms may be filed by sponsors on behalf of other 
persons.
    (d) Every applicant or sponsor shall furnish the applicant's mailing 
address on the application form. Thereafter, the applicant or sponsor 
shall promptly notify the Director or Superintendent of any change in 
address, giving appropriate identification of the application, otherwise 
the mailing address as stated on the form shall be acceptable as the 
address of record for all purposes under the regulations in this part 
61.



Sec. 61.7  Filing of application forms.

    (a) Application forms filed by mail must be postmarked no later than 
midnight on the deadline specified. Where there is no postmark date 
showing on the envelope or the postmark date is illegible, application 
forms mailed from within the United States, including Alaska and Hawaii, 
received more than 15 days and application forms mailed from outside of 
the United States received more than 30 days after the deadline 
specified in the office of the designated Director or Superintendent, 
will be denied for failure to file in time.
    (b) Application forms filed by personal delivery must be received in 
the office of the designated Director or Superintendent no later than 
close of business on the deadline specified.
    (c) If the deadline for filing application forms falls on a 
Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline 
will be the next working day thereafter.
    (d) The provisions of this section shall not apply in the 
preparation of the rolls under paragraphs (r), (s), (w), (x), (y) and 
(z) of Sec. 61.4.



Sec. 61.8  Verification forms.

    If the Director or Superintendent is preparing a roll of Indians by 
adding names of eligible persons to and deleting names of ineligible 
persons from a previously approved roll, and individuals whose names 
appear on the previously approved roll are not required to file 
applications for enrollment, a verification form, to be completed and 
returned, shall be mailed to each previous enrollee using the last 
address of record. The verification form will be used to ascertain the 
previous enrollee's current name and address and that the enrollee is 
living, or if deceased, the enrollee's date of death. Name and/or 
address changes will only be made if the verification form is signed by 
an adult enrollee, if living, or the parent or guardian having legal 
custody of a minor enrollee, or an authorized sponsor. The verification 
form may also be used by any sponsor to notify the Director or 
Superintendent of the date of death of a previous enrollee.



Sec. 61.9  Burden of proof.

    The burden of proof rests upon the applicant or tribal member to 
establish eligibility for enrollment. Documentary evidence such as birth 
certificates, death certificates, baptismal records, copies of probate 
findings, or affidavits, may be used to support claim of eligibility for 
enrollment. Records of the Bureau of Indian Affairs may be used to 
establish eligibility.



Sec. 61.10  Review of applications by tribal authorities.

    (a) If tribal review is applicable, the Director or Superintendent 
shall submit all applications to the Tribal Committee for review and 
recommendations or determinations; except that, in the cases of adopted 
persons where the

[[Page 234]]

Bureau of Indian Affairs has assured confidentiality to obtain the 
information necessary to determine the eligibility for enrollment of the 
individual or has the statutory obligation to maintain the 
confidentiality of the information, the confidential information may not 
be released to the Tribal Committee, but the Director or Superintendent 
shall certify as to the eligibility for enrollment of the individual to 
the Tribal Committee.
    (b) The Tribal Committee shall review all applications and make its 
recommendations or determinations in writing stating the reasons for 
acceptance or rejection for enrollment.
    (c) The Tribal Committee shall return the applications to the 
Director or Superintendent with its recommendations or determinations 
and any additional evidence used in determining eligibility for 
enrollment within 30 days of receipt of the applications by the Tribal 
Committee. The Director or Superintendent may grant the Tribal Committee 
additional time, upon request, for its review.
    (d) Acceptance of an individual for enrollment by the Tribal 
Committee does not insure the individual's eligibility to share in the 
distribution of the judgment funds.



Sec. 61.11  Action by the Director or Superintendent.

    (a) The Director or Superintendent shall consider each application, 
all documentation, and when applicable, tribal recommendations or 
determinations.
    (b) The Director or Superintendent, when tribal recommendations or 
determinations are applicable, shall accept the recommendations or 
determinations of the Tribal Committee unless clearly erroneous.
    (1) If the Director or Superintendent does not accept the tribal 
recommendation or determination, the Tribal Committee shall be notified 
in writing, by certified mail, return receipt requested, or by personal 
delivery, of the action and the reasons therefor.
    (2) The Tribal Committee may appeal the decision of the Director or 
Superintendent not to accept the tribal recommendation or determination. 
Such appeal must be in writing and must be filed pursuant to part 62 of 
this chapter.
    (3) Unless otherwise specified by law or in a tribal governing 
document, the determination of the Director or Superintendent shall only 
affect the individual's eligibility to share in the distribution of 
judgment funds.
    (c) The Director or Superintendent, upon determining an individual's 
eligibility, shall notify the individual, parent or guardian having 
legal custody of a minor, or sponsor, as applicable, in writing of the 
decision. If an individual files applications on behalf of more than one 
person, one notice of eligibility or adverse action may be addressed to 
the person who filed the applications. However, the notice must list the 
name of each person involved. Where an individual is represented by a 
sponsor, notification of the sponsor of eligibility or adverse action 
shall be considered to be notification of the individual.
    (1) If the Director or Superintendent determines that the individual 
is eligible, the name of the individual shall be placed on the roll.
    (2) If the Director or Superintendent determines that the individual 
is not eligible, he/she shall notify the individual's parent or guardian 
having legal custody of a minor, or sponsor, as applicable, in writing 
by certified mail, to be received by the addressee only, return receipt 
requested, and shall explain fully the reasons for the adverse action 
and the right to appeal to the Secretary. If correspondence is sent out 
of the United States, registered mail will be used. If a certified or 
registered notice is returned as ``Unclaimed'' the Director or 
Superintendent shall remail the notice by regular mail together with an 
acknowledgment of receipt form to be completed by the addressee and 
returned to the Director or Superintendent. If the acknowledgment of 
receipt is not returned, computation of the appeal period shall begin on 
the date the notice was remailed. Certified or registered notices 
returned for any reason other than ``Unclaimed'' need not be remailed.
    (d) Except as provided in paragraph (c)(2) of this section, a notice 
of adverse action is considered to have been

[[Page 235]]

made and computation of the appeal period shall begin on the earliest of 
the following dates:
    (1) Of delivery indicated on the return receipt;
    (2) Of acknowledgment of receipt;
    (3) Of personal delivery; or
    (4) Of the return by the post office of an undelivered certified or 
registered letter.
    (e) In all cases where an applicant is represented by an attorney, 
the attorney shall be recognized as fully controlling the application on 
behalf of the applicant and service on the attorney of any document 
relating to the application shall be considered to be service on the 
applicant. Where an applicant is represented by more than one attorney, 
service upon one of the attorneys shall be sufficient.
    (f) To avoid hardship or gross injustice, the Director or 
Superintendent may waive technical deficiencies in applications or other 
submissions. Failure to file by the deadline does not constitute a 
technical deficiency.



Sec. 61.12  Appeals.

    Appeals from or on behalf of tribal members or applicants who have 
been denied enrollment must be in writing and must be filed pursuant to 
part 62 of this chapter. When the appeal is on behalf of more than one 
person, the name of each person must be listed in the appeal. A copy of 
part 62 of this chapter shall be furnished with each notice of adverse 
action.



Sec. 61.13  Decision of the Assistant Secretary on appeals.

    The decision of the Assistant Secretary on an appeal shall be final 
and conclusive and written notice of the decision shall be given the 
individual, parent or guardian having legal custody of a minor, or 
sponsor, as applicable. The name of any person whose appeal has been 
sustained will be added to the roll. Unless otherwise specified by law 
or in a tribal governing document, the determination of the Assistant 
Secretary shall only affect the individual's eligibility to share in the 
distribution of the judgment funds.



Sec. 61.14  Preparation, certification and approval of the roll.

    (a) The staff officer shall prepare a minimum of five copies of the 
roll of those persons determined to be eligible for enrollment. The roll 
shall contain for each person a roll number, name, address, sex, date of 
birth, date of death, when applicable, and when required by law, degree 
of Indian blood, and, in the remarks column, when applicable, the basic 
roll number, date of the basic roll, name and relationship of ancestor 
on the basic roll through whom eligibility was established.
    (b) A certificate shall be attached to the roll by the staff officer 
or Superintendent certifying that to the best of his/her knowledge and 
belief the roll contains only the names of those persons who were 
determined to meet the qualifications for enrollment.
    (c) The Director shall approve the roll.



Sec. 61.15  Special instructions.

    To facilitate the work of the Director or Superintendent, the 
Assistant Secretary may issue special instructions not inconsistent with 
the regulations in this part 61.



PART 62_ENROLLMENT APPEALS--Table of Contents




Sec.
62.1 Definitions.
62.2 Purpose.
62.3 Information collection.
62.4 Who may appeal.
62.5 An appeal.
62.6 Filing of an appeal.
62.7 Burden of proof.
62.8 Advising the tribal committee.
62.9 Action by the Superintendent.
62.10 Action by the Director.
62.11 Action by the Assistant Secretary.
62.12 Special instructions.

    Authority: 5 U.S.C. 301, 25 U.S.C. 2 and 9.

    Source: 52 FR 30160, Aug. 13, 1987, unless otherwise noted.



Sec. 62.1  Definitions.

    As used in these regulations:
    Assistant Secretary means the Assistant Secretary of the Interior 
for Indian Affairs or an authorized representative acting under 
delegated authority.

[[Page 236]]

    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative acting under delegated authority.
    Department means the Department of the Interior.
    Director means the Area Director of the Bureau of Indian Affairs 
area office which has administrative jurisdiction over the local field 
office responsible for administering the affairs of a tribe, band, or 
group of Indians or an authorized representative acting under delegated 
authority.
    Secretary means the Secretary of the Interior or an authorized 
representative acting under delegate authority.
    Sponsor means any authorized person, including an attorney, who 
files an appeal on behalf of another person.
    Superintendent means the official or other designated representative 
of the Bureau of Indian Affairs in charge of the field office which has 
immediate administrative responsibility with respect to the affairs of a 
tribe, band, or group of Indians or an authorized representative acting 
under delegated authority.
    Tribal committee means the body of a federally recognized tribal 
entity vested with final authority to act on enrollment matters.
    Tribal governing document means the written organizational statement 
governing a tribe, band or group of Indians and/or any valid document, 
enrollment ordinance or resolution enacted thereunder.
    Tribal member means a person who meets the requirements for 
enrollment in a tribal entity and has been duly enrolled.



Sec. 62.2  Purpose.

    (a) The regulations in this part are to provide procedures for the 
filing and processing of appeals from adverse enrollment actions by 
Bureau officials.
    (b) The regulations in this part are not applicable and do not 
provide procedures for the filing of appeals from adverse enrollment 
actions by tribal committees, unless:
    (1) The adverse enrollment action is incident to the preparation of 
a tribal roll subject to Secretarial approval; or
    (2) An appeal to the Secretary is provided for in the tribal 
governing document.



Sec. 62.3  Information collection.

    In accordance with the Office of Management and Budget regulations 
contained in 5 CFR 1320.3, approval of the information collection 
requirements contained in this part is not required.



Sec. 62.4  Who may appeal.

    (a) A person who is the subject of an adverse enrollment action may 
file or have filed on his/her behalf an appeal. An adverse enrollment 
action is:
    (1) The rejection of an application for enrollment by a Bureau 
official incident to the preparation of a roll for Secretarial approval;
    (2) The removal of a name from a tribal roll by a Bureau official 
incident to review of the roll for Secretarial approval;
    (3) The rejection of an application for enrollment or the 
disenrollment of a tribal member by a tribal committee when the tribal 
governing document provides for an appeal of the action to the 
Secretary;
    (4) The change in degree of Indian blood by a tribal committee which 
affects a tribal member when the tribal governing document provides for 
an appeal of the action to the Secretary;
    (5) The change in degree of Indian blood by a Bureau official which 
affects an individual; and
    (6) The certification of degree of Indian blood by a Bureau official 
which affects an individual.
    (b) A tribal committee may file an appeal as provided for in Sec. 
61.11 of this chapter.
    (c) A sponsor may file an appeal on behalf of another person who is 
subject to an adverse enrollment action.



Sec. 62.5  An appeal.

    (a) An appeal must be in writing and must be filed with the Bureau 
official designated in the notification of an adverse enrollment action, 
or in the absence of a designated official, with the Bureau official who 
issued the notification of an adverse enrollment action;

[[Page 237]]

or when the notification of an adverse action is made by a tribal 
committee with the Superintendent.
    (b) An appeal may be on behalf of more than one person. However, the 
name of each appellant must be listed in the appeal.
    (c) An appeal filed by mail or filed by personal delivery must be 
received in the office of the designated Bureau official or of the 
Bureau official who issued the notification of an adverse enrollment 
action by close of business within 30 days of the notification of an 
adverse enrollment action, except when the appeal is mailed from outside 
the United States, in which case the appeal must be received by the 
close of business within 60 days of the notification of an adverse 
enrollment action.
    (d) The appellant or sponsor shall furnish the appellant's mailing 
address in the appeal. Thereafter, the appellant or sponsor shall 
promptly notify the Bureau official with whom the appeal was filed of 
any change of address, otherwise the address furnished in the appeal 
shall be the address of record.
    (e) An appellant or sponsor may request additional time to submit 
supporting evidence. A period considered reasonable for such submissions 
may be granted by the Bureau official with whom the appeal is filed. 
However, no additional time will be granted for the filing of the 
appeal.
    (f) In all cases where an appellant is represented by a sponsor, the 
sponsor shall be recognized as fully controlling the appeal on behalf of 
the appellant. Service of any document relating to the appeal shall be 
on the sponsor and shall be considered to be service on the appellant. 
Where an appellant is represented by more than one sponsor, service upon 
one of the sponsors shall be sufficient.



Sec. 62.6  Filing of an appeal.

    (a) Except as provided in paragraph (b) of this section, a 
notification of an adverse enrollment action will be mailed to the 
address of record or the last available address and will be considered 
to have been made and computation of the appeal period shall begin on:
    (1) The date of delivery indicated on the return receipt when notice 
of the adverse enrollment action has been sent by certified mail, return 
receipt requested; or
    (2) Ten (10) days after the date of the decision letter to the 
individual when notice of the adverse enrollment action has not been 
sent by certified mail return receipt requested and the letter has not 
been returned by the post office; or
    (3) The date the letter is returned by the post office as 
undelivered whether the notice of the adverse enrollment action has been 
sent by certified mail return receipt requested or by regular mail.
    (b) When notification of an adverse enrollment action is under the 
regulations contained in part 61 of this chapter, computation of the 
appeal period shall be in accordance with Sec. 61.11.
    (c) In computing the 30 or 60 day appeal period, the count begins 
with the day following the notification of an adverse enrollment action 
and continues for 30 or 60 calendar days. If the 30th or 60th day falls 
on a Saturday, Sunday, legal holiday, or other nonbusiness day, the 
appeal period will end on the first working day thereafter.



Sec. 62.7  Burden of proof.

    (a) The burden of proof is on the appellant or sponsor. The appeal 
should include any supporting evidence not previously furnished and may 
include a copy or reference to any Bureau or tribal records having a 
direct bearing on the action.
    (b) Criminal penalties are provided by statute for knowingly filing 
false or fraudulent information to an agency of the U.S. government (18 
U.S.C. 1001).



Sec. 62.8  Advising the tribal committee.

    Whenever applicable, the Superintendent or Director shall notify the 
tribal committee of the receipt of the appeal and shall give the tribal 
committee the opportunity to examine the appeal and to present such 
evidence as it may consider pertinent to the action being appealed. The 
tribal committee shall have not to exceed 30 days from receipt of 
notification of the appeal in which to present in writing such 
statements as if may deem pertinent, supported by any tribal records 
which

[[Page 238]]

have a bearing on the case. The Director or Superintendent may grant the 
tribal committee additional time, upon request, for its review.



Sec. 62.9  Action by the Superintendent.

    When an appeal is from an adverse enrollment action taken by a 
Superintendent or tribal committee, the Superintendent shall acknowledge 
in writing receipt of the appeal and shall forward the appeal to the 
Director together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations on the appeal.



Sec. 62.10  Action by the Director.

    (a) Except as provided in paragraph (c) of this section, when an 
appeal is from an adverse enrollment action taken by a Superintendent or 
tribal committee, the Director will consider the record as presented 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision. The Director shall make a decision on the 
appeal which shall be final for the Department and which shall so state 
in the decision. The appellant or sponsor will be notified in writing of 
the decision. Provided that, the Director may waive his/her authority to 
make a final decision and forward the appeal to the Assistant Secretary 
for final action.
    (b) When an appeal is from an adverse enrollment action taken by a 
Director, the Director shall acknowledge in writing receipt of the 
appeal and shall forward the appeal to the Assistant Secretary for final 
action together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations.
    (c) The Director shall forward the appeal to the Assistant Secretary 
for final action together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations when the adverse enrollment action which is being 
appealed is either:
    (1) The change in degree of Indian blood by a tribal committee which 
affects a tribal member and the tribal governing document provides for 
an appeal of the action to the Secretary; or
    (2) The change in degree of Indian blood by a Bureau official which 
affects an individual.



Sec. 62.11  Action by the Assistant Secretary.

    The Assistant Secretary will consider the record as presented, 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision. The Assistant Secretary shall make a 
decision on the appeal which shall be final for the Department and which 
shall so state in the decision. The appellant or sponsor will be 
notified in writing of the decision.



Sec. 62.12  Special instructions.

    To facilitate the work of the Director, the Assistant Secretary may 
issue special instructions not inconsistent with the regulations in this 
part 62.



PART 63_INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION--Table 
of Contents




               Subpart A_Purpose, Policy, and Definitions

Sec.
63.1 Purpose.
63.2 Policy.
63.3 Definitions.
63.4 Information collection.
63.5-63.9 [Reserved]

 Subpart B_Minimum Standards of Character and Suitability for Employment

63.10 Purpose.
63.11 What is a determination of suitability for employment and 
          efficiency of service?
63.12 What are minimum standards of character?
63.13 What does the Indian Child Protection and Family Violence 
          Prevention Act require of the Bureau of Indian Affairs and 
          Indian tribes or tribal organizations receiving funds under 
          the Indian Self-Determination and Education Assistance Act or 
          the Tribally Controlled Schools Act?
63.14 What positions require a background investigation and 
          determination of suitability for employment or retention?

[[Page 239]]

63.15 What questions should an employer ask?
63.16 Who conducts the background investigation and prepares the 
          determination of suitability for employment?
63.17 How does an employer determine suitability for employment and 
          efficiency of service?
63.18 Are the requirements for Bureau of Indian Affairs adjudication 
          different from the requirements for Indian tribes and tribal 
          organizations?
63.19 When should an employer deny employment or dismiss an employee?
63.20 What should an employer do if an individual has been charged with 
          an offense but the charge is pending or no disposition has 
          been made by a court?
63.21 Are there other factors that may disqualify an applicant, 
          volunteer or employee from placement in a position which 
          involves regular contact with or control over Indian children?
63.22 Can an employer certify an individual with a prior conviction or 
          substantiated misconduct as suitable for employment?
63.23 What rights does an applicant, volunteer or employee have during 
          this process?
63.24 What protections must employers provide to applicants, volunteers 
          and employees?
63.25-63.29 [Reserved]

Subpart C_Indian Child Protection and Family Violence Prevention Program

63.30 What is the purpose of the Indian child protection and family 
          violence prevention program?
63.31 Can both the Bureau of Indian Affairs and tribes operate Indian 
          child protection and family violence prevention programs?
63.32 Under what authority are Indian child protection and family 
          violence prevention program funds awarded?
63.33 What must an application for Indian child protection and family 
          violence prevention program funds include?
63.34 How are Indian child protection and family violence prevention 
          program funds distributed?
63.35 How may Indian child protection and family violence prevention 
          program funds be used?
63.36 What are the special requirements for Indian child protection and 
          family violence prevention programs?
63.37-63.50 [Reserved]

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.; 42 
U.S.C. 13041.

    Source: 61 FR 32274, June 21, 1996, unless otherwise noted.



               Subpart A_Purpose, Policy, and Definitions



Sec. 63.1  Purpose.

    The purpose of these regulations is to prescribe minimum standards 
of character and suitability for employment for individuals whose duties 
and responsibilities allow them regular contact with or control over 
Indian children, and to establish the method for distribution of funds 
to support tribally operated programs to protect Indian children and 
reduce the incidents of family violence in Indian country as authorized 
by the Indian Child Protection and Family Violence Prevention Act of 
1990, Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201 3211.



Sec. 63.2  Policy.

    In enacting the Indian Child Protection and Family Violence 
Prevention Act, the Congress recognized there is no resource more vital 
to the continued existence and integrity of Indian tribes than their 
children and that the United States has a direct interest, as trustee, 
in protecting Indian children who are members of, or are eligible for 
membership in, an Indian tribe. The minimum standards of character and 
suitability of employment for individuals ensure that Indian children 
are protected, and the Indian child protection and family violence 
prevention programs will emphasize the unique values of Indian culture 
and community involvement in the prevention and treatment of child 
abuse, child neglect and family violence.



Sec. 63.3  Definitions.

    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior;
    Child means an individual who is not married, and has not attained 
18 years of age.
    Child abuse includes but is not limited to any case in which a child 
is dead, or exhibits evidence of skin bruising, bleeding, malnutrition, 
failure to thrive, burns, fracture of any bone, subdural hematoma, or 
soft tissue swelling, and this condition is not justifiably explained or 
may not be the product of an accidental occurrence;

[[Page 240]]

and any case in which a child is subjected to sexual assault, sexual 
molestation, sexual exploitation, sexual contact, or prostitution.
    Child neglect includes but is not limited to, negligent treatment or 
maltreatment of a child by a person, including a person responsible for 
the child's welfare, under circumstances which indicate that the child's 
health or welfare is harmed or threatened.
    Crimes against persons are defined by local law. Adjudicating 
officers must contact local law enforcement agencies to determine if the 
crime for which an applicant or employee was found guilty (or entered a 
plea of nolo contendere or guilty) is defined as a crime against 
persons.
    Family violence means any act, or threatened act, of violence, 
including any forceful detention of an individual, which results, or 
threatens to result, in physical or mental injury, and is committed by 
an individual against another individual to whom such person is, or was, 
related by blood or marriage or otherwise legally related, or with whom 
such person is, or was, residing, or with whom such person has, or had, 
intimate or continuous social contact and household access.
    Indian means any individual who is a member of an Indian tribe.
    Indian child means any unmarried person who is under age eighteen 
and is either a member of an Indian tribe or eligible for membership in 
an Indian tribe and is the biological child of a member of an Indian 
tribe.
    Indian country means:
    (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through the 
reservation;
    (2) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof; and,
    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same. Unless 
otherwise indicated, the term ``Indian country'' is used instead of 
``Indian reservation'' for consistency.
    Indian reservation means any Indian reservation, public domain 
Indian allotment, former Indian reservation in Oklahoma, or lands held 
by incorporated Native groups, regional corporations, or village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act (43 U.S.C. 1601 et seq.).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    Inter-tribal consortium means a partnership between an Indian tribe 
or tribal organization of an Indian tribe, and one or more Indian tribes 
or tribal organizations of one or more Indian tribes.
    Local child protective services agency is an agency of the Federal 
Government, state, or Indian tribe that has the primary responsibility 
for child protection on any Indian reservation, or within any community 
in Indian country.
    Local law enforcement agency is that Federal, tribal, or state law 
enforcement agency that has primary responsibility for the investigation 
of an instance of alleged child abuse within the involved Indian 
jurisdiction.
    Must is used in place of shall and indicates a mandatory or 
imperative act or requirement.
    Person responsible for a child's welfare is any person who has legal 
or other recognized duty for the care and safety of a child, and may 
include any employee or volunteer of a children's residential facility, 
and any person providing out-of-home care, education, or services to 
children.
    Related assistance means the counseling and self-help services for 
abusers, victims, and dependents in family violence situations; 
referrals for appropriate health-care services (including alcohol and 
drug abuse treatment); and may include food, clothing, child care, 
transportation, and emergency services

[[Page 241]]

for victims of family violence and their dependents.
    Secretary means the Secretary of the Interior.
    Service means the Indian Health Service of the Department of Health 
and Human Services.
    Shelter means the temporary refuge and related assistance in 
compliance with applicable Federal and tribal laws and regulations 
governing the provision, on a regular basis, of shelter, safe homes, 
meals, and related assistance to victims of family violence or their 
dependents.
    Tribal organization means the recognized governing body of any 
Indian tribe; any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities: Provided, That 
in any case where a contract is let, a grant is awarded, or funding 
agreement is made to an organization to perform services benefitting 
more than one Indian tribe, the approval of each such Indian tribe must 
be a prerequisite to the letting or making of such contract, grant, or 
funding agreement.



Sec. 63.4  Information collection.

    The information collection requirement contained in Sec. 63.15, 
Sec. 63.33 and Sec. 63.34 will be approved by the Office of Management 
and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), 
and assigned clearance number ----------.



Sec. Sec. 63.5-63.9  [Reserved]



 Subpart B_Minimum Standards of Character and Suitability for Employment



Sec. 63.10  Purpose.

    The purpose of this part is to establish:
    (a) Procedures for determining suitability for employment and 
efficiency of service as mandated by the Indian Child Protection and 
Family Violence Prevention Act; and
    (b) Minimum standards of character to ensure that individuals having 
regular contact with or control over Indian children have not been 
convicted of certain types of crimes or acted in a manner that placed 
others at risk or raised questions about their trustworthiness.



Sec. 63.11  What is a determination of suitability for employment and 
efficiency of service?

    (a) Determinations of suitability measure the fitness or eligibility 
of an applicant, volunteer, or employee for a particular position. 
Suitability for employment does not evaluate an applicant's education, 
skills, knowledge, experience, etc. Rather, it requires that the 
employer investigate the background of each applicant, volunteer, and 
employee to:
    (1) Determine the degree of risk the applicant, volunteer, or 
employee brings to the position; and
    (2) Certify that the applicant's, volunteer's, or employee's past 
conduct would not interfere with his/her performance of duties, nor 
would it create an immediate or long-term risk for any Indian child.
    (b) Efficiency of service is the employer's verification that the 
applicant or employee is able to perform the duties and responsibilities 
of the position, and his/her presence on the job will not inhibit other 
employees or the agency from performing their functions.



Sec. 63.12  What are minimum standards of character?

    Minimum standards of character are established by an employer and 
refer to identifiable character traits and past conduct. An employer may 
use character traits and past conduct to determine whether an applicant, 
volunteer, or employee can effectively perform the duties of a 
particular position without risk of harm to others. Minimum standards of 
character ensure that no applicant, volunteer, or employee will be 
placed in a position with regular contact with or control over Indian 
children if he/she has been found guilty of or entered a plea of nolo 
contendere or guilty to any offense

[[Page 242]]

under Federal, state, or tribal law involving crimes of violence, sexual 
assault, sexual molestation, sexual exploitation, sexual contact or 
prostitution, or crimes against persons.



Sec. 63.13  What does the Indian Child Protection and Family Violence Prevention Act require 

of the Bureau of Indian Affairs and Indian tribes or tribal organizations receiving funds under 
the Indian Self-Determination and Education Assistance Act or the Tribally Controlled Schools Act?

    (a) The Bureau of Indian Affairs must compile a list of all 
authorized positions which involve regular contact with or control over 
Indian children; investigate the character of each individual who is 
employed, or is being considered for employment; and, prescribe minimum 
standards of character which each individual must meet to be appointed 
to such positions.
    (b) All Indian tribes or tribal organizations receiving funds under 
the authority of the Indian Self-Determination and Education Assistance 
Act or the Tribally Controlled Schools Act of 1988 must conduct a 
background investigation for individuals whose duties and 
responsibilities would allow them regular contact with or control over 
Indian children, and employ only individuals who meet standards of 
character that are no less stringent than those prescribed for the 
Bureau of Indian Affairs.



Sec. 63.14  What positions require a background investigation and 
determination of suitability for employment or retention?

    All positions that allow an applicant, employee, or volunteer 
regular contact with or control over Indian children are subject to a 
background investigation and determination of suitability for 
employment.



Sec. 63.15  What questions should an employer ask?

    Employment applications must:
    (a) Ask whether the applicant, volunteer, or employee has been 
arrested or convicted of a crime involving a child, violence, sexual 
assault, sexual molestation, sexual exploitation, sexual contact or 
prostitution, or crimes against persons;
    (b) Ask the disposition of the arrest or charge;
    (c) Require that an applicant, volunteer or employee sign, under 
penalty of perjury, a statement verifying the truth of all information 
provided in the employment application; and
    (d) Inform the applicant, volunteer or employee that a criminal 
history record check is a condition of employment and require the 
applicant, volunteer or employee to consent, in writing, to a record 
check.



Sec. 63.16  Who conducts the background investigation and prepares 
the determination of suitability for employment?

    (a) The Bureau of Indian Affairs must use the United States Office 
of Personnel Management (OPM) to conduct background investigations for 
Federal employees. The BIA must designate qualified security personnel 
to adjudicate the results of background investigations.
    (b) Indian tribes and tribal organizations may conduct their own 
background investigations, contract with private firms, or request the 
OPM to conduct an investigation. The investigation should cover the past 
five years of the individual's employment, education, etc.



Sec. 63.17  How does an employer determine suitability for employment 
and efficiency of service?

    (a) Adjudication is the process employers use to determine 
suitability for employment and efficiency of service. The adjudication 
process protects the interests of the employer and the rights of 
applicants and employees. Adjudication requires uniform evaluation to 
ensure fair and consistent judgment.
    (b) Each case is judged on its own merits. All available 
information, both favorable and unfavorable, must be considered and 
assessed in terms of accuracy, completeness, relevance, seriousness, 
overall significance, and how similar cases have been handled in the 
past.
    (c) An adjudicating official conducts the adjudication. Each Federal 
agency, Indian tribe, or tribal organization must appoint an 
adjudicating official,

[[Page 243]]

who must first have been the subject of a favorable background 
investigation.
    (1) Indian tribes and tribal organizations must ensure that persons 
charged with the responsibility for adjudicating employee background 
investigations are well-qualified and trained.
    (2) Indian tribes and tribal organizations should also ensure that 
individuals who are not trained to adjudicate these types of 
investigations are supervised by someone who is experienced and receive 
the training necessary to perform the task.
    (d) Each adjudicating official must be thoroughly familiar with all 
laws, regulations, and criteria involved in making a determination for 
suitability.
    (e) The adjudicating official must review the background 
investigation to determine the character, reputation, and 
trustworthiness of the individual. At a minimum, the adjudicating 
official must:
    (1) Review each security investigation form and employment 
application and compare the information provided;
    (2) Review the results of written record searches requested from 
local law enforcement agencies, former employers, former supervisors, 
employment references, and schools; and
    (3) Review the results of the fingerprint charts maintained by the 
Federal Bureau of Investigation or other law enforcement information 
maintained by other agencies.
    (f) Relevancy is a key objective in evaluating investigative data. 
The adjudicating official must consider prior conduct in light of:
    (1) The nature and seriousness of the conduct in question;
    (2) The recency and circumstances surrounding the conduct in 
question;
    (3) The age of the individual at the time of the incident;
    (4) Societal conditions that may have contributed to the nature of 
the conduct;
    (5) The probability that the individual will continue the type of 
behavior in question; and,
    (6) The individual's commitment to rehabilitation and a change in 
the behavior in question.



Sec. 63.18  Are the requirements for Bureau of Indian Affairs adjudication 
different from the requirements for Indian tribes and tribal organizations?

    Yes.
    (a) In addition to the minimum requirements for background 
investigations found in Sec. 63.12, Bureau of Indian Affairs' 
adjudicating officials must review the OPM National Agency Check and 
Inquiries which includes a search of the OPM Security/Suitability 
Investigations Index (SII) and the Defense Clearance and Investigations 
Index (DCII), and any additional standards which may be established by 
the BIA.
    (b) All Bureau of Indian Affairs employees who have regular contact 
with or control over Indian children must be reinvestigated every five 
years during their employment in that or any other position which allows 
regular contact with or control over Indian children.
    (c) Indian tribes and tribal organizations may adopt these 
additional requirements but are not mandated to do so by law.



Sec. 63.19  When should an employer deny employment or dismiss an 
employee?

    (a) An employer must deny employment or dismiss an employee when an 
individual has been found guilty of or entered a plea of guilty or nolo 
contendere to any Federal, state or tribal offense involving a crime of 
violence, sexual assault, sexual molestation, child exploitation, sexual 
contact, prostitution, or crimes against persons.
    (b) An employer may deny employment or dismiss an employee when an 
individual has been convicted of an offense involving a child victim, a 
sex crime, or a drug felony.

[61 FR 32274, June 21, 1996, as amended at 64 FR 66771, Nov. 30, 1999]



Sec. 63.20  What should an employer do if an individual has been charged 
with an offense but the charge is pending or no disposition has been made 
by a court?

    (a) The employer may deny the applicant employment until the charge 
has been resolved.

[[Page 244]]

    (b) The employer may deny the employee any on-the-job contact with 
children until the charge is resolved.
    (c) The employer may detail or reassign the employee to other duties 
that do not involve contact with children.
    (d) The employer may place the employee on administrative leave 
until the court has disposed of the charge.



Sec. 63.21  Are there other factors that may disqualify an applicant, 
volunteer or employee from placement in a position which involves regular 
contact with or control over Indian children?

    Yes.
    (a) An applicant, volunteer, or employee may be disqualified from 
consideration or continuing employment if it is found that:
    (1) The individual's misconduct or negligence interfered with or 
affected a current or prior employer's performance of duties and 
responsibilities.
    (2) The individual's criminal or dishonest conduct affected the 
individual's performance or the performance of others.
    (3) The individual made an intentional false statement, deception or 
fraud on an examination or in obtaining employment.
    (4) The individual has refused to furnish testimony or cooperate 
with an investigation.
    (5) The individual's alcohol or substance abuse is of a nature and 
duration that suggests the individual could not perform the duties of 
the position or would directly threaten the property or safety of 
others.
    (6) The individual has illegally used narcotics, drugs, or other 
controlled substances without evidence of substantial rehabilitation.
    (7) The individual knowingly and willfully engaged in an act or 
activities designed to disrupt government programs.
    (b) An individual must be disqualified for Federal employment if any 
statutory or regulatory provision would prevent his/her lawful 
employment.



Sec. 63.22  Can an employer certify an individual with a prior 
conviction or substantiated misconduct as suitable for employment?

    (a) The Bureau of Indian Affairs must use Federal adjudicative 
standards which allow the BIA to certify that an individual is suitable 
for employment in a position that does not involve regular contact with 
or control over Indian children. The adjudicating officer must determine 
that the individual's prior conduct will not interfere with the 
performance of duties and will not create a potential for risk to the 
safety and well-being of Indian children.
    (b) Indian tribes and tribal organizations must identify those 
positions which permit contact with or control over Indian children and 
establish standards to determine suitability for employment. Those 
standards should then be used to determine whether an individual is 
suitable for employment in a position that permits contact with or 
control over Indian children. If not, the individual may only be placed 
in a position that does not permit contact with or control over Indian 
children.



Sec. 63.23  What rights does an applicant, volunteer or employee have 
during this process?

    (a) The applicant, volunteer, or employee must be provided an 
opportunity to explain, deny, or refute unfavorable and incorrect 
information gathered in an investigation, before the adjudication is 
final. The applicant, volunteer, or employee should receive a written 
summary of all derogatory information and be informed of the process for 
explaining, denying, or refuting unfavorable information.
    (b) Employers and adjudicating officials must not release the actual 
background investigative report to an applicant, volunteer, or employee. 
However, they may issue a written summary of the derogatory information.
    (c) The applicant, volunteer, or employee who is the subject of a 
background investigation may obtain a copy of the reports from the 
originating (Federal, state, or other tribal) agency and challenge the 
accuracy and completeness of any information maintained by that agency.

[[Page 245]]

    (d) The results of an investigation cannot be used for any purpose 
other than to determine suitability for employment in a position that 
involves regular contact with or control over Indian children.
    (e) Investigative reports contain information of a highly personal 
nature and should be maintained confidentially and secured in locked 
files. Investigative reports should be seen only by those officials who 
in performing their official duties need to know the information 
contained in the report.



Sec. 63.24  What protections must employers provide to applicants, 
volunteers and employees?

    (a) Indian tribes and tribal organizations must comply with the 
privacy requirements of any Federal, state, or other tribal agency 
providing background investigations. Indian tribes and tribal 
organizations must establish and comply with personnel policies that 
safeguard information derived from background investigations.
    (b) The Bureau of Indian Affairs must comply with all policies, 
procedures, criteria, and guidance contained in the Bureau of Indian 
Affairs Manual or other appropriate guidelines.
    (c) Federal agencies exercising authority under this part by 
delegation from OPM must comply with OPM policies, procedures, criteria, 
and guidance.



Sec. Sec. 63.25-63.29  [Reserved]



Subpart C_Indian Child Protection and Family Violence Prevention Program



Sec. 63.30  What is the purpose of the Indian child protection and family 
violence prevention program?

    The purpose of this program is to develop tribally-operated programs 
to protect Indian children and reduce the incidence of family violence 
on Indian reservations.



Sec. 63.31  Can both the Bureau of Indian Affairs and tribes operate Indian 
child protection and family violence prevention programs?

    Yes. However, tribes are encouraged to develop and operate programs 
to protect Indian children and reduce the incidence of family violence 
in Indian country.



Sec. 63.32  Under what authority are Indian child protection and family 
violence prevention program funds awarded?

    The Secretary is authorized to enter into contracts with Indian 
tribes, tribal organizations, or tribal consortia pursuant to the Indian 
Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 
450 et seq., for the development and establishment of Indian child 
protection and family violence prevention programs. This includes 
compacting with tribes under the Self-Governance program procedures.



Sec. 63.33  What must an application for Indian child protection and 
family violence prevention program funds include?

    In addition to the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450 et seq., contracting 
requirements, each application must provide the following information:
    (a) The name and address of the agency or official to be responsible 
for the investigation of reported cases of child abuse and child 
neglect, the treatment and prevention of incidents of family violence, 
and the provision of immediate shelter and related assistance for 
victims of family violence and their dependents;
    (b) Projected service population of the program;
    (c) Projected service area of the program; and
    (d) Projected number of cases per month.



Sec. 63.34  How are Indian child protection and family violence 
prevention program funds distributed?

    (a) Funds will be distributed, subject to the availability of 
appropriations, and:
    (1) In any fiscal year that the appropriation exceeds 50 percent of 
the level of funding authorized for this purpose by the Act, 49 percent 
must be distributed equally to all tribes and tribal organizations and 
49 percent must be distributed on a per capita basis according to the 
population of children residing

[[Page 246]]

in the service area. Two percent of the annual appropriation will be set 
aside for distribution to tribes demonstrating special circumstances.
    (2) In any fiscal year that the appropriation does not exceed 50 
percent of the level of funding authorized for this purpose by the Act, 
funding must be distributed in equal amounts to all tribes. Two percent 
of the annual appropriation will be set aside for distribution to tribes 
demonstrating special circumstances.
    (3) Special circumstances include but are not limited to a high 
incidence of child sexual abuse, a high incidence of violent crimes, a 
high incidence of violent crimes against women, or the existence of a 
significant victim population within the community.
    (i) This 2 percent will be subject to discretionary distribution by 
the Assistant Secretary--Indian Affairs, or his or her designee. Tribes 
may request these funds through their respective area offices. All 
requests must demonstrate a high incidence of child sexual abuse, a high 
incidence of violent crimes, a high incidence of violent crimes against 
women, or the existence of a significant victim population within the 
community.
    (ii) Special circumstances funds will remain available through the 
third quarter of each fiscal year. In the fourth quarter, unallocated 
special circumstances funds will be redistributed as set forth in 
paragraphs (a)(1) and (a)(2) of this section, except that there will be 
no additional set aside for special circumstances.
    (b) Any tribe not wishing to receive Indian child protection and 
family violence prevention funds must inform its respective area office 
in writing within 90 days after receiving notice of the allocation from 
the area office. Each area office may reallocate unused Indian child 
protection and family violence prevention program funds as provided in 
this section.
    (c) Funds may be used as matching shares for other federally funded 
programs which contribute to and promote prevention of child abuse, 
child neglect, and family violence on Indian reservations, but may not 
be used to supplant funds available for the same general purposes.
    (d) Any income resulting from the operation of Indian child 
protection and family violence prevention programs may be retained and 
used to promote prevention of child abuse, child neglect, and family 
violence on Indian reservations.



Sec. 63.35  How may Indian child protection and family violence 
prevention program funds be used?

    Indian child protection and family violence prevention program funds 
may be used to:
    (a) Establish child protective services programs.
    (b) Establish family violence prevention and treatment programs.
    (c) Develop and implement multidisciplinary child abuse 
investigation and prosecution programs.
    (d) Provide immediate shelter and related assistance to victims of 
family violence and their dependents, including construction or 
renovation of facilities to establish family violence shelters.
    (e) Purchase equipment to assist in the investigation of cases of 
child abuse and child neglect.
    (f) Develop protocols and intergovernmental or interagency 
agreements among tribal, Federal, state law enforcement, courts of 
competent jurisdiction, and related agencies to ensure investigations of 
child abuse cases to minimize the trauma to the child victim, to define 
and specify each party's responsibilities, and to provide for the 
coordination of services to victims and their families.
    (g) Develop child protection codes and regulations that provide for 
the care and protection of children and families on Indian reservations.
    (h) Establish community education programs for tribal members and 
school children on issues of family violence, child abuse, and child 
neglect.
    (i) Establish training programs for child protective services, law 
enforcement, judicial, medical, education, and related services 
personnel in the investigation, prevention, protection, and treatment of 
child abuse, child neglect, and family violence.
    (j) Establish other innovative and culturally relevant programs and

[[Page 247]]

projects that show promise of successfully preventing and treating 
family violence, child abuse, and child neglect.



Sec. 63.36  What are the special requirements for Indian child 
protection and family violence prevention programs?

    (a) Each tribe must develop appropriate standards of service, 
including caseload standards and staffing requirements. The following 
caseload standards and staffing requirements are comparable to those 
recommended by the Child Welfare League of America, and are included to 
assist tribes in developing standards for Indian child protection and 
family violence prevention programs:
    (1) Caseworkers providing services to abused and neglected children 
and their families have a caseload of 20 active ongoing cases and five 
active investigations per caseworker.
    (2) Caseworkers providing services to strengthen and preserve 
families with children have a caseload of 20 families. If intensive 
family-centered crisis services are provided, a caseload of 10 families 
per caseworker is recommended.
    (3) It is recommended that there be one supervisor for every six 
caseworkers.
    (b) The negotiation and award of contracts, grants, or funding 
agreements under these regulations must include the following 
requirements:
    (1) Performance of background investigations to ensure that only 
those individuals who meet the standards of character contained in Sec. 
63.12 are employed in positions which involve regular contact with or 
control over Indian children.
    (2) Submission of an annual report to the contracting officer's 
representative which details program activities, number of children and 
families served, and the number of child abuse, child neglect, and 
family violence reports received.
    (3) Assurance that the identity of any person making a report of 
child abuse or child neglect will not be disclosed without the consent 
of the individual and that all reports and records collected under these 
regulations are confidential and to be disclosed only as provided by 
Federal or tribal law.
    (4) Assurance that persons who, in good faith, report child abuse or 
child neglect will not suffer retaliation from their employers.



Sec. Sec. 63.37--63.50  [Reserved]



PART 67_PREPARATION OF A ROLL OF INDEPENDENT SEMINOLE INDIANS OF FLORIDA
--Table of Contents




Sec.
67.1 Definitions.
67.2 Purpose.
67.3 Information collection.
67.4 Qualifications for enrollment and the deadline for filing 
          application forms.
67.5 Notices.
67.6 Application forms.
67.7 Filing of application forms.
67.8 Burden of proof.
67.9 Action by Superintendent.
67.10 Appeals.
67.11 Decision of the Area Director on appeals.
67.12 Exhaustion of administrative remedies.
67.13 Preparation, certification and approval of the roll.
67.14 Preparation of a per capita payment roll.
67.15 Special instructions.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; and Pub.L. 101-277, 104 
Stat. 143.

    Source: 59 FR 3291, Jan. 20, 1994, unless otherwise noted.



Sec. 67.1  Definitions.

    As used in this part:
    Act means the Act of Congress approved April 30, 1990, Public Law 
101-277, 104 Stat. 143, which authorizes the use and distribution of 
funds awarded the Seminole Indians in Dockets 73, 151, and 73-A of the 
Indian Claims Commission.
    Adopted person means a person whose natural parents' parental rights 
have been terminated by court order and persons other than the natural 
parents have exercised or do exercise parental rights with regard to the 
adopted person.
    Applicant means a person who is making application for inclusion on 
the roll prepared by the Secretary pursuant to the Act of April 30, 
1990, by either personally filing an application or

[[Page 248]]

by having a sponsor complete and file an application on his or her 
behalf.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
or authorized representative.
    BIA means the Bureau of Indian Affairs, Department of the Interior.
    Commissioner means the Commissioner of Indian Affairs or authorized 
representative.
    Director means the Area Director, Eastern Area Office, Bureau of 
Indian Affairs or authorized representative.
    Lineal descendant(s) means those persons who are the issue of the 
ancestor through whom enrollment rights are claimed; namely, the 
children, grandchildren, etc. It does not include collateral relatives 
such as brothers, sisters, nieces, nephews, cousins, etc., or adopted 
children, adopted grandchildren, etc.
    Living means born on or before and alive on the date specified.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Sponsor means any person who files an application for enrollment or 
an appeal on behalf of another person.
    Superintendent means the Superintendent, Seminole Agency, Bureau of 
Indian Affairs or authorized representative.



Sec. 67.2  Purpose.

    The regulations in this part govern the compilation of a roll of 
persons who meet the requirements specified in section 7 of the Act who 
will be eligible to share in the distribution of a portion of the 
judgment funds awarded the Seminole Indians in Dockets 73, 151, and 73-A 
of the Indian Claims Commission.



Sec. 67.3  Information collection.

    The information collection requirement contained in this part does 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq.



Sec. 67.4  Qualifications for enrollment and the deadline for filing 
application forms.

    (a) The roll shall contain the names of persons of Seminole Indian 
descent who:
    (1) Were born on or before, and living on April 30, 1990;
    (2) Are listed on or who are lineal descendants of persons listed on 
the annotated Seminole Agency Census of 1957 as Independent Seminoles; 
and
    (3) Are not members of an Indian tribe recognized by the Secretary 
on the most recent list of such Indian tribes published in the Federal 
Register.
    (b) To qualify for enrollment, all persons must file application 
forms with the Superintendent, Seminole Agency, Bureau of Indian 
Affairs, 6075 Stirling Road, Hollywood, Florida 33024 by June 19, 1994. 
An application filed after June 19, 1994 will be rejected for failure to 
file on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.



Sec. 67.5  Notices.

    (a) The Director shall give notice to all Area Directors of the BIA 
and all Superintendents within the jurisdiction of the Director of the 
preparation of the roll for public display in BIA field offices. Notices 
shall be placed for public display in community buildings, tribal 
buildings and Indian centers.
    (b) The Superintendent shall, on the basis of available residence 
data, publish, and republish when advisable, notices of the preparation 
of the roll in appropriate localities utilizing media suitable to the 
circumstances.
    (c) Notices shall advise of the preparation of the roll and the 
relevant procedures to be followed, including the qualifications for 
enrollment and the deadline for filing application forms to be eligible 
for enrollment. The notices shall also state how and where application 
forms may be obtained, as well as the name, address, and telephone 
number of a person who may be contacted for further information.



Sec. 67.6  Application forms.

    (a) Application forms to be filed by or for applicants for 
enrollment shall be furnished by the Area Director, Superintendent, or 
other designated persons upon written or oral request. Each person 
furnishing application forms shall keep a record of the names of 
individuals to whom forms are given, as well as the control numbers of 
the forms

[[Page 249]]

and the date furnished. Instructions for completing and filing 
application forms shall be furnished with each form. The form shall 
indicate prominently the deadline date for filing application forms.
    (b) Among other information, each application form shall contain:
    (1) Certification as to whether the application form is for a 
natural child or an adopted child of the parent through whom eligibility 
is claimed.
    (2) If the application form is filed by a sponsor, the name and 
address of the sponsor and the sponsor's relationship to the applicant.
    (3) A control number for the purpose of keeping a record of forms 
furnished to interested individuals.
    (4) Certification that the information given on the application form 
is true to the best of the knowledge and belief of the person filing the 
application. Criminal penalties are provided by statute for knowingly 
filing false information in such applications (18 U.S.C. 1001).
    (5) An election by the applicant as to whether the applicant, if 
determined to meet the qualifications for enrollment, wishes to share in 
the per capita payment.
    (c) Sponsors may file application forms on behalf of other persons, 
but may not file elections to share in the per capita payment.
    (1) The election to share in the per capita payment shall be made as 
follows:
    (i) If the applicant is a competent adult, the election shall be 
made by the applicant.
    (ii) If the applicant is not a competent adult, the election shall 
be made by the applicant's legal guardian.
    (iii) If the applicant is a minor, the election shall be made by the 
applicant's parent or legal guardian.
    (2) When an application is filed by a sponsor, the Superintendent 
shall:
    (i) Furnish the sponsor a copy of the application for forwarding to 
the applicant or his/her guardian for completion of the election to 
share in the per capita payment; and
    (ii) Make a reasonable effort to furnish a copy of the application 
directly to the applicant or his/her guardian for completion of the 
election to share in the per capita payment.
    (d) Every applicant or sponsor shall furnish the applicant's mailing 
address on the application form. Thereafter, the applicant or sponsor 
shall promptly notify the Superintendent of any change in address, 
giving appropriate identification of the applicant. Otherwise, the 
mailing address as stated on the application form shall be accepted as 
the address of record for all purposes under the regulations in this 
part.



Sec. 67.7  Filing of application forms.

    (a) Application forms filed by mail must be postmarked no later than 
midnight on the deadline date specified in Sec. 67.4(b). Where there is 
no postmark date showing on the envelope or the postmark date is 
illegible, application forms mailed from within the United States, 
including Alaska and Hawaii, received more than 15 days after the 
specified deadline, and application forms mailed from outside of the 
United States received more than 30 days after the specified deadline in 
the office of the Superintendent, will be rejected for failure to file 
in time.
    (b) Application forms filed by personal delivery must be received in 
the office of the Superintendent no later than close of business on the 
deadline date specified in Sec. 67.4(b).
    (c) If the deadline date for filing application forms falls on a 
Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline 
will be the next working day thereafter.



Sec. 67.8  Burden of proof.

    The burden of proof rests upon the applicant to establish 
eligibility for enrollment. Documentary evidence such as birth 
certificates, death certificates, baptismal records, copies of probate 
findings, or affidavits may be used to support claims of eligibility for 
enrollment. Records of the BIA may be used to establish eligibility.



Sec. 67.9  Action by Superintendent.

    (a) The Superintendent shall notify each individual applicant or 
sponsor, as

[[Page 250]]

applicable, upon receipt of an application. The Superintendent shall 
consider each application and all documentation. Upon determining an 
individual's eligibility, the Superintendent shall notify the 
individual; the parent or guardian having legal custody of a minor or 
incompetent adult; or the sponsor, as applicable.
    (1) Written notification of the Superintendent's decision shall be 
sent to the applicant by certified mail, for receipt by the addressee 
only, return receipt requested.
    (2) If a decision by the Superintendent is sent out of the United 
States, registered mail will be used. If a certified or registered 
notice is returned as ``Unclaimed,'' the Superintendent shall remail the 
notice by regular mail together with an acknowledgment of receipt form 
to be completed by the addressee and returned to the Superintendent. If 
the acknowledgment of receipt is not returned, computation of the period 
specified for changes in election and for appeals shall begin on the 
date the notice was remailed. A certified or registered notice returned 
for any reason other than ``Unclaimed'' need not be remailed.
    (3) If an individual files an application on behalf of more than one 
person, one notice of eligibility or adverse action may be addressed to 
the person who filed the applications. However, the notice must list the 
name of each person to whom the notice is applicable. Where an 
individual is represented by a sponsor, notification to the sponsor of 
eligibility or adverse action shall be considered notification to the 
individual.
    (b) On the basis of an applicant's election with regard to whether 
he or she wishes to share in the per capita payment, the 
Superintendent's decision shall also state whether the applicant's name 
will be included on the per capita payment roll. If no election has been 
made by the applicant, parent, or legal guardian on the application 
form, the individual applicant's name will not be included on the per 
capita payment roll.
    (1) The eligible individual will have 30 days from notification of 
his or her eligibility in which to request a change in the election of 
whether to share in the per capita payment. Computation of the 30-day 
period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d). 
Upon written request received within the 30-day period, to avoid 
hardship or gross injustice, the Superintendent may grant an applicant 
additional time, not to exceed 30 days, in which to submit a request for 
a change in election.
    (2) A change in the election of whether to share in the per capita 
payment can only be made by competent adult applicants; by the legal 
guardian of an incompetent adult; or, in the case of a minor, by the 
minor's parent or legal guardian.
    (c) If the Superintendent determines that an applicant is not 
eligible for enrollment as an Independent Seminole Indian of Florida, 
the Superintendent shall notify the applicant of the decision and shall 
fully explain the reasons for the adverse action and explain the 
rejected applicant's right to appeal to the Area Director. The decision 
of the Area Director shall be final and conclusive.
    (d) Except as provided in paragraph (a)(2) of this section, a notice 
of adverse action concerning an individual's enrollment eligibility or 
the inclusion or exclusion of an individual's name on the per capita 
payment roll is considered to have been made, and computation of the 
period for appeal shall begin on the earliest of the following dates:
    (1) Delivery date indicated on the return receipt;
    (2) Date of acknowledgment of receipt;
    (3) Date of personal delivery; or
    (4) Date of return by the post office of an undelivered certified or 
registered letter.
    (e) To avoid hardship or gross injustice, the Area Director or the 
Superintendent may waive technical deficiencies in application forms or 
other submittals. Failure to file by the deadline date does not 
constitute a technical deficiency.



Sec. 67.10  Appeals.

    (a) Appeals from or on behalf of applicants who have been rejected 
for enrollment must be in writing and must be filed pursuant to part 62 
of this chapter. When the appeal is on behalf of more than one person, 
the name of

[[Page 251]]

each person must be listed in the appeal.
    (b) A copy of part 62 of this chapter shall be furnished with each 
notice of adverse action. All sections of part 62 shall be applicable to 
appeals filed under this part except Sec. Sec. 62.10, 62.11 and 62.12.



Sec. 67.11  Decision of the Area Director on appeals.

    (a) The Area Director will consider the record as presented, 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision.
    (b) The decision of the Area Director on an appeal shall be final 
and conclusive, and written notice, which shall state that the decision 
is final and conclusive, shall be given to the individual applicant, 
parent, legal guardian, or sponsor, as applicable.
    (c) If an individual files an appeal on behalf of more than one 
applicant, one notice of the Area Director's decision may be addressed 
to the person who filed the appeal. The Area Director's decision must 
list the name of each person to whom the decision is applicable. Where 
an individual applicant is represented by a sponsor, notification to the 
sponsor of the Area Director's decision is sufficient.
    (d) Written notice of the Area Director's decision on the appeal 
shall be sent to the applicant by certified mail, to be received by the 
addressee only, return receipt requested.
    (1) On the basis of the individual's election with regard to whether 
he or she wishes to share in the per capita payment, the Area Director's 
decision shall also state whether the individual's name will be included 
on the per capita payment roll. If no election is made by the individual 
applicant, parent, or legal guardian, the individual's name will not be 
included on the per capita payment roll.
    (2) The eligible individual will have 30 days from notification of 
his or her eligibility in which to request a change in the election of 
whether to share in the per capita payment. Computation of the 30-day 
period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d). 
Upon written request received within the 30-day period, to avoid 
hardship or gross injustice, the Area Director may grant additional 
time, not to exceed 30 days, in which to submit a request for a change 
in election.
    (3) The change in the election of whether to share in the per capita 
payment can only be made by adult applicants, or by the legal guardian 
of an incompetent adult, or in the case of minors, by the parents or 
legal guardian of such minors.



Sec. 67.12  Exhaustion of administrative remedies.

    The decision of the Area Director on appeal, which shall be final 
for the Department, is subject to judicial review under 5 U.S.C. 704.



Sec. 67.13  Preparation, certification and approval of the roll.

    (a) The Superintendent shall prepare a minimum of three (3) copies 
of the roll of those persons determined to be qualified for enrollment 
as an Independent Seminole Indian of Florida. The roll shall contain for 
each person a roll number or identification number, name, address, sex, 
date of birth, date of death (when applicable), and the name and 
relationship of the ancestor on the annotated Seminole Agency Census of 
1957 through whom eligibility for enrollment was established.
    (b) A certificate shall be attached to the roll by the 
Superintendent certifying that to the best of his or her knowledge and 
belief, the roll contains only the names of those persons who were 
determined to meet the qualifications for enrollment.
    (c) The Area Director shall approve the roll.



Sec. 67.14  Preparation of a per capita payment roll.

    (a) The Superintendent shall, based on the roll approved under Sec. 
67.12(c), prepare a per capita payment roll. The payment roll shall be 
comprised of those persons whose names appear on the approved roll and 
who have elected to share in the per capita payment.
    (b) The per capita payment roll shall contain for each person a roll 
number or identification number, name, and address.

[[Page 252]]

    (c) The Area Director shall authorize the distribution of the 
judgment funds to those persons named on the per capita payment roll.



Sec. 67.15  Special instructions.

    To facilitate the work of the Superintendent and Area Director, the 
Assistant Secretary may issue special instructions not inconsistent with 
the regulations in this part.



PART 75_REVISION OF THE MEMBERSHIP ROLL OF THE EASTERN BAND OF CHEROKEE 
INDIANS, NORTH CAROLINA--Table of Contents




Sec.
75.1 Definitions.
75.2 Purpose.
75.3 Announcement of revision of roll.
75.4 Basic membership roll.
75.5 Removal of deceased persons from the roll.
75.6 Additions to the roll.
75.7 Applications for enrollment.
75.8 Applications for minors and incompetents.
75.9 Application form.
75.10 Where application forms may be obtained.
75.11 Proof of relationship.
75.12 Enrollment Committee.
75.13 Tenure of Enrollment Committee.
75.14 Appeals.
75.15 Current membership roll.
75.16 Eligibility for enrollment of persons born after August 21, 1957.
75.17 Relinquishment of membership.
75.18 Adoption.
75.19 Distribution of judgment funds.

    Authority: Sec. 2, 71 Stat. 374.

    Source: 24 FR 201, Jan. 8, 1959, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 75.1  Definitions.

    As used in this part:
    (a) Band means the Eastern Band of Cherokee Indians in North 
Carolina.
    (b) Reservation means the lands of the Eastern Band of Cherokee 
Indians in the counties of Jackson, Swain, Graham, Cherokee and Haywood 
in North Carolina.
    (c) Tribal Council means the Tribal Council of the Eastern Band of 
Cherokee Indians in North Carolina.
    (d) Announcement means the announcement of the revision of the 
membership roll issued as required in Sec. 75.3.
    (e) Tribal Enrollment Office means the Tribal Enrollment Clerk 
working in concert with the Enrollment Committee.
    (f) Tribal Enrollment Clerk means the individual working in the 
Tribal Enrollment Office.
    (g) Enrollment Committee means the three individuals appointed by 
the Tribal Council in accordance with Sec. 75.12.

[24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 38 FR 
9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.2  Purpose.

    The regulations in this part are to govern the revision, as 
authorized by the Act approved August 21, 1957 (71 Stat. 374), of the 
membership roll of the Eastern Band of Cherokee Indians, North Carolina, 
prepared and approved in accordance with the Act of June 4, 1924 (43 
Stat. 376), and the Act of March 4, 1931 (46 Stat. 1518).



Sec. 75.3  Announcement of revision of roll.

    When the Tribal Council has authorized the expenditure of tribal 
funds to supply sufficient staff to perform the work necessary to revise 
the membership roll of the Band and such staff has been employed and 
when the application forms and other necessary documents have been 
devised and printed, the Principal Chief, or in his absence the Vice 
Chief or the Chairman of the Tribal Council shall announce that a 
revision of the membership roll of the Band shall commence on a 
specified date. The date specified shall be not less than 15 days nor 
more than 30 days from the date of issuance of the announcement. A press 
release should be prepared announcing the date the revision of the roll 
shall begin, together with other pertinent information such as the 
membership requirements and where application forms may be obtained. The 
press release should be distributed to all newspapers and radio stations 
within the region of the Reservation with a request that it be given 
wide publicity. Copies of the press release should also be posted in the 
Agency Office and at various other public

[[Page 253]]

places throughout the Reservation as well as in Post Offices of the 
towns adjacent to the Reservation.



Sec. 75.4  Basic membership roll.

    All persons whose names appear on the roll of the Eastern Band of 
Cherokee Indians of North Carolina, prepared and approved pursuant to 
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 
Stat. 1518), shall be members of the Band.



Sec. 75.5  Removal of deceased persons from the roll.

    The name of any person who was not alive as of midnight August 21, 
1957, shall be stricken from the basic membership roll by the Tribal 
Enrollment Office upon receipt of a death certificate or other evidence 
of death acceptable to the Tribal Enrollment Office.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.6  Additions to the roll.

    There shall be added to the roll of the Band the names of persons 
living on August 21, 1957, who meet the following qualifications:
    (a) Persons born during the period, beginning on or after June 4, 
1924, and ending midnight August 21, 1957, who are direct descendants of 
persons whose names appear on the roll prepared and approved pursuant to 
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 
Stat. 1518); provided, such persons:
    (1) Who applied for membership before August 14, 1963 possess at 
least \1/32\ degree of Eastern Cherokee Indian blood, and those persons 
who apply for membership on or after August 14, 1963, possess at least 
\1/16\ degree Eastern Cherokee Indian blood, except that persons who 
also possess Indian blood of another tribe shall not be enrolled if they 
are enrolled as members of the other tribe.
    (2) Have themselves or have parents who have maintained and dwelt in 
a home at sometime during the period from June 4, 1924, through August 
21, 1957, on the lands of the Eastern Band of Cherokee Indians in the 
counties of Swain, Jackson, Graham, Cherokee and Haywood in North 
Carolina, except that this specific part of this section shall not apply 
to those persons and members of their families who were temporarily away 
from the Reservation due to one or both parents being in the U.S. Armed 
Services or who were employed by the U.S. Government and neither shall 
it apply to those individuals who were in mental or penal institutions 
during this period of time.
    (3) Have filed an application for enrollment with the Band in 
accordance with the procedures set forth in this part.
    (b) A child born out of wedlock to a mother who is either an 
enrolled member of the Band, or who meets the qualifications for 
enrollment as a member, may be enrolled if such child otherwise meets 
the requirements for enrollment as set forth in this section.
    (c) A child born out of wedlock to a mother who is not a member of 
the Band may be enrolled if the mother files with the Enrollment 
Committee proof established in accordance with the laws of North 
Carolina as to the paternity of the child and the person adjudged to be 
the father is either an enrolled member of the Band, or meets the 
requirements for enrollment as a member, and if the child otherwise meet 
the requirements for enrollment as set forth in this section.

[24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 28 FR 
8314, Aug. 14, 1963. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.7  Applications for enrollment.

    Each adult person who believes he meets the requirements for 
enrollment established herein may submit to the Tribal Enrollment Office 
an application for enrollment as a member of the Eastern Band of 
Cherokee Indians.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.8  Applications for minors and incompetents.

    Applications for enrollment of minors may be filed by the parent, 
next of kin, recognized guardian, or other person responsible for their 
care. Applications for enrollment of persons known to be in mental or 
penal institutions

[[Page 254]]

may be filed by the Principal Chief of the Eastern Band of Cherokee.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.9  Application form.

    The form of application for enrollment will be prepared by the 
Tribal Enrollment Office and, in addition to whatever information the 
Enrollment Committee may deem necessary, shall contain the following:
    (a) The name and address of the applicant. If the application is 
filed on behalf of a minor, the name and address of the person filing 
the application and his relationship to the minor.
    (b) The name, relationship, tribe and roll number of the ancestor or 
ancestors through whom enrollment rights are claimed, and whether 
applicant is enrolled with another tribe.
    (c) The date of death of such ancestor, if deceased.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.10  Where application forms may be obtained.

    Application forms will be supplied by the Tribal Enrollment Office 
of the Eastern Band of Cherokee Indians, Council House, Cherokee, N.C. 
28719, upon request, either in person or by mail.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.11  Proof of relationship.

    If the applicant's parents or other Eastern Cherokee ancestors 
through whom the applicant claims enrollment rights are unknown to the 
Tribal Enrollment Office, the Tribal Enrollment Office may request the 
applicant to furnish such additional information and evidence as it may 
deem necessary to determine the applicant's eligibility for enrollment. 
Failure of the applicant to furnish the information requested may be 
deemed sufficient cause for rejection.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.12  Enrollment Committee.

    The Tribal Council shall appoint either from within or without the 
membership of the Council, but not from without the membership of the 
Band, a committee of three (3) persons to serve as the Enrollment 
Committee. The Enrollment Committee shall review all applications for 
enrollment filed in accordance with the existing regulations, and shall 
determine the qualifications of the applicant for enrollment with the 
Band. The Enrollment Committee may perform such other functions relating 
to the enrollment and membership in the Band as the Tribal Council may 
from time to time direct.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.13  Tenure of Enrollment Committee.

    The members of the Enrollment Committee shall be appointed to serve 
a term of office of 2 years by each newly elected Tribal Council.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.14  Appeals.

    Any person whose application for enrollment has been rejected by the 
Enrollment Committee shall have the right to appeal to the Tribal 
Council from the determination made by the Enrollment Committee: 
Provided, That such appeal shall be made in writing and shall be filed 
in the office of the Principal Chief for presentation to the Tribal 
Council within sixty (60) days from the date on which the Enrollment 
Committee issues notice to the applicant of his rejection. The applicant 
may submit with his appeal any additional data to support his claim to 
enrollment not previously furnished. The decision of the Tribal Council 
as to whether the applicant meets the requirements for enrollment set 
forth in this part shall be final. The Tribal Council shall review no 
applications for enrollment except in those cases where the rejected 
applicant appeals to the Council in writing from the determination made 
by the Enrollment Committee.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 255]]



Sec. 75.15  Current membership roll.

    The membership roll of the Eastern Band of Cherokee Indians shall be 
kept current by striking therefrom the names of persons who have 
relinquished their membership in the Band as provided in Sec. 75.17 and 
of deceased persons upon receipt of a death certificate or other 
evidence of death acceptable to the Tribal Enrollment Office, and by 
adding thereto the names of individuals who meet the qualifications and 
are accepted for membership in the Band as set forth in this part.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.16  Eligibility for enrollment of persons born after August 21, 
1957.

    (a) Persons possessing one-sixteenth or more degree Eastern Cherokee 
Indian blood and born after August 21, 1957, may be enrolled in either 
of the following manners:
    (1) An application to have the person enrolled must be filed by or 
on behalf of the person by the parent or recognized guardian or person 
responsible for his care, which application shall be accompanied by the 
applicant's birth certificate or by other evidence of eligibility of the 
applicant for enrollment that the Tribal Enrollment Office may require.
    (2) In the absence of such application within 6 months after a 
person's birth, the Tribal Enrollment Office shall be authorized and 
encouraged to obtain evidence relating to the eligibility of the person 
for enrollment in the Eastern Band, and present an application in his 
behalf to the Enrollment Committee which may proceed to enroll the 
person if the evidence submitted meets the criteria.
    (b) A person adopted in accordance with applicable laws by either 
tribal members or nonmembers, shall be considered for enrollment as a 
tribal member if the person otherwise meets the requirements for 
enrollment.
    (c) A person born to an enrolled member of the Band and an enrolled 
member of another Tribe, and said person is enrolled in the other Tribe, 
may be transferred from the rolls of the other and added to the rolls of 
the Eastern Band if he meets the general requirements for enrollment 
and, in addition:
    (1) A death certificate or other acceptable evidence of the death of 
the parent enrolled in the other Tribe is received and the surviving 
parent who is a member of the Eastern Band makes application for 
enrollment by way of transfer.
    (2) Upon receipt of divorce documents in the Tribal Enrollment 
Office, there is evidence of custody of the minors being awarded to the 
parent who is a member of the Band and the parent awarded custody makes 
application for enrollment of the minors with the Eastern Band by way of 
transfer.
    (d) In order for a child to be enrolled under paragraph (b) or (c) 
of this section, either:
    (1) An application to have the child enrolled must be filed on 
behalf of the child by the parent or recognized guardian or person 
responsible for his care, which application shall be accompanied by the 
child's birth certificate or by other evidence as to the eligibility of 
the child for enrollment as the Enrollment Committee may require, which 
application must be filed within one year from the date of birth of such 
child, or
    (2) In the absence of such application, the Tribal Enrollment 
Committee may on its own motion, proceed to enroll any eligible child 
upon receipt by it of such evidence as shall satisfy the Committee as to 
the eligibility of the child to be enrolled, within one year from date 
of birth of such child.

[28 FR 8315, Aug. 14, 1963, as amended at 29 FR 9326, July 8, 1964; 38 
FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.17  Relinquishment of membership.

    Any member of the Eastern Band of Cherokee Indians may relinquish 
his membership in the Band by filing notice in writing that he no longer 
desires to be enrolled as a member of the Band. On receipt of such 
notice the name of the members shall be stricken from the roll and he 
shall no longer be considered as a member of the Band and shall not be 
entitled to share in any use or in any distribution of tribal assets 
which may be made in the future to the enrolled members of the Band.

[[Page 256]]



Sec. 75.18  Adoption.

    The Tribal Council of the Eastern Band of Cherokee Indians shall be 
empowered to enact ordinances governing the adoption of new members.

[39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.19  Distribution of judgment funds.

    The membership roll of the Eastern Band of Cherokee Indians of North 
Carolina will be brought up to date as of October 10, 1974, to serve as 
the basis for distributing certain judgment funds awarded to the Band in 
Indian Claims Commission dockets 282-A through L.
    (a) Filing of and action on applications shall be in accordance with 
regulations in this part 75, except as otherwise provided in paragraphs 
(b) through (g) of this section.
    (b) In lieu of notice provisions contained in Sec. 75.3, the 
Commissioner of Indian Affairs or his authorized representative shall 
provide notice of the bringing up to date of the membership roll through 
publication of these amended regulations in the Federal Register and 
through appropriate press releases and other public notices.
    (c) Application forms may be obtained from the Tribal Enrollment 
Office of the Eastern Band of Cherokee Indians, Council House, Cherokee, 
North Carolina 28719. Completed applications must be received by the 
Tribal Enrollment Office no later than midnight January 8, 1975.
    (d) Requests for applications for enrollment in the Band received 
after midnight of the deadline date will not be furnished until after 
the funds have been distributed.
    (e) In lieu of the procedures given in Sec. 75.14, appeals from 
rejected applicants must be in writing and filed pursuant to part 62 of 
this subchapter, a copy of which shall be furnished with each notice of 
rejection.
    (f) The Tribal Council and the Superintendent shall attach separate 
statements to the roll certifying that to the best of their knowledge 
and belief, the roll contains only the names of those persons who were 
determined to meet the requirements for enrollment. The roll shall then 
be submitted through the Area Director to the Commissioner for approval.
    (g) To facilitate the work of the Tribal Enrollment Committee the 
Commissioner may issue special instructions not inconsistent with the 
regulations in this part 75.

[39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 81_TRIBAL REORGANIZATION UNDER A FEDERAL STATUTE--Table of Contents




Sec.
81.1 Definitions.
81.2 Purpose and scope.
81.3 Group eligibility.
81.4 Assistance from the Department of the Interior.
81.5 Request to call election.
81.6 Entitlement to vote.
81.7 Adoption, ratification, or revocation by majority vote.
81.8 Election board.
81.9 Voting districts.
81.10 District Election Boards.
81.11 Registration.
81.12 Voting list.
81.13 Eligibility disputes.
81.14 Election notices.
81.15 Opening and closing of polls.
81.16 Interpreters.
81.17 Electioneering.
81.18 Manner of voting.
81.19 Absentee voting.
81.20 Ballots.
81.21 Counting of ballots.
81.22 Contesting of election results.
81.23 Posting and certifying election results.
81.24 Approval, disapproval, or rejection action.

    Authority: 25 U.S.C. 473a, 476, 477, and 503.

    Source: 46 FR 1670, Jan. 7, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 81.1  Definitions.

    As used in this part:
    (a) Adult Indian means any Indian as defined in paragraph (i) of 
this section who has attained the age of 18 years.
    (b) Amendment means any modification, change, or total revision of a 
constitution or charter.
    (c) Authorizing Officer means the Bureau of Indian Affairs official 
having authority to authorize the calling of a Secretarial election.
    (d) Cast ballot means an official ballot that is cast in the proper 
manner at

[[Page 257]]

the proper time by a duly registered voter. A ballot is cast by duly 
placing it in the ballot box or, in the case of absentee voting, when 
the ballot is duly received through the mail by the election board.
    (e) Charter means the charter of incorporation the Secretary may 
issue to a reorganized tribe pursuant to Federal Statute.
    (f) Commissioner means the Commissioner of Indian Affairs or his/her 
authorized representative.
    (g) Constitution or Constitution and Bylaws means the written 
organizational framework of any tribe reorganized pursuant to a Federal 
Statute for the exercise of governmental powers.
    (h) Federal Statute means one of the following: (1) The Act of June 
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act); (2) the 
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act); or 
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization 
Act).
    (i) Indian means: (1) All persons who are members of those tribes 
listed or eligible to be listed in the Federal Register pursuant to 25 
CFR 83.6(b) as recognized by and receiving services from the Bureau of 
Indian Affairs; provided, that the tribes have not voted to exclude 
themselves from the Act of June 18, 1934, 43 Stat. 984, as amended; and 
(2) any person not a member of one of the listed or eligible to be 
listed tribes who possesses at least one-half degree of Indian blood.
    (j) Invalid ballot means an official cast ballot discovered at the 
time the votes are counted which does not comply with the requirements 
for voting or is not an official ballot. An invalid ballot is not to be 
counted for determining the number of cast ballots.
    (k) Member means any Indian who is duly enrolled in a tribe who 
meets a tribe's written criteria for membership or who is recognized as 
belonging to a tribe by the local Indians comprising the tribe.
    (l) Mutilated ballot means an official ballot that has been damaged 
to the extent that it is not possible to determine the choice the voter 
intended to make. There are two kinds of mutilated official ballots:
    (1) A ballot that is mutilated and not cast. In this case, the 
mutilated ballot may be exchanged for a new one. If the need arises to 
exchange a mutilated absentee ballot, no additional time will be 
provided for the new ballot to be received by the election board.
    (2) A ballot that is mutilated and cast. A mutilated cast ballot is 
to be counted in the same manner as a spoiled cast ballot.
    (m) Officer in Charge means the Superintendent, Administrative 
Officer, or other official of the local unit of the Bureau of Indian 
Affairs (or a Bureau employee that such person might designate) having 
administrative jurisdiction over a tribe.
    (n) Official ballot means a ballot prepared by the Bureau of Indian 
Affairs for use in an election pursuant to this part. It is possible 
that an official ballot may be found to be either spoiled or mutilated 
at the time the votes are counted.
    (o) Registration means the act whereby persons, who are eligible to 
vote, become entitled or qualified to cast ballots by having their names 
placed on the list of persons who will be permitted to vote.
    (p) Reorganized tribe means a tribe whose members have adopted a 
constitution pursuant to a Federal Statute.
    (q) Reservation means any area established by treaty, Congressional 
Act, Executive Order, or otherwise for the use or occupancy of Indians.
    (r) Revocation means that act whereby the adult members of a tribe 
vote to abandon their constitutional form of government as opposed to 
their voting to amend or totally revise it.
    (s) Secretarial election means an election held within a tribe 
pursuant to regulations prescribed by the Secretary as authorized by 
Federal Statute (as distinguished from tribal elections which are 
conducted under tribal authority. (See Cheyenne River Sioux Tribe v. 
Andrus, 566 F. 2d 1085 (8th Cir., 1977), cert. denied 439 U.S. 820 
(1978)).
    (t) Secretary means the Secretary of the Interior or his/her 
authorized representative.
    (u) Spoiled ballot means an official ballot that has been marked in 
such a way that it is not possible to determine

[[Page 258]]

the intent of the voter, a ballot that has not been marked at all, or 
one that has been marked so as to violate the secrecy of the ballot. 
There are two kinds of spoiled official ballots:
    (1) A ballot that is spoiled and not cast. In this case, the spoiled 
ballot may be exchanged for a new one. If the need arises to exchange a 
spoiled absentee ballot, no additional time will be provided for the new 
ballot to be received by the election board.
    (2) A ballot that is spoiled and cast. A spoiled cast ballot is to 
be counted in tabulating the total votes cast in conjunction with 
determining whether the required percentage of the qualified voters has 
participated in the election.
    (v) Tribal government means that entity established pursuant to a 
tribal constitution as empowered to speak for the tribe or in the 
absence thereof any group or individual that is recognized by the tribal 
members as empowered to speak for the tribe.
    (w) Tribe means: (1) Any Indian entity that has not voted to exclude 
itself from the Indian Reorganization Act and is included, or is 
eligible to be included, among those tribes, bands, pueblos, groups, 
communities, or Alaska Native entities listed in the Federal Register 
pursuant to Sec. 83.6(b) of this chapter as recognized and receiving 
services from the Bureau of Indian Affairs; and (2) any group of Indians 
whose members each have at least one-half degree of Indian blood for 
whom a reservation is established and who each reside on that 
reservation. Such tribes may consist of any consolidation of one or more 
tribes or parts of tribes.
    (x) Voting district means a geographical area established to 
facilitate a tribal election process.



Sec. 81.2  Purpose and scope.

    (a) The purpose of this part is to provide uniformity and order in:
    (1) Holding Secretarial elections for voting on proposed 
constitutions when tribes wish to reorganize,
    (2) Adopting constitutional amendments,
    (3) Ratifying and amending charters,
    (4) Revoking constitutions, and
    (5) Facilitating the calling of such elections by the Secretary 
under provisions of a Federal Statute.
    (b) This part may also be used as a guideline by tribes wishing to 
hold constitutional elections that are not held pursuant to a Federal 
Statute.
    (c) Where a discrepancy might appear to exist between these 
regulations and a specific requirement of the statute governing the 
reorganization of a tribe or ratification and amendment of charters, the 
regulations shall be interpreted to conform with the statute.
    (d) As much as possible, Secretarial elections shall be scheduled so 
as to avoid their being held at the same time as tribal elections in 
order to avoid the confusion that results from different requirements 
for each kind of election.



Sec. 81.3  Group eligibility.

    (a) No tribe which has voted to exclude itself from the provisions 
of the Indian Reorganization Act, or is otherwise precluded by law, may 
be reorganized under a Federal Statute. Tribes wishing to reorganize or 
a reorganized tribe seeking to amend its constitution and bylaws or 
wishing to vote to revoke such document shall do so under the 
regulations in this part.
    (b) Charters issued to reorganized tribes shall be ratified or 
amended under the regulations in this part.



Sec. 81.4  Assistance from the Department of the Interior.

    Representatives of the Department of the Interior will cooperate 
with and offer advice and assistance (including the proposing of 
amendments), to any tribe in drafting a constitution and bylaws, an 
amendment, a charter or charter amendment, or in revocation of 
constitutions. Any payments that might be necessary to non-Bureau staff 
assisting in the conduct of the election shall be made from tribal 
funds.



Sec. 81.5  Request to call election.

    (a) The Secretary shall authorize the calling of an election to 
adopt a constitution and bylaws or to revoke a constitution and bylaws, 
upon a request from the tribal government.
    (b) The Secretary shall authorize the calling of an election to 
adopt a constitution and bylaws pursuant to a Federal Statute upon 
receipt of a petition bearing the signatures of at least 60 percent of 
the tribe's adult members.

[[Page 259]]

    (c) The Secretary shall authorize the calling of an election to 
ratify a charter at the time the charter is issued, but he/she may issue 
a charter to a reservation-based tribe only upon petition by at least 
one-third of the adult members of the tribe. No ratification, however, 
shall be valid unless the tribe has a constitution adopted and approved 
pursuant to the relevant Federal Statute.
    (d) The Secretary shall authorize the calling of an election on the 
adoption of amendments to a constitution and bylaws or a charter when 
requested pursuant to the amendment article of those documents. The 
election shall be conducted as prescribed in this part unless the 
amendment article of the constitution and bylaws or the charter provides 
otherwise, in which case the provisions of those documents shall rule 
where applicable.
    (e) If the amendment provisions of a tribal constitution or charter 
have become outdated and amendment can not be effected pursuant to them, 
the Secretary may authorize an election under this part to amend the 
documents when the recognized tribal government so requests.
    (f) Any authorization not acted upon within 90 days (tribes in 
Alaska shall be granted 120 days) from the date of issuance will be 
considered void. Notification of the election date as provided for in 
Sec. 81.14 shall constitute the action envisioned in this section. 
Extension of an authorization may be granted upon a valid and reasonable 
request from the election board. Copies of authorizations shall be 
furnished the requesting tribe or petitioners.
    (g) In those instances where conflicting proposals to amend a single 
constitutional or charter provision are submitted, that proposal first 
received by the officer in charge, if found valid, shall be placed 
before the voters before any consideration is given other proposals. 
Other proposals shall be considered in order of their receipt; provided, 
they are resubmitted following final action on the initial submission. 
This procedure shall also apply in those instances where new or revised 
constitutions are at issue.



Sec. 81.6  Entitlement to vote.

    (a) If the group is a tribe, or tribes, of a reservation and is 
acting to effect reorganization under a Federal Statute for the first 
time:
    (1) Any duly registered adult member regardless of residence shall 
be entitled to vote on the adoption of a constitution and bylaws.
    (2) Duly registered adult nonresident members and ill or physically 
disabled registered adult resident members may vote by absentee ballot 
(see Sec. 81.19).
    (b) If the group is composed of the adult Indian residents of a 
reservation:
    (1) Any adult duly registered member physically residing on the 
reservation shall be entitled to vote.
    (2) Absentee voting shall be permitted only for duly registered 
residents temporarily absent from the reservation, ill, or physically 
disabled.
    (c) If the group is a tribe, or tribes, without a reservation as 
defined in this part, any duly registered member shall be entitled to 
vote on the adoption of a constitution and bylaws by either arriving at 
a polling place or by requesting, properly completing, and timely 
casting an absentee ballot as determined by the election board pursuant 
to the relevant Federal Statute; provided, that outside of Alaska and 
Oklahoma, a reservation shall be established for the tribe before it 
becomes entitled to vote on the adoption of a constitution.
    (d) For a reorganized tribe to amend its constitution and bylaws, 
only members who have duly registered shall be entitled to vote; 
provided, that registration is open to the same class of voters that was 
entitled to vote in the Secretarial election that effected its 
reorganization, unless the amendment article of the existing 
constitution provides otherwise.
    (e) For a reorganized tribe to revoke its constitution and bylaws, 
only members who have duly registered shall be entitled to vote; 
provided, that registration is open to the same class of voters as was 
entitled to vote in the Secretarial election that effected its 
reorganization, unless the amendment article of the existing 
constitution provides otherwise.

[[Page 260]]

    (f) For a reorganized tribe to ratify a charter or to adopt a 
charter amendment, any adult member who has duly registered shall be 
entitled to vote, provided that if the tribe is of a reservation, only 
duly registered members physically residing on the reservation shall be 
entitled to vote.



Sec. 81.7  Adoption, ratification, or revocation by majority vote.

    Except as it may be further limited by this part, a constitution and 
bylaws, amendments thereto, or charter and charter amendments shall be 
considered adopted, ratified, or revoked if a majority of those actually 
voting are in favor of adoption, ratification, or revocation. The total 
vote cast, however, must be at least 30 percent of those entitled to 
vote, unless, with regard to amendments, the constitution provides 
otherwise. The names of persons appearing on the registration list who 
have not reached eighteen years of age by the date of the election, 
shall be removed from the list of registered voters when determining 
whether the required percentage of participation has been achieved. 
Unless the existing constitution or charter provides otherwise, none of 
the actions cited in this section shall become effective until they are 
approved by the Secretary. The validity of any charter ratification 
shall be dependent upon the tribe first having reorganized. Duly 
ratified charters shall be revoked or surrendered only by Act of 
Congress.



Sec. 81.8  Election board.

    (a) There shall be an election board consisting of the officer in 
charge acting as chairman and at least two representatives of the tribal 
governing body or an authorized representative committee. Where such 
persons may be unwilling or unable to serve, the chairman shall select 
at least two adult members of the tribe to serve. In addition, the 
officer in charge may appoint an interpreter and as many clerks and poll 
watchers as he/she deems necessary, but they shall not be members of the 
board.
    (b) It shall be the duty of the board to conduct elections in 
compliance with the procedures described in this part and in particular:
    (1) To see that the name of each person offering to vote is on the 
official list of registered voters;
    (2) To keep the ballot boxes locked at all times except when ballots 
are being counted;
    (3) To see that ballots are cast only by registered voters and that 
the voting list is checked to indicate this;
    (4) To begin to count the regularly cast ballots immediately after 
the close of the polls and then the absentee ballots, pursuant to Sec. 
81.21;
    (5) To post and certify the election returns;
    (6) To return the following to the officer in charge:
    (i) The ballots (in marked and locked boxes);
    (ii) All unused ballots; and
    (iii) The completed Certificate of Results of Election. The officer 
in charge shall retain the ballots and other material among official 
records for at least one year. At the end of one year, the officer in 
charge shall forward the contents of the boxes and other related 
material to the appropriate Federal Records Center.



Sec. 81.9  Voting districts.

    If: (a) Voting districts have not already been designated for tribal 
elections in the tribal constitution or by tribal election ordinance or 
resolution; and (b) in the election board's judgment voting districts 
are needed, the board shall establish them and designate a polling place 
for each district. Where a reservation exists, no voting district may be 
established beyond its boundaries.



Sec. 81.10  District Election Boards.

    (a) Where voting districts have been established by the tribal 
constitution, ordinance, resolution, or by the election board, the 
election board shall appoint district election boards for each district, 
which shall have the duties prescribed above for the election board 
except that they shall return to the election board:
    (1) The ballots (in marked and locked boxes),
    (2) All unused ballots, and
    (3) Their certifications of the district election results on the 
certification forms prescribed by the election board.

[[Page 261]]

    (b) The board will compile the election results for the entire 
reservation and transmit them together with the aforementioned ballots 
and ballot boxes to the officer in charge.



Sec. 81.11  Registration.

    (a) Only registered voters will be entitled to vote, and all 
determinations of the sufficiency of the number of ballots cast will be 
based upon the number of registered voters. The election board, upon 
receipt of authorization to conduct an election, shall notify by regular 
mail all adult members of the tribe, who to its knowledge are eligible 
to vote pursuant to Sec. 81.6 of the need to register if they intend to 
vote. Any tribal member who, to the election board's knowledge, will 
become 18 years of age within 150 days (180 days for Alaska tribes) from 
the date of authorization and who is otherwise eligible to vote shall 
also be notified and shall be eligible to register, provided that such a 
person shall not be entitled to vote if election day falls before the 
individual's 18th birthday. This notice shall be sent to an individual's 
last known address as it appears on the records of the local unit of the 
Bureau of Indian Affairs having jurisdiction. Each notice addressed to a 
tribal member not residing on the reservation shall be accompanied by a 
preaddressed registration form (BIA Form 8302) which shall set forth the 
following information in the upper right corner:
    (1) OMB Clearance Number 1076-003, Expires June 30, 1983;
    (2) The name and address of the person desiring to register;
    (3) A statement with a signature line attesting that the individual 
is a tribal member and is at least 18 years of age, or will be within 
150 days, (180 days for Alaska tribes) from the date of authorization; 
and
    (4) The three following statements: ``Completion of and return of 
this registration form is necessary if you desire to become qualified to 
vote in the forthcoming constitutional or charter election.'' ``This 
form, upon completion and return to the election board, shall be the 
basis for determining whether you qualify to have your name placed upon 
the list of registered voters and receive a ballot'' and ``completion 
and return of this form is voluntary.'' Members who qualify as absentee 
voters and wish to cast an absentee ballot must complete and return the 
above registration form before, or in conjunction with, requesting an 
absentee ballot in sufficient time to permit compliance with Sec. 
81.12.
    (b) The following records shall be kept for all notices:
    (1) Names and addresses of persons to whom notices are mailed;
    (2) Date of mailing; and
    (3) A copy of each return registration request (including from whom 
received and date and time of receipt).

Tribal members living on the reservation who desire to vote must 
register with the election board in the manner it determines in time to 
permit compliance with Sec. 81.12. Registration procedures for such 
Indians shall be included in the notice of the need to register to 
resident members.

[46 FR 1670, Jan. 7, 1981, as amended at 46 FR 38352, July 27, 1981. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 81.12  Voting list.

    The election board shall compile in alphabetical order an official 
list of registered voters arranged by voting districts, if any. This 
list shall designate, where applicable, those who have requested an 
absentee ballot and the members of the tribe who are or will have 
attained the age of 18 years within 150 days (180 days for Alaska 
tribes) from the date an election is authorized and who have duly 
registered to vote. A copy of this list shall be supplied to any 
district election board and shall be posted at the headquarters of the 
local administrative unit of the Bureau of Indian Affairs, the tribal 
headquarters, and at various other public places designated by the 
election board at least 20 days prior to the election.



Sec. 81.13  Eligibility disputes.

    The election board shall determine the eligibility of any written 
claim to vote presented to it by one whose name does not appear on the 
official list of registered voters as well as any written challenge of 
the right to vote of anyone whose name is on the list. Its decision 
shall be final. It shall rule on all claims no later than ten days 
before

[[Page 262]]

the election. Any claim not presented at least ten days before the 
election shall be disallowed. Nonresident claimants successfully 
appealing omission from the list shall immediately be furnished an 
absentee ballot. Omission of names from the voters list due to late 
registration, if notification (pursuant to Sec. 81.14) has been timely 
mailed, shall not be considered grounds for challenge.



Sec. 81.14  Election notices.

    Not less than 30 nor more than 60 days notice shall be given of the 
date of the election. Such notice shall include the location of where 
the results will be posted. The notice shall also advise that persons 
must register if they intend to vote. The election board shall determine 
whether the notice will be given by television, radio, newspaper, 
poster, or mail, or by more than one of these methods and whether in an 
Indian language in addition to English. A copy of any written election 
notice may be mailed to each registered voter and shall be posted at the 
local administrative unit of the Bureau of Indian Affairs and elsewhere 
as directed by the election board. At any time after receiving 
Secretarial authorization to hold the election, the board shall make 
available to the adult members of the tribe the text of any amendment or 
proposed constitution and bylaws, amendment thereto, charter, or charter 
amendment. The election board may determine the manner and timing of the 
distribution. However, the text shall be posted at least within the 
local administrative unit of the Bureau and the tribal headquarters 
within two days following the giving of notice of the election date by 
the election board.



Sec. 81.15  Opening and closing of polls.

    If polling places are established, the polls shall remain open from 
8 a.m. to 7 p.m., local time, unless different hours are set by the 
election board and the voters are informed of this in the election 
notice.



Sec. 81.16  Interpreters.

    Interpreters, where needed, may be provided to explain the manner of 
voting to any voter who asks for instructions; provided, that all 
reasonable precautions are taken to ensure that the interpreter does not 
influence the voter in casting the ballot. The interpreter may accompany 
the voter into the booth upon the latter's request.



Sec. 81.17  Electioneering.

    There shall be no electioneering during voting hours within 50 feet 
of any voting place. Sample ballots will be permitted in the voting 
booth.



Sec. 81.18  Manner of voting.

    (a) Registered voters may vote by arriving at the appropriate 
polling place within the prescribed voting hours telling officials their 
names and addresses, signing their signature or mark on the voting list, 
and by marking and placing in the ballot box the ballots which will be 
handed to them. Voting shall be by secret ballot.
    (b) Voting may take place at the same time regarding the adoption of 
a constitution, the ratification of a charter, or the amendment of such 
documents; provided, that entitlement to vote for the proposal is 
consistent with Sec. 81.6 of this part and, provided further, that no 
charter shall be considered ratified if the proposed constitution is not 
adopted and approved.
    (c) The election board may choose not to use polling places and 
provide for the issuance and receipt of ballots entirely through the 
United States Postal Service. In that event, the election board shall 
use the appropriate procedures set forth in this part relating to 
absentee balloting.



Sec. 81.19  Absentee voting.

    (a) Nonresident members who have registered may vote by absentee 
ballot except as prohibited by Sec. 81.6. Also, whenever, due to 
temporary absence from the reservation, illness, or physical disability, 
a registered and otherwise eligible voter is not able to vote at the 
polls and notifies the election board, the voter shall be entitled to 
vote by absentee ballot. Upon his or her request, the election board 
shall give or mail absentee ballots to registered voters who may be 
entitled to receive them pursuant to Sec. 81.6. At the same time, such 
voters will also be provided a copy of the proposal to be voted upon 
when the full text does not appear

[[Page 263]]

on the ballot. Appropriate records shall be kept of those from whom 
requests are received and the date they were received. The election 
board shall allow an absentee voter no less than ten days from the 
mailing out of an absentee ballot to receive and return the ballot. This 
period shall not be afforded absentee voters desiring to exchange a 
mutilated or spoiled ballot less than ten days before the election date. 
While requests for absentee ballots received less than ten days before 
an election will be promptly honored, no absentee ballot will be counted 
if received later than either the close of the polls or after some other 
deadline established by the election board. The election board shall 
furnish election officials the names of individuals who have been given 
or had mailed to them an absentee ballot.
    (b) Accompanying the absentee ballot shall be:
    (1) An inner envelope bearing on the outside, the words ``Absentee 
Ballot,''
    (2) Instructions for completion of the absentee ballot,
    (3) A copy of the proposed amendment, and
    (4) A preaddressed outer envelope, imprinted on the back with a 
certificate as follows:

    I, (name of voter), hereby certify that I am a qualified voter of 
the (name) Tribe of Indians; that I will be 18 years of age or over at 
the election date and am entitled to vote in the election to be held on 
(date of election); and that I cannot appear at the polling place on the 
reservation on the date of the election because (indicate one of the 
following reasons): I am a non resident voter [squ]; or I expect to be 
temporarily absent from the reservation [squ]; or because of illness 
[squ]; or physical disability [squ]; or because no polling place has 
been established [squ]. I further certify that I marked the enclosed 
ballot in secret.

     Signed:--------------(voter's signature).

    (c) The absentee voter shall mark the ballot and the ballot shall 
then be folded so as to conceal the marking and be placed in the 
envelope marked ``Absentee Ballot'' and the envelope sealed. The voter 
shall then place the sealed envelope marked ``Absentee Ballot'' in the 
outer envelope, seal it and complete the certificate and mail it. The 
preaddressed outer envelope shall be directed to the election board at 
the reservation. Absentee ballots must be received by the election board 
not later than the close of the polls or as otherwise directed by the 
election board.
    (d) The election board shall make and keep a record of ballots 
mailed, to whom mailed, the date of mailing, the address on the 
envelope, the date of the return of the ballot, and from whom received. 
After duly recording the receipt date of absentee ballots received on 
time, representatives of the election board shall open the outer 
envelopes, secure them and place the unmarked inner envelopes containing 
the ballots in a separate box reserved for that purpose. After all other 
ballots have been counted, the absentee ballots shall be counted 
immediately and included in the results of the election.



Sec. 81.20  Ballots.

    (a) Ballots are to be prepared clearly and simply so that it is easy 
for the voters to indicate a choice between no more than two 
alternatives. For example, if a tribal council or the petitioners 
propose to reduce the one-half degree blood quantum required to qualify 
for membership but want the voters to decide whether it should be one-
fourth or one-eight, it would not be appropriate to put those two 
alternatives on the ballot. Doing so, would deny the voters an 
opportunity to vote for keeping the one-half degree blood quantum. 
Neither would it be appropriate to include all three blood quantum 
alternatives. Rather, those proposing the change should decide which 
blood quantum is to be submitted to the voters. The ballot in the 
Secretarial election would then give the electors the choice of marking 
either ``yes'' or ``no.'' A vote against the proposed change would be in 
favor of keeping the one-half degree blood quantum in the example.
    (b) In preparing ballots for proposed amendments, care should be 
taken to ensure that:
    (1) Each proposed amendment addresses only a single question.
    (2) If a proposed amendment conflicts with other provisions of the 
document being amended, the ballot shall be prepared so that the 
question includes all changes in those other directly related

[[Page 264]]

provisions in order to avoid contradictions within the document.
    (3) When more than one amendment is being submitted to the voters at 
a given election, the proposals shall be identified with alphabetical 
designations rather than numerical. The first of the several proposals 
would be labeled ``Proposed Amendment A,'' the next would be ``Proposed 
Amendment B,'' etc. Those amendments that are adopted and approved would 
then be assigned consecutive numbers to follow those assigned any 
earlier amendments that may have been make to that governing document. A 
statement similar to the following shall appear on each of the proposed 
amendments and shall be completed following the election:

    Having been duly adopted and approved, Proposed Amendment (A,B,C, 
etc.) is hereby designated as Amendment No. -- to the (Constitution, 
Charter, etc.) of the (name of tribe) Tribe.

    (c) The election board will supply all ballots. Each ballot shall be 
stamped in red ink on its face in the same place:

OFFICIAL BALLOT
(Facsimile Signature)
CHAIRMAN, ELECTION BOARD

    (d) Should any voter spoil or mutilate a ballot in the course of 
voting at a poll, the voter shall destroy it in the presence of the 
election officials and the election officials shall then make note of 
the destroyed ballot and furnish the voter with another ballot.
    (e) Any spoiled or mutilated absentee ballot may be exchanged for a 
new one by returning it to the election board with a request for 
another. The board shall honor the request promptly and note the dates 
of related actions. No extension of time will be granted for receipt of 
exchanged ballots that might not be cast on time.



Sec. 81.21  Counting of ballots.

    All duly cast ballots are to be counted. Even though it will not be 
possible to determine the intent of the voter regarding spoiled and 
mutilated ballots, they are to be counted for purposes of determining 
whether the required percentage of voters have cast their ballots in the 
election. Invalid ballots shall not be counted for purposes of 
determining the required percentage of votes cast.



Sec. 81.22  Contesting of election results.

    Any qualified voter, within three days following the posting of the 
results of an election, may challenge the election results by filing 
with the Secretary through the officer in charge the grounds for the 
challenge, together with substantiating evidence. If in the opinion of 
the Secretary, the objections are valid and warrant a recount or new 
election, the Secretary shall order a recount or a new election. The 
results of the recount or new election shall be final.



Sec. 81.23  Posting and certifying election results.

    (a) The results of the election shall be posted in the local Bureau 
of Indian Affairs office, tribal headquarters, and at other appropriate 
public places determined by the election board.
    (b) The election board shall certify the results of the election on 
the following form and transmit them to the local unit of the Bureau of 
Indian Affairs:

                   Certificate of Results of Election

    Pursuant to a Secretarial election authorized by the (title of 
authorizing officer) on (date), the attached Constitution and Bylaws 
(Amendment, Charter or Charter Amendment) of the (name of tribe) was 
submitted to the qualified voters of the tribe and on (date), was duly 
(adopted) (ratified) (rejected) or (revoked) by a vote of (number) for 
and (number) against and (number) cast ballots found spoiled or 
mutilated in an election in which at least 30 percent (or such 
``percentages'' as may be required to amend according to the 
constitution) of the (number) members entitled to vote, cast their 
ballot in accordance with (appropriate Federal statute). Signed: (By the 
chairman of the election board and board members.)

Date: ------------------------



Sec. 81.24  Approval, disapproval, or rejection action.

    (a) Action to approve or disapprove constitutional actions will be 
taken promptly by the authorizing officer following receipt of the 
original text of the material voted upon and the original of the 
Certificate of Results of Election from the officer in charge.

[[Page 265]]

    (1) When required and granted, the authorizing officer shall furnish 
a tribe with written approval of constitutional actions. In the absence 
of an election challenge, the approval shall be issued promptly 
following the expiration of the contest period. Copies of his/her 
written approval, the Certificate of Results of Election, and the text 
of the material voted upon shall be transmitted to the Commissioner of 
Indian Affairs, 18th and C Streets, NW., Washington, DC 20245.
    (2) When a proposed constitution or charter action is rejected by 
the voters, the authorizing officer shall indicate in writing to the 
tribe his/her awareness of the election results and send to the 
Commissioner of Indian Affairs in Washington, DC, copies of the 
communication, the Certificate of Results of Election and the text of 
the material voted upon.
    (3) When the authorizing officer disapproves a constitutional 
action, he/she shall in writing promptly notify the tribe of the 
determination and furnish the Commissioner of Indian Affairs in 
Washington, DC, a copy of the communication along with the Certificate 
of Results of Election and the text of the material voted upon.
    (b) Where Secretarial approval of proposed constitutional and 
charter actions is required in conjunction with authorization of an 
election, copies of the formal approval shall immediately be furnished 
the Commissioner of Indian Affairs in Washington, DC, by the authorizing 
officer and be followed in accordance with paragraph (a)(1) of this 
section by copies of the Certificate of the Results of Election and the 
text of the material voted upon as soon as it is available.



PART 82_PETITIONING PROCEDURES FOR TRIBES REORGANIZED UNDER FEDERAL 
STATUTE AND OTHER ORGANIZED TRIBES--Table of Contents




Sec.
82.1 Definitions.
82.2 Purpose and scope.
82.3 Applicability to tribal groups.
82.4 Entitlement to petition.
82.5 Sufficiency of a petition.
82.6 Petition format.
82.7 Notarization of petition signatures.
82.8 Filing of petitions.
82.9 Challenges.
82.10 Action on the petition.
82.11 Duration of petition.

    Authority: 5 U.S.C. 301, and 25 U.S.C. 2, 9, 473a, 476, 477 and 503.

    Source: 46 FR 1675, Jan. 7, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 82.1  Definitions.

    As used in this part:
    (a) Area Director means the Director of the Bureau Area Office 
having administrative jurisdiction over the petitioners' tribe.
    (b) Bureau means the Bureau of Indian Affairs.
    (c) Charter means a charter of incorporation the Secretary may issue 
to a recognized tribe pursuant to a Federal Statute.
    (d) Commissioner means the Commissioner of Indian Affairs or his/her 
authorized representative.
    (e) Constitution or Constitution and Bylaws means the written 
organizational framework of any tribe for the exercise of governmental 
powers.
    (f) Eligible, entitled, or qualified voter means the status achieved 
by a tribal member who meets the requirement of a tribal constitution or 
election ordinance to vote in a tribal election; provided, that where a 
tribe has reorganized pursuant to a Federal Statute, to be an entitled 
or a qualified voter for purposes of this part, the tribal member must 
be at least 18 years of age and be eligible to register for voting in a 
Secretarial election (see part 81 of this chapter).
    (g) Federal Statute means one of the following: (1) The Act of June 
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act), (2) the 
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act), or 
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization 
Act).
    (h) Local Bureau Official means the Superintendent, Field 
Representative, or other line officer of the Bureau of Indian Affairs 
who has local administrative jurisdiction over the tribe concerned.
    (i) Local Bureau unit means the Bureau office having local 
administrative jurisdiction over the tribe concerned.

[[Page 266]]

    (j) Member means any person who is duly enrolled in a tribe, who 
meets a tribe's written criteria for membership, or is recognized as 
belonging to a tribe by the local Indians comprising that tribe.
    (k) Organized tribe means any tribe that has adopted a constitution 
outside of a Federal Statute.
    (l) Reorganized tribe means any tribe that has adopted a 
constitution pursuant to a Federal Statute.
    (m) Secretarial election means an election held within a tribe 
pursuant to regulations prescribed by the Secretary (as distinguished 
from tribal elections which are conducted under tribal authority (See 
Cheyenne River Sioux Tribe v. Andrus, 566 F.2d 1085 (8th Cir., 1977), 
cert. denied 439 U.S. 820 (1978)).
    (n) Secretary means the Secretary of the Interior or his/her 
authorized representative.
    (o) Spokesman for the petitioners means the authorized voter of a 
tribe initiating a petition or designated by the initiators of a 
petition to speak on their behalf.
    (p) Tribe means any Indian entity that is listed or is eligible to 
be listed in the Federal Register pursuant to Sec. 83.6(b) of this 
chapter as recognized and receiving services from the Bureau that has 
adopted a constitution approved by the Secretary or the Commissioner.



Sec. 82.2  Purpose and scope.

    The purpose of this part is to provide uniformity and order in the 
formulation and submission of petitions requesting the Secretary or the 
Commissioner to call elections to amend tribal constitutions, to issue 
charters pursuant to a Federal Statute, and for such other purposes 
where constitutions and charters provide for petitioning to effect 
action by the Secretary or Commissioner.



Sec. 82.3  Applicability to tribal groups.

    The regulations in this part apply:
    (a) To any tribe which provides in its constitution for petitioning 
the Secretary or the Commissioner to call elections to amend the tribal 
constitution;
    (b) To any tribe whose constitution or charter provides for 
petitioning to effect any other action by the Secretary or Commissioner; 
and
    (c) To those tribal members at least 18 years of age who, pursuant 
to a Federal Statute, may wish to petition the Secretary to issue a 
charter to their tribe.



Sec. 82.4  Entitlement to petition.

    All members eligible to vote in elections conducted by a tribe shall 
be entitled to sign petitions to effect actions by the Secretary or 
Commissioner within the scope of Sec. 82.2; provided, that where a 
tribe is reorganized pursuant to a Federal Statute, only persons 
eligible to register for Secretarial elections may petition.



Sec. 82.5  Sufficiency of a petition.

    (a) The numerical sufficiency of any petition submitted pursuant to 
this part shall be based upon a number determined by the local Bureau 
official:
    (1) By consultation with the tribal governing body regarding the 
current number of tribal voters; or
    (2) For reorganized tribes, the number of members considered 
eligible to register for a Secretarial election and who are at least 18 
years of age.
    (b) The number shall be made available to the spokesman for the 
petitioners upon request along with a cut-off date when, for purposes of 
the petition, no further names will be added.



Sec. 82.6  Petition format.

    Petitions may consist of as many pages as are necessary to 
accommodate the signatures of the petitioners. However, each sheet of a 
petition must set forth at least a summary of the objectives of the 
petitioners and must show the date upon which the petition was signed by 
each individual as well as the current mailing address of each signer.



Sec. 82.7  Notarization of petition signatures.

    (a) Signatures to a petition must be authenticated in one of the 
following ways:
    (1) Through having each signer subscribe or acknowledge his/her 
signature before a notary public;
    (2) Through having the collector of signatures appeal before a 
notary and sign, in his/her presence, on each sheet

[[Page 267]]

of the petition, a statement attesting that the signatures were affixed 
on the dates shown and by the individuals whose names appear thereon, 
and that to the best of his/her knowledge the signatories are eligible, 
entitled, or qualified voters.
    (b) Only an eligible, entitled, or qualified tribal voter shall be 
recognized as a valid collector of petition signatures.



Sec. 82.8  Filing of petitions.

    All petitions submitted pursuant to this part must be filed with the 
local Bureau official having administrative jurisdiction over the tribe. 
No petitions will be accepted until a spokesman for the petitioners 
declares that he/she wishes to make an official filing. Once a 
declaration of the official filing is made and the petition is given to 
the local Bureau official, that official shall immediately enter on the 
petition the date of receipt (this date becomes the date of official 
filing) and shall inform the spokesman for the petitioners that no 
additional signatures may be added and that no withdrawal of signatures 
will be permitted. The local Bureau official shall also acknowledge, in 
writing, receipt of the petition, indicating the exact number of 
signatures which are attached and the official filing date. Upon this 
written acknowledgment of the petition, the local Bureau official shall 
publicly post at the local Bureau unit serving the tribe a statement of 
the matter proposed in the petition. This statement shall remain posted 
for a period of 30 days from the official filing date.



Sec. 82.9  Challenges.

    (a) Once an official filing has been made, the local Bureau official 
shall immediately have copies made of the petition and its signatures. 
The local Bureau official shall keep these copies at the Agency or field 
office for 15 days following the date of official filing, during which 
time they shall be available for examination by authorized voters of the 
tribe upon request. During this 15-day period, challenges of signatures 
may be filed with the local Bureau official.
    (b) Challenges will be considered on the following grounds:
    (1) Forgery of signatures; and
    (2) Lack of proper qualifications of a signer.

No challenge will be considered which is not accompanied by supporting 
evidence in writing. In the event that an individual's name appears on a 
petition more than once, all but one of the names shall be stricken.



Sec. 82.10  Action on the petition.

    (a) Within 30 days after the official filing date, the local Bureau 
official shall forward to the Area Director, or when the Area Director 
is the local Bureau official, directly to the Commissioner, the original 
of the petition and its accompanying signatures, together with 
recommendations concerning challenges and conclusions concerning:
    (1) The validity of the signatures;
    (2) The adequacy of the number of signatures; and
    (3) The propriety of the petitioning procedure.
    (b) The Area Director or the Commissioner, as the case may be, shall 
within 45 days after the official filing date decide upon each challenge 
and the sufficiency of the petition and announce whether the petition 
shall be acted upon. If a decision is reached that the petitioning 
action is for any reason insufficient, the spokesman for the petitioners 
and the governing body of the tribe will be so informed and given the 
reasons for the decision. If a petitioning action warrants action by the 
Secretary or Commissioner, the spokesman for the petitioners and the 
governing body of the tribe concerned will be so informed. The decision 
in such matters shall be final. The procedures for implementing any 
action initiated by the acceptance of a petition will be determined in 
accordance with pertinent directives and regulations.



Sec. 82.11  Duration of petition.

    Any petition submitted under this part, shall be considered only for 
the purpose stated therein. Once a petition has been acted upon, it 
shall not be used again.

[[Page 268]]



PART 83_PROCEDURES FOR ESTABLISHING THAT AN AMERICAN INDIAN GROUP EXISTS 
AS AN INDIAN TRIBE--Table of Contents




Sec.
83.1 Definitions.
83.2 Purpose.
83.3 Scope.
83.4 Filing a letter of intent.
83.5 Duties of the Department.
83.6 General provisions for the documented petition.
83.7 Mandatory criteria for Federal acknowledgment.
83.8 Previous Federal acknowledgment
83.9 Notice of receipt of a petition.
83.10 Processing of the documented petition.
83.11 Independent review, reconsideration and final action.
83.12 Implementation of decisions.
83.13 Information collection.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and 209 
Departmental Manual 8.

    Source: 59 FR 9293, Feb. 25, 1994, unless otherwise noted.



Sec. 83.1  Definitions.

    As used in this part:
    Area Office means a Bureau of Indian Affairs Area Office.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
or that officer's authorized representative.
    Autonomous means the exercise of political influence or authority 
independent of the control of any other Indian governing entity. 
Autonomous must be understood in the context of the history, geography, 
culture and social organization of the petitioning group.
    Board means the Interior Board of Indian Appeals.
    Bureau means the Bureau of Indian Affairs.
    Community means any group of people which can demonstrate that 
consistent interactions and significant social relationships exist 
within its membership and that its members are differentiated from and 
identified as distinct from nonmembers. Community must be understood in 
the context of the history, geography, culture and social organization 
of the group.
    Continental United States means the contiguous 48 states and Alaska.
    Continuously or continuous means extending from first sustained 
contact with non-Indians throughout the group's history to the present 
substantially without interruption.
    Department means the Department of the Interior.
    Documented petition means the detailed arguments made by a 
petitioner to substantiate its claim to continuous existence as an 
Indian tribe, together with the factual exposition and all documentary 
evidence necessary to demonstrate that these arguments address the 
mandatory criteria in Sec. 83.7(a) through (g).
    Historically, historical or history means dating from first 
sustained contact with non-Indians.
    Indian group or group means any Indian or Alaska Native aggregation 
within the continental United States that the Secretary of the Interior 
does not acknowledge to be an Indian tribe.
    Indian tribe, also referred to herein as tribe, means any Indian or 
Alaska Native tribe, band, pueblo, village, or community within the 
continental United States that the Secretary of the Interior presently 
acknowledges to exist as an Indian tribe.
    Indigenous means native to the continental United States in that at 
least part of the petitioner's territory at the time of sustained 
contact extended into what is now the continental United States.
    Informed party means any person or organization, other than an 
interested party, who requests an opportunity to submit comments or 
evidence or to be kept informed of general actions regarding a specific 
petitioner.
    Interested party means any person, organization or other entity who 
can establish a legal, factual or property interest in an acknowledgment 
determination and who requests an opportunity to submit comments or 
evidence or to be kept informed of general actions regarding a specific 
petitioner. ``Interested party'' includes the governor and attorney 
general of the state in which a petitioner is located, and may include, 
but is not limited to, local governmental units, and any recognized 
Indian tribes and unrecognized Indian groups that might be affected by 
an acknowledgment determination.

[[Page 269]]

    Letter of intent means an undocumented letter or resolution by which 
an Indian group requests Federal acknowledgment as an Indian tribe and 
expresses its intent to submit a documented petition.
    Member of an Indian group means an individual who is recognized by 
an Indian group as meeting its membership criteria and who consents to 
being listed as a member of that group.
    Member of an Indian tribe means an individual who meets the 
membership requirements of the tribe as set forth in its governing 
document or, absent such a document, has been recognized as a member 
collectively by those persons comprising the tribal governing body, and 
has consistently maintained tribal relations with the tribe or is listed 
on the tribal rolls of that tribe as a member, if such rolls are kept.
    Petitioner means any entity that has submitted a letter of intent to 
the Secretary requesting acknowledgment that it is an Indian tribe.
    Political influence or authority means a tribal council, leadership, 
internal process or other mechanism which the group has used as a means 
of influencing or controlling the behavior of its members in significant 
respects, and/or making decisions for the group which substantially 
affect its members, and/or representing the group in dealing with 
outsiders in matters of consequence. This process is to be understood in 
the context of the history, culture and social organization of the 
group.
    Previous Federal acknowledgment means action by the Federal 
government clearly premised on identification of a tribal political 
entity and indicating clearly the recognition of a relationship between 
that entity and the United States.
    Secretary means the Secretary of the Interior or that officer's 
authorized representative.
    Sustained contact means the period of earliest sustained non-Indian 
settlement and/or governmental presence in the local area in which the 
historical tribe or tribes from which the petitioner descends was 
located historically.
    Tribal relations means participation by an individual in a political 
and social relationship with an Indian tribe.
    Tribal roll, for purposes of these regulations, means a list 
exclusively of those individuals who have been determined by the tribe 
to meet the tribe's membership requirements as set forth in its 
governing document. In the absence of such a document, a tribal roll 
means a list of those recognized as members by the tribe's governing 
body. In either case, those individuals on a tribal roll must have 
affirmatively demonstrated consent to being listed as members.



Sec. 83.2  Purpose.

    The purpose of this part is to establish a departmental procedure 
and policy for acknowledging that certain American Indian groups exist 
as tribes. Acknowledgment of tribal existence by the Department is a 
prerequisite to the protection, services, and benefits of the Federal 
government available to Indian tribes by virtue of their status as 
tribes. Acknowledgment shall also mean that the tribe is entitled to the 
immunities and privileges available to other federally acknowledged 
Indian tribes by virtue of their government-to-government relationship 
with the United States as well as the responsibilities, powers, 
limitations and obligations of such tribes. Acknowledgment shall subject 
the Indian tribe to the same authority of Congress and the United States 
to which other federally acknowledged tribes are subjected.



Sec. 83.3  Scope.

    (a) This part applies only to those American Indian groups 
indigenous to the continental United States which are not currently 
acknowledged as Indian tribes by the Department. It is intended to apply 
to groups that can establish a substantially continuous tribal existence 
and which have functioned as autonomous entities throughout history 
until the present.
    (b) Indian tribes, organized bands, pueblos, Alaska Native villages, 
or communities which are already acknowledged as such and are receiving 
services from the Bureau of Indian Affairs may not be reviewed under the

[[Page 270]]

procedures established by these regulations.
    (c) Associations, organizations, corporations or groups of any 
character that have been formed in recent times may not be acknowledged 
under these regulations. The fact that a group that meets the criteria 
in Sec. 83.7 (a) through (g) has recently incorporated or otherwise 
formalized its existing autonomous political process will be viewed as a 
change in form and have no bearing on the Assistant Secretary's final 
decision.
    (d) Splinter groups, political factions, communities or groups of 
any character that separate from the main body of a currently 
acknowledged tribe may not be acknowledged under these regulations. 
However, groups that can establish clearly that they have functioned 
throughout history until the present as an autonomous tribal entity may 
be acknowledged under this part, even though they have been regarded by 
some as part of or have been associated in some manner with an 
acknowledged North American Indian tribe.
    (e) Further, groups which are, or the members of which are, subject 
to congressional legislation terminating or forbidding the Federal 
relationship may not be acknowledged under this part.
    (f) Finally, groups that previously petitioned and were denied 
Federal acknowledgment under these regulations or under previous 
regulations in part 83 of this title, may not be acknowledged under 
these regulations. This includes reorganized or reconstituted 
petitioners previously denied, or splinter groups, spin-offs, or 
component groups of any type that were once part of petitioners 
previously denied.
    (g) Indian groups whose documented petitions are under active 
consideration at the effective date of these revised regulations may 
choose to complete their petitioning process either under these 
regulations or under the previous acknowledgment regulations in part 83 
of this title. This choice must be made by April 26, 1994. This option 
shall apply to any petition for which a determination is not final and 
effective. Such petitioners may request a suspension of consideration 
under Sec. 83.10(g) of not more than 180 days in order to provide 
additional information or argument.



Sec. 83.4  Filing a letter of intent.

    (a) Any Indian group in the continental United States that believes 
it should be acknowledged as an Indian tribe and that it can satisfy the 
criteria in Sec. 83.7 may submit a letter of intent.
    (b) Letters of intent requesting acknowledgment that an Indian group 
exists as an Indian tribe shall be filed with the Assistant Secretary--
Indian Affairs, Department of the Interior, 1849 C Street, NW., 
Washington, DC 20240. Attention: Branch of Acknowledgment and Research, 
Mail Stop 2611-MIB. A letter of intent may be filed in advance of, or at 
the same time as, a group's documented petition.
    (c) A letter of intent must be produced, dated and signed by the 
governing body of an Indian group and submitted to the Assistant 
Secretary.



Sec. 83.5  Duties of the Department.

    (a) The Department shall publish in the Federal Register, no less 
frequently than every three years, a list of all Indian tribes entitled 
to receive services from the Bureau by virtue of their status as Indian 
tribes. The list may be published more frequently, if the Assistant 
Secretary deems it necessary.
    (b) The Assistant Secretary shall make available revised and 
expanded guidelines for the preparation of documented petitions by 
September 23, 1994. These guidelines will include an explanation of the 
criteria and other provisions of the regulations, a discussion of the 
types of evidence which may be used to demonstrate particular criteria 
or other provisions of the regulations, and general suggestions and 
guidelines on how and where to conduct research. The guidelines may be 
supplemented or updated as necessary. The Department's example of a 
documented petition format, while preferable, shall not preclude the use 
of any other format.
    (c) The Department shall, upon request, provide petitioners with 
suggestions and advice regarding preparation of the documented petition. 
The Department shall not be responsible for

[[Page 271]]

the actual research on behalf of the petitioner.
    (d) Any notice which by the terms of these regulations must be 
published in the Federal Register, shall also be mailed to the 
petitioner, the governor of the state where the group is located, and to 
other interested parties.
    (e) After an Indian group has filed a letter of intent requesting 
Federal acknowledgment as an Indian tribe and until that group has 
actually submitted a documented petition, the Assistant Secretary may 
contact the group periodically and request clarification, in writing, of 
its intent to continue with the petitioning process.
    (f) All petitioners under active consideration shall be notified, by 
April 16, 1994, of the opportunity under Sec. 83.3(g) to choose whether 
to complete their petitioning process under the provisions of these 
revised regulations or the previous regulations as published, on 
September 5, 1978, at 43 FR 39361.
    (g) All other groups that have submitted documented petitions or 
letters of intent shall be notified of and provided with a copy of these 
regulations by July 25, 1994.



Sec. 83.6  General provisions for the documented petition.

    (a) The documented petition may be in any readable form that 
contains detailed, specific evidence in support of a request to the 
Secretary to acknowledge tribal existence.
    (b) The documented petition must include a certification, signed and 
dated by members of the group's governing body, stating that it is the 
group's official documented petition.
    (c) A petitioner must satisfy all of the criteria in paragraphs (a) 
through (g) of Sec. 83.7 in order for tribal existence to be 
acknowledged. Therefore, the documented petition must include thorough 
explanations and supporting documentation in response to all of the 
criteria. The definitions in Sec. 83.1 are an integral part of the 
regulations, and the criteria should be read carefully together with 
these definitions.
    (d) A petitioner may be denied acknowledgment if the evidence 
available demonstrates that it does not meet one or more criteria. A 
petitioner may also be denied if there is insufficient evidence that it 
meets one or more of the criteria. A criterion shall be considered met 
if the available evidence establishes a reasonable likelihood of the 
validity of the facts relating to that criterion. Conclusive proof of 
the facts relating to a criterion shall not be required in order for the 
criterion to be considered met.
    (e) Evaluation of petitions shall take into account historical 
situations and time periods for which evidence is demonstrably limited 
or not available. The limitations inherent in demonstrating the 
historical existence of community and political influence or authority 
shall also be taken into account. Existence of community and political 
influence or authority shall be demonstrated on a substantially 
continuous basis, but this demonstration does not require meeting these 
criteria at every point in time. Fluctuations in tribal activity during 
various years shall not in themselves be a cause for denial of 
acknowledgment under these criteria.
    (f) The criteria in Sec. 83.7 (a) through (g) shall be interpreted 
as applying to tribes or groups that have historically combined and 
functioned as a single autonomous political entity.
    (g) The specific forms of evidence stated in the criteria in Sec. 
83.7 (a) through (c) and Sec. 83.7(e) are not mandatory requirements. 
The criteria may be met alternatively by any suitable evidence that 
demonstrates that the petitioner meets the requirements of the criterion 
statement and related definitions.



Sec. 83.7  Mandatory criteria for Federal acknowledgment.

    The mandatory criteria are:
    (a) The petitioner has been identified as an American Indian entity 
on a substantially continuous basis since 1900. Evidence that the 
group's character as an Indian entity has from time to time been denied 
shall not be considered to be conclusive evidence that this criterion 
has not been met. Evidence to be relied upon in determining a group's 
Indian identity may include one or a combination of the following, as 
well as other evidence of identification by other than the petitioner 
itself or its members.

[[Page 272]]

    (1) Identification as an Indian entity by Federal authorities.
    (2) Relationships with State governments based on identification of 
the group as Indian.
    (3) Dealings with a county, parish, or other local government in a 
relationship based on the group's Indian identity.
    (4) Identification as an Indian entity by anthropologists, 
historians, and/or other scholars.
    (5) Identification as an Indian entity in newspapers and books.
    (6) Identification as an Indian entity in relationships with Indian 
tribes or with national, regional, or state Indian organizations.
    (b) A predominant portion of the petitioning group comprises a 
distinct community and has existed as a community from historical times 
until the present.
    (1) This criterion may be demonstrated by some combination of the 
following evidence and/or other evidence that the petitioner meets the 
definition of community set forth in Sec. 83.1:
    (i) Significant rates of marriage within the group, and/or, as may 
be culturally required, patterned out-marriages with other Indian 
populations.
    (ii) Significant social relationships connecting individual members.
    (iii) Significant rates of informal social interaction which exist 
broadly among the members of a group.
    (iv) A significant degree of shared or cooperative labor or other 
economic activity among the membership.
    (v) Evidence of strong patterns of discrimination or other social 
distinctions by non-members.
    (vi) Shared sacred or secular ritual activity encompassing most of 
the group.
    (vii) Cultural patterns shared among a significant portion of the 
group that are different from those of the non-Indian populations with 
whom it interacts. These patterns must function as more than a symbolic 
identification of the group as Indian. They may include, but are not 
limited to, language, kinship organization, or religious beliefs and 
practices.
    (viii) The persistence of a named, collective Indian identity 
continuously over a period of more than 50 years, notwithstanding 
changes in name.
    (ix) A demonstration of historical political influence under the 
criterion in Sec. 83.7(c) shall be evidence for demonstrating 
historical community.
    (2) A petitioner shall be considered to have provided sufficient 
evidence of community at a given point in time if evidence is provided 
to demonstrate any one of the following:
    (i) More than 50 percent of the members reside in a geographical 
area exclusively or almost exclusively composed of members of the group, 
and the balance of the group maintains consistent interaction with some 
members of the community;
    (ii) At least 50 percent of the marriages in the group are between 
members of the group;
    (iii) At least 50 percent of the group members maintain distinct 
cultural patterns such as, but not limited to, language, kinship 
organization, or religious beliefs and practices;
    (iv) There are distinct community social institutions encompassing 
most of the members, such as kinship organizations, formal or informal 
economic cooperation, or religious organizations; or
    (v) The group has met the criterion in Sec. 83.7(c) using evidence 
described in Sec. 83.7(c)(2).
    (c) The petitioner has maintained political influence or authority 
over its members as an autonomous entity from historical times until the 
present.
    (1) This criterion may be demonstrated by some combination of the 
evidence listed below and/or by other evidence that the petitioner meets 
the definition of political influence or authority in Sec. 83.1.
    (i) The group is able to mobilize significant numbers of members and 
significant resources from its members for group purposes.
    (ii) Most of the membership considers issues acted upon or actions 
taken by group leaders or governing bodies to be of importance.
    (iii) There is widespread knowledge, communication and involvement 
in political processes by most of the group's members.
    (iv) The group meets the criterion in Sec. 83.7(b) at more than a 
minimal level.

[[Page 273]]

    (v) There are internal conflicts which show controversy over valued 
group goals, properties, policies, processes and/or decisions.
    (2) A petitioning group shall be considered to have provided 
sufficient evidence to demonstrate the exercise of political influence 
or authority at a given point in time by demonstrating that group 
leaders and/or other mechanisms exist or existed which:
    (i) Allocate group resources such as land, residence rights and the 
like on a consistent basis.
    (ii) Settle disputes between members or subgroups by mediation or 
other means on a regular basis;
    (iii) Exert strong influence on the behavior of individual members, 
such as the establishment or maintenance of norms and the enforcement of 
sanctions to direct or control behavior;
    (iv) Organize or influence economic subsistence activities among the 
members, including shared or cooperative labor.
    (3) A group that has met the requirements in paragraph 83.7(b)(2) at 
a given point in time shall be considered to have provided sufficient 
evidence to meet this criterion at that point in time.
    (d) A copy of the group's present governing document including its 
membership criteria. In the absence of a written document, the 
petitioner must provide a statement describing in full its membership 
criteria and current governing procedures.
    (e) The petitioner's membership consists of individuals who descend 
from a historical Indian tribe or from historical Indian tribes which 
combined and functioned as a single autonomous political entity.
    (1) Evidence acceptable to the Secretary which can be used for this 
purpose includes but is not limited to:
    (i) Rolls prepared by the Secretary on a descendancy basis for 
purposes of distributing claims money, providing allotments, or other 
purposes;
    (ii) State, Federal, or other official records or evidence 
identifying present members or ancestors of present members as being 
descendants of a historical tribe or tribes that combined and functioned 
as a single autonomous political entity.
    (iii) Church, school, and other similar enrollment records 
identifying present members or ancestors of present members as being 
descendants of a historical tribe or tribes that combined and functioned 
as a single autonomous political entity.
    (iv) Affidavits of recognition by tribal elders, leaders, or the 
tribal governing body identifying present members or ancestors of 
present members as being descendants of a historical tribe or tribes 
that combined and functioned as a single autonomous political entity.
    (v) Other records or evidence identifying present members or 
ancestors of present members as being descendants of a historical tribe 
or tribes that combined and functioned as a single autonomous political 
entity.
    (2) The petitioner must provide an official membership list, 
separately certified by the group's governing body, of all known current 
members of the group. This list must include each member's full name 
(including maiden name), date of birth, and current residential address. 
The petitioner must also provide a copy of each available former list of 
members based on the group's own defined criteria, as well as a 
statement describing the circumstances surrounding the preparation of 
the current list and, insofar as possible, the circumstances surrounding 
the preparation of former lists.
    (f) The membership of the petitioning group is composed principally 
of persons who are not members of any acknowledged North American Indian 
tribe. However, under certain conditions a petitioning group may be 
acknowledged even if its membership is composed principally of persons 
whose names have appeared on rolls of, or who have been otherwise 
associated with, an acknowledged Indian tribe. The conditions are that 
the group must establish that it has functioned throughout history until 
the present as a separate and autonomous Indian tribal entity, that its 
members do not maintain a bilateral political relationship with the 
acknowledged tribe, and that its members have provided written 
confirmation of their membership in the petitioning group.

[[Page 274]]

    (g) Neither the petitioner nor its members are the subject of 
congressional legislation that has expressly terminated or forbidden the 
Federal relationship.



Sec. 83.8  Previous Federal acknowledgment.

    (a) Unambiguous previous Federal acknowledgment is acceptable 
evidence of the tribal character of a petitioner to the date of the last 
such previous acknowledgment. If a petitioner provides substantial 
evidence of unambiguous Federal acknowledgment, the petitioner will then 
only be required to demonstrate that it meets the requirements of Sec. 
83.7 to the extent required by this section.
    (b) A determination of the adequacy of the evidence of previous 
Federal action acknowledging tribal status shall be made during the 
technical assistance review of the documented petition conducted 
pursuant to Sec. 83.10(b). If a petition is awaiting active 
consideration at the time of adoption of these regulations, this review 
will be conducted while the petition is under active consideration 
unless the petitioner requests in writing that this review be made in 
advance.
    (c) Evidence to demonstrate previous Federal acknowledgment 
includes, but is not limited to:
    (1) Evidence that the group has had treaty relations with the United 
States.
    (2) Evidence that the group has been denominated a tribe by act of 
Congress or Executive Order.
    (3) Evidence that the group has been treated by the Federal 
Government as having collective rights in tribal lands or funds.
    (d) To be acknowledged, a petitioner that can demonstrate previous 
Federal acknowledgment must show that:
    (1) The group meets the requirements of the criterion in Sec. 
83.7(a), except that such identification shall be demonstrated since the 
point of last Federal acknowledgment. The group must further have been 
identified by such sources as the same tribal entity that was previously 
acknowledged or as a portion that has evolved from that entity.
    (2) The group meets the requirements of the criterion in Sec. 
83.7(b) to demonstrate that it comprises a distinct community at 
present. However, it need not provide evidence to demonstrate existence 
as a community historically.
    (3) The group meets the requirements of the criterion in Sec. 
83.7(c) to demonstrate that political influence or authority is 
exercised within the group at present. Sufficient evidence to meet the 
criterion in Sec. 83.7(c) from the point of last Federal acknowledgment 
to the present may be provided by demonstration of substantially 
continuous historical identification, by authoritative, knowledgeable 
external sources, of leaders and/or a governing body who exercise 
political influence or authority, together with demonstration of one 
form of evidence listed in Sec. 83.7(c).
    (4) The group meets the requirements of the criteria in paragraphs 
83.7 (d) through (g).
    (5) If a petitioner which has demonstrated previous Federal 
acknowledgment cannot meet the requirements in paragraphs (d) (1) and 
(3), the petitioner may demonstrate alternatively that it meets the 
requirements of the criteria in Sec. 83.7 (a) through (c) from last 
Federal acknowledgment until the present.



Sec. 83.9  Notice of receipt of a petition.

    (a) Within 30 days after receiving a letter of intent, or a 
documented petition if a letter of intent has not previously been 
received and noticed, the Assistant Secretary shall acknowledge such 
receipt in writing and shall have published within 60 days in the 
Federal Register a notice of such receipt. This notice must include the 
name, location, and mailing address of the petitioner and such other 
information as will identify the entity submitting the letter of intent 
or documented petition and the date it was received. This notice shall 
also serve to announce the opportunity for interested parties and 
informed parties to submit factual or legal arguments in support of or 
in opposition to the petitioner's request for acknowledgment and/or to 
request to be kept informed of all general actions affecting the 
petition. The notice shall also indicate where a copy of the letter

[[Page 275]]

of intent and the documented petition may be examined.
    (b) The Assistant Secretary shall notify, in writing, the governor 
and attorney general of the state in which a petitioner is located. The 
Assistant Secretary shall also notify any recognized tribe and any other 
petitioner which appears to have a historical or present relationship 
with the petitioner or which may otherwise be considered to have a 
potential interest in the acknowledgment determination.
    (c) The Assistant Secretary shall also publish the notice of receipt 
of the letter of intent, or documented petition if a letter of intent 
has not been previously received, in a major newspaper or newspapers of 
general circulation in the town or city nearest to the petitioner. The 
notice will include all of the information in paragraph (a) of this 
section.



Sec. 83.10  Processing of the documented petition.

    (a) Upon receipt of a documented petition, the Assistant Secretary 
shall cause a review to be conducted to determine whether the petitioner 
is entitled to be acknowledged as an Indian tribe. The review shall 
include consideration of the documented petition and the factual 
statements contained therein. The Assistant Secretary may also initiate 
other research for any purpose relative to analyzing the documented 
petition and obtaining additional information about the petitioner's 
status. The Assistant Secretary may likewise consider any evidence which 
may be submitted by interested parties or informed parties.
    (b) Prior to active consideration of the documented petition, the 
Assistant Secretary shall conduct a preliminary review of the petition 
for purposes of technical assistance.
    (1) This technical assistance review does not constitute the 
Assistant Secretary's review to determine if the petitioner is entitled 
to be acknowledged as an Indian tribe. It is a preliminary review for 
the purpose of providing the petitioner an opportunity to supplement or 
revise the documented petition prior to active consideration. Insofar as 
possible, technical assistance reviews under this paragraph will be 
conducted in the order of receipt of documented petitions. However, 
technical assistance reviews will not have priority over active 
consideration of documented petitions.
    (2) After the technical assistance review, the Assistant Secretary 
shall notify the petitioner by letter of any obvious deficiencies or 
significant omissions apparent in the documented petition and provide 
the petitioner with an opportunity to withdraw the documented petition 
for further work or to submit additional information and/or 
clarification.
    (3) If a petitioner's documented petition claims previous Federal 
acknowledgment and/or includes evidence of previous Federal 
acknowledgment, the technical assistance review will also include a 
review to determine whether that evidence is sufficient to meet the 
requirements of previous Federal acknowledgment as defined in Sec. 
83.1.
    (c) Petitioners have the option of responding in part or in full to 
the technical assistance review letter or of requesting, in writing, 
that the Assistant Secretary proceed with the active consideration of 
the documented petition using the materials already submitted.
    (1) If the petitioner requests that the materials submitted in 
response to the technical assistance review letter be again reviewed for 
adequacy, the Assistant Secretary will provide the additional review. 
However, this additional review will not be automatic and will be 
conducted only at the request of the petitioner.
    (2) If the assertion of previous Federal acknowledgment under Sec. 
83.8 cannot be substantiated during the technical assistance review, the 
petitioner must respond by providing additional evidence. A petitioner 
claiming previous Federal acknowledgment who fails to respond to a 
technical assistance review letter under this paragraph, or whose 
response fails to establish the claim, shall have its documented 
petition considered on the same basis as documented petitions submitted 
by groups not claiming previous Federal acknowledgment. Petitioners that 
fail to demonstrate previous Federal acknowledgment after a

[[Page 276]]

review of materials submitted in response to the technical assistance 
review shall be so notified. Such petitioners may submit additional 
materials concerning previous acknowledgment during the course of active 
consideration.
    (d) The order of consideration of documented petitions shall be 
determined by the date of the Bureau's notification to the petitioner 
that it considers that the documented petition is ready to be placed on 
active consideration. The Assistant Secretary shall establish and 
maintain a numbered register of documented petitions which have been 
determined ready for active consideration. The Assistant Secretary shall 
also maintain a numbered register of letters of intent or incomplete 
petitions based on the original date of filing with the Bureau. In the 
event that two or more documented petitions are determined ready for 
active consideration on the same date, the register of letters of intent 
or incomplete petitions shall determine the order of consideration by 
the Assistant Secretary.
    (e) Prior to active consideration, the Assistant Secretary shall 
investigate any petitioner whose documented petition and response to the 
technical assistance review letter indicates that there is little or no 
evidence that establishes that the group can meet the mandatory criteria 
in paragraph (e), (f) or (g) of Sec. 83.7.
    (1) If this review finds that the evidence clearly establishes that 
the group does not meet the mandatory criteria in paragraph (e), (f) or 
(g) of Sec. 83.7, a full consideration of the documented petition under 
all seven of the mandatory criteria will not be undertaken pursuant to 
paragraph (a) of this section. Rather, the Assistant Secretary shall 
instead decline to acknowledge that the petitioner is an Indian tribe 
and publish a proposed finding to that effect in the Federal Register. 
The periods for receipt of comments on the proposed finding from 
petitioners, interested parties and informed parties, for consideration 
of comments received, and for publication of a final determination 
regarding the petitioner's status shall follow the timetables 
established in paragraphs (h) through (l) of this section.
    (2) If the review cannot clearly demonstrate that the group does not 
meet one or more of the mandatory criteria in paragraph (e), (f) or (g) 
of Sec. 83.7, a full evaluation of the documented petition under all 
seven of the mandatory criteria shall be undertaken during active 
consideration of the documented petition pursuant to paragraph (g) of 
this section.
    (f) The petitioner and interested parties shall be notified when the 
documented petition comes under active consideration.
    (1) They shall also be provided with the name, office address, and 
telephone number of the staff member with primary administrative 
responsibility for the petition; the names of the researchers conducting 
the evaluation of the petition; and the name of their supervisor.
    (2) The petitioner shall be notified of any substantive comment on 
its petition received prior to the beginning of active consideration or 
during the preparation of the proposed finding, and shall be provided an 
opportunity to respond to such comments.
    (g) Once active consideration of the documented petition has begun, 
the Assistant Secretary shall continue the review and publish proposed 
findings and a final determination in the Federal Register pursuant to 
these regulations, notwithstanding any requests by the petitioner or 
interested parties to cease consideration. The Assistant Secretary has 
the discretion, however, to suspend active consideration of a documented 
petition, either conditionally or for a stated period of time, upon a 
showing to the petitioner that there are technical problems with the 
documented petition or administrative problems that temporarily preclude 
continuing active consideration. The Assistant Secretary shall also 
consider requests by petitioners for suspension of consideration and has 
the discretion to grant such requests for good cause. Upon resolution of 
the technical or administrative problems that are the basis for the 
suspension, the documented petition will have priority on the numbered 
register of documented

[[Page 277]]

petitions insofar as possible. The Assistant Secretary shall notify the 
petitioner and interested parties when active consideration of the 
documented petition is resumed. The timetables in succeeding paragraphs 
shall begin anew upon the resumption of active consideration.
    (h) Within one year after notifying the petitioner that active 
consideration of the documented petition has begun, the Assistant 
Secretary shall publish proposed findings in the Federal Register. The 
Assistant Secretary has the discretion to extend that period up to an 
additional 180 days. The petitioner and interested parties shall be 
notified of the time extension. In addition to the proposed findings, 
the Assistant Secretary shall prepare a report summarizing the evidence, 
reasoning, and analyses that are the basis for the proposed decision. 
Copies of the report shall be provided to the petitioner, interested 
parties, and informed parties and made available to others upon written 
request.
    (i) Upon publication of the proposed findings, the petitioner or any 
individual or organization wishing to challenge or support the proposed 
findings shall have 180 days to submit arguments and evidence to the 
Assistant Secretary to rebut or support the proposed finding. The period 
for comment on a proposed finding may be extended for up to an 
additional 180 days at the Assistant Secretary's discretion upon a 
finding of good cause. The petitioner and interested parties shall be 
notified of the time extension. Interested and informed parties who 
submit arguments and evidence to the Assistant Secretary must provide 
copies of their submissions to the petitioner.
    (j)(1) During the response period, the Assistant Secretary shall 
provide technical advice concerning the factual basis for the proposed 
finding, the reasoning used in preparing it, and suggestions regarding 
the preparation of materials in response to the proposed finding. The 
Assistant Secretary shall make available to the petitioner in a timely 
fashion any records used for the proposed finding not already held by 
the petitioner, to the extent allowable by Federal law.
    (2) In addition, the Assistant Secretary shall, if requested by the 
petitioner or any interested party, hold a formal meeting for the 
purpose of inquiring into the reasoning, analyses, and factual bases for 
the proposed finding. The proceedings of this meeting shall be on the 
record. The meeting record shall be available to any participating party 
and become part of the record considered by the Assistant Secretary in 
reaching a final determination.
    (k) The petitioner shall have a minimum of 60 days to respond to any 
submissions by interested and informed parties during the response 
period. This may be extended at the Assistant Secretary's discretion if 
warranted by the extent and nature of the comments. The petitioner and 
interested parties shall be notified by letter of any extension. No 
further comments from interested or informed parties will be accepted 
after the end of the regular response period.
    (l) At the end of the period for comment on a proposed finding, the 
Assistant Secretary shall consult with the petitioner and interested 
parties to determine an equitable timeframe for consideration of written 
arguments and evidence submitted during the response period. The 
petitioner and interested parties shall be notified of the date such 
consideration begins.
    (1) Unsolicited comments submitted after the close of the response 
period established in Sec. 83.10(i) and Sec. 83.10(k), will not be 
considered in preparation of a final determination. The Assistant 
Secretary has the discretion during the preparation of the proposed 
finding, however, to request additional explanations and information 
from the petitioner or from commenting parties to support or supplement 
their comments on a proposed finding. The Assistant Secretary may also 
conduct such additional research as is necessary to evaluate and 
supplement the record. In either case, the additional materials will 
become part of the petition record.
    (2) After consideration of the written arguments and evidence 
rebutting or supporting the proposed finding and the petitioner's 
response to the comments of interested parties and informed parties, the 
Assistant Secretary

[[Page 278]]

shall make a final determination regarding the petitioner's status. A 
summary of this determination shall be published in the Federal Register 
within 60 days from the date on which the consideration of the written 
arguments and evidence rebutting or supporting the proposed finding 
begins.
    (3) The Assistant Secretary has the discretion to extend the period 
for the preparation of a final determination if warranted by the extent 
and nature of evidence and arguments received during the response 
period. The petitioner and interested parties shall be notified of the 
time extension.
    (4) The determination will become effective 90 days from publication 
unless a request for reconsideration is filed pursuant to Sec. 83.11.
    (m) The Assistant Secretary shall acknowledge the existence of the 
petitioner as an Indian tribe when it is determined that the group 
satisfies all of the criteria in Sec. 83.7. The Assistant Secretary 
shall decline to acknowledge that a petitioner is an Indian tribe if it 
fails to satisfy any one of the criteria in Sec. 83.7.
    (n) If the Assistant Secretary declines to acknowledge that a 
petitioner is an Indian tribe, the petitioner shall be informed of 
alternatives, if any, to acknowledgment under these procedures. These 
alternatives may include other means through which the petitioning group 
may achieve the status of an acknowledged Indian tribe or through which 
any of its members may become eligible for services and benefits from 
the Department as Indians, or become members of an acknowledged Indian 
tribe.
    (o) The determination to decline to acknowledge that the petitioner 
is an Indian tribe shall be final for the Department.
    (p) A petitioner that has petitioned under this part or under the 
acknowledgment regulations previously effective and that has been denied 
Federal acknowledgment may not re-petition under this part. The term 
``petitioner'' here includes previously denied petitioners that have 
reorganized or been renamed or that are wholly or primarily portions of 
groups that have previously been denied under these or previous 
acknowledgment regulations.



Sec. 83.11  Independent review, reconsideration and final action.

    (a)(1) Upon publication of the Assistant Secretary's determination 
in the Federal Register, the petitioner or any interested party may file 
a request for reconsideration with the Interior Board of Indian Appeals. 
Petitioners which choose under Sec. 83.3(g) to be considered under 
previously effective acknowledgment regulations may nonetheless request 
reconsideration under this section.
    (2) A petitioner's or interested party's request for reconsideration 
must be received by the Board no later than 90 days after the date of 
publication of the Assistant Secretary's determination in the Federal 
Register. If no request for reconsideration has been received, the 
Assistant Secretary's decision shall be final for the Department 90 days 
after publication of the final determination in the Federal Register.
    (b) The petitioner's or interested party's request for 
reconsideration shall contain a detailed statement of the grounds for 
the request, and shall include any new evidence to be considered.
    (1) The detailed statement of grounds for reconsideration filed by a 
petitioner or interested parties shall be considered the appellant's 
opening brief provided for in 43 CFR 4.311(a).
    (2) The party or parties requesting the reconsideration shall mail 
copies of the request to the petitioner and all other interested 
parties.
    (c)(1) The Board shall dismiss a request for reconsideration that is 
not filed by the deadline specified in paragraph (a) of this section.
    (2) If a petitioner's or interested party's request for 
reconsideration is filed on time, the Board shall determine, within 120 
days after publication of the Assistant Secretary's final determination 
in the Federal Register, whether the request alleges any of the grounds 
in paragraph (d) of this section and shall notify the petitioner and 
interested parties of this determination.
    (d) The Board shall have the authority to review all requests for 
reconsideration that are timely and that allege any of the following:

[[Page 279]]

    (1) That there is new evidence that could affect the determination; 
or
    (2) That a substantial portion of the evidence relied upon in the 
Assistant Secretary's determination was unreliable or was of little 
probative value; or
    (3) That petitioner's or the Bureau's research appears inadequate or 
incomplete in some material respect; or
    (4) That there are reasonable alternative interpretations, not 
previously considered, of the evidence used for the final determination, 
that would substantially affect the determination that the petitioner 
meets or does not meet one or more of the criteria in Sec. 83.7 (a) 
through (g).
    (e) The Board shall have administrative authority to review 
determinations of the Assistant Secretary made pursuant to Sec. 
83.10(m) to the extent authorized by this section.
    (1) The regulations at 43 CFR 4.310--4.318 and 4.331--4.340 shall 
apply to proceedings before the Board except when they are inconsistent 
with these regulations.
    (2) The Board may establish such procedures as it deems appropriate 
to provide a full and fair evaluation of a request for reconsideration 
under this section to the extent they are not inconsistent with these 
regulations.
    (3) The Board, at its discretion, may request experts not associated 
with the Bureau, the petitioner, or interested parties to provide 
comments, recommendations, or technical advice concerning the 
determination, the administrative record, or materials filed by the 
petitioner or interested parties. The Board may also request, at its 
discretion, comments or technical assistance from the Assistant 
Secretary concerning the final determination or, pursuant to paragraph 
(e)(8) of this section, the record used for the determination.
    (4) Pursuant to 43 CFR 4.337(a), the Board may require, at its 
discretion, a hearing conducted by an administrative law judge of the 
Office of Hearings and Appeals if the Board determines that further 
inquiry is necessary to resolve a genuine issue of material fact or to 
otherwise augment the record before it concerning the grounds for 
reconsideration.
    (5) The detailed statement of grounds for reconsideration filed by a 
petitioner or interested parties pursuant to paragraph (b)(1) of this 
section shall be considered the appellant's opening brief provided for 
in 43 CFR 4.311(a).
    (6) An appellant's reply to an opposing party's answer brief, 
provided for in 43 CFR 4.311(b), shall not apply to proceedings under 
this section, except that a petitioner shall have the opportunity to 
reply to an answer brief filed by any party that opposes a petitioner's 
request for reconsideration.
    (7) The opportunity for reconsideration of a Board decision provided 
for in 43 CFR 4.315 shall not apply to proceedings under this section.
    (8) For purposes of review by the Board, the administrative record 
shall consist of all appropriate documents in the Branch of 
Acknowledgment and Research relevant to the determination involved in 
the request for reconsideration. The Assistant Secretary shall designate 
and transmit to the Board copies of critical documents central to the 
portions of the determination under a request for reconsideration. The 
Branch of Acknowledgment and Research shall retain custody of the 
remainder of the administrative record, to which the Board shall have 
unrestricted access.
    (9) The Board shall affirm the Assistant Secretary's determination 
if the Board finds that the petitioner or interested party has failed to 
establish, by a preponderance of the evidence, at least one of the 
grounds under paragraphs (d)(1)--(d)(4) of this section.
    (10) The Board shall vacate the Assistant Secretary's determination 
and remand it to the Assistant Secretary for further work and 
reconsideration if the Board finds that the petitioner or an interested 
party has established, by a preponderance of the evidence, one or more 
of the grounds under paragraphs (d)(1)--(d)(4) of this section.
    (f)(1) The Board, in addition to making its determination to affirm 
or remand, shall describe in its decision any grounds for 
reconsideration other than those in paragraphs (d)(1)--(d)(4) of this 
section alleged by a petitioner's or interested party's request for 
reconsideration.

[[Page 280]]

    (2) If the Board affirms the Assistant Secretary's decision under 
Sec. 83.11(e)(9) but finds that the petitioner or interested parties 
have alleged other grounds for reconsideration, the Board shall send the 
requests for reconsideration to the Secretary. The Secretary shall have 
the discretion to request that the Assistant Secretary reconsider the 
final determination on those grounds.
    (3) The Secretary, in reviewing the Assistant Secretary's decision, 
may review any information available, whether formally part of the 
record or not. Where the Secretary's review relies upon information that 
is not formally part of the record, the Secretary shall insert the 
information relied upon into the record, together with an identification 
of its source and nature.
    (4) Where the Board has sent the Secretary a request for 
reconsideration under paragraph (f)(2), the petitioner and interested 
parties shall have 30 days from receiving notice of the Board's decision 
to submit comments to the Secretary. Where materials are submitted to 
the Secretary opposing a petitioner's request for reconsideration, the 
interested party shall provide copies to the petitioner and the 
petitioner shall have 15 days from their receipt of the information to 
file a response with the Secretary.
    (5) The Secretary shall make a determination whether to request a 
reconsideration of the Assistant Secretary's determination within 60 
days of receipt of all comments and shall notify all parties of the 
decision.
    (g)(1) The Assistant Secretary shall issue a reconsidered 
determination within 120 days of receipt of the Board's decision to 
remand a determination or the Secretary's request for reconsideration.
    (2) The Assistant Secretary's reconsideration shall address all 
grounds determined to be valid grounds for reconsideration in a remand 
by the Board, other grounds described by the Board pursuant to paragraph 
(f)(1), and all grounds specified in any Secretarial request. The 
Assistant Secretary's reconsideration may address any issues and 
evidence consistent with the Board's decision or the Secretary's 
request.
    (h)(1) If the Board finds that no petitioner's or interested party's 
request for reconsideration is timely, the Assistant Secretary's 
determination shall become effective and final for the Department 120 
days from the publication of the final determination in the Federal 
Register.
    (2) If the Secretary declines to request reconsideration under 
paragraph (f)(2) of this section, the Assistant Secretary's decision 
shall become effective and final for the Department as of the date of 
notification to all parties of the Secretary's decision.
    (3) If a determination is reconsidered by the Assistant Secretary 
because of action by the Board remanding a decision or because the 
Secretary has requested reconsideration, the reconsidered determination 
shall be final and effective upon publication of the notice of this 
reconsidered determination in the Federal Register.



Sec. 83.12  Implementation of decisions.

    (a) Upon final determination that the petitioner exists as an Indian 
tribe, it shall be considered eligible for the services and benefits 
from the Federal government that are available to other federally 
recognized tribes. The newly acknowledged tribe shall be considered a 
historic tribe and shall be entitled to the privileges and immunities 
available to other federally recognized historic tribes by virtue of 
their government-to-government relationship with the United States. It 
shall also have the responsibilities and obligations of such tribes. 
Newly acknowledged Indian tribes shall likewise be subject to the same 
authority of Congress and the United States as are other federally 
acknowledged tribes.
    (b) Upon acknowledgment as an Indian tribe, the list of members 
submitted as part of the petitioners documented petition shall be the 
tribe's complete base roll for purposes of Federal funding and other 
administrative purposes. For Bureau purposes, any additions made to the 
roll, other than individuals who are descendants of those on the roll 
and who meet the tribe's membership criteria, shall be limited to those 
meeting the requirements of Sec. 83.7(e) and maintaining significant 
social and political ties with the tribe

[[Page 281]]

(i.e., maintaining the same relationship with the tribe as those on the 
list submitted with the group's documented petition).
    (c) While the newly acknowledged tribe shall be considered eligible 
for benefits and services available to federally recognized tribes 
because of their status as Indian tribes, acknowledgment of tribal 
existence shall not create immediate access to existing programs. The 
tribe may participate in existing programs after it meets the specific 
program requirements, if any, and upon appropriation of funds by 
Congress. Requests for appropriations shall follow a determination of 
the needs of the newly acknowledged tribe.
    (d) Within six months after acknowledgment, the appropriate Area 
Office shall consult with the newly acknowledged tribe and develop, in 
cooperation with the tribe, a determination of needs and a recommended 
budget. These shall be forwarded to the Assistant Secretary. The 
recommended budget will then be considered along with other 
recommendations by the Assistant Secretary in the usual budget request 
process.



Sec. 83.13  Information collection.

    (a) The collections of information contained in Sec. 83.7 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1076-0104. The information will be 
used to establish historical existence as a tribe, verify family 
relationships and the group's claim that its members are Indian and 
descend from a historical tribe or tribes which combined, that members 
are not substantially enrolled in other Indian tribes, and that they 
have not individually or as a group been terminated or otherwise 
forbidden the Federal relationship. Response is required to obtain a 
benefit in accordance with 25 U.S.C. 2.
    (b) Public reporting burden for this information is estimated to 
average 1,968 hours per petition, including the time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding this collection of information, 
including suggestions for reducing the burden, to both the Information 
Collection Clearance Officer, Bureau of Indian Affairs, Mail Stop 336-
SIB, 1849 C Street, NW., Washington, DC 20240; and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503.



PART 84_ENCUMBRANCES OF TRIBAL LAND_CONTRACT APPROVALS--Table of Contents




Sec.
84.001 What is the purpose of this part?
84.002 What terms must I know?
84.003 What types of contracts and agreements require Secretarial 
          approval under this part?
84.004 Are there types of contracts and agreements that do not require 
          Secretarial approval under this part?
84.005 Will the Secretary approve contracts or agreements even where 
          such approval is not required under this part?
84.006 Under what circumstances will the Secretary disapprove a contract 
          or agreement that requires Secretarial approval under this 
          part?
84.007 What is the status of a contract or agreement that requires 
          Secretarial approval under this part but has not yet been 
          approved?
84.008 What is the effect of the Secretary's disapproval of a contract 
          or agreement that requires Secretarial approval under this 
          part?

    Authority: 25 U.S.C. 81, Pub. L. 106-179.

    Source: 66 FR 38923, July 26, 2001, unless otherwise noted.



Sec. 84.001  What is the purpose of this part?

    The purpose of this part is to implement the provisions of the 
Indian Tribal Economic Development and Contract Encouragement Act of 
2000, Public Law 106-179, which amends section 2103 of the Revised 
Statutes, found at 25 U.S.C. 81.



Sec. 84.002  What terms must I know?

    The Act means the Indian Tribal Economic Development and Contract 
Encouragement Act of 2000, Public Law 106-179, which amends section 2103 
of the Revised Statutes, found at 25 U.S.C. 81.
    Encumber means to attach a claim, lien, charge, right of entry or 
liability

[[Page 282]]

to real property (referred to generally as encumbrances). Encumbrances 
covered by this part may include leasehold mortgages, easements, and 
other contracts or agreements that by their terms could give to a third 
party exclusive or nearly exclusive proprietary control over tribal 
land.
    Indian tribe, as defined by the Act, means any Indian tribe, nation, 
or other organized group or community, including any Alaska Native 
Village or regional or village corporation as defined in or established 
under the Alaska Native Claims Settlement Act, which is recognized as 
eligible for special programs and services provided by the Secretary to 
Indians because of their status as Indians.
    Secretary means the Secretary of the Interior or his or her 
designated representative.
    Tribal lands means those lands held by the United States in trust 
for an Indian tribe or those lands owned by an Indian tribe subject to 
federal restrictions against alienation, as referred to Public Law 106-
179 as ``Indian lands.''



Sec. 84.003  What types of contracts and agreements require Secretarial 
approval under this part?

    Unless otherwise provided in this part, contracts and agreements 
entered into by an Indian tribe that encumber trial lands for a period 
of seven or more years require Secretarial approval under this part.



Sec. 84.004  Are there types of contracts and agreements that do not 
require Secretarial approval under this part?

    Yes, the following types of contracts or agreements do not require 
Secretarial approval under this part:
    (a) Contracts or agreements otherwise reviewed and approved by the 
Secretary under this title or other federal law or regulation. See, for 
example, 25 CFR parts 152 (patents in fee, certificates or competency); 
162 (non-mineral leases, leasehold mortgages); 163 (timber contracts); 
166 (grazing permits); 169 (rights-of-way); 200 (coal leases); 211 
(mineral leases); 216 (surface mining permits and leases); and 225 
(mineral development agreements);
    (b) Leases of tribal land that are exempt from approval by the 
Secretary under 25 U.S.C. 415 or 25 U.S.C. 477;
    (c) Sublease and assignments of leases of tribal land that do not 
require approval by the Secretary under part 162 of this title;
    (d) Contracts or agreements that convey to tribal members any rights 
for temporary use of tribal lands, assigned by Indian tribes in 
accordance with tribal laws or custom;
    (e) Contracts or agreements that do not convey exclusive or nearly 
exclusive proprietary control over tribal lands for a period of seven 
years or more;
    (f) Contracts or agreements that are exempt from Secretarial 
approval under the terms of a corporate charter authorized by 25 U.S.C. 
477;
    (g) Tribal attorney contracts, including those for the Five 
Civilized Tribes that are subject to our approval under 25 U.S.C. 82a;
    (h) Contracts or agreements entered into in connection with a 
contract under the Indian Self-Determination Act, 25 U.S.C. 450f, or a 
compact under the Tribal Self-Governance Act, 25 U.S.C. 458aa.
    (i) Contracts or agreements that are subject to approval by the 
National Indian Gaming Commission under the Indian Gaming Regulatory 
Act, 25 U.S.C. 2701 et seq., and the Commission's regulations; or
    (j) Contracts or agreements relating to the use of tribal lands for 
hydropower projects where the tribal lands meet the definition of a 
``reservation'' under the Federal Power Act (FPA), provided that:
    (1) Federal Energy Regulatory Commission (FERC) has issued a license 
or an exemption;
    (2) FERC has made the finding under section 4(e) of the FPA (16 
U.S.C. 797(e)) that the license or exemption will not interfere or be 
inconsistent with the purpose for which such reservation was created or 
acquired; and
    (3) FERC license or exemption includes the Secretary's conditions 
for protection and utilization of the reservation under section 4(e) and 
payment of annual use charges to the tribe under section 10(e) of the 
FPA (16 U.S.C. 803(e)).

[[Page 283]]



Sec. 84.005  Will the Secretary approve contracts or agreements even 
where such approval is not required under this part?

    No, the Secretary will not approve contracts or agreements that do 
not encumber tribal lands for a period of seven or more years. Within 
thirty days after receipt of final, executed documents, the Secretary 
will return such contracts and agreements with a statement explaining 
why Secretarial approval is not required. The provisions of the Act will 
not apply to those contracts or agreements the Secretary determines are 
not covered by the Act.



Sec. 84.006  Under what circumstances will the Secretary disapprove a 
contract or agreement that requires Secretarial approval under this part?

    (a) The Secretary will disapprove a contract or agreement that 
requires Secretarial approval under this part if the Secretary 
determines that such contract or agreement:
    (1) Violates federal law; or
    (2) Does not contain at least one of the following provisions that:
    (i) Provides for remedies in the event the contract or agreement is 
breached;
    (ii) References a tribal code, ordinance or ruling of a court of 
competent jurisdiction that discloses the right of the tribe to assert 
sovereign immunity as a defense in an action brought against the tribe; 
or
    (iii) Includes an express waiver of the right of the tribe to assert 
sovereign immunity as a defense in any action brought against the tribe, 
including a waiver that limits the nature of relief that may be provided 
or the jurisdiction of a court with respect to such an action.
    (b) The Secretary will consult with the Indian tribe as soon as 
practicable before disapproving a contract or agreement regarding the 
elements of the contract or agreement that may lead to disapproval.



Sec. 84.007  What is the status of a contract or agreement that requires 
Secretarial approval under this part but has not yet been approved?

    A contract or agreement that requires Secretarial approval under 
this part is not valid until the Secretary approves it.



Sec. 84.008  What is the effect of the Secretary's disapproval of a 
contract or agreement that requires Secretarial approval under this part?

    If the Secretary disapproves a contract or agreement that requires 
Secretarial approval under this part, the contract or agreement is 
invalid as a matter of law.



PART 87_USE OR DISTRIBUTION OF INDIAN JUDGMENT FUNDS--Table of Contents




Sec.
87.1 Definitions.
87.2 Purpose.
87.3 Time limits.
87.4 Conduct of hearings of record.
87.5 Submittal of proposed plan by Secretary.
87.6 Extension of period for submitting plans.
87.7 Submittal of proposed legislation by Secretary.
87.8 Enrollment aspects of plans.
87.9 Programing aspects of plans.
87.10 Per capita payment aspects of plans and protection of funds 
          accruing to minors, legal incompetents and deceased 
          beneficiaries.
87.11 Investment of judgment funds.
87.12 Insuring the proper performance of approved plans.

    Authority: 5 U.S.C. 301; 87 Stat. 466, 467, 468.

    Source: 39 FR 1835, Jan. 15, 1974, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 87.1  Definitions.

    As used in this part 87, terms shall have the meanings set forth in 
this section.
    (a) Act means the Act of October 19, 1973 (Pub. L. 93-134; 87 Stat. 
466, 467, 468).
    (b) Secretary means the Secretary of the Interior or his authorized 
representative.
    (c) Commissioner means the Commissioner of Indian Affairs or his 
authorized representative.
    (d) Area Director means the Area Director or his equivalent of any 
one of the Area Offices of the Bureau of Indian Affairs or his 
authorized representative.

[[Page 284]]

    (e) Superintendent means the Superintendent or Officer in Charge of 
any one of the Agency Offices or other local offices of the Bureau of 
Indian Affairs or his authorized representative.
    (f) Congressional Committees means the Committees on Interior and 
Insular Affairs of the Senate and House of Representatives of the United 
States.
    (g) Indian tribe or group means any Indian tribe, nation, band, 
pueblo, community or identifiable group of Indians, or Alaska Native 
entity.
    (h) Tribal governing body means, as recognized by the Secretary, the 
governing body of a formally organized or recognized tribe or group; the 
governing body of any informally organized tribe or group, the governing 
body of a formally organized Alaska Native entity or recognized tribe in 
Oklahoma, and for the purposes of the Act the recognized spokesmen or 
representatives of any descendant group.
    (i) Plan means the document submitted by the Secretary, together 
with all pertinent records, for the use or distribution of judgment 
funds, to the Congressional Committees.
    (j) Enrollment means that aspect of a plan which pertains to making 
or bringing current a roll of members of an organized, reservation-based 
tribe with membership criteria approved or accepted by the Secretary, a 
roll of members of an organized or recognized entity in Oklahoma, or 
Alaska or elsewhere, or a roll prepared for the purpose of making per 
capita payments for judgments awarded by the Indian Claims Commission or 
United States Court of Claims; or which pertains to using an historical 
roll or records of names, including tribal rolls closed and made final, 
for research or other purposes.
    (k) Program means that aspect of a plan which pertains to using part 
or all of the judgment funds for tribal social and economic development 
projects.
    (l) Per capita payment means that aspect of a plan which pertains to 
the individualization of the judgment funds in the form of shares to 
tribal members or to individual descendants.
    (m) Use or distribution means any utilization or disposition of the 
judgment funds, including programming, per capita payments, or a 
combination thereof.
    (n) Individual beneficiary means a tribal member or any individual 
descendant, found by the Secretary to be eligible to participate in a 
plan, who was born on or prior to, and is living on, the approval date 
of the plan.
    (o) Approval date means the date that a plan is approved by the 
Congress. Except for a plan disapproved by either House, the approval 
date of a plan shall be the sixtieth (60) day after formal submittal of 
a plan by the Secretary to the Congressional Committees, excluding days 
on which either the House of Representatives or the Senate is not in 
session because of an adjournment of more than three (3) calendar days 
to a day certain. In the event a proposed plan is disapproved by either 
House, or in the event the Secretary is unable to submit a plan and 
therefore proposes legislation, the approval date shall be the date of 
the enabling legislation for the disposition of the judgment funds.
    (p) Minor is an individual beneficiary who is eligible to 
participate in a per capita payment and who has not reached the age of 
eighteen (18) years.
    (q) Legal incompetent is an individual beneficiary eligible to 
participate in a per capita payment and who has been declared to be 
under a legal disability, other than being a minor, by a court of 
competent jurisdiction, including tribal courts.
    (r) Attorney fees and litigation expenses means all fees and 
expenses incurred in litigating and processing tribal claims before the 
Indian Claims Commission or the United States Court of Claims.



Sec. 87.2  Purpose.

    The regulations in this part govern the preparation of proposed 
plans for the use or distribution, pursuant to the Act, of all judgment 
funds awarded from the date of the Act to Indian tribes and groups by 
the Indian Claims Commission or the United States Court of Claims, 
excepting any tribe or group whose trust relationship with the Federal 
Government has been terminated and for which there exists legislation 
authorizing the disposition of its judgment funds; and of all funds 
deriving from judgments entered prior to the

[[Page 285]]

date of the Act for which there has been no enabling legislation.



Sec. 87.3  Time limits.

    (a) The Secretary shall cause to begin as early as possible the 
necessary research to determine the identity of the ultimate or present 
day beneficiaries of judgments. Such research shall be done under the 
direction of the Commissioner of Indian Affairs. The affected tribes or 
groups shall be encouraged to submit pertinent data. All pertinent data, 
including cultural, political and historical material, and records, 
including membership, census and other rolls shall be considered. If 
more than one entity is determined to be eligible to participate in the 
use or distribution of the funds, the results of the research shall 
include a proposed formula for the division or apportionment of the 
judgment funds among or between the involved entities.
    (b) The results of all research shall be provided to the governing 
bodies of all affected tribes and groups. The Area Director shall assist 
the affected tribe or group in arranging for preliminary sessions or 
meetings of the tribal governing body, or public meetings. The Area 
Director shall make a presentation of the results of the research and 
shall arrange for expertise of the Bureau of Indian Affairs to be 
available at these meetings to assist the tribe or group in developing a 
use or distribution proposal, bearing in mind that under the Act not 
less than twenty (20) per centum of the judgment funds, including 
investment income thereon, is to be used for tribal programs unless the 
Secretary determines that the particular circumstances of the affected 
Indian tribe clearly warrant otherwise.



Sec. 87.4  Conduct of hearings of record.

    (a) As soon as appropriate after the tribal meetings have been held 
and the Commissioner has reviewed the tribal proposal(s), the Area 
Director, or such other official of the Department of the Interior as he 
shall designate to act for him, shall hold a hearing of record to 
receive testimony on the tribal proposal(s).
    (b) The hearing shall be held after appropriate public notice 
beginning at least twenty (20) days prior to the date of such hearing, 
and after consultation with the governing body of the tribe or group 
regarding the date and location of the hearing, to obtain the testimony 
of members of the governing body and other representatives, spokesmen or 
members of the tribe or group on the proposal(s).
    (c) All testimony at the hearing shall be transcribed and a 
transcript thereof shall be furnished to the Commissioner and the tribal 
governing body immediately subsequent to the hearing. Particular care 
shall be taken to insure that minority views are given full opportunity 
for expression either during the hearing or in the form of written 
communications by the date of the hearing.
    (d) Whenever two or more tribes or groups are involved in the use or 
distribution of the judgment funds, including situations in which two or 
more Area Offices are concerned, every effort shall be made by the Area 
Director or Directors to arrange for a single hearing to be conducted at 
a time and location as convenient to the involved tribes and groups as 
possible. Should the tribes and groups not reach agreement on such time 
or place, or on the number of entities to be represented at the hearing, 
the Commissioner, after considering the views of the affected tribes and 
groups, shall within twenty (20) days of receipt of such advice by the 
Area Director, designate a location and date for such hearing and invite 
the participation of all entities he considers to be involved and the 
Commissioner's decision shall be final.



Sec. 87.5  Submittal of proposed plan by Secretary.

    Subsequent to the hearing of record, the Commissioner shall prepare 
all pertinent materials for the review of the Secretary. Pertinent 
materials shall include:
    (a) The tribal use or distribution proposal or any alternate 
proposals;
    (b) A copy of the transcript of the hearing of record;
    (c) A statement on the hearing of record and other evidence 
reflecting the extent to which such proposal(s) meets the desires of the 
affected tribe or group, including minorities views;

[[Page 286]]

    (d) Copies of all pertinent resolutions and other communications or 
documents received from the affected tribe or group, including 
minorities;
    (e) A copy of the tribal constitution and bylaws, or other 
organizational document, if any; a copy of the tribal enrollment 
ordinance, if any; and a statement as to the availability or status of 
the membership roll of the affected tribe or group;
    (f) A statement reflecting the nature and results of the investment 
of the judgment funds as of thirty (30) days of the submittal of the 
proposed plan, including a statement concerning attorney fees and 
litigation expenses;
    (g) A statement justifying any compromise proposal developed by the 
Commissioner in the event of the absence of agreement among any and all 
entities on the division or apportionment of the funds, should two or 
more entities be involved;
    (h) And a statement regarding the feasibility of the proposed plan, 
including a timetable prepared in cooperation with the tribal governing 
body, for the implementation of programming and roll preparation.

Within one hundred and eighty (180) days of the appropriation of the 
judgment funds the Secretary shall submit a proposed plan, together with 
the pertinent materials described above, simultaneously to each of the 
Chairmen of the Congressional Committees, at the same time sending 
copies of the proposed plan and materials to the governing body of the 
affected tribe or group. The one hundred and eighty (180) day period 
shall begin on the date of the Act with respect to all judgments for 
which funds have been appropriated and for which enabling legislation 
has not been enacted.



Sec. 87.6  Extension of period for submitting plans.

    An extension of the one hundred and eighty (180) day period, not to 
exceed ninety (90) days, may be requested by the Secretary or by the 
governing body of any affected tribe or group submitting such request to 
both Congressional Committees through the Secretary, and any such 
request shall be subject to the approval of both Congressional 
Committees.



Sec. 87.7  Submittal of proposed legislation by Secretary.

    (a) Within thirty (30) calendar days after the date of a resolution 
by either House disapproving a plan, the Secretary shall simultaneously 
submit proposed legislation authorizing the use or distribution of the 
funds, together with a report thereon, to the Chairmen of both 
Congressional Committees, at the same time sending copies of the 
proposed legislation to the governing body of the affected tribe or 
group. Such proposed legislation shall be developed on the basis of 
further consultation with the affected tribe or group.
    (b) In any instance in which the Secretary determines that 
circumstances are not conducive to the preparation and submission of a 
plan, he shall, after appropriate consultation with the affected tribe 
or group, submit proposed legislation within the 180-day period to both 
Congressional Committee simultaneously.



Sec. 87.8  Enrollment aspects of plans.

    An approved plan that includes provisions for enrollment requiring 
formal adoption of enrollment rules and regulations shall be implemented 
through the publication of such rules and regulations in the Federal 
Register. Persons not members of organized or recognized tribes and who 
are not citizens of the United States shall not, unless otherwise 
provided by Congress, be eligible to participate in the use or 
distribution of judgment funds, excepting heirs or legatees of deceased 
individual beneficiaries.



Sec. 87.9  Programming aspects of plans.

    In assessing any tribal programming proposal the Secretary shall 
consider all pertinent factors, including the following: the percentage 
of tribal members residing on or near the subject reservation, including 
former reservation areas in Oklahoma, or Alaska Native villages; the 
formal educational level and the general level of social and economic 
adjustment of such reservation residents; the nature of recent 
programming affecting the subject tribe or group and particularly the 
reservation residents; the needs and aspirations of any local Indian 
communities

[[Page 287]]

or districts within the reservation and the nature of organization of 
such local entities; the feasibility of the participation of tribal 
members not in residence on the reservation; the availability of funds 
for programming purposes derived from sources other than the subject 
judgment; and all other pertinent social and economic data developed to 
support any proposed program.



Sec. 87.10  Per capita payment aspects of plans and protection of funds 
accruing to minors, legal incompetents and deceased beneficiaries.

    (a) The per capita shares of living competent adults shall be paid 
directly to them. The shares of minors, legal incompetents and deceased 
individual beneficiaries, enhanced by investment earnings, shall be held 
in individual Indian money (IIM) accounts unless otherwise provided as 
set out in this section. While held in IIM accounts, said shares shall 
be invested pursuant to 25 U.S.C. 162a and shall be the property of the 
minors or legal incompetents or the estates of the deceased individual 
beneficiaries to whom the per capita payments were made.
    (b)(1) Unless otherwise provided in paragraph (b)(2) of this 
section, minors' per capita shares, until the minors attain the age of 
18 years, shall be retained in individually segregated IIM accounts and 
handled as provided in Sec. 115.4 of this chapter. Should it be 
determined that the funds are to be invested pursuant to a trust, minors 
who will have reached the age of 18 years within six months after the 
establishment of the trust shall have their funds retained at interest 
in IIM accounts and paid to them upon attaining their majority.
    (2) A private trust for the minors' per capita shares may be 
established subject to the approval of the tribal governing body and the 
Secretary on the following conditions:
    (i) The tribal governing body specifically requests the 
establishment of such trust, and the trust provides for segregated 
amounts to each individual minor, based on his per capita share, and
    (ii) The trust agreement specifically provides that the investment 
policy to be followed is that of preserving the trust corpus and of 
obtaining the highest interest rates current money markets can safely 
provide. The trust agreement must further provide that maturity dates of 
investments cannot exceed the period of the trust and that only the 
following types of investment shall be made: United States Treasury 
obligations; Federal agency obligations; repurchase/resell agreements; 
United States Treasury bills; Bankers' acceptance, provided the assets 
of the issuing bank exceed $1 billion or the issuing bank pledges full 
collateral; Certificates of deposit, provided the assets of the issuing 
bank exceed $1 billion or the issuing bank pledges full collateral; 
Commercial paper, provided it is rated prime-2 by Moody or A-2 by 
Standard and Poor or is obligation of a company with outstanding 
unsecured debt rated Aa by Standard and Poor.
    (c) The per capita shares of legal incompetents shall be held in IIM 
accounts and administered pursuant to the provisions of Sec. 115.5 of 
this chapter.
    (d) The shares of deceased individual beneficiaries, plus all 
interest and investment income accruing thereto, shall be paid to their 
heirs and legatees upon their determination as provided in 43 CFR part 
4, subpart D.
    (e) All per capita shares, including all interest and investment 
income accruing thereto, while they are held in trust under the 
provisions of this section, shall be exempt from Federal and State 
income taxes and shall not be considered as income or resources when 
determining the extent of eligibility for assistance under the Social 
Security Act, as amended.
    (f) All per capita shares or portions thereof, including all 
interest and investment income accruing thereto, which are not paid out 
but which remain unclaimed with the Federal Government shall be 
maintained separately and be enhanced by investment, and shall, unless 
otherwise provided in an effective plan or in enabling legislation, be 
subject to the provisions of the Act of September 22, 1961, 75 Stat. 
584. No per capita share or portion thereof

[[Page 288]]

shall be transferred to the U.S. Treasury as ``Monies Belonging to 
Individuals Whose Whereabouts are Unknown.''

[41 FR 48735, Nov. 5, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 87.11  Investment of judgment funds.

    As soon as possible after the appropriation of judgment funds and 
pending approval of a plan or the enactment of legislation authorizing 
the use or distribution of the funds, the Commissioner shall invest such 
funds pursuant to 25 U.S.C. 162a. Investments of judgment funds and of 
investment income therefrom will continue to be made by the Commissioner 
after the approval of a plan or enactment of use or distribution 
legislation to the extent funds remain available for investment under 
such plan or legislation, and provided that thereafter investments of 
judgment funds made available for tribal use are not undertaken by the 
tribe pursuant to authorizing law. Invested judgment funds, including 
investment income therefrom, shall be withdrawn from investment only as 
currently needed under approved plans or legislation authorizing the use 
or distribution of such funds.



Sec. 87.12  Insuring the proper performance of approved plans.

    A timetable prepared in cooperation with the tribal governing body 
shall be included in the plan submitted by the Secretary for the 
implementation of all programming and enrollment aspects of a plan. At 
any time within one calendar year after the approval date of a plan, the 
Area Director shall report to the Commissioner on the status of the 
implementation of the plan, including all enrollment and programming 
aspects, and thenceforth shall report to the Commissioner on an annual 
basis regarding any remaining or unfulfilled aspects of a plan. The Area 
Director shall include in his first and all subsequent annual reports a 
statement regarding the maintenance of the timetable, a full accounting 
of any per capita distribution, and the expenditure of all programming 
funds. The Commissioner shall report the deficient performance of any 
aspect of a plan to the Secretary, together with the corrective measures 
he has taken or intends to take.



PART 88_RECOGNITION OF ATTORNEYS AND AGENTS TO REPRESENT CLAIMANTS--Table 
of Contents




Sec.
88.1 Employment of attorneys.
88.2 Employment by tribes or individual claimants.

    Authority: 5 U.S.C. 301.

    Cross References: For law and order regulations on Indian 
reservations, see part 11 of this chapter. For probate procedure, see 
part 15 of this chapter. For regulations governing the admission of 
attorneys to practice before the Department of the Interior and the 
offices and bureaus thereof, see 43 CFR part 1. For regulations 
governing the execution of attorney contracts with Indians, see part 89 
of this subchapter.



Sec. 88.1  Employment of attorneys.

    (a) Indian tribes organized pursuant to the Indian Reorganization 
Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, may 
employ legal counsel. The choice of counsel and the fixing of fees are 
subject under 25 U.S.C. 476 to the approval of the Secretary of the 
Interior or his authorized representative.
    (b) Attorneys may be employed by Indian tribes not organized under 
the Act of June 18, 1934, under contracts subject to approval under 25 
U.S.C. 81 and the Reorganization Plan No. 3 of 1950, 5 U.S.C. 481, note, 
by the Secretary of the Interior or his authorized representative.
    (c) Any action of the authorized representative of the Secretary of 
the Interior which approves, disapproves or conditionally approves a 
contract pursuant to paragraph (a) or (b) of this section shall be 
final.
    (d) Practice of such attorneys before the Bureau of Indian Affairs 
and the Department of the Interior is subject to the requirements of 43 
CFR 1.1 through 1.7.

[27 FR 11548, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 289]]



Sec. 88.2  Employment by tribes or individual claimants.

    All such attorneys or agents seeking approval of their employment by 
Indian tribes or desiring to represent individual claimants before the 
Indian Bureau shall be required to comply fully with the regulations of 
the Department promulgated September 27, 1917, governing admission to 
practice, and to take the oath of allegiance and to support the 
Constitution of the United States, as required by section 3478 of the 
United States Revised Statutes (31 U.S.C. 204).

[22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 89_ATTORNEY CONTRACTS WITH INDIAN TRIBES--Table of Contents




          Tribes Organized Under The Indian Reorganization Act

Sec.
89.1-89.26 [Reserved]

                          Five Civilized Tribes

89.30 Contents and approval of contracts.
89.31 Negotiation of contract.
89.32 Notice from the principal officer.
89.33 Notice from attorney.
89.34 Tentative form of contract.
89.35 Execution in quintuplet.

         Payment of Tribal Attorney Fees With Appropriated Funds

89.40 General policy.
89.41 Exceptions to policy.
89.42 Factors to be considered.
89.43 Procedures.

    Authority: 5 U.S.C. 301; secs. 89.30 to 89.35 also issued under 25 
U.S.C. 2, 9, and 82a; secs. 89.40 to 89.43 also issued under 25 U.S.C. 
13, 450 et seq.

    Cross Reference: For recognition of attorneys and agents to 
represent claimants, see part 88 of this subchapter.

          Tribes Organized Under The Indian Reorganization Act



Sec. 89.1-89.26  [Reserved]

                          Five Civilized Tribes



Sec. 89.30  Contents and approval of contracts.

    All contracts for the services of legal counsel or technical 
specialists negotiated and executed with the Choctaw, Chickasaw, 
Cherokee, Creek, or Seminole Tribes or Nations, also known as the Five 
Civilized Tribes, shall be in strict compliance with the requirements of 
section 2103 of the Revised Statutes of the United States (25 U.S.C. 
81).

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.31  Negotiation of contract.

    That person or governing entity recognized as having authority to 
act for and in behalf of any one of the Five Civilized Tribes in matters 
of importance may, when it is found there is a substantial need and 
demand therefor, negotiate and contract for services of a tribal counsel 
or counsels and technical specialist or specialists, subject to the 
approval of the Secretary of the Interior or his authorized 
representative.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.32  Notice from the principal officer.

    Notice of intention to negotiate with attorneys or with technical 
specialists shall be sent by the principal tribal officer to the 
Superintendent. Such notice shall be accompanied by a full statement 
concerning the need for retaining counsel or specialists, as the case 
may be, the purpose for which such assistance is needed and the scope of 
the intended employment. The notice and statement shall be transmitted 
to the Area Director by the Superintendent together with the latter's 
report and recommendations with respect to the approval of such 
contract.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.33  Notice from attorney.

    Attorneys desiring to execute contracts with any one of the Five 
Civilized Tribes shall be required to give written notice to the Area 
Director through the Superintendent having jurisdiction over said tribe.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 290]]



Sec. 89.34  Tentative form of contract.

    The principal officer of any one of the Choctaw, Cherokee, Creek, 
Seminole, and Chickasaw Tribes may, if he desires, obtain a tentative 
form of contract by written application to the office of the appropriate 
Agency Superintendent. Requests for forms for an attorney contract 
should include a statement reciting whether the attorney is desired as a 
general legal counsel in connection with the business of the tribe or as 
counsel in respect to specific problems on which legal counsel is 
desired, or specific matters requiring representation in court or before 
committees of Congress and the Departments of Government. Requests for 
forms for technical service contracts should include a statement of the 
particular type of service required and the purpose for which it is 
needed. The anticipated term of each proposed contract should be stated.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.35  Execution in quintuplet.

    The contract should be executed in quintuplet, and all copies of it 
shall be transmitted by the Superintendent to the Area Director.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

         Payment of Tribal Attorney Fees With Appropriated Funds

    Source: 48 FR 3969, Jan. 28, 1983, unless otherwise noted.



Sec. 89.40  General policy.

    In ordinary circumstances, legal services with respect to trust 
resources are provided for Indian tribe(s):
    (a) By private counsel employed by tribes when such tribe is 
financially able and elects to do so, or
    (b) By the United States as trustee through the Office of the 
Solicitor and/or the Department of Justice.

It is the policy of the Department of the Interior not to use federally 
appropriated funds to pay for private counsel to represent Indian 
tribes. Exceptions to that policy are listed in Sec. 89.41 of this 
part.



Sec. 89.41  Exceptions to policy.

    The Assistant Secretary--Indian Affairs upon concurrence of the 
Solicitor and receipt of a recommendation as provided by Sec. 89.43 
may, in his/her discretion, authorize the direct or indirect expenditure 
of appropriated funds to pay reasonable attorney's fees in order to 
permit an Indian tribe to secure private legal representation in the 
following circumstances:
    (a) When a tribe determines it necessary to bring a court action or 
to defend itself to protect its trust resources, rights claimed under a 
treaty, agreement, executive order, or statute, or its governmental 
powers and the Attorney General refuses assistance or advises that 
assistance is not otherwise available (Comptroller General's Opinion B-
114868, December 6, 1976).
    (b) When a tribe determines it necessary to institute or to defend 
itself in an administrative proceeding to protect its trust resources, 
rights claimed under a treaty, agreement, executive order, or statute, 
or to protect its governmental powers and the Solicitor is unable to 
provide representation due to a conflict of interest or other reasons.
    (c) When a tribe determines legal assistance necessary, other than 
for litigation, pursuant to a contract executed under Pub. L. 93-638 and 
the Solicitor has determined that the services of his office are not 
available.
    (d) When a tribe determines it critical, and the Assistant 
Secretary--Indian Affairs finds the concerns of the tribe to have merit 
after consultation with and the advice of the Solicitor, to intervene, 
in a lawsuit being handled by the Justice Department or in an 
administrative proceeding being handled by the Solicitor because the 
responsible Government Attorney refuses either to exclude or to include 
some facet of the suit or proceedings which the tribe claims renders 
such legal representation completely inadequate to protect or in 
contravention of the rights and interests of the tribe. Prior to 
consulting with and advising the Assistant Secretary--Indian Affairs, in 
a lawsuit being handled by the Justice Department, the Solicitor shall 
seek the comments and advice of the Attorney General.

[[Page 291]]

    (e) When a tribe determines, and the Assistant Secretary--Indian 
Affairs, after consultation with the Solicitor concurs, that a 
substantial possibility of a negotiated settlement or agreement exists.
    (f) Payment of fees will not be allowed if such payment was not 
authorized before services were performed.
    (g) This rule applies to expenditure of appropriated Federal funds 
and not a tribe's own funds on deposit in the U.S. Treasury.



Sec. 89.42  Factors to be considered.

    The following factors are to be considered in determining whether 
funds should be paid to provide private legal representation for a 
tribe.
    (a) The merits of the legal position which the tribe asserts. 
Greater weight will be given to those cases where the tribe's legal 
argument is deemed particularly meritorious than to those cases where 
the tribe's position, although not entirely without merit, may be 
relatively weak;
    (b) The ability of the tribe to pay all or a part of its legal 
expenses out of its own funds. A review of the tribe's financial 
resources under this subsection will include an examination of the 
tribe's total expenditures to determine whether its expenditures for 
other purposes comport with the asserted importance of the case for 
which it seeks funds;
    (c) Whether the question the tribe seeks to litigate is being 
litigated in another case by another tribe;
    (d) Whether, as a matter of strategy, the issues the tribe seeks to 
litigate could be more satisfactorily resolved in another forum, in a 
different factual context, or a different time; and
    (e) Whether the issue should be litigated at all in preference to a 
legislative or other solution.



Sec. 89.43  Procedures.

    The information collection requirements contained in this section do 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3051 et seq., because it is anticipated there will be fewer than 
10 respondents annually.
    (a) A tribe or other organization seeking funds under Sec. 89.41 
shall submit a written request through the Agency Superintendent and the 
Area Director, including
    (1) A detailed statement describing the nature and scope of the 
problems for which legal services are sought;
    (2) A statement of the terms, including total anticipated costs, of 
the requested legal services contract;
    (3) A current financial statement and a statement that the tribe 
does not possess sufficient tribal funds or assets to pay for all or a 
part of the legal services sought; and
    (4) A statement of why the matter must be handled by a private 
attorney as opposed to Department of Justice or Department of Interior 
attorneys.

All requests shall be considered by a committee consisting of the Deputy 
Assistant Secretary--Indian Affairs (Policy), or his delegate, the 
Director of the Office of Trust Responsibilities in BIA or his delegate, 
and the Associate Solicitor--Indian Affairs or his delegate.
    (b) If two of the three committee members recommend approval of a 
tribe's request, the request, along with the committee's recommendation, 
shall be submitted to the Assistant Secretary for final determination 
after consultation with and the advice of the Solicitor. The committee's 
recommendation shall indicate the amount of funds recommended to assist 
the tribe, the hourly rate allowed, the maximum amount permitted to be 
expended in the recommended action and the tribal contributions, if any. 
The Assistant Secretary shall approve the request only with the 
concurrence of the Solicitor.
    (c) The requirements imposed by this policy are supplementary to 
those contained in all existing regulations dealing with attorney 
contracts with Indian tribes and, in particular, those contained in 
parts 88 and 89 of this title.



PART 90_ELECTION OF OFFICERS OF THE OSAGE TRIBE--Table of Contents




                                 General

Sec.
90.1 Definitions.
90.2 Statutory provisions.

[[Page 292]]

                               Eligibility

90.21 General.

                                Elections

90.30 Nominating conventions and petitions.
90.31 Applicability.
90.32 Election Board.
90.33 Watchers and challengers.
90.35 List of voters.
90.36 Disputes on eligibility of voters.
90.37 Election notices.
90.38 Opening and closing of poll.
90.39 Voters to announce name and residence.
90.40 Ballots.
90.41 Absentee voting.
90.42 Absentee ballots.
90.43 Canvass of election returns.
90.44 Statement of supervisor.
90.45 Electioneering.
90.46 Notification of election of tribal officers.
90.47 Contesting elections.
90.48 Notice of contest.
90.49 Expenses of elections.

    Authority: Sec. 9, 34 Stat. 539; sec. 7, 45 Stat. 1478; 71 Stat. 
471, unless otherwise noted.

    Source: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless 
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                                 General



Sec. 90.1  Definitions.

    As used in this part:
    (a) The term supervisor means the tribal election official chosen 
and appointed by the Principal Chief or Assistant Principal Chief to act 
as chairman of the election board and shall in the absence of the 
supervisor denote the Assistant Supervisor.



Sec. 90.2  Statutory provisions.

    Section 7 of the Act of March 2, 1929 (45 Stat. 1481) provides in 
part as follows:

    That there shall be a quadrennial election of officers of the Osage 
Tribe as follows: A principal chief, an assistant principal chief, and 
eight members of the Osage tribal council, to succeed the officers 
elected in the year 1928, said officers to be elected at a general 
election to be held in the town of Pawhuska, Oklahoma, on the first 
Monday in June 1930 and on the first Monday in June each four years 
thereafter, in the manner to be prescribed by the Commissioner of Indian 
Affairs, and said officers shall be elected for a period of four years 
commencing on the 1st day of July following said elections. * * *

                               Eligibility



Sec. 90.21  General.

    Only members of the Osage Tribe who will be eighteen years of age or 
over on election day and whose names appear on the quarterly annuity 
roll at the Osage Agency as of the last quarterly payment immediately 
preceding the date of election will be entitled to hold office or vote 
for any tribal officers. Each such voter shall be entitled to cast one 
ballot and each ballot shall have exactly the same value as the voter's 
headright interest shown on the last quarterly annuity roll. Any 
fraction of a headright, however, shall be valued as to the first two 
decimals only unless such interest is less than one-hundredth of a 
share, then it shall have its full value.

(45 Stat. 1481)

[43 FR 8798, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

                                Elections



Sec. 90.30  Nominating conventions and petitions.

    Conventions shall be held on or before the first Monday in April of 
the year in which a quadrennial election is held, and there shall be 
written reports of such conventions, duly certified by the secretary or 
presiding officer showing total number of qualified voters in 
attendance, together with the names of candidates nominated for the 
various offices: Provided, That at least 25 qualified voters shall have 
been in attendance at any such convention; also, names of any 
independent candidates nominated by petition of not less than 25 
qualified voters, each signature to be witnessed by two persons, shall 
be filed with the supervisor not later than 5 p.m. on the first Monday 
in April of the year in which a quadrennial election is held in order 
that such names may be placed on the official ballot. No person shall be 
considered a candidate for tribal office unless and until the 
requirements of this section have been met.

[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 293]]



Sec. 90.31  Applicability.

    The manner of carrying out elections to be held under the act of 
June 28, 1906 (34 Stat. 539), as amended by the act of March 2, 1929 (45 
Stat. 1478), as amended by the act of August 28, 1957 (71 Stat. 471), is 
covered in the regulations set forth in this part. The next election 
will be held on the first Monday in June 1958 and subsequent elections 
will be held on the first Monday in June each four years thereafter.



Sec. 90.32  Election Board.

    The Principal Chief, or in his absence, the Assistant Principal 
Chief shall, not more than seventy-five days nor less than sixty-five 
days preceding the day appointed by law for the holding of an election 
of officers of the Osage Tribe, issue in the form and manner prescribed 
in Sec. 90.37, an election notice and appoint an election board 
consisting of a Supervisor who shall be chairman, Assistant Supervisor, 
five judges, one of whom in addition to his regular duties shall act as 
interpreter, and five clerks, whose duties shall be to conduct the 
election as provided in the regulations in this part:
    Provided further, That the Superintendent on the recommendation of 
the election board may designate extra clerical assistants. Prior to the 
date of the election, the election board shall assemble and make 
necessary arrangements for the election in a building to be designated 
by the Superintendent of the Osage Agency as the polling site and make 
the necessary preparation for receiving prospective voters, for 
receiving absentee ballots, and see to it that voting booths are 
arranged to afford privacy. Members of the election board and any extra 
clerical assistants designated by the Superintendent under authority 
contained in this section, other than employees of the Osage Agency when 
duly appointed or designated as provided for in this part may be 
compensated for conducting each quadrennial election at rates to be 
fixed by the Osage Tribal Council. If a member of the election board 
desires to be relieved from duty for any cause, he shall notify the 
Principal Chief or in his absence the Assistant Principal Chief, in 
writing to that effect and the Principal Chief, or in his absence the 
Assistant Principal Chief shall designate someone else to serve as a 
member of the election board. The Supervisor, or in his absence the 
Assistant Supervisor, shall see that the rules prescribed for conducting 
the election are faithfully carried out. The ballots shall be handed out 
by a judge to the voters as they present themselves to vote, after being 
identified by a clerk who shall be supplied with a copy of the list of 
voters prepared pursuant to Sec. 90.35. The judge before handing out a 
ballot shall remove the detachable portion. A judge shall receive the 
ballot after the voter has indicated his choice thereon by placing an 
``X'' mark opposite the name of each candidate for whom he desires his 
vote counted and shall deposit same in the ballot box. The duties of the 
remaining judges in conjunction with the Supervisor will be to read the 
names on the ballot when requested so as to identify the candidates or 
furnish such other information as may be desired in that connection and 
also to assist prospective voters unable because of language 
difficulties or physical incapacity to cast votes for candidates of 
their choice, and to undertake such other duties as may be assigned by 
the Supervisor.

[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.33  Watchers and challengers.

    Any candidate or political party may name a person to act as watcher 
and challenger at any election provided for by the regulations in this 
part. Each watcher and challenger shall be appointed in writing by the 
candidate or political party he or she represents. The watchers and 
challengers shall have the right to be present in the polling place but 
outside the voting booths and to watch the election officials, the 
balloting, the call, the tally, and the recording of the result of the 
vote. It shall be the duty of the watcher to watch, listen, and observe 
the count for all candidates voted for to insist upon an honest and fair 
count but shall have no further authority than to have the election 
judges and clerks note or record any objections to the count and to 
challenge the result thereof. The challenger shall have the right to 
question any voter and his right to vote.

[[Page 294]]

Watchers shall not divulge or give out any intimation or information as 
to the count prior to announcement by the election board and shall be 
subject to the same rules governing the election board with regard to 
leaving and returning to the polling place. A watcher or challenger 
shall receive no compensation for his services.

[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.35  List of voters.

    The Superintendent of the Osage Agency shall compile a list of the 
voters of the Tribe who are qualified under Sec. 90.21. Such list shall 
set forth only the name and last known address of each voter. The 
Superintendent shall furnish copies of the list to the Supervisor of the 
election board and shall post copies at the headquarters of the Osage 
Agency at Pawhuska, Okla., and such other places as the election board 
may determine to be appropriate. The compilation, posting and 
distribution of copies to the Supervisor of the election board shall be 
done as soon as possible after preparation of the last quarterly annuity 
roll preceding the election. Copies of the list shall also be made 
available to all qualified candidates for office and for the purpose of 
checking off the name of each voter as his ballot is cast and for 
determining, in the event of question, the right of any individual to 
vote.

[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.36  Disputes on eligibility of voters.

    (a) The election board shall fix a date not less than five days 
before the election at which time all complaints will be heard. The 
election board shall, at least three days before the date of election, 
determine any claim or challenge as to the right of any person to be 
listed on the roll of eligible voters.
    (b) Any voter of the tribe shall have the right to challenge any 
person presenting himself to vote and it shall be the duty of the 
supervisor and a judge of the board to make such investigation then and 
there as they deem essential, and decide the question of whether or not 
a person is a listed voter.



Sec. 90.37  Election notices.

    The election notice shall set forth the place, date and time for 
holding the election, qualification of voters, method of nominating 
candidates, and closing date for same, method of locating each name on 
the ballot and the names of each member of the election board. As soon 
as possible a copy of the notice of the election, after approval by the 
Superintendent of the Osage Agency, shall be mailed to each qualified 
voter at his last known address.



Sec. 90.38  Opening and closing of poll.

    The poll shall remain open without intermission from 8 a.m. to 8 
p.m. on the date of the election. When all else is in readiness for the 
opening of the poll the supervisor shall open the ballot box in view of 
the other election officers, shall turn same top down to show that no 
ballots are contained therein, and shall then lock the box and retain 
the key in his possession.

[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.39  Voters to announce name and residence.

    Each voter shall upon presenting himself to vote announce to the 
clerk his name, and address.



Sec. 90.40  Ballots.

    The Superintendent of the Osage Agency shall have ballots printed 
showing the name and the office for which each candidate has been 
nominated and also space for showing the value of the respective 
ballots. The Superintendent shall have recorded on a detachable portion 
of each ballot the name of the voter. The value of each voter's ballot 
shall be recorded on the principal portion of the respective ballots. 
Any faction or group has the right to nominate any candidate it chooses, 
in accordance with the regulations prescribed in this part. The names of 
such candidates shall be printed on the ballot in the manner set forth 
as follows:
    (a) Under the heading, Principal Chief, with notation to vote for 
one, shall appear names of all candidates for that office. Under the 
heading, Assistant Chief, with notation to vote for

[[Page 295]]

one, shall appear the names of all candidates for that office. Under the 
heading, Members of Council, with notation to vote for eight, shall 
appear names of all candidates for council. Names of candidates for 
office shall appear only once on ballot, regardless of the fact that 
they may have been nominated on more than one ticket. The order in which 
names of qualified candidates for office will be placed on the ballot 
shall be by lot method of drawing in a manner to be determined by the 
tribal council, and to be free from or regardless of party or factional 
affiliations. A candidate may use one nickname. Titles and professional 
designations will not be shown on the ballot. A record shall be kept of 
any ballots that may be mutilated, canceled, or used as samples.
    (b) A space will be provided on each ballot in which the clerk prior 
to issuing the ballot shall note the value of the ballot which shall be 
exactly the same value as the voter's headright interest as shown on the 
last quarterly annuity roll, except any fraction of a headright shall be 
valued as to the first two decimals only unless such interest is less 
than one one-hundredth then it shall have its full value. As 
verification the clerk shall initial the ballot so numbered in the 
margin. In addition each ballot shall be stamped ``Official Ballot'' 
(facsimile signature Supervisor Osage Election Board). Should any voter 
spoil or mutilate his ballot in his effort to vote he may surrender the 
ballot to the supervisor who shall give the voter in lieu thereof 
another ballot which shall show its appropriate value. The spoiled or 
mutilated ballot or any portion of a spoiled or mutilated ballot shall 
be retained with other records pertaining to the election.

[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.41  Absentee voting.

    (a) An eligible voter who will be unable to appear at the poll in 
Pawhuska on election day shall be entitled to vote by absentee ballot. 
Absentee ballots shall be identical to the ballots described in Sec. 
90.40 with the exception that each such ballot shall be stamped 
``Absentee Ballot,'' and reflect the date of issuance. All applications 
for absentee ballots shall be made in writing by the voter. Each ballot 
shall indicate the value of the vote to which the voter is entitled. The 
supervisor shall maintain a file of all applications, together with a 
record of the names and addresses of all persons to whom absentee 
ballots are mailed or delivered, including the date of mailing or 
delivery. All absentee ballots must be postmarked and be in the Pawhuska 
Post Office prior to 8 a.m. on election day.
    (b) It shall be the duty of the supervisor, upon receipt of an 
application, to mail or deliver to the applicant an envelope containing 
a ballot (after removing the detachable portion), and an inner and outer 
envelope as described herein. This shall be done not more than 30 days 
before the election, except that the envelopes and ballots may be mailed 
to absentee voters residing outside the continental limits of the United 
States at any time after mailing of the election notice.
    (c) If the absentee ballot and accompanying envelopes are to be 
mailed to the prospective voter, the written request must be submitted 
to the supervisor on or before 5 p.m. of the Wednesday preceding the 
election. The absentee ballot and accompanying envelopes may be 
delivered personally to the prospective voter any time prior to the 
opening of the poll.
    (d) The absentee voter shall mark the ballot and seal it only in the 
inner envelope. The following shall be printed on the inner envelope:

                             Absentee Ballot

                 election of officers of the osage tribe

                             june --, 19----

    (e) The absentee voter shall enclose the inner envelope in the outer 
envelope and after sealing same shall execute the certificate imprinted 
thereon which certificate shall be in the following form:

    I will be unable to appear at the poll in Pawhuska, Oklahoma, on the 
---------- day of June 19---- and have enclosed my ballot

[[Page 296]]

for the election of officers of the Osage Tribe. \1\
---------------------------------------------------------------------------

    \1\ Criminal penalties are provided by statute for knowingly filing 
false information in such statements (18 U.S.C. 1001).
---------------------------------------------------------------------------

(Voter's signature)--------------------.
The outer envelope shall be preaddressed as follows: Supervisor, Osage 
Election Board, Post Office Box ----, Pawhuska, Okla. 74056.

(45 Stat. 1481)

[23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, as amended at 43 
FR 8799, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.42  Absentee ballots.

    The absentee ballots shall remain in the locked box in the post 
office, Pawhuska, Okla., until 8 a.m. on the day of election at which 
time the supervisor or assistant supervisor of the election board, 
accompanied by the Superintendent of the Osage Agency or his designated 
representatives, shall receive the locked box from the post office and 
shall personally transport the locked box to the polling site where it 
shall be delivered immediately to the supervisor or assistant supervisor 
of the election board. The supervisor or the assistant supervisor in the 
presence of at least two judges shall unlock the locked box containing 
the absentee ballots and shall then determine whether the person whose 
name is signed to the statement is a qualified voter of the Osage Tribe 
and check said voter off the poll list before opening the outer 
envelope. After it has been determined which of the absentee ballots 
have been cast by duly qualified electors, the supervisor in the 
presence of the election board shall cause the valid ballots in the 
sealed inner envelopes to be placed in the ballot box.

[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.43  Canvass of election returns.

    (a) Immediately after the polls are closed at 8 p.m., the counting 
of the ballots shall commence. The supervisor and not less than two 
judges shall remain continuously in the room until the ballots are 
finally counted. One or more judges shall act as official counters and 
two or more clerks shall record the value of each vote and shall 
comprise a vote tallying team. The vote shall be recorded on two tally 
sheets by each team of judges and clerks under the name of each 
candidate for whom the voter designated his choice. The count shall 
continue until all votes have been recorded. The duties of the remaining 
officials of the election board will be to assist in conducting the 
election. After the vote of each ballot is recorded, the ballot shall be 
pierced by needle and string and after the ballots have been so counted, 
the ends of the string shall be tied together. After all other ballots 
have been counted, the sealed inner envelopes containing the absentee 
ballots shall be opened and all ballots found to be valid shall be 
counted and treated in the same manner as other valid ballots. All 
ballots and mutilated ballots; registration lists of voters, both 
absentee and those appearing at the poll; all tally sheets; and all 
other election materials shall be placed in the ballot box which shall 
be locked. The supervisor shall then deliver the locked ballot box and 
keys to same to the Superintendent, Osage Agency, and the box shall be 
retained in a safe place until opened by order of the supervisor or 
election board in the event a contest is filed. If no contest is filed, 
the ballots shall be destroyed 180 days after the election. No 
information concerning voting shall be posted or made public information 
until after 8 p.m.
    (b) Should any ballot be marked for more than one principal chief or 
assistant chief or for more than eight councilmen, only that section of 
the ballot wherein the error was made shall be declared void and the 
remaining section or sections shall be counted in the same manner as 
other ballots. Absentee ballots shall be declared void when items other 
than the ballot are enclosed in the inner envelope, the voter fails to 
sign the statement appearing on the outer envelope, and for failure to 
seal the inner envelope or enclose the inner envelope in the outer 
envelope. Votes cast for individuals whose names are not printed on the 
official ballot shall not be counted.

[32 FR 10254, July 12, 1967, as amended at 43 FR 8799, Mar. 3, 1978. 
Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 297]]



Sec. 90.44  Statement of supervisor.

    Following the election a statement is to be prepared by the 
supervisor pertaining to the conduct of the election and certifying to 
the correct tabulation of the votes for each candidate. The statement 
shall also set forth the names of the elected candidates and the office 
to which each was elected. The statement shall be duly acknowledged 
before an officer qualified to administer oaths and delivered to the 
Superintendent of the Osage Agency.

[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.45  Electioneering.

    No person shall be allowed to electioneer within the building where 
and when the election is in progress and it will be the duty of the 
supervisor to request the detail of a police officer to assist him in 
maintaining order about the building during the progress of the 
election.



Sec. 90.46  Notification of election of tribal officers.

    The Superintendent of the Osage Indian Agency shall in due time give 
written notice to candidates of their election to the various tribal 
offices and as soon thereafter as practicable such tribal officers shall 
appear and subscribe to oath of office before an officer qualified to 
administer oaths and such oaths shall be delivered to the Superintendent 
and by him transmitted to the Commissioner of Indian Affairs.



Sec. 90.47  Contesting elections.

    Any unsuccessful candidate may before noon on Monday next following 
the tribal election file with the supervisor a challenge to the 
correctness of the vote cast for the office for which he was a 
candidate, which challenge must be accompanied by a deposit of $500. The 
election board or the supervisor shall order a recount and proceed with 
same as provided in this part. If the recount results in the contestant 
being elected, the deposit shall be refunded; otherwise, the deposit 
shall be used to defray all expenses of said recount and any balance not 
so used shall be returned to the contestant.

[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.48  Notice of contest.

    It shall be the duty of the supervisor, to serve upon the contestee, 
or contestees, directly affected by such challenge or contest, a true 
copy of said written application, the original of which is required to 
be filed with the supervisor. Said service shall be made in person, 
where possible, within twenty-four hours after the filing of said 
original challenge or contest, and where personal service is impossible 
within such time, on account of the absence of contestee, or contestees, 
from Osage County, or for any other reason, it is hereby made the duty 
of the supervisor to serve a true copy upon the Superintendent of the 
Osage Indian Agency: Provided, That for the purpose of such constructive 
service, the Superintendent is hereby made and constituted the service 
agent of each and every candidate in all tribal elections, and by filing 
petition as a candidate, such candidate shall thereby be presumed 
conclusively to have accepted the terms and provisions hereof and 
specifically the constructive service as aforesaid.



Sec. 90.49  Expenses of elections.

    All expenses of elections including compensation to the members of 
the election board and any clerical assistants designated by the 
Superintendent under Sec. 90.32, stationery supplies, meals, printing 
and postage shall be borne by the Osage Tribe as set forth in an 
appropriate Osage Tribal Council resolution establishing current pay 
scale.

[27 FR 2459, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 91_GOVERNMENT OF INDIAN VILLAGES, OSAGE RESERVATION, OKLAHOMA--Table 
of Contents




Sec.
91.1 Purpose.
91.2 Definitions.
91.3 Description of village reserves.
91.4 Plats of village reserves.

[[Page 298]]

91.5 Tracts reserved from selection by individuals.
91.6 Custody of public buildings and tracts reserved from selection by 
          individuals; village committees.
91.7 Permits to occupy land for dwelling purposes.
91.8 Sale or mortgage of improvements.
91.9 Inheritance of improvements.
91.10 Renting of improvements.
91.11 Domestic animals in village reserves.
91.12 Business enterprises and public buildings.
91.13 Health, sanitation, and sewerage disposal.
91.14 Confirmation of permits.
91.15 Suspension or amendment of regulations.

    Authority: Subdivision 9 of sec. 2, sec. 12, Act of June 28, 1906 
(34 Stat. 539), sec. 3, Act of June 24, 1938 (52 Stat. 1034). Interpret 
or apply Act of April 18, 1912 (37 Stat. 86).

    Source: 28 FR 10203, Sept. 18, 1963, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 91.1  Purpose.

    The purpose of the regulations in this part is to establish policies 
and procedures for the government of Indian villages, Osage Reservation, 
Oklahoma.



Sec. 91.2  Definitions.

    As used in this part:
    (a) Secretary means the Secretary of the Interior or his authorized 
representative.
    (b) Superintendent means the Superintendent or other officer in 
charge of Osage Agency.
    (c) Council means the Osage Tribal Council, that elected governing 
body of the Osage Tribe of Indians.
    (d) Tribal Member means any person of Osage Indian blood of whatever 
degree, allotted or unallotted.
    (e) Minor means any person under 21 years of age.
    (f) Resident means an adult tribal member who has resided in the 
village for thirty (30) days, in the 12-month period preceding the 
election.



Sec. 91.3  Description of village reserves.

    The act of June 28, 1906 (34 Stat. 539), as amended by the act of 
June 24, 1938 (52 Stat. 1034), set aside certain tribal lands 
exclusively as dwelling sites for the use and benefit of the Osage 
Indians until January 1, 1984, unless otherwise provided by Act of 
Congress. These lands are described as follows:
    (a) Grayhorse Indian Village. The southeast quarter (SE \1/2\) of 
the southeast quarter (SE \1/4\), and the west half (W \1/2\) of the 
southwest quarter (SW \1/4\) of the southeast quarter (SE \1/4\), and 
the south half (S \1/2\) of the northeast quarter (NE \1/4\) of the 
southeast quarter (SE \1/4\) of the southwest quarter (SW \1/4\), and 
the south half (S \1/2\) of the north half (N \1/2\) of the northeast 
quarter (NE \1/4\) of the southeast quarter (SE \1/4\) of the southwest 
quarter (SW \1/4\), and the southeast quarter (SE \1/2\) of the 
southeast quarter (SE \1/4\) of the southwest quarter (SW \1/4\) of sec. 
fifteen (15); and the north half (N \1/2\) of the northeast quarter (NE 
\1/4\), and the northeast quarter (NE \1/4\) of the northwest quarter 
(NW \1/4\) of sec. twenty-two (22), all in township twenty-four (24) 
north, range six (6) east of the Indian meridian, and containing 197.5 
acres, more or less.
    (b) Hominy Indian Village. Lots Six (6) and Seven (7), and the East 
Half (E \1/2\) of the Southwest Quarter (SW \1/4\) of Section Six (6) in 
Township Twenty-two (22) North, Range Nine (9) East of the Indian 
Meridian, and containing 160 acres, more or less.
    (c) Pawhuska Indian Village. Lots One (1) and Two (2), and the South 
Half (S \1/2\) of the Northeast Quarter (NE \1/4\) of Section Three (3) 
in Township Twenty-five (25) North, Range Nine (9) East of the Indian 
Meridian, and containing 160 acres, more or less.

[28 FR 10203, Sept. 18, 1963, as amended at 33 FR 8270, June 4, 1968. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.4  Plats of village reserves.

    Plats of the Grayhorse Indian Village, the Pawhuska Indian Village, 
and the Hominy Indian Village, certified by Ralph M. Tolson, Registered 
Engineer, on July 5, 1966, are the official plats of dedication of said 
villages and shall be filed of record with the county clerk of Osage 
County, State of Oklahoma.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 299]]



Sec. 91.5  Tracts reserved from selection by individuals.

    The following described tracts, as shown on the plats of the three 
villages, are reserved from selection by individuals and are set aside 
for sepultural use or for public use by tribal members:
    (a) Grayhorse Indian Village:
    (1) Public Squares.
    (2) Parks, and
    (3) Cemetery.
    (b) Hominy Indian Village:
    (1) Public squares.
    (2) Cemetery, and
    (3) Lot 1 in block 1 set aside for religious and educational 
purposes to the Society of Friends, its Associate Executive Committee of 
Friends on Indian Affairs and its or their representative at Hominy, 
Okla., by Resolution of the Osage Tribal Council dated June 6, 1956, and 
approved by the Assistant Secretary of the Interior, September 7, 1956.
    (c) Pawhuska Indian Village:
    (1) Wakon Iron Square.
    (d) Those individuals who have summer homes or dance arbors located 
on the Public Square of the Hominy Indian Village shall be permitted to 
retain said summer homes or dance arbors during their lifetimes if they 
are maintained in a condition satisfactory to the Hominy Indian Village 
Committee. Following the owner's death, the improvements shall be 
removed within ninety (90) days or become the property of the Hominy 
Indian Village.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.6  Custody of public buildings and tracts reserved from 
selection by individuals; village committees.

    Each of the three (3) villages described herein shall organize a 
village committee to provide for the health, safety and welfare of its 
inhabitants, for the maintenance of tribal property, and to serve as 
custodian and manager of tribal property and improvements located within 
said village except that tract described in Sec. 91.5(b)(3). Each 
village committee shall be composed of five (5) members, domiciled in 
the village, one of whom shall be designated by the committee as 
chairman. The committees shall be elected biennially by the residents of 
the villages, except in the Grayhorse Indian Village where the committee 
shall be appointed by the Council from among those tribal members 
residing in or historically associated with the village. The procedure 
for initial committee elections shall be established by the Council. 
Each village committee shall prepare a constitution and by-laws to be 
approved by the Council and the Superintendent before said committee 
will have any authority to govern, and any changes or amendments thereto 
must likewise be approved by the Council and the Superintendent. All 
actions of the committee are subject to appeal to the Council whose 
decision shall be final: Provided, That such committee shall have no 
control or authority to grant permission for the use of tribal property 
described in Sec. 91.5 for the holding of dances. Such authority shall 
remain in the Council and any group or individual using the property for 
dance purposes without the written permission of the Council shall be in 
violation of these regulations: Provided, further, That the village 
committee shall not permit the use of any of the tracts described in 
Sec. 91.5 in any manner that would conflict with Council authorization 
for dance purposes.



Sec. 91.7  Permits to occupy land for dwelling purposes.

    The issuance of permits for the use of land for dwelling purposes 
within any village reserve described in Sec. 91.3 except tracts 
reserved for specific purposes by Sec. 91.5 will be under the 
jurisdiction of the Superintendent. Permits may be issued only to tribal 
members upon application to the Superintendent: Provided, That only one 
permit shall be issued to any one individual and that erection of a 
dwelling house shall be started on such land within six (6) months from 
date of approval of the permit or such permit shall be automatically 
terminated except that upon written application the Superintendent may 
extend such permit for an addition six (6) months: Provided, further, 
That only one dwelling shall be constructed under any one permit. 
Permits shall be

[[Page 300]]

issued for the use of one to three contiguous lots, depending upon the 
quality and permanency of the improvements to be placed thereon. Permits 
issued under this section shall be made in duplicate in a manner to be 
prescribed by the Superintendent. The original copy shall be filed in 
the Branch of Realty, Osage Agency, and the duplicate copy shall be 
mailed to the permittee.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.8  Sale or mortgage of improvements.

    No improvements located within the village reserves described in 
Sec. 91.3 shall be sold, mortgaged, transferred or assigned without the 
approval of the Superintendent.
    (a) Improvements may be mortgaged for home improvements or the 
erection of new improvements. Such mortgages shall be made with 
acceptable lending agencies and shall be approved by the Superintendent. 
The lending agency shall have the right:
    (1) To foreclose the mortgage and to sell the improvements within 
six (6) months of the date of foreclosure judgment to any eligible 
tribal member with the understanding that the use of the land on which 
the improvements are situated shall be transferable to the new owner; or
    (2) To foreclose the mortgage and to sell the improvements to a non-
tribal member, who shall remove the improvements from the village 
reserve within six (6) months of the date of sale. In the event of 
removal of the mortgaged property, it shall be the responsibility of the 
lending agency to level the land on which such improvements were located 
and to remove all debris, sidewalks, etc., leaving the premises in an 
orderly condition. Failure to make such disposition within the time 
stated in this paragraph shall result in forfeiture of the improvements 
to the village committee.
    (b) Improvements may be sold by the owner thereof with the approval 
of the Superintendent. Sale of such improvements shall be accomplished 
by bill of sale executed by the owner in triplicate who shall file all 
copies with the Superintendent. If the purchaser of such improvements is 
a member of the Osage Tribe, the bill of sale shall be accompanied by a 
relinquishment of the permit in favor of the vendee for the occupancy of 
the land on which such improvements are located. If the purchaser is not 
a member of the Osage Tribe, such purchaser shall be required to endorse 
an agreement on the reverse of all copies of the bill of sale that he 
will:
    (1) Remove the improvements from the village reserve within six (6) 
months of date of approval of the bill of sale;
    (2) Transfer the title thereof as provided in this section to a 
tribal member who is eligible; or
    (3) Failing to make such disposition within the time stated forfeit 
title to the village committee.
    (c) Upon approval of the bill of sale by the Superintendent, the 
original or certified copy shall be filed in the Branch of Realty, Osage 
Agency, the duplicate copy mailed to the purchaser, and the triplicate 
copy mailed to the seller.



Sec. 91.9  Inheritance of improvements.

    (a) Upon the death of the owner of improvements in a village 
reserve, such improvements shall, in probate matters, be subject to the 
jurisdiction of the county courts, State of Oklahoma, and shall be 
subject to inheritance or bequest in accordance with applicable State 
and Federal laws. The land within a village reserve is held in trust for 
the benefit of tribal members and is not subject to inheritance or 
purchase.
    (b) When such improvements or interests therein are inherited by or 
bequeathed to a non-tribal member, he or she shall dispose of such 
improvements in the manner provided for disposition of improvements by 
purchaser under Sec. 91.8: Provided, That when such non-tribal member 
is a legally adopted minor child such child may continue to occupy the 
land during its minority: Provided, further, That when such non-tribal 
member is the surviving spouse such individual, so long as he or she 
remains single may continue to occupy the land during his or her 
lifetime or may sell the improvements as provided herein and may receive 
a proceeds

[[Page 301]]

therefrom. In the event such surviving spouse remarries, the right to 
continuous occupancy of the land pursuant to this Sec. 91.9 shall 
terminate and such surviving spouse shall make disposition of such 
improvements as provided for purchasers in Sec. 91.8. If upon the death 
of the surviving spouse title to the improvements vests in a non-tribal 
member, they shall be sold as provided in Sec. 91.8 and the proceeds 
distributed to the persons entitled thereto.
    (c) Improvements inherited by tribal members may be occupied or 
rented in accordance with Sec. 91.10: Provided, No tribal member shall 
be issued more than two permits or own more than two sets of 
improvements, one of which must be inherited property and one occupied 
by the tribal member: Provided, further, No tribal member shall be 
permitted to retain more than one set of improvements for rental. If 
this provision is violated, the tribal member will have three years, 
from the date of written notice from the Superintendent that such 
provision has been violated, within which to dispose of the surplus 
property in accordance with Sec. 91.8.



Sec. 91.10  Renting of improvements.

    The Superintendent may issue a certificate of permission to rent for 
a period of one (1) year improvements located on land held under valid 
permit, subject to renewal in the discretion of the Superintendent, upon 
written application by the owner of such improvements and the 
prospective tenant: Provided, That such prospective tenant is a tribal 
member and the property to be rented is that heretofore occupied or 
inherited by the owner. Certificates of permission issued under this 
section may be withdrawn upon 30-day notice to the tenant by the 
Superintendent and such tenant expelled from the village reserve. The 
application and certificate of permission on a form to be prescribed by 
the Superintendent shall be made in triplicate and all copies forwarded 
to the Superintendent for action. Upon approval by the Superintendent, 
the original copy of the application and certificate shall be filed in 
the Branch of Realty, Osage Agency, the duplicate copy of each forwarded 
to the owner, and the triplicate copy of each forwarded to the tenant.



Sec. 91.11  Domestic animals in village reserves.

    (a) No livestock shall be permitted to trespass in any village 
reserve except that unassigned lots or unplatted areas enclosed by 
adequate fences may be leased by the village committee with the approval 
of the Superintendent and the proceeds therefrom credited to the account 
of the village committee. Trespassing livestock may be impounded by the 
village committee. The village committee shall give notice of 
impoundment to the owner of the animal, if known, by certified mail or 
by posting in the village square. The notice shall advise the owner that 
a $10 charge shall be assessed per day for each animal impounded and a 
reasonable charge for forage consumed and that the animal or animals 
shall be sold at the expiration of twenty (20) days from the date of 
mailing or posting the notice. In the event an animal is sold, the 
balance after deducting $10 per day for impoundment and a reasonable 
forage charge, shall be deposited at the Osage Agency and the owner may 
claim said funds if satisfactory proof of ownership is presented to the 
Superintendent of the Osage Agency within six (6) months of the date of 
sale. After six (6) months, any funds remaining on deposit will become 
the property of the village in which the animal was trespassing.
    (b) No horses, mules, bovine, hogs, sheep, or goats shall be penned 
on assigned lots.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.12  Business enterprises and public buildings.

    No permanent business enterprises shall be carried on within the 
boundaries of a village reserve and no public buildings shall be erected 
on lands within the boundaries of a village reserve except on tracts 
described in Sec. 91.5 maintained for the use and benefit of tribal 
members. The construction or acquisition of dwellings for rental 
purposes is prohibited. The village committee may grant permission and 
charge fees for temporary concessions within the village reserve during 
Indian celebrations, dances, community gatherings, etc., such temporary

[[Page 302]]

permits to last only for the term of activities for which granted.



Sec. 91.13  Health, sanitation, and sewerage disposal.

    Health, sanitation, and sewerage disposal problems within the 
village reserves shall be subject to and controlled by applicable County 
and State laws.



Sec. 91.14  Confirmation of permits.

    The Superintendent shall prepare a certified list of all current 
permittees with a description of lots held, which descriptions shall 
conform to the plats certified July 5, 1966. Said list shall be served 
by certified mail on the individual permittees and the village committee 
chairman and shall be posted at the Osage Agency and each of the three 
village squares. Unless a protest is filed with the Superintendent 
within ninety (90) days of the mailing and posting, said certified list 
of assigned lots and the individual permittees shall be final and 
conclusive. Protests may be filed by tribal members claiming an interest 
in an assigned lot and such protest shall be determined by the 
Superintendent after notice and hearing.

[33 FR 8271, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.15  Suspension or amendment of regulations.

    The regulations in this part may be suspended or amended at any time 
by the Secretary of the Interior: Provided, That such amendments or 
suspension shall not serve to change the terms or conditions of any 
mortgage approved in accordance with Sec. 91.8(a).

[[Page 303]]



                    SUBCHAPTER G_FINANCIAL ACTIVITIES





PART 101_LOANS TO INDIANS FROM THE REVOLVING LOAN FUND--Table of Contents




Sec.
101.1 Definitions.
101.2 Kinds of loans.
101.3 Eligible borrowers under United States direct loan program.
101.4 Applications.
101.5 Approval of loans.
101.6 Modification of loans.
101.7 Management and technical assistance.
101.8 Environmental and Flood Disaster Acts.
101.9 Preservation of historical and archeological data.
101.10 Federal Reserve Regulation Z and Fair Credit Reporting Act.
101.11 Interest.
101.12 Records and reports.
101.13 Security.
101.14 Maturity.
101.15 Penalties on default.
101.16 Default on loans made by relending organizations.
101.17 Uncollectable loans made by the United States.
101.18 Uncollectable loans made by relending organizations.
101.19 Assignment of loans.
101.20 Relending by borrower.
101.21 Repayments on United States direct loans.
101.22 Repayments on loans made by relending organizations.
101.23 Approval of articles of association and bylaws.
101.24 Loans for expert assistance for preparation and trial of Indian 
          claims.
101.25 Information collection.

    Authority: 25 U.S.C. 1469.

    Source: 40 FR 3587, Jan. 23, 1975, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 101.1  Definitions.

    As used in this part 101:
    Applicant means an applicant for a United States Direct Loan from 
the revolving loan fund or a loan from a relending organization.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative.
    Cooperative association means an association of individuals 
organized pursuant to state, Federal, or tribal law, for the purpose of 
owning and operating an economic enterprise for profit with profits 
distributed or allocated to patrons who are members of the organization.
    Corporation means an entity organized as a corporation pursuant to 
state, Federal, or tribal law, with or without stock, for the purpose of 
owning and operating an economic enterprise.
    Default means failure of a borrower to:
    (1) Make scheduled payments on a loan when due,
    (2) Obtain the lender's approval for disposal of assets mortgaged as 
security for a loan, or
    (3) Comply with the covenants, obligations, or other provisions of a 
loan agreement.
    Economic enterprise means any Indian-owned commercial, industrial, 
agricultural, or business activity established or organized for the 
purpose of profit, provided that eligible Indian ownership constitutes 
not less than 51 percent of the enterprise.
    Equity means the borrower's residual ownership, after deducting all 
business debt, of tangible business assets used in the business being 
financed, on which a lender can perfect a first lien position.
    Financing statement means the document filed or recorded in county 
or state offices pursuant to the provisions of the Uniform Commercial 
Code notifying third parties that a lender has a lien on the chattels 
and/or crops of a borrower.
    Indian means a person who is a member of an Indian tribe as defined 
in this part.
    Organization means the governing body of any Indian tribe, or entity 
established or recognized by such governing body for the purpose of the 
Indian Financing Act.
    Other organization means any non-Indian individual, firm, 
corporation, partnership, or association.
    Partnership means a form of business organization in which two or 
more legal persons are associated as co-owners for the purposes of 
business or professional activities for private pecuniary gain, 
organized pursuant to tribal, state, or Federal law.

[[Page 304]]

    Reservation means Indian reservation, California rancheria, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held by Alaska Native groups incorporated under the provisions of the 
Alaska Native Claims Settlement Act (85 Stat. 688), as amended.
    Revolving loan fund means all funds that are now or hereafter a part 
of the revolving fund authorized by the Act of June 18, 1934 (48 Stat. 
986), the Act of June 26, 1936 (49 Stat. 1968) and the Act of April 14, 
1950 (64 Stat. 44), as amended and supplemented including sums received 
in settlement of debts for livestock pursuant to the Act of May 24, 
1950, (64 Stat. 190) and sums collected in repayment of loans made, 
including interest or other charges on loans, and any funds appropriated 
pursuant to section 108 of the Indian Financing Act of 1974 (88 Stat. 
77).
    Secretary means the Secretary of the Interior.
    Tribe means any Indian tribe, bank, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or any 
regional, village, urban or group corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688), as amended, which is recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs.

[57 FR 46471, Oct. 8, 1992]



Sec. 101.2  Kinds of loans.

    Loans from the Indian Revolving Loan Fund shall be made for purposes 
which will improve and promote the economic development on Indian 
reservations.
    (a) Loans may be made by the United States to eligible relending 
organizations for relending to members for economic enterprises and to 
eligible tribes for relending to members, eligible corporations, 
cooperative associations, partnerships and subordinate bands and for 
financing tribal economic enterprises, which will promote the economic 
development of a reservation and/or the group or members thereon. Loans 
made by tribes or relending organizations may be for the following 
purposes:
    (1) To individual Indians or Natives, cooperative associations, 
corporations and partnerships, to finance economic enterprises operated 
for profit, the operation of which will contribute to the improvement of 
the economy of a reservation and/or the members thereon.
    (2) To individual Indians or Natives for purposes of purchasing, 
constructing or improving housing on a reservation and to be occupied by 
the borrower.
    (3) To individual Indians and Natives for purposes of obtaining a 
college or graduate education and degree in a field which will provide 
employment opportunities, provided that adequate funds are not available 
from sources such as grants, scholarships or other loan sources.
    (4) To individual Indians and Natives for purposes of attending 
vocational schools which provide training in desired skills in a field 
in which there are employment opportunities, provided that adequate 
funds and/or training are not available from grant or scholarship 
sources, or federal or state training programs.

Loans may also be made by the United States to tribes for loaning to or 
investing in other organizations subject to the provisions in paragraph 
(d) of this section.
    (b) Direct loans may be made by the United States to eligible 
tribes, tribal organizations or corporations and tribal cooperative 
associations without fund restrictions. Direct loans to individual 
Indians, partnerships, and other non-tribal organizations shall not 
exceed $350,000. Direct loans from the United States shall be made for 
the following purposes:
    (1) To eligible tribes, individual Indians, Natives, or associations 
thereof, corporations and partnerships, to finance economic enterprises 
operated for profit, the operation of which will contribute to the 
improvement of the economy of a reservation and/or the members thereon.
    (2) To individual Indians and Natives for purposes of purchasing, 
constructing or improving housing on a reservation and to be occupied by 
the borrower.
    (3) To individual Indians and Natives for purposes of obtaining a 
college or

[[Page 305]]

graduate education and degree in a field which will provide employment 
opportunities, provided that adequate funds are not available from 
sources such as grants, scholarships or other loan sources.
    (4) To individual Indians and Natives for purposes of attending 
vocational schools which provide training in desired skills in a field 
in which there are employment opportunities, provided that adequate 
funds and/or training are not available from grants or scholarship 
sources or federal or state training programs.
    (c) Before a United States direct loan is approved, the Commissioner 
may require the applicants to prepare a market and capacity report on 
existing or proposed economic enterprises for which financing is 
requested if the operation involves manufacturing, selling or providing 
services.
    (d) Loans may be made to eligible tribes and Indian organizations 
for use in attracting industries and economic enterprises, the operation 
of which will contribute to the economy of a reservation. Tribes and 
Indian organizations may receive loans from the revolving loan fund for 
investment in or lending to other organizations regardless of whether 
they are organizations of Indians. However, not more than 50 percent of 
the loan made to an Indian organization may be used for the purpose of 
making a loan to or investing in other organizations. Applications for 
loans to provide funds for lending to or investing in other 
organizations already in operation will be accompanied by:
    (1) Audited balance sheets and operating statements of the other 
organization for the immediate three preceding years;
    (2) Pro forma operating statement and balance sheets for the 
succeeding three years reflecting the results of operations after 
injection of the additional funds;
    (3) Names of owners or if a corporation and stock has been issued, 
names of major stockholders and shares of stock owned by each;
    (4) A copy of the articles of incorporation and bylaws, if 
incorporated, or other organization papers if not incorporated;
    (5) Names of members of the board of directors and officers with a 
resume of education and experience, and the number of shares of stock 
owned by each in the corporation;
    (6) Purposes for which loan or investment will be used; and
    (7) If for manufacturing, selling or providing services, a market 
and capacity report will be prepared. If a proposed operation is to be 
established, the information in paragraphs (d)(2) through (7) of this 
section will be furnished. The Commissioner may require additional 
information on the other organization, if needed, to adequately evaluate 
the benefits which the Indian organization will receive and the economic 
benefits which will accrue to a reservation. If the loan is for 
relending to another organization, the application must show what 
security is being offered. If the loan is for investment in another 
organization, the equity to be obtained must be shown. Copies of all 
agreements, contracts or other documents to be executed by the Indian 
organization and the other organization in connection with a loan or 
investment shall be submitted with the application for a loan and will 
require Commissioner approval prior to disbursement of loan funds to the 
Indian organization.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34974, Aug. 23, 1989]



Sec. 101.3  Eligible borrowers under United States direct loan program.

    (a) Loans may be made from the revolving loan fund to Indians, 
eligible tribes and relending organizations, and corporations, 
cooperative associations and partnerships having a form of organization 
satisfactory to the Commissioner. Loans may be made to applicants only 
when, in the judgment of the Commissioner, there is a reasonable 
prospect of repayment. Loans may be made only to an applicant who, in 
the opinion of the Commissioner, is unable to obtain financing on 
reasonable terms and conditions from other sources such as tribal 
relending programs, banks, Farmers Home Administration, Small Business 
Administration, Production Credit Associations,

[[Page 306]]

or Federal Land Banks, and is also unable to obtain a guaranteed or 
insured loan pursuant to title II of the Indian Financing Act of 1974 
(88 Stat. 77). In addition, the applicant will be required to have 
equity equal to 20 percent of the total cost of a new enterprise, or 20 
percent of the total cost of expansion of an existing enterprise.
    (b) The establishment of a United States direct revolving loan 
program on a reservation(s) for making direct loans will require the 
approval of the Commissioner. All requests for establishing a United 
States direct revolving loan program on a reservation will be 
accompanied by reasons for need, estimate of financing needs, and other 
sources of financing available to meet the needs. The Commissioner, in 
approving a United States direct loan program, may require the 
preparation and approval of a plan of operation for conducting the 
program.
    (c) If local lending conditions and/or the information in an 
application for a loan indicate a probability that an applicant may be 
able to obtain the loan from other sources, the Commissioner, before 
approving a United States direct loan, will require the applicant to 
furnish letters from two customary lenders in the area who are making 
loans for similar purposes, stating whether or not they are willing to 
make a loan to the applicant for the same purposes and amount. If a 
customary lender will make the loan on reasonable terms and conditions, 
the Commissioner will not approve a United States direct loan.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34974, Aug. 23, 1989; 57 FR 46471, Oct. 8, 1992]



Sec. 101.4  Applications.

    An applicant for a United States direct loan or a loan from a 
relending organization conducting a relending program under this part 
will submit an application on a form approved by the Commissioner. 
Applications shall include the name, current address and telephone 
number of the applicant(s); current and prior Taxpayer Identification 
Number--Employer Identification Number if a business entity, Social 
Security Number if an individual; and current employer's name, address, 
and telephone number; amount of the loan requested; purpose for which 
loan funds will be used; and security to be offered; period of the loan, 
assets, liabilities and repayment capacity of the applicant; budgets 
reflecting income and expenditures of the applicant; and any other 
information necessary to adequately evaluate the application. The 
borrower must sign a statement declaring no delinquency on Federal taxes 
or other Federal debt and borrower's good standing on dealings in 
procurement or non-procurement with the Federal Government. The Bureau 
will obtain a current credit bureau report and prescribe procedures to 
be used in handling loan proceeds. In addition, applications for loans 
to finance economic enterprises already in operation will be accompanied 
by:
    (a) A copy of operating statements, balance sheets and budgets for 
the prior two operating years or applicable period thereof preceding 
submittal of the application;
    (b) Current budget, balance sheet and operating statements; and
    (c) Pro forma budgets operating statements and balance sheets 
showing the estimated results for operating the enterprise for two years 
after injection of the loan funds into the operation.

A resume of the applicant's management experience will be submitted with 
the application. Applications for loans and requests for advance of 
tribal trust funds for relending under the provisions of this part shall 
be accompanied by a declaration of policy and plan of operation or other 
acceptable plan for conducting the program. Applications for loans or 
modifications thereof, to establish, acquire, operate, or expand an 
economic enterprise shall be accompanied by a plan of operation. 
Declarations of policy or other plans for conducting a relending program 
and plans of operation for economic enterprises require the approval of 
the Commissioner before becoming effective. An application from a 
corporation, partnership or cooperative association, for a United States 
direct loan or a loan under a relending program for financing an 
economic enterprise must, in addition to financial statements and 
budgets, include a copy of documents establishing the entity, or the 
proposed

[[Page 307]]

documents to be used in establishing it.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46471, Oct. 8, 1992]



Sec. 101.5  Approval of loans.

    (a) Loan agreements, including those used by relending organizations 
in operating a relending program, must be executed on a form approved by 
the Commissioner. On direct United States loans, the Commissioner will 
approve the loan by issuing a commitment order covering the terms and 
conditions for making the loan.
    (b) Applications for loans from relending organizations must be 
approved, if a tribe, by the governing body or designated committee, or 
other approving committee or body authorized to act on credit matters 
for a relending organization, before the Commissioner takes action on 
the application. This designated governing body of the tribe or 
committee must be authorized to act on behalf of the relending 
organization as evidenced in the organization's declaration of policy 
and plan of operation.
    (c) Corporations, partnerships and cooperative associations 
organized for the purpose of establishing, acquiring, expanding, and 
operating an economic enterprise shall be organized pursuant to federal, 
state or tribal law. The form of organization shall be acceptable to the 
Commissioner. Economic enterprises which are or will be operated on a 
reservation(s) must comply with the requirements of applicable rules, 
resolutions and ordinances enacted by the governing body of the tribe.



Sec. 101.6  Modification of loans.

    (a) United States direct loans. Any modification of the terms and 
provisions of a United States direct loan agreement must be requested in 
writing by the borrower and approved by the Commissioner. The borrower 
will submit the request for modification and will indicate the 
section(s) of the loan agreement to be modified together with a 
justification for the modification. Requests for modifications of loan 
agreements will include an agreement to abide by the provisions of the 
regulations in this part and future amendments and modifications 
thereof. In addition, a current credit bureau report, obtained by the 
Bureau of Indian Affairs, will be made a part of the modification 
request.
    (b) Relending program. Any modification of the terms and provisions 
of a loan agreement of a borrower from an organization conducting a 
relending program must be in writing, agreed to by the borrower, and 
must be approved by the body authorized to act on loans and 
modifications thereof as provided in an approved declaration of policy 
and plan of operation or other plan. If a request for modification of a 
loan has been disapproved by the body authorized to act on the request, 
the rejected borrower may request the Commissioner to make a direct loan 
from the revolving loan fund if the Commissioner determines that the 
rejection is unwarranted.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.7  Management and technical assistance.

    Prior to and concurrent with the approval of a United States direct 
loan to finance an economic enterprise, the Commissioner will assure 
under title V of the Indian Financing Act of 1974 that competent 
management and technical assistance is available to the loan applicant 
for preparation of the application and/or administration of funds loaned 
consistent with the nature of the enterprise proposed to be or in fact 
funded by the loan. Assistance may be provided by available Bureau of 
Indian Affairs staff, the tribe or other sources which the Commissioner 
considers competent to provide needed assistance. Contracting for 
management and technical assistance may be used only when adequate 
assistance is not available without additional cost. Contracts for 
providing borrowers with competent management and technical assistance 
shall be in accordance with applicable Federal Procurement Regulations 
and the Buy Indian Act of April 30, 1908, chapter 153 (35 Stat. 71), as

[[Page 308]]

amended June 25, 1910, chapter 431, section 25 (36 Stat. 861).

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34975, Aug. 23, 1989]



Sec. 101.8  Environmental and Flood Disaster Acts.

    Loans will not be approved until there is assurance of compliance 
with any applicable provisions of the Flood Disaster Protection Act of 
1973 (Pub. L. 93-234, 87 Stat. 975), the National Environmental Policy 
Act of 1969 (Pub. L. 91-190), (42 U.S.C. 4321) and Executive Order 
11514.



Sec. 101.9  Preservation of historical and archeological data.

    (a) On United States direct loans from the revolving loan fund and 
modifications thereof to provide additional loan funds which will 
involve excavations, road or street construction, land development or 
disturbance of land on known or reported historical or archeological 
sites, the Commissioner will take or require appropriate action to 
assure compliance with the applicable provisions of the Act of June 27, 
1960 (74 Stat. 220; (16 U.S.C. 469)), as amended by the Act of May 24, 
1974 (Pub. L. 93-291, 88 Stat. 174).
    (b) On loans made by relending organizations conducting a relending 
program using revolving loan funds, the body authorized to act on loan 
applications and modifications thereof will, at the time of taking 
action on a loan or request for modification, inform the applicant of 
the applicability of this Act to the loan and advise the Commissioner of 
compliance or the need to obtain compliance.



Sec. 101.10  Federal Reserve Regulation Z and Fair Credit Reporting Act.

    (a) United States direct loans and loans made by a relending 
organization are subject to the provisions of Federal Reserve Regulation 
Z (Truth In Lending, 12 CFR part 226; Pub. L. 91-508, 84 Stat. 1127). 
Economic enterprises which extend credit and require payment of finance 
charges on unpaid balances will determine the applicability of 
Regulation Z and comply with the requirements thereof. The Commissioner 
will issue any necessary instructions to assure compliance with 
Regulation Z on United States direct loans.
    (b) Relending organizations, through their committee or other body 
authorized to act on loan matters on its behalf, will assure compliance 
with the applicable provisions of this Act.
    (c) The Commissioner will require adherence to the provisions and 
requirements of title VI of the Fair Credit Reporting Act in making 
United States direct loans. Relending organizations, through the body 
authorized to act on credit matters, will require compliance with the 
requirements of the Fair Credit Reporting Act.



Sec. 101.11  Interest.

    (a) The interest to be charged on loans by the United States shall 
be at a rate determined by the Secretary of the Treasury in accordance 
with section 104, title I, of the Indian Financing Act of 1974 (Pub. L. 
93-262, 88 Stat. 77). The interest rate shall be determined monthly and 
shall be effective on advances made on loans during the current calendar 
month. The interest rate shall be stated in the promissory note(s) 
executed by the borrower(s) evidencing the advance(s).
    (b) Additional charges to cover loan administration costs, including 
credit reports, may be charged to borrowers.
    (c) Education loans may provide for deferral of interest while the 
borrower is in school full time or in the military service.
    (d) The interest rate on loans made by relending organizations which 
are conducting relending programs shall not be less than the rate the 
organization pays on its loan(s) from the United States. Relending 
organizations which adopt and follow the same procedure in calculating 
interest on educational loans as is followed on educational loans made 
by the United States, will not be charged interest on loans from the 
United States on the amount outstanding on educational loans during the 
period the organization is not charging its borrowers interest.
    (e) Interest rates on loan advances made by the United States as 
shown on promissory notes dated before April 12, 1974, will remain in 
effect until the loan is paid in full, refinanced, or modified to extend 
the repayment

[[Page 309]]

terms. Unless otherwise specifically provided in a loan contract, the 
interest rate on advances made after April 12, 1974, will be at a rate 
determined pursuant to section 104 of title I of the Indian Financing 
Act of 1974. The interest rate on loans for expert assistance will be at 
a rate established in Sec. 101.25 herein.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.12  Records and reports.

    Loan agreements between the United States and tribes, corporations, 
partnerships, cooperative associations and individual Indians for 
financing economic enterprises, and to relending organizations, will 
require that borrowers establish and maintain accounting and operating 
records that are satisfactory to the Commissioner and submit written 
reports as required by the Commissioner. The records, accounts, and loan 
files shall be available for examination and audit by the Commissioner 
at any reasonable time. Unless an exception is approved by the 
Commissioner, borrowers will be required to have an annual audit made of 
the records of relending programs and economic enterprises financed with 
revolving loan funds, by a certified public accountant or a firm of 
certified public accountants or other qualified public accountants 
satisfactory to the Commissioner.



Sec. 101.13  Security.

    (a) United States direct loans shall be secured by such security as 
the Commissioner may require. A lack of security will not preclude the 
making of a loan if the proposed use of the funds is sound and the 
information in the application and supporting papers correctly show that 
expected income will be adequate to pay all expenses and the loan 
principal and interest payments, indicating reasonable assurance that 
the loan will be repaid. Loans made by relending organizations 
conducting a relending program using revolving loan funds will require 
borrowers to give security for loans, if available, but the absence of 
security will not preclude the making of a loan if the proposed use of 
the funds is sound and the information in the application and supporting 
papers correctly show that expected income will be adequate to pay all 
expenses and the loan principal and interest payments, indicating 
reasonable assurance that the loan will be repaid. The declaration of 
policy and plan of operation of relending organizations conducting 
relending programs will include provisions covering the type and amount 
of security to be taken to secure loans made.
    (b) Land purchased by an individual Indian with the proceeds of a 
loan and land already held in trust or restricted status by the 
individual Indian may be mortgaged as security for a loan in accordance 
with 25 CFR 152.34 and the Act of March 29, 1956 (70 Stat. 62; (25 
U.S.C. 483a)). Mortgages of individually held trust or restricted land 
will include only an acreage of the borrower's land which the 
Commissioner determines is necessary to protect the loan in case of 
default. On proposed foreclosures which involve the sale of individually 
held trust or restricted land given as security for a loan, the tribe of 
the reservation on which the land is located will be notified in writing 
at least thirty calendar days in advance of the anticipated date of 
sale. Land purchased by a tribe with the proceeds of a loan from the 
revolving loan fund with title taken in a trust or restricted status, 
and land already held in a trust or restricted status by a tribe may not 
be mortgaged as security for a loan.
    (1) Title to any land purchased by a tribe or by an individual 
Indian with revolving loan funds may be taken in trust or restricted 
status unless the land is located outside the boundaries of a 
reservation or a tribal consolidation area approved by the Secretary. 
Title to any land purchased by a tribe or an individual Indian which is 
outside the boundaries of a reservation or approved consolidation area 
may be taken in trust if the purchaser was the owner of trust or 
restricted interests in the land before the purchase. Otherwise, title 
shall be taken in the name of the purchaser without any restrictions on 
alienation, control, or use.
    (c) Mortgages of leasehold interests in land held in trust or 
restricted status by an individual Indian, may be

[[Page 310]]

taken for the purpose of borrowing capital for the development and 
improvement of the leased premises when permitted in the lease or lease 
modification agreement. Such mortgages must be approved by the lessor 
and Commissioner. (70 Stat. 62, (25 U.S.C. 483a)).
    (d) Individuals may give assignments of income from trust property 
as security for loans. Tribes may give assignments of trust income as 
security for loans provided that the assignment shall be specific as to 
the source(s) of income being assigned. All assignments of trust income 
require approval by the Commissioner before becoming effective.
    (e) Chattels may be given as security for a loan. A mortgage on 
chattels, the title to which is known to be in trust, requires 
Commissioner approval. Non-trust chattels may be mortgaged without 
approval of any federal official.
    (f) Crops grown on lands held in trust or restricted status for the 
benefit of an individual Indian may be given as security for a loan when 
approved by the Commissioner. Crops grown on leased, trust or restricted 
land may be given as security for a loan when permitted by the 
provisions of a lease or when the owner gives written consent. Approval 
of the lien document by the Commissioner is required. Crops grown on 
trust or restricted land held by a tribe which has been assigned to an 
individual for use may be given as security for a loan, provided the 
terms of the assignment permit the assignee to give the crops as 
security for a loan or the tribe's governing body specifically gives 
consent. The lien document requires Commissioner approval. Crops grown 
on non-trust or non-restricted land may be mortgaged without the 
approval of any federal official.
    (g) Title to any personal property purchased with a loan shall be 
taken in the name of the purchaser and mortgaged to secure the loan 
unless the loan is otherwise adequately secured. Tribes must adhere to 
the provisions of their constitutions and bylaws, corporate charters, or 
other organizational documents when mortgaging tribal property and 
assigning trust income as security for loans.
    (h) Relending organizations receiving a loan from the United States 
for relending shall be required to assign to the United States as 
security for the loan all securities acquired in connection with loans 
made to its members, sub-organizations, or associations from such funds, 
unless the Commissioner determines that repayment of the loan to the 
United States is otherwise reasonably assured. Funds advanced to finance 
a tribal economic enterprise shall be secured by an assignment of net 
income and net assets of the economic enterprise, unless the 
Commissioner determines that it is not feasible to require an assignment 
or that repayment of the loan to the United States is otherwise 
reasonably assured.
    (i) Securing documents or financing statements shall be filed or 
recorded in accordance with applicable state or federal laws except for 
those customarily filed in Bureau of Indian Affairs offices. Mortgages 
on documented vessels will be filed at the customs house designated as 
the home port of the vessel as shown on the marine document.



Sec. 101.14  Maturity.

    The maturity of any United States direct loan shall not exceed 
thirty years. Loans made will be scheduled for repayment at the earliest 
possible date consistent with the purpose of the loan and the repayment 
capacity of the borrower.



Sec. 101.15  Penalties on default.

    Unless otherwise provided in the loan agreement between the United 
States and a borrower, failure on the part of a borrower to conform to 
the terms of the loan agreement will be deemed grounds for the taking of 
any one or all of the following steps by the Commissioner:
    (a) Discontinue any further advance of funds contemplated by the 
loan agreement.
    (b) Take possession of any or all collateral given as security and 
in the case of individuals, corporation, partnerships or cooperative 
associations, the property purchased with the borrowed funds.
    (c) Prosecute legal action against the borrower or against officers 
of corporations, tribes, bands, credit associations, cooperative 
associations, and other organizations.

[[Page 311]]

    (d) Declare the entire amount advanced immediately due and payable.
    (e) Prevent further disbursement of credit funds under the control 
of the borrower.
    (f) Withdraw any unobligated funds from the borrower.
    (g) Require relending organizations conducting a relending program 
to apply all collections on loans to liquidate the debt to the United 
States.
    (h) Take possession of the assets of a relending organization 
conducting a relending program and exercise or arrange to exercise its 
powers until the Commissioner has received acceptable assurance of its 
repayment of the revolving loan and compliance with the provisions of 
the terms of the loan agreement.
    (i) Liquidate, operate or arrange for the operation of economic 
enterprises financed with revolving loans made to individuals, tribes, 
corporations, partnerships and cooperative associations until the 
indebtedness is paid or until the Commissioner has received acceptable 
assurance of its repayment and compliance with the terms of the loan 
agreement.
    (j) Report the name and account information of a delinquent borrower 
to a credit bureau.
    (k) Assess additional interest and penalty charges for the period of 
time that payment is not made.
    (l) Assess charges to cover additional administrative costs incurred 
by the Government to service the account.
    (m) Offset amounts owed the borrower under other Federal programs 
including other programs administered by the Bureau of Indian Affairs.
    (n) Refer the account to a private collection agency to collect the 
amount due.
    (o) Refer the account to the U.S. Department of Justice for 
collection by litigation.
    (p) If the borrower is a current or retired Federal employee, take 
action to offset the borrower's salary or civil service retirement 
benefits.
    (q) Refer the debt to the Internal Revenue Service for offset 
against any amount owed the borrower as an income tax refund.
    (r) Report any written-off debt to the Internal Revenue Service as 
taxable income to the borrower.
    (s) Recommend suspension or debarment from conducting further 
business with the Federal Government.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.16  Default on loans made by relending organizations.

    Relending organizations conducting relending programs using 
revolving loan funds will follow prudent lending practices in making and 
servicing loans and take appropriate actions to protect their interests 
in the security given to secure repayment of loans. Declarations of 
policy and plans of operation shall include procedures which will be 
followed in acting to correct a default, such as modification of loan 
agreement or foreclosure and liquidation of security. Relending 
organizations employing a general counsel will refer legal questions on 
foreclosure procedures and sale of security to their counsel.



Sec. 101.17  Uncollectable loans made by the United States.

    If the Secretary determines that a United States direct loan is 
uncollectable in whole or in part or is collectable only at an 
unreasonable cost, or when such action would be in the best interest of 
the United States, the Secretary may cancel, adjust, compromise, or 
reduce the amount of any loan made from the revolving loan fund. The 
Commissioner may adjust, compromise, subordinate, or modify the terms of 
any mortgage, lease, assignment, contract, agreement, or other document 
taken as security for loans. The cancellation of all or part of a loan 
shall become effective when signed by the Secretary.

[54 FR 34975, Aug. 23, 1989]



Sec. 101.18  Uncollectible loans made by relending organizations.

    (a) Relending organizations conducting relending programs using 
revolving loan funds may, when approved by the Commissioner, chargeoff 
as uncollectible all or part of the balance of principal and interest 
owing on

[[Page 312]]

loans which are considered to be uncollectible. Usually a chargeoff 
includes both principal and interest and provides for cessation of 
interest accruals on the principal balance owing as of the date of the 
chargeoff.
    (b) Action to chargeoff a loan will be in the form of a resolution 
enacted by the committee or body authorized and responsible for actions 
on loan matters for the relending organization. Before action is taken 
to chargeoff a loan as uncollectible, the lender will make an effort, to 
the extent feasible, to liquidate the security given for a loan and 
apply the net proceeds as a repayment on the balance of principal and 
interest owed. The chargeoff of a loan by a relending organization as 
uncollectible will not reduce the principal balance owed to the United 
States. A chargeoff will not release the borrower of the obligation or 
the responsibility to make payments when his or her financial situation 
will permit. Chargeoff action will not release the lender of 
responsibility to continue its efforts to collect the loan.



Sec. 101.19  Assignment of loans.

    A borrower of a direct loan from the United States may not assign 
the loan agreement or any interest in it to a third party without the 
consent of the Commissioner. Relending organizations which are 
conducting relending programs may not assign the loan agreements of 
borrowers, or any interest therein, to third parties without the 
approval of the Commissioner and the borrower.



Sec. 101.20  Relending by borrower.

    (a) A relending organization may reloan funds loaned to it by the 
United States with the approval of the Commissioner. The Commissioner 
may authorize such lenders to approve applications for particular types 
of loans up to a specified amount.
    (b) Loans shall be secured by such securities as the lender and the 
Commissioner may require. With the Commissioner's approval, mortgages of 
individually held trust or restricted land, leasehold interests, 
chattels, crops grown on trust or restricted land, and assignments of 
trust income may all be taken as security for loans.
    (c) Title to personal property purchased with loans received from 
relending organizations using revolving loan funds in its relending 
program shall be taken in the name of the borrower.
    (d) The term of a loan made by a relending organization conducting a 
relending program shall not extend beyond the maturity date of its loan 
from the United States, unless an exception is approved by the 
Commissioner and the organization has funds available from which to make 
scheduled repayment on its loan from the United States. Loans made will 
be scheduled for repayment at the earliest possible date consistent with 
the purpose for which a loan is made and the indicated repayment 
capacity of the borrower.
    (e) Securing documents or financing statements shall be filed or 
recorded in accordance with federal or state law except those 
customarily filed in Bureau of Indian Affairs offices. Mortgages on 
documented vessels will be filed at the custom house designated as the 
home port of the vessel as shown on the marine document.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated and amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.21  Repayments on United States direct loans.

    Repayments on United States direct loans shall be made to the 
authorized collection officer of the Bureau of Indian Affairs who shall 
issue an official receipt for the repayment and deposit the collection 
into the revolving loan fund. Collections will first be applied to pay 
interest to date of payment and the balance applied on the principal 
installment due. Collections on loans made by relending organizations 
which have been declared in default in which the Commissioner has taken 
control of the assets of the program (including loans made with balances 
owing) will be made to an authorized collection officer of the Bureau of 
Indian Affairs who shall issue a receipt to the payor and deposit the 
collection in the United States revolving loan fund. The relending 
organization's loan from the United States will be credited with the 
amounts collected from its borrowers,

[[Page 313]]

with the collections applied first on interest accrued and the balance 
applied to the principal. Payments on United States direct loans may be 
made in advance of due dates without penalty.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.22  Repayments on loans made by relending organizations.

    Repayments on loans made by a relending organization conducting a 
relending program will be made to the officers of the lending 
organization or individuals designated and authorized in a declaration 
of policy and plan of operation. Collections on loans and other income 
to a relending program will be deposited in the lender's revolving loan 
account as designated in a declaration of policy and plan of operation. 
Collections on loans will be first applied to pay interest to date of 
payment with the balance applied to the principal.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.23  Approval of articles of association and bylaws.

    Articles of association and bylaws of relending organizations and 
cooperative associations require approval of the Commissioner if they 
make application for a revolving credit loan.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.24  Loans for expert assistance for preparation and trial of 
Indian claims.

    (a) Loans may be made to Indian tribes, bands and other identifiable 
groups of Indians from funds authorized and appropriated under the 
provisions of section 1 of the Act of November 4, 1963 (Pub. L. 88-168, 
77 Stat. 301; 25 U.S.C. 70n-1), as amended by the Act of September 19, 
1966 (Pub. L. 89-592, 80 Stat. 814) and section 2 of the Act of May 24, 
1973 (Pub. L. 93-37, 87 Stat. 73). Loan proceeds may only be used for 
the employment of expert assistance, other than the assistance of 
counsel, for the preparation and trial of claims pending before the 
Indian Claims Commission. Applications for loans will be submitted on 
forms approved by the Commissioner and shall include a justification of 
the need for a loan. The justification shall include a statement from 
the applicant's claims attorney regarding the need for a loan. The 
application will be accompanied by a statement signed by an authorized 
officer of the applicant certifying that the applicant does not have 
adequate funds available to obtain and pay for the expert assistance 
needed. The Superintendent and the Area Director will attest to the 
accuracy of the statement or point out any inaccuracies. Loans will be 
approved by issuance of a commitment order by the Commissioner.
    (b) No loan shall be approved if the applicant has funds available 
on deposit in the United States Treasury or elsewhere in an amount 
adequate to obtain the expert assistance needed or if, in the opinion of 
the Commissioner, the fees to be paid the experts are unreasonable on 
the basis of the services to be performed by them.
    (c) Contracts for the employment of experts are subject to the 
provisions of 25 U.S.C. 81 and require approval by the Commissioner.
    (d) Vouchers or claims submitted by experts for payment for services 
rendered and reimbursement for expenses will be in accordance with the 
provisions of the expert assistance contract and shall be sufficiently 
detailed and itemized to permit an audit to determine that the amounts 
are in accordance with the contract. Vouchers or claims shall be 
reviewed by the borrower's claims attorney who will certify on the last 
page of the voucher or by attachment thereto, that the services have 
been rendered and payment is due the expert and that expenses and 
charges for work performed are in accordance with the provisions of the 
contract.
    (e) Requests for advances under the loan agreement shall be 
accompanied by a certificate signed by an authorized officer of the 
borrower certifying that the borrower does not have adequate funds 
available from its own financial resources with which to pay the expert. 
The Superintendent and Area Director will attest to the accuracy of the 
statement or point out inaccuracies. A copy of the voucher or claim from 
the expert

[[Page 314]]

will accompany the request for advance.
    (f) Loan funds will be advanced only as needed to pay obligations 
incurred under approved contracts for expert assistance. The funds will 
be deposited in a separate account, shall not be commingled with other 
funds of the borrower, and shall not be disbursed for any other purpose.
    (g) Loans shall bear interest at the rate of 5\1/2\ percent per 
annum from the date funds are advanced until the loan is repaid.
    (h) The principal amount of the loan advanced plus interest shall be 
repayable from the proceeds of any judgment received by the borrower at 
the time funds from the award become available to make the payment.

(77 Stat. 301 (25 U.S.C. 70n-1 to 70n-7))

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.25  Information collection.

    (a) The collections of information contained in Sec. Sec. 101.3, 
101.4, 101.12, and 101.25 have been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 
1076-0020. The information will be used to rate applicants in accordance 
with the terms and conditions set forth in section 103 of the Indian 
Financing Act, as amended. Response is required to obtain a benefit in 
accordance with 25 U.S.C. 1451.
    (b) Public reporting burden for this information is estimated to 
vary from 15 minutes to 3 hours per response, with an average of one 
hour per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding this burden estimate or any other aspects of this 
collection of information, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer, Bureau of 
Indian Affairs, Mailstop 337-SIB, 18th and C Streets NW., Washington, DC 
20240; and the Paperwork Reduction Project (1076-0020), Office of 
Management and Budget, Washington, DC 20503.

[54 FR 34975, Aug. 23, 1989. Redesignated at 57 FR 46472, Oct. 8, 1992]



PART 103_LOAN GUARANTY, INSURANCE, AND INTEREST SUBSIDY--Table of Contents




                      Subpart A_General Provisions

Sec.
103.1 What does this part do?
103.2 Who does the Program help?
103.3 Who administers the Program?
103.4 What kinds of loans will BIA guarantee or insure?
103.5 What size loan will BIA guarantee or insure?
103.6 To what extent will BIA guarantee or insure a loan?
103.7 Must the borrower have equity in the business being financed?
103.8 Is there any cost for a BIA guaranty or insurance coverage?

  Subpart B_How a Lender Obtains a Loan Guaranty or Insurance Coverage

103.9 Who applies to BIA under the Program?
103.10 What lenders are eligible under the Program?
103.11 How does BIA approve lenders for the Program?
103.12 How does a lender apply for a loan guaranty?
103.13 How does a lender apply for loan insurance coverage?
103.14 Can BIA request additional information?
103.15 Are there any prohibited loan terms?
103.16 How does BIA approve or reject a loan guaranty or insurance 
          application?
103.17 Must the lender follow any special procedures to close the loan?
103.18 How does BIA issue a loan guaranty or confirm loan insurance?
103.19 When must the lender pay BIA the loan guaranty or insurance 
          premium?

                       Subpart C_Interest Subsidy

103.20 What is interest subsidy?
103.21 Who applies for interest subsidy payments, and what is the 
          application procedure?
103.22 How does BIA determine the amount of interest subsidy?
103.23 How does BIA make interest subsidy payments?
103.24 How long will BIA make interest subsidy payments?

[[Page 315]]

               Subpart D_Provisions Relating to Borrowers

103.25 What kind of borrower is eligible under the Program?
103.26 What must the borrower supply the lender in its loan application?
103.27 Can the borrower get help preparing its loan application or 
          putting its loan funds to use?

                        Subpart E_Loan Transfers

103.28 What if the lender transfers part of the loan to another person?
103.29 What if the lender transfers the entire loan?

                  Subpart F_Loan Servicing Requirements

103.30 What standard of care must a lender meet?
103.31 What loan servicing requirements apply to BIA?
103.32 What sort of loan documentation does BIA expect the lender to 
          maintain?
103.33 Are there reporting requirements?
103.34 What if the lender and borrower decide to change the terms of the 
          loan?

                  Subpart G_Default and Payment by BIA

103.35 What must the lender do if the borrower defaults on the loan?
103.36 What options and remedies does the lender have if the borrower 
          defaults on the loan?
103.37 What must the lender do to collect payment under its loan 
          guaranty certificate or loan insurance coverage?
103.38 Is there anything else for BIA or the lender to do after BIA 
          makes payment?
103.39 When will BIA refuse to pay all or part of a lender's claim?
103.40 Will BIA make exceptions to its criteria for denying payment?
103.41 What happens if a lender violates provisions of this part?
103.42 How long must a lender comply with Program requirements?
103.43 What must the lender do after repayment in full?

           Subpart H_Definitions and Miscellaneous Provisions

103.44 What certain terms mean in this part.
103.45 Information collection.

    Authority: 25 U.S.C. 1498, 1511.

    Source: 66 FR 3867, Jan. 17, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 103.1  What does this part do?

    This part explains how to obtain and use a BIA loan guaranty or loan 
insurance agreement under the Program, and who may do so. It also 
describes how to obtain and use interest subsidy payments under the 
Program, and who may do so.



Sec. 103.2  Who does the Program help?

    The purpose of the Program is to encourage eligible borrowers to 
develop viable Indian businesses through conventional lender financing. 
The direct function of the Program is to help lenders reduce excessive 
risks on loans they make. That function in turn helps borrowers secure 
conventional financing that might otherwise be unavailable.



Sec. 103.3  Who administers the Program?

    Authority for administering the Program ultimately rests with the 
Secretary, who may exercise that authority directly at any time. Absent 
a direct exercise of authority, however, the Secretary delegates Program 
authority to BIA officials through the U.S. Department of Interior 
Departmental Manual. A lender should submit all applications and 
correspondence to the BIA office serving the borrower's location.



Sec. 103.4  What kinds of loans will BIA guarantee or insure?

    In general, BIA may guarantee or insure any loan made by an eligible 
lender to an eligible borrower to conduct a lawful business organized 
for profit. There are several important exceptions:
    (a) The business must contribute to the economy of an Indian 
reservation or tribal service area recognized by BIA;
    (b) The borrower may not use the loan for relending purposes;
    (c) If any portion of the loan is used to refinance an existing 
loan, the borrower must be current on the existing loan; and
    (d) BIA may not guarantee or insure a loan if it believes the lender 
would be

[[Page 316]]

willing to extend the requested financing without a BIA guaranty or 
insurance coverage.



Sec. 103.5  What size loan will BIA guarantee or insure?

    BIA can guarantee or insure a loan or combination of loans of up to 
$500,000 for an individual Indian, or more for an acceptable Indian 
business entity, Tribe, or tribal enterprise involving two or more 
persons. No individual Indian may have an outstanding principal balance 
of more than $500,000 in guaranteed or insured loans at any time. BIA 
can limit the size of loans it will guarantee or insure, depending on 
the resources BIA has available.



Sec. 103.6  To what extent will BIA guarantee or insure a loan?

    (a) BIA can guarantee up to 90 percent of the unpaid principal and 
accrued interest due on a loan.
    (b) BIA can insure up to the lesser of:
    (1) 90 percent of the unpaid principal and accrued interest due on a 
loan; or
    (2) 15 percent of the aggregate outstanding principal amount of all 
loans the lender has insured under the Program as of the date the lender 
makes a claim under its insurance coverage.
    (c) BIA's guaranty certificate or loan insurance agreement should 
reflect the lowest guaranty or insurance percentage rate that satisfies 
the lender's risk management requirements.
    (d) Absent exceptional circumstances, BIA will allow no more than:
    (1) Two simultaneous guarantees under the Program covering 
outstanding loans from the same lender to the same borrower; or
    (2) One loan guaranty under the Program when the lender 
simultaneously has one or more outstanding loans insured under the 
Program to the same borrower.



Sec. 103.7  Must the borrower have equity in the business being financed?

    The borrower must be projected to have at least 20 percent equity in 
the business being financed, immediately after the loan is funded. If a 
substantial portion of the loan is for construction or renovation, the 
borrower's equity may be calculated based upon the reasonable estimated 
value of the borrower's assets after completion of the construction or 
renovation.



Sec. 103.8  Is there any cost for a BIA guaranty or insurance coverage?

    BIA charges the lender a premium for a guaranty or insurance 
coverage.
    (a) The premium is:
    (1) Two percent of the portion of the original loan principal amount 
that BIA guarantees; or
    (2) One percent of the portion of the original loan principal amount 
that BIA insures, without considering the 15 percent aggregate 
outstanding principal limitation on the lender's insured loans.
    (b) Lenders may pass the cost of the premium on to the borrower, 
either by charging a one-time fee or by adding the cost to the principal 
amount of the borrower's loan. Adding the premium to the principal 
amount of the loan will not make any further premium due. BIA will 
guarantee or insure the additional principal to the same extent as the 
original approved principal amount.



  Subpart B_How a Lender Obtains a Loan Guaranty or Insurance Coverage



Sec. 103.9  Who applies to BIA under the Program?

    The lender is responsible for determining whether it will require a 
BIA guaranty or insurance coverage, based upon the loan application it 
receives from an eligible borrower. If the lender requires a BIA 
guaranty or insurance coverage, the lender is responsible for completing 
and submitting a guaranty application or complying with a loan insurance 
agreement under the Program.



Sec. 103.10  What lenders are eligible under the Program?

    (a) Except as specified in paragraph (b) of this section, a lender 
is eligible under the Program, and may be considered for BIA approval, 
if the lender is:
    (1) Regularly engaged in the business of making loans;

[[Page 317]]

    (2) Capable of evaluating and servicing loans in accordance with 
reasonable and prudent industry standards; and
    (3) Otherwise reasonably acceptable to BIA.
    (b) The following lenders are not qualified to issue loans under the 
Program:
    (1) An agency or instrumentality of the Federal Government;
    (2) A lender that borrows money from any Federal Government source, 
other than the Federal Reserve Bank System, for purposes of relending;
    (3) A lender that does not include the interest on loans it makes in 
gross income, for purposes of chapter 1, title 26 of the United States 
Code; and
    (4) A lender that does not keep any ownership interest in loans it 
originates.



Sec. 103.11  How does BIA approve lenders for the Program?

    (a) BIA approves each lender by entering into a loan guaranty 
agreement and/or a loan insurance agreement with it. BIA may provide up 
to three different levels of approval for a lender making guaranteed 
loans, depending on factors such as:
    (1) The number of loans the lender makes under the Program;
    (2) The total principal balance of the lender's Program loans;
    (3) The number of years the lender has been involved with the 
Program;
    (4) The relative benefits and opportunities the lender has given to 
Indian business efforts through the Program; and
    (5) The lender's historical compliance with Program requirements.
    (b) BIA will consider a lender's loan guaranty agreement and/or loan 
insurance agreement suspended as of:
    (1) The effective date of a change in the lender's corporate 
structure;
    (2) The effective date of a merger between the lender and any other 
entity, when the lender is not the surviving entity; or
    (3) The start of any legal proceeding in which substantially all of 
the lender's assets may be subject to disposition through laws governing 
bankruptcy, insolvency, or receivership.
    (c) A change in a lender's name, without any other change specified 
under paragraph (b) of this section, will not cause a suspension of the 
lender's loan guaranty agreement and/or loan insurance agreement. The 
lender should notify BIA of its name change as soon as possible.
    (d) If a lender's loan guaranty agreement and/or loan insurance 
agreement is suspended under paragraph (b) of this section, the lender, 
or its successor in interest, must enter into a new loan guaranty 
agreement and/or loan insurance agreement with BIA in order to secure 
any new BIA loan guarantees or insurance coverage.
    (e) The suspension of a loan guaranty agreement and/or loan 
insurance agreement does not affect the validity of any guaranty 
certificate or insurance coverage in effect before the date of the 
suspension. Any such certificate or insurance coverage will remain 
governed by applicable terms of the suspended loan guaranty agreement 
and/or loan insurance agreement.



Sec. 103.12  How does a lender apply for a loan guaranty?

    To apply for a loan guaranty, a BIA-approved lender must submit to 
BIA a loan guaranty application request form, together with each of the 
following:
    (a) A written explanation from the lender indicating why it needs a 
BIA guaranty for the loan, and the minimum loan guarantee percentage it 
will accept;
    (b) A copy of the borrower's complete loan application;
    (c) A description of the borrower's equity in the business being 
financed;
    (d) A copy of the lender's independent credit analysis of the 
borrower's business, repayment ability, and loan collateral (including 
insurance);
    (e) An original report from a nationally-recognized credit bureau, 
dated within 90 days of the date of the lender's loan guaranty 
application package, outlining the credit history of the borrower, and 
to the extent permitted by law, each co-maker or guarantor of the loan 
(if any);
    (f) A copy of the lender's loan commitment letter to the borrower, 
showing at a minimum the proposed loan

[[Page 318]]

amount, purpose, interest rate, schedule of payments, and security 
(including insurance requirements), and the lender's terms and 
conditions for funding;
    (g) The lender's good faith estimate of any loan-related fees and 
costs it will charge the borrower, as authorized under this part;
    (h) If any significant portion of the loan will be used to finance 
construction, renovation, or demolition work, the lender's:
    (1) Insurance and bonding requirements for the work;
    (2) Proposed draw requirements; and
    (3) Proposed work inspection procedures;
    (i) If any significant portion of the loan will be used to refinance 
or otherwise retire existing indebtedness:
    (1) A clear description of all loans being paid off, including the 
names of all makers, cosigners and guarantors, maturity dates, payment 
schedules, uncured delinquencies, collateral, and payoff amounts as of a 
specific date; and
    (2) A comparison of the terms of the loan or loans being paid off 
and the terms of the new loan, identifying the advantages of the new 
loan over the loan being paid off.



Sec. 103.13  How does a lender apply for loan insurance coverage?

    BIA-approved lenders can make loans insured under the Program in two 
ways, depending on the size of the loan:
    (a) For loans in an original principal amount of up to $100,000 per 
borrower, the lender can make each loan in accordance with the lender's 
loan insurance agreement, without specific prior approval from BIA.
    (b) For loans in an original principal amount of over $100,000, the 
lender must seek BIA's specific prior approval in each case. The lender 
must submit a loan insurance coverage application request form, together 
with the same information required for a loan guaranty under Sec. 
103.12, except for the information required by Sec. 103.12(a).
    (c) The lender must submit a loan insurance application package even 
for a loan of less than $100,000 if:
    (1) The total outstanding balance of all insured loans the lender is 
extending to the borrower under the Program exceeds $100,000; or
    (2) the lender makes a request for interest subsidy, pursuant to 
Sec. 103.21.



Sec. 103.14  Can BIA request additional information?

    BIA may require the lender to provide additional information, 
whenever BIA believes it needs the information to properly evaluate a 
new lender, guaranty application, or insurance application. After BIA 
issues a loan guaranty or insurance coverage, the lender must let BIA 
inspect the lender's records at any reasonable time for information 
concerning the Program.



Sec. 103.15  Are there any prohibited loan terms?

    A loan agreement guaranteed or insured under the Program may not 
contain:
    (a) Charges by the lender styled as ``points,'' loan origination 
fees, or any similar fees (however named), except that if authorized in 
the loan agreement, the lender may charge the borrower a reasonable 
annual loan servicing fee that:
    (1) Is not included as part of the loan principal; and
    (2) Does not bear interest;
    (b) Charges of any kind by the lender or by any third party except 
for the reasonable and customary cost of legal and architectural 
services, broker commissions, surveys, compliance inspections, title 
inspection and/or insurance, lien searches, appraisals, recording costs, 
premiums for required hazard, liability, key man life, and other kinds 
of insurance, and such other charges as BIA may approve in writing;
    (c) A loan repayment term of over 30 years;
    (d) Payments scheduled less frequently than annually;
    (e) A prepayment penalty, unless the terms of the penalty are 
clearly specified in BIA's loan guaranty or loan insurance conditions;
    (f) An interest rate greater than what BIA considers reasonable, 
taking into account the range of rates prevailing in the private market 
for similar loans;
    (g) A variable interest rate, unless the rate is tied to a specific 
prime rate

[[Page 319]]

published from time to time by a nationally recognized financial 
institution or news source;
    (h) An increased rate of interest based on default;
    (i) A fee imposed for the late repayment of any installment due, 
except for a late fee that:
    (1) Is imposed only after the borrower is at least 30 days late with 
payment;
    (2) Does not bear interest; and
    (3) Equals no more than 5 percent of the late installment;
    (j) An ``insecurity'' clause, or any similar provision permitting 
the lender to declare a loan default solely on the basis of its 
subjective view of the borrower's changed repayment prospects;
    (k) A requirement that the borrower take title to any real or 
personal property purchased with loan proceeds by a title instrument 
containing restrictions on alienation, control or use of the property, 
unless otherwise required by applicable law; or
    (l) A requirement that a borrower which is a tribe provide as 
security a general assignment of the tribe's trust income. If otherwise 
lawful, a tribe may provide as loan security an assignment of trust 
income from a specific source.



Sec. 103.16  How does BIA approve or reject a loan guaranty or 
insurance application?

    (a) BIA reviews each guaranty or insurance application, and may 
evaluate each loan application independently from the lender. BIA bases 
its loan guaranty or insurance decisions on many factors, including 
compliance with this part, and whether there is a reasonable prospect of 
loan repayment from business cash flow, or if necessary, from 
liquidating loan collateral. Lenders are expected to obtain a first lien 
security interest in enough collateral to reasonably secure repayment of 
each loan guaranteed or insured under the Program, to the extent that 
collateral is available.
    (b) BIA approves applications by issuing an approval letter, 
followed by the procedures in Sec. 103.18. If the guaranty or insurance 
application is incomplete, BIA may return the application to the lender, 
or hold the application while the lender submits the missing 
information. If BIA denies the application, it will provide the lender 
with a written explanation, with a copy to the borrower.



Sec. 103.17  Must the lender follow any special procedures to close 
the loan?

    (a) BIA officials or their representatives may attend the closing of 
any loan or loan modification that BIA agrees to guarantee or insure. 
For guaranteed loans, and insured loans that BIA must individually 
review under this part, the lender must give BIA notice of the date of 
closing at least 5 business days before closing occurs.
    (b) At or prior to closing, the lender must obtain appropriate, 
satisfactory title and/or lien searches for each asset to be used as 
loan collateral.
    (c) At or prior to closing, the lender must obtain recent appraisals 
for all real property and improvements to be used as collateral for the 
loan, to the extent required by law.
    (d) At or prior to closing, the lender must document that the lender 
and borrower have complied with all applicable Federal, State, local, 
and tribal laws implicated by financing the borrower's business, for 
example by securing:
    (1) Copies of all permits and licenses required to operate the 
borrower's business;
    (2) Environmental studies required for construction and/or business 
operations under NEPA and other environmental laws;
    (3) Archeological or historical studies required by law; and
    (4) Certification by a registered surveyor or appropriate BIA 
official indicating that the proposed business will not be located in a 
special flood hazard area, as defined by applicable law.
    (e) The lender must supply BIA with copies of all final, signed loan 
closing documents within 30 days following closing. To the extent 
applicable, loan closing documents must include the following:
    (1) Promissory notes;
    (2) Security agreements, including pledge and similar agreements, 
and related financing statements (together

[[Page 320]]

with BIA's written approval of any assignment of specific tribal trust 
assets under Sec. 103.15(l), or of any security interest in an 
individual Indian money account);
    (3) Mortgage instruments or deeds of trust (together with BIA's 
written approval, if required by 25 U.S.C. 483a, or if the mortgage is 
of a leasehold interest in tribal trust property);
    (4) Guarantees (other than from BIA);
    (5) Construction contracts, and plans and specifications;
    (6) Leases related to the business (together with BIA's written 
approval, if required under 25 CFR part 162);
    (7) Attorney opinion letters;
    (8) Resolutions made by a Tribe or business entity;
    (9) Waivers or partial waivers of sovereign immunity; and
    (10) Similar instruments designed to document the loan, establish 
the basis for a security interest in loan collateral, and comply with 
applicable law.
    (f) Unless BIA indicates otherwise in writing, the lender must close 
a guaranteed or insured loan within 90 days of any approval provided 
under Sec. 103.16.



Sec. 103.18  How does BIA issue a loan guaranty or confirm loan 
insurance?

    (a) A loan is guaranteed under the Program when all of the following 
occur:
    (1) BIA issues a signed loan guaranty certificate bearing a series 
number, an authorized signature, a guaranty percentage rate, the 
lender's name, the borrower's name, the original principal amount of the 
loan, and such other terms and conditions as BIA may require;
    (2) The loan closes and funds;
    (3) The lender pays BIA the applicable loan guaranty premium; and
    (4) The lender meets all of the conditions listed in the loan 
guaranty certificate.
    (b) A loan is insured under the Program when all of the following 
occur:
    (1) The loan's purpose and terms meet the requirements of the 
Program and the lender's loan insurance agreement with BIA;
    (2) The loan closes and funds;
    (3) The lender notifies BIA of the borrower's identity and 
organizational structure, the amount of the loan, the interest rate, the 
payment schedule, and the date on which the loan closing and funding 
occurred;
    (4) The lender pays BIA the applicable loan insurance premium;
    (5) If over $100,000 or if the loan requires interest subsidy, BIA 
approves the loan in writing; and
    (6) If over $100,000 or if the loan requires interest subsidy, the 
lender meets all of the conditions listed in BIA's written loan 
approval.



Sec. 103.19  When must the lender pay BIA the loan guaranty or insurance 
premium?

    The premium is due within 30 calendar days of the loan closing. If 
not paid on time, BIA will send the lender written notice by certified 
mail (return receipt requested), or by a nationally-recognized overnight 
delivery service (signature of recipient required), stating that the 
premium is due immediately. If the lender fails to make the premium 
payment within 30 calendar days of the date of BIA's notice, BIA's 
guaranty certificate or insurance coverage with respect to that 
particular loan is void, without further action.



                       Subpart C_Interest Subsidy



Sec. 103.20  What is interest subsidy?

    Interest subsidy is a payment BIA makes for the benefit of the 
borrower, to reimburse part of the interest payments the borrower has 
made on a loan guaranteed or insured under the Program. It is available 
to borrowers whose projected or historical earnings before interest and 
taxes, after adjustment for extraordinary items, is less than the 
industry norm.



Sec. 103.21  Who applies for interest subsidy payments, and what is 
the application procedure?

    (a) An eligible lender must request interest subsidy payments on 
behalf of an eligible borrower, after determining that the borrower 
qualifies. Typically, the lender should include a request for interest 
subsidy at the time it applies for a guaranty or insurance coverage 
under the Program. A request for interest subsidy must be supported by 
the information required in Sec. Sec. 103.12 and

[[Page 321]]

103.13 (relating to loan guaranty and insurance coverage applications). 
BIA approves, returns, or rejects interest subsidy requests in the same 
manner indicated in Sec. 103.16, based on the factors in Sec. 103.20 
and BIA's available resources.
    (b) BIA's approval of interest subsidy for an insured loan may 
provide for specific limitations on the manner in which the lender and 
borrower can modify the loan.



Sec. 103.22  How does BIA determine the amount of interest subsidy?

    Interest subsidy payments should equal the difference between the 
lender's rate of interest and the rate determined in accordance with 25 
U.S.C. 1464. BIA will fix the amount of interest subsidy as of the date 
it approves the interest subsidy request.

[66 FR 3867, Jan. 17, 2001, as amended at 67 FR 63543, Oct. 15, 2002]



Sec. 103.23  How does BIA make interest subsidy payments?

    The lender must send BIA reports at least quarterly on the 
borrower's loan payment history, together with a calculation of the 
interest subsidy then due. The lender's reports and calculation do not 
have to be in any specific format, but in addition to the calculation 
the reports must contain at least the information required by Sec. 
103.33(a). Based on the lender's reports and calculation, BIA will send 
interest subsidy payments to the borrower in care of the lender. The 
payments belong to the borrower, but the borrower and lender may agree 
in advance on how the borrower will use interest subsidy payments. BIA 
may verify and correct interest subsidy calculations and payments at any 
time.



Sec. 103.24  How long will BIA make interest subsidy payments?

    (a) BIA will issue interest subsidy payments for the term of the 
loan, up to 3 years. If interest subsidy payments still are justified, 
the lender may apply for up to two 1-year extensions of this initial 
term. BIA will make interest subsidy payments on a single loan for no 
more than 5 years.
    (b) BIA will choose the date from which it calculates interest 
subsidy years, usually the date the lender first extends the loan funds. 
Interest subsidy payments will apply to all loan payments made in the 
calendar years following that date.
    (c) Interest subsidy payments will not be due for any loan payment 
made after the corresponding loan guaranty or insurance coverage stops 
under the Program, regardless of the circumstances.



               Subpart D_Provisions Relating to Borrowers



Sec. 103.25  What kind of borrower is eligible under the Program?

    (a) A borrower is eligible for a BIA-guaranteed or insured loan if 
the borrower is:
    (1) An Indian individual;
    (2) An Indian-owned business entity organized under Federal, State, 
or tribal law, with an organizational structure reasonably acceptable to 
BIA;
    (3) A tribe; or
    (4) A business enterprise established and recognized by a tribe.
    (b) To be eligible for a BIA-guaranteed or insured loan, a business 
entity or tribal enterprise must be at least 51 percent owned by 
Indians. If at any time a business entity or tribal enterprise becomes 
less than 51 percent Indian owned, the lender either may declare a 
default as of the date the borrower stopped being at least 51 percent 
Indian owned and exercise its remedies under this part, or else continue 
to extend the loan to the borrower and allow BIA's guaranty or insurance 
coverage to become invalid.

[66 FR 3867, Jan. 17, 2001; 66 FR 46307, Sept. 4, 2001]



Sec. 103.26  What must the borrower supply the lender in its loan 
application?

    The lender may use any form of loan application it chooses. However, 
the borrower must supply the lender the information listed in this 
section in order for BIA to process a guaranty or insurance coverage 
application:
    (a) The borrower's precise legal name, address, and tax 
identification number or social security number;
    (b) Proof of the borrower's eligibility under the Program;

[[Page 322]]

    (c) A statement signed by the borrower, indicating that it is not 
delinquent on any Federal tax or other debt obligation;
    (d) The borrower's business plan, including resumes of all 
principals and a detailed discussion of the product or service to be 
offered, market factors, the borrower's marketing strategy, and any 
technical assistance the borrower may require;
    (e) A detailed description of the borrower's equity in the business 
being financed, including the method(s) of valuation;
    (f) The borrower's balance sheets and operating statements for the 
preceding 3 years, or so much of that period that the borrower has been 
in business;
    (g) The borrower's current financial statement, and the financial 
statements of all co-makers and guarantors of the loan (other than BIA);
    (h) At least 3 years of financial projections for the borrower's 
business, consisting of pro-forma balance sheets, operating statements, 
and cash flow statements;
    (i) A detailed list of all proposed collateral for the loan, 
including asset values and the method(s) of valuation;
    (j) A detailed list of all proposed hazard, liability, key man life, 
and other kinds of insurance the borrower will maintain on its business 
assets and operations;
    (k) If any significant portion of the loan will be used to finance 
construction, renovation, or demolition work:
    (1) Written quotes for the work from established and reputable 
contractors; and
    (2) To the extent available, copies of all construction and 
architectural contracts for the work, plans and specifications, and 
applicable building permits;
    (l) If the borrower is a tribe or a tribal enterprise, resolutions 
by the tribe and proof of authority under tribal law permitting the 
borrower to borrow the loan amount and offer the proposed loan 
collateral; and
    (m) If the borrower is a business entity, resolutions by the 
appropriate governing officials and proof of authority under its 
organizing documents permitting the borrower to borrow the loan amount 
and offer the proposed loan collateral.



Sec. 103.27  Can the borrower get help preparing its loan application 
or putting its loan funds to use?

    A borrower may seek BIA's assistance when preparing a loan 
application or when planning business operations, including assistance 
identifying and complying with applicable laws as indicated by Sec. 
103.17(d). The borrower should contact the BIA field or agency office 
serving the area in which the borrower's business is to be located, or 
if there is no separate field or agency office serving the area, then 
the borrower should contact the BIA regional office serving the area.



                        Subpart E_Loan Transfers



Sec. 103.28  What if the lender transfers part of the loan to another 
person?

    (a) A lender may transfer one or more interests in a guaranteed loan 
to another person or persons, as long as the parties have in place an 
agreement that designates one person to perform all of the duties 
required of the lender under the Program and the loan guaranty 
certificate. Starting on the date of the transfer, only the person 
designated to perform the duties of the lender will be entitled to 
exercise the rights conferred by BIA's loan guaranty certificate, and 
will from that point forward be considered the lender for purposes of 
the Program. A lender under the Program must both service the guaranteed 
loan and own at least a 10 percent interest in the guaranteed loan. BIA 
will not consider more than one person at any given time to be the 
lender with respect to any loan guaranty certificate. If the person 
designated to perform the duties of the lender in an agreement among 
loan participants is not the original lender, then the provisions of 
Sec. 103.29(a) will apply (relating to sale or assignment of guaranteed 
loans), and the person designated to perform the duties of the lender 
must give BIA notice of its interest in the loan. Failure to provide 
notice in accordance with Sec. 103.29(a) will void BIA's loan guaranty 
certificate, without further action.

[[Page 323]]

    (b) Transferring any interest in an insured loan to another person 
will void the insurance coverage for that loan, except where the 
transfer is effected by a merger.



Sec. 103.29  What if the lender transfers the entire loan?

    (a) A lender may transfer all of its rights in a guaranteed loan to 
any other person. The acquiring person must send BIA written notice of 
the transfer, describing the borrower, the loan, BIA's loan guaranty 
certificate number, and the acquiring person's name and address. 
Starting on the date of the transfer, only the acquiring person will be 
entitled to exercise the rights conferred by BIA's loan guaranty 
certificate, and will from that point forward be considered the lender 
for purposes of the Program. The acquiring person must service the 
guaranteed loan and otherwise perform all of the duties required of the 
lender under the Program and the loan guaranty certificate. Except when 
a transfer is effected by a merger, any failure by the acquiring person 
to send BIA proper notice of the transfer within 30 calendar days of the 
transfer date will void BIA's loan guaranty certificate, without further 
action.
    (b) Transferring an insured loan to another person will void the 
insurance coverage for that loan, except where the transfer is effected 
by a merger.
    (c) If a lender is not the surviving entity after a merger, the 
lender's successor must notify BIA in writing of the change within 30 
calendar days of the merger. The lender also must re-apply to become an 
approved lender under the Program, as indicated in Sec. 103.11.



                  Subpart F_Loan Servicing Requirements



Sec. 103.30  What standard of care must a lender meet?

    Lenders must service all loans guaranteed or insured under the 
Program in a commercially reasonable manner, in accordance with 
standards and procedures adopted by prudent lenders in the BIA region in 
which the borrower's business is located, and in accordance with this 
part. If the lender fails to follow any of these standards, BIA may 
reduce or eliminate entirely the amount payable under its guaranty or 
insurance coverage to the extent BIA can reasonably attribute the loss 
to the lender's failure. BIA also may deny payment completely if the 
lender gets a loan guaranty or insurance coverage through fraud, or 
negligently allows a borrower's fraudulent loan application or use of 
loan funds to go undetected. In particular, and without limitation, 
lenders must:
    (a) Check and verify information contained in the borrower's loan 
application, such as the borrower's eligibility, the authority of 
persons acting on behalf of the borrower, and the title status of any 
proposed collateral;
    (b) Take reasonable precautions to assure that loan proceeds are 
used as specified in BIA's guaranty certificate or written insurance 
approval, or if not so specified, then in descending order of 
importance:
    (1) BIA's written loan guaranty approval;
    (2) The loan documents;
    (3) The terms of the lender's final loan commitment to the borrower; 
or
    (4) The borrower's loan application;
    (c) When feasible, require the borrower to use automatic bank 
account debiting to make loan payments;
    (d) Require the borrower to take title to real and personal property 
purchased with loan proceeds in the borrower's own name, except for real 
property to be held in trust by the United States for the benefit of a 
borrower that is a tribe;
    (e) Promptly record all security interests and subsequently keep 
them in effect. Lenders must record all mortgages and other security 
interests in accordance with State and local law, including the laws of 
any tribe that may have jurisdiction. Lenders also must record any 
leasehold mortgages or assignments of income involving individual Indian 
or tribal trust land with the BIA office having responsibility for 
maintaining records on that trust land;
    (f) Assure, to the extent reasonably practicable, that the borrower 
and any guarantor of the loan (other than BIA) keep current on all taxes 
levied on real

[[Page 324]]

and personal property used in the borrower's business or as collateral 
for the loan, and on all applicable payroll taxes;
    (g) Assure, to the extent reasonably practicable, that all required 
insurance policies remain in effect, including hazard, liability, key 
man life, and other kinds of insurance, in amounts reasonably necessary 
to protect the interests of the borrower, the borrower's business, and 
the lender;
    (h) Assure, to the extent reasonably practicable, that the borrower 
remains in compliance with all applicable Federal, State, local and 
tribal laws, including environmental laws and laws concerning the 
preservation of historical and archeological sites and data;
    (i) Assure, to the extent reasonably practicable, that the borrower 
causes any construction, renovation, or demolition work funded by the 
loan to proceed in accordance with approved construction contracts and 
plans and specifications, which must be sufficient in scope and detail 
to adequately govern the work;
    (j) Reserve for itself and BIA the right to inspect the borrower's 
business records and all loan collateral at any reasonable time;
    (k) Promptly notify the borrower in writing of any material breach 
by the borrower of the terms of its loan, with specific instructions on 
how to cure the breach and a deadline for doing so;
    (l) Participate in any probate, receivership, bankruptcy, or similar 
proceeding involving the borrower and any guarantor or co-maker of the 
borrower's debt, to the extent necessary to maintain the greatest 
possible rights to repayment; and
    (m) Otherwise seek to avoid and mitigate any potential loss arising 
from the loan, using at least that level of care the lender would use if 
it did not have a BIA loan guaranty or insurance coverage.



Sec. 103.31  What loan servicing requirements apply to BIA?

    Once a lender extends a loan that is guaranteed or insured under the 
Program, BIA has no responsibility for decisions concerning it, except 
for:
    (a) Any approvals required under this part;
    (b) Any decisions reserved to BIA under conditions of BIA's guaranty 
certificate or insurance coverage; and
    (c) Decisions concerning a loan that the lender has assigned to BIA 
or to which BIA is subrogated by virtue of paying a claim based on a 
guaranty certificate or insurance coverage.



Sec. 103.32  What sort of loan documentation does BIA expect the lender 
to maintain?

    For every loan guaranteed or insured under the Program, the lender 
must maintain:
    (a) BIA's original loan guaranty certificate or insurance coverage 
approval letter, if applicable;
    (b) Original signed and/or certified counterparts of all final loan 
documents, including those listed in Sec. 103.17 (concerning documents 
required for loan closing), all renewals, modifications, and additions 
to those documents, and signed settlement statements;
    (c) Originals or copies, as appropriate, of all documents gathered 
by the lender under Sec. Sec. 103.12, 103.13 and 103.26 (concerning 
information submitted by the borrower in its loan application, and 
information supplied to BIA in the lender's loan guaranty or insurance 
coverage application);
    (d) Originals or copies, as appropriate, of all applicable insurance 
binders or certificates, including without limitation hazard, liability, 
key man life, and title insurance;
    (e) A complete and current history of all loan transactions, 
including dated disbursements, payments, adjustments, and notes 
describing all contacts with the borrower;
    (f) Originals or copies, as appropriate, of all correspondence with 
the borrower, including default notices and evidence of receipt;
    (g) Originals or copies, as appropriate, of all correspondence, 
notices, news items or other information concerning the borrower, 
whether gathered by the lender or furnished to it, containing material 
information about the borrower and its business operations;
    (h) Originals or copies, as appropriate, of all advertisements, 
notices, title instruments, accountings, and

[[Page 325]]

other documentation of efforts to liquidate loan collateral; and
    (i) Originals or copies, as appropriate, of all notices, pleadings, 
motions, orders, and other documents associated with any legal 
proceeding involving the lender and the borrower or its assets, 
including without limitation judicial or non-judicial foreclosure 
proceedings, suits to collect payment, bankruptcy proceedings, probate 
proceedings, and any settlement associated with threatened or actual 
litigation.



Sec. 103.33  Are there reporting requirements?

    (a) The lender must periodically report the borrower's loan payment 
history so that BIA can recalculate the government's contingent 
liability. Loan payment history reports must be quarterly unless BIA 
provides otherwise for a particular loan. These reports can be in any 
format the lender desires, as long as they contain:
    (1) The lender's name;
    (2) The borrower's name;
    (3) A reference to BIA's Loan Guaranty Certificate or Loan Insurance 
Agreement number;
    (4) The lender's internal loan number; and
    (5) The date and amount of all loan balance activity for the 
reporting period.
    (b) If applicable, the lender must supply a calculation of any 
interest subsidy payments that are due, as indicated in Sec. 103.23.
    (c) If there is a transfer of any or all of the lender's ownership 
interest in the loan, the party receiving the ownership interest may be 
required to notify BIA, as indicated in Sec. Sec. 103.28 and 103.29.
    (d) If there is a default on the loan, the lender must notify BIA, 
as indicated in Sec. Sec. 103.35 and 103.36.
    (e) If the borrower ceases to qualify for a BIA-guaranteed or 
insured loan under Sec. 103.25(b), the lender must promptly notify BIA 
even if the lender does not pursue default remedies under Sec. Sec. 
103.35 and 103.36. This notice allows BIA to eliminate the guaranty or 
insurance coverage from its active recordkeeping system.
    (f) If the loan is prepaid in full, the lender must promptly notify 
BIA in writing so that BIA can eliminate the guaranty or insurance 
coverage from its active recordkeeping system.
    (g) If a lender changes its name, it should notify BIA in accordance 
with Sec. 103.11(c).



Sec. 103.34  What if the lender and borrower decide to change the terms 
of the loan?

    (a) The lender must obtain written BIA approval before modifying a 
loan guaranteed or insured under the Program, if the change will:
    (1) Increase the borrower's outstanding principal amount (if a term 
loan), or maximum available credit (if a revolving loan).
    (i) BIA will approve or disapprove a loan increase based upon the 
lender's explanation of the borrower's need for additional funding, and 
updated information of the sort required under Sec. Sec. 103.12, 
103.13, and 103.26, as applicable.
    (ii) Upon approval by BIA and payment of an additional guaranty or 
insurance premium in accordance with Sec. Sec. 103.8 and 103.19 and 
this section, the entire outstanding loan amount, as modified, will be 
guaranteed or insured (as the case may be) to the extent BIA specifies. 
The lender must pay the additional premium only on the increase in the 
outstanding principal amount of the loan (if a term loan) or the 
increase in the credit limit available to the borrower (if a revolving 
loan).
    (iii) Lenders may not increase the outstanding principal amount of a 
loan guaranteed or insured under the Program if a significant purpose of 
doing so would be to allow the borrower to pay accrued loan interest it 
otherwise would have difficulty paying.
    (2) Permanently adjust the loan repayment schedule.
    (3) Increase a fixed interest rate, convert a fixed interest rate to 
an adjustable interest rate, or convert an adjustable interest rate to a 
fixed interest rate.
    (4) Allow any changes in the identity or organizational structure of 
the borrower.
    (5) Allow any material change in the use of loan proceeds or the 
nature of the borrower's business.
    (6) Release any collateral taken as security for the loan, except 
items sold

[[Page 326]]

in the ordinary course of business and promptly replaced by similar 
items of collateral, such as inventory.
    (7) Allow the borrower to move any significant portion of its 
business operations to a location that is not on or near an Indian 
reservation or tribal service area recognized by BIA.
    (8) Be likely to materially increase the risk of a claim on BIA's 
guaranty or insurance coverage, or materially reduce the aggregate value 
of the collateral securing the loan.
    (9) Cure a default for which BIA is to receive notice under Sec. 
103.35(b).
    (b) In the case of an insured loan, the amount of which will not 
exceed $100,000 when combined with all other insured loans from the 
lender to the borrower, the lender need not obtain BIA's prior approval 
to make any of the loan modifications indicated in Sec. 103.34(a), 
except as provided in Sec. 103.21(b). However, all loan modifications 
must remain consistent with the lender's loan insurance agreement with 
BIA, and in the event of an increase in the borrower's outstanding 
principal amount (if a term loan), or maximum available credit (if a 
revolving loan), the lender must send BIA an additional premium payment 
in accordance with Sec. Sec. 103.8, 103.19 and this section. The lender 
must pay the additional premium only on the increase in the outstanding 
principal amount of the loan (if a term loan) or the increase in the 
credit limit available to the borrower (if a revolving loan). To the 
extent a loan modification changes any of the information supplied to 
BIA under Sec. 103.18(b)(3), the lender also must promptly notify BIA 
of the new information.
    (c) Subject to any applicable BIA loan guaranty or insurance 
coverage conditions, a lender may extend additional loans to a borrower 
without BIA approval, if the additional loans are not to be guaranteed 
or insured under the Program.



                  Subpart G_Default and Payment by BIA



Sec. 103.35  What must the lender do if the borrower defaults on the 
loan?

    (a) The lender must send written notice of the default to the 
borrower, and otherwise meet the standard of care established for the 
lender in this part. The lender's notice to the borrower should be sent 
as soon as possible after the default, but in any event before the 
lender's notice to BIA under paragraph (b) of this section. For purposes 
of the Program, ``default'' will mean a default as defined in this part.
    (b) The lender also must send written notice of the default to BIA 
by certified mail (return receipt requested), or by a nationally-
recognized overnight delivery service (signature of recipient required) 
within 60 calendar days of the default, unless the default is fully 
cured before that deadline. This notice is required even if the lender 
grants the borrower a forbearance under Sec. 103.36(a). One purpose of 
the notice is to give BIA the opportunity to intervene and seek 
assistance for the borrower, even though BIA has no duty, either to the 
lender or the borrower, to do so. Another purpose of the notice is to 
permit BIA to plan for a possible loss claim from the lender, under 
Sec. 103.36(d). The lender's notice must clearly indicate:
    (1) The identity of the borrower;
    (2) The applicable Program guaranty certificate or insurance 
agreement number;
    (3) The date and nature of all bases for default;
    (4) If a monetary default, the amount of past due principal and 
interest, the date through which interest has been calculated, and the 
amount of any late fees, precautionary advances, or other amounts the 
lender claims;
    (5) The nature and outcome of any correspondence or other contacts 
with the borrower concerning the default; and
    (6) The precise nature of any action the borrower could take to cure 
the default.



Sec. 103.36  What options and remedies does the lender have if the 
borrower defaults on the loan?

    (a) The lender may grant the borrower a temporary forbearance, even 
beyond any default cure periods specified in the loan documents, if 
doing so

[[Page 327]]

is likely to result in the borrower curing the default. However, BIA 
must approve in writing any forbearance or other agreement that:
    (1) Permanently modifies the terms of the loan in any manner 
indicated by Sec. 103.34(a);
    (2) Would allow the borrower's default to extend beyond the deadline 
established in Sec. 103.36(d) for the lender to elect a remedy; or
    (3) Is not likely to result in the borrower curing the default.
    (b) The lender may make precautionary advances on the borrower's 
behalf during the default, if doing so is reasonably necessary to ensure 
that loan recovery prospects do not significantly deteriorate. Items for 
which the lender may make precautionary advances include, for example:
    (1) Hazard, liability, or key man life insurance premiums;
    (2) Security measures to safeguard abandoned business assets;
    (3) Real or personal property taxes;
    (4) Corrective actions required by court or administrative orders; 
or
    (5) Essential maintenance.
    (c) BIA will guaranty or insure the amount of precautionary advances 
from the date of each advance to the same extent as other amounts due 
under the loan, if:
    (1) The borrower has demonstrated its inability or unwillingness to 
make the payment or perform the duty that jeopardizes loan recovery, 
including by undue delay in making the payment or performing the duty;
    (2) The total expense of all precautionary advances by the lender 
does not at the time of the advance exceed 10 percent of the outstanding 
principal balance of the loan;
    (3) Where loan document provisions do not require the borrower to 
repay precautionary advances (however termed) when made by the lender, 
or where the total expense of all precautionary advances by the lender 
will exceed 10 percent of the outstanding principal balance of the loan 
when made, the lender secures BIA's prior written approval; and
    (4) The lender properly claims and documents all precautionary 
advances, if and when it submits a claim for loss under Sec. 103.37.
    (d) If the default remains uncured, the lender must send BIA a 
written notice by certified mail (return receipt requested), or by a 
nationally-recognized overnight delivery service (signature of recipient 
required) within 90 calendar days of the default to select one of the 
following remedies:
    (1) In the case of a guaranteed loan, the lender may submit a claim 
to BIA for its loss;
    (2) In the case of either a guaranteed or insured loan, the lender 
may liquidate all collateral securing the loan, and upon completion, if 
it has a residual loss on the loan, it may submit a claim to BIA for 
that loss; or
    (3) The lender may negotiate a loan modification agreement with the 
borrower to permanently change the terms of the loan in a manner that 
will cure the default. If the lender chooses this remedy, it may take no 
longer than 45 calendar days from the date BIA receives the notice of 
remedy selection to finalize a loan modification agreement and secure 
BIA's written approval of it, unless BIA specifically extends this 
deadline in writing. However, the lender may at any time before the 
expiration of the 45-day period (or any extension thereof) change its 
choice of remedy by sending BIA a notice otherwise complying with Sec. 
103.36(d)(1) or (2). If the lender fails to send BIA a notice changing 
its choice of remedy and does not finalize an approved loan modification 
agreement within the 45-day period (or any extension thereof), the 
lender's only permissible remedy under the Program will be to pursue the 
procedure specified in Sec. 103.36(d)(2).
    (e) Failure by the lender to provide BIA with notice of the lender's 
election of remedy within 90 calendar days of the default, as indicated 
in Sec. 103.36(d), will invalidate BIA's loan guaranty certificate or 
insurance coverage for that particular loan, absent an express waiver of 
this provision by BIA. BIA may preserve the validity of a loan guaranty 
certificate or insurance coverage through waiver of this provision only 
when BIA determines, in its discretion, that:
    (1) The lender consistently has acted in good faith, and

[[Page 328]]

    (2) The lender's failure to provide timely notice either:
    (i) Has not caused any actual or potential prejudice to BIA; or
    (ii) Was the result of the lender relying upon specific written 
advice from a BIA official.



Sec. 103.37  What must the lender do to collect payment under its loan 
guaranty certificate or loan insurance coverage?

    (a) For guaranteed loans, the lender must submit a claim for its 
loss on a form approved by BIA.
    (1) If the lender makes an immediate claim under Sec. 103.36(d)(1), 
it must send BIA the claim for loss within 90 calendar days of the 
default by certified mail (return receipt requested), or by a 
nationally-recognized overnight delivery service (signature of recipient 
required). The lender's claim for loss may include interest that has 
accrued on the outstanding principal amount of the loan only through the 
date it submits the claim.
    (2) If the lender elects first to liquidate the collateral securing 
the loan under Sec. 103.36(d)(2), and has a residual loss after doing 
so, it must send BIA the claim for loss within 30 calendar days of 
completing all liquidation efforts. The lender must perform collateral 
liquidation as expeditiously and thoroughly as is reasonably possible, 
within the standards established by this part. The lender's claim for 
loss may include interest that has accrued on the outstanding principal 
amount of the loan only through the earlier of:
    (i) The date it submits the claim;
    (ii) The date the lender gets a judgment of foreclosure or sale (or 
the non-judicial equivalent) on the principal collateral securing the 
loan; or
    (iii) One hundred eighty calendar days after the date of the 
default.
    (b) For insured loans, after liquidating all loan collateral, the 
lender must submit a claim for its loss (if any) on a form approved by 
BIA. The lender must send BIA the claim for loss by certified mail 
(return receipt requested), or by a nationally-recognized overnight 
delivery service (signature of recipient required) within 30 calendar 
days of completing all liquidation efforts. The lender must perform 
collateral liquidation as expeditiously and thoroughly as is reasonably 
possible, within the standards established by this part. The lender's 
claim for loss may include interest that has accrued on the outstanding 
principal amount of the loan through the earlier of:
    (1) The date it submits the claim;
    (2) The date the lender gets a judgment of foreclosure or sale (or 
the non-judicial equivalent) on the principal collateral securing the 
loan; or
    (3) One hundred eighty calendar days after the date of the default.
    (c) Whenever the lender liquidates loan collateral under Sec. 
103.36(d)(2), it must vigorously pursue all reasonable methods of 
collection concerning the loan collateral before submitting a claim for 
its residual loss (if any) to BIA. Without limiting the generality of 
the preceding sentence, the lender must:
    (1) Foreclose, either judicially or non-judicially, all rights of 
redemption the borrower or any co-maker or guarantor of the loan (other 
than BIA) may have in collateral under any mortgage securing the loan;
    (2) Gather and dispose of all personal property pledged as 
collateral under the loan, in accordance with applicable law;
    (3) Exercise all set-off rights the lender may have under contract 
or applicable law;
    (4) Make demand for payment on the borrower, all co-makers, and all 
guarantors of the loan (other than BIA); and
    (5) Participate fully in all bankruptcy proceedings that may arise 
involving the borrower and any co-maker or guarantor of the loan. Full 
participation might include, for example, filing a proof of claim in the 
case, attending creditors' meetings, and seeking a court order releasing 
the automatic stay of collection efforts so that the lender can 
liquidate affected loan collateral.
    (d) BIA may require further information, including without 
limitation copies of any documents the lender is to maintain under Sec. 
103.32 and all documentation of liquidation efforts, to help BIA 
evaluate the lender's claim for loss.

[[Page 329]]

    (e) BIA will pay the lender the guaranteed or insured portion of the 
lender's claim for loss, to the extent the claim is based upon 
reasonably sufficient evidence of the loss and compliance with the 
requirements of this part. BIA will render a decision on a claim for 
loss within 90 days of receiving all information it requires to properly 
evaluate the loss.



Sec. 103.38  Is there anything else for BIA or the lender to do after 
BIA makes payment?

    When BIA pays the lender on its claim for loss, the lender must sign 
and deliver to BIA an assignment of rights to its loan agreement with 
the borrower, in a document acceptable to BIA. Immediately upon payment, 
BIA is subrogated to all rights of the lender under the loan agreement 
with the borrower, and must pursue collection efforts against the 
borrower and any co-maker and guarantor, as required by law.



Sec. 103.39  When will BIA refuse to pay all or part of a lender's claim?

    BIA may deny all or part of a lender's claim for loss when:
    (a) The loan is not guaranteed or insured as indicated in Sec. 
103.18;
    (b) The guarantee or insurance coverage has become invalid under 
Sec. Sec. 103.28, 103.29, or 103.36(e);
    (c) The lender has not met the standard of care indicated in Sec. 
103.30;
    (d) The lender presents a claim for a residual loss after attempting 
to liquidate loan collateral, and:
    (1) The lender has not made a reasonable effort to liquidate all 
security for the loan;
    (2) The lender has taken an unreasonable amount of time to complete 
its liquidation efforts, the probable consequence of which has been to 
reduce overall prospects of loss recovery; or
    (3) The lender's loss claim is inflated by unreasonable liquidation 
expenses or unjustifiable deductions from collateral liquidation 
proceeds applied to the loan balance; or
    (e) The lender has otherwise failed in any material respect to 
follow the requirements of this part, and BIA can reasonably attribute 
some or all of the lender's loss to that failure.



Sec. 103.40  Will BIA make exceptions to its criteria for denying 
payment?

    (a) BIA will not reduce or deny payment solely on the basis of 
Sec. Sec. 103.39(c) or (e) when the lender making the claim for loss:
    (1) Is a person to whom a previous lender transferred the loan under 
Sec. Sec. 103.28 or 103.29 before maturity for value;
    (2) Notified BIA of its acquisition of the loan interest as required 
by Sec. Sec. 103.28 or 103.29;
    (3) Had no involvement in or knowledge of the actions or 
circumstances that would have allowed BIA to reduce or deny payment to a 
previous lender; and
    (4) Has not itself violated the standards set forth in Sec. Sec. 
103.39(c) or (e).
    (b) If BIA makes payment to a lender under this section, it may seek 
reimbursement from the previous lender or lenders who contributed to the 
loss by violating Sec. Sec. 103.39(c) or (e).



Sec. 103.41  What happens if a lender violates provisions of this part?

    In addition to reducing or eliminating payment on a specific claim 
for loss, BIA may either temporarily suspend, or permanently bar, a 
lender from making or acquiring loans under the Program if the lender 
repeatedly fails to abide by the requirements of this part, or if the 
lender significantly violates the requirements of this part on any 
single occasion.



Sec. 103.42  How long must a lender comply with Program requirements?

    (a) A lender must comply in general with Program requirements 
during:
    (1) The effective period of its loan guaranty agreement or loan 
insurance agreement; and
    (2) Whatever additional period is necessary to resolve any 
outstanding loan guaranty or insurance claims or coverage the lender may 
have.
    (b) Except as otherwise required by law, a lender must maintain 
records with respect to a particular loan for 6 years after either:
    (1) The loan is repaid in full; or
    (2) The lender accepts payment from BIA for a loss on the loan, 
pursuant to a guaranty certificate or an insurance agreement.

[[Page 330]]

    (c) At any time 2 years or more following one of the events 
specified in paragraphs (b)(1) or (2) of this section, a lender may 
convert its records for corresponding loans to any electronic format 
that is readily retrievable and that provides an accurate, detailed 
image of the original records. Upon converting its records in this 
manner, the lender may dispose of its original loan records.
    (d) This section does not restrict any claims BIA may have against 
the lender or any other party arising from the lender's participation in 
the Program.



Sec. 103.43  What must the lender do after repayment in full?

    The lender must completely and promptly release of record all 
remaining collateral for a guaranteed or insured loan after the loan has 
been paid in full. The release must be at the lender's sole cost. In 
addition, if the loan is prepaid the lender must notify BIA in 
accordance with Sec. 103.33(f).



           Subpart H_Definitions and Miscellaneous Provisions



Sec. 103.44  What certain terms mean in this part.

    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior.
    Default means:
    (1) The borrower's failure to make a scheduled loan payment when it 
is due;
    (2) The borrower's failure to meet a material condition of the loan 
agreement;
    (3) The borrower's failure to comply with any other condition, 
covenant or obligation under the terms of the loan agreement within 
applicable grace or cure periods;
    (4) The borrower's failure to remain at least 51 percent Indian 
owned, as provided in Sec. 103.25(b);
    (5) The filing of a voluntary or involuntary petition in bankruptcy 
listing the borrower as debtor;
    (6) The imposition of a Federal, State, local, or tribal government 
lien on any assets of the borrower or assets otherwise used as 
collateral for the loan, except real property tax liens imposed by law 
to secure payments that are not yet due;
    (7) Any default defined in the loan agreement, to the extent the 
definition is not inconsistent with this part.
    Equity means the value, after deducting all debt, of the borrower's 
tangible assets in the business being financed, on which a lender can 
perfect a first lien security interest. It can include cash, securities, 
or other cash equivalent instruments, but cannot include the value of 
contractual options, the right to pay below market rental rates, or 
similar rights if those rights:
    (1) Are unassignable; or
    (2) Can expire before maturity of the loan.
    Indian means a person who is a member of a tribe as defined in this 
part.
    Loan agreement means the collective terms and conditions under which 
the lender extends a loan to a borrower, as reflected by the documents 
that evidence the loan.
    Mortgage means a consensual lien on real or personal property in 
favor of the lender, given by the borrower or a co-maker or guarantor of 
the loan (other than BIA), to secure loan repayment. The term 
``mortgage'' includes ``deed of trust.''
    NEPA means the National Environmental Policy Act of 1969, 42 U.S.C. 
4321 et seq.
    Person means any individual or distinct legal entity.
    Program means the BIA's Loan Guaranty, Insurance, and Interest 
Subsidy Program, established under 25 U.S.C. 1481 et seq., 25 U.S.C. 
1511 et seq., and this part 103.
    Reservation means any land that is an Indian reservation, California 
rancheria, public domain Indian allotment, pueblo, Indian colony, former 
Indian reservation in Oklahoma, or land held by an Alaska Native 
corporation under the provisions of the Alaska Native Claims Settlement 
Act (85 Stat. 688), as amended.
    Secretary means the Secretary of the United States Department of the 
Interior, or his authorized representative.
    Tribe means any Indian or Alaska Native tribe, band, nation, pueblo, 
rancheria, village, community or corporation that the Secretary 
acknowledges to exist as an Indian tribe, and that is eligible for 
services from BIA.

[[Page 331]]



Sec. 103.45  Information collection.

    (a) The information collection requirements of Sec. Sec. 103.11, 
103.12, 103.13, 103.14, 103.17, 103.21, 103.23, 103.26, 103.32, 103.33, 
103.34, 103.35, 103.36, 103.37, and 103.38 have been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq., and 
assigned approval number 1076-0020. The information will be used to 
approve and make payments on Federal loan guarantees, insurance 
agreements, and interest subsidy awards. Response is required to obtain 
a benefit.
    (b) The burden on the public to report this information is estimated 
to average from 15 minutes to 2 hours per response, including the time 
for reviewing instructions, gathering and maintaining data, and 
completing and reviewing the information collection. Direct comments 
regarding the burden estimate or any other aspect of this information 
collection to the Information Collection Control Officer, Bureau of 
Indian Affairs, MS 4613, 1849 C Street, NW., Washington, DC 20240.



PART 111_ANNUITY AND OTHER PER CAPITA PAYMENTS--Table of Contents




Sec.
111.1 Persons to share payments.
111.2 Enrolling non-full-blood children.
111.3 Payments by check.
111.4 Election of shareholders.
111.5 Future payments.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10549, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 111.1  Persons to share payments.

    In making all annuity and other per capita payments, the funds shall 
be equally divided among the Indians entitled thereto share and share 
alike. The roll for such payments should be prepared on Form 5-322, \1\ 
in strict alphabetical order by families of husband, wife, and unmarried 
dependent minor children. Unless otherwise instructed,
---------------------------------------------------------------------------

    \1\ Forms may be obtained from the Commissioner of Indian Affairs, 
Washington, D.C.
---------------------------------------------------------------------------

    (a) Indians of both sexes may be considered adults at the age of 18 
years;
    (b) Deceased enrollees may be carried on the rolls for one payment 
after death;
    (c) Where final rolls have been prepared constituting the legal 
membership of the tribe, only Indians whose names appear thereon are 
entitled to share in future payments, after-born children being excluded 
and the shares of deceased enrollees paid to the heirs if determined or 
if not determined credited to the estate pending determination; and
    (d) The shares of competent Indians will be paid to them directly 
and the shares of incompetents and minors deposited for expenditure 
under the individual Indian money regulations.

    Cross References: For regulations pertaining to the determination of 
heirs and approval of wills, see part 15 and subpart G of part 11 of 
this chapter. For individual Indian money regulations, see part 115 of 
this chapter.



Sec. 111.2  Enrolling non-full-blood children.

    Where an Indian woman was married to a white man prior to June 7, 
1897, and was at the time of her marriage a recognized member of the 
tribe even though she left it after marriage and lived away from the 
reservation, the children of such a marriage should be enrolled--and, 
also in the case of an Indian woman married to a white man subsequent to 
the above date but who still maintains her affiliation with the tribe 
and she and her children are recognized members thereof; however, where 
an Indian woman by marriage with a white man after June 7, 1897, has, in 
effect, withdrawn from the tribe and is no longer identified with it, 
her children should not be enrolled. In case of doubt all the facts 
should be submitted to the Bureau of Indian Affairs, Washington, D.C., 
for a decision.



Sec. 111.3  Payments by check.

    All payments should be made by check. In making payments to 
competent Indians, each check should be drawn to the order of the 
enrollee and given or sent directly to him. Powers of attorney and 
orders given by an Indian to another person for his share in

[[Page 332]]

a payment will not be recognized. Superintendents will note in the 
``Remarks'' column on the roll the date of birth of each new enrollee 
and the date of death of deceased annuitants.



Sec. 111.4  Election of shareholders.

    An Indian holding equal rights in two or more tribes can share in 
payments to only one of them and will be required to elect with which 
tribe he wishes to be enrolled and to relinquish in writing his claims 
to payments to the other. In the case of a minor the election will be 
made by the parent or guardian.



Sec. 111.5  Future payments.

    Indians who have received or applied for their pro rata shares of an 
interest-bearing tribal fund under the act of March 2, 1907 (34 Stat. 
1221; 25 U.S.C. 119, 121), as amended by the act of May 18, 1916 (39 
Stat. 128), will not be permitted to participate in future payments made 
from the accumulated interest.

                  PART 114_SPECIAL DEPOSITS [RESERVED]



PART 115_TRUST FUNDS FOR TRIBES AND INDIVIDUAL INDIANS--Table of Contents




         Subpart A_Purpose, Definitions, and Public Information

Sec.
115.001 What is the purpose of this part?
115.002 What definitions do I need to know?

                         Subpart B_IIM Accounts

115.100 Osage Agency.
115.101 Individual accounts.
115.102 Adults under legal disability.
115.103 Payments by other Federal agencies.
115.104 Restrictions.
115.105 Funds of deceased Indians of the Five Civilized Tribes.
115.106 Assets of members of the Agua Caliente Band of Mission Indians.
115.107 Appeals.

                     Subpart C_IIM Accounts: Minors

115.400 Will a minor's IIM account always be supervised?
115.401 What is a minor's supervised account?
115.402 Will a minor have access to information about his or her 
          account?
115.403 Who will receive information regarding a minor's supervised 
          account?
115.404 What information will be provided in a minor's statement of 
          performance?
115.405 How frequently will a minor's statement of performance be 
          mailed?
115.406 Who provides an address of record for a minor's supervised 
          account?
115.407 How is an address of record for a minor's supervised account 
          changed?
115.408 May a minor's supervised account have more than one address on 
          file with the BIA?
115.409 How is an address for a minor's residence changed?
115.410 What types of identification will the BIA or OTFM accept as 
          ``verifiable photo identification''?
115.411 What if the individual making a request regarding a minor's 
          supervised account does not have any verifiable photo 
          identification?
115.412 Will child support payments be accepted for deposit into a 
          minor's supervised account?
115.413 Who may receive funds from a minor's supervised account?
115.414 What is an authorized disbursement request?
115.415 How will an authorized disbursement from a minor's supervised 
          account be sent?
115.416 Will the United States post office forward mail regarding a 
          minor's supervised account to a forwarding address left with 
          the United States post office?
115.417 What portion of funds in a minor's supervised account may be 
          withdrawn under a distribution plan?
115.418 What types of trust funds may a minor have?
115.419 Who develops a minor's distribution plan?
115.420 When developing a minor's distribution plan, what information 
          must be considered and included in the evaluation?
115.421 What information will be included in the copy of the minor's 
          distribution plan that will be provided to OTFM?
115.422 As a custodial parent, the legal guardian, the person who BIA 
          has recognized as having control and custody of the minor, or 
          an emancipated minor, what are your responsibilities if you 
          receive trust funds from a minor's supervised account?
115.423 If you are a custodial parent, a legal guardian, or an 
          emancipated minor, may BIA authorize the disbursement of funds 
          from a minor's supervised account without your knowledge?
115.424 Who receives a copy of the BIA-approved distribution plan and 
          any amendments to the plan?
115.425 What will we do if we find that a distribution plan has not been 
          followed or

[[Page 333]]

          an individual has acted improperly in regard to his or her 
          duties involving a minor's trust funds?
115.426 What is the BIA's responsibility regarding the management of a 
          minor's supervised account?
115.427 What is the BIA's annual review process for a minor's supervised 
          account?
115.428 Will you automatically receive all of your trust funds when you 
          reach the age of 18?
115.429 What do you need to do when you reach 18 years of age to access 
          your trust funds?
115.430 Will your account lose its supervised status when you reach the 
          age of 18?
115.431 If you are an emancipated minor may you withdraw trust funds 
          from your account?

                 Subpart D_IIM Accounts: Estate Accounts

115.500 When is an estate account established?
115.501 How long will an estate account remain open?
115.502 Who inherits the money in an IIM account when an account holder 
          dies?
115.503 May money in an IIM account be withdrawn after the death of an 
          account holder but prior to the end of the probate 
          proceedings?
115.504 If you have a life estate interest in income-producing trust 
          assets, how will you receive the income?

 Subpart E_IIM Accounts: Hearing Process for Restricting an IIM Account

115.600 If BIA decides to restrict your IIM account under Sec. 115.102 
          or Sec. 115.104, what procedures must the BIA follow?
115.601 Under what circumstances may the BIA restrict your IIM account 
          through supervision or an encumbrance?
115.602 How will the BIA notify you or your guardian, as applicable, of 
          its decision to restrict your IIM account?
115.603 What happens if BIA's notice of its decision to place a 
          restriction on your IIM account that is sent by United States 
          certified mail is returned to the BIA as undeliverable for any 
          reason?
115.604 When will BIA authorize OTFM to place a restriction on your IIM 
          account?
115.605 What information will the BIA include in its notice of the 
          decision to restrict your IIM account?
115.606 What happens if you do not request a hearing to challenge BIA's 
          decision to restrict your IIM account during the allotted time 
          period?
115.607 How do you request a hearing to challenge the BIA's decision to 
          restrict your IIM account?
115.608 If you request a hearing to challenge BIA's decision to restrict 
          your IIM account, when will BIA conduct the hearing?
115.609 Will you be allowed to present testimony and/or evidence at the 
          hearing?
115.610 Will you be allowed to present witnesses during a hearing?
115.611 Will you be allowed to question opposing witnesses during a 
          hearing?
115.612 May you be represented by an attorney during your hearing?
115.613 Will the BIA record the hearing?
115.614 Why is the BIA hearing recorded?
115.615 How long after the hearing will BIA make its final decision?
115.616 What information will be included in BIA's final decision?
115.617 What happens when the BIA decides to supervise or encumber your 
          IIM account after your hearing?
115.618 What happens if at the conclusion of the notice and hearing 
          process we decide to encumber your IIM account because of an 
          administrative error which resulted in funds that you do not 
          own being deposited in your account or distributed to you or 
          to a third party on your behalf?
115.619 If the BIA decides that the restriction on your IIM account will 
          be continued after your hearing, do you have the right to 
          appeal that decision?
115.620 If you decide to appeal the BIA's final decision pursuant to 
          Sec. 115.107, will the BIA restrict your IIM account during 
          the appeal?

           Subpart F_Trust Fund Accounts: General Information

115.700 Why is money held in trust for tribes and individual Indians?
115.701 What types of accounts are maintained for Indian trust funds?
115.702 What specific sources of money will be accepted for deposit into 
          a trust account?
115.703 May we accept for deposit into a trust account money not 
          specified in Sec. 115.702?
115.704 May we accept for deposit into a trust account retirement 
          checks/payments or pension fund checks/payments even though 
          those funds are not specified in Sec. 115.702?
115.705 May we accept for deposit into a trust account money awarded or 
          assessed by a court of competent jurisdiction?
115.706 When funds are awarded or assessed by a court of competent 
          jurisdiction in a cause of action involving trust assets, what 
          documentation is required to deposit the trust funds into a 
          trust account?
115.707 Will the Secretary accept administrative fees for deposit into a 
          trust account?
115.708 How quickly will trust funds received by the Secretary on behalf 
          of

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          tribes or individual Indians be deposited into a trust 
          account?
115.709 Will an annual audit be conducted on trust funds?

                        Investments and Interests

115.710 Does money in a trust account earn interest?
115.711 How is money in a trust account invested?
115.712 What is the interest rate earned on money in a trust account?
115.713 When does money in a trust account start earning interest?

                        Subpart G_Tribal Accounts

115.800 When does OTFM open a tribal account?
115.801 How often will a tribe receive information about its trust 
          account(s)?
115.802 May a tribe make a request to OTFM to receive information about 
          its trust account more frequently?
115.803 What information will be provided in a statement of performance?
115.804 Will we account to a tribe for those trust funds the tribe 
          receives through direct pay?
115.805 If a tribe is paid directly under a contract for the sale or use 
          of trust assets, will we accept those trust funds for deposit 
          into a tribal trust account?
115.806 How will the BIA assist in the administration of tribal judgment 
          fund accounts?

                Investing and Managing Tribal Trust Funds

115.807 Will OTFM consult with tribes about investments of tribal trust 
          funds?
115.808 Could trust fund investments made by OTFM lose money?
115.809 May a tribe recommend to OTFM how to invest the tribe's trust 
          funds?
115.810 May a tribe directly invest and manage its trust funds?
115.811 Under what conditions may a tribe redeposit funds with OTFM that 
          were previously withdrawn under the Trust Reform Act?
115.812 Is a tribe responsible for its expenditures of trust funds that 
          are not made in compliance with statutory language or other 
          federal law?
115.813 Is there a limit to the amount of trust funds OTFM will disburse 
          from a tribal trust account?
115.814 If a tribe withdraws money from its trust account for a 
          particular purpose or project, may the tribe redeposit any 
          money that was not used for its intended purpose?

                     Withdrawing Tribal Trust Funds

115.815 How does a tribe request trust funds from a tribal trust 
          account?
115.816 May a tribe's request for a withdrawal of trust funds from its 
          trust account be delayed or denied?
115.817 How does OTFM disburse money to a tribe?

                       Unclaimed Per Capita Funds

115.818 What happens if an Indian adult does not cash his or her per 
          capita check?
115.819 What steps will be taken to locate an individual whose per 
          capita check is returned as undeliverable or not cashed within 
          twelve (12) months of issuance?
115.820 May OTFM transfer money in a returned per capita account to a 
          tribal account?

                   Subpart H_Special Deposit Accounts

115.900 Who receives the interest earned on trust funds in a special 
          deposit account?
115.901 When will the trust funds in a special deposit account be 
          credited or paid out to the owner of the funds?
115.902 May administrative or land conveyance fees paid as federal 
          reimbursements be deposited in a special deposit account?
115.903 May cash bonds (e.g., performance bonds, appeal bonds, etc.) be 
          deposited into a special deposit account?
115.904 Where earnest money is paid prior to Secretarial approval of a 
          conveyance or contract instrument involving trust assets, may 
          the BIA deposit that earnest money into a special deposit 
          account?

                            Subpart I_Records

115.1000 Who owns the records associated with this part?
115.1001 How must records associated with this part be preserved?

    Authority: R.S. 441, as amended, R.S. 463, R.S. 465; 5 U.S.C. 301; 
25 U.S.C. 2; 25 U.S.C. 9; 43 U.S.C. 1457; 25 U.S.C. 4001; 25 U.S.C. 
161(a); 25 U.S.C. 162a; 25 U.S.C. 164; Pub. L. 87-283; Pub. L. 97-100; 
Pub. L. 97-257; Pub. L. 103-412; Pub. L. 97-458; 44 U.S.C. 3101 et seq.

    Source: 66 FR 7094, Jan. 22, 2001, unless otherwise noted.



         Subpart A_Purpose, Definitions, and Public Information



Sec. 115.001  What is the purpose of this part?

    This part sets forth guidelines for the Secretary of the Interior, 
including any tribe or tribal organization if that entity is 
administering specific programs, functions, services or activities,

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previously administered by the Secretary of the Interior, but now 
authorized under a Self-Determination Act contract (pursuant to 25 
U.S.C. Sec. 450f) or a Self-Governance compact (pursuant to 25 U.S.C. 
Sec. 558cc), to carry out the trust duties owed to tribes and 
individual Indians to manage and administer trust assets for the 
exclusive benefit of tribal and individual Indian beneficiaries pursuant 
to federal law, including the American Indian Trust Fund Management 
Reform Act of 1994, Public Law 103-412, 108 Stat. 4239, 25 U.S.C. Sec. 
4001 (Trust Reform Act).



Sec. 115.002  What definitions do I need to know?

    As used in this part:
    Account holder means a tribe or a person who owns the funds in a 
tribal or Individual Indian Money (IIM) account that is maintained by 
the Secretary.
    Account means a record of trust funds that is maintained by the 
Secretary for the benefit of a tribe or a person.
    Administratively restricted account means an IIM account that is 
placed on temporary hold by OTFM where an account holder's current 
address of record is unknown or where more documentation is needed to 
make a distribution from an account.
    Adult means an individual who has reached 18 years of age, except 
when the individual's tribe has determined the age for adulthood to be 
older than 18 for access to tribal trust fund per capita proceeds.
    Adult in need of assistance means an individual who has been 
determined to be ``incapable of managing or administering his or her 
property, including his or her financial affairs'' either (a) through a 
BIA administrative process that is based on a finding by a licensed 
medical professional or licensed mental health professional, or (b) by 
an order or judgment of a court of competent jurisdiction.
    BIA means the Bureau of Indian Affairs, Department of the Interior, 
or its authorized representative.
    Bond means security for the performance of certain obligations or a 
guaranty of such performance as furnished by a third-party surety. As 
used in this part, bonds may include cash bonds, performance bonds, and 
surety bonds.
    Court of competent jurisdiction means a federal or tribal court with 
jurisdiction; however, if there is no tribal court with jurisdiction, 
then a state court with jurisdiction.
    Day means a calendar day unless otherwise specified.
    Department means the Department of the Interior or its authorized 
representative.
    Deposits mean receiving funds, ordinarily through a Federal Reserve 
Bank, for credit to a trust fund account.
    Emancipated minor means a person under 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself.
    Encumber or encumbrance means to attach trust assets held by the 
Secretary with a claim, lien, or charge that has been approved by the 
Secretary.
    Encumbered account means a trust fund account where some portion of 
the proceeds are obligated to another party.
    Estate account means an account for a deceased IIM account holder.
    FOIA means the Freedom of Information Act, 5 U.S.C. Sec. 552.
    Guardian means a person who is legally responsible for the care and 
management of an individual and his or her estate. This definition 
includes, but is not limited to, conservator or guardian of the 
property. However, this definition does not apply to property subject to 
Sec. 115.106 of this part.
    Individual Indian Money (IIM) accounts means an interest bearing 
account for trust funds held by the Secretary that belong to a person 
who has an interest in trust assets. These accounts are under the 
control and management of the Secretary. There are three types of IIM 
accounts: unrestricted, restricted, and estate accounts.
    Legal disability means the lack of legal capability to perform an 
act which includes the ability to manage or administer his or her 
financial affairs as determined by a court of competent jurisdiction or 
another federal agency where the federal agency has determined that the 
adult requires a representative payee and there is no

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legal guardian to receive federal benefits on his or her behalf.
    MSW means a Master of Social Work degree from an accredited college 
or university.
    Minor means an individual who is not an adult as defined in this 
part.
    Non-compos mentis means a person who has been determined by a court 
of competent jurisdiction to be of unsound mind or incapable of managing 
his or her own affairs.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior, or its authorized representative.
    OTFM means the Office of Trust Funds Management, within the Office 
of the Special Trustee for American Indians, Department of the Interior, 
or its authorized representative.
    Privacy Act means the Federal Privacy Act, 5 U.S.C. Sec. 552a.
    Restricted fee land(s) means land the title to which is held by an 
individual Indian or a tribe and which can only be alienated or 
encumbered by the owner with the approval of the Secretary because of 
limitations contained in the conveyance instrument pursuant to federal 
law.
    Secretary means the Secretary of the Interior or an authorized 
representative; it also means a tribe or tribal organization if that 
entity is administering specific programs, functions, services or 
activities, previously administered by the Secretary of the Interior, 
but now authorized under a Self-Determination Act contract (pursuant to 
25 U.S.C. Sec. 450f) or a Self-Governance compact (pursuant to 25 
U.S.C. Sec. 558cc).
    Special deposit account means a temporary account for the deposit of 
trust funds that cannot immediately be credited to the rightful account 
holders.
    Supervised account means a restricted IIM account, from which all 
disbursements must be approved by the BIA, that is maintained for 
minors, emancipated minors, adults who are in need of assistance, adults 
who under legal disability, or adults who are non-compos mentis.
    Tribal account or tribal trust account generally means a trust fund 
account for a federally recognized tribe that is maintained and held in 
trust by the Secretary.
    Tribe means any Indian tribe, nation, band, pueblo, rancheria, 
colony, or community, including any Alaska Native Village or regional or 
village corporation as defined or established under the Alaska Native 
Claims Settlement Act which is federally recognized by the United States 
government for special programs and services provided by the Secretary 
to Indians because of their status as Indians. Tribe also means two or 
more tribes joined for any purpose, the joint assets of which include 
funds held in trust by the Secretary.
    Trust account means a tribal account, an IIM account, or a special 
deposit account for trust funds maintained by the Secretary.
    Trust assets mean trust lands, natural resources, trust funds, or 
other assets held by the federal government in trust for Indian tribes 
and individual Indians.
    Trust funds means money derived from the sale or use of trust lands, 
restricted fee lands, or trust resources and any other money that the 
Secretary must accept into trust.
    Trust land(s) means any tract or interest therein, that the United 
States holds in trust status for the benefit of a tribe or an individual 
Indian.
    Trust Reform Act means the American Indian Trust Fund Management 
Reform Act of 1994, Pub. L. 103-412, 108 Stat. 4239, 25 U.S.C. Sec. 
4001.
    Trust resources means any element or matter directly derived from 
Indian trust property.
    Unrestricted account means an IIM account in which an Indian account 
holder may determine the timing and amount of disbursements from the 
account.
    Voluntary hold means a request by an individual Indian with an 
unrestricted IIM account to keep his or her trust funds in a trust 
account instead of having the trust funds automatically disbursed.
    We or Us or Our means the Secretary as defined in this part.
    You or Your means an IIM account holder.

[[Page 337]]



                         Subpart B_IIM Accounts



Sec. 115.100  Osage Agency.

    The provisions of this part do not apply to funds the deposit or 
expenditure of which is subject to the provisions of part 117 of this 
subchapter.



Sec. 115.101  Individual accounts.

    Except as otherwise provided in this part, adults shall have the 
right to withdraw funds from their accounts. Upon their application, or 
an application made in their behalf by the Secretary or his authorized 
representative, their funds shall be disbursed to them. All such 
disbursements will be made at such convenient times and places as the 
Secretary or his authorized representatives may designate.



Sec. 115.102  Adults under legal disability.

    The funds of an adult who is non compos mentis or under other legal 
disability may be disbursed for his benefit for such purposes deemed to 
be for his best interest and welfare, or the funds may be disbursed to a 
legal guardian or curator under such conditions as the Secretary or his 
authorized representative may prescribe.



Sec. 115.103  Payments by other Federal agencies.

    Moneys received from the Veterans Administration or other Government 
agency pursuant to the Act of February 25, 1933 (47 Stat. 907; 25 U.S.C. 
14), may be accepted and administered for the benefit of adult Indians 
under legal disability or minors for whom no legal guardian or fiduciary 
has been appointed.



Sec. 115.104  Restrictions.

    Funds of individuals may be applied by the Secretary or his 
authorized representative against delinquent claims of indebtedness to 
the United States or any of its agencies or to the tribe of which the 
individual is a member, unless such payments are prohibited by acts of 
Congress, and against money judgments rendered by courts of Indian 
offenses or under any tribal law and order code. Funds derived from the 
sale of capital assets which by agreement approved prior to such sale by 
the Secretary or his authorized representative are to be expended for 
specific purposes, and funds obligated under contractual arrangements 
approved in advance by the Secretary or his authorized representative or 
subject to deductions specifically authorized or directed by acts of 
Congress, shall be disbursed only in accordance with the agreements 
(including any subsequently approved modifications thereof) or acts of 
Congress. The funds of an adult whom the Secretary or his authorized 
representative finds to be in need of assistance in managing his 
affairs, even though such adult is not non compos mentis or under other 
legal disability, may be disbursed to the adult, within his best 
interest, under approved plans. Such finding and the basis for such 
finding shall be recorded and filed with the records of the account. For 
rules governing the payment of judgments from individual Indian money 
accounts, see Sec. 11.208 of this chapter.



Sec. 115.105  Funds of deceased Indians of the Five Civilized Tribes.

    Funds of a deceased Indian of the Five Civilized Tribes may be 
disbursed to pay ad valorem and personal property taxes, Federal and 
State estate and income taxes, obligations approved by the Secretary or 
his authorized representative prior to death of decedent, expenses of 
last sickness and burial and claims found to be just and reasonable 
which are not barred by the statute of limitations, costs of determining 
heirs to restricted property by the State courts, and claims allowed 
pursuant to part 16 of this chapter.



Sec. 115.106  Assets of members of the Agua Caliente Band of Mission 
Indians.

    (a) The provisions of this section apply to money or other property, 
except real property, held by the United States in trust for such 
Indians, which may be used, advanced, expended, exchanged, deposited, 
disposed of, invested, and reinvested by the Director, Palm Springs 
Office, in accordance with the Act of October 17, 1968 (Pub. L. 90-597). 
The management or disposition of real property is covered in other parts 
of this chapter.

[[Page 338]]

    (b) Investments made by the Director, Palm Springs Office, under the 
Act of October 17, 1968, supra, shall be of such a nature as will afford 
reasonable protection of the assets of the individual Indian involved. 
The Director is authorized to enter into contracts for the management of 
the assets (except real property) of individual Indians. The consent of 
the individual Indian concerned must be obtained prior to the taking of 
actions affecting his assets, unless the Director determines, under the 
provisions of section (e) of the Act, that consent is not required.
    (c) The Director may, consistent with normal business practices, 
establish appropriate fees for reports he requires from guardians, 
conservators, or other fiduciaries appointed under State law for members 
of the Band.



Sec. 115.107  Appeals.

    Appeals from an action taken by an official of the Bureau of Indian 
Affairs may be taken pursuant to 25 CFR part 2, subject to the terms of 
subpart E.



                     Subpart C_IIM Accounts: Minors



Sec. 115.400  Will a minor's IIM account always be supervised?

    Yes, all IIM accounts established by BIA for minors will be a 
supervised by the BIA.



Sec. 115.401  What is a minor's supervised account?

    A minor's supervised account is a restricted IIM account from which 
all disbursements must be made pursuant to a distribution plan approved 
by the BIA that is established for:
    (a) A minor, or
    (b) An emancipated minor.



Sec. 115.402  Will a minor have access to information about his or her 
account?

    A minor will not have access to information about his or her IIM 
account without approval of the custodial parent(s) or legal guardian. 
However, an emancipated minor will have access to information about his 
or her IIM account.



Sec. 115.403  Who will receive information regarding a minor's supervised 
account?

    (a) The parent(s) with legal custody of the minor or the minor's 
legal guardian will receive a minor's statement of performance at the 
address of record for the minor's supervised account.
    (b) An emancipated minor will receive his or her statement of 
performance at the address of record for the minor's supervised account.



Sec. 115.404  What information will be provided in a minor's statement 
of performance?

    A minor's statement of performance will identify the source, type, 
and status of the funds deposited and held in the account; the beginning 
balance; the gains and losses; receipts and disbursements, if any; and 
the ending balance of the quarterly statement period for the minor's 
supervised account.



Sec. 115.405  How frequently will a minor's statement of performance 
be mailed?

    We will mail a minor's statement of performance to the address of 
record quarterly, within and no later than 20 business days after the 
close of the quarterly statement period.



Sec. 115.406  Who provides an address of record for a minor's supervised 
account?

    (a) The custodial parent or the legal guardian must provide an 
address to the BIA and this address will be the address of record for 
the minor's supervised account. Where applicable, a parent or legal 
guardian must provide a copy of the custodial order or guardianship 
order from a court of competent jurisdiction when providing the address 
of record for the minor's supervised IIM account.
    (b) The emancipated minor must provide his or her address of record 
to the BIA.
    (c) Upon receipt of the change of address of record from the parent 
or legal guardian, the BIA must provide the change of the address of 
record to the OTFM.

[[Page 339]]



Sec. 115.407  How is an address of record for a minor's supervised 
account changed?

    (a) To change an address of record for a minor's supervised IIM 
account, a custodial parent(s), legal guardian, or emancipated minor 
must provide BIA with the following information:
    (1) The minor's or emancipated minor's name;
    (2) The name of the custodial parent(s) or legal guardian, if 
applicable;
    (3) A custody order from a court of competent jurisdiction or a copy 
of a guardianship, if applicable;
    (4) The new address of the custodial parent(s), legal guardian, or 
emancipated minor; and
    (5) The signature, mark or thumb print of a custodial parent, legal 
guardian, or emancipated minor that has been notarized by a notary 
public and/or witnessed by a DOI employee who has been shown verifiable 
photo identification. See Sec. 115.410
    (b) When requesting a change of an address of record, the following 
information will further assist us to identify the minor's account:
    (1) The minor's or emancipated minor's IIM account number;
    (2) The minor's or emancipated minor's date of birth;
    (3) The minor's or emancipated minor's tribal enrollment number; and
    (4) The minor's or emancipated minor's social security number.



Sec. 115.408  May a minor's supervised account have more than one 
address on file with the BIA?

    Yes, a minor's supervised account may have more than one address on 
file with the BIA. We request that the parent, legal guardian, or the 
person who has been recognized by the BIA as having control and custody 
of the minor, notify us of the following addresses for the minor:
    (a) The minor's residence;
    (b) The address of record where the statement of performance will be 
mailed;
    (c) The address where disbursement checks will be mailed or 
financial institution information for direct deposits of trust funds as 
authorized under an approved distribution plan.



Sec. 115.409  How is an address for a minor's residence changed?

    (a) To change an address for a minor's residence, the custodial 
parent, legal guardian, or the person who has been recognized by the BIA 
as having control and custody of the minor must provide BIA with the 
following information:
    (1) The minor's name;
    (2) The name of the custodial parent(s) or legal guardian;
    (3) A copy of a custodial order from a court of competent 
jurisdiction or a guardianship order, where applicable;
    (4) The new address of the minor's residence; and
    (5) The signature, mark or thumb print of the individual who is 
providing the updated address for the minor's residence that has been 
notarized by a notary public and/or witnessed by a DOI employee who has 
been shown verifiable photo identification. See Sec. 115.410
    (b) When requesting a change of an address for a minor's residence, 
the following information will further assist us to identify the minor's 
account:
    (1) The minor's IIM account number;
    (2) The minor's date of birth;
    (3) The minor's tribal enrollment number (if known); and
    (4) The minor's social security number (where known).



Sec. 115.410  What types of identification will the BIA or OTFM accept 
as ``verifiable photo identification''?

    BIA or OTFM will accept the following forms of identification as 
``verifiable photo identification'':
    (a) A valid driver's license;
    (b) A government-issued photo identification card, such as a 
passport, security badge, etc.; or
    (c) A tribal photo identification card.



Sec. 115.411  What if the individual making a request regarding a 
minor's supervised account does not have any verifiable photo 
identification?

    If the individual making a request regarding a minor's supervised 
account does not have any verifiable photo identification, the 
individual may make a request in person at the BIA and we will talk with 
the individual and review information in the minor's

[[Page 340]]

file to see if we can attest to the individual's identity. If we cannot 
establish the identity of the individual, we will not accept the 
request.



Sec. 115.412  Will child support payments be accepted for deposit into 
a minor's supervised account?

    The Secretary will not accept child support payments for deposit 
into a minor's supervised account.



Sec. 115.413  Who may receive funds from a minor's supervised account?

    A custodial parent, a legal guardian, a person who has been 
recognized by the BIA as having control and custody of the minor, or an 
emancipated minor may be eligible to withdraw funds from a minor's 
supervised account if there is an authorized disbursement request that 
is based upon the terms of a BIA-approved distribution plan.



Sec. 115.414  What is an authorized disbursement request?

    An authorized disbursement request is the form or letter that must 
be approved by the BIA that specifies the funds to be disbursed from an 
IIM account. The authorized disbursement request may not be issued to 
disburse funds from a minor's supervised account unless an approved 
distribution plan exists, the amount to be disbursed is in conformity 
with the distribution plan and the disbursement will be made to an 
individual or third party specified in the plan.



Sec. 115.415  How will an authorized disbursement from a minor's 
supervised account be sent?

    OTFM will make an authorized disbursement based on the approved 
distribution plan from a minor's supervised account by:
    (a) Making a direct deposit to a specified account at a financial 
institution (a direct deposit into the specified account will eliminate 
lost, stolen or damaged checks and will also eliminate delays associated 
with mailing the check);
    (b) Mailing a check to the address of record or to a specified 
disbursement address; or
    (c) Mailing a check to a specified third party's address.



Sec. 115.416  Will the United States post office forward mail regarding 
a minor's supervised account to a forwarding address left with the United 
States post office?

    (a) Federal law does not allow the United States post office to 
forward checks that are issued by the federal government. Therefore, a 
check from a minor's supervised account will not be forwarded to an 
address left with the United States post office. The new address of 
record must be provided directly to BIA.
    (b) Where a forwarding address has been provided to the United 
States post office, the United States post office will forward a 
statement of performance and general correspondence regarding a minor's 
supervised account that is mailed to the minor's address of record for a 
limited time period. However, it is the responsibility of a custodial 
parent, legal guardian, or emancipated minor to give BIA the new address 
of record for the minor's supervised account.



Sec. 115.417  What portion of funds in a minor's supervised account may 
be withdrawn under a distribution plan?

    Trust money in a minor's supervised account will not be distributed 
without a review of other resources that may be available to meet the 
needs of the minor. Any trust funds of a minor that are distributed must 
be used for the direct benefit of the minor and in accordance with any 
additional limitations (e.g., statutory, court order, tribal resolution, 
etc.) placed on the use of specific trust funds. Allowable uses may 
include health, education, or welfare when based upon a justified unmet 
need. The BIA will require receipts for expenditures of funds disbursed 
from a minor's account to a custodial parent, legal guardian, person who 
has been recognized by the BIA as having control and custody of the 
minor, or an emancipated minor.



Sec. 115.418  What types of trust funds may a minor have?

    A minor may have one or more of the following types of trust funds:
    (a) Judgment per capita funds: Withdrawals may only be made upon BIA

[[Page 341]]

approval of an application made under Public Law 97-458. See 25 CFR 1.2.
    (b) Tribal per capita funds: Withdrawals may only be made under a 
BIA approved distribution plan and in accordance with the terms of the 
tribe's per capita resolution/document.
    (c) Other trust funds: Withdrawals may only be made under a minor's 
BIA-approved distribution plan that is based on a justified unmet need 
for the minor's health, education, or welfare.
    (d) Funds from other federal agencies (e.g., SSA, SSI, VA) received 
for the benefit of the minor: Withdrawals must be made only under a BIA-
approved distribution plan that must be consistent with the disbursing 
agency's (e.g., SSA, SSI, VA) allowable uses for the funds.



Sec. 115.419  Who develops a minor's distribution plan?

    A social service provider will develop a minor's distribution plan 
for approval by the BIA after evaluating the needs of the minor in 
consultation with a custodial parent, a legal guardian, the person who 
has been recognized by the BIA as having control and custody of the 
minor, or emancipated minor. A minor's distribution plan may only 
provide for those expenditures outlined in part Sec. 115.417.



Sec. 115.420  When developing a minor's distribution plan, what 
information must be considered and included in the evaluation?

    When developing a minor's distribution plan, the following 
information must be considered and included in the evaluation:
    (a) Documentation which establishes who has physical custody of the 
minor (e.g., home visits, school records, medical records, etc.);
    (b) A copy of any custodial orders or guardianship orders from a 
court of competent jurisdiction;
    (c) The name(s) of the person and his or her relationship to the 
minor, if any, who make a request for a disbursement from the minor's 
account;
    (d) An evaluation of other resources, including parental income, 
that may be available to meet the unmet needs of the minor;
    (e) A list of the amounts, purposes, and dates for which 
disbursements will be made;
    (f) The name(s) of the person to whom disbursements may be made, 
including, as applicable:
    (1) A custodial parent;
    (2) A legal guardian;
    (3) The person who has been recognized by the BIA as having control 
and custody of the minor;
    (4) An emancipated minor; and/or
    (5) Any third parties to whom the BIA will make direct payment for 
goods or services provided to the minor and supported by an invoice or 
bill of sale;
    (g) The date(s) (at least every six months) when the custodial 
parent, the legal guardian, the person who has been recognized by the 
BIA as having control and custody of the minor, or the emancipated minor 
must provide receipts to the BIA to show that expenditures were made in 
accordance with the approved distribution plan;
    (h) Additional requirements and justification for those 
requirements, as necessary to ensure that any distribution(s) will 
benefit the minor;
    (i) The dates the disbursement plan was developed, approved, and 
reviewed, and the date for the next scheduled review;
    (j) The date(s) the distribution plan was amended and an explanation 
for any amendment(s) to the distribution plan, when an amendment is 
necessary;
    (k) The signature of the BIA official approving the plan with the 
certification that the plan is in the best interest of the account 
holder; and
    (l) The signature(s) of the custodial parent, legal guardian, with 
date(s) signed, certifying that he or she has been consulted and has 
agreed to the terms of the evaluation and the distribution plan.



Sec. 115.421  What information will be included in the copy of the 
minor's distribution plan that will be provided to OTFM?

    A minor's distribution plan must contain the following:
    (a) A copy of any custodial order or guardianship order from a court 
of competent jurisdiction;

[[Page 342]]

    (b) A list of the amounts, purposes, and dates for which 
disbursements will be made;
    (c) The name(s) of the person(s) to whom disbursements may be made, 
including, as applicable:
    (1) A custodial parent;
    (2) A legal guardian;
    (3) The person who has been recognized by the BIA as having control 
and custody of the minor and the address of that person;
    (4) An emancipated minor; and/or
    (5) Any third parties and the address(es) of the third parties to 
whom the direct payment will be made for goods or services provided to 
the minor and supported by an invoice or bill of sale, where applicable;
    (d) The date that the disbursement plan was approved and the 
expiration date of the distribution plan; and
    (e) The date and signature of the BIA official approving the plan 
with a certification that the plan is in the best interest of the 
account holder.



Sec. 115.422  As a custodial parent, the legal guardian, the person who BIA has 
recognized as having control and custody of the minor, or an emancipated minor, what 
are your responsibilities if you receive trust funds from a minor's supervised account?

    If you are a custodial parent, the legal guardian, the person who 
BIA has recognized as having control and custody of the minor, or an 
emancipated minor who receives funds from a minor's supervised account, 
you must:
    (a) Consult with the social service provider on the development of 
an evaluation;
    (b) Sign an acknowledgment that you have reviewed the evaluation;
    (c) Follow the terms of a distribution plan approved by the BIA;
    (d) Follow any applicable court order;
    (e) Provide receipts to the social services provider in accordance 
with terms of the evaluation for all expenses paid out of the minor's 
IIM funds;
    (f) Review the statements of performance for the supervised account 
for discrepancies, if applicable;
    (g) File tax returns on behalf of the account holder, if applicable; 
and
    (h) Notify the social service provider of any change in 
circumstances that impairs your performance of your obligations under 
this part or inform the social service provider of any information 
regarding misuse of a minor's trust funds.



Sec. 115.423  If you are a custodial parent, a legal guardian, or an 
emancipated minor, may BIA authorize the disbursement of funds from a 
minor's supervised account without your knowledge?

    At the Secretary's discretion, the BIA may authorize the 
disbursement of funds from a minor's supervised account for the benefit 
of the minor.



Sec. 115.424  Who receives a copy of the BIA-approved distribution plan 
and any amendments to the plan?

    The BIA-approved distribution plan will be provided to:
    (a) The custodial parent; or
    (b) A legal guardian; or
    (c) At the Secretary's discretion, in unusual circumstances, to a 
family member who has been recognized as having control and custody of 
the minor; or
    (d) An emancipated minor; and
    (e) OTFM.



Sec. 115.425  What will we do if we find that a distribution plan has not 
been followed or an individual has acted improperly in regard to his or 
her duties involving a minor's trust funds?

    If we find that a distribution plan has not been followed or that a 
custodial parent, a legal guardian, or the person who has been 
recognized by the BIA as having control and custody of the minor has 
failed to satisfactorily account for expenses or has not used the 
minor's funds for the primary benefit of the minor, we will:
    (a) Notify the individual; and
    (b) Take action to protect the interests of the minor, which may 
include:
    (1) Referring the matter for civil or criminal legal action;
    (2) Demanding repayment from the individual who has improperly 
expended trust funds or failed to account for the use of trust funds;
    (3) Liquidating a bond posted by the legal guardian, where 
applicable, to recover improperly expended trust funds up to the amount 
of the bond; or

[[Page 343]]

    (4) Immediately modifying the distribution plan for up to sixty 
days, including suspending the authority of the individual to receive 
further disbursements.



Sec. 115.426  What is the BIA's responsibility regarding the management 
of a minor's supervised account?

    The BIA's responsibility in regard to the management of a minor's 
supervised account is to:
    (a) Review and approve the evaluation and the distribution plan;
    (b) Authorize OTFM to disburse IIM funds in accordance with an 
approved distribution plan; and
    (c) Conduct annual reviews of case records for minors' supervised 
accounts to ensure that the social service providers have managed the 
accounts in accordance with the approved evaluation and distribution 
plan.



Sec. 115.427  What is the BIA's annual review process for a minor's 
supervised account?

    A BIA social worker with an MSW will conduct an annual review of 
minors' supervised accounts by:
    (a) Verifying that all receipts for disbursements made under a 
distribution plan were collected in accordance with the terms specified 
in the evaluation;
    (b) Reviewing the receipts for disbursements made from a minor's 
supervised account to ensure that all expenditures were made in 
accordance with the distribution plan;
    (c) Reviewing all case worker reports and notes;
    (d) Reviewing account records to insure that withdrawals and 
payments were made in accordance with the distribution plan;
    (e) Verifying current addresses, including the address of record, 
the address of the minor's residence, and the disbursement address; and
    (f) Deciding whether the distribution plan needs to be modified.



Sec. 115.428  Will you automatically receive all of your trust funds 
when you reach the age of 18?

    No, we will not automatically send your trust funds to you when you 
reach the age of 18.



Sec. 115.429  What do you need to do when you reach 18 years of age to 
access your trust funds?

    You must contact OTFM to request withdrawal of any or all of your 
trust funds that may be available to you. OTFM may require certain 
information from you to verify your identity, etc. prior to the release 
of your trust funds. All signatures must be notarized by a notary public 
or witnessed by a DOI employee. In addition, if you choose to have a 
check mailed to you, you must provide us with your address of record. If 
you choose to have your trust funds electronically transferred to you, 
you must provide your financial institution account information to OTFM.



Sec. 115.430  Will your account lose its supervised status when you 
reach the age of 18?

    Your account will no longer be supervised when you reach the age of 
18 unless statutory language or a tribal resolution specifies an age 
other than 18 years of age for access to specific trust funds. However, 
if a court of competent jurisdiction has found you to be non-compos 
mentis, under legal disability, or the BIA has determined you to be an 
adult in need of assistance, your account will remain supervised and you 
will be notified in accordance with subpart E.



Sec. 115.431  If you are an emancipated minor may you withdraw trust 
funds from your account?

    If you are an emancipated minor, you may have access to some or all 
of your trust funds as follows:
    (a) For judgment per capita funds: you may not make withdrawals from 
your account until you have reached the age specified in the judgment. 
Exceptions are only granted upon the approval of an application made 
under Public Law 97-458. See 25 CFR 1.2.
    (b) Tribal per capita funds: access to these funds will be 
determined by tribal resolution.
    (c) Other trust funds: You may be able to have supervised access to 
some or all of your funds, but the BIA must approve all requests for 
withdrawals from your account. You must work with the BIA to develop a 
distribution

[[Page 344]]

plan to access the funds in your account. In no instance will the BIA 
allow an emancipated minor to make unsupervised withdrawals.
    (d) For funds from other federal agencies (e.g., SSA, SSI, VA), you 
may be able to receive funds directly, but you must contact and make 
arrangements with the other federal agency. Direct receipt of funds from 
another federal agency will not change the supervised status of an 
emancipated minor's trust account.



                 Subpart D_IIM Accounts: Estate Accounts



Sec. 115.500  When is an estate account established?

    An estate account is established when we receive notice of an 
account holder's death.



Sec. 115.501  How long will an estate account remain open?

    An estate account will remain open until the funds have been 
distributed in accordance with the distribution and/or probate order.



Sec. 115.502  Who inherits the money in an IIM account when an account 
holder dies?

    At the end of all probate procedures, funds remaining in a 
decedent's estate account will be distributed from the decedent's estate 
account and paid directly to or deposited into an IIM account of the 
decedent's heirs, beneficiaries, or other persons or entities entitled 
by law to receive the funds, where applicable. See 25 CFR part 15.



Sec. 115.503  May money in an IIM account be withdrawn after the death 
of an account holder but prior to the end of the probate proceedings?

    (a) If you are responsible for making the funeral arrangements of a 
decedent who had an IIM account and you have an immediate need for 
emergency assistance to pay for funeral arrangements prior to burial, 
you may make a request to the BIA for up to $1,000 from the decedent's 
IIM account if the decedent's IIM account has more than $2,500 in the 
account at the date of death.
    (b) You must apply for this assistance and submit to the BIA an 
original itemized estimate of the cost of the service to be rendered and 
the identification of the service provider.
    (c) We may approve reasonable costs up to $1,000 that are necessary 
for the burial services.
    (d) We will make payments directly to the providers of the 
service(s).



Sec. 115.504  If you have a life estate interest in income-producing 
trust assets, how will you receive the income?

    If you have a life estate interest in income-producing trust assets, 
which is earning income, OTFM will open an IIM-life estate account for 
you and funds will be distributed after BIA has certified ownership of 
the trust funds.



 Subpart E_IIM Accounts: Hearing Process for Restricting an IIM Account



Sec. 115.600  If BIA decides to restrict your IIM account under 
Sec. 115.102 or Sec. 115.104, what procedures must the BIA follow?

    If under Sec. 115.102 or Sec. 115.104, the BIA has decided to 
limit your access to your IIM account (i.e., decided to supervise the 
IIM account), or if the BIA has decided to pay creditors with funds from 
your IIM account, including creditors with judgments from Courts of 
Indian Offenses for which preliminary procedures are prescribed in 25 
CFR 11.208, the BIA must notify you or your guardian, as applicable, to 
provide you or your guardian, as applicable, with an opportunity to 
challenge the BIA's decision to restrict your IIM account as specified 
in subpart E.



Sec. 115.601  Under what circumstances may the BIA restrict your IIM 
account through supervision or an encumbrance?

    (a) The BIA may restrict your IIM account through supervision if the 
BIA:
    (1) Receives an order from a court of competent jurisdiction that 
you are non-compos mentis; or
    (2) Receives an order or judgment from a court of competent 
jurisdiction that you are an adult in need of assistance because you are 
``incapable of

[[Page 345]]

managing or administering property, including your financial affairs;'' 
or
    (3) Determines through an administrative process that you are an 
adult in need of assistance based on a finding by a licensed medical or 
mental health professional that you are ``incapable of managing or 
administering property, including your financial affairs;'' or
    (4) Receives information from another federal agency that you are 
under a legal disability and that the agency has appointed a 
representative payee to receive federal benefits on your behalf.
    (b) The BIA may restrict your IIM account through an encumbrance if 
the BIA:
    (1) Receives an order from a court of competent jurisdiction 
awarding child support from your IIM account; or
    (2) Receives from a third party:
    (i) A copy of the original contract between you and the third party 
in which you used your IIM funds as security/collateral for the 
transaction;
    (ii) A copy of the document showing that the BIA approved in advance 
the use of your IIM funds as security/collateral for the contract;
    (iii) Proof of your default on the contract according to the terms 
of the contract; and
    (iv) A copy of the original assignment of IIM income as security/
collateral for the contract that is signed and dated by you and is 
notarized;
    (3) Receives a money judgment from a Court of Indian Offenses 
pursuant to 25 CFR 11.208 or under any tribal law and order code;
    (4) Is provided documentation showing that BIA or OTFM caused an 
administrative error which resulted in a deposit into your IIM account, 
or a disbursement to you, or to a third party on your behalf; or
    (5) Is provided with proof of debts owed to the United States 
pursuant to Sec. 115.104 of this part.



Sec. 115.602  How will the BIA notify you or your guardian, as 
applicable, of its decision to restrict your IIM account?

    The BIA will notify you or your guardian, as applicable, of its 
decision to restrict your IIM account by:
    (a) United States certified mail to your address of record;
    (b) Personal delivery to you or your guardian, as applicable, or to 
your address of record;
    (c) Publication for four consecutive weeks in your tribal newspaper 
if your whereabouts are unknown and in the local newspaper serving your 
last known address of record; or
    (d) United States certified mail to you in care of the warden, if 
you are incarcerated. The BIA may send a copy of the notification to 
your attorney, if known.



Sec. 115.603  What happens if BIA's notice of its decision to place 
a restriction on your IIM account that is sent by United States certified 
mail is returned to the BIA as undeliverable for any reason?

    If BIA's notice of its decision to place a restriction on your IIM 
account that is sent by United States certified mail is returned to the 
BIA as undeliverable for any reason, the BIA will remove the restriction 
on your account, which was placed five days after the notice was mailed, 
and will publish a notice in accordance with Sec. 115.602(c) and Sec. 
115.605(b).



Sec. 115.604  When will BIA authorize OTFM to place a restriction on 
your IIM account?

    BIA will authorize OTFM to place a restriction on your IIM account 
after providing OTFM with supporting documentation (i.e., receipts, 
notice of publication, etc.) of the following:
    (a) Five (5) days after the date BIA mails you or your guardian, as 
applicable, notice of its decision to restrict your account by United 
States certified mail to your address of record;
    (b) One (1) day after BIA has made personal delivery to you or your 
guardian, as applicable, or to your address of record of its notice of 
the BIA's decision to restrict your account; or
    (c) Five (5) days after the fourth publication of the public notice 
of BIA's decision to restrict your account.

[[Page 346]]



Sec. 115.605  What information will the BIA include in its notice of 
the decision to restrict your IIM account?

    (a) When the BIA provides notice of its decision to restrict your 
IIM account by certified mail or personal delivery to you or your 
guardian, as applicable, the notice must contain:
    (1) The name on the IIM account;
    (2) The reason for the restriction;
    (3) The amount to be encumbered, if applicable;
    (4) A statement that your IIM account will be restricted 5 days 
after the date the notice was sent United States certified mail to your 
address of record;
    (5) An explanation that you have 40 days from the date the notice 
was sent United States certified mail to request a hearing to challenge 
BIA's decision to restrict your IIM account;
    (6) An explanation of how to request a hearing;
    (7) A statement that the BIA will conduct the hearing and that you 
are assured a fair hearing;
    (8) A copy of the fair hearing guidelines;
    (9) A statement that you may contact the BIA to authorize immediate 
payment from your IIM account to pay the claim, if applicable;
    (10) The address and phone number of the BIA office that made the 
decision to restrict your IIM account and provided the notice; and
    (11) Other information as may be determined appropriate by the BIA.
    (b) When the BIA provides public notice of its decision to restrict 
your account, the only information the public notice will include is:
    (1) The name on the account;
    (2) The date of first publication of the public notice;
    (3) A statement that the BIA has decided to place a restriction on 
your IIM account;
    (4) A statement that the public notice will be published once a week 
for four consecutive weeks;
    (5) A statement that the BIA will place a restriction on your 
account five (5) days after the date of the fourth publication of the 
public notice;
    (6) A statement that your opportunity to request a hearing to 
challenge BIA's decision to restrict your account will expire 30 days 
after the date of the fourth publication of the public notice; and
    (7) An address and telephone number of the BIA office publishing the 
notice to request further information and instructions on how to request 
a hearing.



Sec. 115.606  What happens if you do not request a hearing to challenge 
BIA's decision to restrict your IIM account during the allotted time period?

    If you or your guardian, as applicable, do not request a hearing to 
challenge BIA's decision to restrict your IIM account during the 
allotted time period, BIA's decision to restrict your IIM account will 
become final. BIA will follow the procedures outlined in Sec. 115.616 
through Sec. 115.618, and Sec. 115.620, as applicable.



Sec. 115.607  How do you request a hearing to challenge the BIA's 
decision to restrict your IIM account?

    You or your guardian, as applicable, must request a hearing to 
challenge the BIA's decision to restrict your IIM account from the BIA 
office that made the decision and notified you of the restriction. Your 
request must:
    (a) Be in writing;
    (b) Specifically request a hearing to challenge the restriction; and
    (c) Be hand delivered to the BIA office or postmarked within:
    (i) 40 days of the date that BIA's notice was sent United States 
certified mail or personally delivered to the address of record, or
    (ii) 30 days of the date of the final publication of the public 
notice.



Sec. 115.608  If you request a hearing to challenge BIA's decision 
to restrict your IIM account, when will BIA conduct the hearing?

    BIA will conduct a hearing within ten (10) working days from its 
receipt of a written request from you or your guardian, as applicable, 
for a hearing to challenge the decision to restrict your IIM account.



Sec. 115.609  Will you be allowed to present testimony and/or evidence 
at the hearing?

    Yes, you or your guardian, as applicable, will be provided the 
opportunity

[[Page 347]]

to present testimony and/or evidence as to the reasons the BIA should 
not restrict your IIM account, including information showing how an 
encumbrance may create an undue financial hardship, if applicable. You 
may not challenge a court order or judgment in this proceeding. However, 
if you have appealed an order or judgment from a court of competent 
jurisdiction, you or your guardian, as applicable, may present evidence 
of your appeal and the BIA hearing will be postponed until there is a 
final order from the court. The restriction on your IIM account will 
remain in place until after the hearing is concluded.



Sec. 115.610  Will you be allowed to present witnesses during a hearing?

    Yes, you or your guardian, as applicable, may present witnesses 
during a hearing. You are responsible for any and all expenses which may 
be associated with presenting witnesses.



Sec. 115.611  Will you be allowed to question opposing witnesses during 
a hearing?

    Yes, you or your guardian, as applicable, may question all opposing 
witnesses testifying during your hearing. You may also present witnesses 
to challenge opposing witness testimony.



Sec. 115.612  May you be represented by an attorney during your hearing?

    Yes, you may have an attorney or other person represent you during 
your hearing. However, you are responsible for any and all expenses 
associated with having an attorney or other person represent you.



Sec. 115.613  Will the BIA record the hearing?

    Yes, the BIA will record the hearing.



Sec. 115.614  Why is the BIA hearing recorded?

    The BIA hearing will be recorded so that it will be available for 
review if the hearing process is appealed under Sec. 115.107. The BIA 
hearing record must be preserved as a trust record.



Sec. 115.615  How long after the hearing will BIA make its final 
decision?

    BIA will make its final decision within 10 business days of the end 
of the hearing.



Sec. 115.616  What information will be included in BIA's final decision?

    BIA's final written decision to the parties involved in the 
proceeding will include:
    (a) BIA's decision to remove or retain the restriction on the IIM 
account;
    (b) A detailed justification for the supervision or encumbrance of 
the IIM account, where applicable;
    (c) The amount(s) to be paid, the name and address of a third party 
to whom payment will be made, and the time period for repayment 
established under 617(a) of this part, where applicable;
    (d) Any provision to allow for distributions to the account holder 
because of an undue financial hardship created by the encumbrance, if 
applicable; and
    (e) Any other information the hearing officer deems necessary.



Sec. 115.617  What happens when the BIA decides to supervise or encumber 
your IIM account after your hearing?

    BIA will provide OTFM with a copy of the distribution plan, after 
the BIA decides to:
    (a) Supervise your IIM account. BIA social services staff will 
consult with you and/or your guardian to develop a distribution plan. 
Upon BIA approval, the distribution plan will be valid for one year.
    (b) Encumber your IIM account. BIA will review your account balance 
and your future IIM income to develop a distribution plan that 
establishes the amount(s) to be paid and the dates payment(s) will be 
made to the specified party. Payments may need to be made over the 
course of one or more years if the amount owed to the specified party is 
greater than your current IIM account balance.

[[Page 348]]



Sec. 115.618  What happens if at the conclusion of the notice and hearing process we decide to 

encumber your IIM account because of an administrative error which resulted in funds that you do 
not own being deposited in your account or distributed to you or to a third party on your behalf?

    If we decide at the conclusion of the notice and hearing process to 
encumber your account because of an administrative error which resulted 
in funds that you do not own being deposited into your IIM account or 
distributed to you or to a third party on your behalf, we will consult 
with you or your guardian, as applicable, to determine how the funds 
will be re-paid.



Sec. 115.619  If the BIA decides that the restriction on your IIM account 
will be continued after your hearing, do you have the right to appeal that 
decision?

    Yes, if the BIA decides after your hearing to continue the 
restriction on your IIM account, you or your guardian, as applicable, 
have the right to appeal the decision under the procedures proscribed in 
Sec. 115.107.



Sec. 115.620  If you decide to appeal the BIA's final decision pursuant 
to Sec. 115.107, will the BIA restrict your IIM account during the appeal?

    Yes, if under Sec. 115.107 you or your guardian, as applicable, 
decide to appeal the BIA's final decision to:
    (a) Supervise your IIM account, your IIM account will remain 
restricted during the appeal period.
    (b) Encumber your IIM account, your IIM account will remain 
restricted up to the amount at issue during the appeal period. If your 
account balance is greater than the amount encumbered, those funds will 
be available to you upon request to and by approval of the Secretary.



           Subpart F_Trust Fund Accounts: General Information



Sec. 115.700  Why is money held in trust for tribes and individual 
Indians?

    Congress has passed a number of laws that require the Secretary to 
establish and administer trust fund accounts for Indian tribes and 
certain individual Indians who have an interest(s) in trust lands, trust 
resources, or trust assets.

[[Page 349]]



Sec. 115.701  What types of accounts are maintained for Indian trust 
funds?

    Indian trust funds are deposited in tribal accounts, Individual 
Indian Money (IIM) accounts, and special deposit accounts. The 
illustration below provides information on each of these trust accounts.
[GRAPHIC] [TIFF OMITTED] TR22JA01.172


[66 FR 7094, Jan. 22, 2001, as amended at 66 FR 8768, Feb. 2, 2001]

[[Page 350]]



Sec. 115.702  What specific sources of money will be accepted for 
deposit into a trust account?

    We must accept proceed on behalf of tribes or individuals from the 
following sources:
[GRAPHIC] [TIFF OMITTED] TR22JA01.173


[[Page 351]]


[GRAPHIC] [TIFF OMITTED] TR22JA01.174


[[Page 352]]


[GRAPHIC] [TIFF OMITTED] TR22JA01.175


[66 FR 7094, Jan. 22, 2001. Redesignated at 66 FR 8768, Feb. 2, 2001]



Sec. 115.703  May we accept for deposit into a trust account money not 
specified in Sec. 115.702?

    No, we will not accept funds from sources that are not identified in 
the table in Sec. 115.702 for deposit into a trust account.



Sec. 115.704  May we accept for deposit into a trust account retirement 
checks/payments or pension fund checks/payments even though those funds 
are not specified in Sec. 115.702?

    No, we will not accept retirement checks/payments or pension fund 
checks/payments or any funds from sources that are not identified in the 
table in Sec. 115.702 for deposit into a trust account.



Sec. 115.705  May we accept for deposit into a trust account money 
awarded or assessed by a court of competent jurisdiction?

    We will accept money awarded or assessed by a court of competent 
jurisdiction for a cause of action directly related to trust assets to 
be deposited into a trust account. Other funds awarded by a court of 
competent jurisdiction may not be deposited into a trust account.



Sec. 115.706  When funds are awarded or assessed by a court of competent 
jurisdiction in a cause of action involving trust assets, what 
documentation is required to deposit the trust funds into a trust account?

    When funds are awarded or assessed by a court of competent 
jurisdiction in a cause of action involving trust assets, we must 
receive the funds awarded as stipulated in the court order and a copy of 
the court's order.



Sec. 115.707  Will the Secretary accept administrative fees for deposit 
into a trust account?

    No. The Secretary will not accept administrative fees for deposit 
into a trust account because administrative fees are not trust funds. 
However, administrative fees may be deposited into a non-interest 
bearing, non-trust account with the BIA.



Sec. 115.708  How quickly will trust funds received by the Secretary on 
behalf of tribes or individual Indians be deposited into a trust account?

    Trust funds received by the Secretary on behalf of a tribe or 
individual Indians will be deposited into a trust account within twenty-
four hours, or no later than the close of business on the next business 
day following the receipt of funds at a location with a designated 
federal depository.



Sec. 115.709  Will an annual audit be conducted on trust funds?

    Yes, in accordance with the Trust Reform Act an annual audit will be 
conducted on trust funds. Each tribe and IIM account holder will be 
notified when the Secretary has conducted an annual audit on a fiscal 
year basis of all the trust funds held by the United States for the 
benefit of tribes and individual Indians. This notice will be provided 
in the first quarterly statement of performance following the 
publication of the audit.

[[Page 353]]

                        Investments and Interests



Sec. 115.710  Does money in a trust account earn interest?

    Yes, all money deposited in a trust account is invested and earns 
interest or yield returns, or both.



Sec. 115.711  How is money in a trust account invested?

    OTFM manages trust fund investments and its investment decisions are 
governed by federal statute. See 25 U.S.C. Sec. Sec. 161(a) and 162a.



Sec. 115.712  What is the interest rate earned on money in a trust 
account?

    The rate of interest on a trust account changes based on how the 
money is invested and how those investments perform.



Sec. 115.713  When does money in a trust account start earning interest?

    Funds must remain on deposit at least one business day before 
interest is earned. Interest earnings of less than one cent are not 
credited to any account.



                        Subpart G_Tribal Accounts



Sec. 115.800  When does OTFM open a tribal account?

    A tribal account is opened when OTFM receives income from the 
sources described in Sec. 115.702.



Sec. 115.801  How often will a tribe receive information about its trust 
account(s)?

    The OTFM is required to provide each tribe with a statement of 
performance quarterly, within or no later than 20 business days after 
the close of every quarterly statement period.



Sec. 115.802  May a tribe make a request to OTFM to receive information 
about its trust account more frequently?

    Yes, a tribe may contact OTFM at any time to:
    (a) Request information about account transactions and balances;
    (b) Make arrangements to access account information electronically; 
or
    (c) Receive a monthly statement.



Sec. 115.803  What information will be provided in a statement of 
performance?

    The statement of performance will identify the source, type, and 
status of the trust funds deposited and held in a trust account; the 
beginning balance; the gains and losses; receipts and disbursements; and 
the ending account balance of the quarterly statement period.



Sec. 115.804  Will we account to a tribe for those trust funds the 
tribe receives through direct pay?

    No, under the Trust Reform Act we are only responsible for 
accounting for those trust funds received into, and maintained by, the 
Department's trust funds management system.



Sec. 115.805  If a tribe is paid directly under a contract for the sale 
or use of trust assets, will we accept those trust funds for deposit into 
a tribal trust account?

    If a contract for the sale or use of trust assets specifies that 
payments are to be made directly to a tribe, we will not accept these 
trust funds into a tribal trust account. Where a tribe under 25 U.S.C. 
450f et seq. has contracted or compacted with the federal government to 
operate a federal program and the tribe, operating the federal program 
on behalf of the Secretary, receives trust funds for the sale or use of 
trust assets pursuant to a contract that specifies that payments are to 
be made to the Secretary on behalf of a tribe or an individual [the 
owner of the trust assets], the tribe must follow Sec. 115.708 for the 
deposit of the trust funds into the trust account.



Sec. 115.806  How will the BIA assist in the administration of tribal 
judgment fund accounts?

    (a) If the tribe requests assistance or if Congress directs the 
Secretary to provide assistance, BIA will provide technical assistance 
on developing a judgment use and distribution plan to a tribe.
    (b) BIA will review all tribal requests for distribution of tribal 
judgment funds to ensure that each request complies with any 
requirements associated with the use of that money found in

[[Page 354]]

statutory language, congressional directives, court orders, court-
approved settlements, settlement agreements, use and distribution plans, 
or bond or loan payments.

                Investing and Managing Tribal Trust Funds



Sec. 115.807  Will OTFM consult with tribes about investments of tribal 
trust funds?

    Upon the request of a tribe, OTFM will consult with the tribe 
annually to develop investment strategies to accommodate the cash flow 
needs of the tribe.



Sec. 115.808  Could trust fund investments made by OTFM lose money?

    The value of trust fund investments made by OTFM will vary depending 
on the type of investment and, including but not limited to, the 
following:
    (a) Current interest rates;
    (b) Whether the security/investment is held to its maturity; and
    (c) Original purchase price.
    However, as long as the purchase price of the security/investment is 
made at or below face value and the security/investment is held until 
maturity or payoff, the security/investment will not lose principal 
invested funds.



Sec. 115.809  May a tribe recommend to OTFM how to invest the tribe's 
trust funds?

    Tribes may recommend certain investments to OTFM, but the 
recommendations must be in accordance with the statutory requirements 
set forth in 25 U.S.C. Sec. Sec. 161a and 162a. The OTFM will make the 
final investment decision based on prudent investment practices.



Sec. 115.810  May a tribe directly invest and manage its trust funds?

    A tribe may apply to withdraw its trust funds from OTFM for 
investment and management by the tribe. The tribe's request to withdraw 
funds must be in accordance with the requirements of the Trust Reform 
Act and 25 CFR part 1200, subpart B, unless otherwise specified by 
statutory language or the controlling document which governs the use of 
the trust funds.



Sec. 115.811  Under what conditions may a tribe redeposit funds with 
OTFM that were previously withdrawn under the Trust Reform Act?

    Tribal trust funds withdrawn under the Trust Reform Act may be 
returned to OTFM under the following conditions:
    (a) A tribe must make a written request to OTFM to redeposit all or 
part of the withdrawn trust funds;
    (b) No tribal trust funds may be redeposited to a tribal trust 
account during the first six months after being withdrawn, except with 
the approval of the Secretary;
    (c) Tribal trust funds may only be returned to OTFM a maximum of 
twice a year, except with the approval of the Secretary; and
    (d) A tribe must return withdrawn trust funds in accordance with the 
requirements of the Trust Reform Act in 25 CFR, part 1200, subpart C.



Sec. 115.812  Is a tribe responsible for its expenditures of trust funds 
that are not made in compliance with statutory language or other federal law?

    If a tribe's use of trust funds is limited by statutory language or 
other federal law(s) and a tribe uses those trust funds in direct 
violation of those laws, absent an approved modification which allows 
for the expenditures, we will require the tribe to reimburse its trust 
fund account.



Sec. 115.813  Is there a limit to the amount of trust funds OTFM will 
disburse from a tribal trust account?

    OTFM will only disburse the available balance of the trust funds in 
a tribal trust account in accordance with a use and distribution plan, 
if applicable, and will not overdraw a tribal trust account. If a 
tribe's trust funds are invested in securities that have not matured, 
OTFM will only sell the asset to make cash available to the tribe if:
    (a) There are no restrictions against the sale, and
    (b) A tribe provides OTFM with a tribal resolution stating that:
    (1) The security must be sold;
    (2) The tribe acknowledges that they may incur a penalty when the 
security is sold; and

[[Page 355]]

    (3) The tribe acknowledges that the security may lose value if it is 
sold prior to maturity.



Sec. 115.814  If a tribe withdraws money from its trust account for 
a particular purpose or project, may the tribe redeposit any money that 
was not used for its intended purpose?

    A tribe may redeposit funds not used for a particular purpose or 
project if:
    (a) The funds were withdrawn in accordance with:
    (1) The terms of Trust Reform Act;
    (2) The terms of the legislative settlement; or
    (3) The terms of a judgment use and distribution plan; and
    (b) The tribe can provide documentation showing the source of the 
funds to be redeposited.

                     Withdrawing Tribal Trust Funds



Sec. 115.815  How does a tribe request trust funds from a tribal trust 
account?

    To request trust funds from a tribal trust account, a tribe may:
    (a) Make a written request to the BIA or the OTFM that is signed by 
the proper authorizing official(s), list the amount of trust funds to be 
withdrawn, provide any additional documentation or information required 
by law to withdraw certain trust funds, and must include a tribal 
resolution approving the withdrawal of the specified amount of trust 
funds; or
    (b) Contact the OTFM to withdraw funds in accordance with the Trust 
Reform Act and 25 CFR part 1200.



Sec. 115.816  May a tribe's request for a withdrawal of trust funds 
from its trust account be delayed or denied?

    (a) Action on a tribe's request for a withdrawal of trust funds may 
be delayed or denied if:
    (1) The tribe did not submit all the necessary documentation;
    (2) The tribe's request is not signed by the proper authorizing 
official(s);
    (3) OTFM does not have documentation from the tribe certifying its 
recognized, authorizing officials;
    (4) The tribe's request is in conflict with statutory language or 
the controlling document governing the use of the trust funds; or
    (5) The BIA or OTFM requires clarification regarding the tribe's 
request.
    (b) If action on a tribe's request to withdraw trust funds will be 
delayed or denied, the BIA or the OTFM will:
    (1) Notify the tribe within ten (10) working days of the date of a 
request made under Sec. 115.815(a);
    (2) Notify the tribe under the time frames established in 25 CFR 
part 1200 for requests made under the Trust Reform Act; and
    (3) Provide technical assistance to the tribe to address any 
problems.



Sec. 115.817  How does OTFM disburse money to a tribe?

    Upon receipt of all necessary documentation, OTFM will process the 
request for disbursement and send the tribe the requested amount of 
trust funds within one business day. Whenever possible, trust funds will 
be disbursed electronically to an account in a financial institution 
designated by the tribe. If there are circumstances that preclude 
electronic payments, OTFM will mail a check.

                       Unclaimed Per Capita Funds



Sec. 115.818  What happens if an Indian adult does not cash his or her 
per capita check?

    (a) If an Indian adult does not cash his or her per capita check 
within twelve (12) months of the date the check was issued, the check 
will be canceled and the trust funds will be deposited into a ``returned 
per capita account'' where the funds will be maintained until we receive 
a request for disbursement by the Indian adult or for disposition by a 
tribe pursuant to Sec. 115.820.
    (b) If an Indian adult's per capita check is returned to us as 
undeliverable, the trust funds will be immediately deposited into a 
``returned per capita account'' where the funds will be maintained until 
we receive a request for disbursement by the individual or for 
disposition by a tribe pursuant to Sec. 115.820.

[[Page 356]]



Sec. 115.819  What steps will be taken to locate an individual whose 
per capita check is returned as undeliverable or not cashed within 
twelve (12) months of issuance?

    The OTFM will notify a tribe of the names of the individuals whose 
per capita checks were returned as undeliverable or not cashed within 
twelve (12) months of issuance and will take reasonable action, 
including utilizing electronic search tools, to locate the individual 
entitled to receive the per capita funds.



Sec. 115.820  May OTFM transfer money in a returned per capita account 
to a tribal account?

    Funds in a returned per capita account will not automatically be 
returned to a tribe. However, a tribe may apply under 25 U.S.C. 164 and 
Public Law 87-283, 75 Stat. 584 (1961), to have the unclaimed per capita 
funds transferred to its account for the tribe's use after six years 
have passed from the date of distribution.



                   Subpart H_Special Deposit Accounts



Sec. 115.900  Who receives the interest earned on trust funds in a 
special deposit account?

    Generally, any interest earned on trust funds in a special deposit 
account will follow the principal (i.e., the tribe or individual who 
owns the trust funds in the special deposit account will receive the 
interest earned).



Sec. 115.901  When will the trust funds in a special deposit account 
be credited or paid out to the owner of the funds?

    OTFM will disburse the trust funds from a special deposit account 
and deposit the trust funds in the owner's trust account following the 
BIA certification of the ownership of the funds and OTFM's receipt of 
such certification.



Sec. 115.902  May administrative or land conveyance fees paid as 
federal reimbursements be deposited in a special deposit account?

    No, administrative or land conveyance fees paid as federal 
reimbursements may not be deposited with OTFM, which includes special 
deposit accounts. These fees must be deposited in the Federal Financial 
System.



Sec. 115.903  May cash bonds (e.g., performance bonds, appeal bonds, 
etc.) be deposited into a special deposit account?

    No, cash bonds may not be deposited with OTFM, which includes the 
special deposit accounts at OTFM. Cash bonds held by the Secretary are 
to be deposited in non-interest bearing accounts until the term of the 
bonds expire.



Sec. 115.904  Where earnest money is paid prior to Secretarial approval 
of a conveyance or contract instrument involving trust assets, may the 
BIA deposit that earnest money into a special deposit account?

    No, any money received prior to Secretarial approval of conveyance 
or contract instrument involving trust assets must be deposited into a 
non-interest bearing, non-trust account. After the Secretary approves 
the conveyance or contract instrument involving trust assets, the money 
designated by the conveyance or contract instrument will be deposited 
into a trust fund account.



                            Subpart I_Records



Sec. 115.1000  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under this part, including the 
operation of a trust program pursuant to 25 U.S.C. 450f et seq.; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.
    (b) Records not covered by paragraph (a) of this section that are 
made or received by a tribe or tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the tribe.



Sec. 115.1001  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have

[[Page 357]]

records identified in Sec. 115.1000(a) must preserve the records in 
accordance with approved Departmental records retention procedures under 
the Federal Records Act, 44 U.S.C. Chapters 29, 31 and 33. These records 
and related records management practices and safeguards required under 
the Federal Records Act are subject to inspection by the Secretary and 
the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec. 115.1000(b) for the period of time authorized by the 
Archivist of the United States for similar Department of the Interior 
records in accordance with 44 U.S.C. Chapter 33. If a tribe or tribal 
organization does not preserve records associated with its conduct of 
business with the Department of the Interior under this part, the tribe 
or tribal organization may be prevented from being able to adequately 
document essential transactions or furnish information necessary to 
protect its legal and financial rights or those of persons directly 
affected by its activities.



PART 117_DEPOSIT AND EXPENDITURE OF INDIVIDUAL FUNDS OF MEMBERS OF THE 
OSAGE TRIBE OF INDIANS WHO DO NOT HAVE CERTIFICATES OF COMPETENCY
--Table of Contents




Sec.
117.1 Definitions.
117.2 Payment of taxes of adult Indians.
117.3 Payment of taxes of Indians under 21 years of age.
117.4 Disbursement of allowance funds.
117.5 Procedure for hearings to assume supervision of expenditure of 
          allowance funds.
117.6 Allowance for minors.
117.7 Disbursement or expenditure of surplus funds.
117.8 Purchase of land.
117.9 Construction and repairs.
117.10 Purchase of automotive equipment.
117.11 Insurance.
117.12 Costs of recording and conveyancing.
117.13 Telephone and telegraph messages.
117.14 Miscellaneous expenditure of surplus funds.
117.15 Collections from insurance companies.
117.16 Reimbursement to surplus funds.
117.17 Inactive surplus funds accounts.
117.18 Withdrawal and payment of segregated trust funds.
117.19 Debts of Indians.
117.20 Purchase orders.
117.21 Fees and expenses of attorneys.
117.22 Disbursements to legal guardians.
117.23 Transactions between guardian and ward.
117.24 Compensation for guardians and their attorneys.
117.25 Charges for services to Indians.
117.26 Expenses incurred pending qualification of an executor or 
          administrator.
117.27 Custody of funds pending administration of estates.
117.28 Payment of claims against estates.
117.29 Sale of improvements.
117.30 Sale of personal property.
117.31 Removal of restrictions from personal property.
117.32 Funds of Indians of other tribes.
117.33 Signature of illiterates.
117.34 Financial status of Indians confidential.
117.35 Appeals.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10554, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 117.1  Definitions.

    When used in the regulations in this part the following words or 
terms shall have the meaning shown below:
    (a) Secretary means the Secretary of the Interior or his authorized 
representative.
    (b) Commissioner means the Commissioner of Indian Affairs or his 
authorized representative.
    (c) Superintendent means the superintendent of the Osage Agency.
    (d) Quarterly payment means the payment of not to exceed $1,000 
which is made each fiscal quarter to or on behalf of an adult Indian, 
from the following sources:
    (1) The pro rata distribution of tribal mineral income and other 
tribal revenues.
    (2) The interest on segregated trust funds.
    (3) Surplus funds in addition to the income from the foregoing 
sources in the amount necessary to aggregate $1,000 when the income from 
those sources is less than $1,000 and the Indian has a balance of 
accumulated surplus funds in excess of $10,000.
    (e) Surplus funds means all those moneys and securities readily 
convertible into cash, except allowance funds and segregated trust 
funds, which are held to the credit of an Indian at the

[[Page 358]]

Osage Agency and which may be disbursed, expended or invested only upon 
authorization by the Secretary. The term includes:
    (1) That portion of the quarterly distribution of tribal income and 
interest on segregated trust funds, in excess of $1,000, belonging to an 
adult Indian.
    (2) The proceeds, including appreciation, of the sale or conversion 
of restricted real or personal property (other than partition sales).
    (3) Payments made by insurance companies or others for loss or 
damage to restricted real or personal property.
    (4) All moneys and securities, other than segregated trust funds, to 
the credit of an Indian who is less than 21 years of age (except the 
income from restricted lands payable as provided by Sec. 117.3).
    (5) Funds and securities placed to the credit of an Indian upon the 
distribution of an Osage estate.
    (f) Allowance funds means that income payable to or on behalf of a 
living adult Indian, the expenditure and disbursement of which is not 
subject to supervision unless authorized pursuant to the procedure 
contained in Sec. 117.5. The term includes:
    (1) The quarterly payment in an amount not to exceed $1,000.
    (2) The rentals and income from restricted lands owned by the 
Indian.
    (3) The rentals and income from restricted lands owned by the minor 
children of the Indian, as provided in Sec. 117.3.
    (4) Income from investments.
    (5) Interest on deposits to the credit of the Indian.
    (g) Segregated trust funds means those moneys held in the United 
States Treasury at interest to the credit of an Indian which represent 
pro rata shares of the segregation of tribal trust funds and the 
proceeds of the partition of restricted lands.



Sec. 117.2  Payment of taxes of adult Indians.

    The superintendent may cause to be paid out of any money heretofore 
accrued or hereafter accruing to the credit of any adult Indian all 
taxes of every kind and character for which such Indian is or may be 
liable before paying to or for such person any funds as required by law. 
All checks in payment of taxes shall be made payable to the proper 
collector. For the purpose of establishing a fund with which to meet the 
payment of such taxes when due, the Superintendent may cause the funds 
of an adult Indian to be hypothecated in the following manner:
    (a) For the payment of ad valorem taxes, one-fourth of the estimated 
amount ad valorem taxes from each quarterly payment unless this 
procedure would cause the obligation of more than 25 percent of such 
quarterly payments, in which event the necessary additional funds shall 
be retained from other allowance funds payable to such person under the 
law. If there be no other allowance funds available, or if the funds 
from these sources are insufficient, one-fourth of the estimated amount 
of such ad valorem taxes may be obligated from each quarterly payment. 
If an Indian who is liable for ad valorem taxes has no allowance funds, 
or such funds are insufficient for the payment thereof, surplus funds 
may be used for such payment.
    (b)(1) For the payment of income taxes, one-half of the estimated 
amount of income taxes from each semi-annual payment of interest on 
deposits, but if such interest payments are insufficient to meet this 
obligation, additional funds shall be retained from interest on 
investments, rentals, or other allowance funds.
    (2) Whenever funds are withheld for the purpose of establishing a 
fund to meet the payment of taxes, the Indian shall be notified of the 
action taken.



Sec. 117.3  Payment of taxes of Indians under 21 years of age.

    All taxes assessed against the restricted lands of Indians less than 
21 years of age shall be paid by the superintendent direct to the 
collector from the rents and income derived from such lands, and the 
balance, if any, of such rents and income shall be paid to the living 
parents or parent. If the parents are separated, the balance shall be 
paid to the parent having custody of the Indian under 21 years of age. 
All other taxes for which an Indian under 21 years of age may be liable 
shall be paid from his surplus funds.

[[Page 359]]



Sec. 117.4  Disbursement of allowance funds.

    Except as provided in Sec. 117.5, all allowance funds shall be 
disbursed to the Indian owner unless the Indian owner directs otherwise 
in writing. At the request of the Indian owner, such funds may be 
retained by the superintendent as voluntary deposits subject to 
withdrawal or other disposition upon demand or direction of the Indian 
owner. The superintendent may recognize a power of attorney executed by 
the Indian and may disburse the allowance funds of the Indian in 
conformity therewith so long as the power of attorney remains in force 
and effect.



Sec. 117.5  Procedure for hearings to assume supervision of expenditure 
of allowance funds.

    (a) Whenever the superintendent has reason to believe that an adult 
Indian is wasting or squandering his allowance funds the superintendent 
may cause an investigation and written report of the facts to be made. 
If the report indicates that the Indian is wasting or squandering his 
allowance funds the following notice shall be served upon the Indian, in 
person or by registered mail, and a copy thereof shall likewise be 
served upon his guardian if the Indian is under guardianship:

    Section 1 of the act of February 27, 1925 (43 Stat. 1008) provides 
in part as follows:
    ``All payments to adults not having certificates of competency, 
including amounts paid for each minor, shall, in case the Secretary of 
the Interior finds that such adults are wasting or squandering said 
income, be subject to the supervision of the Superintendent of the Osage 
Agency: . . .''
    Enclosed is a copy of a report which has been made to me concerning 
your handling and management of the income paid to you through the Osage 
Agency. This report indicates that you have been wasting and squandering 
your payments.
    You are hereby notified that a hearing will be held in the Osage 
Indian Agency, Pawhuska, Oklahoma, at ---- m., on the ---------- day of 
--------------, 19----, before the Superintendent, for the purpose of 
taking testimony and evidence to be submitted to the Commissioner of 
Indian Affairs for his consideration in determining whether your 
payments shall be subject to the supervision of the Superintendent.
    You are requested to be present at the hearing at the time and place 
designated above. You may introduce at the hearing such testimony and 
evidence as you deem appropriate to show that you are not wasting or 
squandering your payments and that your payments should continue to be 
made to you without supervision for your unrestricted use.
    You are entitled to employ an attorney to assist you in this matter. 
Upon your request the employees of the Osage Agency will furnish you 
with any information you desire concerning your accounts at the Osage 
Agency or any of your transactions handled through the Osage Agency.
    Date.
    Superintendent.

    (b) A hearing shall be held pursuant to the notice, the date of 
which shall be not less than 30 days after the date of the notice. For 
good cause shown to exist the superintendent may continue the hearing to 
a later date.
    (c) A record of the proceedings, consisting of the superintendent's 
preliminary report, the notice and proof of service, all testimony and 
evidence introduced at the hearing, and all briefs and letters filed by 
the Indian or his attorney shall be submitted to the Commissioner, 
together with a recommendation from the superintendent.
    (d) Upon a finding by the Commissioner that the Indian is wasting or 
squandering his income, his allowance funds shall thereafter be subject 
to the supervision of the superintendent. Notice of the decision of the 
Commissioner shall be furnished all interested parties.



Sec. 117.6  Allowance for minors.

    The superintendent may disburse from the surplus funds of an Indian 
under 21 years of age not to exceed $300 quarterly for the support and 
maintenance of the minor. Disbursement may be made to the parent, 
guardian, or other person, school or institution having actual custody 
of the minor, or, when the minor is 18 years of age or over, 
disbursement may be made direct to the minor.



Sec. 117.7  Disbursement or expenditure of surplus funds.

    Except as provided in the regulations in this part, no disbursement 
or expenditure of surplus funds of Indians shall be made without the 
consent of

[[Page 360]]

the Indian owner and until authorization has been obtained from the 
Commissioner. Application by an Indian or his legal guardian, or if he 
is a minor, by his parent or legal guardian, for the expenditure of 
surplus funds shall be presented to the Commissioner, fully justified 
with the appropriate attachments such as court orders, decrees or other 
papers. Such application shall contain full information regarding the 
individual including his cash balance, the sum invested, the number of 
shares in the Osage mineral estate, total income from all sources 
including that paid on behalf of minors, the family status and the 
occupation or industry of the applicant. When request is made for 
payment to the individual without supervision, the record of said 
individual and his ability to handle such funds shall be shown.



Sec. 117.8  Purchase of land.

    Upon written application of an adult Indian, the superintendent may 
disburse not to exceed $10,000 from the surplus funds of such Indian for 
the purchase of land, the title to which has been examined and accepted 
by the special attorney for the Osage Indians or other legal officer 
designated by the Commissioner. In all cases title must be taken by deed 
containing a clause restricting alienation or encumbrance without the 
consent of the Secretary of the Interior or his authorized 
representative.



Sec. 117.9  Construction and repairs.

    Upon written application by an adult Indian, the superintendent may 
disburse not to exceed $1,000 during any one fiscal year from the 
surplus funds of such Indian to make repairs and improvements to 
restricted real property and in addition not to exceed $300 for new 
construction. When such expenditures are being made on property 
producing an income, reimbursement shall be required from such income 
unless otherwise directed by the Commissioner. When an Indian refuses to 
make application for funds to defray the cost of repairs necessary to 
preserve restricted property, the superintendent may, when authorized by 
the Commissioner, expend the surplus funds of the Indian for such 
repairs.



Sec. 117.10  Purchase of automotive equipment.

    The superintendent may disburse from the surplus funds of an adult 
Indian not to exceed $2,000 for the purchase of automotive equipment 
when the Indian agrees in writing to carry property and liability 
insurance on the automotive equipment and to reimburse his surplus funds 
account from allowance funds within 24 months. No disbursement of 
surplus funds for the purchase of automotive equipment shall be made if 
the fulfillment of the reimbursable agreement will endanger the payment 
of taxes, insurance or other obligations, or result in the inability of 
the Indian to meet his current living expenses from allowance funds.



Sec. 117.11  Insurance.

    The superintendent may obtain policies of insurance covering the 
restricted property, real or personal, of minor Indians and pay the 
premiums thereon from the funds of the minors. Upon application by an 
adult Indian the superintendent may procure insurance on any restricted 
property, real or personal, owned by the applicant and pay the necessary 
premiums from his surplus or allowance funds. When authorized by the 
Commissioner, the superintendent may also procure insurance on 
restricted property, real or personal, of any adult Indian who neglects 
or refuses to take out such insurance.



Sec. 117.12  Costs of recording and conveyancing.

    The superintendent may expend the surplus funds of an Indian to make 
direct payment of recording fees and costs, of conveyancing, including 
abstracting costs, which are properly payable by the Indian.



Sec. 117.13  Telephone and telegraph messages.

    The superintendent may expend the surplus funds of an Indian to make 
direct payment for telephone and telegraph messages sent by the agency 
or received at the agency at the instance of the Indian or his guardian 
or attorney.

[[Page 361]]



Sec. 117.14  Miscellaneous expenditure of surplus funds.

    Upon application by an adult Indian the superintendent may disburse 
the surplus funds of such Indian for the following purposes:
    (a) Medical, dental, and hospital expenses for the applicant or a 
member of his family, not to exceed one thousand dollars ($1,000) during 
any one fiscal year.
    (b) Funeral expenses, including the funeral feast, of a deceased 
member of his family, in an amount not to exceed one thousand dollars 
($1,000).
    (c) A tombstone or monument to mark the grave of a deceased member 
of his family in amount not to exceed five hundred dollars ($500).
    (d) Court costs in any judicial proceeding to which the applicant is 
a party.
    (e) Bond premiums, except bail and supersedeas bonds.
    (f) For miscellaneous purposes, not to exceed five hundred dollars 
($500) during any one fiscal year.



Sec. 117.15  Collections from insurance companies.

    Moneys collected from insurance companies for loss or damage to 
restricted real or personal property shall be deposited to the credit of 
the Indian owner as surplus funds. Moneys so deposited to the credit of 
an adult Indian may, upon the written application of the Indian, be 
disbursed by the superintendent for the purpose of repairing or 
replacing the property. Moneys collected from insurance companies for 
loss or damage to unrestricted real or personal property shall be paid 
to the Indian for his unrestricted use.



Sec. 117.16  Reimbursement to surplus funds.

    When expenditures have been made from surplus funds upon the 
condition, and with the written agreement of the Indian, that 
reimbursement or repayment shall be made from future allowance funds, 
the superintendent is authorized to withhold from succeeding quarterly 
payments or other allowance funds such amounts as may be necessary to 
effect reimbursement within a period not exceeding 24 months from date 
of the first expenditure under the given authority.



Sec. 117.17  Inactive surplus funds accounts.

    When the balance of surplus funds to the credit of an adult Indian 
is less than $300 and when there is no likelihood of its increase within 
90 days, the superintendent may disburse the entire balance to the 
Indian owner for his unrestricted use.



Sec. 117.18  Withdrawal and payment of segregated trust funds.

    The withdrawal and payment of segregated trust funds will be made 
only upon application and satisfactory evidence that the withdrawal and 
payment of such funds would be to the best interest of the Indian in 
view of all the circumstances shown to exist. The segregated trust funds 
of an Indian under guardianship or an Indian under 21 years of age shall 
not be released and paid except to a guardian appointed by a proper 
court and after the filing of a bond approved by the court conditioned 
upon the faithful handling of the funds. Applications for the withdrawal 
and payment of segregated trust funds must be made upon the forms 
prescribed by the Secretary for that purpose.



Sec. 117.19  Debts of Indians.

    No indebtedness of Indians will be paid from their funds under the 
control or supervision of the Secretary unless authorized in writing and 
obligated against their accounts by the superintendent or some other 
designated employee except in cases of emergency involving the 
protection or preservation of life or property, which emergency must be 
clearly shown. With this exception, no authorization or obligation 
against the account of any Indian for indebtedness incurred by him shall 
be made by the superintendent unless specifically authorized by the 
regulations in this part.



Sec. 117.20  Purchase orders.

    Purchase orders may be issued by the superintendent for expenditures 
authorized by the regulations in this part

[[Page 362]]

or for expenditures specifically authorized by the Commissioner. When 
necessary to prevent hardship or suffering, purchase orders may be 
issued by the superintendent against the future income of an Indian in 
an amount not to exceed 80 percent of the anticipated quarterly payment. 
The payment of purchase orders issued against future income shall be 
contingent upon the availability of funds.



Sec. 117.21  Fees and expenses of attorneys.

    When payment of an attorney fee for services to an Indian is to be 
made from his surplus funds, the employment of the attorney by the 
Indian must be approved in advance. All fees will be determined on a 
quantum merit basis and paid upon completion of the services. The 
superintendent may approve the employment of an attorney, determine the 
fee, and disburse the surplus funds of the Indian in payment thereof 
when the fee does not exceed $500. Upon application by the Indian and 
upon the presentation of properly authenticated vouchers, the 
superintendent may disburse the surplus funds of the Indian in an amount 
not to exceed $200 in payment of necessary expenses incurred by the 
attorney.



Sec. 117.22  Disbursements to legal guardians.

    Any disbursement authorized to be made to an Indian by the 
regulations of this part may, when the Indian is under guardianship, be 
made by the superintendent to the guardian. All expenditures by a 
guardian of the funds of his ward must be approved in writing by the 
court and the superintendent.



Sec. 117.23  Transactions between guardian and ward.

    Business dealings between the guardian and his ward involving the 
sale or purchase of any property, real or personal, by the guardian to 
or from the ward, or to or from any store, company or organization in 
which the guardian has a direct interest or concern or contrary to the 
policy of the Department and shall not be approved by the superintendent 
without specific authority from the Commissioner.



Sec. 117.24  Compensation for guardians and their attorneys.

    (a) The superintendent may approve compensation for services 
rendered by the guardian of an Indian on an annual basis, the amount of 
the compensation to be determined by application of the following 
schedule to the moneys collected by the guardian:

First $1,000 or portion thereof, not to exceed 10 percent.
Second $1,000 or portion thereof, not to exceed 9 percent.
Third $1,000 or portion thereof, not to exceed 8 percent.
Fourth $1,000 or portion thereof, not to exceed 7 percent.
Fifth $1,000 or portion thereof, not to exceed 6 percent.
Sixth $1,000 or portion thereof, not to exceed 5 percent.
Seventh $1,000 or portion thereof, not to exceed 4 percent.
Eighth $1,000 or portion thereof, not to exceed 3 percent.
Ninth $1,000 or portion thereof, not to exceed 2 percent.
All above $9,000 not to exceed 1 percent.

    (b) Balance carried forward from previous reports and moneys 
received by a guardian or his attorney as compensation shall be excluded 
in determining the compensation of the guardian or his attorney.
    (c) The attorney for a guardian shall be allowed compensation in an 
amount equal to one-half of the amount allowed the guardian under the 
foregoing schedule except when such attorney is himself the guardian and 
acting as his own attorney, in which event he shall be allowed a fee of 
not to exceed one-fourth of the amount allowed the guardian under the 
foregoing schedule in addition to the fee as guardian.
    (d) The superintendent may in his discretion permit the guardian to 
collect rentals from restricted city or town properties belonging to his 
ward.



Sec. 117.25  Charges for services to Indians.

    The superintendent shall make the following charges for services to 
Indians: Five per cent of all interest and non-liquidating dividends 
received from all types of securities, including stocks, bonds, and 
mortgages held in trust for individual Indians and interest on group 
investments. Such fees

[[Page 363]]

shall be deposited in the Treasury of the United States to the credit of 
the fund ``Proceeds of Oil and Gas Leases, Royalties, etc., Osage 
Reservation, Oklahoma''.



Sec. 117.26  Expenses incurred pending qualification of an executor or 
administrator.

    Pending the qualification of the executor or administrator of the 
estate of a deceased Indian of one-half or more Indian blood who did not 
have a certificate of competency at the time of his death, the 
superintendent may authorize the extension of credit for the following 
purposes, subject to allowance of claims by the executor or 
administrator and approval thereof by the court:
    (a) Funeral expenses, including the cost of a funeral feast, in an 
amount not to exceed $1,000.
    (b) Necessary expenses in hearings before the Osage Agency involving 
the approval or disapproval of last wills and testaments.
    (c) Expenses necessary to preserve restricted property.



Sec. 117.27  Custody of funds pending administration of estates.

    (a) Estates of Indians of less than one-half Indian blood and 
estates of Indians who had certificates of competency. Upon the death of 
an Indian of less than one-half Indian blood or an Indian who had a 
certificate of competency, the superintendent shall pay to the executor 
or administrator of the estate all moneys and securities, other than 
segregated trust funds to the credit of the Indian and all funds which 
accrue pending administration of the estate.
    (b) Estates of Indians of one-half or more Indian blood who did not 
have certificates of competency. Upon the death of an Indian of one-half 
or more Indian blood who did not have a certificate of competency at the 
time of his death, the following classes of funds, less any amount 
hypothecated for the payment of taxes as provided in Sec. 117.2 shall 
be paid by the superintendent to the executor or administrator of the 
estate:
    (1) Allowance funds to the credit of the Indian.
    (2) Any quarterly payment authorized prior to the death of the 
Indian.
    (3) Interest on segregated trust funds and deposits computed to the 
date of death.
    (4) Rentals and income from restricted lands collected after the 
death of the Indian which were due and payable to the Indian prior to 
his death.

Except as provided in Sec. 117.28, the superintendent shall not pay to 
the executor or administrator any surplus funds to the credit of the 
Indian or any funds, other than those listed in paragraphs (b) (1), (2), 
(3) and (4) of this section which accrue pending administration of the 
estate.



Sec. 117.28  Payment of claims against estates.

    The superintendent may disburse to the executor or administrator of 
the estate of a deceased Indian of one-half or more Indian blood who did 
not have a certificate of competency at the time of his death sufficient 
funds out of the estate to pay the following classes of claims approved 
by the court:
    (a) Debts authorized by the superintendent during the lifetime of 
the Indian.
    (b) Expenses incurred pending the qualifications of an executor or 
administrator under authority contained in Sec. 117.26.
    (c) Expenses of administration, including court costs, premium on 
bond of executor or administrator, transcript fees and appraiser fees.
    (d) Living expenses incurred within 90 days immediately preceding 
the date of death of the Indian.
    (e) Allowance for reasonable living expenses each month for 12 
months to a surviving spouse who is entitled to participate in the 
distribution of the estate and who is in need of such support.
    (f) Allowance for reasonable living expenses each month for 12 
months for each child of the decedent under 21 years of age who is 
entitled to participate in the distribution of the estate and who is in 
need of such support.
    (g) Insurance premiums and license fees on restricted property.
    (h) Not to exceed $1,000 for the preservation and upkeep of 
restricted property including the services of a caretaker when 
necessary.

[[Page 364]]

    (i) Debts incurred during the lifetime of the Indian but not 
authorized by the superintendent, if found by the Commissioner to be 
just and payable. The superintendent shall disburse no funds to an 
executor or administrator for the payment of the foregoing classes of 
claims unless the executor or administrator has no other funds in his 
hands available for the payment of such claims.

[22 FR 10554, Dec. 24, 1957, as amended at 35 FR 10005, June 18, 1970. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 117.29  Sale of improvements.

    The superintendent may approve the sale of improvements on 
restricted Indian lands when such improvements are appraised at not more 
than $500 and when the owner has submitted a written request that the 
sale be made and a statement that the improvements can no longer be used 
by him. The proceeds of all such sales shall be deposited to the credit 
of the Indian as surplus funds. Improvements consisting of buildings, 
etc., located on property within the Osage villages of Pawhuska, Hominy, 
and Grayhorse may, upon approval of the superintendent, be disposed of 
to other Osage Indians. The superintendent may disburse the surplus 
funds of the purchaser to consummate the transaction. Sale of such 
improvements to non-Indian or non-Osage Indians must be approved by the 
Commissioner.



Sec. 117.30  Sale of personal property.

    The superintendent may approve the sale of restricted personal 
property other than livestock. The superintendent may also approve the 
sale of livestock when authorized so to do by special or general 
instructions from the Commissioner. The proceeds from the sale of 
personal property other than livestock shall be deposited to the credit 
of the Indian as surplus funds unless the surplus funds from which said 
property was purchased have been reimbursed from allowance funds, in 
which case the proceeds from such sale shall be disbursed as allowance 
funds. If partial reimbursement only has been made, such portion of the 
proceeds of sale as may be necessary to complete the reimbursable 
agreement shall be deposited to the credit of the Indian as surplus 
funds and the balance, if any, shall be disbursed as allowance funds. 
The proceeds from the sale of livestock shall be deposited in conformity 
with general or specific instructions from the Commissioner.



Sec. 117.31  Removal of restrictions from personal property.

    The superintendent may relinquish title to personal property (other 
than livestock) held by the United States in trust for the Indian when 
to do so will enable the Indian to use the property as part payment in 
the purchase of other personal property and when the remainder of the 
purchase price is to be made from other than surplus funds of the 
Indian.



Sec. 117.32  Funds of Indians of other tribes.

    The funds of restricted non-Osage Indians, both adults and minors, 
residing within the jurisdiction of the Osage Agency, derived from 
sources within the Osage Nation and collected through the Osage Agency, 
may be disbursed by the superintendent, subject to the condition that 
all payments to third persons, including taxes and insurance premiums, 
shall be made upon the written authorization of the individual whose 
funds are involved, if an adult, and upon the written authorization of 
the parent or guardian, if a minor. The funds of restricted non-Osage 
Indians who do not reside within the jurisdiction of the Osage Agency 
shall be transferred to the superintendent of the jurisdiction within 
which the Indian resides, to be disbursed under regulations of the 
receiving agency.



Sec. 117.33  Signature of illiterates.

    An Indian who cannot write shall be required to endorse checks 
payable to his order and sign receipts or other documents by making an 
imprint of the ball of the right thumb (or the left, if he has lost his 
right) after his name. This imprint shall be clear and distinct, showing 
the central whorl and striations and witnessed by two reputable persons 
whose addresses shall be given opposite or following their names. An 
Indian may sign by marking ``X'' before two witnesses where he is

[[Page 365]]

unable to attach his thumb mark for physical reasons.



Sec. 117.34  Financial status of Indians confidential.

    The financial status of Indians shall be regarded as confidential 
and shall not be disclosed except to the owner of the account or his 
authorized agent, unless authorized in advance by the Commissioner.



Sec. 117.35  Appeals.

    Any decision by the superintendent may be appealed to the area 
director, any decision by the area director may be appealed to the 
Commissioner, and any decision by the Commissioner may be appealed to 
the Secretary.



PART 122_MANAGEMENT OF OSAGE JUDGMENT FUNDS FOR EDUCATION--Table of 
Contents




Sec.
122.1 Purpose and scope.
122.2 Definitions.
122.3 Information collection.
122.4 Establishment of the Osage Tribal Education Committee.
122.5 Selection/nomination process for committee members.
122.6 Duties of the Osage Tribal Education Committee.
122.7 Budget.
122.8 Administrative costs for management of the fund.
122.9 Annual report.
122.10 Appeal.
122.11 Applicability.

    Authority: 86 Stat. 1295, 98 Stat. 3103 (25 U.S.C. 331 note).

    Source: 54 FR 34155, Aug. 18, 1989, unless otherwise noted.



Sec. 122.1  Purpose and scope.

    (a) The purpose of this part is to set forth procedures and 
guidelines to govern the use of authorized funds in education programs 
for the benefit of Osage Tribal members, along with application 
requirements and procedures used by those eligible persons.
    (b) The Osage Tribe by act of Congress, October 27, 1972 (25 U.S.C. 
883, 86 Stat. 12950, as amended by Pub. L. 98-605) on October 30, 1984, 
provides that $1 million, together with other funds which revert to the 
Osage Tribe, may be advanced, expended, invested, or reinvested for the 
purpose of financing an education program of benefit to the Osage Tribe 
of Indians of Oklahoma, with said program to be administered as 
authorized by the Secretary of the Interior.



Sec. 122.2  Definitions.

    Act means Osage Tribe by Act of Congress, October 27, 1972 (25 
U.S.C. 883, 86 Stat. 1295), as amended by Pub. L. 98-605.
    Allottee means a person whose name appears on the roll of Osage 
Tribe of Indians approved by the Secretary of the Interior on April 11, 
1908, pursuant to the Act of June 28, 1906 (34 Stat. 539).
    Assistant Secretary means the Assistant Secretary--Indian Affairs.
    Osage Tribal Education Committee means the committee selected to 
administer the provisions of this part as specified by Sec. 122.6.
    Reverted funds means the unpaid portions of the per capita 
distribution fund, as provided by the Act, which were not distributed 
because the funds were:
    (1) Unclaimed within the period specified by the Act; or
    (2) For an amount totaling less than $20 due an individual from one 
or more shares of one or more Osage allottees.
    Secretary means the Secretary of the Department of the Interior or 
his/her authorized representative.



Sec. 122.3  Information collection.

    (a) The information collection requirements contained in Sec. Sec. 
122.6 and 122.9 have been approved by the Office of Management and 
Budget under U.S.C. 3501 et seq. and assigned clearance numbers 1076-
0098 and 1076-0106, respectively. The information collected in Sec. 
122.6 is used to determine the eligibility of Osage Indian student 
applicants for educational assistance grants. The information collected 
in Sec. 122.9 provides summary review for program evaluation and 
program planning. Response to the information collections is required to 
obtain a benefit in accordance with 25 U.S.C. 883.
    (b) Public reporting burden for this information collection is 
estimated to average 30 minutes per response, including the time for 
reviewing instructions, searching existing data sources,

[[Page 366]]

gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Bureau of Indian 
Affairs, Information Collection Clearance Officer, Room 337 SIB, 18th & 
C Streets, NW., Washington, DC 20240; and the Office of Management and 
Budget, Paperwork Reduction Project (1076-0106), Washington DC 20503.



Sec. 122.4  Establishment of the Osage Tribal Education Committee.

    (a) The Osage Tribe, to maintain its right of Tribal autonomy, 
shall, at the direction of the Bureau of Indian Affairs, establish the 
Osage Tribal Education Committee (OTEC) to fulfill the responsibilities 
and provisions of this part as set out in Sec. 122.6.
    (b) This committee shall be composed of seven (7) members. Five (5) 
of the members shall be of Osage blood or descendents of Osage, and two 
(2) from the education staff of the Bureau of Indian Affairs.
    (1) Of the five Osage members, at least three shall be legal 
residents and/or live within a 20-mile radius of one of the three Osage 
Indian villages. Of these, at least one member shall reside within the 
specified radius of the Pawhuska Indian village; at least one member 
shall reside within the specified radius of the Hominy Indian village; 
and at least one member shall reside within the specified radius of the 
Greyhorse Indian village.
    (2) The two remaining Osage committee members will be members at 
large.



Sec. 122.5  Selection/nomination process for committee members.

    (a) Selection of the five (5) OTEC members shall be made by the 
Assistant Secretary in accordance with the following:
    (1) Any adult person of Osage Indian blood who is an allottee or a 
descendant of an allottee is eligible to serve on the Osage Tribal 
Education Committee.
    (2) Nominees for committee membership shall include a brief 
statement of interest and qualifications for serving on the committee.
    (b) Nominations may be made by any Osage organization, including the 
Osage village communities of Greyhorse, Hominy and Pawhuska, by 
requesting its candidates to follow procedures outlined in paragraph 
(a)(2) of this section.
    (c) Nominations shall be delivered by registered mail to the 
following address: Osage Tribal Education Committee, c/o Area Education 
Programs Administrator, Bureau of Indian Affairs, Muskogee Area Office--
Room 152, 5th & W, Okmulgee, Muskogee, Oklahoma 74401.
    (d) A Nominee Selection Committee composed of OTEC members so 
designated by the Assistant Secretary will review all nominations. Upon 
completion of this process, the Nominee Selection Committee will forward 
its recommendations for final consideration to the Assistant Secretary.
    (e) Each member shall be sworn in for a four year term. At the 
discretion of the Assistant Secretary, members may succeed themselves 
with a recommendation for reappointment from the Nominee Selection 
Committee.
    (f) The Assistant Secretary may, until a vacancy is filled, appoint 
an individual to serve for a temporary period not to exceed 120 days.



Sec. 122.6  Duties of the Osage Tribal Education Committee.

    (a) For the purpose of providing financial assistance to eligible 
Osage applicants for educational assistance, the Osage Tribal Education 
Committee shall maintain an office and retain all official records at 
the Bureau of Indian Affairs offices located at the Federal Building, 
Muskogee, Oklahoma.
    (b) The Osage Tribal Education Committee shall be responsible for 
implementing an overall plan of operation consistent with the policy of 
Indian self-determination which incorporates a systematic sequential 
process whereby all student applications for financial aid are rated and 
ranked simultaneously to enable a fair distribution of available funds.
    (1) All applicants shall be rated by a point system appropriate to 
applications for education assistance. After all

[[Page 367]]

applications are rated, the Osage Tribal Education Committee will rank 
the applications in a descending order for award purposes. No awards 
shall be made until all applications are rated against the point system.
    (2) Monetary awards shall be for fixed amounts as determined by the 
Osage Tribal Education Committee. The fixed amounts shall be itemized in 
the committee's annual budgetary request, and the monetary award amounts 
shall be consistent with the fixed amounts itemized in the approved 
budget.
    (3) Payment of the monetary awards shall be made directly to the 
student, with half of the amount payable on or before September 15 and 
the second half payable on or before February 15, provided the student 
is successfully enrolled in an accredited institution of higher 
education and meeting the institution's requirement for passing work.
    (4) No student will be funded beyond 10 semesters or five academic 
years, not to include summer sessions, nor shall any student with a 
baccalaureate degree be funded for an additional undergraduate degree.



Sec. 122.7  Budget.

    (a) By August 1 of each year, the Osage Tribal Education Committee 
will submit a proposed budget to the Assistant Secretary or to his/her 
designated representative for formal approval. Unless the Assistant 
Secretary or his/her designated representative informs the committee in 
writing of budget restrictions by September 1, the proposed budget is 
considered to be accepted.
    (b) The investment principal, composed of the one million dollars 
appropriated by the Act and reverted funds, must be invested in a 
federally insured banking or savings institution or invested in 
obligations of the Federal Government. There are no provisions in this 
part which shall limit the right of the Osage Tribal Education Committee 
to withdraw interest earned from the investment principal; however, 
expenditures shall be made against only the interest generated from 
investment principal and reverted funds.
    (c) All funds deposited will accumulate interest at a rate not less 
than that generally available for similar funds deposited at the same 
banking or savings institution or invested in the same obligations of 
the United States Government for the same period of time.



Sec. 122.8  Administrative costs for management of the fund.

    Funds available for expenditures may be used by the Osage Tribal 
Education Committee in the performance of its duties and 
responsibilities. Recordkeeping is required and proposed expenditures 
are to be attached with the August 1 proposed annual budget to the 
Assistant Secretary or his/her designated representative.



Sec. 122.9  Annual report.

    The Osage Tribal Education Committee shall submit an annual report 
on OMB approved Form 1076-0106, Higher Education Annual Report, to the 
Assistant Secretary or his/her designated representative on or before 
November 1, for the preceding 12 month period.



Sec. 122.10  Appeal.

    The procedure for appealing any decision regarding the awarding of 
funds under this part shall be made in accordance with 25 CFR part 2, 
Appeals from Administrative Action.



Sec. 122.11  Applicability.

    These regulations shall cease upon determination of the legal and 
appropriate body to administer the fund and upon the establishment of 
succeeding regulations.



PART 124_DEPOSITS OF PROCEEDS FROM LANDS WITHDRAWN FOR NATIVE SELECTION
--Table of Contents




Sec.
124.1 What is the purpose of this part?
124.2 Who should an agency or the State of Alaska contact for 
          information?

    Authority: 43 U.S.C. 1601 et seq.; Pub. L. 92-203, 85 Stat. 688; 25 
U.S.C. 4001 et seq.; Pub L. 103-402, 108 Stat. 4239.

    Source: 70 FR 40661, July 14, 2005, unless otherwise noted.

[[Page 368]]



Sec. 124.1  What is the purpose of this part?

    This part provides contact information on depositing proceeds from 
contracts, leases, permits, rights-of-way, or easements pertaining to 
lands withdrawn for Native selection under the Alaska Native Claims 
Settlement Act. All Federal agencies and the State of Alaska must use 
this part when making deposits of this type.



Sec. 124.2  Who should an agency or the State of Alaska contact for 
information?

    When a Federal agency or the State of Alaska receives proceeds 
covered by this part, it must deposit the proceeds to the credit of the 
United States Department of the Interior, Office of the Special Trustee 
for American Indians. For further information including depositing 
instructions, contact: Office of the Special Trustee for American 
Indians, Attention: Division of Trust Funds Accounting, 4400 Masthead 
Street NE., Albuquerque, New Mexico 87109.



PART 134_PARTIAL PAYMENT CONSTRUCTION CHARGES ON INDIAN IRRIGATION 
PROJECTS--Table of Contents




Sec.
134.1 Partial reimbursement of irrigation charges; 5 percent per annum 
          of cost of system, June 30, 1920.
134.2 Landowners financially unable to pay.
134.3 Period for payments extended.
134.4 Annual payment reduced.
134.4a Assessment and collection of additional construction costs.
134.5 Payments to disbursing officer.
134.6 ``Owner'' defined.
134.7 Modifications.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. 
Interpret or apply sec. 1, 41 Stat. 409; 25 U.S.C. 386.

    Source: 22 FR 10643, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 134.1  Partial reimbursement of irrigation charges; 5 percent 
per annum of cost of system, June 30, 1920.

    In pursuance of the act of February 14, 1920 (41 Stat. 409; 25 
U.S.C. 386), regulations governing partial payment of construction 
charges on Indian irrigation projects, with the exception of certain 
ones mentioned therein, where approved by the Department June 21, 1920, 
and require that each owner of irrigable land under any irrigation 
system constructed for the benefit of Indians under provisions of law 
requiring reimbursement of the cost of such system and to which land, 
water for irrigation purposes can be delivered from such system, shall 
pay, on or before November 15, 1920, a sum equal to 5 percent of the per 
acre cost, as of June 30, 1920, of the construction of the system under 
which such land is situated. The per acre cost of a given system as of 
June 30, 1920, shall be determined by dividing the total amount expended 
for construction purposes on such system up to that day by the total 
area of land to which water for irrigation purposes can be delivered on 
that date; and on November 15 of each year following the year 1920, 
until further notice, the land owners, as therein prescribed, shall pay 
5 percent of the per acre construction cost as of June 30, of the 
current year, such per acre cost to be determined by dividing the cost 
of the system to June 30 of that year by the total area of land to which 
water for irrigation purposes can be delivered from the system on that 
date. Provision is contained that no payments shall be required under 
the regulations in behalf of lands still in process of allotment or 
prior to the issuance of the first or trust patent therefor, nor for 
lands reserved for school, agency, or other administrative purposes 
where the legal title still remains in the United States.



Sec. 134.2  Landowners financially unable to pay.

    Considerable difficulty has been encountered in collecting charges 
under the regulations in this part owing to the fact that Indians have 
been financially unable to pay the charges, the result being that the 
construction charges have accrued against the lands and in cases where 
the land is sold for the benefit of the allottee or his heirs under the 
regulations, the purchaser is to pay the accrued and future irrigation 
charges which make it difficult in some instances, to sell the land at 
as favorable terms as might otherwise be secured.

[[Page 369]]



Sec. 134.3  Period for payments extended.

    Furthermore, in recent legislation dealing with specific projects in 
the Bureau and also all reclamation projects the policy has been to 
extend the payment of such charges over a longer period of years.



Sec. 134.4  Annual payment reduced.

    In view of these conditions the regulations governing this matter 
are hereby modified so as to distribute the unaccrued installments over 
a period of time so that 2\1/2\ percent of the total amount yet due 
shall be due and payable on November 15 of each year until further 
notice. You shall accordingly ascertain the per acre cost after 
deducting the amount of the accrued charges and take 2\1/2\ percent of 
that amount and a like sum each year so that the amount of the annual 
installments will be the same each year. Superintendents are obligated 
to submit all proposed lists of sales involving allotments containing 
irrigable allotments to the project or supervising engineer for 
checking, as to the irrigable acreage and amounts of unpaid 
construction, operation, and maintenance charges against such 
allotments. Each sale forwarded to the Bureau for action shall be 
accompanied by contract executed on Form 5-462b where irrigable acreage 
is involved and after approval thereof a copy of contract on said form 
shall be sent to the project engineer for his records and the charges 
paid by the purchaser shall be turned over to the disbursing agent for 
credit and deposit as instructed in the next paragraph. The regulations 
in this part shall not apply to lands in the Wapato project, on the 
Yakima Indian Reservation, nor to the irrigation projects on the 
Blackfeet, Fort Peck, Flathead, and Crow Reservations, Montana, for 
which special regulations have been issued nor to the Fort Hall 
Reservation, Idaho, or the San Carlos project, Arizona. \1\
---------------------------------------------------------------------------

    \1\ The special regulations for Wapato, Fort Peck, and Flathead, 
were not codified. Operations of the Blackfeet project were discontinued 
by the Bureau, July 20, 1938, effective September 30, 1933.

    Cross References: For special regulations applying to San Carlos 
project, see part 137 of this chapter. For further information 
concerning Form 5-462b, see part 159 of this chapter.



Sec. 134.4a  Assessment and collection of additional construction costs.

    (a) Upon the completion of the construction of an Indian irrigation 
project, or unit thereof, subsequent to the determination of the partial 
per acre construction assessment rate which was fixed prior to July 1, 
1957, pursuant to Sec. 134.4 the Secretary of the Interior or his 
authorized representative shall determine such additional construction 
cost and distribute that cost on a per acre basis against all of the 
irrigable lands of the project, or unit thereof, and \1/40\th of such 
per acre additional construction cost thus determined shall be assessed 
and collected annually from the non-Indian landowner of the project, or 
unit, thereof. The first installment shall be due and payable on 
November 15 of the year following the completion of such additional 
construction work or, if such additional construction work on the 
project, or unit thereof, has been completed prior to July 1, 1957, and 
the per acre annual rate determined, the first installment of the 
additional construction cost to be repaid by such non-Indian landowners 
shall be due and payable on November 15, 1958. This annual per acre rate 
shall be in addition to, and run concurrently with, the per acre 
construction rate assessed annually under Sec. 134.4.
    (b) Project lands in Indian ownership are not subject to assessment 
for their proportionate share of the per acre construction cost of the 
project, or unit thereof, until after the Indian title to the land has 
been extinguished. At that time the total annual per acre assessment 
rate against non-Indian lands of the project, or unit thereof, shall be 
assessed against the former Indian lands for each and every acre of 
irrigable land to which water can be delivered through the project 
works, beginning on November 15 of the year following the extinguishment 
of the Indian title to the land and on November 15 of each year 
thereafter over a forty year period. In cases where the Indian title to 
project land was extinguished prior to July 1, 1957, the assessment

[[Page 370]]

rate shall be due and payable on November 15, 1958.



Sec. 134.5  Payments to disbursing officer.

    Payments under this part shall be made to the disbursing officer for 
the supervising engineer of the Indian Irrigation Service having 
jurisdiction over the irrigation system under which the land for which 
payment is made may lie. The sum so collected will then, after proper 
credit has been made to the land for which collected, be deposited in 
the Treasury of the United States to the credit of the respective funds 
used in constructing irrigation systems toward which reimbursement shall 
have been made.



Sec. 134.6  ``Owner'' defined.

    The word ``owner'' as used in this part shall be construed to 
include any person, Indian or white, or any firm, partnership, 
corporation, association, or other organization to whom title to the 
land capable of irrigation, as provided in the act of February 14, 1920 
(41 Stat. 409; 25 U.S.C. 386), has passed, either by fee or trust 
patent, or otherwise.



Sec. 134.7  Modifications.

    The act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a), cancelled 
all irrigation assessments for construction costs against lands in 
Indian ownership which were unpaid at that date and deferred all future 
assessments for construction costs until the Indian title to the land 
shall have been extinguished.



PART 135_CONSTRUCTION ASSESSMENTS, CROW INDIAN IRRIGATION PROJECT--Table 
of Contents




      Subpart A_Charges Assessed Against Irrigation District Lands

Sec.
135.1 Contracts.
135.2 Annual rate of assessments.
135.3 Annual assessments.
135.4 Time of payment.
135.5 Penalty.
135.6 Refusal of water delivery.

 Subpart B_Charges Assessed Against Non-Indian Lands Not Included in an 
                           Irrigation District

135.20 Private contract lands; assessments.
135.21 Time of payment.
135.22 Penalty.
135.23 Refusal of water delivery.

    Authority: Sec. 15, 60 Stat. 338.

    Source: 22 FR 10644, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



      Subpart A_Charges Assessed Against Irrigation District Lands



Sec. 135.1  Contracts.

    Under provisions of the act of Congress approved June 28, 1946 (60 
Stat. 333-338), contracts were executed June 28, 1951, by the United 
States with the Lower Little Horn and Lodge Grass Irrigation District 
and the Upper Little Horn Irrigation District providing for the payment, 
over a period of 40 years, by each of the Districts of its respective 
share of the sum of $210,726 expended for the construction of the Willow 
Creek storage works on account of non-Indian lands within the Districts 
entitled to share in the storage water, directly or by substitution.



Sec. 135.2  Annual rate of assessments.

    Within the Lower Little Horn and Lodge Grass Irrigation District 
there are 3,196.8 acres for which the District is obligated by contract 
to pay its proper share of the total construction costs. Within the 
Upper Little Horn Irrigation District there are 1,554.7 acres for which 
the District is obligated by contract to pay its proper share of the 
total construction costs. There are 3,237.6 acres, more or less, covered 
by contracts with private landowners, obligating such owners to pay 
their proper share of such construction costs. The total per acre charge 
against all such lands is $26.38. This amounts to an annual per acre 
rate of $0.6595. For the purpose of this notice the annual per acre rate 
is hereby fixed at $0.66. This annual per acre rate of assessment will 
continue for a 40-year period within which the total amount of 
construction costs of $210,726 is to be repaid without

[[Page 371]]

interest. The amount of each annual installment chargeable against each 
of the Districts for the acreage covered by their respective contracts 
shall be determined by multiplying the total acreage, under each 
contract entitled to Willow Creek storage rights, either directly or by 
subsituation, by the per acre annual rate.



Sec. 135.3  Annual assessments.

    Notice is hereby given of an annual assessment of $2,108.05 to be 
repaid by the Lower Little Horn and Lodge Grass Irrigation District for 
the 3,196.8 acres of irrigable land of the District, and an annual 
assessment of $1,025.06 to be repaid by the Upper Little Horn Irrigation 
District for the 1,554.7 acres of irrigable land of the District. 
Against the amounts due annually by the Districts under this notice, 
there shall be allowed any credits due under section 6 of the act of 
June 28, 1946. Credits due on behalf of any land shall be reflected by 
the respective Districts when placing against such land the annual 
assessment on the tax rolls.



Sec. 135.4  Time of payment.

    Annual assessments shall be paid by the Districts to the United 
States, one-half thereof on or before February 1 and one-half thereof on 
or before July 1 following, of each year commencing with the calendar 
year 1952.



Sec. 135.5  Penalty.

    To all assessments not paid on the due date, there shall be added a 
penalty of one-half of one percent per month or fraction thereof, from 
the due date so long as the delinquency continues.



Sec. 135.6  Refusal of water delivery.

    The right is reserved to the United States to refuse the delivery of 
water to each of the said Irrigation Districts in the event of default 
in the payment of assessments, including penalties on account of 
delinquencies.



 Subpart B_Charges Assessed Against Non-Indian Lands Not Included in an 
                           Irrigation District



Sec. 135.20  Private contract lands; assessments.

    In addition to 4,751.5 acres of non-Indian land included within the 
two irrigation Districts dealt with in subpart A, there are 3,237.6 
acres of land, more or less, in non-Indian ownership under private 
ditches, covered by repayment contracts executed pursuant to the act of 
June 28, 1946 (60 Stat. 333-338), obligating such owners to pay their 
proper share of such construction costs. The total per acre charge 
against all such lands is $26.38. This amounts to an annual per acre 
rate of $0.6595. For the purposes of this notice the annual per acre 
rate is hereby fixed at $0.66. This annual rate of assessment will 
continue for a 40-year period within which the total amount of 
construction cost of $210,726 is to be repaid without interest. The 
amount of each annual installment chargeable against the lands covered 
by each of the several contracts with individual landowners whose lands 
are served under private ditches, shall be determined by multiplying the 
total acreage, under each contract entitled to Willow Creek storage 
rights, either directly or by substitution, by the per acre annual rate. 
Against the amounts due annually by the individual landowners whose 
lands are served by private ditches, under this notice there shall be 
allowed any credits due under section 6 of the act of June 28, 1946. 
Credits due on behalf of any land shall be reflected in any statement 
submitted to the landowners.



Sec. 135.21  Time of payment.

    The amount of each annual installment, payable under the private 
landowner contracts, determined as provided in this part shall be paid 
by the landowners to the United States, on or before November 15 of each 
year commencing with the calendar year 1951.



Sec. 135.22  Penalty.

    To all assessments not paid on the due date there shall be added a 
penalty

[[Page 372]]

of one-half of one percent per month or fraction thereof, from the due 
date so long as the delinquency continues.



Sec. 135.23  Refusal of water delivery.

    The right is reserved to refuse the delivery of water to any 
landowner in the event of default in the payment of assessments, 
including penalties on account of delinquencies.



PART 136_FORT HALL INDIAN IRRIGATION PROJECT, IDAHO--Table of Contents




Sec.
136.1 Repayment contracts.
136.2 Construction costs.
136.3 Repayment of construction costs.

    Authority: Sec. 9, 46 Stat. 1063.

    Source: 22 FR 10645, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 136.1  Repayment contracts.

    A rehabilitation program was established on the Fort Hall Unit of 
the Fort Hall Project in 1936. Based upon the estimated construction 
costs, contracts were signed by all non-Indian landowners within the 
project, including such landowners within the Little Indian Unit, now a 
part of the Fort Hall Unit. Under the terms of their contracts, the 
landowners agreed to repay to the Government their pro rata share, on an 
acreage basis, of all expenditures for construction and other necessary 
improvements for carrying out the approved program, payments not to 
exceed $7.50 per acre, based upon an estimated expenditure of 
$450,000.00 for a project then considered as covering approximately 
60,000 acres.



Sec. 136.2  Construction costs.

    The program of rehabilitation has now been completed at a cost of 
$419,186.52. This amount, chargeable on an equal per acre basis against 
60,000 acres, amounts to a rate of $6.986 per acre, which rate is hereby 
determined to be the per acre cost to be repaid to the United States 
under the 1936 contracts.



Sec. 136.3  Repayment of construction costs.

    Under the terms of the contracts, the landowners agreed to repay the 
construction cost in forty (40) equal annual installments. Therefore, 
the annual per acre installment is hereby fixed at seventeen and one-
half cents (17\1/2\ cents) per acre, due and payable on December 1st of 
each year, the first payment being due on December 1, 1955. Under 
section 4 of the repayment contracts of the landowners and the act of 
March 10, 1928 (45 Stat. 210), the charges remain a lien against the 
lands until paid.



PART 137_REIMBURSEMENT OF CONSTRUCTION COSTS, SAN CARLOS INDIAN 
IRRIGATION PROJECT, ARIZONA--Table of Contents




Sec.
137.1 Water supply.
137.2 Availability of water.
137.3 Construction charges.
137.4 Future charges.
137.5 Construction costs limited.
137.6 Power development.
137.7 Private ownership defined.
137.8 Indian lands excluded.

    Authority: Sec. 5, 43 Stat. 476.

    Source: 22 FR 10645, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 137.1  Water supply.

    The engineering report dealt with in section 1 of the act of June 7, 
1924 (43 Stat. 475) and other available records show that the storage 
capacity of the San Carlos reservoir created by the Coolidge Dam and the 
water supply therefor over a period of years will provide for the 
irrigation of only 80,000 acres of lands in Indian and public or private 
ownership within the San Carlos irrigation project, the balance of the 
water supply needed for the additional 20,000 acres of the project to be 
provided for by recaptured and return flow water and by means of pumping 
the underground supply. The cost of providing the proposed supply and of 
operating the works for this latter acreage to be equally distributed 
over the entire 100,000 acres of the project regardless of where the 
works are placed and operated.

[[Page 373]]



Sec. 137.2  Availability of water.

    Pursuant to section 3 of the act of June 7, 1924 (43 Stat. 475), 
requiring the Secretary of the Interior by public notice to announce 
when water is actually available for lands in private ownership under 
the project and the amount of the construction charges per irrigable 
acre against the same which charges shall be payable in annual 
installments as provided for therein, this public notice, of which Sec. 
137.1 is made a part hereof, is hereby given:
    The date when a reasonable water supply is actually available for 
lands in private ownership under the San Carlos irrigation project is 
hereby declared to be the 1st day of December 1932.



Sec. 137.3  Construction charges.

    Each acre of land in private ownership of said project is hereby 
charged with $95.25 of construction cost assessable thereto at the date 
hereof (Dec. 1, 1932), which sum is based upon 50,000 acres of such 
privately owned lands, making a total charge or assessment due from the 
owners thereof of $4,762,250 on this date (Dec. 1, 1932), excluding the 
cost of operation and maintenance for the calendar year of 1933 which 
may be carried into construction cost as provided for by section 3 of 
the act of June 7, 1924 (43 Stat. 476), and also excluding interest at 
the rate of 4 percent which is charged against such lands by said act. 
Of the 50,000 acres constituting the lands in private ownership within 
the said project only 46,107.49 acres have at this date (Dec. 1, 1932) 
actually been designated as coming within the project. Should this 
present designated area be not increased within a reasonable time 
herefrom and prior to the due date of the first installment of the 
charge fixed in this section, namely, on December 1, 1935, so as to 
bring the total designated area up to the 50,000 acres, the per acre 
charge fixed in this section shall be proportionately increased against 
the then designated area so as to assure reimbursement of the total 
indebtedness due the Government by the owners of the lands in private 
ownership from the lesser designated acreage.



Sec. 137.4  Future charges.

    The payment of said construction cost and costs of future operation 
and maintenance of said project as provided for in said section 3 of the 
act of June 7, 1924 (43 Stat. 476), as supplemented or amended and such 
contingent project liabilities which may be incurred in accordance with 
the provisions of said repayment contract shall be made in accordance 
with the provisions of said act of June 7, 1924, as supplemented or 
amended and the repayment contract by and between the San Carlos 
irrigation and drainage district and the Secretary of the Interior 
bearing date of June 8, 1931; the said construction cost incurred 
subsequent to this public notice assessable against the lands in private 
ownership and costs of operation and maintenance assessed against such 
privately owned lands within the project for the first year after this 
public notice to be included in the construction cost and such 
contingent project liabilities which may be incurred in accordance with 
provisions of the repayment contract shall also be repaid to the 
Government pursuant to the terms of said act of June 7, 1924, as 
supplemented or amended, and the repayment contract and this public 
notice.



Sec. 137.5  Construction costs limited.

    The repayment contract \1\ with the San Carlos irrigation and 
drainage district, page 13 thereof, contains the following:
---------------------------------------------------------------------------

    \1\ Contract available at the Bureau of Indian Affairs, Washington, 
D.C.

    In accordance with the foregoing the costs of the San Carlos project 
as fixed by the public notice to be issued as aforesaid, unless further 
sums shall be agreed to by the Secretary of the Interior and the 
district after the execution of this instrument, may amount to but shall 
not exceed the sum of $9,556,313.77, except that said total may be 
exceeded by the inclusion of any sums expended to safeguard the project 
as hereinabove provided for, and any sums expended on account of 
contingent liabilities as in the next paragraph hereof provided.
    The foregoing and subsequent statements of project costs, the 
district's shares of which are to be repaid hereunder, unless otherwise 
provided by Congress more favorably to the lands of the project, may be 
increased

[[Page 374]]

by the addition of sums not now fixed as project charges but which 
possibly constitute contingent project liabilities incurred after the 
date of the San Carlos Act of June 7, 1924 (43 Stat. 476), or incurred 
on account of the Florence-casa Grande project, and so may become 
project charges by the judgment of courts of competent jurisdiction or 
of other proper authority.
    The limitations therein fixed has approximately been reached, there 
remaining but $32,815.02 yet to be expended on project works before 
reaching that limitation. Upon the expenditure of this additional sum 
there shall be no further expenditures of funds for construction, 
operation and maintenance of the San Carlos project so far as the 
private lands are concerned until the San Carlos irrigation and drainage 
district shall, through appropriate action, authorize pursuant to the 
terms of the said repayment contract such additional expenditures. This 
limitation does not apply to project expenditures for the extension of 
the distributing and pumping system regardless of where they may arise. 
This class of expenditures being excepted from the limitation on 
expenditures contained in the said repayment contract by section 14, 
page 10, thereof, which section is known as the ``Equalization of 
Expenditures.''



Sec. 137.6  Power development.

    The cost of the power development at the Coolidge Dam is hereby 
fixed at $735,000. The net revenues derived from the operation of this 
power development shall be disposed of as required by the terms and 
conditions of the act of March 7, 1928 (45 Stat. 210) as supplemented or 
amended.



Sec. 137.7  Private ownership defined.

    The term ``private ownership'' used in this public notice includes 
all lands of the San Carlos irrigation project that have or may be 
designated by the Secretary of the Interior that are situated outside of 
the boundaries of the Gila River Indian Reservation.



Sec. 137.8  Indian lands excluded.

    This public notice, with the exception of that part dealing with 
payment in advance each year of operation and maintenance charges 
against lands in Indian ownership operated under lease, does not apply 
in so far as payments are concerned to Indian lands within the project. 
The act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a) defers the 
collection of construction costs from Indian owned lands so long as the 
title to such lands remains in the Indian ownership.



PART 138_REIMBURSEMENT OF CONSTRUCTION COSTS, AHTANUM UNIT, WAPATO 
INDIAN IRRIGATION PROJECT, WASHINGTON--Table of Contents




Sec.
138.1 Construction costs and assessable acreage.
138.2 Repayment of construction costs.
138.3 Payments.
138.4 Deferment of assessments on lands remaining in Indian ownership.
138.5 Assessments after the Indian title has been extinguished.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385.

    Source: 22 FR 10646, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 138.1  Construction costs and assessable acreage.

    The construction program has been completed on the Ahtanum Unit of 
the Wapato Indian Irrigation Project and the construction costs have 
been established as $79,833.64. The area benefited by this development 
has been established at 4,765.2 acres. Under the requirements of the 
acts of February 14, 1920 (41 Stat. 409) and March 7, 1928 (45 Stat. 
210), these costs are to be repaid to the United States Treasury by the 
owners of the lands benefited.



Sec. 138.2  Repayment of construction costs.

    The cost per acre under Sec. 138.1 is, therefore, established at 
$16.7535. Under the provisions of the acts of February 14, 1920 (41 
Stat. 409) and March 7, 1928 (45 Stat. 210) is based on forty equal 
annual payments, the annual per acre assessment is hereby fixed at $0.42 
per acre for the year 1957 and each succeeding year until the entire 
cost for each tract shall have been repaid to the United States 
Treasury. On those tracts where payments have been made pursuant to part 
134 of this chapter, annual assessments beginning with the year 1957 at 
the rate of $0.42 per acre will be made until the entire cost of 
$16.7535 per acre shall have been repaid

[[Page 375]]

to the United States Treasury. Landowners may pay at any time the total 
of the then remaining indebtedness. Under the act of March 10, 1928 (45 
Stat. 210) the unpaid charges stand as a lien against the lands until 
paid.

[22 FR 10646, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 138.3  Payments.

    Payments are due on December 31 of each year and shall be made to 
the official in charge of collections for the project.



Sec. 138.4  Deferment of assessments on lands remaining in Indian 
ownership.

    In conformity with the act of July 1, 1932 (47 Stat. 564); 25 U.S.C. 
386(a) no assessment shall be made on behalf of construction costs 
against Indian-owned land within the project until the Indian title 
thereto has been extinguished.



Sec. 138.5  Assessments after the Indian title has been extinguished.

    Indian-owned lands passing to non-Indian ownership shall be assessed 
for construction costs and the first assessment shall be due on December 
31 of the year that Indian title is extinguished. Assessments against 
this land will be at the annual rate of $0.42 per acre and shall be due 
as provided in Sec. 138.3, and payable promptly thereafter until the 
total construction cost of $16.7535 per acre chargeable against the land 
has been paid in full.



PART 139_REIMBURSEMENT OF CONSTRUCTION COSTS, WAPATO-SATUS UNIT, WAPATO 
INDIAN IRRIGATION PROJECT, WASHINGTON--Table of Contents




Sec.
139.1 Construction costs and assessable acreage.
139.2 Repayment of construction costs.
139.3 Payments.
139.4 Deferment of assessments on lands remaining in Indian ownership.
139.5 Assessments after the Indian title has been extinguished.

    Authority: Sec. 1, 41 Stat. 409, 45 Stat. 210; 25 U.S.C. 386, 387.

    Source: 28 FR 6536, June 26, 1963, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 139.1  Construction costs and assessable acreage.

    The construction program has been completed on the Wapato-Satus Unit 
of the Wapato Indian Irrigation Project, and the construction costs have 
been established by Designation Report dated August 1962 as 
$7,903,823.12 for the project and $1,499,073.62 for the ``B'' lands 
share of the construction costs in the Bureau of Reclamation reservoirs 
on the Yakima River. The area benefited by this development has been 
established at 136,559.59 acres divided into 79,025.68 acres of ``A'' 
land and 57,533.91 acres of ``B'' land. Under the requirements of the 
acts of February 14, 1920 (41 Stat. 409), and March 7, 1928 (45 Stat. 
210), these costs are to be repaid to the U.S. Treasury by the owners of 
the lands benefited.



Sec. 139.2  Repayment of construction costs.

    The cost per acre of the construction under Sec. 139.1 is, 
therefore, calculated at $57.8782 for ``A'' lands and $83.9337 for ``B'' 
lands in non-Indian ownership as established by Designation Report dated 
August 1962. Under the provisions of the acts cited in Sec. 139.1 the 
annual per acre assessment for forty equal annual payments, is hereby 
fixed at $1.45 per acre for ``A'' lands and $2.10 per acre for ``B'' 
lands for the year 1962 and each succeeding year, until the entire cost 
for each tract shall have been repaid to the U.S. Treasury. On those 
tracts where payments have been made pursuant to uncodified special 
regulations, annual assessments beginning with the year 1962 at the rate 
of $1.45 per acre for ``A'' lands and $2.10 per acre for ``B'' lands 
will be made until the entire cost of $57.8782 per acre for ``A'' lands 
and $83.9337 per acre for ``B'' lands shall have been repaid to the U.S. 
Treasury. Landowners may pay at any time the total of the then remaining 
indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the unpaid 
charges stand as a lien against the lands until paid.

[[Page 376]]



Sec. 139.3  Payments.

    Payments are due on December 31 of each year and shall be made to 
the official in charge of collections for the project.



Sec. 139.4  Deferment of assessments on lands remaining in Indian 
ownership.

    In conformity with the act of July 1, 1932 (47 Stat. 564; U.S.C. 
386(a)), no assessment shall be made on behalf of construction costs 
against Indian-owned land within the project until the Indian title 
thereto has been extinguished.



Sec. 139.5  Assessments after the Indian title has been extinguished.

    Indian-owned lands passing to non-Indian ownership shall be assessed 
for construction costs and the first assessment shall be due on December 
31 of the year that the Indian title is extinguished. The construction 
costs against this land will be established as provided by section 5 of 
the act of September 26, 1961 (75 Stat. 680). The annual per acre 
assessment rate will be determined by dividing the established 
construction cost per acre into forty equal payments. ``B'' lands will 
also be assessed for reservoir construction costs in the annual per-acre 
rate as established in the Designation Report dated August 1962. 
Assessments against this land will continue until the entire established 
construction costs shall have been repaid to the U.S. Treasury. 
Landowners may pay at any time the total of the then remaining 
indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the unpaid 
charges stand as a lien against the lands until paid.



PART 140_LICENSED INDIAN TRADERS--Table of Contents




Sec.
140.1 Sole power to appoint.
140.2 Presidential prohibition.
140.3 Forfeiture of goods.
140.5 Bureau of Indian Affairs employees not to contract or trade with 
          Indians except in certain cases.
140.9 Application for license.
140.11 License period.
140.12 License renewal.
140.13 Power to close unlicensed stores.
140.14 Trade limited to specified premises.
140.15 License applicable for trading only by original licensee.
140.16 Trade in annuities or gratuities prohibited.
140.17 Tobacco sales to minors.
140.18 Intoxicating liquors.
140.19 Drugs.
140.21 Gambling.
140.22 Inspection of traders' prices.
140.23 Credit at trader's risk.
140.24 Cash payments only to Indians.
140.25 Trade in antiquities prohibited.
140.26 Infectious plants.

    Authority: Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as amended; 
25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C. 2 and 9, and 
5 U.S.C. 301, unless otherwise noted.

    Cross References: For law and order regulations on Indian 
Reservations, see part 11 of this chapter. For regulations pertaining to 
business practices on Navajo, Hopi and Zuni reservations, see part 141 
of this chapter. For additional regulation of certain employees trading 
with Indians, see 43 CFR part 20.735-28 and 29.

    Source: 22 FR 10670, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 140.1  Sole power to appoint.

    The Commissioner of Indian Affairs shall have the sole power and 
authority to appoint traders to the Indian tribes. Any person desiring 
to trade with the Indians on any reservation may, upon establishing the 
fact, to the satisfaction of the Commissioner of Indian Affairs, that he 
is a proper person to engage in such trade, be permitted to do so under 
such rules and regulations as the Commissioner of Indian Affairs may 
prescribe.



Sec. 140.2  Presidential prohibition.

    The President is authorized, whenever in his opinion the public 
interest may require, to prohibit the introduction of goods, or of any 
particular articles, into the country belonging to any Indian tribe, and 
to direct that all licenses to trade with such tribe be revoked, and all 
applications therefor rejected. No trader shall, so long as such 
prohibition exists, trade with any Indians of or for said tribe.

(R.S. 2132; 25 U.S.C. 263)

[[Page 377]]



Sec. 140.3  Forfeiture of goods.

    Any person other than an Indian of the full blood who shall attempt 
to reside in the Indian country, or on any Indian reservation, as a 
trader, or to introduce goods, or to trade therein, without a license, 
shall forfeit all merchandise offered for sale to the Indians or found 
in his possession, and shall moreover be liable to a penalty of $500: 
Provided, That this section shall not apply to any person residing among 
or trading with the Choctaws, Cherokee, Chickasaws, Creeks, or 
Seminoles, commonly called the Five Civilized Tribes: And provided 
further, That no white person shall be employed as a clerk by any Indian 
trader, except as such trade with said Five Civilized Tribes, unless 
first authorized so to do by the Commissioner of Indian Affairs.

(R.S. 2133, as amended; 25 U.S.C. 264)



Sec. 140.5  Bureau of Indian Affairs employees not to contract or trade 
with Indians except in certain cases.

    (a) Definitions of terms as used in this part:
    (1) Indian means any member of an Indian tribe recognized as 
eligible for the services provided by the Bureau of Indian Affairs who 
is residing on a Federal Indian Reservation, on land held in trust by 
the United States for Indians, or on land subject to a restriction 
against alienation imposed by the United States. The term shall also 
include any such tribe and any Indian owned or controlled organization 
located on such a reservation or land.
    (2) Bureau or the ``Bureau of Indian Affairs'' means the Bureau of 
Indian Affairs and the Office of the Assistant Secretary for Indian 
Affairs, both in the Department of the Interior.
    (3) Employee means an officer, employee, or agent of the Bureau of 
Indian Affairs.
    (4) Secretary means the Secretary of the Interior.
    (5) Contract means any agreement made or under negotiation with any 
Indian for the purchase, transportation or delivery of goods or 
supplies.
    (6) Trading means buying, selling, bartering, renting, leasing, 
permitting and any other transaction involving the acquisition of 
property or services.
    (7) Commercial trading means any trading transaction where an 
employee engages in the business of buying or selling services or items 
which he/she is trading.
    (b) With the exceptions provided in subsection (b) of section 437 of 
title 18 U.S. Code, section 437 provides that whoever, being an officer, 
employee, or agent of the Bureau of Indian Affairs, has (other than as a 
lawful representative of the United States) any interest, in such 
officer, employee, or agent's name, or in the name of another person 
where such officer, employee, or agent benefits or appears to benefit 
from such interest:
    (1) In any contract made or under negotiation with any Indian, for 
the purchase, transportation or delivery of goods or supplies for any 
Indian, or
    (2) In any purchase or sale of any service or real or personal 
property (or any interest therein) from or to any Indian, or colludes 
with any person attempting to obtain any such contract, purchase, or 
sale, shall be fined not more than $5,000 or imprisoned not more than 
six months or both, and shall be removed from office, notwithstanding 
any other provision of law concerning termination from Federal 
employment.
    (c) The further subsections of this section authorize certain 
employees contracting and trading with Indians as authorized by the 
exceptions in section 437 of title 18 U.S. Code. All such contracting 
and trading is subject to the express provision of section 437 that none 
of the sales or purchases so authorized may be made if the purpose of 
any such sale, trade, or purchase is that of commercially selling, 
reselling, trading, or bartering such property.
    (d)(1) Under authority granted by section 437(b)(1) of title 18 U.S. 
Code, employees of the Bureau of Indian Affairs may with the approval of 
an authorized officer of the Bureau, as designated in paragraph (d)(2) 
of this section, purchase from or sell to an Indian any service or any 
real or personal property, not held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, or any interest in such property. In addition, employees may

[[Page 378]]

purchase from Indians without approval from an authorized officer of the 
Bureau any non-trust or unrestricted personal property for home use or 
consumption the value of which property does not exceed $1000. Where the 
purchase or sale price is less than $1,000, employees may also purchase 
motor vehicles for their personal use from Indians or sell their 
personal motor vehicles to Indians without obtaining approval of such 
purchases or sales from an authorized officer of the Bureau. Approval 
must be obtained if the purchase or sale price is $1,000 or more.
    (2) As used in paragraph (d)(1) of this section an authorized 
officer of the Bureau of Indian Affairs for employees on reservations 
and in agencies or in field service units shall be the superintendent or 
other officer in charge of the unit in which the employee is employed. 
The authorized officer for the superintendent or officer in charge is 
his or her immediate supervisor. The authorized officer for employees in 
area offices is the Area Director, and the authorized officer for an 
Area Director is his or her immediate supervisor. The authorized officer 
for employees in the Central Office is the Deputy Assistant Secretary--
Indian Affairs (Operations).
    (e) No employee of the Bureau of Indian Affairs may have any 
interest in any purchase or sale involving property or funds which are 
either held in trust by the United States for Indians or which are 
purchased, sold, utilized, or received in connection with a contract or 
grant to an Indian from the Bureau if such employee is employed in the 
office or installation of the Bureau which recommends, approves, 
executes, or administers such transaction, grant, or contract on behalf 
of the United States, except that, as authorized by section 437(b)(1) of 
title 18 U.S. Code an employee of the Bureau may have such an interest 
if such purchase or sale is approved by an authorized officer of the 
Bureau, as designated in paragraphs (e) (3) to (5) of this section, and 
the conditions in (e) (1) and (2) of this section are satisfied to the 
extent to which they are applicable to the transaction concerned:
    (1) The conveyance or granting of any interest in property held in 
trust or subject to restriction against alienation imposed by the United 
States is otherwise authorized by law.
    (2) Trading by employees with Indians which involves property or 
funds which are either held in trust by the United States or are subject 
to restrictions against alienation imposed by the United States must be 
conducted on the basis of sealed bid or public auction. If the trading 
involves leases or sales of trust or restricted Indian land it must be 
conducted on the basis of sealed bids. Such requirements for sealed bid 
or public auction may only be waived by the Assistant Secretary for 
Indian Affairs on the basis of a full report showing:
    (i) The need for the transaction,
    (ii) The benefits accruing to both parties,
    (iii) That the consideration for the proposed transaction shall be 
not less than the fair market value of the trust or restricted property 
or interest therein, unless the employee is involved in a transaction in 
accordance with Sec. 152.25(c) or (d) or Sec. 162.5(b)(1), (2), or (3) 
of this title or the employee is the recipient of a benefit for tribal 
members for which a uniform charge to all members is made, and
    (iv) An affidavit as follows shall accompany each proposed 
transaction: ``I (name) (title), swear (or affirm) that I have not 
exercised any undue influence nor used any special knowledge received by 
reason of my employment in the Bureau in obtaining the (grantor's, 
purchaser's, vendor's) consent to the instant transaction.''
    (3) The authorized officer of the Bureau for employees employed on 
reservations, in agencies or service units is one who is not a relative 
by blood or marriage of the employee, and is not employed at the 
employee's reservation, agency or service unit. That officer must also 
be employed at not less than one grade level higher than such employee 
at the Washington, District of Columbia, Central Office or at an Area 
Office other than that with authority over the employee's reservation, 
agency, or service unit.
    (4) The authorized officer of the Bureau for employees employed in 
Area offices is one who is not a relative by blood or marriage of the 
employee, is

[[Page 379]]

not employed at the employee's area office, and must be employed at not 
less than one grade level higher than the employee at the Washington, 
District of Columbia, Central Office.
    (5) The authorized officer of the Bureau for employees employed at 
the Washington, District of Columbia, Central Office is the Secretary.
    (f) Except as provided in subsection (b)(2) of section 437 of title 
18 U.S. Code as implemented by this section, nothing in the cited law 
shall be construed as preventing any employee of the Bureau who is an 
Indian, of whatever degree of Indian blood, from obtaining or receiving 
any benefit or benefits made available to Indians generally or to any 
member of his or her particular tribe, under any Act of Congress, nor to 
prevent any such employee who is an Indian from being a member of or 
receiving benefits by reason of his or her membership in any Indian 
tribe, corporation, or cooperative association organized by Indians, 
when authorized under such rules and regulations as the Secretary or 
his/her designee has prescribed or shall prescribe.

[49 FR 25434, June 21, 1984]



Sec. 140.9  Application for license.

    (a) Application for license must be made in writing on Form 5-052, 
setting forth the full name and residence of the applicant; if a firm, 
the firm name and the name of each member thereof; the place where it is 
proposed to carry on the trade; the capital to be invested; the names of 
the clerks to be employed; and the business experience of the applicant. 
The application must be forwarded through the Superintendent to the 
Commissioner of Indian Affairs, accompanied by two satisfactory 
testimonials on Form 2-077 as to the character of the applicant and his 
employees and their fitness to be in the Indian country, and by an 
affidavit of the Superintendent on Form 5-053 that neither he nor any 
person for him has any interest, direct or indirect, present or 
prospective, in the proposed business or the profits arising therefrom, 
and that no arrangement for any benefit to himself or to any other 
person on his behalf is contemplated in case the license is granted. 
Licensed traders will be held responsible for the conduct of their 
employees.
    (b) Itinerant peddlers or purveyors of foodstuffs and other 
merchandise shall be considered as traders and shall obtain a license or 
permit from the Superintendent setting forth the class of trade or 
peddling to be carried on, furnishing such character or credit 
references, or both, as may be required by the Superintendent. The 
period of the license for such itinerant peddlers shall be determined by 
the Superintendent.
    (c) When a license or permit to trade is issued under the 
regulations in this part 140, a fee of $5, payable when the license is 
issued, shall be levied against the licensee.

[30 FR 8267, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 140.11  License period.

    Licenses to trade shall not be issued unless the proposed licensee 
has a right to the use of the land on which the business is to be 
conducted. The license period shall correspond to the period of the 
lease or permit held by the licensee on restricted Indian land, except 
that where the proposed licensee is the owner or beneficial owner or 
holds a use right to the land on which the business is to be conducted, 
the license period shall be fixed by the Commissioner of Indian Affairs 
or his authorized representative, but in no case shall the license 
period exceed 25 years.

[30 FR 8268, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 140.12  License renewal.

    Application for renewal of license must be made to the Commissioner 
of Indian Affairs on Form 5-054, through the superintendent, at least 30 
days prior to the expiration of the existing license, and the 
superintendent must report as to the record the applicant has made as a 
trader and his fitness to continue as such under a new license.



Sec. 140.13  Power to close unlicensed stores.

    If persons carry on trade within a reservation with the Indians 
without a license, or continue to trade after expiration of the license 
without applying for renewal, the superintendent will

[[Page 380]]

immediately report the facts in the case to the Commissioner of Indian 
Affairs, who may, if necessary, direct the superintendent to close the 
stores of such traders.



Sec. 140.14  Trade limited to specified premises.

    No trade with Indians is permitted at any other place than that 
specified in the license. Licenses to not cover branch stores. A 
separate license and bond must be furnished for each such store. The 
business of a licensed trader must be managed by the bonded principal, 
who must habitually reside upon the reservation, and not by an unbonded 
subordinate.



Sec. 140.15  License applicable for trading only by original licensee.

    No trader will be allowed to lease, sublet, rent, or sell any of the 
buildings which he occupies, for any purpose to any other person or 
concern, without the approval of the Commissioner of Indian Affairs. A 
license to trade with Indians does not confer upon the trader any right 
or privileges in respect to the herding or raising of livestock upon the 
reservation. The use of reservation lands, whether tribal or allotted, 
for such purposes can be obtained by a trader only upon the terms and 
under the restrictions which apply to other persons. His license gives 
him no advantage over others in this respect.



Sec. 140.16  Trade in annuities or gratuities prohibited.

    Traders are forbidden to buy, trade for, or have in their possession 
any annuity or other goods of any description which have been purchased 
or furnished by the Government for the use or welfare of the Indians. 
Livestock or their increase purchased by the Government and in 
possession or control of the Indians may not be purchased by any trader, 
not a member of the tribe to which the owners or possessors of the 
cattle belong, except with the written consent of the agent of said 
tribe.



Sec. 140.17  Tobacco sales to minors.

    No trader shall sell tobacco, cigars, or cigarettes to any Indian 
under 18 years of age.



Sec. 140.18  Intoxicating liquors.

    No trader shall use or permit to be used his premises for any 
unlawful conduct or purpose whatsoever. No trader shall use of permit to 
be used any part of his premises for the manufacture, sale, gift, 
transportation, drinking or storage of intoxicating liquors or beverages 
in violation of existing laws relating thereto. Violation of this 
section will subject the trader to criminal prosecution, revocation of 
license and such other action as may be necessary.



Sec. 140.19  Drugs.

    Traders shall not keep for sale, or sell, give away, or use any 
opium, chloral, cocaine, peyote or mescal bean, hashish or Indian hemp 
or marihuana, or any compound containing either ingredient, and for 
violation hereof the trader's license shall be revoked.



Sec. 140.21  Gambling.

    Gambling, by dice, cards, or in any way whatever, is strictly 
prohibited in any licensed trader's store or on the premises.



Sec. 140.22  Inspection of traders' prices.

    It is the duty of the superintendent to see that the prices charged 
by licensed traders are fair and reasonable. To this end the traders 
shall on request submit to the superintendent or inspecting officials 
the original invoice, showing cost, together with a statement of 
transportation charges, retail price of articles sold by them, the 
amount of Indian accounts carried on their books, the total annual 
sales, the value of buildings, livestock owned on reservation, the 
number of employees, and any other business information such officials 
may desire. The quality of all articles kept on sale must be good and 
merchantable.



Sec. 140.23  Credit at trader's risk.

    Credit given Indians will be at the trader's own risk, as no 
assistance will be given by Government officials in the collection of 
debts against Indians. Traders shall not accept pawns or pledges of 
personal property by Indians to obtain credit or loans.

[[Page 381]]



Sec. 140.24  Cash payments only to Indians.

    Traders must not pay Indians in tokens, tickets, store orders, or 
anything else of that character. Payment must be made in money, or in 
credit if the Indian is indebted to the trader.



Sec. 140.25  Trade in antiquities prohibited.

    Traders shall not deal in objects of antiquity removed from any 
historic or prehistoric ruin or monument on land owned or controlled by 
the United States.

    Cross Reference: For regulations pertaining to archaeological 
resources, see part 262 of this chapter. For regulations of the Bureau 
of Land Management regarding antiquities, see 43 CFR part 3.



Sec. 140.26  Infectious plants.

    Traders shall not introduce into, sell, or spread within Indian 
reservations any plant, plant product, seed, or any type of vegetation, 
which is infested, or infected or which might act as a carrier of any 
pests of infectious, transmissible, or contagious diseases, as 
determined by the laws and regulations of the State for plant quarantine 
and pest control. For the purpose of enforcement of this provision State 
officers may enter Indian reservations, with the consent of the 
superintendent, to inspect the premises of such traders and otherwise to 
execute such State laws and regulations.



PART 141_BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI RESERVATIONS
--Table of Contents




            Subpart A_Interpretation and Construction Guides

Sec.
141.1 Purpose.
141.2 Scope.
141.3 Definitions.
141.4 Interpretation and construction.

             Subpart B_Licensing Requirements and Procedures

141.5 Reservation business license required.
141.6 Approval or denial of license application.
141.7 Bond requirement for a reservation business.
141.8 License period for reservation businesses.
141.9 Application for license renewal.
141.10 License fees for reservation businesses.
141.11 Tribal fees, taxes, and enforcement.
141.12 Peddler's permits.
141.13 Amusement company licenses.
141.14 Trade in livestock restricted.
141.15 Consent to jurisdiction of Hopi and Zuni tribal courts.

                  Subpart C_General Business Practices

141.16 Price marking.
141.17 Health and sanitation requirements.
141.18 Availability of employee authorized to transact business.
141.19 Check cashing.
141.20 Payment for purchase of Indian goods or services.
141.21 Trade confined to premises.
141.22 Subleasing prohibited.
141.23 Posted statement of ownership.
141.24 Attendance at semi-annual meetings.
141.25 Withholding of mail prohibited.
141.26 Trade in antiquities prohibited.
141.27 Trade in imitation Indian crafts prohibited.
141.28 Gambling prohibited.
141.29 Political contributions restricted.
141.30 Retaliation prohibited.
141.31 Trade by Indian Affairs employees restricted.

                     Subpart D_Pawnbroker Practices

141.32 Reservation pawnbroker license required.
141.33 Fees for pawnbroker license.
141.34 Pawnbroker records.
141.35 Pawnbroker disclosure requirements.
141.36 Maximum finance charges on pawn transactions.
141.37 Prepayment.
141.38 Pawn loans, period, notice and sale.
141.39 Sale and redemption of pawn.
141.40 Proceeds of sale.
141.41 Refinancing transaction.
141.42 Lost pawn receipts or tickets.
141.43 Outstanding obligations owed to pledgee.
141.44 Insurance on pawn.

         Subpart E_Consumer Credit Transactions Other Than Pawn

141.45 Consumer credit applications.
141.46 Credit disclosure statements.
141.47 Monthly billing statement.
141.48 Translation of disclosure statements.
141.49 Usury prohibited.

          Subpart F_Enforcement Powers, Procedures and Remedies

141.50 Penalty and forfeiture of merchandise.

[[Page 382]]

141.51 Authority to close unlicensed reservation businesses.
141.52 Revocation of license and lease and recovery on bond.
141.53 Cease and desist orders.
141.54 Periodic review of performance.
141.55 Price monitoring and control.
141.56 Show cause procedures.
141.57 Procedures to cancel liability on bond.
141.58 Records, reports, and obligations of reservation business owners.
141.59 Customer complaint procedures.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.

    Source: 40 FR 39835, Aug. 29, 1975, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



            Subpart A_Interpretation and Construction Guides



Sec. 141.1  Purpose.

    The purpose of the regulations of this part is to prescribe rules 
for the regulation of reservation businesses for the protection of 
Indian consumers on the Navajo, Hopi and Zuni Reservations as required 
by 25 U.S.C. 261, 262, 263, and 264.



Sec. 141.2  Scope.

    The regulations of this part apply to all non-members of the Navajo, 
Hopi and Zuni Tribes, who engage in retail businesses on the above 
respective reservations. These regulations do not apply to businesses 
that are wholly owned and operated by either the Navajo, Hopi or Zuni 
Tribes, or by individual tribal members within their respective 
reservations.

[45 FR 64906, Oct. 1, 1980. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.3  Definitions.

    For the purposes of this part--
    (a) Annual percentage rate means the annual percentage rate of 
finance charge determined in accordance with 12 CFR 226.5, which defines 
annual percentage rates.
    (b) Consumer credit transaction means a grant of credit or a loan 
that is made by a person regularly engaged in the business of making 
loans or granting credit primarily for a personal, family, household, or 
agricultural purpose.
    (c) Draft means a writing that is a direction to pay that:
    (1) Identifies the person to pay with reasonable certainty;
    (2) Is signed by the drawer;
    (3) Contains an unconditional order to pay a sum certain in money 
and no other promise, order, obligation or power given by the drawer;
    (4) Is payable on demand or at a definite time; and
    (5) Is payable to order.
    (d) Finance charge means the cost of credit determined in accordance 
with 12 CFR 226.4, which defines ``finance charge''.
    (e) Firm means a corporation or a partnership.
    (f) Gross receipts include the following:
    (1) All cash received from the conduct and operation of the 
licensee's business at the premises described in the application for 
license.
    (2) Receipts from both wholesale and retail transactions.
    (3) Receipts resulting from transactions concluded off the 
reservation that originate from the conduct and operation of the 
licensee's business on the reservation.
    (4) The market value of all property taken in trade on the date when 
received and either held by the licensee for purposes other than resale 
or credited on any account in payment for merchandise.
    (5) Proceeds from the sale of any goods bought from Indians 
regardless of where the sale takes place.
    (6) Finance charge received on loans, but not the return of 
principal.
    (g) Open end credit means consumer credit transactions made on an 
account by a plan under which:
    (1) The creditor may permit the customer to make purchases or obtain 
loans, from time to time, directly from the creditor or indirectly by 
use of a credit card, check, or other device, as the plan may provide;
    (2) The customer has the privilege of paying the balance in full or 
in installments; and
    (3) A finance charge may be computed by the creditor from time to 
time on an outstanding unpaid balance.
    (h) Pawnbroker means a person whose business includes lending money 
secured by personal property deposited with the lender.

[[Page 383]]

    (i) Peddler means a person who offers goods for sale within the 
exterior boundaries of the Hopi, Navajo or Zuni Reservations, but does 
not do business from a fixed location or site on any of those 
reservations.
    (j) Person includes a natural person, a corporation, trust, estate, 
partnership, cooperative or association.
    (k) Replacement value means the present cost to the owner of 
replacing an item with one having the same quality and usefulness.
    (l) Reservation business means a person that engages at a fixed 
location or site within the exterior boundaries of the Navajo, Hopi or 
Zuni Reservations in the sale or purchase of goods or services or in 
consumer credit transactions with Indians and is not a bank, saving 
bank, trust company, savings or building and loan association or credit 
union operating under the laws of the United States or the laws of New 
Mexico, Arizona or Utah, a business on the Hopi Reservation that is 
wholly owned and operated by members of the Hopi Tribe, or a business on 
the Zuni Reservation that is wholly owned and operated by members of the 
Zuni Tribe.



Sec. 141.4  Interpretation and construction.

    (a) Area Director refers to the Area Director of the Bureau of 
Indian Affairs or the Administrator of the Joint Use Area of the Bureau 
of Indian Affairs who has jurisdiction over the land on which a person 
does business or intends to do business with Indians.
    (b) Commissioner refers to the Commissioner of Indian Affairs or a 
person to whom the Commissioner of Indian Affairs has delegated 
authority under this part or under 25 U.S.C. 261, 262, 263, or 264.
    (c) Superintendent refers to the Superintendent of the Bureau of 
Indian Affairs who has jurisdiction over the land on which a person does 
business or intends to do business with Indians.
    (d) Tribe refers to the tribe that has jurisdiction over the land on 
which a person does business or intends to do business with Indians.



             Subpart B_Licensing Requirements and Procedures



Sec. 141.5  Reservation business license required.

    (a) No person may own or lease a reservation business without a 
license issued under the provisions of this subpart.
    (b) The applicant shall apply in writing on a form provided by the 
Commissioner setting forth the following:
    (1) The full name and residence of the applicant.
    (2) Three (3) responsible references.
    (3) The firm name and the name of each member of the board of 
directors if the applicant is a firm.
    (4) Satisfactory evidence as to the character, experience and 
business ability of the applicant and the employees of the applicant.
    (5) Satisfactory evidence of the general fitness of the applicant 
and employees of the applicant to reside on the Indian reservation.
    (c) Upon the request of the Commissioner, the applicant shall 
furnish the following:
    (1) The capital invested or to be invested and, of this, the amount 
of capital owned and the amount borrowed or to be borrowed.
    (2) The name of the lender of any borrowed capital, the date due, 
the rate of interest to be paid, and the names of any endorsers and 
security.
    (3) A copy of any contract or trade agreement whether oral or 
written with creditors or financing individuals or institutions, 
including any stipulations whereby financing fees are to be paid.
    (d) Information that if released might adversely affect the 
competitive position of the applicant shall remain confidential.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.6  Approval or denial of license application.

    (a) The Commissioner shall approve or deny each license application 
and notify the applicant no later than thirty (30) days after receipt of 
a completed application.

[[Page 384]]

    (b) No application is complete until any clearance or tribal council 
approval required by tribal or Federal regulations has been obtained.
    (c) The Commissioner may not deny a license to an applicant for the 
purpose of limiting competition.
    (d) If the application is approved the license shall be issued on a 
form provided by the Commissioner.
    (e) If the Commissioner denies the license application the applicant 
may appeal under the provisions of part 2 of this title no later than 
thirty (30) days after the date on which notice of denial of the 
application was sent.



Sec. 141.7  Bond requirement for a reservation business.

    (a) An applicant for a license or renewal of a license to operate a 
reservation business shall at the time the application is submitted 
furnish a bond on a form provided by the Commissioner in the name of the 
applicant in the amount of ten thousand dollars ($10,000) or such larger 
sum as the Commissioner may designate, with two (2) on more sureties 
approved by the Commissioner or with a guaranty company qualified under 
the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C. 6-13). The bond shall 
be for the same period covered by the license. No licensee may trade 
without a bond. Except as provided in paragraph (d) of this section, no 
surety may be released from liability until the license expires.
    (b) The bond shall be in favor of the United States for the benefit 
of the United States and any customer of the licensee who recovers a 
judgment for damages resulting from violation of any law or regulation 
affecting or relating to reservation businesses. Any customer who 
recovers such a judgment may bring suit on the bond in his or her own 
name. The bond shall be conditioned on payment by the licensee of all 
judgments for damages resulting from violations of the regulations of 
this part.
    (c) Any surety for a reservation business on the Hopi or Zuni 
Reservation shall agree in writing to submit itself voluntarily to the 
jurisdiction of the tribal court for the purpose of adjudicating any 
claim arising under the bond.
    (d) Any surety on the bond of a licensed reservation business may be 
relieved from liabilities by complying with the provisions of Sec. 
141.57 of this title.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.8  License period for reservation businesses.

    A license to operate a reservation business may not be issued unless 
the applicant has a right to use the land on which the business is to be 
conducted. The license period shall correspond to the period of the 
lease held by the licensee. The license period in no event may exceed 
twenty-five (25) years.



Sec. 141.9  Application for license renewal.

    (a) An applicant for renewal of the license to trade shall file an 
application on a form provided by the Commissioner with the Area 
Director not less than three (3) months prior to the expiration of the 
existing license. The Area Director shall report in writing to the 
Commissioner on the record the applicant has made as a reservation 
business owner and the applicant's present fitness to reside on the 
Indian reservation.
    (b) The Commissioner may issue a temporary permit for three (3) 
months pending consideration of application for license renewal.
    (c) Prior to expiration of the existing license or, if issued, the 
temporary permit, the Commissioner shall approve or deny the application 
for license renewal and notify the applicant.
    (d) No license may be renewed until any clearance or tribal council 
approval required by tribal or other federal regulations has been 
obtained.
    (e) If the Commissioner denies the application for renewal, the 
applicant may appeal under the provisions of part 2 of this title.



Sec. 141.10  License fees for reservation businesses.

    (a) Prior to the issuance of an initial license, each licensee who 
is not a member of the Navajo tribe shall pay the following amount:

[[Page 385]]

    (1) If the license is issued before July 1, the licensee shall pay 
fifty dollars ($50).
    (2) If the license is issued on or after July 1, the licensee shall 
pay twenty-five dollars ($25).
    (b) Each licensed business owner who is not a member of the Navajo 
tribe shall pay on or before January 10 of each year an annual license 
fee determined as follows based on the licensee's most recent annual 
report:
    (1) If the licensee's gross receipts are less than one hundred 
thousand dollars ($100,000) for the year or the licensee has not yet 
been required to file its first annual report, the license fee is fifty 
dollars ($50).
    (2) If the licensee's gross receipts for the year are at least one 
hundred thousand dollars ($100,000) but not more than four hundred and 
ninety-nine thousand nine hundred and ninety-nine dollars ($499,999) the 
fee is one hundred dollars ($100).
    (3) If the licensee's gross receipts for the year are at least five 
hundred thousand dollars ($500,000) but not more than seven hundred and 
forty-nine thousand nine hundred and ninety-nine dollars ($749,999), the 
fee is two hundred dollars ($200).
    (4) If the licensee's gross receipts for the year are seven hundred 
fifty thousand dollars ($750,000) or more, the fee is three hundred 
dollars ($300).
    (c) The Navajo Area Director shall determine the annual license fee 
payable by licensees who are enrolled members of the Navajo Tribe. The 
license fee for an enrolled member of the Navajo Tribe may not be less 
than twenty percent (20%) nor greater than one hundred percent (100 
percent) of the amount the licensee would be required to pay if the 
licensee were not a tribal member.
    (d) All fees are payable to the Area Director and shall be deposited 
to the credit of the account ``Special Deposits.''

[40 FR 39835, Aug. 29, 1975, as amended at 59 FR 54502, Oct. 31, 1994]



Sec. 141.11  Tribal fees, taxes, and enforcement.

    (a) The regulations in this part do not preclude the Hopi, Navajo, 
or Zuni tribal councils from assessing and collecting such fees or taxes 
as they may deem appropriate from reservation businesses.
    (b) Nothing in the regulations of this part may be construed to 
preclude tribal enforcement of these regulations or consistent tribal 
ordinances.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.12  Peddler's permits.

    (a) Except as provided in paragraph (b) of this section, no peddler 
may offer goods for sale within the exterior boundaries of the Hopi, 
Navajo, or Zuni reservations without a peddler's permit. The permit 
shall state on its face the class of goods that may be offered for sale. 
No peddler may offer for sale any class of goods other than those listed 
on the face of the permit.
    (b) No peddler who is an enrolled member of a federally recognized 
Indian tribe is required to obtain a peddler's permit for offering to 
sell the following items:
    (1) Coal and wood for non-commercial use,
    (2) Homegrown fresh products,
    (3) Meat products raised locally by the peddler, or
    (4) Arts and crafts made by the peddler or the peddler's family.
    (c) The applicant shall apply for a permit in writing on a form 
provided by the Commissioner.
    (d) Peddlers shall pay such fee and post such surety bond on a form 
provided by the Commissioner as the Commissioner requires. The surety 
bond required may not be less than five hundred dollars ($500) nor more 
than ten thousand dollars ($10,000).
    (e) Any surety on the bond of a peddler may be relieved of liability 
by complying with the provisions of Sec. 141.57.

(25 U.S.C. 261 et seq.)

[43 FR 27826, June 27, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.13  Amusement company licenses.

    (a) No person may operate a portable dance pavilion, mechanical 
amusement device such as a ferris wheel or carousel, or commercial games 
of skill within the exterior boundaries of the

[[Page 386]]

Navajo, Hopi, or Zuni Reservations without a license from the 
Commissioner.
    (b) The licensee shall pay such fee as the Commissioner requires. 
The fee shall be not less than five dollars ($5) nor more than twenty-
five dollars ($25) per unit.
    (c) The licensee shall post a surety bond on a form provided by the 
Commissioner in an amount not exceeding ten thousand dollars ($10,000) 
and a personal injury and property damage liability bond of not less 
than five thousand dollars ($5,000) nor more than fifty thousand dollars 
($50,000) as may be required by the Commissioner.
    (d) The provisions of this section do not apply to amusement 
companies where the contract between the tribe and the amusement company 
provides for the payment of a fee to the tribe and for the protection of 
the public against personal injury and property damage by bond in the 
amounts specified in paragraph (c) of this section.
    (e) Any surety on a bond under this section may be relieved of 
liability by complying with the provisions of Sec. 141.57.



Sec. 141.14  Trade in livestock restricted.

    (a) No person other than an enrolled member of the tribe or any 
association, partnership, corporation or business entity wholly owned by 
enrolled members of the tribe may purchase livestock from tribal members 
without a special permit issued by the Commissioner.
    (b) The Commissioner shall issue a permit to each applicant who 
establishes to the Commissioner's satisfaction that the applicant is a 
fit person to engage in the purchase of livestock and who posts a bond 
on a form provided by the Commissioner in the amount of ten thousand 
dollars ($10,000). This paragraph does not require a person who has 
posted a bond of ten thousand dollars ($10,000) or more under other 
provisions of this part to post an additional bond to obtain a permit 
under this section.
    (c) Any surety on a bond under this section may be relieved of 
liability by complying with the provisions of Sec. 141.57.
    (d) The provisions of this section do not apply to purchases of 
livestock made at an organized public auction.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.15  Consent to jurisdiction of Hopi and Zuni tribal courts.

    As a condition to doing business on the Hopi or the Zuni Reservation 
each applicant for license under this part shall, in accordance with the 
constitutions of those tribes, voluntarily submit the applicant and the 
applicant's employees or agents to the jurisdiction of the tribal court 
for the purpose of the adjudication of any dispute, claim or obligation 
arising under tribal ordinance relating to commerce carried out by the 
licensee.



                  Subpart C_General Business Practices



Sec. 141.16  Price marking.

    The price of each article offered for sale shall be marked on the 
article, its containers or in any other manner that is plain and visible 
to the customer and that affords the customer a reasonable opportunity 
to learn the price of the article prior to purchase.



Sec. 141.17  Health and sanitation requirements.

    (a) Each licensee shall keep both the premises and the place of 
business in a clean and sanitary condition at all times and shall avoid 
exposure of foodstuffs to contamination. No licensee may offer for sale 
any goods that are banned for health or sanitation reasons from retail 
sale by any Federal agency or by the tribe or, where not in conflict 
with the tribal regulations, by the State or by any State agency. No 
licensee may knowingly offer for sale any food that is contaminated.
    (b) All weights and measure shall conform to standards set by the 
National Bureau of Standards and to standards, if any, set by the tribe 
and, if not in conflict with tribal regulations, to the standards set by 
the State.

[[Page 387]]

    (c) If training in foodhandling is available from the Indian Health 
Service, each person working in a reservation business shall complete 
the foodhandler training offered by the Indian Health Service before 
handling any food sold by a reservation business.
    (d) Any person whom the Service Unit Director of the Indian Health 
Service determines is infected with or is a carrier of any communicable 
disease in a stage likely to be communicable to persons exposed as a 
result of the infected employee's normal duties as a foodhandler may not 
be employed by a reservation business.
    (e) Each business shall comply with all Federal health regulations 
and with all tribal health regulations that are consistent with Federal 
regulations. Each business shall comply with State health regulations 
that are consistent with tribal and Federal health regulations.
    (f) Except as otherwise provided herein, nothing in this section may 
be construed as a grant of enforcement powers to any agency of a State 
or its subdivisions.
    (g) It is the duty of the health officers of the Indian Health 
Service to make periodic inspections, recommend improvements, and report 
thereon to the Commissioner.



Sec. 141.18  Availability of employee authorized to transact business.

    Each licensee shall provide during normal business hours an employee 
authorized in writing to engage in all business transactions that the 
licensee normally offers to customers.



Sec. 141.19  Check cashing.

    (a) A reservation business may give a fully negotiable check in 
addition to U.S. currency when cashing a draft, check or money order. A 
reservation business may not give scrip, credit or other substitute for 
U.S. currency when cashing a draft, check or money order.
    (b) A reservation business owner or employee may advise a customer 
cashing checks, money orders or drafts of the amount due on the 
customer's credit accounts, pawn accounts or any other obligation the 
customer owes to the business, but in no event may the owner or employee 
withhold the proceeds of the check, money order or draft from the 
customer on the basis of existing credit obligations.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.20  Payment for purchase of Indian goods or services.

    (a) A reservation business shall pay for the purchase of Indian 
goods or services with cash or a fully negotiable check. A reservation 
business may not pay for Indian goods or services with trade slips or 
future credit. In any transaction involving the purchase of Indian goods 
on the Navajo Reservation, the reservation business shall furnish a bill 
of sale indicating the name of the seller, a description of the goods, 
the amount paid for the goods, the date of sale, and the signature of 
both parties and shall retain a copy of the bill of sales in its 
business records.
    (b) A reservation business owner or employee may advise a customer 
selling Indian goods or services of the amount due on the customer's 
credit accounts, pawn accounts or any other obligation the customer owes 
to the business, but in no event may the owner or employee withhold the 
proceeds of the sale from the customer on the basis of existing credit 
obligations.



Sec. 141.21  Trade confined to premises.

    The licensee shall confine all trade on the reservation to the 
premises specified in the license, except, where permitted under Sec. 
141.14, the buying and selling of livestock and livestock products.



Sec. 141.22  Subleasing prohibited.

    No licensee may lease, sublet, rent, or sell any building that the 
licensee occupies for any purpose to any person without the approval of 
the Commissioner and the consent of the tribe.



Sec. 141.23  Posted statement of ownership.

    The licensee of a reservation business shall display in a prominent 
place a notice that is legible to customers stating the form of the 
business entity, the names and addresses of all other reservation 
businesses owned in whole or

[[Page 388]]

in part by the business entity, and if the licensee is not a 
corporation, the names and addresses of the owner or owners of the 
business. If the licensee is a corporation the notice shall list the 
names and addresses of the members of the Board of Directors.



Sec. 141.24  Attendance at semi-annual meetings.

    Upon the request of a tribal official designated by the governing 
body, each licensee shall attend a semi-annual public meeting of a 
tribal governing body to respond to customer inquiries.



Sec. 141.25  Withholding of mail prohibited.

    No owner or employee of a reservation business may open, withhold, 
or otherwise delay the delivery of mail.



Sec. 141.26  Trade in antiquities prohibited.

    No licensee may knowingly buy, sell, rent or lease any artifact 
created before 1930 that was removed from an historic ruin or monument.



Sec. 141.27  Trade in imitation Indian crafts prohibited.

    No person may introduce or possess for disposition or sale within 
the exterior boundaries of the Hopi, Navajo or Zuni Reservations any 
object that is represented to be an Indian handicraft unless the object 
was produced by an Indian or Indians with the help of only such devices 
as allow the manual skill of the maker to condition the shape and design 
of each individual's product.



Sec. 141.28  Gambling prohibited.

    No licensee may permit any person to gamble by dice, cards, or in 
any way whatever, including the use of any mechanical device, on the 
premises of any licensed business.



Sec. 141.29  Political contributions restricted.

    No reservation business owner who is ineligible to vote in a Navajo 
tribal election may grant or donate any money or goods to any candidate 
for election to Navajo tribal office.



Sec. 141.30  Retaliation prohibited.

    No licensee may refuse service to any customer for the purpose of 
retaliating against that customer for enforcing or attempting to enforce 
the regulations of this part.



Sec. 141.31  Trade by Indian Affairs employees restricted.

    (a) Except as authorized in this section, no person employed by the 
U.S. Government in Indian Affairs may have any interest in any trade 
with an Indian or an Indian organization. Employees of the U.S. 
Government may trade with an Indian or Indian organization for any 
purpose other than to engage in a profit-making activity under the 
following conditions:
    (1) Where the amount involved is $500 or less a U.S. Government 
employee may purchase goods or services from an Indian or Indian 
organization.
    (2) Where the amount involved is greater than $500 a U.S. Government 
employee may, with the approval of the Secretary of the Interior, 
purchase goods or services from any Indian or Indian organization.
    (b) Lease or sale of home sites or allotments on trust or restricted 
Indian land to or from Indian employees of the U.S. Government shall be 
made on sealed bids, unless the Commissioner waives this requirement on 
the basis of a report showing:
    (1) The need for the transaction,
    (2) The benefits accruing to both parties, and
    (3) That the consideration for the proposed transaction is not less 
than the appraised value of the land or leasehold interest unless the 
Indian employee qualifies and is intending a transaction in accordance 
with Sec. 152.5 (b) and (c) of this chapter or Sec. 162.5(b)(1), (2) 
and (3) of this chapter.

An affidavit, as follows, shall accompany each proposed land 
transaction:

I,----------------------------(Name)

----------------------------(Title)

swear (or affirm) that I have not exercised any undue influence nor used 
any special knowledge received by reason of my office in obtaining the 
(grantor's, purchaser's, vendor's) consent to the instant transaction.

    (c) This section does not prohibit any reservation business from 
contracting

[[Page 389]]

with the Federal Government to provide postal services to Indian 
communities in which Government postal service is unavailable.
    (d) Nothing in this section prohibits an Indian employee from 
receiving benefits by reason of membership in a tribe or corporation or 
cooperative association organized by and operated for Indians.
    (e) U.S. Government employees who violate this section are liable to 
a penalty of five thousand dollars ($5,000) and shall be removed from 
office, see 25 U.S.C. 68.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



                     Subpart D_Pawnbroker Practices



Sec. 141.32  Reservation pawnbroker license required.

    (a) No person may accept pawns or pledges of personal property as 
security for monies or accounts due by an Indian within the exterior 
boundaries of the Navajo, Hopi or Zuni Reservations unless such person 
is an agent of a bank, saving bank, trust company, savings or building 
and loan association, or credit union operating under the laws of the 
United States or the laws of New Mexico, Arizona, or Utah or unless such 
person--
    (1) Holds a valid license to operate a reservation business,
    (2) Holds a valid reservation pawnbroker license, and
    (3) Posts a bond on a form provided by the commissioner in the name 
of the licensee in the amount of twenty-five thousand dollars ($25,000) 
or such larger sum as may be designated by the Commissioner with two (2) 
or more sureties approved by the Commissioner or with a guaranty company 
qualified under the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C. 6-
13).
    (b) An applicant for a reservation pawnbroker license shall apply in 
writing on a form provided by the Commissioner.
    (c) The bond required by paragraph (a) of this section shall be in 
favor of the United States for the benefits of the customers of the 
licensee and shall specifically indemnify all customers who have 
recovered judgment against the licensee for destroyed, lost, misplaced 
or misappropriated pawn or other property. Any customer recovering such 
a judgment may bring suit on the bond in his or her own name. The bond 
shall be for the same period as the license.
    (d) Any surety on a bond under this section may be relieved of 
liability by complying with the provisions of Sec. 141.57.
    (e) No person may accept pawns or pledges of personal property as 
security for monies or accounts due by an Indian after the effective 
date of a tribal ordinance banning the acceptance of pawn on the 
reservation.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 
FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.33  Fees for pawnbroker license.

    (a) Prior to the issuance of an initial pawnbroker license, each 
licensee who is not a member of the Navajo Tribe shall pay the following 
amount:
    (1) If the license is issued before July 1, the licensee shall pay 
two hundred dollars ($200).
    (2) If the license is issued on or after July 1, the licensee shall 
pay one hundred dollars ($100).
    (b) Each licensed pawnbroker who is not a member of the Navajo Tribe 
shall pay on or before January 10 of each year an annual license fee of 
two hundred dollars ($200).
    (c) The Area Director shall determine the annual license fee payable 
by licensees who are enrolled members of the Navajo Tribe. The license 
fee for a member of the Navajo Tribe may not be less than twenty percent 
(20 percent) nor greater than one hundred percent (100 percent) of the 
amount the licensee would be required to pay if the licensee were not 
tribal member.
    (d) All fees are payable to the Area Director and shall be deposited 
to the credit of the account ``Special Deposits.''

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982; 59 FR 54502, Oct. 31, 1994]

[[Page 390]]



Sec. 141.34  Pawnbroker records.

    Each pawnbroker shall keep a written record of the following 
information:
    (a) Transaction number.
    (b) Name of pledgor.
    (c) Address of pledgor.
    (d) Census number or social security number of pledgor.
    (e) Date of transaction.
    (f) Replacement value of pawn.
    (g) Description of pawned item.
    (h) Amount loaned in cash.
    (i) Amount loaned as credit.
    (j) Finance charge.
    (k) Amount financed.
    (l) Date and amount of payments made by pledgor.
    (m) Date notice of default sent to pledgor.
    (n) Date pawned item sold.
    (o) Name and address of purchaser.
    (p) Amount received upon sale.
    (q) Amount of any surplus returned to the pledgor.
    (r) Such other information as the Commissioner may require.



Sec. 141.35  Pawnbroker disclosure requirements.

    In all transactions in which pawn is taken the lender shall give the 
borrower a written ticket or receipt disclosing the following 
information to the extent applicable:
    (a) Clear identification of the property pledged.
    (b) The date of the transaction.
    (c) Amount of the loan.
    (d) Name and social security or census number of the pledgor.
    (e) Replacement value of the pawn as agreed upon by the pledgor and 
pledgee.
    (f) Date on which loan is due.
    (g) The amount, expressed as a dollar amount, of any finance 
charges.
    (h) The finance charges expressed as an annual percentage rate and 
computed in accordance with the provisions of 12 CFR 226.5(b).
    (i) The amount, or method of computing the amount, of any charges to 
be assessed after the date the loan is due.
    (j) A statement of the conditions of default and the pledgor's 
rights upon default, as defined by this part.
    (k) Identification of the method of computing any unearned portion 
of the finance charges in the event of prepayment of the obligation.



Sec. 141.36  Maximum finance charges on pawn transactions.

    No pawnbroker may impose an annual finance charge greater than 
twenty-four percent (24 percent) of the unpaid balance for the period of 
the loan nor assess late charges or delinquency charges on any loan.



Sec. 141.37  Prepayment.

    (a) Subject to the provisions of paragraph (b) of this section, the 
pledgor may prepay in full or in any part the unpaid balance of a loan 
at any time without penalty.
    (b) When a loan is prepaid the lender may collect the earned portion 
of the finance charge or may charge an administrative fee not to exceed 
ten percent (10 percent) of the unearned finance charge or two dollars 
($2) whichever is greater.



Sec. 141.38  Pawn loans, period, notice and sale.

    (a) The proceeds of all loans secured by pawn and for which a 
finance charge is imposed shall be paid only in cash or with a fully 
negotiable check.
    (b) The period of all such loans shall be no less than twelve (12) 
months, subject to the provisions of paragraph (c).
    (c) Thirty (30) days prior to the end of the loan period the pledgee 
may make a declaration of intention to proceed with sale of the pawned 
item by sending notice of intent to the pledgor.
    (d) The notice required in paragraph (c) of this section shall be 
sent to the pledgor and proof of delivery obtained and shall contain a 
description of the item pawned, a statement of the principal and finance 
charge owed, a statement of the intention to sell, the date of the sale, 
and the procedure for redemption.
    (e) Nothing in this section requires the business owner to proceed 
with notice and sale if the business owner desires to hold the pawn for 
a period longer than the loan period stated in the original agreement.
    (f) Unless notice is given under paragraph (c) of this section, or 
the loan is

[[Page 391]]

refinanced under the provisions of Sec. 141.41, no finance charge may 
be imposed for the time the loan remains unpaid after the end of the 
loan period stated on the pawn ticket.



Sec. 141.39  Sale and redemption of pawn.

    (a) If the retention period has expired and notice as required under 
Sec. 141.38 of this part has been sent and received, the pledgee may 
proceed with the sale of the pawn.
    (b) The pawn shall be sold no sooner than thirty (30) days but no 
later than twelve (12) months after notice of intent to sell has been 
given. The sale shall be a public sale, with notice of the time, place, 
and manner to be given in a tribal newspaper of general circulation not 
less than fourteen (14) days prior to the sale, or in the absence of 
such a newspaper, in a commercially reasonable manner. The sale itself 
shall also be conducted in a commercially reasonable manner.
    (c) A pledgor may redeem pawn which has been put up for sale at any 
time before the day it is to be sold by tendering to the pledgee the 
face amount of the loan, plus the finance charge assessed on the 
original loan. The pledgee may also collect an additional charge 
covering the period between the date due and the date of redemption, 
provided that the rate of charge does not exceed the finance charge on 
the original loan.
    (d) The pledgee may buy at the pledgee's own sale if the collateral 
is of a type customarily sold in a recognized market or which is the 
subject of widely distributed standard price quotations.
    (e) Pawn held for more than twelve (12) months after notice of 
intent to sell has been given may not be sold, but the pledgor may 
redeem the pawn at any time by tendering to the pledgee the face amount 
of the loan, plus the finance charge that accrued before the end of the 
sale period provided in paragraph (b) of this section.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.40  Proceeds of sale.

    (a) The following items shall be deducted from the proceeds of the 
sale of pawned items in the following order of priority:
    (1) The expense of advertising and conducting the sale, not to 
exceed ten percent (10%) of the amount loaned.
    (2) The principal amount of the loan, plus any accrued finance 
charges.
    (3) The finance charge calculated at the annual percentage rate of 
the original loan on the unpaid balance of the loan for the period from 
the date of default to the date of sale.
    (b) Within ten (10) days after the sale of the pledge under this 
section, the pledgee shall send a notice to the pledgor informing the 
pledgor of the date of the sale, the proceeds of the sale, the allowable 
costs of the sale, any additional finance charges, and the amount of any 
surplus realized. The pledgee shall obtain proof that the notice was 
delivered.
    (c) Any proceeds of the sale remaining after the deductions 
authorized in paragraph (a) of this section are deemed to be ``surplus'' 
and shall be paid over to the pledgor or the pledgor's estate in U.S. 
currency.
    (d) The sale of pledged goods and the application of the proceeds in 
accordance with this section extinguishes all rights of action of the 
pledgee for any unpaid principal or finance charge on the original loan.



Sec. 141.41  Refinancing transaction.

    (a) Any pawn agreement may be refinanced, either with or without an 
increase in the principal amount of the loan, prior to or following the 
date of expiration of the original period of the loan upon agreement 
between the parties.
    (b) Such refinancing constitutes a new transaction for purposes of 
all disclosure and record keeping requirements of this part and requires 
the issuance of a new ticket or receipt.
    (c) The rate of the additional finance charge imposed as part of the 
refinancing agreement may not exceed the maximum rate imposed by Sec. 
141.36.
    (d) The total finance charges in a refinancing agreement may not 
exceed the sum of the following amounts:
    (1) The finance charge that the pledgor would have been required to

[[Page 392]]

pay upon prepayment on the date of refinancing under Sec. 141.37 of 
this part, except that, for the purpose of computing this amount, no 
minimum finance charge or administrative fee may be included, and
    (2) Such additional finance charge as is permissible on the balance 
of the loan over the remaining period of the loan as extended.
    (e) The default and sale procedures of this part apply to a 
refinanced pawn transaction in the same manner as they apply to an 
original pawn transaction.



Sec. 141.42  Lost pawn receipts or tickets.

    (a) Redemption may not be denied on the sole ground that the pledgor 
is unable to produce a receipt or pawn ticket, provided the pledgor 
gives a reasonable description of the pawned item or makes an actual 
identification of the item. The pledgee may require the pledgor to sign 
a receipt for the redeemed pawn. No person other than the pledgor may 
redeem pawn without a ticket.
    (b) No additional charges may be imposed for the loss of a pawn 
receipt or ticket.



Sec. 141.43  Outstanding obligations owed to pledgee.

    If the pledgor tenders payment to be applied toward redemption of a 
pawned item, it shall be so applied by the pledgee, irrespective of 
other outstanding obligations owed by the pledgor to the pledgee. The 
pledgee may not deny the pledgor the right to redeem the pawn.



Sec. 141.44  Insurance on pawn.

    (a) Any licensee under this part who lends money or extends credit 
with personal property as security and holds such property as a pledge 
shall maintain invault all risk insurance coverage running in favor of 
the pledgor for such property in amounts based upon a report issued 
monthly to the insurer. Such monthly report shall be an amount not less 
than the total agreed replacement value of all pawned items then held by 
the licensee.
    (b) A copy of the insurance policy shall be available for inspection 
at the licensee's place of business and a copy shall be filed with the 
Commissioner.



         Subpart E_Consumer Credit Transactions Other Than Pawn



Sec. 141.45  Consumer credit applications.

    Any reservation business offering credit which is not secured by 
pawn shall provide an application for credit to any customer requesting 
credit. Within thirty (30) days of the date of application, the lender 
shall act upon the application and notify the customer in writing of the 
decision with the reason therefor. A business owner who reduces the 
amount of credit available to a customer or terminates a credit account 
shall provide written notice to the customer stating the reason for the 
reduction or termination of such credit.



Sec. 141.46  Credit disclosure statements.

    Upon approval of a credit application the lender shall give the 
applicant the following information where applicable in a written 
disclosure statement:
    (a) The maximum credit limit of the account.
    (b) The conditions under which a finance charge may be imposed.
    (c) The period in which payment may be made without incurring a 
finance charge.
    (d) The method used in determining the balance on which the finance 
charge is calculated.
    (e) The method used to calculate the finance charge.
    (f) The periodic rates used and the range of balances to which each 
rate applies.
    (g) The conditions under which additional charges may be made and 
the method for calculating those charges.
    (h) A description of any lien that may be acquired on a customer's 
property.
    (i) The minimum payment that must be made on each billing.



Sec. 141.47  Monthly billing statement.

    On all credit accounts on which a finance charge may be imposed and 
for all other credit accounts when requested by the customer, a licensee 
shall issue a monthly billing statement

[[Page 393]]

to the customer stating the following information where applicable:
    (a) The unpaid balance at the start of the billing period.
    (b) The amount and date of each extension of credit and 
identification of each item costing more than ten dollars ($10).
    (c) Payments made by a customer and other credits, including 
returns, rebates, and adjustments.
    (d) The finance charge shown in dollars and cents.
    (e) The rates used in calculating the finance charge plus the range 
of balances to which the finance charge was calculated.
    (f) The closing date of the billing cycle.
    (g) The unpaid balance at that time.



Sec. 141.48  Translation of disclosure statements.

    Disclosure required by Sec. Sec. 141.46 and 141.47 shall be made in 
writing regardless of the customer's ability to speak, read, or write 
the English language. Disclosure to non-English speaking persons shall 
be translated orally into the appropriate language.



Sec. 141.49  Usury prohibited.

    No reservation business may take or receive money, goods, or other 
things of value for a loan or forbearance on a debt that exceeds in 
value the principal plus twenty-four percent (24 percent) per annum 
finance charge. Any reservation business contracting for, reserving, or 
receiving directly or indirectly, any greater amount shall forfeit the 
finance charge.



          Subpart F_Enforcement Powers, Procedures and Remedies



Sec. 141.50  Penalty and forfeiture of merchandise.

    Any person other than an enrolled member of the tribe who either 
resides as a reservation business owner within the exterior boundaries 
of the Navajo, Hopi, or Zuni Reservations or introduces or attempts to 
introduce goods or to trade therein without a license shall forfeit all 
merchandise offered for sale to the Indians or found in the person's 
possession and is liable to a penalty of five hundred dollars ($500). 
This section may be enforced by commencing an action in the appropriate 
United States District Court under the provisions of 28 U.S.C. 1345.



Sec. 141.51  Authority to close unlicensed reservation businesses.

    The Commissioner shall close any reservation business subject to the 
provisions of this part that does not hold a valid license or temporary 
permit.



Sec. 141.52  Revocation of license and lease and recovery on bond.

    The reservation business owner is subject to revocation of license 
and lease and recovery on the bond in whole or in part in the event of 
any violation of the regulations of this part after a show cause 
proceeding according to the provisions of Sec. 141.56.

[41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.53  Cease and desist orders.

    (a) If the Commissioner believes that violation of the regulations 
in this part is occurring, the Commissioner may order the person 
believed to be in violation to show cause according to the provisions of 
Sec. 141.56 why a cease and desist order should not be issued.
    (b) If the person accused of the violations fails to show cause at 
the hearing why such an order should not issue, the Commissioner shall 
issue the order.
    (c) A person subject to a cease and desist order issued under this 
section who violates the order is liable to revocation of license after 
a show cause proceeding according to the provisions of Sec. 141.56 of 
this part.



Sec. 141.54  Periodic review of performance.

    (a) The Commissioner shall review licenses at ten (10) year 
intervals to determine whether or not the business is operating in 
accordance with these regulations and all other applicable laws and 
regulations and whether the business is adequately serving the economic 
needs of the community.
    (b) If, as a result of the review provided in paragraph (a) of this 
section, the Commissioner finds that the licensee has repeatedly 
violated these regulations, the Commissioner may

[[Page 394]]

order the licensee to show cause according to the provisions of Sec. 
141.56 why the licensee's license should not be revoked.
    (c) If the licensee fails to show cause why the license should not 
be revoked, the Commissioner shall revoke the license.



Sec. 141.55  Price monitoring and control.

    (a) A reservation business may not charge its customers unfair or 
unreasonable prices. To insure compliance with this section, the 
Commissioner shall perform audits as provided in Sec. 141.58. In 
performing those audits the Commissioner may inspect all original books, 
records, and other evidences of the cost of doing business. In addition, 
at least once a year the Commissioner shall cause to be made a survey of 
the prices of flour, sugar, fresh eggs, lard, coffee, ground beef, 
bread, cheese, fresh milk, canned fruit, and such other goods as the 
Commissioner deems appropriate in all stores licensed under these 
regulations and in a representative number of similar stores located in 
communities immediately adjoining the reservations. The results of the 
survey shall be posted publicly, sent to each licensed business, and 
made available to the appropriate agency of the tribal government. 
Copies of the survey shall be available at the office of the Area 
Director.
    (b) If the Commissioner finds that a reservation business is 
charging higher prices, especially for basic consumer commodities, than 
those charged on the average based on the studies conducted under the 
provisions of paragraph (a) of this section, the Commissioner may order 
the business owner to show cause under the provisions of Sec. 141.56 
why an order should not be issued to reduce prices. If the Commissioner 
determines that the prices charged by the business are not economically 
justified, based on all of the information, then the Commissioner may 
order the business to reduce its price on all items determined to be 
priced too high to a reasonable price as determined by the Commissioner, 
but in no event to a lower price than the cost of the item increased by 
a reasonable mark-up.



Sec. 141.56  Show cause procedures.

    (a) When the Commissioner believes there has been a violation of 
this part the Commissioner shall serve the licensee with written notice 
setting forth in detail the nature of the alleged violation and stating 
what remedial action the Commissioner proposes to take.
    (b) The licensee shall have ten (10) days from the date of receipt 
of notice in which to show cause why the contemplated remedial action 
should not be ordered.
    (c) If within the ten (10) day period the Commissioner determines 
that the violation may be corrected and the licensee agrees to take the 
necessary corrective measure, the licensee shall be given the 
opportunity to take the necessary corrective measures.
    (d) If the licensee fails within a reasonable time to correct the 
violation or to show cause why the contemplated remedial action should 
not be ordered, the Commissioner shall order the appropriate remedial 
action.
    (e) If the Commissioner orders remedial action the licensee may 
appeal under the provisions of part 2 of this title not later than 
thirty (30) days after the date on which the remedial action is ordered.



Sec. 141.57  Procedures to cancel liability on bond.

    (a) Any surety who wishes to be relieved from liability arising on a 
bond issued under this part shall file with the Commissioner a statement 
in writing setting forth the desire of the surety to be relieved of 
liability and the reasons therefor.
    (b) The surety shall mail a copy of the statement by certified mail, 
return receipt requested, to the last known address of the licensee 
named in the bond.
    (c) Twenty (20) days after the statement required in paragraph (b) 
of this section is mailed to the licensee and the statement required in 
paragraph (a) of this section is filed with the Commissioner, the surety 
from all liability thereafter arising on the bond.
    (d) If the licensee does not have other bond sufficient to meet the 
requirements of this part or has not executed and filed a new or 
substitute bond

[[Page 395]]

within twenty (20) days after the service of the statement, the 
Commissioner shall declare the license and lease void.
    (e) No surety is released from liability under the bond for claims 
which arose prior to the issuance of the Commissioner's order releasing 
the surety.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 
FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.58  Records, reports, and obligations of reservation business 
owners.

    (a) The Commissioner may, in consultation with interested persons 
and agencies, promulgate a model bookkeeping system for use in 
reservation businesses. Until such model bookkeeping system is 
promulgated, each business owner shall keep records in accordance with 
generally accepted accounting principles.
    (b) Each reservation business owner shall file with the Area 
Director an annual report on or before April 15 in a form approved by 
the Commissioner. Reports shall be subject to a yearly audit. The 
reports shall contain the names and respective interests of all persons 
participating in the business.
    (c) The business owner or an employee shall record all sales and 
purchases whether for cash or credit. If the business is on the Navajo 
Reservation the owner or an employee shall supply the customer with a 
copy of the sale transaction containing a description of the article 
purchased or sold, the date of the transaction, and the price. A cash 
register receipt complies with this paragraph for grocery or dry goods 
purchases for cash.
    (d) The licensee shall keep a duplicate copy of any writing required 
by paragraph (c) of this section for a period of not less than three (3) 
years and shall provide the customer or the customer's representative 
one copy of those writings upon request.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 
FR 13937, Apr. 1, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.59  Customer complaint procedures.

    (a) Any customer of a licensee may file a complaint with the 
Commissioner alleging that the licensee has committed a violation of 
this part.
    (b) Upon receipt of a customer complaint the Commissioner shall 
initiate show cause proceedings under the provisions of Sec. 141.56 of 
this part.
    (c) If the Commissioner fails to order remedial action within forty 
(40) days from the date the complaint is filed, the complainant may 
appeal under the provisions of part 2 of this title not later than 
seventy (70) days after the date the complaint is filed.
    (d) If the Commissioner orders remedial action, the complainant may 
appeal under the provisions of part 2 of this title not later than 
thirty (30) days after the date on which the remedial action is ordered.



PART 142_ALASKA RESUPPLY OPERATION--Table of Contents




Sec.
142.1 Definitions.
142.2 What is the purpose of the Alaska Resupply Operation?
142.3 Who is responsible for the Alaska Resupply Operation?
142.4 For whom is the Alaska Resupply Operation operated?
142.5 Who determines the rates and conditions of service of the Alaska 
          Resupply Operation?
142.6 How are the rates and conditions for the Alaska Resupply Operation 
          established?
142.7 How are transportation and scheduling determined?
142.8 Is economy of operation a requirement for the Alaska Resupply 
          Operation?
142.9 How are orders accepted?
142.10 How is freight to be prepared?
142.11 How is payment made?
142.12 What is the liability of the United States for loss or damage?
142.13 Information collection.

    Authority: 5 U.S.C. 301; R.S. 463; 25 U.S.C. 2; R.S. 465; 25 U.S.C. 
9; 42 Stat. 208; 25 U.S.C. 13; 38 Stat. 586.

    Source: 62 FR 18516, Apr. 16, 1997, unless otherwise noted.



Sec. 142.1  Definitions.

    Area Director means the Area Director, Juneau Area Office, Bureau of 
Indian Affairs.

[[Page 396]]

    Bureau means Bureau of Indian Affairs.
    Department means Department of the Interior.
    Manager means Manager of the Seattle Support Center.
    Must is used in place of shall and indicates a mandatory or 
imperative act or requirement.
    Indian means any individual who is a member of an Indian tribe.
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village, or community that the Secretary of the Interior 
acknowledges to exist as an Indian tribe pursuant to Public Law 103-454, 
108 Stat. 4791.
    Alaska Native means a member of an Alaska Native village or a Native 
shareholder in a corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.



Sec. 142.2  What is the purpose of the Alaska Resupply Operation?

    The Alaska Resupply Operation provides consolidated purchasing, 
freight handling and distribution, and necessary transportation services 
from Seattle, Washington to and from other points in Alaska or en route 
in support of the Bureau's mission and responsibilities.



Sec. 142.3  Who is responsible for the Alaska Resupply Operation?

    The Seattle Support Center, under the direction of the Juneau Area 
Office, is responsible for the operation of the Alaska Resupply 
Operation, including the management of all facilities and equipment, 
personnel, and procurement of goods and services.
    (a) The Seattle Support Center is responsible for publishing the 
rates and conditions that must be published in a tariff.
    (b) All accounts receivable and accounts payable are handled by the 
Seattle Support Center.
    (c) The Manager must make itineraries for each voyage in conjunction 
with contracted carriers. Preference is to be given to the work of the 
Bureau.
    (d) The Area Director is authorized to direct the Seattle Support 
Center to perform special services that may arise and to act in any 
emergency.



Sec. 142.4  For whom is the Alaska Resupply Operation operated?

    The Manager is authorized to purchase and resell food, fuel, 
clothing, supplies and materials, and to order, receive, stage, package, 
store and transport these goods and materials for:
    (a) Alaska Native Tribes, Alaska Natives, Indian or Native owned 
businesses, profit or nonprofit Alaska Native corporations, Native 
cooperatives or organizations, or such other groups or individuals as 
may be sponsored by any Native or Indian organization.
    (b) Other Federal agencies and the State of Alaska and its 
subsidiaries, as long as the ultimate beneficiaries are the Alaska 
Natives or their communities.
    (c) Non-Indians and Non-Natives and commercial establishments that 
economically or materially benefit Alaska Natives or Indians.
    (d) The Manager must make reasonable efforts to restrict competition 
with private enterprise.



Sec. 142.5  Who determines the rates and conditions of service of the 
Alaska Resupply Operation?

    The general authority of the Assistant Secretary--Indian Affairs to 
establish rates and conditions for users of the Alaska Resupply 
Operation is delegated to the Area Director.
    (a) The Manager must develop a tariff that establishes rates and 
conditions for charging users.
    (1) The tariff must be approved by the Area Director.
    (2) The tariff must be published on or before March 1 of each year.
    (3) The tariff must not be altered, amended, or published more 
frequently than once each year, except in an extreme emergency.
    (4) The tariff must be published, circulated and posted throughout 
Alaska, particularly in the communities commonly and historically served 
by the resupply operation.
    (b) The tariff must include standard freight categories and rate 
structures

[[Page 397]]

that are recognized within the industry, as well as any appropriate 
specialized warehouse, handling and storage charges.
    (c) The tariff must specify rates for return cargo and cargo hauled 
between ports.
    (1) The rates and conditions for the Bureau, other Federal agencies, 
the State of Alaska and its subsidiaries must be the same as that for 
Native entities.
    (2) Different rates and conditions may be established for non-Indian 
and non-Native commercial establishments, if those establishments do not 
meet the standard in Sec. 142.4(c) and no other service is available to 
that location.



Sec. 142.6  How are the rates and conditions for the Alaska Resupply 
Operation established?

    The Manager must develop tariff rates using the best modeling 
techniques available to ensure the most economical service to the Alaska 
Natives, Indian or Native owned businesses, profit or nonprofit Alaska 
Native corporations, Native cooperatives or organizations, or such other 
groups or individuals as may be sponsored by any Native or Indian 
organization, without enhancing the Federal treasury.
    (a) The Area Director's approval of the tariff constitutes a final 
action for the Department for the purpose of establishing billing rates.
    (b) The Bureau must issue a supplemental bill to cover excess cost 
in the event that the actual cost of a specific freight substantially 
exceeds the tariff price.
    (c) If the income from the tariff substantially exceeds actual 
costs, a prorated payment will be issued to the shipper.



Sec. 142.7  How are transportation and scheduling determined?

    (a) The Manager must arrange the most economical and efficient 
transportation available, taking into consideration lifestyle, timing 
and other needs of the user. Where practical, shipping must be by 
consolidated shipment that takes advantage of economies of scale and 
consider geographic disparity and distribution of sites.
    (b) Itineraries and scheduling for all deliveries must be in keeping 
with the needs of the users to the maximum extent possible. Planned 
itineraries with dates set as to the earliest and latest anticipated 
delivery dates must be provided to users prior to final commitment by 
them to utilize the transportation services. Each shipping season the 
final departure and arrival schedules must be distributed prior to the 
commencement of deliveries.



Sec. 142.8  Is economy of operation a requirement for the Alaska 
Resupply Operation?

    Yes. The Manager must ensure that purchasing, warehousing and 
transportation services utilize the most economical delivery. This may 
be accomplished by memoranda of agreement, formal contracts, or 
cooperative arrangements. Whenever possible joint arrangements for 
economy will be entered into with other Federal agencies, the State of 
Alaska, Alaska Native cooperatives or other entities providing services 
to rural Alaska communities.



Sec. 142.9  How are orders accepted?

    (a) The Manager must make a formal determination to accept an order, 
for goods or services, and document the approval by issuing a permit or 
similar instrument.
    (b) The Seattle Support Center must prepare proper manifests of the 
freight accepted at the facility or other designated location. The 
manifest must follow industry standards to ensure a proper legal 
contract of carriage is executed, upon which payment can be exacted upon 
the successful delivery of the goods and services.



Sec. 142.10  How is freight to be prepared?

    All freight must be prepared in accordance with industry standards, 
unless otherwise specified, for overseas shipment, including any pickup, 
delivery, staging, sorting, consolidating, packaging, crating, boxing, 
containerizing, and marking that may be deemed necessary by the Manager.

[[Page 398]]



Sec. 142.11  How is payment made?

    (a) Unless otherwise provided in this part, all regulations 
implementing the Financial Integrity Act, Anti-Deficiency Act, Prompt 
Payments Act, Debt Collection Act of 1982, 4 CFR Ch. II--Federal Claims 
Collection Standards, and other like acts apply to the Alaska Resupply 
Operation.
    (b) Payment for all goods purchased and freight or other services 
rendered by the Seattle Support Center are due and payable upon final 
receipt of the goods or services. If payment is not received within the 
time specified on the billing document, interest and penalty fees at the 
current treasury rate will be charged, and handling and administrative 
fees may be applied.
    (c) Where fuel and other goods are purchased on behalf of commercial 
enterprises, payment for those goods must be made within 30 days of 
delivery to the Seattle Support Center Warehouse. Payment for freight 
must be made within 30 days from receipt of the goods by the shipper.



Sec. 142.12  What is the liability of the United States for loss or 
damage?

    (a) The liability of the United States for any loss or damage to, or 
non-delivery of freight is limited by 46 U.S.C. 746 and the Carriage of 
Goods by Sea Act (46 U.S.C. 1300 et seq.). The terms of such limitation 
of liability must be contained in any document of title relating to the 
carriage of goods by sea. This liability may be further restricted in 
specialized instances as specified in the tariff.
    (b) In addition to the standards of conduct and ethics applicable to 
all government employees, the employees of the Seattle Support Center 
shall not conduct any business with, engage in trade with, or accept any 
gifts or items of value from any shipper or permittee.
    (c) The Seattle Support Center will continue to function only as 
long as the need for assistance to Native village economies exits. To 
that end, a review of the need for the serve must be conducted every 
five years.



Sec. 142.13  Information collection.

    In accordance with Office of Management and Budget regulations in 5 
CFR 1320.4, approval of information collections contained in this 
regulation is not required.



PART 143_CHARGES FOR GOODS AND SERVICES PROVIDED TO NON-FEDERAL USERS
--Table of Contents




Sec.
143.1 Definitions.
143.2 Purpose.
143.3 Procedures.
143.4 Charges.
143.5 Payment.

    Authority: 31 U.S.C. 9701; 25 U.S.C. 2, 13, 413.

    Source: 55 FR 19621, May 10, 1990, unless otherwise noted.



Sec. 143.1  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary--Indian 
Affairs, Department of the Interior, or other employee to whom authority 
has been delegated.
    (b) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order, or interpreted by court 
decision and over which a federally recognized Indian Tribal entity may 
exercise certain jurisdiction.
    (c) Flat fee is the amount prorated to each user based on the total 
costs incurred by the Government for the goods/services being provided.
    (d) Non-Federal users are persons not employed by the Federal 
Government who receive goods/services provided by the BIA.
    (e) Goods/Services for the purpose of these regulations are those 
provided or performed at the request of an indentifiable recipient and 
are above and beyond those which accrue to the public at large.



Sec. 143.2  Purpose.

    (a) The purpose of the regulations in this part is to establish 
procedures for the assessment, billing, and collection of charges for 
goods/services provided to non-Federal users.
    (b) The Assistant Secretary may sell or contract to sell to non-
Federal users within, or in the immediate vicinity of an Indian 
Reservation (or former Reservation), any of the following goods/services 
if it is determined that the

[[Page 399]]

goods/services are not available from another local source or providing 
that goods/services is in the best interest of the Indian tribes or 
individual Indians. The goods/services include, but are not limited to:
    (1) Electric power;
    (2) Water;
    (3) Sewage operations;
    (4) Landfill operations;
    (5) Steam;
    (6) Compressed air;
    (7) Telecommunications;
    (8) Natural, manufactured, or mixed gas;
    (9) Fuel oil;
    (10) Landscaping; and
    (11) Garbage collections.



Sec. 143.3  Procedures.

    (a) All non-Federal users who receive the above listed goods/
services must sign a standard agreement adopted by the Assistant 
Secretary for the goods/services. This agreement shall contain the 
following statement:

    ``Application for ---------- (specify good(s)/service(s)) is hereby 
requested at the noted address. In exchange for receiving the requested 
good(s)/service(s), the applicant agrees to accept and abide by all 
applicable rules, regulations, and rate schedules, including any future 
amendments, additions, or changes thereto. If the applicant should fail 
to comply with any of the rules, regulations, or rate schedules, the 
cost incurred by the United States Government for enforcement of same 
shall be charged to the applicant.''

    (b) Lack of a signed agreement does not invalidate payment 
requirements. Any user will be responsible for payment of actual goods/
services received or delivered.



Sec. 143.4  Charges.

    (a) Charges shall be established by the Assistant Secretary and 
shall be based upon the total costs (including both direct and indirect) 
of goods/services to the Government at that locale. A schedule of 
charges will be made available to the public upon request.
    (b) All documentation used in establishing charges must be 
maintained at the appropriate Bureau of Indian Affairs agency or Area 
Office and shall be made available for review by the public upon 
request.
    (c) Established charges may be reviewed, amended, and adjusted 
monthly, but not less than annually.
    (d) A flat fee may be charged where it is impractical to measure 
actual usage by recipients.
    (e) Security deposits are authorized under this regulation at the 
discretion of the Assistant Secretary. The deposit may not exceed the 
amount of one billing cycle. All deposits will be applied to the final 
bill.



Sec. 143.5  Payment.

    (a) The Assistant Secretary--Indian Affairs will establish a billing 
cycle that is appropriate to the goods/services being provided.
    (b) Payment is due within 30 days after the billing date.
    (c) Upon non-payment by the non-Federal user, the Assistant 
Secretary may discontinue service. Service may be discontinued after 
proper notification by letter. Proper notification shall include:
    (1) Written notice to user that payment is due. Such notice shall 
afford the user the opportunity to challenge payment or excuse non-
payment within 14 days of the date on the notification letter.
    (2) Following the expiration of the 14 day deadline for response, 
and after consideration of any such response, the Assistant Secretary--
Indian Affairs may notify the user by letter that if payment is not 
received within 10 days of the date on the letter, the service will be 
discontinued.
    (d) The Assistant Secretary has the discretion to continue services 
for health and safety reasons. However, the non-Federal user is still 
responsible for payment for goods/services provided.
    (e) Once service has been discontinued based on delinquency of 
payment, the discontinuance may be appealed under part 2 of this title.

[[Page 400]]



                       SUBCHAPTER H_LAND AND WATER





PART 150_LAND RECORDS AND TITLE DOCUMENTS--Table of Contents




Sec.
150.1 Purpose and scope.
150.2 Definitions.
150.3 Maintenance of land records and title documents.
150.4 Locations and service areas for land titles and records offices.
150.5 Other Bureau offices with title service responsibility.
150.6 Recordation of title documents.
150.7 Curative action to correct title defects.
150.8 Title status reports.
150.9 Land status maps.
150.10 Certification of land records and title documents.
150.11 Disclosure of land records, title documents, and title reports.

    Authority: Act of June 30, 1834 (4 Stat. 738; 25 U.S.C. 9). Act of 
July 26, 1892 (27 Stat. 272; 25 U.S.C. 5). Reorganization Plan No. 3 of 
1950 approved June 20, 1949 (64 Stat. 1262). (Act of April 26, 1906 (34 
Stat. 137); Act of May 27, 1908 (35 Stat. 312); Act of August 1, 1914 
(38 Stat. 582, 598) deal specifically with land records of the Five 
Civilized Tribes.)

    Cross Reference: For further regulations pertaining to proceedings 
in Indian probate, see 43 CFR part 4, subpart D.

    Source: 46 FR 47537, Sept. 29, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 150.1  Purpose and scope.

    These regulations set forth authorities, policy and procedures 
governing the recording, custody, maintenance, use and certification of 
title documents, and the issuance of title status reports for Indian 
land.



Sec. 150.2  Definitions.

    As used in this part.
    (a) Secretary is the Secretary of the Interior or his authorized 
representative.
    (b) Commissioner is the Commissioner of Indian Affairs or his 
authorized representative.
    (c) Agency is an Indian Agency or other field unit of the Bureau of 
Indian Affairs having Indian land under its immediate jurisdiction.
    (d) Superintendent is the designated officer in charge of an Agency.
    (e) Tribe is a tribe, band, nation, community, rancheria, colony, 
pueblo, or other Federally-acknowledged group of Indians.
    (f) Bureau is the Bureau of Indian Affairs.
    (g) Land is real property, including any interests, benefits, and 
rights inherent in the ownership of the real property.
    (h) Indian land is an inclusive term describing all lands held in 
trust by the United States for individual Indians or tribes, or all 
lands, titles to which are held by individual Indians or tribes, subject 
to Federal restrictions against alienation or encumbrance, or all lands 
which are subject to the rights of use, occupancy and/or benefit of 
certain tribes. For purposes of this part, the term Indian land also 
includes land for which the title is held in fee status by Indian 
tribes, and U.S. Government-owned land under Bureau jurisdiction.
    (i) Administrative Law Judge is an employee of the Office of Hearing 
and Appeals, Department of the Interior, upon whom authority has been 
conferred by the Secretary to probate the trust or restricted estates of 
deceased Indians in accordance with 43 CFR part 4, subpart D.
    (j) Land Titles and Records Offices are those offices within the 
Bureau of Indian Affairs charged with the Federal responsibility to 
record, provide custody, and maintain records that affect titles to 
Indian lands, to examine titles, and to provide title status reports for 
such land.
    (k) Manager is the designated officer in charge of a Land Titles and 
Records Office.
    (l) Title document is any document that affects the title to or 
encumbers Indian land and is required to be recorded by regulation or 
Bureau policy.
    (m) Recordation or recording is the acceptance of a title document 
by the appropriate Land Titles and Records Office. The purpose of 
recording is to provide evidence of a transaction, event, or happening 
that affects land titles; to preserve a record of the title document; 
and to give constructive notice of the ownership and change of ownership 
and

[[Page 401]]

the existence of encumbrances to the land.
    (n) Title examination means an examination and evaluation by a 
qualified title examiner of the completeness and accuracy of title 
documents affecting a particular tract of Indian land with certification 
of the findings by the Manager of the Land Titles and Records Office.
    (o) Title status report means a report issued after a title 
examination which shows the proper legal description of a tract of 
Indian land; current ownership, including any applicable conditions, 
exceptions, restrictions or encumbrances on record; and whether the land 
is in unrestricted, restricted, trust, or other status as indicated by 
the records in a Land Titles and Records Office.



Sec. 150.3  Maintenance of land records and title documents.

    The Land Titles and Records Offices within the Bureau are hereby 
designated as the offices of record for land records and title documents 
and are hereby charged with the Federal responsibility to record, 
provide custody, and maintain records that affect titles to Indian land, 
to examine titles, and to provide title status reports.



Sec. 150.4  Locations and service areas for land titles and records 
offices.

    Shown below are present Land Titles and Records Offices and the 
jurisdictional area served by each office.
    (a) Aberdeen, S. Dakota Office provides title service for Indian 
land located under the jurisdiction of the Aberdeen and Minneapolis Area 
Offices, except for Indian land on the White Earth, Isabella, and Oneida 
Indian Reservations.
    (b) Albuquerque, New Mexico Office provides title services for 
Indian land located under the jurisdiction of the Albuquerque, Navajo, 
and Phoenix Area Offices.
    (c) Anadarko, Oklahoma Office provides title services for Indian 
land located under the jurisdiction of the Anadarko Area Office and 
under the Miami Agency of the Muskogee Area Office.
    (d) Billings, Montana Office provides title services for Indian land 
located under the jurisdiction of the Billings Area Office.
    (e) Portland, Oregon Office provides title services for Indian land 
located under the jurisdiction of the Portland and Sacramento Area 
Offices.



Sec. 150.5  Other Bureau offices with title service responsibility.

    (a) Muskogee Area Office is the office of record and performs 
limited title functions for all Indian land of the Five Civilized 
Tribes. The regulations in this part apply to the Muskogee Area Office 
to the extent that they relate to the title services performed by that 
office.
    (b) The Juneau Area Office has title service responsibility for the 
Juneau Area. This authority has been largely delegated to the agencies. 
The regulations in this part apply to the Juneau Area Office to the 
extent practicable.
    (c) The Cherokee Agency has title service responsibility for the 
Eastern Cherokee Reservation. The regulations in this part apply to the 
Cherokee Agency to the extent practicable.
    (d) The Bureau Central Office, Washington, DC, provides title 
services for all other Indian land not shown above in Sec. 150.4 or in 
this section, including the land of the Absentee Wyandottes. The 
regulations in this part apply to the Central Office.



Sec. 150.6  Recordation of title documents.

    All title documents shall be submitted to the appropriate Land 
Titles and Records Office for recording immediately after final 
approval, issuance, or acceptance. Bureau officials delegated authority 
by the Secretary to approve title documents or accept title are 
responsible for prompt compliance with the recording requirement. 
Documents submitted for recording shall be completed in accordance with 
prescribed Bureau regulations or instructions.
    (a) Title documents other than probate records. The original, a 
signed duplicate, or a certified copy of such documents shall be 
submitted for recording. Following the recording process, the

[[Page 402]]

Land Titles and Records Office will return those title documents that 
are required to be returned to the originating office with appropriate 
recording information.
    (b) Probate records. In accordance with 43 CFR part 4, subpart D, 
Administrative Law Judges shall forward the original record of Indian 
probate decisions and copies of petitions for rehearing, reopening, and 
other appeals to the Land Titles and Records Office which provides 
service to the originating Agency. If trust land or Indian heirs 
involved in the probate are located within the jurisdictional area of 
another Land Titles and Records Office, the Administrative Law Judge 
shall also send a duplicate copy to that office. Probate records 
submitted by an Administrative Law Judge for recording will be retained 
by the Land Titles and Records Office.



Sec. 150.7  Curative action to correct title defects.

    Land Titles and Records Office shall initiate such action as 
described below to cure defects in the record discovered during the 
recording of title documents or examination of titles.
    (a) If an error is traced to a defective title document other than 
probate records, the Land Titles and Records Office shall notify the 
originating office of the defect.
    (b) If errors are discovered in probate records, the Land Titles and 
Records Office may initiate corrective action as follows:
    (1) An administrative modification shall be issued to modify probate 
records to include any Indian land omitted from the inventory if such 
property is located in the same state and takes the same line of descent 
as that shown in the original probate decision. Authority is delegated 
to the Commissioner by 43 CFR 4.272 to make such modifications except on 
those Indian reservations covered by special Inheritance Acts (43 CFR 
4.300). Copies of administrative modifications shall be distributed to 
the appropriate Administrative Law Judge, Agencies with jurisdiction 
over the Indian land, and to all persons who share in the estate.
    (2) Land Titles and Records Offices shall notify the Superintendent 
when modifications are required by Administrative Law Judges for other 
types of probate errors. Corrective action is then initiated in 
accordance with 43 CFR part 4, subpart D.
    (3) Land Titles and Records Offices shall issue administrative 
corrections to correct probate errors which are clerical in nature and 
which do not affect vested property rights or involve questions of due 
process. Copies of administrative corrections are distributed to the 
appropriate Administrative Law Judge and Agency.



Sec. 150.8  Title status reports.

    Land Titles and Records Offices may conduct a title examination of a 
tract of Indian land provide a title status report upon request to those 
persons authorized by law to receive such information. Requests for 
title status reports shall be submitted by or through the Bureau office 
that has administrative jurisdiction over the Indian land. All requests 
must clearly identify the tract of Indian land.



Sec. 150.9  Land status maps.

    The Land Titles and Records Offices shall prepare and maintain maps 
of all reservations and similar entities within their jurisdictions to 
assist Bureau personnel in the execution of their title service 
responsibilities. Base maps shall be prepared from plats of official 
survey made by the General Land Office and the Bureau of Land 
Management. These base maps, showing prominent physical features and 
section, township and range lines, shall be used to prepare land status 
maps. The land status maps shall reflect the individual tracts, tract 
numbers, and current status of the tract. Other special maps, such as 
plats and townsite maps, may also be prepared and maintained to meet the 
needs of individual Land Titles and Records Offices, Agencies, and 
Indian tribes.



Sec. 150.10  Certification of land records and title documents.

    Under the provisions of the Act of July 26, 1892 (27 Stat. 273; 25 
U.S.C. 6), an official seal was created for the use of the Commissioner 
of Indian Affairs in authenticating and certifying copies of Bureau 
records. Managers of Land

[[Page 403]]

Titles and Records Offices are designated as Certifying Officers for 
this purpose. When a copy or reproduction of a title document is 
authenticated by the official seal and certified by a Manager, Land 
Titles and Records Office, the copy or reproduction shall be admitted 
into evidence the same as the original from which it was made. The fees 
for furnishing such certified copies are established by a uniform fee 
schedule applicable to all constituent units of the Department of the 
Interior and published in 43 CFR part 2, appendix A.



Sec. 150.11  Disclosure of land records, title documents, and title 
reports.

    (a) The usefulness of a Land Titles and Records Office depends in 
large measure on the ability of the public to consult the records 
contained therein. It is therefore, the policy of the Bureau of Indian 
Affairs to allow access to land records and title documents unless such 
access would violate the Privacy Act, 5 U.S.C. 552a or other law 
restricting access to such records, or there are strong policy grounds 
for denying access where such access is not required by the Freedom of 
Information Act, 5 U.S.C. 552. It shall be the policy of the Bureau of 
Indian Affairs that, unless specifically authorized, monetary 
considerations will not be disclosed insofar as leases of tribal land 
are concerned.
    (b) Before disclosing information concerning any living individual, 
the Manager, Land Titles and Records Office, shall consult 5 U.S.C. 
552a(b) and the notice of routine users then in effect to determine 
whether the information may be released without the written consent of 
the person to whom it pertains.



PART 151_LAND ACQUISITIONS--Table of Contents




Sec.
151.1 Purpose and scope.
151.2 Definitions.
151.3 Land acquisition policy.
151.4 Acquisitions in trust of lands owned in fee by an Indian.
151.5 Trust acquisitions in Oklahoma under section 5 of the I.R.A.
151.6 Exchanges.
151.7 Acquisition of fractional interests.
151.8 Tribal consent for nonmember acquisitions.
151.9 Requests for approval of acquisitions.
151.10 On-reservation acquisitions.
151.11 Off-reservation acquisitions.
151.12 Action on requests.
151.13 Title examination.
151.14 Formalization of acceptance.
151.15 Information collection.

    Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat. 1106, 
as amended; 46 Stat. 1471, as amended; 48 Stat. 985, as amended; 49 
Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69 Stat. 392, as 
amended; 70 Stat. 290, as amended; 70 Stat. 626; 75 Stat. 505; 77 Stat. 
349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174, as amended, 82 Stat. 884; 
84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 86 Stat. 530; 86 Stat. 744; 
88 Stat. 78; 88 Stat. 81; 88 Stat. 1716; 88 Stat. 2203; 88 Stat. 2207; 
25 U.S.C. 2, 9, 409a, 450h, 451, 464, 465, 487, 488, 489, 501, 502, 573, 
574, 576, 608, 608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other 
authorizing acts.

    Cross Reference: For regulations pertaining to: The inheritance of 
interests in trust or restricted land, see parts 15, 16, and 17 of this 
title and 43 CFR part 4; the purchase of lands under the BIA Loan 
Guaranty, Insurance and Interest Subsidy program, see part 103 of this 
title; the exchange and partition of trust or restricted lands, see part 
152 of this title; land acquisitions authorized by the Indian Self-
Determination and Education Assistance Act, see parts 900 and 276 of 
this title; the acquisition of allotments on the public domain or in 
national forests, see 43 CFR part 2530; the acquisition of Native 
allotments and Native townsite lots in Alaska, see 43 CFR parts 2561 and 
2564; the acquisition of lands by Indians with funds borrowed from the 
Farmers Home Administration, see 7 CFR part 1823, subpart N; the 
acquisition of land by purchase or exchange for members of the Osage 
Tribe not having certificates of competency, see Sec. Sec. 117.8 and 
158.54 of this title.

    Source: 45 FR 62036, Sept. 18, 1980, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 151.1  Purpose and scope.

    These regulations set forth the authorities, policy, and procedures 
governing the acquisition of land by the United States in trust status 
for individual Indians and tribes. Acquisition of land by individual 
Indians and tribes in fee simple status is not covered by these 
regulations even though such land may, by operation of law, be held in 
restricted status following acquisition. Acquisition of land in trust 
status by inheritance or escheat is not covered by these regulations. 
These regulations do not cover the acquisition of

[[Page 404]]

land in trust status in the State of Alaska, except acquisitions for the 
Metlakatla Indian Community of the Annette Island Reserve or it members.



Sec. 151.2  Definitions.

    (a) Secretary means the Secretary of the Interior or authorized 
representative.
    (b) Tribe means any Indian tribe, band, nation, pueblo, community, 
rancheria, colony, or other group of Indians, including the Metlakatla 
Indian Community of the Annette Island Reserve, which is recognized by 
the Secretary as eligible for the special programs and services from the 
Bureau of Indian Affairs. For purposes of acquisitions made under the 
authority of 25 U.S.C. 488 and 489, or other statutory authority which 
specifically authorizes trust acquisitions for such corporations, 
``Tribe'' also means a corporation chartered under section 17 of the Act 
of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477) or section 3 of the Act 
of June 26, 1936 (49 Stat. 1967; 25 U.S.C. 503).
    (c) Individual Indian means:
    (1) Any person who is an enrolled member of a tribe;
    (2) Any person who is a descendent of such a member and said 
descendant was, on June 1, 1934, physically residing on a federally 
recognized Indian reservation;
    (3) Any other person possessing a total of one-half or more degree 
Indian blood of a tribe;
    (4) For purposes of acquisitions outside of the State of Alaska, 
Individual Indian also means a person who meets the qualifications of 
paragraph (c)(1), (2), or (3) of this section where ``Tribe'' includes 
any Alaska Native Village or Alaska Native Group which is recognized by 
the Secretary as eligible for the special programs and services from the 
Bureau of Indian Affairs.
    (d) Trust land or land in trust status means land the title to which 
is held in trust by the United States for an individual Indian or a 
tribe.
    (e) Restricted land or land in restricted status means land the 
title to which is held by an individual Indian or a tribe and which can 
only be alienated or encumbered by the owner with the approval of the 
Secretary because of limitations contained in the conveyance instrument 
pursuant to Federal law or because of a Federal law directly imposing 
such limitations.
    (f) Unless another definition is required by the act of Congress 
authorizing a particular trust acquisition, Indian reservation means 
that area of land over which the tribe is recognized by the United 
States as having governmental jurisdiction, except that, in the State of 
Oklahoma or where there has been a final judicial determination that a 
reservation has been disestablished or diminished, Indian reservation 
means that area of land constituting the former reservation of the tribe 
as defined by the Secretary.
    (g) Land means real property or any interest therein.
    (h) Tribal consolidation area means a specific area of land with 
respect to which the tribe has prepared, and the Secretary has approved, 
a plan for the acquisition of land in trust status for the tribe.

[45 FR 62036, Sept. 18, 1980, as amended at 60 FR 32879, June 23, 1995]



Sec. 151.3  Land acquisition policy.

    Land not held in trust or restricted status may only be acquired for 
an individual Indian or a tribe in trust status when such acquisition is 
authorized by an act of Congress. No acquisition of land in trust 
status, including a transfer of land already held in trust or restricted 
status, shall be valid unless the acquisition is approved by the 
Secretary.
    (a) Subject to the provisions contained in the acts of Congress 
which authorize land acquisitions, land may be acquired for a tribe in 
trust status:
    (1) When the property is located within the exterior boundaries of 
the tribe's reservation or adjacent thereto, or within a tribal 
consolidation area; or
    (2) When the tribe already owns an interest in the land; or
    (3) When the Secretary determines that the acquisition of the land 
is necessary to facilitate tribal self-determination, economic 
development, or Indian housing.
    (b) Subject to the provisions contained in the acts of Congress 
which authorize land acquisitions or holding

[[Page 405]]

land in trust or restricted status, land may be acquired for an 
individual Indian in trust status:
    (1) When the land is located within the exterior boundaries of an 
Indian reservation, or adjacent thereto; or
    (2) When the land is already in trust or restricted status.



Sec. 151.4  Acquisitions in trust of lands owned in fee by an Indian.

    Unrestricted land owned by an individual Indian or a tribe may be 
conveyed into trust status, including a conveyance to trust for the 
owner, subject to the provisions of this part.



Sec. 151.5  Trust acquisitions in Oklahoma under section 5 of the I.R.A.

    In addition to acquisitions for tribes which did not reject the 
provisions of the Indian Reorganization Act and their members, land may 
be acquired in trust status for an individual Indian or a tribe in the 
State of Oklahoma under section 5 of the Act of June 18, 1934 (48 Stat. 
985; 25 U.S.C. 465), if such acquisition comes within the terms of this 
part. This authority is in addition to all other statutory authority for 
such an acquisition.



Sec. 151.6  Exchanges.

    An individual Indian or tribe may acquire land in trust status by 
exchange if the acquisition comes within the terms of this part. The 
disposal aspects of an exchange are governed by part 152 of this title.



Sec. 151.7  Acquisition of fractional interests.

    Acquisition of a fractional land interest by an individual Indian or 
a tribe in trust status can be approved by the Secretary only if:
    (a) The buyer already owns a fractional interest in the same parcel 
of land; or
    (b) The interest being acquired by the buyer is in fee status; or
    (c) The buyer offers to purchase the remaining undivided trust or 
restricted interests in the parcel at not less than their fair market 
value; or
    (d) There is a specific law which grants to the particular buyer the 
right to purchase an undivided interest or interests in trust or 
restricted land without offering to purchase all of such interests; or
    (e) The owner of a majority of the remaining trust or restricted 
interests in the parcel consent in writing to the acquisition by the 
buyer.



Sec. 151.8  Tribal consent for nonmember acquisitions.

    An individual Indian or tribe may acquire land in trust status on a 
reservation other than its own only when the governing body of the tribe 
having jurisdiction over such reservation consents in writing to the 
acquisition; provided, that such consent shall not be required if the 
individual Indian or the tribe already owns an undivided trust or 
restricted interest in the parcel of land to be acquired.



Sec. 151.9  Requests for approval of acquisitions.

    An individual Indian or tribe desiring to acquire land in trust 
status shall file a written request for approval of such acquisition 
with the Secretary. The request need not be in any special form but 
shall set out the identity of the parties, a description of the land to 
be acquired, and other information which would show that the acquisition 
comes within the terms of this part.



Sec. 151.10  On-reservation acquisitions.

    Upon receipt of a written request to have lands taken in trust, the 
Secretary will notify the state and local governments having regulatory 
jurisdiction over the land to be acquired, unless the acquisition is 
mandated by legislation. The notice will inform the state or local 
government that each will be given 30 days in which to provide written 
comments as to the acquisition's potential impacts on regulatory 
jurisdiction, real property taxes and special assessments. If the state 
or local government responds within a 30-day period, a copy of the 
comments will be provided to the applicant, who will be given a 
reasonable time in which to reply and/or request that the Secretary 
issue a decision. The Secretary will consider the following criteria in 
evaluating requests for the acquisition of land in trust status when

[[Page 406]]

the land is located within or contiguous to an Indian reservation, and 
the acquisition is not mandated:
    (a) The existence of statutory authority for the acquisition and any 
limitations contained in such authority;
    (b) The need of the individual Indian or the tribe for additional 
land;
    (c) The purposes for which the land will be used;
    (d) If the land is to be acquired for an individual Indian, the 
amount of trust or restricted land already owned by or for that 
individual and the degree to which he needs assistance in handling his 
affairs;
    (e) If the land to be acquired is in unrestricted fee status, the 
impact on the State and its political subdivisions resulting from the 
removal of the land from the tax rolls;
    (f) Jurisdictional problems and potential conflicts of land use 
which may arise; and
    (g) If the land to be acquired is in fee status, whether the Bureau 
of Indian Affairs is equipped to discharge the additional 
responsibilities resulting from the acquisition of the land in trust 
status.
    (h) The extent to which the applicant has provided information that 
allows the Secretary to comply with 516 DM 6, appendix 4, National 
Environmental Policy Act Revised Implementing Procedures, and 602 DM 2, 
Land Acquisitions: Hazardous Substances Determinations. (For copies, 
write to the Department of the Interior, Bureau of Indian Affairs, 
Branch of Environmental Services, 1849 C Street NW., Room 4525 MIB, 
Washington, DC 20240.)

[45 FR 62036, Sept. 18, 1980, as amended at 60 FR 32879, June 23, 1995]



Sec. 151.11  Off-reservation acquisitions.

    The Secretary shall consider the following requirements in 
evaluating tribal requests for the acquisition of lands in trust status, 
when the land is located outside of and noncontiguous to the tribe's 
reservation, and the acquisition is not mandated:
    (a) The criteria listed in Sec. 151.10 (a) through (c) and (e) 
through (h);
    (b) The location of the land relative to state boundaries, and its 
distance from the boundaries of the tribe's reservation, shall be 
considered as follows: as the distance between the tribe's reservation 
and the land to be acquired increases, the Secretary shall give greater 
scrutiny to the tribe's justification of anticipated benefits from the 
acquisition. The Secretary shall give greater weight to the concerns 
raised pursuant to paragraph (d) of this section.
    (c) Where land is being acquired for business purposes, the tribe 
shall provide a plan which specifies the anticipated economic benefits 
associated with the proposed use.
    (d) Contact with state and local governments pursuant to Sec. 
151.10 (e) and (f) shall be completed as follows: Upon receipt of a 
tribe's written request to have lands taken in trust, the Secretary 
shall notify the state and local governments having regulatory 
jurisdiction over the land to be acquired. The notice shall inform the 
state and local government that each will be given 30 days in which to 
provide written comment as to the acquisition's potential impacts on 
regulatory jurisdiction, real property taxes and special assessments.

[60 FR 32879, June 23, 1995, as amended at 60 FR 48894, Sept. 21, 1995]



Sec. 151.12  Action on requests.

    (a) The Secretary shall review all requests and shall promptly 
notify the applicant in writing of his decision. The Secretary may 
request any additional information or justification he considers 
necessary to enable him to reach a decision. If the Secretary determines 
that the request should be denied, he shall advise the applicant of that 
fact and the reasons therefor in writing and notify him of the right to 
appeal pursuant to part 2 of this title.
    (b) Following completion of the Title Examination provided in Sec. 
151.13 of this part and the exhaustion of any administrative remedies, 
the Secretary shall publish in the Federal Register, or in a newspaper 
of general circulation serving the affected area a notice of his/her 
decision to take land into trust under this part. The notice will state 
that a final agency determination to take land in trust has been made 
and that the Secretary shall acquire title in the name of the United 
States no

[[Page 407]]

sooner than 30 days after the notice is published.

[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23, 
1995, as amended at 61 FR 18083, Apr. 24, 1996]



Sec. 151.13  Title examination.

    If the Secretary determines that he will approve a request for the 
acquisition of land from unrestricted fee status to trust status, he 
shall acquire, or require the applicant to furnish, title evidence 
meeting the Standards For The Preparation of Title Evidence In Land 
Acquisitions by the United States, issued by the U.S. Department of 
Justice. After having the title evidence examined, the Secretary shall 
notify the applicant of any liens, encumbrances, or infirmities which 
may exist. The Secretary may require the elimination of any such liens, 
encumbrances, or infirmities prior to taking final approval action on 
the acquisition and he shall require elimination prior to such approval 
if the liens, encumbrances, or infirmities make title to the land 
unmarketable.

[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23, 
1995]



Sec. 151.14  Formalization of acceptance.

    Formal acceptance of land in trust status shall be accomplished by 
the issuance or approval of an instrument of conveyance by the Secretary 
as is appropriate in the circumstances.

[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23, 
1995]



Sec. 151.15  Information collection.

    (a) The information collection requirements contained in Sec. Sec. 
151.9; 151.10; 151.11(c), and 151.13 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq. and assigned 
clearance number 1076-0100. This information is being collected to 
acquire land into trust on behalf of the Indian tribes and individuals, 
and will be used to assist the Secretary in making a determination. 
Response to this request is required to obtain a benefit.
    (b) Public reporting for this information collection is estimated to 
average 4 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any other aspect of this information collection to 
the Bureau of Indian Affairs, Information Collection Clearance Officer, 
Room 337-SIB, 18th and C Streets, NW., Washington, DC 20240; and the 
Office of Information and Regulatory Affairs [Project 1076-0100], Office 
of Management and Budget, Washington, DC 20502.

[60 FR 32879, June 23, 1995; 64 FR 13895, Mar. 23, 1999]



PART 152_ISSUANCE OF PATENTS IN FEE, CERTIFICATES OF COMPETENCY, REMOVAL 
OF RESTRICTIONS, AND SALE OF CERTAIN INDIAN LANDS--Table of Contents




Sec.
152.1 Definitions.
152.2 Withholding action on application.

 Issuing Patents in Fee, Certificates of Competency or Orders Removing 
                              Restrictions

152.3 Information regarding status of applications for removal of 
          Federal supervision over Indian lands.
152.4 Application for patent in fee.
152.5 Issuance of patent in fee.
152.6 Issuance of patents in fee to non-Indians and Indians with whom a 
          special relationship does not exist.
152.7 Application for certificate of competency.
152.8 Issuance of certificate of competency.
152.9 Certificates of competency to certain Osage adults.
152.10 Application for orders removing restrictions, except Five 
          Civilized Tribes.
152.11 Issuance of orders removing restrictions, except Five Civilized 
          Tribes.
152.12 Removal of restrictions, Five Civilized Tribes, after application 
          under authority other than section 2(a) of the Act of August 
          11, 1955.
152.13 Removal of restrictions, Five Civilized Tribes, after application 
          under section 2(a) of the Act of August 11, 1955.
152.14 Removal of restrictions, Five Civilized Tribes, without 
          application.
152.15 Judicial review of removal of restrictions, Five Civilized 
          Tribes, without application.
152.16 Effect of order removing restrictions, Five Civilized Tribes.

[[Page 408]]

      Sales, Exchanges And Conveyances Of Trust Or Restricted Lands

152.17 Sales, exchanges, and conveyances by, or with the consent of the 
          individual Indian owner.
152.18 Sale with the consent of natural guardian or person designated by 
          the Secretary.
152.19 Sale by fiduciaries.
152.20 Sale by Secretary of certain land in multiple ownership.
152.21 Sale or exchange of tribal land.
152.22 Secretarial approval necessary to convey individual-owned trust 
          or restricted lands or land owned by a tribe.
152.23 Applications for sale, exchange or gift.
152.24 Appraisal.
152.25 Negotiated sales, gifts and exchanges of trust or restricted 
          lands.
152.26 Advertisement.
152.27 Procedure of sale.
152.28 Action at close of bidding.
152.29 Rejection of bids; disapproval of sale.
152.30 Bidding by employees.
152.31 Cost of conveyance; payment.
152.32 Irrigation fee; payment.

               Partitions in Kind of Inherited Allotments

152.33 Partition.

         Mortgages and Deeds of Trust To Secure Loans to Indians

152.34 Approval of mortgages and deeds of trust.
152.35 Deferred payment sales.

    Authority: R.S. 161; 5 U.S.C. 301. Interpret or apply sec. 7, 32 
Stat. 275, 34 Stat. 1018, sec. 1, 35 Stat. 444, sec. 1 and 2, 36 Stat. 
855, as amended, 856, as amended, sec. 17, 39 Stat. 127, 40 Stat. 579, 
62 Stat. 236, sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666: 25 
U.S.C. 378, 379, 405, 404, 372, 373, 483, 355, unless otherwise noted.

    Cross References: For further regulations pertaining to the sale of 
irrigable lands, see parts 160, 159 and Sec. 134.4 of this chapter. For 
Indian money regulations, see parts 115, 111, 116, and 112 of this 
chapter. For regulations pertaining to the determination of heirs and 
approval of wills, see part 15 and subpart G of part 11 of this chapter.

    Source: 38 FR 10080, Apr. 24, 1973, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 152.1  Definitions.

    As used in this part:
    (a) Secretary means the Secretary of the Interior or his authorized 
representative acting under delegated authority.
    (b) Agency means an Indian agency or other field unit of the Bureau 
of Indian Affairs having trust or restricted Indian land under its 
immediate jurisdiction.
    (c) Restricted land means land or any interest therein, the title to 
which is held by an individual Indian, subject to Federal restrictions 
against alienation or encumbrance.
    (d) Trust land means land or any interest therein held in trust by 
the United States for an individual Indian.
    (e) Competent means the possession of sufficient ability, knowledge, 
experience, and judgment to enable an individual to manage his business 
affairs, including the administration, use, investment, and disposition 
of any property turned over to him and the income or proceeds therefrom, 
with such reasonable degree of prudence and wisdom as will be apt to 
prevent him from losing such property or the benefits thereof. (Act of 
August 11, 1955 (69 Stat. 666)).
    (f) Tribe means a tribe, band, nation, community, group, or pueblo 
of Indians.



Sec. 152.2  Withholding action on application.

    Action on any application, which if approved would remove Indian 
land from restricted or trust status, may be withheld, if the Secretary 
determines that such removal would adversely affect the best interest of 
other Indians, or the tribes, until the other Indians or the tribes so 
affected have had a reasonable opportunity to acquire the land from the 
applicant. If action on the application is to be withheld, the applicant 
shall be advised that he has the right to appeal the withholding action 
pursuant to the provisions of part 2 of this chapter.

 Issuing Patents in Fee, Certificates of Competency or Orders Removing 
                              Restrictions



Sec. 152.3  Information regarding status of applications for removal of 
Federal supervision over Indian lands.

    The status of applications by Indians for patents in fee, 
certificates of competency, or orders removing restrictions shall be 
disclosed to employees of the Department of the Interior whose

[[Page 409]]

duties require that such information be disclosed to them; to the 
applicant or his attorney, upon request; and to Members of Congress who 
inquire on behalf of the applicant. Such information will be available 
to all other persons, upon request, 15 days after the fee patent has 
been issued by the Bureau of Land Management, or 15 days after issuance 
of certificate of competency or order removing restrictions, or after 
the application has been rejected and the applicant notified. Where the 
termination of the trust or restricted status of the land covered by the 
application would adversely affect the protection and use of Indian land 
remaining in trust or restricted status, the owners of the land that 
would be so affected may be informed that the application has been 
filed.



Sec. 152.4  Application for patent in fee.

    Any Indian 21 years of age or over may apply for a patent in fee for 
his trust land. A written application shall be made in the form approved 
by the Secretary and shall be completed and filed with the agency having 
immediate jurisdiction over the land.



Sec. 152.5  Issuance of patent in fee.

    (a) An application may be approved and fee patent issued if the 
Secretary, in his discretion, determines that the applicant is 
competent. When the patent in fee is delivered, an inventory of the 
estate covered thereby shall be given to the patentee. (Acts of Feb. 8, 
1887 (24 Stat. 388), as amended (25 U.S.C. 349); June 25, 1910 (36 Stat. 
855), as amended (25 U.S.C. 372); and May 14, 1948 (62 Stat. 236; 25 
U.S.C. 483), and other authorizing acts.)
    (b) If an application is denied, the applicant shall be notified in 
writing, given the reasons therefor and advised of his right to appeal 
pursuant to the provisions of part 2 of this chapter.
    (c) White Earth Reservation: The Secretary will, pursuant to the Act 
of March 1, 1907 (34 Stat. 1015), issue a patent in fee to any adult 
mixed-blood Indian owning land within the White Earth Reservation in the 
State of Minnesota upon application from such Indian, and without 
consideration as to whether the applicant is competent.
    (d) Fort Peck Reservation: Pursuant to the Act of June 30, 1954 (68 
Stat. 358), oil and gas underlying certain allotments in the Fort Peck 
Reservation were granted to certain Indians to be held in trust for such 
Indians and provisions was made for issuance of patents in fee for such 
oil and gas or patents in fee for land in certain circumstances.
    (1) Where an Indian or Indians were the grantees of the entire 
interest in the oil and gas underlying a parcel of land, and such Indian 
or Indians had before June 30, 1954, been issued a patent or patents in 
fee for any land within the Fort Peck Reservation, the title to the oil 
and gas was conveyed by the act in fee simple status.
    (2) Where the entire interest in the oil and gas granted by the act 
is after June 30, 1954, held in trust for Indians to whom a fee patent 
has been issued at any time, for any land within the Fort Peck 
Reservation, or who have been or are determined by the Secretary to be 
competent, the Secretary will convey, by patent, without application, 
therefor, unrestricted fee simple title to the oil and gas.
    (3) Where the Secretary determines that the entire interest in a 
tract of land on the Fort Peck Reservation is owned by Indians who were 
grantees of oil and gas under the act and he determines that such 
Indians are competent, he will issue fee patents to them covering all 
interests in the land without application.



Sec. 152.6  Issuance of patents in fee to non-Indians and Indians with 
whom a special relationship does not exist.

    Whenever the Secretary determines that trust land, or any interest 
therein, has been acquired through inheritance or devise by a non-
Indian, or by a person of Indian descent to whom the United States owes 
no trust responsibility, the Secretary may issue a patent in fee for the 
land or interest therein to such person without application.



Sec. 152.7  Application for certificate of competency.

    Any Indian 21 years old or over, except certain adult members of the 
Osage Tribe as provided in Sec. 152.9, who

[[Page 410]]

holds land or an interest therein under a restricted fee patent may 
apply for a certificate of competency. The written application shall be 
made in the form approved by the Secretary and filed with the agency 
having immediate jurisdiction over the land.



Sec. 152.8  Issuance of certificate of competency.

    (a) An application may be approved and a certificate of competency 
issued if the Secretary, in his discretion, determines that the 
applicant is competent. The delivery of the certificate shall have the 
effect of removing the restrictions from the land described therein. 
(Act of June 25, 1910 (36 Stat. 855), as amended (25 U.S.C. 372).)
    (b) If the application is denied, the applicant shall be notified in 
writing, given the reasons therefor and advised of his right to appeal 
pursuant to the provisions of part 2 of this chapter.



Sec. 152.9  Certificates of competency to certain Osage adults.

    Applications for certificates of competency by adult members of the 
Osage Tribe of one-half or more Indian blood shall be in the form 
approved by the Secretary. Upon the finding by the Secretary that an 
applicant is competent, a certificate of competency may be issued 
removing restrictions against alienation of all restricted property and 
terminating the trust on all restricted property, except Osage headright 
interests, of the applicant.

    Cross References: For regulations pertaining to the issuance of 
certificates of competency to adult Osage Indians of less than one-half 
Indian blood, see part 154 of this chapter.



Sec. 152.10  Application for orders removing restrictions, except Five 
Civilized Tribes.

    Any Indian not under legal disability under the laws of the State 
where he resides or where the land is located, or the court-appointed 
guardian or conservator of any Indian, may apply for an order removing 
restrictions from his restricted land or the restricted land of his 
ward. The application shall be in writing setting forth reasons for 
removal of restrictions and filed with the agency having immediate 
jurisdiction over the lands.



Sec. 152.11  Issuance of orders removing restrictions, except Five 
Civilized Tribes.

    (a) An application for an order removing restrictions may be 
approved and such order issued by the Secretary, in his discretion, if 
he determines that the applicant is competent or that removal of 
restrictions is in the best interests of the Indian owner. The effect of 
the order will be to remove the restrictions from the land described 
therein.
    (b) If the application is denied, the applicant will be notified in 
writing, given the reasons therefor and advised of his right to appeal 
pursuant to the provisions of part 2 of this chapter.



Sec. 152.12  Removal of restrictions, Five Civilized Tribes, after application 
under authority other than section 2(a) of the Act of August 11, 1955.

    When an Indian of the Five Civilized Tribes makes application for 
removal of restrictions from his restricted lands under authority other 
than section 2(a) of the Act of August 11, 1955 (69 Stat. 666), such 
application may be for either unconditional removal of restrictions or 
conditional removal of restrictions, but shall not include lands or 
interest in lands acquired by inheritance or devise.
    (a) If the application is for unconditional removal of restrictions 
and the Secretary, in his discretion, determines the applicant should 
have the unrestricted control of that land described in his application, 
the Secretary may issue an order removing restrictions therefrom.
    (b) When the Secretary, in his discretion, finds that in the best 
interest of the applicant all or part of the land described in the 
application should be sold with conditions concerning terms of sale and 
disposal of the proceeds, the Secretary may issue a conditional order 
removing restrictions which shall be effective only and simultaneously 
with the execution of a deed by said applicant upon completion of an 
advertised sale or negotiated sale acceptable to the Secretary.

[[Page 411]]



Sec. 152.13  Removal of restrictions, Five Civilized Tribes, after 
application under section 2(a) of the Act of August 11, 1955.

    When an Indian of the Five Civilized Tribes makes application for 
removal of restrictions under authority of section 2(a) of the Act of 
August 11, 1955 (69 Stat. 666), the Secretary will determine the 
competency of the applicant.
    (a) If the Secretary determines the applicant to be competent, he 
shall issue an order removing restrictions having the effect stated in 
Sec. 152.16.
    (b) If the Secretary rejects the application, his action is not 
subject to administrative appeal, notwithstanding the provisions 
concerning appeals in part 2 of this chapter.
    (c) If the Secretary rejects the application, or neither rejects nor 
approves the application within 90 days of the application date, the 
applicant may apply to the State district court in the county in which 
he resides for an order removing restrictions. If that State district 
court issues such order, it will have the effect stated in Sec. 152.16.



Sec. 152.14  Removal of restrictions, Five Civilized Tribes, without 
application.

    Section 2(b) of the Act of August 11, 1955 (69 Stat. 666), 
authorizes the Secretary to issue an order removing restrictions to an 
Indian of the Five Civilized Tribes without application therefor. When 
the Secretary determines an Indian to be competent, he shall notify the 
Indian in writing of his intent to issue an order removing restrictions 
30 days after the date of the notice. This decision may be appealed 
under the provisions of part 2 of this chapter within such 30 days. All 
administrative appeals under that part will postpone the issuance of the 
order. When the decision is not appealed within 30 days after the date 
of notice, or when any dismissal of an appeal is not appealed within the 
prescribed time limit, or when the final appeal is dismissed, an order 
removing restrictions will be issued.



Sec. 152.15  Judicial review of removal of restrictions, Five Civilized 
Tribes, without application.

    When an order removing restrictions is issued, pursuant to Sec. 
152.14, a copy of such order will be delivered to the Indian, to any 
person acting in his behalf, and to the Board of County Commissioners 
for the county in which the Indian resides. At the time the order is 
delivered written notice will be given the parties that under the terms 
of the Act of August 11, 1955 (69 Stat. 666), the Indian or the Board of 
County Commissioners has, within 6 months of the date of notification, 
the right to appeal to the State district court for the district in 
which the Indian resides for an order setting aside the order removing 
restrictions. The timely initiation of proceedings in the State district 
court will stay the effective date of the order removing restrictions 
until such proceedings are concluded. If the State district court 
dismisses the appeal, the order removing restrictions will become 
effective 6 months after notification to the parties of such dismissal. 
The effect of the issuance of such order will be as prescribed in Sec. 
152.16.



Sec. 152.16  Effect of order removing restrictions, Five Civilized 
Tribes.

    An order removing restrictions issued pursuant to the Act of August 
11, 1955 (69 Stat. 666), on its effective date shall serve to remove all 
jurisdiction and supervision of the Bureau of Indian Affairs over money 
and property held by the United States in trust for the individual 
Indian or held subject to restrictions against alienation imposed by the 
United States. The Secretary shall cause to be turned over to the Indian 
full ownership and control of such money and property and issue in the 
case of land such title document as may be appropriate: Provided, That 
the Secretary may make such provisions as he deems necessary to insure 
payment of money loaned to any such Indian by the Federal Government or 
by an Indian tribe; And provided further, That the interest of any 
lessee or permittee in any lease, contract, or permit that is 
outstanding when an order removing restrictions becomes effective shall 
be preserved as provided in section 2(d) of the Act of August 11, 1955 
(69 Stat. 666).

[[Page 412]]

      Sales, Exchanges and Conveyances of Trust or Restricted Lands



Sec. 152.17  Sales, exchanges, and conveyances by, or with the consent 
of the individual Indian owner.

    Pursuant to the Acts of May 27, 1902 (32 Stat. 275; 25 U.S.C. 379); 
May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70 Stat. 954; 48 
U.S.C. 357); March 1, 1907 (34 Stat. 1018; 25 U.S.C. 405); May 29, 1908 
(35 Stat. 444; 25 U.S.C. 404); June 25, 1910 (36 Stat. 855; 25 U.S.C. 
372), as amended May 25, 1926 (44 Stat. 629; 48 U.S.C. 355a-355d); June 
18, 1934 (48 Stat. 984; 25 U.S.C. 464); and May 14, 1948 (62 Stat. 236; 
25 U.S.C. 483); and pursuant to other authorizing acts, trust or 
restricted lands acquired by allotment, devise, inheritance, purchase, 
exchange, or gift may be sold, exchanged, and conveyed by the Indian 
owner with the approval of the Secretary or by the Secretary with the 
consent of the Indian owner.



Sec. 152.18  Sale with the consent of natural guardian or person 
designated by the Secretary.

    Pursuant to the Act of May 29, 1908 (35 Stat. 444; 25 U.S.C. 404), 
the Secretary may, with the consent of the natural guardian of a minor, 
sell trust or restricted land belonging to such minor; and the Secretary 
may, with the consent of a person designated by him, sell trust or 
restricted land belonging to Indians who are minor orphans without a 
natural guardian, and Indians who are non compos mentis or otherwise 
under legal disability. The authority contained in this act is not 
applicable to lands in Oklahoma, Minnesota, and South Dakota, nor to 
lands authorized to be sold by the Act of May 14, 1948 (62 Stat. 236; 25 
U.S.C. 483).



Sec. 152.19  Sale by fiduciaries.

    Guardians, conservators, or other fiduciaries appointed by State 
courts, or by tribal courts operating under approved constitutions or 
law and order codes, may, upon order of the court, convey with the 
approval of the Secretary or consent to the conveyance by the Secretary 
of trust or restricted land belonging to their Indian wards who are 
minors, non compos mentis or otherwise under legal disability. This 
section is subject to the exceptions contained in 25 U.S.C. 954(b).



Sec. 152.20  Sale by Secretary of certain land in multiple ownership.

    Pursuant to the Act of June 25, 1910 (36 Stat. 855), as amended (25 
U.S.C. 372), if the Secretary decides that one or more of the heirs who 
have inherited trust land are incapable of managing their own affairs, 
he may sell any or all interests in that land. This authority is not 
applicable to lands authorized to be sold by the Act of May 14, 1948 (62 
Stat. 236; 25 U.S.C. 483).



Sec. 152.21  Sale or exchange of tribal land.

    Certain tribal land may be sold or exchanged pursuant to the Acts of 
February 14, 1920 (41 Stat. 415; 25 U.S.C. 294); June 18, 1934 (48 Stat. 
984; 25 U.S.C. 464); August 10, 1939 (53 Stat. 1351; 25 U.S.C. 463(e)); 
July 1, 1948 (62 Stat. 1214); June 4, 1953 (67 Stat. 41; 25 U.S.C. 
293(a)); July 28, 1955 (69 Stat. 392), as amended August 31, 1964 (78 
Stat. 747; 25 U.S.C. 608-608c); June 18, 1956 (70 Stat. 290; 25 U.S.C. 
403a-2); July 24, 1956 (70 Stat. 626); May 19, 1958 (72 Stat. 121; 25 
U.S.C. 463, Note); September 2, 1958 (72 Stat. 1762); April 4, 1960 (74 
Stat. 13); April 29, 1960 (74 Stat. 85); December 11, 1963 (77 Stat. 
349); August 11, 1964 (78 Stat. 389), and pursuant to other authorizing 
acts. Except as otherwise provided by law, and as far as practicable, 
the regulations in this part 152 shall be applicable to sale or 
exchanges of such tribal land.



Sec. 152.22  Secretarial approval necessary to convey individual-owned 
trust or restricted lands or land owned by a tribe.

    (a) Individual lands. Trust or restricted lands, except inherited 
lands of the Five Civilized Tribes, or any interest therein, may not be 
conveyed without the approval of the Secretary. Moreover, inducing an 
Indian to execute an instrument purporting to convey any trust land or 
interest therein, or the offering of any such instrument for record, is 
prohibited and criminal penalties may be incurred. (See 25 U.S.C. 202 
and 348.)
    (b) Tribal lands. Lands held in trust by the United States for an 
Indian

[[Page 413]]

tribe, lands owned by a tribe with Federal restrictions against 
alienation and any other land owned by an Indian tribe may only be 
conveyed where specific statutory authority exists and then only with 
the approval of the Secretary unless the Act of Congress authorizing 
sale provides that approval is unnecessary. (See 25 U.S.C. 177.)



Sec. 152.23  Applications for sale, exchange or gift.

    Applications for the sale, exchange or gift of trust or restricted 
land shall be filed in the form approved by the Secretary with the 
agency having immediate jurisdiction over the land. Applications may be 
approved if, after careful examination of the circumstances in each 
case, the transaction appears to be clearly justified in the light of 
the long-range best interest of the owner or owners or as under 
conditions set out in Sec. 152.25(d).



Sec. 152.24  Appraisal.

    Except as otherwise provided by the Secretary, an appraisal shall be 
made indicating the fair market value prior to making or approving a 
sale, exchange, or other transfer of title of trust or restricted land.



Sec. 152.25  Negotiated sales, gifts and exchanges of trust or 
restricted lands.

    Those sales, exchanges, and gifts of trust or restricted lands 
specifically described in the following paragraphs (a), (b), (c), and 
(d) of this section may be negotiated; all other sales shall be by 
advertised sale, except as may be otherwise provided by the Secretary.
    (a) Consideration not less than the appraised fair market value. 
Indian owners may, with the approval of the Secretary, negotiate a sale 
of and sell trust or restricted land for not less than the appraised 
fair market value:
    (1) When the sale is to the United States, States, or political 
subdivisions thereof, or such other sale as may be for a public purpose;
    (2) When the sale is to the tribe or another Indian; or
    (3) When the Secretary determines it is impractical to advertise.
    (b) Exchange at appraised fair market value. With the approval of 
the Secretary, Indian owners may exchange trust or restricted land, or a 
combination of such land and other things of value, for other lands or 
combinations of land and other things of value. The value of the 
consideration received by the Indian in the exchange must be at least 
substantially equal to the appraised fair market value of the 
consideration given by him.
    (c) Sale to coowners. With the approval of the Secretary, Indian 
owners may negotiate a sale of and sell trust or restricted land to a 
coowner of that land. The consideration may be less than the appraised 
fair market value, if in the opinion of the Secretary there is a special 
relationship between the coowners or special circumstances exist.
    (d) Gifts and conveyances for less than the appraised fair market 
value. With the approval of the Secretary, Indian owners may convey 
trust or restricted land, for less than the appraised fair market value 
or for no consideration when the prospective grantee is the owner's 
spouse, brother, sister, lineal ancestor of Indian blood or lineal 
descendant, or when some other special relationship exists between the 
grantor and grantee or special circumstances exist that in the opinion 
of the Secretary warrant the approval of the conveyance.



Sec. 152.26  Advertisement.

    (a) Upon approval of an application for an advertised sale, notice 
of the sale will be published not less than 30 days prior to the date 
fixed for the sale unless for good cause a shorter period is authorized 
by the Secretary.
    (b) The notice of sale will include:
    (1) Terms, conditions, place, date, hour, and methods of sale, 
including explanation of auction procedure as set out in Sec. 
152.27(b)(2) if applicable;
    (2) Where and how bids shall be submitted;
    (3) A statement warning all bidders against violation of 18 U.S.C. 
1860 prohibiting unlawful combination or intimidation of bidders or 
potential bidders; and
    (4) Description of tracts, all reservations to which title will be 
subject and any restrictions and encumbrances of record with the Bureau 
of Indian Affairs and any other information that may improve sale 
prospects.

[[Page 414]]



Sec. 152.27  Procedure of sale.

    Advertised sales shall be by sealed bids except as otherwise 
provided herein.
    (a)(1) Bids, conforming to the requirements set out in the 
advertisement of sale, along with a certified check, cashier's check, 
money order, or U.S. Treasury check, payable to the Bureau of Indian 
Affairs, for not less than 10 percent of the amount of the bid, must be 
enclosed in a sealed envelope marked as prescribed in the notice of 
sale. A cash deposit may be submitted in lieu of the above-specified 
negotiable instruments at the bidder's risk. Tribes submitting bids 
pursuant to this paragraph may guarantee the required 10 percent deposit 
by an appropriate resolution;
    (2) The sealed envelopes containing the bids will be publicly opened 
at the time fixed for sale. The bids will be announced and will be 
appropriately recorded.
    (b) The policy of the Secretary recognizes that in many instances a 
tribe or a member thereof has a valid interest in acquiring trust or 
restricted lands offered for sale.
    (1) With the consent of the owner and when the notice of sale so 
states, the tribe or members of such tribe shall have the right to meet 
the high bid.
    (2) Provided the tribe is not the high bidder and when one or more 
acceptable sealed bids are received and when so stated in the notice of 
sale, an oral auction may be held following the bid opening. Bidding in 
the auction will be limited to the tribe, and to those who submitted 
sealed bids at 75 percent or more of the appraised value of the land 
being auctioned. At the conclusion of the auction the highest bidder 
must increase his deposit to not less than 10 percent of his auction 
bid.



Sec. 152.28  Action at close of bidding.

    (a) The officer in charge of the sale shall publicly announce the 
apparent highest acceptable bid. The deposits submitted by the 
unsuccessful bidders shall be returned immediately. The deposit 
submitted by the apparent successful bidder shall be held in a special 
account.
    (b) If the highest bid received at an advertised sale is less than 
the appraised fair market value of the land, the Secretary with the 
consent of the owner may accept that bid if the amount bid approximates 
said appraised fair market value and in the Secretary's judgment is the 
highest price that may be realized in the circumstances.
    (c) The Secretary shall award the bid and notify the apparent 
successful bidder that the remainder of the purchase price must be 
submitted within 30 days.
    (1) Upon a showing of cause the Secretary may, in his discretion, 
extend the time of payment of the balance due.
    (2) If the remainder of the purchase price is not paid within the 
time allowed, the bid will be rejected and the apparent successful 
bidder's 10 percent deposit will be forfeited to the landowner's use.
    (d) The issuance of the patent or delivery of a deed to the 
purchaser will not be authorized until the balance of the purchase price 
has been paid, except that the fee patent may be ordered in cases where 
the purchaser is obtaining a loan from an agency of the Federal 
Government and such agency has given the Secretary a commitment that the 
balance of the purchase price will be paid when the fee patent is 
issued.



Sec. 152.29  Rejection of bids; disapproval of sale.

    The Secretary reserves the right to reject any and all bids before 
the award, after the award, or at any time prior to the issuance of a 
patent or delivery of a deed, when he shall have determined such 
rejection to be in the best interests of the Indian owner.



Sec. 152.30  Bidding by employees.

    Except as authorized by the provisions of part 140 of this chapter, 
no person employed in Indian Affairs shall directly or indirectly bid, 
make, or prepare any bid, or assist any bidder in preparing his bid. 
Sales between Indians, either of whom is an employee of the U.S. 
Government, are governed by the provisions of part 140 of this chapter 
(see 25 U.S.C. 68 and 441).

[[Page 415]]



Sec. 152.31  Cost of conveyance; payment.

    Pursuant to the Act of February 14, 1920 (41 Stat. 415), as amended 
by the Act of March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413), the 
Secretary may in his discretion collect from a purchaser reasonable fees 
for work performed or expense incurred in the transaction. The amount so 
collected shall be deposited to the credit of the United States as 
general fund receipts, except as stated in paragraph (b) of this 
section.
    (a)(1) The amount of the fee shall be $22.50 for each transaction.
    (2) The fee may be reduced to a lesser amount or may be waived, if 
the Secretary determines circumstances justify such action.
    (b)(1) If any or all of the costs of the work performed or expenses 
incurred are paid with tribal funds, an alternate schedule of fees may 
be established, subject to approval of the Secretary, and that part of 
such fees deemed appropriate may be credited to the tribe.
    (2) When the purchaser is the tribe which bears all or any part of 
such costs, the collection of the proportionate share from the tribe may 
be waived.



Sec. 152.32  Irrigation fee; payment.

    Collection of all construction costs against any Indian-owned lands 
within Indian irrigation projects is deferred as long as Indian title 
has not been extinguished. (Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 
386a)). This statute is interpreted to apply only where such land is 
owned by Indians either in trust or restricted status.
    (a) When any person whether Indian or non-Indian acquires Indian 
lands in a fee simple status that are part of an Indian irrigation 
project he must enter into an agreement,
    (1) To pay the pro rata share of the construction of the project 
chargeable to the land,
    (2) To pay all construction costs that accrue in the future, and
    (3) To pay all future charges assessable to the land which are based 
on the annual cost of operation and maintenance of the irrigation 
system.
    (b) Any operation and maintenance charges that are delinquent when 
Indian land is sold will be deducted from the proceeds of sale unless 
other acceptable arrangements are made to provide for their payment 
prior to the approval of the sale.
    (c) A lien clause covering all unpaid irrigation construction costs, 
past and future, will be inserted in the patent or other instrument of 
conveyance issued to all purchasers of restricted or trust lands that 
are under an Indian irrigation project.

    Cross Reference: See part 159 and part 160 and cross-references 
thereunder in this chapter for further regulations regarding sale of 
irrigable lands.

               Partitions in Kind of Inherited Allotments



Sec. 152.33  Partition.

    (a) Partition without application. If the Secretary of the Interior 
shall find that any inherited trust allotment or allotments (as 
distinguished from lands held in a restricted fee status or authorized 
to be sold under the Act of May 14, 1948 (62 Stat. 236; 25 U.S.C. 483)), 
are capable of partition in kind to the advantage of the heirs, he may 
cause such lands to be partitioned among them, regardless of their 
competency, patents in fee to be issued to the competent heirs for their 
shares and trust patents to be issued to the incompetent heirs for the 
lands respectively or jointly set apart to them, the trust period to 
terminate in accordance with the terms of the original patent or order 
of extension of the trust period set out in said patent. (Act of May 18, 
1916 (39 Stat. 127; 25 U.S.C. 378)). The authority contained in the Act 
of May 18, 1916, is not applicable to lands authorized to be sold by the 
Act of May 14, 1948, nor to land held in restricted fee status.
    (b) Application for partition. Heirs of a deceased allottee may make 
written application, in the form approved by the Secretary, for 
partition of their trust or restricted land. If the Secretary finds the 
trust lands susceptible of partition, he may issue new patents or deeds 
to the heirs for the portions set aside to them. If the allotment is 
held under a restricted fee title (as distinguished from a trust title), 
partition

[[Page 416]]

may be accomplished by the heirs executing deeds approved by the 
Secretary, to the other heirs for their respective portions.

         Mortgages and Deeds of Trust To Secure Loans to Indians



Sec. 152.34  Approval of mortgages and deeds of trust.

    Any individual Indian owner of trust or restricted lands, may with 
the approval of the Secretary execute a mortgage or deed of trust to his 
land. Prior to approval of such mortgage or deed of trust, the Secretary 
shall secure appraisal information as he deems advisable. Such lands 
shall be subject to foreclosure or sale pursuant to the terms of the 
mortgage or deed of trust in accordance with the laws of the State in 
which the lands are located. For the purpose of foreclosure or sale 
proceedings under this section, the Indian owners shall be regarded as 
vested with unrestricted fee simple title to the lands (Act of March 29, 
1956).

(70 Stat. 62; 25 U.S.C. 483a)



Sec. 152.35  Deferred payment sales.

    When the Indian owner and purchaser desire, a sale may be made or 
approved on the deferred payment plan. The terms of the sale will be 
incorporated in a memorandum of sale which shall constitute a contract 
for delivery of title upon payment in full of the amount of the agreed 
consideration. The deed executed by the grantor or grantors will be held 
by the Superintendent and will be delivered only upon full compliance 
with the terms of sale. If conveyance of title is to be made by fee 
patent, request therefor will be made only upon full compliance with the 
terms of the sale. The terms of the sale shall require that the 
purchaser pay not less than 10 percent of the purchase price in advance 
as required by the Act of June 25, 1910 (36 Stat. 855), as amended (25 
U.S.C. 372); terms for the payment of the remaining installments plus 
interest shall be those acceptable to the Secretary and the Indian 
owner. If the purchaser on any deferred payment plan makes default in 
the first or subsequent payments, all payments, including interest, 
previously made will be forfeited to the Indian owner.



PART 153_DETERMINATION OF COMPETENCY: CROW INDIANS--Table of Contents




Sec.
153.1 Purpose of regulations.
153.2 Application and examination.
153.3 Application form.
153.4 Factors determining competency.
153.5 Children of competent Indians.
153.6 Appeals.

    Authority: Sec. 12, 41 Stat. 755, 46 Stat. 1495, as amended.

    Source: 22 FR 10563, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 153.1  Purpose of regulations.

    The regulations in this part govern the procedures in determining 
the competency of Crow Indians under Public Law 303, 81st Congress, 
approved September 8, 1949.



Sec. 153.2  Application and examination.

    The Commissioner of Indian Affairs or his duly authorized 
representative, upon the application of any unenrolled adult member of 
the Crow Tribe, shall classify him by placing his name to the competent 
or incompetent rolls established pursuant to the act of June 4, 1920 (41 
Stat. 751), and upon application shall determine whether those persons 
whose names now or hereafter appear on the incompetent roll shall be 
reclassified as competent and their names placed on the competent roll.



Sec. 153.3  Application form.

    The application form shall include, among other things:
    (a) The name of the applicant;
    (b) His age, residence, degree of Indian blood, and education;
    (c) His experience in farming, cattle raising, business, or other 
occupation (including home-making);
    (d) His present occupation, if any;
    (e) A statement concerning the applicant's financial status, 
including his average earned and unearned income for the last two years 
from restricted leases and from other sources, and his outstanding 
indebtedness to the United States, to the tribe, or to others;

[[Page 417]]

    (f) A description of his property and its value, including his 
allotted and inherited lands; and
    (g) The name of the applicant's spouse, if any, and the names of his 
minor children, if any, and their ages, together with a statement 
regarding the land, allotted and inherited, held by each.



Sec. 153.4  Factors determining competency.

    Among the matters to be considered by the Commissioner of Indian 
Affairs in determining competency are the amount of the applicant's 
indebtedness to the tribe, to the United States Government, and to 
others; whether he is a public charge or a charge on friends and 
relatives, or will become such a charge, by reason of being classed as 
competent; and whether the applicant has demonstrated that he possesses 
the ability to take care of himself and his property, to protect the 
interests of himself and his family, to lease his land and collect the 
rentals therefrom, to lease the land of his minor children, to prescribe 
in lease agreements those provisions which will protect the land from 
deterioration through over-grazing and other improper practices, and to 
assume full responsibility for obtaining compliance with the terms of 
any lease.



Sec. 153.5  Children of competent Indians.

    Children of competent Indians who have attained or upon attaining 
their majority shall automatically become competent except any such 
Indian who is declared incompetent by a court of competent jurisdiction 
or who is incompetent under the laws of the State within which he 
resides.



Sec. 153.6  Appeals.

    An appeal to the Secretary of the Interior may be made within 30 
days from the date of notice to the applicant of the decision of the 
Commissioner of Indian Affairs.



PART 158_OSAGE LANDS--Table of Contents




Sec.
158.51 Definitions.
158.52 Application for change in designation of homestead.
158.53 Order to change designation of homestead.
158.54 Exchanges of restrictive lands.
158.55 Institution of partition proceedings.
158.56 Partition records.
158.57 Approval of deeds or other instruments vesting title on partition 
          and payment of costs.
158.58 Disposition of proceeds of partition sales.

    Authority: 5 U.S.C. 301. Interpret or apply 62 Stat. 18; 25 U.S.C. 
331 note.

    Source: 22 FR 10565, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 158.51  Definitions.

    When used in this part:
    (a) Homestead means the restricted nontaxable lands, not exceeding 
160 acres, allotted to an enrolled member of the Osage Tribe pursuant to 
the act of June 28, 1906 (34 Stat. 539), or the restricted surplus lands 
designated in lieu thereof pursuant to the act of May 25, 1918 (40 Stat. 
578).
    (b) Surplus land means those restricted lands, other than the 
homestead, allotted to an enrolled member of the Osage Tribe pursuant to 
the act of June 28, 1906 (34 Stat. 539).



Sec. 158.52  Application for change in designation of homestead.

    Any Osage allottee or the legal guardian thereof may make 
application to change his homestead for an equal area of his surplus 
land. The application shall give in detail the reasons why such change 
is desired and shall be submitted to the Osage Indian Agency on the form 
``Application to Change Designation of Homestead.''



Sec. 158.53  Order to change designation of homestead.

    The application of an Osage allottee, or his legal guardian, may be 
approved by the Secretary of the Interior, or his authorized 
representative, and an order issued to change designation of homestead, 
if it is found that the applicant owns an equal area of surplus land. 
The expense of recording the order shall be borne by the applicant. The 
order to change designation shall be made on the form ``Order to Change 
Designation of Homestead.''

[[Page 418]]



Sec. 158.54  Exchanges of restrictive lands.

    Upon written application of the Indians involved, the exchange of 
restricted lands between adult Indians, and between adult Indians and 
non-Indians, may be approved by the Secretary of the Interior, or his 
authorized representative. Title to all lands acquired under this part 
by an Indian who does not have a certificate of competency shall be 
taken by deed containing a clause restricting alienation or encumbrance 
without the consent of the Secretary, or his authorized representative. 
In case of differences in the appraised value of lands under 
consideration for exchange, the application of an Indian for funds to 
equalize such differences may be approved to the extent authorized by 
Sec. 117.8 of this chapter.



Sec. 158.55  Institution of partition proceedings.

    (a) Prior authorization should be obtained from the Secretary, or 
his authorized representative, before the institution of proceedings to 
partition the lands of deceased Osage allottees in which any interest is 
held by an Osage Indian not having a certificate of competency. Requests 
for authority to institute such partition proceedings shall contain a 
description of the lands involved, the names of the several owners and 
their respective interests and the reasons for such court action. 
Authorization may be given for the institution of partition proceedings 
in a court of competent jurisdiction when it appears to the best 
interest of the Indians involved to do so and the execution of voluntary 
exchange deeds is impracticable.
    (b) When it appears to the best interest of the Indians to do so, 
the Secretary's, or his authorized representative's, authorization to 
institute partition proceedings may require that title to the lands be 
quieted in the partition action in order that the deeds issued pursuant 
to the proceedings shall convey good and merchantable title to the 
grantee therein. (See section 6, 37 Stat. 87.)



Sec. 158.56  Partition records.

    Upon completion of an action in partition, a copy of the judgment 
roll showing schedule of costs and owelty moneys having accrued to or 
from the several parties, together with deeds, or other instruments 
vesting title on partition, in triplicate, shall be furnished to the 
Osage Agency. The original allotment number shall follow the legal 
description on all instruments vesting title. When a grantee is a member 
of the Osage Tribe who has not received a certificate of competency, 
deeds or other instruments vesting title shall contain the following 
clause against alienation:

    Subject to the condition that while title to the above-described 
lands shall remain in the grantee or his Osage Indian heirs or devisees 
who do not have certificates of competency, the same shall not be 
alienated or encumbered without approval of the Secretary of the 
Interior or his authorized representative.



Sec. 158.57  Approval of deeds or other instruments vesting title on 
partition and payment of costs.

    Upon completion of the partition proceedings in accordance with the 
law and in conformity with the regulations in this part, the Secretary, 
or his authorized representative, may approve the deeds, or other 
instruments vesting title on partition, and may disburse from the 
restricted (accounts) funds of the Indians concerned, such amounts as 
may be necessary for payment of their share of court costs, attorney 
fees, and owelty moneys.



Sec. 158.58  Disposition of proceeds of partition sales.

    Owelty moneys due members of the Osage Tribe who do not have 
certificates of competency shall be paid into the Treasury of the United 
States and placed to the credit of the Indians upon the same conditions 
as attach to segregated shares of the Osage national fund.



PART 159_SALE OF IRRIGABLE LANDS, SPECIAL WATER CONTRACT REQUIREMENTS
--Table of Contents




    Cross References: For additional regulations pertaining to the 
payment of fees and charges in connection with the sale of irrigable 
lands, see part 160 and Sec. Sec. 134.4 and 152.21

[[Page 419]]

of this chapter. For general regulations pertaining to the issuance of 
patents in fee, see part 152 of this chapter.



Sec. 159.1  Conditions of contract.

    (a) The form of contract (Form 5-462b) \1\ for sale of irrigable 
lands specifically provides that the purchaser will obligate and pay on 
a per acre basis all irrigation charges assessed or to be assessed 
against the land purchased including accrued assessment, which accrued 
assessment shall be paid prior to the approval of the sale, and for the 
payment of the construction and operation and maintenance assessments on 
the due dates of each year. The agreement is to be acknowledged and 
recorded in the county records in which county the land is situated. The 
charges incidental to the recording of the instrument shall be paid by 
the purchaser at the time of executing the agreement.
---------------------------------------------------------------------------

    \1\ Forms may be obtained from the Commissioner of Indian Affairs, 
Washington, D.C.
---------------------------------------------------------------------------

    (b) A strict compliance with the terms of paragraph (a) of this 
section is absolutely necessary and required.

(Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. Interprets or 
applies sec. 1, 41 Stat. 409; 25 U.S.C. 386)

[22 FR 10566, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]
    Note: On May 12, 1921, Circular No. 1677, re sale of irrigable 
lands, was addressed to all superintendents. It was pointed out therein 
that the collection of irrigation construction charges was required by 
the terms of an act approved February 14, 1920 (41 Stat. 409; 25 U.S.C. 
386), and that in addition to the construction charge there was an 
operation and maintenance charge assessable annually that must be paid 
by the landowners benefited; furthermore, that the purpose of this 
circular was to point out to the superintendents the necessity of 
advising prospective purchasers that irrigation charges must be paid and 
that a so-called paid-up water right was not conveyed with the land. A 
form of agreement to be executed by the prospective purchaser 
accompanied this circular.
    It has been brought to the attention of the Bureau that irrigation 
construction charges and operation and maintenance charges have accrued 
against irrigable allotments prior to the time of their being advertised 
for sale and that the superintendents have failed to provide for payment 
of the accrued irrigation charges, with the result that no means are 
apparent for their collection.
    With a view of preventing any future misunderstanding the form of 
contract accompanying Circular No. 1677 has been redrafted and Form 5-
462b assigned to it. The circular has been designated ``No. 1677a.''



PART 160_INCLUSION OF LIENS IN ALL PATENTS AND INSTRUMENTS EXECUTED
--Table of Contents




Sec.
160.1 Liens.
160.2 Instructions.
160.3 Leases to include description of lands.
160.4 Prompt payment of irrigation charges by lessees.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385.

    Source: 22 FR 10566, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 160.1  Liens.

    The act of March 7, 1928 (45 Stat. 210; 25 U.S.C. 387) creates a 
first lien against irrigable lands under all Indian irrigation projects 
where the construction, operation and maintenance costs of such projects 
remain unpaid and are reimbursable, and directs that such lien shall be 
recited in any patent or instrument issued for such lands to cover such 
unpaid charges. Prior to the enactment of this legislation similar liens 
had been created by legislative authority against irrigable lands of the 
projects on the Fort Yuma, Colorado River, and Gila River Reservations, 
in Arizona; Blackfeet, Fort Peck, Flathead, Fort Belknap, and Crow 
Reservations, Mont.; Wapato project, Yakima Reservation, Wash.; the 
irrigable lands on the Colville Reservation within the West Okanogan 
irrigation district, Washington, and the Fort Hall Reservation, Idaho. 
This legislation, therefore, extends protection similar to that existing 
in the legislation applicable to the projects on the reservations above 
mentioned.

    Cross References: For operation and maintenance charges and 
construction costs, see parts 134 and 137 of this chapter.



Sec. 160.2  Instructions.

    All superintendents and other officers are directed to familiarize 
themselves with this provision of law, and in

[[Page 420]]

all cases involving the issuance of patents or deeds direct to the 
Indian or purchaser of Indian allotments embracing irrigable lands, they 
will recite in the papers forwarded to the Department for action the 
fact that the lands involved are within an irrigation project (giving 
the name) and accordingly are subject to the provisions of this law. 
This requirement will be in addition to the existing regulations 
requiring the superintendents in case of sales of irrigable lands to 
obtain from the project engineer a written statement relative to the 
irrigability of the lands to be sold, and whether or not there are any 
unpaid irrigation charges, together with the estimated per acre 
construction cost assessable against the land involved in the sale. Each 
sale will also be accompanied by contract executed in accordance with 
regulations obligating the purchaser to pay the accrued charges, namely, 
construction, operation, and maintenance, prior to the approval of the 
sale and to assume and pay the unassessed irrigation charges in 
accordance with regulations promulgated by the Secretary of the 
Interior.

    Cross References: For additional regulations pertaining to the 
payment of fees and charges in connection with the sale of irrigable 
lands, see part 159 and Sec. Sec. 134.4 and 152.21 of this chapter.



Sec. 160.3  Leases to include description of lands.

    It is important, also, for superintendents in leasing irrigable 
lands to present to the project engineer lists containing descriptions 
of the lands involved for his approval of the irrigable acreage and for 
checking as to whether or not such lands are in fact irrigable under 
existing works. Strict compliance with this section is required for the 
purpose of avoiding error.



Sec. 160.4  Prompt payment of irrigation charges by lessees.

    Superintendents will also see that irrigation charges are promptly 
paid by lessees, and where such charges are not so paid take appropriate 
and prompt action for their collection. Such unpaid charges are a lien 
against the land, and accordingly any failure on the part of the 
superintendents to collect same increases the obligation against the 
land.



PART 161_NAVAJO PARTITIONED LANDS GRAZING PERMITS--Table of Contents




           Subpart A_Definitions, Authority, Purpose and Scope

Sec.
161.1 What definitions do I need to know?
161.2 What are the Secretary's authorities under this part?
161.3 What is the purpose of this part?
161.4 To what lands does this part apply?
161.5 Can BIA waive the application of this part?
161.6 Are there any other restrictions on information given to BIA?

        Subpart B_Tribal Policies and Laws Pertaining to Permits

161.100 Do tribal laws apply to grazing permits?
161.101 How will tribal laws be enforced on the Navajo Partitioned 
          Lands?
161.102 What notifications are required that tribal laws apply to 
          grazing permits on the Navajo Partitioned Lands?

                      Subpart C_General Provisions

161.200 Is an Indian agricultural resource management plan required?
161.201 Is environmental compliance required?
161.202 How are range units established?
161.203 Are range management plans required?
161.204 How are carrying capacities and stocking rates established?
161.205 How are range improvements treated?
161.206 What must a permittee do to protect livestock from exposure to 
          disease?
161.207 What livestock are authorized to graze?

                      Subpart D_Permit Requirements

161.300 When is a permit needed to authorize grazing use?
161.301 What will a grazing permit contain?
161.302 What restrictions are placed on grazing permits?
161.303 How long is a permit valid?
161.304 Must a permit be recorded?
161.305 When is a decision by BIA regarding a permit effective?
161.306 When are permits effective?
161.307 When may a permittee commence grazing on Navajo Partitioned 
          Land?
161.308 Must a permittee comply with standards of conduct if granted a 
          permit?

[[Page 421]]

                 Subpart E_Reissuance of Grazing Permits

161.400 What are the criteria for reissuing grazing permits?
161.401 Will new permits be granted after the initial reissuance of 
          permits?
161.402 What are the procedures for reissuing permits?
161.403 How are grazing permits allocated within each range unit?

                      Subpart F_Modifying A Permit

161.500 May permits be transferred, assigned or modified?
161.501 When will a permit modification be effective?
161.502 Will a special land use require permit modification?

                       Subpart G_Permit Violations

161.600 What permit violations are addressed by this subpart?
161.601 How will BIA monitor permit compliance?
161.602 Will my permit be canceled for non-use?
161.603 Can mediation be used in the event of a permit violation or 
          dispute?
161.604 What happens if a permit violation occurs?
161.605 What will a written notice of a permit violation contain?
161.606 What will BIA do if the permitee doesn't cure a violation on 
          time?
161.607 What appeal bond provisions apply to permit cancellation 
          decisions?
161.608 When will a permit cancellation be effective?
161.609 Can BIA take emergency action if the rangeland is threatened?
161.610 What will BIA do if livestock is not removed when a permit 
          expires or is cancelled?

                           Subpart H_Trespass

161.700 What is trespass?
161.701 What is BIA's trespass policy?
161.702 Who will enforce this subpart?

                              Notification

161.703 How are trespassers notified of a trespass determination?
161.704 What can a permittee do if they receive a trespass notice?
161.705 How long will a written trespass notice remain in effect?

                                 Actions

161.706 What actions does BIA take against trespassers?
161.707 When will BIA impound unauthorized livestock or other property?
161.708 How are trespassers notified of impoundments?
161.709 What happens after unauthorized livestock or other property are 
          impounded?
161.710 How can impounded livestock or other property be redeemed?
161.711 How will BIA sell impounded livestock or other property?

                      Penalties, Damages, and Costs

161.712 What are the penalties, damages, and costs payable by 
          trespassers?
161.713 How will BIA determine the amount of damages to Navajo 
          Partitioned Lands?
161.714 How will BIA determine the costs associated with enforcement of 
          the trespass?
161.715 What will BIA do if a trespasser fails to pay penalties, damages 
          and costs?
161.716 How are the proceeds from trespass distributed?
161.717 What happens if BIA does not collect enough money to satisfy the 
          penalty?

                Subpart I_Concurrence/Appeals/Amendments

161.800 How does the Navajo Nation provide concurrence to BIA?
161.801 May decisions under this part be appealed?
161.802 How will the Navajo Nation recommend amendments to this part?

    Authority: 25 U.S.C. 2; 5 U.S.C. 301; 25 U.S.C. 640d et seq.

    Source: 70 FR 58888, Oct. 7, 2005, unless otherwise noted.



          Subpart A_Definitions, Authority, Purpose, and Scope



Sec. 161.1  What definitions do I need to know?

    Agricultural Act means the American Indians Agricultural Resource 
Management Act (AIARMA) of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 
3701 et seq.), and amended on November 2, 1994 (108 Stat. 4572).
    Agricultural resource management plan means a 10-year plan developed 
through the public review process specifying the tribal management goals 
and objectives developed for tribal agricultural and grazing resources. 
Plans developed and approved under AIARMA will govern the management and 
administration of Indian agricultural resources and Indian agricultural 
lands by BIA and Indian tribal governments.

[[Page 422]]

    Allocation means the number of animal units authorized in each 
grazing permit.
    Animal Unit (AU) means one adult cow and her 6-month-old calf or the 
equivalent thereof based on comparable forage consumption. Thus as 
defined in the following:
    (1) One adult sheep or goat is equivalent to one-fifth (0.20) of an 
AU;
    (2) One adult horse, mule, or burro is equivalent to one and one 
quarter (1.25) AU; or
    (3) One adult llama is equivalent to three-fifths (0.60) of an AU.
    Appeal means a written request for review of an action or the 
inaction of an official of the Bureau of Indian Affairs that is claimed 
to adversely affect the interested party making the request.
    Appeal Bond means a bond posted upon filing of an appeal that 
provides a security or guaranty if an appeal creates a delay in 
implementing our decision that could cause a significant and measurable 
financial loss to another party.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Bond means security for the performance of certain permit 
obligations, as furnished by the permittee, or a guaranty of such 
performance as furnished by a third-party surety.
    Business day means Monday through Friday, excluding federally or 
tribally recognized holidays.
    Carrying capacity means the number of livestock and/or wildlife, 
which may be sustained on a management unit compatible with management 
objectives for the unit.
    Concurrence means the written agreement of the Navajo Nation with a 
policy, action, decision or finding submitted for consideration by BIA.
    Conservation practice refers to any management measure taken to 
maintain or improve the condition, productivity, sustainability, or 
usability of targeted resources.
    Customary Use Area refers to an area to which an individual 
traditionally confined his or her traditional grazing use and occupancy 
and/or an area traditionally inhabited by his or her ancestors.
    Day means a calendar day, unless otherwise specified.
    Enumeration means the list of persons living on and identified 
improvements located within the Former Joint Use Area obtained through 
interviews conducted by BIA in 1974 and 1975.
    Former Joint Use Area means the area that was divided between the 
Navajo Nation and the Hopi Tribe by the Judgment of Partition issued 
April 18, 1979, by the United States District Court for the District of 
Arizona. This area was established by the United States District Court 
for the District of Arizona in Healing v. Jones, 210 F. Supp. 125 
(1962), aff'd. 373 U.S. 758 (1963) and is located:
    (1) Inside the Executive Order area (Executive Order of December 16, 
1882); and
    (2) Outside Land Management District 6.
    Grazing Committee means the District Grazing Committee established 
by the Navajo Nation Council, that is responsible for enforcing and 
implementing tribal grazing regulations on the Navajo Partitioned Lands.
    Grazing Permit means a revocable privilege granted in writing and 
limited to entering on and utilizing forage by domestic livestock on a 
specified range unit. The term as used herein shall include 
authorizations issued to enable the crossing or trailing of domestic 
livestock within an assigned range unit.
    Historical Land Use see Customary Use Area.
    Improvement means any structure or excavation to facilitate 
management of the range for livestock, such as: Fences, cattle guards, 
spring developments, windmills, stock ponds, and corrals.
    Livestock means horses, cattle, sheep, goats, mules, burros, 
donkeys, and llamas.
    Management Unit is a subdivision of a geographic area where unique 
resource conditions, goals, concerns, or opportunities require specific 
and separate management planning.
    Navajo Nation means all offices/entities/programs under the direct 
jurisdiction of the Navajo Nation Government.
    Navajo Partitioned Lands (NPL) means that portion of the Former 
Joint Use

[[Page 423]]

Area awarded to the Navajo Nation under the Judgment of Partition issued 
April 18, 1979, by the United States District Court for the District of 
Arizona, and now a separate administrative entity within the Navajo 
Indian Reservation.
    Non-Concurrence means the official written denial of approval by the 
Navajo Nation of a policy, action, decision, or finding submitted for 
consideration by BIA.
    Range management plan is a statement of management objectives for 
grazing, farming, or other agriculture management including contract 
stipulations defining required uses, operations, and improvements.
    Range Unit means a tract of land designated as a separate management 
subdivision for the administration of grazing.
    Resident means a person who lives on the Navajo Partitioned Lands.
    Resources Committee means the oversight committee for the Division 
of Natural Resources within the Navajo Nation Government. The Resources 
Committee of the Navajo Nation Council to whom authority is delegated to 
exercise the powers of the Navajo Nation with regards to the range 
development and grazing management of the Navajo Partitioned Lands.
    Secretary means the Secretary of the Interior or his or her 
designated representative.
    Settlement Act means the Navajo Hopi Settlement Act of December 22, 
1974 (88 Stat. 1712, 25 U.S.C. 64d et seq., as amended).
    Sheep Unit means an adult ewe with un-weaned lamb. It is also the 
basic unit in which forage allocations are expressed.
    Special land use means all land usage for purposes other than for 
grazing withdrawn in accordance with Navajo Nation laws, Federal laws, 
and BIA policies and procedures, such as but not limited to: Housing 
permits, farm leases, governmental facilities, rights-of-way, schools, 
parks, business leases, etc.
    Stocking rate means the maximum number of sheep units, or animal 
units authorized to graze on a particular pasture, management unit, or 
range unit during a specified period of time.
    Trespass means any unauthorized occupancy, grazing, use of, or 
action on the Navajo Partitioned Lands.



Sec. 161.2  What are the Secretary's authorities under this part?

    (a) Under Section 640d-9(e) of the Settlement Act, lands partitioned 
under the Settlement Act are subject to the jurisdiction of the tribe to 
whom partitioned. The laws of the tribe apply to the partitioned lands 
as in paragraphs (a)(1) and (a)(2) of this section.
    (1) Effective October 6, 1980:
    (i) All conservation practices on the Navajo Partitioned Lands, 
including control and range restoration activities, must be coordinated 
and executed with the concurrence of the Navajo Nation; and
    (ii) All grazing and range restoration matters on the Navajo 
Reservation lands must be administered by BIA, under applicable laws and 
regulations.
    (2) Effective April 18, 1981, the Navajo Nation has jurisdiction and 
authority over any lands partitioned to it and over all persons on these 
lands. This jurisdiction and authority apply:
    (i) To the same extent as is applicable to those other portions of 
the Navajo reservation; and
    (ii) Notwithstanding any provision of law to the contrary, except 
where there is a conflict with the laws and regulations referred to in 
paragraph (a) of this section.
    (b) Under the Agricultural Act, the Secretary is authorized to:
    (1) Carry out the trust responsibility of the United States and 
promote Indian tribal self-determination by providing for management of 
Indian agricultural lands and renewable resources consistent with tribal 
goals and priorities for conservation, multiple use, and sustained 
yield;
    (2) Take part in managing Indian agricultural lands, with the 
participation of the land's beneficial owners, in a manner consistent 
with the Secretary's trust responsibility and with the objectives of the 
beneficial owners;
    (3) Provide for the development and management of Indian 
agricultural lands; and
    (4) Improve the expertise and technical abilities of Indian tribes 
and their members by increasing the educational

[[Page 424]]

and training opportunities available to Indian people and communities in 
the practical, technical, and professional aspects of agricultural and 
land management.



Sec. 161.3  What is the purpose of this part?

    The purpose of this part is to describe the goals and objectives of 
grazing management on the Navajo Partitioned Lands:
    (a) To respect and recognize the importance that livestock and land 
have in sustaining Navajo tradition and culture.
    (b) Provide resources to rehabilitate range resources in the 
preservation of forage, soil, and water on the Navajo Partitioned Lands;
    (c) Monitor the recovery of those resources where they have 
deteriorated;
    (d) Protect, conserve, utilize, and maintain the highest productive 
potential on the Navajo Partitioned Lands through the application of 
sound conservation practices and techniques. These practices and 
techniques will be applied to planning, development, inventorying, 
classification, and management of agricultural resources;
    (e) Increase production and expand the diversity and availability of 
agricultural products for subsistence, income, and employment of 
Indians, through the development of agricultural resources on the Navajo 
Partitioned Lands;
    (f) Manage agricultural resources consistent with integrated 
resource management plans in order to protect and maintain other values 
such as wildlife, fisheries, cultural resources, recreation and to 
regulate water runoff and minimize soil erosion;
    (g) Enable the Navajo Nation to maximize the potential benefits 
available to its members from their lands by providing technical 
assistance, training, and education in conservation practices, 
management and economics of agribusiness, sources and use of credit and 
marketing of agricultural products, and other applicable subject areas;
    (h) Develop the Navajo Partitioned Lands to promote self-sustaining 
communities; and
    (i) Assist the Navajo Nation with permitting the Navajo Partitioned 
Lands, consistent with prudent management and conservation practices, 
and community goals as expressed in the tribal management plans and 
appropriate tribal ordinances.



Sec. 161.4  To what lands does this part apply?

    The grazing regulations in this part apply to the Navajo Partitioned 
Lands within the boundaries of the Navajo Indian Reservation held in 
trust by the United States for the Navajo Nation. Contiguous areas 
outside of the Navajo Partitioned Lands may be included under this part 
for management purposes by BIA in consultation with the affected 
permittees and other affected land users, and with the concurrence of 
the Resources Committee. Other affected land users include those holding 
approved assignments, permits, leases, and rights of way for activities 
such as: home sites, farm plots, roads, utilities, businesses, and 
schools.



Sec. 161.5  Can BIA waive the application of this part?

    Yes. If a provision of this part conflicts with the objectives of 
the agricultural resource management plan provided for in Sec. 161.200, 
or with a tribal law, BIA may waive the application of this part unless 
the waiver would either:
    (a) Constitute a violation of a federal statute or judicial 
decision; or
    (b) Conflict with BIA's general trust responsibility under federal 
law.



Sec. 161.6  Are there any other restrictions on information given to BIA?

    Information that the BIA collects in connection with permits for NPL 
in sections 161.102, 161.206, 161.301, 161.302, 161.304, 161.402, 
161.500, 161.502, 161.604, 161.606, 161.703, 161.704, 161.708, 161.717, 
161.800, 161.801, and 161.802 have been reviewed and approved by the 
Office of Management and Budget. The OMB Control Number assigned is 
1076-0162. Please note that a federal agency may not conduct or sponsor, 
and you are not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

[[Page 425]]



        Subpart B_Tribal Policies and Laws Pertaining to Permits



Sec. 161.100  Do tribal laws apply to grazing permits?

    Navajo Nation laws generally apply to land under the jurisdiction of 
the Navajo Nation, except to the extent that those Navajo Nation laws 
are inconsistent with this part or other applicable federal law. This 
part may be superseded or modified by Navajo Nation laws with 
Secretarial approval, however, so long as:
    (a) The Navajo Nation laws are consistent with the enacting Navajo 
Nation's governing documents;
    (b) The Navajo Nation has notified BIA of the superseding or 
modifying effect of the Navajo Nation laws;
    (c) The superseding or modifying of the regulation would not violate 
a federal statute or judicial decision, or conflict with the Secretary's 
general trust responsibility under federal law; and
    (d) The superseding or modifying of the regulation applies only to 
Navajo Partitioned Lands.



Sec. 161.101  How will tribal laws be enforced on the Navajo 
Partitioned Lands?

    (a) Unless prohibited by federal law, BIA will recognize and comply 
with tribal laws regulating activities on the Navajo Partitioned Lands, 
including tribal laws relating to land use, environmental protection, 
and historic or cultural preservation.
    (b) While the Navajo Nation is primarily responsible for enforcing 
tribal laws pertaining to the Navajo Partitioned Lands, BIA will:
    (1) Assist in the enforcement of Navajo Nation laws;
    (2) Provide notice of Navajo Nation laws to persons or entities 
undertaking activities on the Navajo Partitioned Lands; and
    (3) Require appropriate federal officials to appear in tribal forums 
when requested by the tribe, so long as the appearance would not:
    (i) Be inconsistent with the restrictions on employee testimony set 
forth at 43 CFR part 2, subpart E;
    (ii) Constitute a waiver of the sovereign immunity of the United 
States; or
    (iii) Authorize or result in a review of (BIA) actions by the tribal 
court.
    (c) Where the provisions in this subpart are inconsistent with a 
Navajo Nation law, but the provisions cannot be superseded or modified 
by the Navajo Nation laws under Sec. 161.5, BIA may waive the 
provisions under part 1 of 25 CFR, so long as the new waiver does not 
violate a federal statute or judicial decision or conflict with the 
Secretary's trust responsibility under federal law.



Sec. 161.102  What notifications are required that tribal laws apply 
to grazing permits on the Navajo Partitioned Lands?

    (a) The Navajo Nation must provide BIA with an official copy of any 
tribal law or tribal policy that relates to this part. The Navajo Nation 
must notify BIA of the content and effective dates of tribal laws.
    (b) BIA will then notify affected permittees of the effect of the 
Navajo Nation law on their grazing permits. BIA will:
    (1) Provide individual written notice; or
    (2) Post public notice. This notice will be posted at the tribal 
community building, U.S. Post Office, announced on local radio station, 
and/or published in the local newspaper nearest to the permitted Navajo 
Partitioned Lands where activities are occurring.



                      Subpart C_General Provisions



Sec. 161.200  Is an Indian agricultural resource management plan 
required?

    (a) Yes, Navajo Partitioned Lands must be managed in accordance with 
the goals and objectives in the agricultural resource management plan 
developed by the Navajo Nation, or by BIA in close consultation with the 
Navajo Nation, under the Agricultural Act.
    (b) The 10-year agricultural resource management and monitoring plan 
must be developed through public meetings and completed within 3 years 
of the initiation of the planning activity. The

[[Page 426]]

plan must be based on the public meeting records and existing survey 
documents, reports, and other research from Federal agencies, tribal 
community colleges, and land grant universities. When completed, the 
plan must:
    (1) Determine available agricultural resources;
    (2) Identify specific tribal agricultural resource goals and 
objectives;
    (3) Establish management objectives for the resources;
    (4) Define critical values of the tribe and its members and provide 
identified resource management objectives; and
    (5) Identify actions to be taken to reach established objectives.
    (c) Where the provisions in this subpart are inconsistent with the 
Navajo Nation's agricultural resource management plan, the Secretary may 
waive the provisions under part 1 of this title, so long as the waiver 
does not violate a federal statute or judicial decision or conflict with 
the Secretary's trust responsibility under federal law.



Sec. 161.201  Is environmental compliance required?

    Actions taken by BIA under this part must comply with the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., applicable 
provisions of the Council on Environmental Quality, 40 CFR part 1500, 
and applicable tribal laws and provisions of the Navajo Nation 
Environmental Policy Act CAP-47-95, where the tribal laws and provisions 
do not violate a federal or judicial decision or conflict with the 
Secretary's trust responsibility under federal law.



Sec. 161.202  How are range units established?

    (a) BIA, with the concurrence of the Navajo Nation, will establish 
range units on the Navajo Partitioned Lands to provide unified areas for 
which range management plans can be developed to improve and maintain 
soil and forage resources. Physical land features, watersheds, drainage 
patterns, vegetation, soil, resident concentration, problem areas, 
historical land use patterns, chapter boundaries, special land uses and 
comprehensive land use planning will be considered in the determination 
of range unit boundaries.
    (b) BIA may modify range unit boundaries with the concurrence of the 
Navajo Nation. This may include small and/or isolated portions of Navajo 
Partitioned Lands contiguous to Navajo tribal lands in order to develop 
more efficient land management.



Sec. 161.203  Are range management plans required?

    Yes. BIA will:
    (a) Consult with the Navajo Nation in planning conservation 
practices, including grazing control and range restoration activities 
for the Navajo Partitioned Lands.
    (b) Develop range management plans with the concurrence of the 
Navajo Nation.
    (c) Approve the range management plans, after concurrence with the 
Navajo Nation, and the implementation of the plan may begin immediately. 
The plan will address, but is not limited to, the following issues:
    (1) Goals for improving vegetative productivity and diversity;
    (2) Stocking rates;
    (3) Grazing schedules;
    (4) Wildlife management;
    (5) Needs assessment for range and livestock improvements;
    (6) Schedule for operation and maintenance of existing range 
improvements and development for cooperative funded projects;
    (7) Cooperation in the implementation of range studies;
    (8) Control of livestock diseases and parasites;
    (9) Fencing or other structures necessary to implement any of the 
other provisions in the range management plan;
    (10) Special land uses; and
    (11) Water development and management.



Sec. 161.204  How are carrying capacities and stocking rates established?

    (a) BIA, with the concurrence of the Navajo Nation, will prescribe, 
review and adjust the carrying capacity of each range unit by 
determining the number of livestock, and/or wildlife, that can be grazed 
on the Navajo Partitioned Lands without inducing damage to vegetation or 
related resources on

[[Page 427]]

each range unit and the season or seasons of use to achieve the 
objectives of the agricultural resource management plan and range unit 
management plan.
    (b) BIA, with the concurrence of the Navajo Nation, will establish 
the stocking rate of each range or management unit. The stocking rate 
will be based on forage production, range utilization, the application 
of land management practices, and range improvements in place to achieve 
uniformity of grazing under sustained yield management principles on 
each range or management unit.
    (c) BIA will review the carrying capacity of the grazing units on a 
continuing basis and, in consultation with the Grazing Committee and 
affected permittees, adjust the stocking rate for each range or 
management unit as conditions warrant.
    (d) Any adjustments in stocking rates will be applied equally to 
each permittee within the management unit requiring adjustment.



Sec. 161.205  How are range improvements treated?

    (a) Improvements placed on the Navajo Partitioned Lands will be 
considered affixed to the land unless specifically exempted in the 
permit. No improvement may be constructed or removed from Navajo 
Partitioned Lands without the written consent of BIA and the Navajo 
Nation.
    (b) Before undertaking an improvement, BIA, Navajo Nation and 
permittee will negotiate who will complete and maintain improvements. 
The improvement agreement will be reflected in the permit.



Sec. 161.206  What must a permittee do to protect livestock from 
exposure to disease?

    In accordance with applicable law, permittees must:
    (a) Vaccinate livestock;
    (b) Treat all livestock exposed to or infected with contagious or 
infectious diseases; and
    (c) Restrict the movement of exposed or infected livestock.



Sec. 161.207  What livestock are authorized to graze?

    The following livestock are authorized to graze on the Navajo 
Partitioned Lands: horses, cattle, sheep, goats, mules, burros, donkeys, 
and llamas.



                      Subpart D_Permit Requirements



Sec. 161.300  When is a permit needed to authorize grazing use?

    Unless otherwise provided for in this part, any person or legal 
entity, including an independent legal entity owned and operated by the 
Navajo Nation, must obtain a permit under this part before using Navajo 
Partitioned Land for grazing purposes.



Sec. 161.301  What will a grazing permit contain?

    (a) All grazing permits will contain the following provisions:
    (1) Name of permit holder;
    (2) Range management plan requirements;
    (3) Applicable stocking rate;
    (4) Range unit number and description of the permitted area;
    (5) Animal identification requirements (i.e., brand, microchip, 
freeze brand, earmark, tattoo, etc.);
    (6) Term of permit (including beginning and ending dates of the term 
allowed, as well as an option to renew, or extend);
    (7) A provision stating that the permittee agrees that he or she 
will not use, cause, or allow to be used any part of the permitted area 
for any unlawful conduct or purpose;
    (8) A provision stating that the permit authorizes no other 
privilege than grazing use;
    (9) A provision stating that no person is allowed to hold a grazing 
permit in more than one range unit of the Navajo Partitioned Lands, 
unless the customary use area extends beyond the range unit boundary;
    (10) A provision reserving a right of entry by BIA and the Navajo 
Nation for range survey, inventory and inspection or compliance 
purposes;
    (11) A provision prohibiting the creation of a nuisance, any illegal 
activity, and negligent use or waste of resources;

[[Page 428]]

    (12) A provision stating how trespass proceeds are to be 
distributed;
    (13) A provision stating whether mediation will be used in the event 
of a permit violation; and
    (14) A provision stating that the permit cannot be subdivided once 
it has been issued.
    (b) Grazing permits will contain any other provision that in the 
discretion of BIA with the concurrence of the Navajo Nation is necessary 
to protect the land and/or resources.
    (c) Grazing permits containing any special land use authorized under 
Sec. 161.503 of this part must be included on the permit.



Sec. 161.302  What restrictions are placed on grazing permits?

    Only a grazing permit issued under this part authorizes the grazing 
of livestock within the Navajo Partitioned Lands. Grazing permits are 
subject to the following restrictions:
    (a) Grazing permits should not be issued for less than 2 animal 
units (10 sheep units) or exceed 70 animal units (350 sheep units). 
However, all grazing permits issued before the adoption of this 
regulation will be honored and reissued with an adjusted stocking rate 
if the permittee meets the eligibility and priority criteria found in 
Sec. 161.400 of this part, and only if the carrying capacity and 
stocking rate as determined under Sec. Sec. 161.204 and 161.403 allows.
    (b) A grazing permit will be issued in the name of one individual.
    (c) Only two horses will be permitted on a grazing permit.
    (d) Grazing permits may contain additional conditions authorized by 
Federal law or Navajo Nation law.
    (e) A state/tribal brand only identifies the owner of the livestock, 
but does not authorize the grazing of any livestock within the Navajo 
Partitioned Lands.
    (f) A permit cannot be subdivided once it has been issued.



Sec. 161.303  How long is a permit valid?

    After its initial issuance, each grazing permit is valid for one 
year beginning on the following January 1. All permits will be 
automatically renewed annually if the permittee is in compliance with 
all applicable laws including tallies and permit requirements.



Sec. 161.304  Must a permit be recorded?

    A permit must be recorded by BIA following approval under this 
subpart.



Sec. 161.305  When is a decision by BIA regarding a permit effective?

    BIA approval of a permit will be effective immediately upon 
signature, notwithstanding any appeal, which may be filed under part 2 
of this title. Copies of the approved permit will be provided to the 
permittee and made available to the Navajo Nation upon request.



Sec. 161.306  When are permits effective?

    Unless otherwise provided in the permit, a permit will be effective 
on the date on which BIA approves the permit.



Sec. 161.307  When may a permittee commence grazing on Navajo 
Partitioned Land?

    The permittee may graze on Navajo Partitioned Land on the date 
specified in the permit as the beginning date of the term, but not 
before BIA approves the permit.



Sec. 161.308  Must a permittee comply with standards of conduct if 
granted a permit?

    Yes. Permittees are expected to:
    (a) Conduct grazing operations in accordance with the principles of 
sustained yield management, agricultural resource management planning, 
sound conservation practices, and other community goals as expressed in 
Navajo Nation laws, agricultural resource management plans, and similar 
sources.
    (b) Comply with all applicable laws, ordinances, rules, provisions, 
and other legal requirements. Permittee must also pay all applicable 
penalties that may be assessed for non-compliance.
    (c) Fulfill all financial permit obligations owed to the Navajo 
Nation and the United States.
    (d) Conduct only those activities authorized by the permit.

[[Page 429]]



                 Subpart E_Reissuance of Grazing Permits



Sec. 161.400  What are the criteria for reissuing grazing permits?

    (a) The Navajo Nation may prescribe eligibility requirements for 
grazing allocations within 180 days following the effective date of this 
part. BIA will prescribe the eligibility requirements after expiration 
of the 180-day period if the Navajo Nation does not prescribe 
eligibility requirements, or if satisfactory action is not taken by the 
Navajo Nation.
    (b) With the written concurrence of the Navajo Nation, BIA will 
prescribe the following eligibility requirements, where only those 
applicants who meet the following criteria are eligible to receive 
permits to graze livestock:
    (1) Those who had grazing permits on Navajo Partitioned Lands under 
25 CFR part 167 (formerly part 152), and whose permits were canceled on 
October 14, 1973;
    (2) Those who are listed in the 1974 and 1975 Former Joint Use Area 
enumeration;
    (3) Those who are current residents on Navajo Partitioned Lands; and
    (4) Those who have a customary use area on Navajo Partitioned Lands.
    (c) Permits re-issued to applicants under this section may be 
granted by BIA based on the following priority criteria:
    (1) The first priority will go to individuals currently the age of 
65 or older; and
    (2) The second priority will go to individuals under the age of 65.
    (d) Upon the recommendation of the NPL District Grazing Committee 
and Resources Committee, BIA or Navajo Nation will have authority to 
waive one of the eligibility or priority criteria.



Sec. 161.401  Will new permits be granted after the initial reissuance 
of permits?

    (a) Following the initial reissuance of permits under Sec. 161.400, 
the Navajo Nation can grant new permits, subject to BIA approval, if:
    (1) Additional permits become available; and
    (2) The carrying capacity and stocking rates as determined under 
Sec. Sec. 161.204 and 161.403 allow.
    (b) The Navajo Nation must inform BIA if it grants any permits under 
paragraph (a) of this section.



Sec. 161.402  What are the procedures for reissuing permits?

    BIA, with the concurrence of the Navajo Nation, will reissue grazing 
permits only to individuals that meet the eligibility requirements in 
Sec. 161.400. Responsibilities for reissuance of grazing permits are as 
follows:
    (a) BIA will develop a complete list consisting of all former 
permittees whose permits were cancelled and the number of animal units 
previously authorized in prior grazing permits. This list will be 
provided to the Grazing Committee and Resources Committee for their 
review. BIA will also provide the Grazing Committee and Resources 
Committee with the current carrying capacity and stocking rate for each 
range unit within the Navajo Partitioned Lands, as determined under 
Sec. 161.204.
    (b) Within 90 days of receipt, the Grazing Committee will review the 
list developed under Sec. 161.402(a), and make recommendations to the 
Resources Committee for the granting of grazing permits according to the 
eligibility and priority criteria in Sec. 161.400.
    (c) If the Grazing Committee fails to make its recommendation to the 
Resources Committee within 90 days after receiving the list of potential 
permittees, BIA will submit its recommendations to the Resources 
Committee.
    (d) The Resources Committee will review and concur with the list of 
proposed permit grantees, and then forward a final list to BIA for the 
reissuance of grazing permits. If the Resources Committee does not 
concur, the procedures outlined in Sec. 161.800 will govern.
    (e) The final determination list of eligible permittees will be 
published. Permits will not be issued sooner than 90 days following 
publication of the final list.

[[Page 430]]



Sec. 161.403  How are grazing permits allocated within each range unit?

    (a) Initial allocation of the number of animal units authorized in 
each grazing permit will be determined by considering the number of 
animal units previously authorized in prior grazing permits and the 
current authorized stocking rate on a given range unit.
    (b) Grazing permit allocations may vary from range unit to range 
unit depending on the stocking rate of each unit, the range management 
plan, and the number of eligible grazing permittees in the unit.



                      Subpart F_Modifying A Permit



Sec. 161.500  May permits be transferred, assigned or modified?

    (a) Grazing permits may be transferred, assigned, or modified only 
as provided in this section. Permits may only be transferred or assigned 
as a single permit under Navajo Nation procedures and with the approval 
of BIA. Permittees must reside within the same range unit as the 
original permittee.
    (b) Permits may be transferred, assigned, or modified with the 
written consent of the permittee, District Grazing Committee and/or 
Resources Committee and approved by BIA.
    (c) BIA must record each transfer, assignment, or modification that 
it approves under a permit.



Sec. 161.501  When will a permit modification be effective?

    BIA approval of a transfer, assignment, or modification under a 
permit will be effective immediately, notwithstanding any appeal, which 
may be filed under part 2 of this title. Copies of approved documents 
will be provided to the permittee and made available to the Navajo 
Nation upon request.



Sec. 161.502  Will a special land use require permit modification?

    Yes. When the Navajo Nation and BIA approve a special land use, the 
grazing permit will be modified to reflect the change in available 
forage. If a special land use is inconsistent with grazing activities 
authorized in the permit, the special land use area will be withdrawn 
from the permit, and grazing cannot take place on that part of the range 
unit.



                       Subpart G_Permit Violations



Sec. 161.600  What permit violations are addressed by this subpart?

    This subpart addresses violations of permit provisions other than 
trespass. Trespass is addressed under subpart H.



Sec. 161.601  How will BIA monitor permit compliance?

    Unless the permit provides otherwise, BIA and/or Navajo Nation may 
enter the range unit at any reasonable time, without prior notice, to 
protect the interests of the Navajo Nation and ensure that the permittee 
is in compliance with the operating requirements of the permit.



Sec. 161.602  Will my permit be canceled for non-use?

    (a) If a grazing permit is not used by the permittee for a 2-year 
period, BIA may cancel the permit upon the recommendation of the Grazing 
Committee and with the concurrence of the Resources Committee under 
Sec. 161.606(c). Non-use consists of, but is not limited to, absence of 
livestock on the range unit, and/or abandonment of a permittee's grazing 
permit.
    (b) Unused grazing permits or portions of grazing permits that are 
set aside for range recovery will not be cancelled for non-use.



Sec. 161.603  Can mediation be used in the event of a permit violation 
or dispute?

    A permit may provide for permit disputes or violations to be 
resolved with the District Grazing Committee through mediation.
    (a) The District Grazing Committee will conduct the mediation before 
the Navajo Nation's appropriate hearing body, before BIA invokes any 
cancellation remedies.
    (b) Conducting the mediation may substitute for permit cancellation. 
However, BIA retains the authority to cancel the permit under Sec. 
161.606.
    (c) The Navajo Nation's appropriate hearing body decision will be 
final, unless it is appealed to the Navajo Nation Supreme Court on a 
question of law.

[[Page 431]]

BIA will defer to any ongoing proceedings, as appropriate, in deciding 
whether to exercise any of the remedies available to BIA under Sec. 
161.606.



Sec. 161.604  What happens if a permit violation occurs?

    (a) If the Resources Committee notifies BIA that a specific permit 
violation has occurred, BIA will initiate an appropriate investigation 
within 5 business days of that notification.
    (b) Unless otherwise provided under tribal law, when BIA has reason 
to believe that a permit violation has occurred, BIA or the authorized 
tribal representative will provide written notice to the permittee 
within 5 business days.



Sec. 161.605  What will a written notice of a permit violation contain?

    The written notice of a permit violation will provide the permittee 
with 10 days from the receipt of the written notice to:
    (a) Cure the permit violation and notify BIA that the violation is 
cured;
    (b) Explain why BIA should not cancel the permit;
    (c) Request in writing additional time to complete corrective 
actions. If additional time is granted, BIA may require that certain 
actions be taken immediately; or
    (d) Request mediation under Sec. 161.603.



Sec. 161.606  What will BIA do if the permittee doesn't cure a 
violation on time?

    (a) If the permittee does not cure a violation within the required 
time period, or if the violation is not referred to District Grazing 
Committee for mediation, BIA will consult with the Navajo Nation, as 
appropriate, and determine whether:
    (1) The permit may be canceled by BIA under paragraph (c) of this 
section and Sec. Sec. 161.607 through 161.608;
    (2) BIA may invoke any other remedies available to BIA under the 
permit;
    (3) The Navajo Nation may invoke any remedies available to them 
under the permit; or
    (4) The permittee may be granted additional time in which to cure 
the violation.
    (b) If BIA grants a permittee a time extension to cure a violation, 
the permittee must proceed diligently to complete the necessary 
corrective actions within a reasonable or specified time from the date 
on which the extension is granted.
    (c) If BIA cancels the permit, BIA will send the permittee and the 
District Grazing Committee a written notice of cancellation within 5 
business days of the decision. BIA will also provide actual or 
constructive notice of the cancellation to the Navajo Nation, as 
appropriate. The written notice of cancellation will:
    (1) Explain the grounds for cancellation;
    (2) Notify the permittee of the amount of any unpaid fees and other 
financial obligations due under the permit;
    (3) Notify the permittee of his or her right to appeal under 25 CFR 
part 2 of this title, as modified by Sec. 161.607, including the amount 
of any appeal bond that must be posted with an appeal of the 
cancellation decision; and
    (4) Order the permittee to cease grazing livestock on the next 
anniversary date of the grazing permit or 180 days following the receipt 
of the written notice of cancellation, whichever is sooner.



Sec. 161.607  What appeal bond provisions apply to permit cancellation 
decisions?

    (a) The appeal bond provisions in Sec. 2.5 of part 2 of this title 
will not apply to appeals from permit cancellation decision. Instead, 
when BIA decides to cancel a permit, BIA may require the permittee to 
post an appeal bond with an appeal of the cancellation decision. The 
requirement to post an appeal bond will apply in addition to all of the 
other requirements in part 2 of this title.
    (b) An appeal bond should be set in an amount necessary to protect 
the Navajo Nation against financial losses that will likely result from 
the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
permit cancellation decision.

[[Page 432]]



Sec. 161.608  When will a permit cancellation be effective?

    A cancellation decision involving a permit will not be effective for 
30 days after the permittee receives a written notice of cancellation 
from BIA. The cancellation decision will remain ineffective if the 
permittee files an appeal under Sec. 161.607 and part 2 of this title, 
unless the decision is made immediately effective under part 2. While a 
cancellation decision is ineffective, the permittee must continue to 
comply with the other terms of the permit. If an appeal is not filed in 
accordance with Sec. 161.607 and part 2 of this title, the cancellation 
decision will be effective on the 31st day after the permittee receives 
the written notice of cancellation from BIA.



Sec. 161.609  Can BIA take emergency action if the rangeland is 
threatened?

    Yes, if a permittee or any other party causes or threatens to cause 
immediate, significant and irreparable harm to the Navajo Nation land 
during the term of a permit, BIA will take appropriate emergency action. 
Emergency action may include trespass proceedings under subpart H, or 
judicial action seeking immediate cessation of the activity resulting in 
or threatening harm. Reasonable efforts will be made to notify the 
Navajo Nation, either before or after the emergency action is taken.



Sec. 161.610  What will BIA do if livestock is not removed when a 
permit expires or is cancelled?

    If the livestock is not removed after the expiration or cancellation 
of a permit, BIA will treat the unauthorized use as a trespass. BIA may 
remove the livestock on behalf of the Navajo Nation, and pursue any 
additional remedies available under applicable law, including the 
assessment of civil penalties and costs under subpart H.



                           Subpart H_Trespass



Sec. 161.700  What is trespass?

    Under this part, trespass is any unauthorized use of, or action on, 
Navajo partitioned grazing lands.



Sec. 161.701  What is BIA's trespass policy?

    BIA will:
    (a) Investigate accidental, willful, and/or incidental trespass on 
Navajo Partitioned Lands;
    (b) Respond to alleged trespass in a prompt, efficient manner;
    (c) Assess trespass penalties for the value of products used or 
removed, cost of damage to the Navajo Partitioned Lands, and enforcement 
costs incurred as a consequence of the trespass; and
    (d) Ensure, to the extent possible, that damage to Navajo 
Partitioned Lands resulting from trespass is rehabilitated and 
stabilized at the expense of the trespasser.



Sec. 161.702  Who will enforce this subpart?

    (a) BIA enforces the provisions of this subpart. If the Navajo 
Nation adopts the provisions of this subpart, the Navajo Nation will 
have concurrent jurisdiction to enforce this subpart. Additionally, if 
the Navajo Nation so requests, BIA will defer to tribal prosecution of 
trespass on Navajo Partitioned Lands.
    (b) Nothing in this subpart will be construed to diminish the 
sovereign authority of the Navajo Nation with respect to trespass.

                              Notification



Sec. 161.703  How are trespassers notified of a trespass determination?

    (a) Unless otherwise provided under tribal law, when BIA has reason 
to believe that a trespass on Navajo Partitioned Lands has occurred, BIA 
or the authorized tribal representative will provide written notice 
within 5 business days to:
    (1) The alleged trespasser;
    (2) The possessor of trespass property; and
    (3) Any known lien holder.
    (b) The written notice under paragraph (a) of this section will 
include the following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of ownership of unauthorized property (e.g., 
brands in the

[[Page 433]]

State Brand Book for cases of livestock trespass, if applicable);
    (4) Corrective actions that must be taken;
    (5) Time frames for taking the corrective actions;
    (6) Potential consequences and penalties for failure to take 
corrective action; and
    (7) A statement that unauthorized livestock or other property may 
not be removed or disposed of unless authorized by BIA under paragraph 
(b)(4) of this section.
    (c) If BIA determines that the alleged trespasser or possessor of 
trespass property is unknown or refuses delivery of the written notice, 
a public trespass notice will be posted at the tribal community 
building, U.S. Post Office, and published in the local newspaper nearest 
to the Indian agricultural lands where the trespass is occurring.
    (d) Trespass notices under this subpart are not subject to appeal 
under part 2 of this title.



Sec. 161.704  What can a permittee do if they receive a trespass notice?

    The trespasser will within the time frame specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact BIA in writing to explain why the trespass notice is in 
error. The trespasser may contact BIA by telephone but any explanation 
of trespass must be provided in writing. If BIA determines that a 
trespass notice was issued in error, the notice will be withdrawn.



Sec. 161.705  How long will a written trespass notice remain in effect?

    A written trespass notice will remain in effect for the same action 
identified in that written notice for a period of one year from the date 
of receipt of the written notice by the trespasser.

                                 Actions



Sec. 161.706  What actions does BIA take against trespassers?

    If the trespasser fails to take the corrective action as specified, 
BIA may take one or more of the following actions, as appropriate:
    (a) Seize, impound, sell or dispose of unauthorized livestock or 
other property involved in the trespass. BIA may keep the property 
seized for use as evidence.
    (b) Assess penalties, damages, and costs under Sec. 161.712.



Sec. 161.707  When will BIA impound unauthorized livestock or other 
property?

    BIA will impound unauthorized livestock or other property under the 
following conditions:
    (a) Where there is imminent danger of severe injury to growing or 
harvestable crop or destruction of the range forage.
    (b) When the known owner or the owner's representative of the 
unauthorized livestock or other property refuses to accept delivery of a 
written notice of trespass and the unauthorized livestock or other 
property are not removed within the period prescribed in the written 
notice.
    (c) Any time after 5 days of providing notice of impoundment if the 
trespasser failed to correct the trespass.



Sec. 161.708  How are trespassers notified of impoundments?

    (a) If the trespass is not corrected in the time specified in the 
initial trespass notice, BIA will send written notice of its intent to 
impound unauthorized livestock or other property to:
    (1) The unauthorized livestock or property owner or representative; 
and
    (2) Any known lien holder of the unauthorized livestock or other 
property.
    (b) If BIA determines that the owner of the unauthorized livestock 
or other property or the owner's representative is unknown or refuses 
delivery of the written notice, a public notice of intent to impound 
will be posted at the tribal community building, U.S. Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) After BIA has given notice as described in Sec. 161.707, 
unauthorized livestock or other property will be impounded without any 
further notice.



Sec. 161.709  What happens after unauthorized livestock or other 
property are impounded?

    Following the impoundment of unauthorized livestock or other 
property,

[[Page 434]]

BIA will provide notice that the impounded property will be sold as 
follows:
    (a) BIA will provide written notice of the sale to the owner, the 
owner's representative, and any known lien holder. The written notice 
must include the procedure by which the impounded property may be 
redeemed before the sale.
    (b) BIA will provide public notice of sale of impounded property by 
posting at the tribal community building, U.S. Post Office, and 
publishing in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring. The public notice will include a 
description of the impounded property, and the date, time, and place of 
the public sale. The sale date must be at least 5 days after the 
publication and posting of notice.



Sec. 161.710  How can impounded livestock or other property be redeemed?

    Impounded livestock or other property may be redeemed by submitting 
proof of ownership and paying all penalties, damages, and costs under 
Sec. 161.712 and completing all corrective actions identified by BIA 
under Sec. 161.704.



Sec. 161.711  How will BIA sell impounded livestock or other property?

    (a) Unless the owner or known lien holder of the impounded livestock 
or other property redeems the property before the time set by the sale, 
by submitting proof of ownership and settling all obligations under 
Sec. Sec. 161.704 and 161.712, the property will be sold by public sale 
to the highest bidder.
    (b) If a satisfactory bid is not received, the livestock or property 
may be re-offered for sale, returned to the owner, condemned and 
destroyed, or otherwise disposed of.
    (c) BIA will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

                      Penalties, Damages, and Costs



Sec. 161.712  What are the penalties, damages, and costs payable by 
trespassers?

    Trespassers on Navajo Partitioned Lands must pay the following 
penalties and costs:
    (a) Collection of the value of the products illegally used or 
removed plus a penalty of double their values;
    (b) Costs associated with any damage to Navajo Partitioned Lands 
and/or property;
    (c) The costs associated with enforcement of the provisions, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees;
    (d) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under Sec. 
161.707; and
    (e) All other penalties authorized by law.



Sec. 161.713  How will BIA determine the amount of damages to Navajo 
Partitioned Lands?

    (a) BIA will determine the damages by considering the costs of 
rehabilitation and re-vegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.
    (b) BIA will determine the value of forage or crops consumed or 
destroyed based upon the average rate received per month for comparable 
property or grazing privileges, or the estimated commercial value or 
replacement costs of the products or property.
    (c) BIA will determine the value of the products or property 
illegally used or removed based upon a valuation of similar products or 
property.



Sec. 161.714  How will BIA determine the costs associated with 
enforcement of the trespass?

    Costs of enforcement may include detection and all actions taken by 
us through prosecution and collection of damages. This includes field 
examination and survey, damage appraisal, investigation assistance and 
report preparation, witness expenses, demand letters, court costs, 
attorney fees, and other costs.

[[Page 435]]



Sec. 161.715  What will BIA do if a trespasser fails to pay penalties, 
damages and costs?

    This section applies if a trespasser fails to pay the assessed 
penalties, damages, and costs as directed. Unless otherwise provided by 
applicable Navajo Nation law, BIA will:
    (a) Refuse to issue the permittee a permit for any use of Navajo 
Partitioned Lands; and
    (b) Forward the case for appropriate legal action.



Sec. 161.716  How are the proceeds from trespass distributed?

    Unless otherwise provided by Navajo Nation law:
    (a) BIA will treat any amounts recovered under Sec. 161.712 as 
proceeds from the sale of agricultural property from the Navajo 
Partitioned Lands upon which the trespass occurred.
    (b) Proceeds recovered under Sec. 161.712 may be distributed to:
    (1) Repair damages of the Navajo Partitioned Lands and property; or
    (2) Reimburse the affected parties, including the permittee for loss 
due to the trespass, as negotiated and provided in the permit.
    (c) Reimburse for costs associated with the enforcement.
    (d) If any money is left over after the distribution of the proceeds 
described in paragraph (b) of this section, BIA will return it to the 
trespasser or, where the owner of the impounded property cannot be 
identified within 180 days, the net proceeds of the sale will be 
deposited into the appropriate Navajo Nation account or transferred to 
the Navajo Nation under applicable tribal law.



Sec. 161.717  What happens if BIA does not collect enough money to 
satisfy the penalty?

    BIA will send written notice to the trespasser demanding immediate 
settlement and advising the trespasser that unless settlement is 
received within 5 business days from the date of receipt, BIA will 
forward the case for appropriate legal action. BIA may send a copy of 
the notice to the Navajo Nation, permittee, and any known lien holders.



                Subpart I_Concurrence/Appeals/Amendments



Sec. 161.800  How does the Navajo Nation provide concurrence to BIA?

    (a) Actions taken by BIA under this part require concurrence of the 
Navajo Nation under section 640d-9(e)(1)(A) of the Settlement Act.
    (b) For any action requiring the concurrence of the Resources 
Committee, the following procedures will apply:
    (1) Unless a longer time is specified in a particular section, or 
unless BIA grants an extension of time, the Resources Committee will 
have 45 days to review and concur with the proposed action;
    (2) If the Resources Committee concurs in writing with all or part 
of BIA proposed action, the action or a portion of it may be immediately 
implemented;
    (3) If the Resources Committee does not concur with all or part of 
the proposed action within the time prescribed in paragraph (b)(1) of 
this section, BIA will submit to the Resources Committee a written 
declaration of non-concurrence. BIA will then notify the Resources 
Committee in writing of a formal hearing to be held not sooner than 30 
days from the date of the non-concurrence declaration;
    (4) The formal hearing on non-concurrence will permit the submission 
of written evidence and argument concerning the proposal. BIA will take 
minutes of the hearing. Following the hearing, BIA may amend, alter, or 
otherwise change the proposed action. If, following a hearing, BIA 
alters or amends portions of the proposed plan of action, BIA will 
submit the altered or amended portions of the plan to the Resources 
Committee for its concurrence; and
    (5) If the Resources Committee fails or refuses to give its 
concurrence to the proposal, BIA may implement the proposal only after 
issuing a written order, based upon findings of fact, that the proposed 
action is necessary to protect the land under the Settlement Act and the 
Agricultural Act.

[[Page 436]]



Sec. 161.801  May decisions under this part be appealed?

    (a) Appeals of BIA decisions issued under this part may be taken in 
accordance with procedures in part 2 of 25 CFR.
    (b) All appeals of decisions by the Grazing Committee and Resources 
Committee will be forwarded to the Navajo Nation's Office of Hearings 
and Appeals.



Sec. 161.802  How will the Navajo Nation recommend amendments to this 
part?

    The Resources Committee will have final authority on behalf of the 
Navajo Nation to approve amendments to the Navajo Partitioned Lands 
grazing provisions, upon the recommendation of the Grazing Committee and 
the Navajo-Hopi Land Commission, and the concurrence of BIA.



PART 162_LEASES AND PERMITS--Table of Contents




                      Subpart A_General Provisions

Sec.
162.100 What are the purposes of this part?
162.101 What key terms do I need to know?
162.102 What land, or interests in land, are subject to these 
          regulations?
162.103 What types of land use agreements are covered by these 
          regulations?
162.104 When is a lease needed to authorize possession of Indian Land?
162.105 Can tracts with different Indian landowners be unitized for 
          leasing purposes?
162.106 What will BIA do if possession is taken without an approved 
          lease or other proper authorization?
162.107 What are BIA's objectives in granting or approving leases?
162.108 What are BIA's responsibilities in administering and enforcing 
          leases?
162.109 What laws, other than these regulations, will apply to leases 
          granted or approved under this part?
162.110 Can these regulations be administered by tribes, on the 
          Secretary's or on BIA's behalf?
162.111 Who owns the records associated with this part?
162.112 How must records associated with this part be preserved?
162.113 May decisions under this part be appealed?

                      Subpart B_Agricultural Leases

                           General Provisions

162.200 What types of leases are covered by this subpart?
162.201 Must agricultural land be managed in accordance with a tribe's 
          agricultural resource management plan?
162.202 How will tribal laws be enforced on agricultural land?
162.203 When can the regulations in this subpart be superseded or 
          modified by tribal laws and leasing policies?
162.204 Must notice of applicable tribal laws and leasing policies be 
          provided?
162.205 Can individual Indian landowners exempt their agricultural land 
          from certain tribal leasing policies?

                          How To Obtain a Lease

162.206 Can the terms of an agricultural lease be negotiated with the 
          Indian landowners?
162.207 When can the Indian landowners grant an agricultural lease?
162.208 Who can represent the Indian landowners in negotiating or 
          granting an agricultural lease?
162.209 When can BIA grant an agricultural lease on behalf of an Indian 
          landowner?
162.210 When can BIA grant a permit covering agricultural land?
162.211 What type of valuation or evaluation methods will be applied in 
          estimating the fair annual rental of Indian land?
162.212 When will the BIA advertise Indian land for agricultural leases?
162.213 What supporting documents must be provided prior to BIA's grant 
          or approval of an agricultural lease?
162.214 How and when will BIA decide whether to approve an agricultural 
          lease?
162.215 When will an agricultural lease be effective?
162.216 When will a BIA decision to approve an agricultural lease be 
          effective?
162.217 Must an agricultural lease or permit be recorded?

                           Lease Requirements

162.218 Is there a standard agricultural lease form?
162.219 Are there any provisions that must be included in an 
          agricultural lease?
162.220 Are there any formal requirements that must be satisfied in the 
          execution of an agricultural lease?
162.221 How should the land be described in an agricultural lease?
162.222 How much rent must be paid under an agricultural lease?
162.223 Must the rent be adjusted under an agricultural lease?
162.224 When are rent payments due under an agricultural lease?

[[Page 437]]

162.225 Will untimely rent payments made under an agricultural lease be 
          subject to interest charges or late payment penalties?
162.226 To whom can rent payments be made under an agricultural lease?
162.227 What form of rent payment can be accepted under an agricultural 
          lease?
162.228 What other types of payments are required under an agricultural 
          lease?
162.229 How long can the term of an agricultural lease run?
162.230 Can an agricultural lease be amended, assigned, sublet, or 
          mortgaged?
162.231 How can the land be used under an agricultural lease?
162.232 Can improvements be made under an agricultural lease?
162.233 Who will own the improvements made under an agricultural lease?
162.234 Must a tenant provide a bond under an agricultural lease?
162.235 What form of bond can be accepted under an agricultural lease?
162.236 How will a cash bond be administered?
162.237 What insurance is required under an agricultural lease?
162.238 What indemnities are required under an agricultural lease?
162.239 How will payment rights and obligations relating to agricultural 
          land be allocated between the Indian landowners and the 
          tenant?
162.240 Can an agricultural lease provide for negotiated remedies in the 
          event of a violation?

                          Lease Administration

162.241 Will administrative fees be charged for actions relating to 
          agricultural leases?
162.242 How will BIA decide whether to approve an amendment to an 
          agricultural lease?
162.243 How will BIA decide whether to approve an assignment or sublease 
          under an agricultural lease?
162.244 How will BIA decide whether to approve a leasehold mortgage 
          under an agricultural lease?
162.245 When will a BIA decision to approve an amendment, assignment, 
          sublease, or mortgage under an agricultural lease be 
          effective?
162.246 Must an amendment, assignment, sublease, or mortgage approved 
          under an agricultural lease be recorded?

                            Lease Enforcement

162.247 Will BIA notify a tenant when a rent payment is due under an 
          agricultural lease?
162.248 What will BIA do if rent payments are not made in the time and 
          manner required by an agricultural lease?
162.249 Will any special fees be assessed on delinquent rent payments 
          due under an agricultural lease?
162.250 How will BIA determine whether the activities of a tenant under 
          an agricultural lease are in compliance with the terms of the 
          lease?
162.251 What will BIA do in the event of a violation under an 
          agricultural lease?
162.252 What will BIA do if a violation of an agricultural lease is not 
          cured within the requisite time period?
162.253 Will BIA's regulations concerning appeal bonds apply to 
          cancellation decisions involving agricultural leases?
162.254 When will a cancellation of an agricultural lease be effective?
162.255 Can BIA take emergency action if the leased premises are 
          threatened with immediate and significant harm?
162.256 What will BIA do if a tenant holds over after the expiration or 
          cancellation of an agricultural lease?

Subpart C--Residential Leases [Reserved]

Subpart D--Business Leases [Reserved]

  Subpart E_Special Requirements for Certain Reservations 162.500 Crow 
                              Reservation.

162.500 Crow Reservation.
162.501 Fort Belknap Reservation.
162.502 Cabazon, Augustine, and Torres-Martinez Reservations, 
          California.
162.503 San Xavier and Salt River Pima-Maricopa Reservations.

                    Subpart F_Non-Agricultural Leases

162.600 What types of leases are covered by this subpart?
162.601 Grants of leases by Secretary.
162.602 Grants of leases by owners or their representatives.
162.603 Use of land of minors.
162.604 Special requirements and provisions.
162.605 Negotiation of leases.
162.606 Advertisement.
162.607 Duration of leases.
162.608 Ownership of improvements.
162.609 Unitization for leasing.
162.610 Subleases and assignments.
162.611 Payment of fees and drainage and irrigation charges.
162.612 Can a lease provide for negotiated remedies in the event of a 
          violation?
162.613 Will BIA notify a tenant when a rent payment is due under a 
          lease?
162.614 Will untimely rent payments made under a lease be subject to 
          interest charges or late payment penalties?
162.615 What will BIA do if rent payments are not made in the time and 
          manner required by a lease?

[[Page 438]]

162.616 Will any special fees be assessed on delinquent rent payments 
          due under a lease?
162.617 How will BIA determine whether the activities of a tenant under 
          a lease are in compliance with the terms of the lease?
162.618 What will BIA do in the event of a violation under a lease?
162.619 What will BIA do if a violation of a lease is not cured within 
          the requisite time period?
162.620 Will BIA's regulations concerning appeal bonds apply to 
          cancellation decisions involving leases?
162.621 When will a cancellation of a lease be effective?
162.622 Can BIA take emergency action if the leased premises are 
          threatened with immediate and significant harm?
162.623 What will BIA do if a tenant holds over after the expiration or 
          cancellation of a lease?

    Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9. 
Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs. 1, 
2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015, 1034, 35 
Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat. 128, 41 Stat. 
415, as amended, 751, 1232, sec. 17, 43 Stat. 636, 641, 44 Stat. 658, as 
amended, 894, 1365, as amended, 47 Stat. 1417, sec. 17, 48 Stat. 984, 
988, 49 Stat. 115, 1135, sec. 55, 49 Stat. 781, sec. 3, 49 Stat. 1967, 
54 Stat. 745, 1057, 60 Stat. 308, secs. 1, 2, 60 Stat. 962, sec. 5, 64 
Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat. 470, 69 Stat. 539, 540, 72 Stat. 
968, 107 Stat. 2011, 108 Stat. 4572, March 20, 1996, 110 Stat. 4016; 25 
U.S.C. 380, 393, 393a, 394, 395, 397, 402, 402a, 403, 403a, 403b, 403c, 
409a, 413, 415, 415a, 415b, 415c, 415d, 477, 635, 3701, 3702, 3703, 
3712, 3713, 3714, 3715, 3731, 3733; 44 U.S.C. 3101 et seq.

    Source: 66 FR 7109, Jan. 22, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 162.100  What are the purposes of this part?

    (a) The purposes of this part are to:
    (1) Identify the conditions and authorities under which certain 
interests in Indian land and Government land may be leased;
    (2) Describe the manner in which various types of leases may be 
obtained;
    (3) Identify terms and conditions that may be required in various 
types of leases;
    (4) Describe the policies and procedures that will be applied in the 
administration and enforcement of various types of leases; and
    (5) Identify special requirements that apply to leases made under 
special acts of Congress that apply only to certain Indian reservations.
    (b) This part includes six subparts, including separate, self-
contained subparts relating to Agricultural Leases (Subpart B), 
Residential Leases (Subpart C, reserved), Business Leases (Subpart D, 
reserved), and Non-Agricultural Leases (Subpart F), respectively. 
Subpart E identifies special provisions applicable only to leases made 
under special acts of Congress that apply only to certain Indian 
reservations. Leases covered by subpart E are also subject to the 
general provisions in subparts A through F, respectively, except to the 
extent those general provisions are inconsistent with any of the special 
provisions in subpart E or any special act of Congress under which those 
leases are made.
    (c) These regulations apply to all leases in effect when the 
regulations are promulgated; however, unless otherwise agreed by the 
parties, these regulations will not affect the validity or terms of any 
existing lease.



Sec. 162.101  What key terms do I need to know?

    For purposes of this part:
    Adult means an individual who is 18 years of age or older.
    Agricultural land means Indian land or Government land suited or 
used for the production of crops, livestock or other agricultural 
products, or Indian land suited or used for a business that supports the 
surrounding agricultural community.
    Agricultural lease means a lease of agricultural land for farming 
and/or grazing purposes.
    AIARMA means the American Indian Agricultural Resources Management 
Act of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), as 
amended on November 2, 1994 (108 Stat. 4572).
    Assignment means an agreement between a tenant and an assignee, 
whereby the assignee acquires all of the tenant's rights, and assumes 
all of the tenant's obligations, under a lease.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior and any tribe acting on behalf of BIA under Sec. 162.109 of 
this part.

[[Page 439]]

    Bond means security for the performance of certain lease 
obligations, as furnished by the tenant, or a guaranty of such 
performance as furnished by a third-party surety.
    Day means a calendar day.
    Emancipated minor means a person under 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself.
    Fair annual rental means the amount of rental income that a leased 
tract of Indian land would most probably command in an open and 
competitive market.
    Fee interest means an interest in land that is owned in unrestricted 
fee status, and is thus freely alienable by the fee owner.
    Fractionated tract means a tract of Indian land owned in common by 
Indian landowners and/or fee owners holding undivided interests therein.
    Government land means any tract, or interest therein, in which the 
surface estate is owned by the United States and administered by BIA, 
not including tribal land that has been reserved for administrative 
purposes.
    Immediate family means a spouse, brother, sister, lineal ancestor, 
lineal descendant, or member of the household of an individual Indian 
landowner.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land in trust or restricted status.
    Individually-owned land means any tract, or interest therein, in 
which the surface estate is owned by an individual Indian in trust or 
restricted status.
    Interest, when used with respect to Indian land, means an ownership 
right to the surface estate of Indian land that is unlimited or 
uncertain in duration, including a life estate.
    Lease means a written agreement between Indian landowners and a 
tenant or lessee, whereby the tenant or lessee is granted a right to 
possession of Indian land, for a specified purpose and duration. Unless 
otherwise provided, the use of this term will also include permits, as 
appropriate.
    Lessee means tenant, as defined in this section.
    Life estate means an interest in Indian land that is limited, in 
duration, to the life of the life tenant holding the interest, or the 
life of some other person.
    Majority interest means more than 50% of the trust or restricted 
interests in a tract of Indian land.
    Minor means an individual who is less than 18 years of age.
    Mortgage means a mortgage, deed of trust or other instrument that 
pledges a tenant's leasehold interest as security for a debt or other 
obligation owed by the tenant to a lender or other mortgagee.
    NEPA means the National Environmental Policy Act (42 U.S.C. Sec. 
4321, et seq.)
    Non compos mentis means a person who has been legally determined by 
a court of competent jurisdiction to be of unsound mind or incapable of 
managing his or her own affairs.
    Permit means a written agreement between Indian landowners and the 
applicant for the permit, also referred to as a permittee, whereby the 
permittee is granted a revocable privilege to use Indian land or 
Government land, for a specified purpose.
    Remainder means an interest in Indian land that is created at the 
same time as a life estate, for the use and enjoyment of its owner after 
the life estate terminates.
    Restricted land or restricted status means land the title to which 
is held by an individual Indian or a tribe and which can only be 
alienated or encumbered by the owner with the approval of the Secretary 
because of limitations contained in the conveyance instrument pursuant 
to federal law.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Sublease means a written agreement by which the tenant grants to an 
individual or entity a right to possession no greater than that held by 
the tenant under the lease.
    Surety means one who guarantees the performance of another.

[[Page 440]]

    Tenant means a person or entity who has acquired a legal right of 
possession to Indian land by a lease or permit under this part.
    Trespass means an unauthorized possession, occupancy or use of 
Indian land.
    Tribal land means the surface estate of land or any interest therein 
held by the United States in trust for a tribe, band, community, group 
or pueblo of Indians, and land that is held by a tribe, band, community, 
group or pueblo of Indians, subject to federal restrictions against 
alienation or encumbrance, and includes such land reserved for BIA 
administrative purposes when it is not immediately needed for such 
purposes. The term also includes lands held by the United States in 
trust for an Indian corporation chartered under section 17 of the Act of 
June 18, 1934 (48 Stat. 984; 25 U.S.C. Sec. 476).
    Tribal laws means the body of law that governs land and activities 
under the jurisdiction of a tribe, including ordinances and other 
enactments by the tribe, tribal court rulings, and tribal common law.
    Trust land means any tract, or interest therein, that the United 
States holds in trust status for the benefit of a tribe or individual 
Indian.
    Undivided interest means a fractional share in the surface estate of 
Indian land, where the surface estate is owned in common with other 
Indian landowners or fee owners.
    Us/We/Our means the Secretary or BIA and any tribe acting on behalf 
of the Secretary or BIA under Sec. 162.110 of this part.
    USPAP means the Uniform Standards of Professional Appraisal 
Practice, as promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.



Sec. 162.102  What land, or interests in land, are subject to these 
regulations?

    (a) These regulations apply to Indian land and Government land, 
including any tract in which an interest is owned by an individual 
Indian or tribe in trust or restricted status.
    (b) Where a life estate and remainder interest are both owned in 
trust or restricted status, the life estate and remainder interest must 
both be leased under these regulations, unless the lease is for less 
than one year in duration. Unless otherwise provided by the document 
creating the life estate or by agreement, rent payable under the lease 
must be paid to the life tenant under part 179 of this chapter.
    (c) In approving a lease under these regulations, we will not lease 
any fee interest in Indian land, nor will we collect rent on behalf of 
any fee owners. The leasing of the trust and restricted interests of the 
Indian landowners will not be conditioned on a lease having been 
obtained from the owners of any fee interests. Where all of the trust or 
restricted interests in a tract are subject to a life estate held in fee 
status, we will approve a lease of the remainder interests only if such 
action is necessary to preserve the value of the land or protect the 
interests of the Indian landowners.
    (d) These regulations do not apply to tribal land that is leased 
under a corporate charter issued by us pursuant to 25 U.S.C. Sec. 477, 
or under a special act of Congress authorizing leases without our 
approval under certain conditions, except to the extent that the 
authorizing statutes require us to enforce such leases on behalf of the 
Indian landowners.
    (e) To the extent any regulations in this part conflict with the 
Indian Land Consolidation Act Amendments of 2000, Public Law 106-462, 
the provisions of that Act will govern.



Sec. 162.103  What types of land use agreements are covered by these 
regulations?

    (a) These regulations cover leases that authorize the possession of 
Indian land. These regulations do not apply to:
    (1) Mineral leases, prospecting permits, or mineral development 
agreements, as covered by parts 211, 212 and 225 of this chapter and 
similar parts specific parts specific to particular tribes;
    (2) Grazing permits, as covered by part 166 of this chapter and 
similar

[[Page 441]]

parts specific parts specific to particular tribes;
    (3) Timber contracts, as covered by part 163 of this chapter;
    (4) Management contracts, joint venture agreements, or other 
encumbrances of tribal land, as covered by 25 U.S.C. Sec. 81, as 
amended;
    (5) Leases of water rights associated with Indian land, except to 
the extent the use of such water rights is incorporated in a lease of 
the land itself; and
    (6) Easements or rights-of-way, as covered by part 169 of this 
chapter.
    (b) Where appropriate, the regulations in this part that 
specifically refer to leases will apply to permits that authorize the 
temporary, non-possessory use of Indian land or Government land, not 
including:
    (1) Land assignments and similar instruments authorizing temporary 
uses by tribal members, in accordance with tribal laws or custom; and
    (2) Trader's licenses issued under part 140 of this chapter.



Sec. 162.104  When is a lease needed to authorize possession of Indian 
Land?

    (a) An Indian landowner who owns 100% of the trust or restricted 
interests in a tract may take possession without a lease or any other 
prior authorization from us.
    (b) An Indian landowner of a fractional interest in a tract must 
obtain a lease of the other trust and restricted interests in the tract, 
under these regulations, unless the Indian co-owners have given the 
landowner's permission to take or continue in possession without a 
lease.
    (c) A parent or guardian of a minor child who owns 100% of the trust 
interests in the land may take possession without a lease. We may 
require that the parent or guardian provide evidence of a direct benefit 
to the minor child. When the child reaches the age of majority, a lease 
must be obtained under these regulations to authorize continued 
possession.
    (d) Any other person or legal entity, including an independent legal 
entity owned and operated by a tribe, must obtain a lease under these 
regulations before taking possession.



Sec. 162.105  Can tracts with different Indian landowners be unitized 
for leasing purposes?

    (a) A lease negotiated by Indian landowners may cover more than one 
tract of Indian land, but the minimum consent requirements for leases 
granted by Indian landowners under subparts B through D of this part 
will apply to each tract separately. We may combine multiple tracts into 
a unit for leases negotiated or advertised by us, if we determine that 
unitization is in the Indian landowners' best interests and consistent 
with the efficient administration of the land.
    (b) Unless otherwise provided in the lease, the rent or other 
consideration derived from a unitized lease will be distributed based on 
the size of each landowner's interest in proportion to the acreage 
within the entire unit.



Sec. 162.106  What will BIA do if possession is taken without an 
approved lease or other proper authorization?

    (a) If a lease is required, and possession is taken without a lease 
by a party other than an Indian landowner of the tract, we will treat 
the unauthorized use as a trespass. Unless we have reason to believe 
that the party in possession is engaged in negotiations with the Indian 
landowners to obtain a lease, we will take action to recover possession 
on behalf of the Indian landowners, and pursue any additional remedies 
available under applicable law.
    (b) Where a trespass involves Indian agricultural land, we will also 
assess civil penalties and costs under part 166, subpart I, of this 
chapter.



Sec. 162.107  What are BIA's objectives in granting or approving leases?

    (a) We will assist Indian landowners in leasing their land, either 
through negotiations or advertisement. In reviewing a negotiated lease 
for approval, we will defer to the landowners' determination that the 
lease is in their best interest, to the maximum extent possible. In 
granting a lease on the landowners' behalf, we will obtain a fair annual 
rental and attempt to ensure (through proper notice) that the use of the 
land is consistent with the

[[Page 442]]

landowners' wishes. We will also recognize the rights of Indian 
landowners to use their own land, so long as their Indian co-owners are 
in agreement and the value of the land is preserved.
    (b) We will recognize the governing authority of the tribe having 
jurisdiction over the land to be leased, preparing and advertising 
leases in accordance with applicable tribal laws and policies. We will 
promote tribal control and self-determination over tribal land and other 
land under the tribe's jurisdiction, through contracts and self-
governance compacts entered into under the Indian Self-Determination and 
Education Assistance Act, as amended, 25 U.S.C. Sec. 450f et seq.



Sec. 162.108  What are BIA's responsibilities in administering and 
enforcing leases?

    (a) We will ensure that tenants meet their payment obligations to 
Indian landowners, through the collection of rent on behalf of the 
landowners and the prompt initiation of appropriate collection and 
enforcement actions. We will also assist landowners in the enforcement 
of payment obligations that run directly to them, and in the exercise of 
any negotiated remedies that apply in addition to specific remedies made 
available to us under these or other regulations.
    (b) We will ensure that tenants comply with the operating 
requirements in their leases, through appropriate inspections and 
enforcement actions as needed to protect the interests of the Indian 
landowners and respond to concerns expressed by them. We will take 
immediate action to recover possession from trespassers operating 
without a lease, and take other emergency action as needed to preserve 
the value of the land.



Sec. 162.109  What laws, other than these regulations, will apply to 
leases granted or approved under this part?

    (a) Leases granted or approved under this part will be subject to 
federal laws of general applicability and any specific federal statutory 
requirements that are not incorporated in these regulations.
    (b) Tribal laws generally apply to land under the jurisdiction of 
the tribe enacting such laws, except to the extent that those tribal 
laws are inconsistent with these regulations or other applicable federal 
law. These regulations may be superseded or modified by tribal laws, 
however, so long as:
    (1) The tribal laws are consistent with the enacting tribe's 
governing documents;
    (2) The tribe has notified us of the superseding or modifying effect 
of the tribal laws;
    (3) The superseding or modifying of the regulation would not violate 
a federal statute or judicial decision, or conflict with our general 
trust responsibility under federal law; and
    (4) The superseding or modifying of the regulation applies only to 
tribal land.
    (c) State law may apply to lease disputes or define the remedies 
available to the Indian landowners in the event of a lease violation by 
the tenant, if the lease so provides and the Indian landowners have 
expressly agreed to the application of state law.



Sec. 162.110  Can these regulations be administered by tribes, on the 
Secretary's or on BIA's behalf?

    Except insofar as these regulations provide for the granting, 
approval, or enforcement of leases and permits, the provisions in these 
regulations that authorize or require us to take certain actions will 
extend to any tribe or tribal organization that is administering 
specific programs or providing specific services under a contract or 
self-governance compact entered into under the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. Sec. 450f et seq.).



Sec. 162.111  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under 25 U.S.C. Sec. 450f et seq., 
including the operation of a trust program; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.

[[Page 443]]

    (b) Records not covered by paragraph (a) of this section that are 
made or received by a tribe or tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the tribe.



Sec. 162.112  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have records identified in Sec. 162.111(a) must preserve the 
records in accordance with approved Departmental records retention 
procedures under the Federal Records Act, 44 U.S.C. Chapters 29, 31 and 
33. These records and related records management practices and 
safeguards required under the Federal Records Act are subject to 
inspection by the Secretary and the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec. 162.111(b) for the period of time authorized by the 
Archivist of the United States for similar Department of the Interior 
records in accordance with 44 U.S.C. Chapter 33. If a tribe or tribal 
organization does not preserve records associated with its conduct of 
business with the Department of the Interior under this part, it may 
prevent the tribe or tribal organization from being able to adequately 
document essential transactions or furnish information necessary to 
protect its legal and financial rights or those of persons directly 
affected by its activities.



Sec. 162.113  May decisions under this part be appealed?

    Yes. Except where otherwise provided in this part, appeals from 
decisions by the BIA under this part may be taken pursuant to 25 CFR 
part 2.



                      Subpart B_Agricultural Leases

                           General Provisions



Sec. 162.200  What types of leases are covered by this subpart?

    The regulations in this subpart apply to agricultural leases, as 
defined in this part. The regulations in this subpart may also apply to 
business leases on agricultural land, where appropriate.



Sec. 162.201  Must agricultural land be managed in accordance with 
a tribe's agricultural resource management plan?

    (a) Agricultural land under the jurisdiction of a tribe must be 
managed in accordance with the goals and objectives in any agricultural 
resource management plan developed by the tribe, or by us in close 
consultation with the tribe, under AIARMA.
    (b) A ten-year agricultural resource management and monitoring plan 
must be developed through public meetings and completed within three 
years of the initiation of the planning activity. Such a plan must be 
developed through public meetings, and be based on the public meeting 
records and existing survey documents, reports, and other research from 
federal agencies, tribal community colleges, and land grant 
universities. When completed, the plan must:
    (1) Determine available agricultural resources;
    (2) Identify specific tribal agricultural resource goals and 
objectives;
    (3) Establish management objectives for the resources;
    (4) Define critical values of the Indian tribe and its members and 
identify holistic management objectives; and
    (5) Identify actions to be taken to reach established objectives.
    (c) Where the regulations in this subpart are inconsistent with a 
tribe's agricultural resource management plan, we may waive the 
regulations under part 1 of this title, so long as the waiver does not 
violate a federal statute or judicial decision or conflict with our 
general trust responsibility under federal law.



Sec. 162.202  How will tribal laws be enforced on agricultural land?

    (a) Unless prohibited by federal law, we will recognize and comply 
with tribal laws regulating activities on agricultural land, including 
tribal laws relating to land use, environmental protection, and historic 
or cultural preservation.
    (b) While the tribe is primarily responsible for enforcing tribal 
laws pertaining to agricultural land, we will:
    (1) Assist in the enforcement of tribal laws;

[[Page 444]]

    (2) Provide notice of tribal laws to persons or entities undertaking 
activities on agricultural land, under Sec. 162.204(c) of this subpart; 
and
    (3) Require appropriate federal officials to appear in tribal forums 
when requested by the tribe, so long as such an appearance would not:
    (i) Be inconsistent with the restrictions on employee testimony set 
forth at 43 CFR Part 2, Subpart E;
    (ii) Constitute a waiver of the sovereign immunity of the United 
States; or
    (iii) Authorize or result in a review of our actions by a tribal 
court.
    (c) Where the regulations in this subpart are inconsistent with a 
tribal law, but such regulations cannot be superseded or modified by the 
tribal law under Sec. 162.109 of this part, we may waive the 
regulations under part 1 of this chapter, so long as the waiver does not 
violate a federal statute or judicial decision or conflict with our 
general trust responsibility under federal law.



Sec. 162.203  When can the regulations in this subpart be superseded 
or modified by tribal laws and leasing policies?

    (a) The regulations in this subpart may be superseded or modified by 
tribal laws, under the circumstances described in Sec. 162.109(b) of 
this part.
    (b) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for the leasing of tribal and 
individually-owned agricultural land, we will:
    (1) Waive the general prohibition against tenant preferences in 
leases advertised for bid under Sec. 162.212 of this subpart, by 
allowing prospective Indian tenants to match the highest responsible bid 
(unless the tribal leasing policy specifies some other manner in which 
the preference must be afforded);
    (2) Waive the requirement that a tenant post a bond under Sec. 
162.234 of this subpart;
    (3) Modify the requirement that a tenant post a bond in a form 
described in Sec. 162.235 of this subpart;
    (4) Approve leases of tribal land at rates established by the tribe, 
as provided in Sec. 162.222(b) of this subpart.
    (c) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for the leasing of ``highly fractionated 
undivided heirship lands'' (as defined in the tribal leasing policy), we 
may waive or modify the three-month notice requirement in Sec. 
162.209(b) of this subpart, so long as:
    (1) The tribal law or leasing policy adopts an alternative plan for 
providing notice to Indian landowners, before an agricultural lease is 
granted by us on their behalf; and
    (2) A waiver or modification of the three-month notice requirement 
is needed to prevent waste, reduce idle land acreage, and ensure lease 
income to the Indian landowners.
    (d) Tribal leasing policies of the type described in paragraphs (b) 
through (c) of this section will not apply to individually-owned land 
that has been made exempt from such laws or policies under Sec. 162.205 
of this subpart.



Sec. 162.204  Must notice of applicable tribal laws and leasing policies 
be provided?

    (a) A tribe must provide us with an official copy of any tribal law 
or leasing policy that supersedes or modifies these regulations under 
Sec. Sec. 162.109 or 162.203 of this part. If the tribe has not already 
done so, we will provide notice of such a tribal law or leasing policy 
to affected Indian landowners and persons or entities undertaking 
activities on agricultural land. Such notice will be provided in the 
manner described in paragraphs (b) through (c) of this section.
    (b) We will provide notice to Indian landowners, as to the 
superseding or modifying effect of any tribal leasing policy and their 
right to exempt their land from such a policy. Such notice will be 
provided by:
    (1) Written notice included in a notice of our intent to lease the 
land, issued under Sec. 162.209(b) of this subpart; or
    (2) Public notice posted at the tribal community building or the 
United States Post Office, or published in the local newspaper that 
serves the area in which the Indian owners' land is located, at the time 
the tribal leasing policy is adopted.
    (c) We will provide notice to persons or entities undertaking 
activities on

[[Page 445]]

agricultural land, as to the general applicability of tribal laws and 
the superseding or modifying effect of particular tribal laws and 
leasing policies. Such notice will be provided by:
    (1) Written notice included in advertisements for lease, issued 
under Sec. 162.212 of this subpart; or
    (2) Public notice posted at the tribal community building or the 
United States Post Office, or published in a local newspaper of general 
circulation, at the time the tribal law is enacted or the leasing policy 
adopted.



Sec. 162.205  Can individual Indian landowners exempt their agricultural 
land from certain tribal leasing policies?

    (a) Individual Indian landowners may exempt their agricultural land 
from the application of a tribal leasing policy of a type described in 
Sec. 162.203(b) through (c) of this subpart, if the Indian owners of at 
least 50% of the trust or restricted interests in the land submit a 
written objection to us before a lease is granted or approved.
    (b) Upon our receipt of a written objection from the Indian 
landowners that satisfies the requirements of paragraph (a) of this 
section, we will notify the tribe that the owners' land has been 
exempted from a specific tribal leasing policy. If the exempted land is 
part of a unitized lease tract, such land will be removed from the unit 
and leased separately, if appropriate.
    (c) The procedures described in paragraphs (a) and (b) of this 
section will also apply to withdrawing an approved exemption.

                          How to Obtain a Lease



Sec. 162.206  Can the terms of an agricultural lease be negotiated with 
the Indian landowners?

    An agricultural lease may be obtained through negotiation. We will 
assist prospective tenants in contacting the Indian landowners or their 
representatives for the purpose of negotiating a lease, and we will 
assist the landowners in those negotiations upon request.



Sec. 162.207  When can the Indian landowners grant an agricultural lease?

    (a) Tribes grant leases of tribally-owned agricultural land, 
including any tribally-owned undivided interest(s) in a fractionated 
tract, subject to our approval. Where tribal land is subject to a land 
assignment made to a tribal member or some other individual under tribal 
law or custom, the individual and the tribe must both grant the lease, 
subject to our approval.
    (b) Adult Indian owners, or emancipated minors, may grant 
agricultural leases of their land, including undivided interests in 
fractionated tracts, subject to our approval.
    (c) An agricultural lease of a fractionated tract may be granted by 
the owners of a majority interest in the tract, subject to our approval. 
Although prior notice to non-consenting individual Indian landowners is 
generally not needed prior to our approval of such a lease, a right of 
first refusal must be offered to any non-consenting Indian landowner who 
is using the entire lease tract at the time the lease is entered into by 
the owners of a majority interest. Where the owners of a majority 
interest grant such a lease on behalf of all of the Indian owners of a 
fractionated tract, the non-consenting Indian landowners must receive a 
fair annual rental.
    (d) As part of the negotiation of a lease, Indian landowners may 
advertise their land to identify potential tenants with whom to 
negotiate.



Sec. 162.208  Who can represent the Indian landowners in negotiating 
or granting an agricultural lease?

    The following individuals or entities may represent an individual 
Indian landowner:
    (a) An adult with custody acting on behalf of his or her minor 
children;
    (b) A guardian, conservator, or other fiduciary appointed by a court 
of competent jurisdiction to act on behalf of an individual Indian 
landowner;
    (c) An adult or legal entity who has been given a written power of 
attorney that:
    (1) Meets all of the formal requirements of any applicable tribal or 
state law;

[[Page 446]]

    (2) Identifies the attorney-in-fact and the land to be leased; and
    (3) Describes the scope of the power granted and any limits thereon.



Sec. 162.209  When can BIA grant an agricultural lease on behalf of an 
Indian landowner?

    (a) We may grant an agricultural lease on behalf of:
    (1) Individuals who are found to be non compos mentis by a court of 
competent jurisdiction;
    (2) Orphaned minors;
    (3) The undetermined heirs and devisees of deceased Indian owners;
    (4) Individuals who have given us a written power of attorney to 
lease their land; and
    (5) Individuals whose whereabouts are unknown to us, after 
reasonable attempts are made to locate such individuals; and
    (6) The individual Indian landowners of fractionated Indian land, 
when necessary to protect the interests of the individual Indian 
landowners.
    (b) We may grant an agricultural lease on behalf of all of the 
individual Indian owners of a fractionated tract, where:
    (1) We have provided the Indian landowners with written notice of 
our intent to grant a lease on their behalf, but the Indian landowners 
are unable to agree upon a lease during a three-month negotiation period 
immediately following such notice, or any other notice period 
established by a tribe under Sec. 162.203(c) of this subpart; and
    (2) The land is not being used by an Indian landowner under Sec. 
162.104(b) of this part.



Sec. 162.210  When can BIA grant a permit covering agricultural land?

    (a) We may grant a permit covering agricultural land in the same 
manner as we would grant an agricultural lease under Sec. 162.209 of 
this part. We may also grant a permit on behalf of individual Indian 
landowners, without prior notice, if it is impractical to provide notice 
to the owners and no substantial injury to the land will occur.
    (b) We may grant a permit covering agricultural land, but not an 
agricultural lease, on government land.
    (c) We will not grant a permit on tribal agricultural land, but a 
tribe may grant a permit, subject to our approval, in the same manner as 
it would grant a lease under Sec. 162.207(a) of this subpart.



Sec. 162.211  What type of valuation or evaluation methods will be 
applied in estimating the fair annual rental of Indian land?

    (a) To support the Indian landowners in their negotiations, and to 
assist in our consideration of whether an agricultural lease is in the 
Indian landowners' best interest, we must determine the fair annual 
rental of the land prior to our grant or approval of the lease, unless 
the land may be leased at less than a fair annual rental under Sec. 
162.222(b) through (c) of this subpart.
    (b) A fair annual rental may be determined by competitive bidding, 
appraisal, or any other appropriate valuation method. Where an appraisal 
or other valuation is needed to determine the fair annual rental, the 
appraisal or valuation must be prepared in accordance with USPAP.



Sec. 162.212  When will the BIA advertise Indian land for agricultural 
leases?

    (a) We will generally advertise Indian land for agricultural 
leasing:
    (1) At the request of the Indian landowners; or
    (2) Before we grant a lease under Sec. 162.209(b) of this subpart.
    (b) Advertisements will provide prospective tenants with notice of 
any superseding tribal laws and leasing policies that have been made 
applicable to the land under Sec. Sec. 162.109 and 162.203 of this 
part, along with certain standard terms and conditions to be included in 
the lease. Advertisements will prohibit tenant preferences, and bidders 
at lease sales will not be afforded any preference, unless a preference 
in favor of individual Indians is required by a superseding tribal law 
or leasing policy.
    (c) Advertisements will require sealed bids, and they may also 
provide for further competitive bidding among the prospective tenants at 
the conclusion of the bid opening. Competitive bidding should be 
supported, at a minimum, by a market study or rent survey that is 
consistent with USPAP.

[[Page 447]]



Sec. 162.213  What supporting documents must be provided prior to BIA's 
grant or approval of an agricultural lease?

    (a) If the tenant is a corporation, partnership or other legal 
entity, it must provide organizational and financial documents, as 
needed to show that the lease will be enforceable against the tenant and 
the tenant will be able to perform all of its lease obligations.
    (b) Where a bond is required under Sec. 162.234 of this subpart, 
the bond must be furnished before we grant or approve the lease.
    (c) The tenant must provide environmental and archaeological 
reports, surveys, and site assessments, as needed to document compliance 
with NEPA and other applicable federal and tribal land use requirements.



Sec. 162.214  How and when will BIA decide whether to approve an 
agricultural lease?

    (a) Before we approve a lease, we must determine in writing that the 
lease is in the best interest of the Indian landowners. In making that 
determination, we will:
    (1) Review the lease and supporting documents;
    (2) Identify potential environmental impacts and ensure compliance 
with all applicable environmental laws, land use laws, and ordinances 
(including preparation of the appropriate review documents under NEPA);
    (3) Assure ourselves that adequate consideration has been given, as 
appropriate, to:
    (i) The relationship between the use of the leased premises and the 
use of neighboring lands;
    (ii) The height, quality, and safety of any structures or other 
facilities to be constructed on the leased premises;
    (iii) The availability of police and fire protection, utilities, and 
other essential community services;
    (iv) The availability of judicial forums for all criminal and civil 
matters arising on the leased premises; and
    (v) The effect on the environment of the proposed land use.
    (4) Require any lease modifications or mitigation measures that are 
needed to satisfy any requirements of this subpart, or any other federal 
or tribal land use requirements.
    (b) Where an agricultural lease is in a form that has previously 
been accepted or approved by us, and all of the documents needed to 
support the findings required by paragraph (a) of this section have been 
received, we will decide whether to approve the lease within 30 days of 
the date of our receipt of the lease and supporting documents. If we 
decide to approve or disapprove a lease, we will notify the parties 
immediately and advise them of their right to appeal the decision under 
part 2 of this chapter. Copies of agricultural leases that have been 
approved will be provided to the tenant, and made available to the 
Indian landowners upon request.



Sec. 162.215  When will an agricultural lease be effective?

    Unless otherwise provided in the lease, an agricultural lease will 
be effective on the date on which the lease is approved by us. An 
agricultural lease may be made effective on some past or future date, by 
agreement, but such a lease may not be approved more than one year prior 
to the date on which the lease term is to commence.



Sec. 162.216  When will a BIA decision to approve an agricultural lease 
be effective?

    Our decision to approve an agricultural lease will be effective 
immediately, notwithstanding any appeal that may be filed under part 2 
of this chapter.



Sec. 162.217  Must an agricultural lease or permit be recorded?

    (a) An agricultural lease or permit must be recorded in our Land 
Titles and Records Office with jurisdiction over the land. We will 
record the lease or permit immediately following our approval under this 
subpart.
    (b) Agricultural leases of tribal land that do not require our 
approval, under Sec. 162.102 of this part, must be recorded by the 
tribe in our Land Titles and Records Office with jurisdiction over the 
land.

[[Page 448]]

                           Lease Requirements



Sec. 162.218  Is there a standard agricultural lease form?

    Based on the need for flexibility in advertising, negotiating and 
drafting of appropriate lease terms and conditions, there is no standard 
agricultural lease form that must be used. We will assist the Indian 
landowners in drafting lease provisions that conform to the requirements 
of this part.



Sec. 162.219  Are there any provisions that must be included in an 
agricultural lease?

    In addition to the other requirements of this part, all agricultural 
leases must provide that:
    (a) The obligations of the tenant and its sureties to the Indian 
landowners will also be enforceable by the United States, so long as the 
land remains in trust or restricted status;
    (b) Nothing contained in this lease shall operate to delay or 
prevent a termination of federal trust responsibilities with respect to 
the land by the issuance of a fee patent or otherwise during the term of 
the lease; however, such termination shall not serve to abrogate the 
lease. The owners of the land and the lessee and his surety or sureties 
shall be notified of any such change in the status of the land;
    (c) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, or negligent use or waste of the leased premises; and
    (d) The tenant must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements, including tribal laws 
and leasing policies.



Sec. 162.220  Are there any formal requirements that must be satisfied 
in the execution of an agricultural lease?

    (a) An agricultural lease must identify the Indian landowners and 
their respective interests in the leased premises, and the lease must be 
granted by or on behalf of each of the Indian landowners. One who 
executes a lease in a representative capacity under Sec. 162.208 of 
this subpart must identify the owner being represented and the authority 
under which such action is being taken.
    (b) An agricultural lease must be executed by individuals having the 
necessary capacity and authority to bind the tenant under applicable 
law.
    (c) An agricultural lease must include a citation of the provisions 
in this subpart that authorize our approval, along with a citation of 
the formal documents by which such authority has been delegated to the 
official taking such action.



Sec. 162.221  How should the land be described in an agricultural lease?

    An agricultural lease should describe the leased premises by 
reference to a public or private survey, if possible. If the land cannot 
be so described, the lease must include a legal description or other 
description that is sufficient to identify the leased premises, subject 
to our approval. Where there are undivided interests owned in fee 
status, the aggregate portion of trust and restricted interests should 
be identified in the description of the leased premises.



Sec. 162.222  How much rent must be paid under an agricultural lease?

    (a) An agricultural lease must provide for the payment of a fair 
annual rental at the beginning of the lease term, unless a lesser amount 
is permitted under paragraphs (b) through (d) of this section. The 
tenant's rent payments may be:
    (1) In fixed amounts; or
    (2) Based on a share of the agricultural products generated by the 
lease, or a percentage of the income to be derived from the sale of such 
agricultural products.
    (b) We will approve an agricultural lease of tribal land at a 
nominal rent, or at less than a fair annual rental, if such a rent is 
negotiated or established by the tribe.
    (c) We will approve an agricultural lease of individually-owned land 
at a nominal rent or at less than a fair annual rental, if:
    (1) The tenant is a member of the Indian landowner's immediate 
family, or a co-owner in the lease tract; or
    (2) The tenant is a cooperative or other legal entity in which the 
Indian landowners directly participate in the

[[Page 449]]

revenues or profits generated by the lease.
    (d) We will grant or approve a lease at less than a fair annual 
rental, as previously determined by an appraisal or some other 
appropriate valuation method, if the land is subsequently advertised and 
the tenant is the highest responsible bidder.



Sec. 162.223  Must the rent be adjusted under an agricultural lease?

    (a) Except as provided in paragraph (c) of this section, an 
agricultural lease must provide for one or more rental adjustments if 
the lease term runs more than five years, unless the lease provides for 
the payment of:
    (1) Less than a fair annual rental, as permitted under Sec. 
162.222(b) through (c) of this part; or
    (2) A rental based primarily on a share of the agricultural products 
generated by the lease, or a percentage of the income derived from the 
sale of agricultural products.
    (b) If rental adjustments are required, the lease must specify:
    (1) How adjustments are made;
    (2) Who makes the adjustments;
    (3) When the adjustments are effective; and
    (4) How disputes about the adjustments are resolved.
    (c) An agricultural lease of tribal land may run for a term of more 
than five years, without providing for a rental adjustment, if the tribe 
establishes such a policy under Sec. 162.203(b)(4) and negotiates such 
a lease.



Sec. 162.224  When are rent payments due under an agricultural lease?

    An agricultural lease must specify the dates on which all rent 
payments are due. Unless otherwise provided in the lease, rent payments 
may not be made or accepted more than one year in advance of the due 
date. Rent payments are due at the time specified in the lease, 
regardless of whether the tenant receives an advance billing or other 
notice that a payment is due.



Sec. 162.225  Will untimely rent payments made under an agricultural 
lease be subject to interest charges or late payment penalties?

    An agricultural lease must specify the rate at which interest will 
accrue on any rent payment not made by the due date or any other date 
specified in the lease. A lease may also identify additional late 
payment penalties that will apply if a rent payment is not made by a 
specified date. Unless otherwise provided in the lease, such interest 
charges and late payment penalties will apply in the absence of any 
specific notice to the tenant from us or the Indian landowners, and the 
failure to pay such amounts will be treated as a lease violation under 
Sec. 162.251 of this subpart.



Sec. 162.226  To whom can rent payments be made under an agricultural 
lease?

    (a) An agricultural lease must specify whether rent payments will be 
made directly to the Indian landowners or to us on behalf of the Indian 
landowners. If the lease provides for payment to be made directly to the 
Indian landowners, the lease must also require that the tenant retain 
specific documentation evidencing proof of payment, such as canceled 
checks, cash receipt vouchers, or copies of money orders or cashier's 
checks, consistent with the provisions of Sec. Sec. 162.112 and 162.113 
of this part.
    (b) Rent payments made directly to the Indian landowners must be 
made to the parties specified in the lease, unless the tenant receives 
notice of a change of ownership. Unless otherwise provided in the lease, 
rent payments may not be made payable directly to anyone other than the 
Indian landowners.
    (c) A lease that provides for rent payments to be made directly to 
the Indian landowners must also provide for such payments to be 
suspended and the rent thereafter paid to us, rather than directly to 
the Indian landowners, if:
    (1) An Indian landowner dies;
    (2) An Indian landowner requests that payment be made to us;
    (3) An Indian landowner is found by us to be in need of assistance 
in managing his/her financial affairs; or
    (4) We determine, in our discretion and after consultation with the 
Indian landowner(s), that direct payment should be discontinued.

[[Page 450]]



Sec. 162.227  What form of rent payment can be accepted under an 
agricultural lease?

    (a) When rent payments are made directly to the Indian landowners, 
the form of payment must be acceptable to the Indian landowners.
    (b) Payments made to us may be delivered in person or by mail. We 
will not accept cash, foreign currency, or third-party checks. We will 
accept:
    (1) Personal or business checks drawn on the account of the tenant;
    (2) Money orders;
    (3) Cashier's checks;
    (4) Certified checks; or
    (5) Electronic funds transfer payments.



Sec. 162.228  What other types of payments are required under an 
agricultural lease?

    (a) The tenant may be required to pay additional fees, taxes, and/or 
assessments associated with the use of the land, as determined by the 
tribe having jurisdiction over the land. The tenant must pay these 
amounts to the appropriate tribal official.
    (b) Except as otherwise provided in part 171 of this chapter, if the 
leased premises are within an Indian irrigation project or drainage 
district, the tenant must pay all operation and maintenance charges that 
accrue during the lease term. The tenant must pay these amounts to the 
appropriate official in charge of the irrigation project or drainage 
district. Failure to make such payments will constitute a violation of 
the lease under Sec. 162.251.



Sec. 162.229  How long can the term of an agricultural lease run?

    (a) An agricultural lease must provide for a definite lease term, 
specifying the commencement date. The commencement date of the lease may 
not be more than one year after the date on which the lease is approved.
    (b) The lease term must be reasonable, given the purpose of the 
lease and the level of investment required. Unless otherwise provided by 
statute, the maximum term may not exceed ten years, unless a substantial 
investment in the improvement of the land is required. If such a 
substantial investment is required, the maximum term may be up to 25 
years.
    (c) Where all of the trust or restricted interests in a tract are 
owned by a deceased Indian whose heirs and devisees have not yet been 
determined, the maximum term may not exceed two years.
    (d) An agricultural lease may not provide the tenant with an option 
to renew, and such a lease may not be renewed or extended by holdover.



Sec. 162.230  Can an agricultural lease be amended, assigned, sublet, 
or mortgaged?

    (a) An agricultural lease may authorize amendments, assignments, 
subleases, or mortgages of the leasehold interest, but only with the 
written consent of the parties to the lease in the same manner the 
original lease was approved, and our approval. An attempt by the tenant 
to mortgage the leasehold interest or authorize possession by another 
party, without the necessary consent and approval, will be treated as a 
lease violation under Sec. 162.251 of this subpart.
    (b) An agricultural lease may authorize us, one or more of the 
Indian landowners, or a designated representative of the Indian 
landowners, to consent to an amendment, assignment, sublease, mortgage, 
or other type of agreement, on the landowners' behalf. A designated 
landowner or representative may not negotiate or consent to an 
amendment, assignment, or sublease that would:
    (1) Reduce the rentals payable to the other Indian landowners; or
    (2) Terminate or modify the term of the lease.
    (c) Where the Indian landowners have not designated a representative 
for the purpose of consenting to an amendment, assignment, sublease, 
mortgage, or other type of agreement, such consent may be granted by or 
on behalf of the landowners in the same manner as a new lease, under 
Sec. Sec. 162.207 through 162.209 of this subpart.



Sec. 162.231  How can the land be used under an agricultural lease?

    (a) An agricultural lease must describe the authorized uses of the 
leased

[[Page 451]]

premises. Any use of the leased premises for an unauthorized purpose, or 
a failure by the tenant to maintain continuous operations throughout the 
lease term, will be treated as a lease violation under Sec. 162.251 of 
this subpart.
    (b) An agricultural lease must require that farming and grazing 
operations be conducted in accordance with recognized principles of 
sustained yield management, integrated resource management planning, 
sound conservation practices, and other community goals as expressed in 
applicable tribal laws, leasing policies, or agricultural resource 
management plans. Appropriate stipulations or conservation plans must be 
developed and incorporated in all agricultural leases.



Sec. 162.232  Can improvements be made under an agricultural lease?

    An agricultural lease must generally describe the type and location 
of any improvements to be constructed by the lessee. Unless otherwise 
provided in the lease, any specific plans for the construction of those 
improvements will not require the consent of the Indian owners or our 
approval.



Sec. 162.233  Who will own the improvements made under an agricultural 
lease?

    (a) An agricultural lease may specify who will own any improvements 
constructed by the tenant, during the lease term. The lease must 
indicate whether any improvements constructed by the tenant will remain 
on the leased premises upon the expiration or termination of the lease, 
providing for the improvements to either:
    (1) Remain on the leased premises, in a condition satisfactory to 
the Indian landowners and us; or
    (2) Be removed within a time period specified in the lease, at the 
tenant's expense, with the leased premises to be restored as close as 
possible to their condition prior to construction of such improvements.
    (b) If the lease allows the tenant to remove the improvements, it 
must also provide the Indian landowners with an option to waive the 
removal requirement and take possession of the improvements if they are 
not removed within the specified time period. If the Indian landowners 
choose not to exercise this option, we will take appropriate enforcement 
action to ensure removal at the tenant's expense.



Sec. 162.234  Must a tenant provide a bond under an agricultural lease?

    Unless otherwise provided by a tribe under Sec. 162.203 of this 
subpart, or waived by us at the request of the owners of a majority 
interest in an agricultural lease tract, the tenant must provide a bond 
to secure:
    (a) The payment of one year's rental;
    (b) The construction of any required improvements;
    (c) The performance of any additional lease obligations, including 
the payment of operation and maintenance charges under Sec. 162.228(b) 
of this subpart; and
    (d) The restoration and reclamation of the leased premises, to their 
condition at the commencement of the lease term or some other specified 
condition.



Sec. 162.235  What form of bond can be accepted under an agricultural 
lease?

    (a) Except as provided in paragraph (b) of this section, a bond must 
be deposited with us and made payable only to us, and such a bond may 
not be modified or withdrawn without our approval. We will only accept a 
bond in one of the following forms:
    (1) Cash;
    (2) Negotiable Treasury securities that:
    (i) Have a market value at least equal to the bond amount; and
    (ii) Are accompanied by a statement granting full authority to us to 
sell such securities in case of a violation of the terms of the lease.
    (3) Certificates of deposit that indicate on their face that our 
approval is required prior to redemption by any party;
    (4) Irrevocable letters of credit issued by federally-insured 
financial institutions authorized to do business in the United States. A 
letter of credit must:
    (i) Contain a clause that grants us the authority to demand 
immediate payment if the tenant violates the lease or fails to replace 
the letter of credit at least 30 days prior to its expiration date;
    (ii) Be payable to us;

[[Page 452]]

    (iii) Be irrevocable during its term and have an initial expiration 
date of not less than one year following the date of issuance; and
    (iv) Be automatically renewable for a period of not less than one 
year, unless the issuing financial institution provides us with written 
notice that it will not be renewed, at least 90 calendar days before the 
letter of credit's expiration date.
    (5) A surety bond issued by a company approved by the U.S. 
Department of the Treasury; or
    (6) Any other form of highly liquid, non-volatile security that is 
easily convertible to cash and for which our approval is required prior 
to redemption by any party.
    (b) A tribe may accept and hold any form of bond described in 
paragraph (a) of this section, to secure performance under an 
agricultural lease of tribal land.



Sec. 162.236  How will a cash bond be administered?

    (a) If a cash bond is submitted, we will retain the funds in an 
account established in the name of the tenant.
    (b) We will not pay interest on a cash performance bond.
    (c) If the bond is not forfeited under Sec. 162.252(a) of this 
subpart, we will refund the bond to the tenant upon the expiration or 
termination of the lease.



Sec. 162.237  What insurance is required under an agricultural lease?

    When necessary to protect the interests of the Indian landowners, an 
agricultural lease must require that a tenant provide insurance. Such 
insurance may include property, crop, liability and/or casualty 
insurance. If insurance is required, it must identify both the Indian 
landowners and the United States as insured parties, and be sufficient 
to protect all insurable improvements on the leased premises.



Sec. 162.238  What indemnities are required under an agricultural lease?

    (a) An agricultural lease must require that the tenant indemnify and 
hold the United States and the Indian landowners harmless from any loss, 
liability, or damages resulting from the tenant's use or occupation of 
the leased premises, unless:
    (1) The tenant would be prohibited by law from making such an 
agreement; or (2) The interests of the Indian landowners are adequately 
protected by insurance.
    (b) Unless the tenant would be prohibited by law from making such an 
agreement, an agricultural lease must specifically require that the 
tenant indemnify the United States and the Indian landowners against all 
liabilities or costs relating to the use, handling, treatment, removal, 
storage, transportation, or disposal of hazardous materials, or the 
release or discharge of any hazardous materials from the leased premises 
that occurs during the lease term, regardless of fault.



Sec. 162.239  How will payment rights and obligations relating to 
agricultural land be allocated between the Indian landowners and the tenant?

    (a) Unless otherwise provided in an agricultural lease, the Indian 
landowners will be entitled to receive any settlement funds or other 
payments arising from certain actions that diminish the value of the 
land or the improvements thereon. Such payments may include (but are not 
limited to) :
    (1) Insurance proceeds;
    (2) Trespass damages; and
    (3) Condemnation awards.
    (b) An agricultural lease may provide for the tenant to assume 
certain cost-share or other payment obligations that have attached to 
the land through past farming and grazing operations, so long as those 
obligations are specified in the lease and considered in any 
determination of fair annual rental made under this subpart.



Sec. 162.240  Can an agricultural lease provide for negotiated remedies 
in the event of a violation?

    (a) A lease of tribal agricultural land may provide the tribe with 
certain negotiated remedies in the event of a lease violation, including 
the power to terminate the lease. An agricultural lease of individually-
owned land may provide the individual Indian landowners with similar 
remedies, so long as the lease also specifies the manner in which those 
remedies may be exercised by or on behalf of the landowners.

[[Page 453]]

    (b) The negotiated remedies described in paragraph (a) of this 
section will apply in addition to the cancellation remedy available to 
us under Sec. 162.252(c) of this subpart. If the lease specifically 
authorizes us to exercise any negotiated remedies on behalf of the 
Indian landowners, the exercise of such remedies may substitute for 
cancellation.
    (c) An agricultural lease may provide for lease disputes to be 
resolved in tribal court or any other court of competent jurisdiction, 
or through arbitration or some other alternative dispute resolution 
method. We may not be bound by decisions made in such forums, but we 
will defer to ongoing proceedings, as appropriate, in deciding whether 
to exercise any of the remedies available to us under Sec. 162.252 of 
this subpart.

                          Lease Administration



Sec. 162.241  Will administrative fees be charged for actions relating 
to agricultural leases?

    (a) We will charge an administrative fee each time we approve an 
agricultural lease, amendment, assignment, sublease, mortgage, or 
related document. These fees will be paid by the tenant, assignee, or 
subtenant, to cover our costs in preparing or processing the documents 
and administering the lease.
    (b) Except as provided in paragraph (c) of this section, we will 
charge administrative fees based on the rent payable under the lease. 
The fee will be 3% of the annual rent payable, including any percentage-
based rent that can be reasonably estimated.
    (c) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00, and any administrative fees that have 
been paid will be non-refundable. However, we may waive all or part of 
these administrative fees, in our discretion.
    (d) If all or part of the expenses of the work are paid from tribal 
funds, the tribe may establish an additional or alternate schedule of 
fees.



Sec. 162.242  How will BIA decide whether to approve an amendment to 
an agricultural lease?

    We will approve an agricultural lease amendment if:
    (a) The required consents have been obtained from the parties to the 
lease under Sec. 162.230 and any sureties; and
    (b) We find the amendment to be in the best interest of the Indian 
landowners, under the standards set forth in Sec. 162.213 of this 
subpart.



Sec. 162.243  How will BIA decide whether to approve an assignment or 
sublease under an agricultural lease?

    (a) We will approve an assignment or sublease under an agricultural 
lease if:
    (1) The required consents have been obtained from the parties to the 
lease under Sec. 162.230 and the tenant's sureties;
    (2) The tenant is not in violation of the lease;
    (3) The assignee agrees to be bound by, or the subtenant agrees to 
be subordinated to, the terms of the lease; and
    (4) We find no compelling reason to withhold our approval in order 
to protect the best interests of the Indian owners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The Indian landowners should receive any income derived by the 
tenant from the assignment or sublease, under the terms of the lease;
    (2) The proposed use by the assignee or subtenant will require an 
amendment of the lease;
    (3) The value of any part of the leased premises not covered by the 
assignment or sublease would be adversely affected; and
    (4) The assignee or subtenant has bonded its performance and 
provided supporting documents that demonstrate that the lease or 
sublease will be enforceable against the assignee or subtenant, and that 
the assignee or subtenant will be able to perform its obligations under 
the lease or sublease.

[[Page 454]]



Sec. 162.244  How will BIA decide whether to approve a leasehold 
mortgage under an agricultural lease?

    (a) We will approve a leasehold mortgage under an agricultural lease 
if:
    (1) The required consents have been obtained from the parties to the 
lease under Sec. 162.230 and the tenant's sureties;
    (2) The mortgage covers only the tenant's interest in the leased 
premises, and no unrelated collateral;
    (3) The loan being secured by the mortgage will be used only in 
connection with the development or use of the leased premises, and the 
mortgage does not secure any unrelated debts owed by the tenant to the 
mortgagee; and
    (4) We find no compelling reason to withhold our approval in order 
to protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The tenant's ability to comply with the lease would be adversely 
affected by any new loan obligations;
    (2) Any lease provisions would be modified by the mortgage;
    (3) The remedies available to us or to the Indian landowners would 
be limited (beyond any additional notice and cure rights to be afforded 
to the mortgagee), in the event of a lease violation; and
    (4) Any rights of the Indian landowners would be subordinated or 
adversely affected in the event of a loan default by the tenant.



Sec. 162.245  When will a BIA decision to approve an amendment, 
assignment, sublease, or mortgage under an agricultural lease be 
effective?

    Our decision to approve an amendment, assignment, sublease, or 
mortgage under an agricultural lease will be effective immediately, 
notwithstanding any appeal that may be filed under part 2 of this 
chapter. Copies of approved documents will be provided to the party 
requesting approval, and made available to the Indian landowners upon 
request.



Sec. 162.246  Must an amendment, assignment, sublease, or mortgage 
approved under an agricultural lease be recorded?

    An amendment, assignment, sublease, or mortgage approved under an 
agricultural lease must be recorded in our Land Titles and Records 
Office that has jurisdiction over the leased premises. We will record 
the document immediately following our approval under this subpart.

                            Lease Enforcement



Sec. 162.247  Will BIA notify a tenant when a rent payment is due under 
an agricultural lease?

    We may issue bills or invoices to a tenant in advance of the dates 
on which rent payments are due under an agricultural lease, but the 
tenant's obligation to make such payments in a timely manner will not be 
excused if such bills or invoices are not delivered or received.



Sec. 162.248  What will BIA do if rent payments are not made in the 
time and manner required by an agricultural lease?

    (a) A tenant's failure to pay rent in the time and manner required 
by an agricultural lease will be a violation of the lease, and a notice 
of violation will be issued under Sec. 162.251 of this subpart. If the 
lease requires that rent payments be made to us, we will send the tenant 
and its sureties a notice of violation within five business days of the 
date on which the rent payment was due. If the lease provides for 
payment directly to the Indian landowners, we will send the tenant and 
its sureties a notice of violation within five business days of the date 
on which we receive actual notice of non-payment from the landowners.
    (b) If a tenant fails to provide adequate proof of payment or cure 
the violation within the requisite time period described in Sec. 
162.251(b) of this subpart, and the amount due is not in dispute, we may 
immediately take action to recover the amount of the unpaid rent and any 
associated interest charges or late payment penalties. We may also 
cancel the lease under Sec. 162.252 of this subpart, or invoke any 
other remedies available under the lease or applicable

[[Page 455]]

law, including collection on any available bond or referral of the debt 
to the Department of the Treasury for collection. An action to recover 
any unpaid amounts will not be conditioned on the prior cancellation of 
the lease or any further notice to the tenant, nor will such an action 
be precluded by a prior cancellation.
    (c) Partial payments may be accepted by the Indian landowners or us, 
but acceptance will not operate as a waiver with respect to any amounts 
remaining unpaid or any other existing lease violations. Unless 
otherwise provided in the lease, overpayments may be credited as an 
advance against future rent payments, or refunded.
    (d) If a personal or business check is dishonored, and a rent 
payment is therefore not made by the due date, the failure to make the 
payment in a timely manner will be a violation of the lease, and a 
notice of violation will be issued under Sec. 162.251 of this subpart. 
Any payment made to cure such a violation, and any future payments by 
the same tenant, must be made by one of the alternative payment methods 
listed in Sec. 162.227(b) of this subpart.



Sec. 162.249  Will any special fees be assessed on delinquent rent 
payments due under an agricultural lease?

    The following special fees will be assessed if rent is not paid in 
the time and manner required, in addition to any interest or late 
payment penalties that must be paid to the Indian landowners under an 
agricultural lease. The following special fees will be assessed to cover 
administrative costs incurred by the United States in the collection of 
the debt:

------------------------------------------------------------------------
       The tenant will pay * * *                    For * * *
------------------------------------------------------------------------
(a) $50.00.............................  Administrative fee for
                                          dishonored checks.
(b) $15.00.............................  Administrative fee for BIA
                                          processing of each notice or
                                          demand letter.
(c) 18% of balance due.................  Administrative fee charged by
                                          Treasury following referral
                                          for collection of delinquent
                                          debt.
------------------------------------------------------------------------



Sec. 162.250  How will BIA determine whether the activities of a tenant 
under an agricultural lease are in compliance with the terms of the lease?

    (a) Unless an agricultural lease provides otherwise, we may enter 
the leased premises at any reasonable time, without prior notice, to 
protect the interests of the Indian landowners and ensure that the 
tenant is in compliance with the operating requirements of the lease.
    (b) If an Indian landowner notifies us that a specific lease 
violation has occurred, we will initiate an appropriate investigation 
within five business days of that notification.



Sec. 162.251  What will BIA do in the event of a violation under an 
agricultural lease?

    (a) If we determine that an agricultural lease has been violated, we 
will send the tenant and its sureties a notice of violation within five 
business days of that determination. The notice of violation must be 
provided by certified mail, return receipt requested.
    (b) Within ten business days of the receipt of a notice of 
violation, the tenant must:
    (1) Cure the violation and notify us in writing that the violation 
has been cured;
    (2) Dispute our determination that a violation has occurred and/or 
explain why we should not cancel the lease; or
    (3) Request additional time to cure the violation.



Sec. 162.252  What will BIA do if a violation of an agricultural lease 
is not cured within the requisite time period?

    (a) If the tenant does not cure a violation of an agricultural lease 
within the requisite time period, we will consult with the Indian 
landowners, as appropriate, and determine whether:
    (1) The lease should be canceled by us under paragraph (c) of this 
section and Sec. Sec. 162.253 through 162.254 of this subpart;
    (2) We should invoke any other remedies available to us under the 
lease, including collecting on any available bond;

[[Page 456]]

    (3) The Indian landowners wish to invoke any remedies available to 
them under the lease; or
    (4) The tenant should be granted additional time in which to cure 
the violation.
    (b) If we decide to grant a tenant additional time in which to cure 
a violation, the tenant must proceed diligently to complete the 
necessary corrective actions within a reasonable or specified time 
period from the date on which the extension is granted.
    (c) If we decide to cancel the lease, we will send the tenant and 
its sureties a cancellation letter within five business days of that 
decision. The cancellation letter must be sent to the tenant by 
certified mail, return receipt requested. We will also provide actual or 
constructive notice of a cancellation decision to the Indian landowners, 
as appropriate. The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) Notify the tenant of the amount of any unpaid rent, interest 
charges, or late payment penalties due under the lease;
    (3) Notify the tenant of its right to appeal under part 2 of this 
chapter, as modified by Sec. 162.253 of this subpart, including the 
amount of any appeal bond that must be posted with an appeal of the 
cancellation decision; and
    (4) Order the tenant to vacate the property within 30 days of the 
date of receipt of the cancellation letter, if an appeal is not filed by 
that time.



Sec. 162.253  Will BIA's regulations concerning appeal bonds apply 
to cancellation decisions involving agricultural leases?

    (a) The appeal bond provisions in Sec. 2.5 of part 2 of this 
chapter will not apply to appeals from lease cancellation decisions made 
under Sec. 162.252 of this subpart. Instead, when we decide to cancel 
an agricultural lease, we may require that the tenant post an appeal 
bond with an appeal of the cancellation decision. The requirement to 
post an appeal bond will apply in addition to all of the other 
requirements in part 2 of this chapter.
    (b) An appeal bond should be set in an amount necessary to protect 
the Indian landowners against financial losses that will likely result 
from the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
lease cancellation decision.



Sec. 162.254  When will a cancellation of an agricultural lease be 
effective?

    A cancellation decision involving an agricultural lease will not be 
effective until 30 days after the tenant receives a cancellation letter 
from us. The cancellation decision will remain ineffective if the tenant 
files an appeal under Sec. 162.253 of this subpart and part 2 of this 
chapter, unless the decision is made immediately effective under part 2. 
While a cancellation decision is ineffective, the tenant must continue 
to pay rent and comply with the other terms of the lease. If an appeal 
is not filed in accordance with Sec. 162.253 of this subpart and part 2 
of this chapter, the cancellation decision will be effective on the 31st 
day after the tenant receives the cancellation letter from us.



Sec. 162.255  Can BIA take emergency action if the leased premises are 
threatened with immediate and significant harm?

    If a tenant or any other party causes or threatens to cause 
immediate and significant harm to the leased premises during the term of 
an agricultural lease, we will take appropriate emergency action. 
Emergency action may include trespass proceedings under part 166, 
subpart I, of this chapter, or judicial action seeking immediate 
cessation of the activity resulting in or threatening the harm. 
Reasonable efforts will be made to notify the Indian landowners, either 
before or after the emergency action is taken.



Sec. 162.256  What will BIA do if a tenant holds over after the 
expiration or cancellation of an agricultural lease?

    If a tenant remains in possession after the expiration or 
cancellation of an agricultural lease, we will treat the unauthorized 
use as a trespass. Unless we have reason to believe that the tenant is 
engaged in negotiations with the Indian landowners to obtain a new 
lease, we will take action to recover

[[Page 457]]

possession on behalf of the Indian landowners, and pursue any additional 
remedies available under applicable law, including the assessment of 
civil penalties and costs under part 166, subpart I, of this chapter.

Subpart C--Residential Leases [Reserved]

Subpart D--Business Leases [Reserved]



         Subpart E_Special Requirements for Certain Reservations



Sec. 162.500  Crow Reservation.

    (a) Notwithstanding the regulations in other sections of this part 
162, Crow Indians classified as competent under the Act of June 4, 1920 
(41 Stat. 751), as amended, may lease their trust lands and the trust 
lands of their minor children for farming or grazing purposes without 
the approval of the Secretary pursuant to the Act of May 26, 1926 (44 
Stat. 658), as amended by the Act of March 15, 1948 (62 Stat. 80). 
However, at their election Crow Indians classified as competent may 
authorize the Secretary to lease, or assist in the leasing of such 
lands, and an appropriate notice of such action shall be made a matter 
of record. When this prerogative is exercised, the general regulations 
contained in this part 162 shall be applicable. Approval of the 
Secretary is required on leases signed by Crow Indians not classified as 
competent or made on inherited or devised trust lands owned by more than 
five competent devisees or heirs.
    (b) The Act of May 26, 1926 (44 Stat. 658), as amended by the Act of 
March 15, 1948 (62 Stat. 80), provides that no lease for farming or 
grazing purposes shall be made for a period longer than five years, 
except irrigable lands under the Big Horn Canal; which may be leased for 
periods of ten years. No such lease shall provide the lessee a 
preference right to future leases which, if exercised, would thereby 
extend the total period of encumbrance beyond the five or ten years 
authorized by law.
    (c) All leases entered into by Crow Indians classified as competent, 
under the above-cited special statutes, must be recorded at the Crow 
Agency. Such recording shall constitute notice to all persons. Under 
these special statutes, Crow Indians classified as competent are free to 
lease their property within certain limitations. The five-year (ten-year 
in the case of lands under the Big Horn Canal) limitation is intended to 
afford a protection to the Indians. The essence of this protection is 
the right to deal with the property free, clear, and unencumbered at 
intervals at least as frequent as those provided by law. If lessees are 
able to obtain new leases long before the termination of existing 
leases, they are in a position to set their own terms. In these 
circumstances lessees could perpetuate their leaseholds and the 
protection of the statutory limitations as to terms would be destroyed. 
Therefore, in implementation of the foregoing interpretation, any lease 
which, on its face, is in violation of statutory limitations or 
requirements, and any grazing lease executed more than 12 months, and 
any farming lease executed more than 18 months, prior to the 
commencement of the term thereof or any lease which purports to cancel 
an existing lease with the same lessee as of a future date and take 
effect upon such cancellation will not be recorded. Under a Crow tribal 
program, approved by the Department of the Interior, competent Crow 
Indians may, under certain circumstances, enter into agreements which 
require that, for a specified term, their leases be approved. 
Information concerning whether a competent Crow Indian has executed such 
an instrument is available at the office of the Superintendent of the 
Crow Agency, Bureau of Indian Affairs, Crow Agency, Montana. Any lease 
entered into with a competent Crow Indian during the time such 
instrument is in effect and which is not in accordance with such 
instrument will be returned without recordation.
    (d) Where any of the following conditions are found to exist, leases 
will be recorded but the lessee and lessor will be notified upon 
discovery of the condition:
    (1) The lease in single or counterpart form has not been executed by 
all owners of the land described in the lease;

[[Page 458]]

    (2) There is, of record, a lease on the land for all or a part of 
the same term;
    (3) The lease does not contain stipulations requiring sound land 
utilization plans and conservation practices; or
    (4) There are other deficiencies such as, but not limited to, 
erroneous land descriptions, and alterations which are not clearly 
endorsed by the lessor.
    (e) Any adult Crow Indian classified as competent shall have the 
full responsibility for obtaining compliance with the terms of any lease 
made by him pursuant to this section. This shall not preclude action by 
the Secretary to assure conservation and protection of these trust 
lands.
    (f) Leases made by competent Crow Indians shall be subject to the 
right to issue permits and leases to prospect for, develop, and mine 
oil, gas, and other minerals, and to grant rights-of-way and easements, 
in accordance with applicable law and regulations. In the issuance or 
granting of such permits, leases, rights-of-way or easements due 
consideration will be given to the interests of lessees and to the 
adjustment of any damages to such interests. In the event of a dispute 
as to the amount of such damage, the matter will be referred to the 
Secretary whose determination will be final as to the amount of said 
damage.



Sec. 162.501  Fort Belknap Reservation.

    Not to exceed 20,000 acres of allotted and tribal lands (non-
irrigable as well as irrigable) on the Fort Belknap Reservation in 
Montana may be leased for the culture of sugar beets and other crops in 
rotation for terms not exceeding ten years.



Sec. 162.502  Cabazon, Augustine, and Torres-Martinez Reservations, 
California.

    (a) Upon a determination by the Secretary that the owner or owners 
are not making beneficial use thereof, restricted lands on the Cabazon, 
Augustine, and Torres-Martinez Indian Reservations which are or may be 
irrigated from distribution facilities administered by the Coachella 
Valley County Water District in Riverside County, California, may be 
leased by the Secretary in accordance with the regulations in this part 
for the benefit of the owner or owners.
    (b) All leases granted or approved on restricted lands of the 
Cabazon, Augustine, and Torres-Martinez Indian Reservations shall be 
filed for record in the office of the county recorder of the county in 
which the land is located, the cost thereof to be paid by the lessee. A 
copy of each such lease shall be filed by the lessee with the Coachella 
Valley County Water District or such other irrigation or water district 
within which the leased lands are located. All such leases shall include 
a provision that the lessee, in addition to the rentals provided for in 
the lease, shall pay all irrigation charges properly assessed against 
the land which became payable during the term of the lease. Act of 
August 25, 1950 (64 Stat. 470); Act of August 28, 1958 (72 Stat. 968).



Sec. 162.503  San Xavier and Salt River Pima-Maricopa Reservations.

    (a) Purpose and scope. The Act of November 2, 1966 (80 Stat. 1112), 
provides statutory authority for long-term leasing on the San Xavier and 
Salt River Pima-Maricopa Reservations, Arizona, in addition to that 
contained in the Act of August 9, 1955 (69 Stat. 539), as amended (25 
U.S.C. 415). When leases are made under the 1955 Act on the San Xavier 
or Salt River Pima-Maricopa Reservations, the regulations in part 162 
apply. The purpose of this section is to provide regulations for 
implementation of the 1966 Act. The 1966 Act does not apply to leases 
made for purposes that are subject to the laws governing mining leases 
on Indian lands.
    (b) Duration of leases. Leases made under the 1966 Act for public, 
religious, educational, recreational, residential, or business purposes 
may be made for terms of not to exceed 99 years. The terms of a grazing 
lease shall not exceed ten years; the term of a farming lease that does 
not require the making of a substantial investment in the improvement of 
the land shall not exceed ten years; and the term of a farming lease 
that requires the making of a substantial investment in the improvement 
of the land shall not exceed 40 years. No lease shall contain an option 
to renew which extends the total term

[[Page 459]]

beyond the maximum term permitted by this section.
    (c) Required covenant and enforcement thereof. Every lease under the 
1966 Act shall contain a covenant on the part of the lessee that he will 
not commit or permit on the leased land any act that causes waste or a 
nuisance or which creates a hazard to health of persons or to property 
wherever such persons or property may be.
    (d) Notification regarding leasing proposals. If the Secretary 
determines that a proposed lease to be made under the 1966 Act for 
public, religious, educational, recreational, residential, or business 
purposes will substantially affect the governmental interests of a 
municipality contiguous to the San Xavier Reservation or the Salt River 
Pima-Maricopa Reservation, as the case may be, he shall notify the 
appropriate authority of such municipality of the pendency of the 
proposed lease. The Secretary may, in his discretion, furnish such 
municipality with an outline of the major provisions of the lease which 
affect its governmental interests and shall consider any comments on the 
terms of the lease affecting the municipality or on the absence of such 
terms from the lease that the authorities may offer. The notice to the 
authorities of the municipality shall set forth a reasonable period, not 
to exceed 30 days, within which any such comments shall be submitted.
    (e) Applicability of other regulations. The regulations in part 162 
of this title shall apply to leases made under the 1966 Act except where 
such regulations are inconsistent with this section.
    (f) Mission San Xavier del Bac. Nothing in the 1966 Act authorizes 
development that would detract from the scenic, historic, and religious 
values of the Mission San Xavier del Bac owned by the Franciscan Order 
of Friars Minor and located on the San Xavier Reservation.



                    Subpart F_Non-Agricultural Leases



Sec. 162.600  What types of leases are covered by this subpart?

    The regulations in this subpart apply to any leases other than 
agricultural leases, as defined in this part. To the extent that any of 
the regulations in this subpart conflict with the provisions of the 
Indian Land Consolidation Act Amendments of 2000, Pub. Law. 106-462, the 
provisions of that Act will govern.



Sec. 162.601  Grants of leases by Secretary.

    (a) The Secretary may grant leases on individually owned land on 
behalf of:
    (1) Persons who are non compos mentis;
    (2) Orphaned minors;
    (3) The undetermined heirs of a decedent's estate;
    (4) The heirs or devisees to individually owned land who have not 
been able to agree upon a lease during the three-month period 
immediately following the date on which a lease may be entered into; 
provided, that the land is not in use by any of the heirs or devisees; 
and
    (5) Indians who have given the Secretary written authority to 
execute leases on their behalf.
    (b) The Secretary may grant leases on the individually owned land of 
an adult Indian whose whereabouts is unknown, on such terms as are 
necessary to protect and preserve such property.
    (c) The Secretary may grant permits on Government land.



Sec. 162.602  Grants of leases by owners or their representatives.

    The following may grant leases:
    (a) Adults, other than those non compos mentis,
    (b) Adults, other than those non compos mentis, on behalf of their 
minor children, and on behalf of minor children to whom they stand in 
loco parentis when such children do not have a legal representative,
    (c) The guardian, conservator or other fiduciary, appointed by a 
state court or by a tribal court operating under an approved 
constitution or law and order code, of a minor or persons who are non 
compos mentis or are otherwise under legal disability,
    (d) Tribes or tribal corporations acting through their appropriate 
officials.



Sec. 162.603  Use of land of minors.

    The natural or legal guardian, or other person standing in loco 
parentis

[[Page 460]]

of minor children who have the care and custody of such children may use 
the individually owned land of such children during the period of 
minority without charge for the use of the land if such use will enable 
such person to engage in a business or other enterprise which will be 
beneficial to such minor children.



Sec. 162.604  Special requirements and provisions.

    (a) All leases made pursuant to the regulations in this part shall 
be in the form approved by the Secretary and subject to his written 
approval.
    (b) Except as otherwise provided in this part no lease shall be 
approved or granted at less than the present fair annual rental.
    (1) An adult Indian owner of trust or restricted land may lease his 
land for religious, educational, recreational or other public purposes 
to religious organizations or to agencies of the federal, state or local 
government at a nominal rental. Such adult Indian may lease land to 
members of his immediate family with or without rental consideration.
    (2) In the discretion of the Secretary, tribal land may be leased at 
a nominal rental for religious, educational, recreational, or other 
public purposes to religious organizations or to agencies of federal, 
state, or local governments; for purposes of subsidization for the 
benefit of the tribe; and for homesite purposes to tribal members 
provided the land is not commercial or industrial in character.
    (3) Leases may be granted or approved by the Secretary at less than 
the fair annual rental when in his judgment such action would be in the 
best interest of the landowners.
    (c) Unless otherwise provided by the Secretary a satisfactory surety 
bond will be required in an amount that will reasonably assure 
performance of the contractual obligations under the lease. Such bond 
may be for the purpose of guaranteeing:
    (1) Not less than one year's rental unless the lease contract 
provides that the annual rental shall be paid in advance.
    (2) The estimated construction cost of any improvement to be placed 
on the land by the lessee.
    (3) An amount estimated to be adequate to insure compliance with any 
additional contractual obligations.
    (d) The lessee may be required to provide insurance in an amount 
adequate to protect any improvements on the leased premises; the lessee 
may also be required to furnish appropriate liability insurance, and 
such other insurance as may be necessary to protect the lessor's 
interest.
    (e) No lease shall provide the lessee a preference right to future 
leases nor shall any lease contain provisions for renewal, except as 
otherwise provided in this part. No lease shall be entered into more 
than 12 months prior to the commencement of the term of the lease. 
Except with the approval of the Secretary no lease shall provide for 
payment of rent in advance of the beginning of the annual use period for 
which such rent is paid. The lease contract shall contain provisions as 
to the dates rents shall become due and payable.
    (f) Leases granted or approved under this part shall contain 
provisions as to whether payment of rentals is to be made direct to the 
owner of the land or his representative or to the official of the Bureau 
of Indian Affairs having jurisdiction over the leased premises.
    (g) All leases issued under this part shall contain the following 
provisions:
    (1) While the leased premises are in trust or restricted status, all 
of the lessee's obligations under this lease, and the obligations of his 
sureties, are to the United States as well as to the owner of the land.
    (2) Nothing contained in this lease shall operate to delay or 
prevent a termination of federal trust responsibilities with respect to 
the land by the issuance of a fee patent or otherwise during the term of 
the lease; however, such termination shall not serve to abrogate the 
lease. The owners of the land and the lessee and his surety or sureties 
shall be notified of any such change in the status of the land.
    (3) The lessee agrees that he will not use or cause to be used any 
part of the leased premises for any unlawful conduct or purpose.

[[Page 461]]

    (h) Leases granted or approved under this part on individually owned 
lands which provide for payment of rental direct to the owner or his 
representative shall contain the following provisions:
    (1) In the event of the death of the owner during the term of this 
lease and while the leased premises are in trust or restricted status, 
all rentals remaining due or payable to the decedent or his 
representative under the provisions of the lease shall be paid to the 
official of the Bureau of Indian Affairs having jurisdiction over the 
leased premises.
    (2) While the leased premises are in trust or restricted status, the 
Secretary may in his discretion suspend the direct rental payment 
provisions of this lease in which event the rentals shall be paid to the 
official of the Bureau of Indian Affairs having jurisdiction over the 
leased premises.



Sec. 162.605  Negotiation of leases.

    (a) Leases of individually owned land or tribal land may be 
negotiated by those owners or their representatives who may execute 
leases pursuant to Sec. 162.602 of this subpart.
    (b) Where the owners of a majority interest, or their 
representatives, who may grant leases under Sec. 162.602 of this 
subpart, have negotiated a lease satisfactory to the Secretary he may 
join in the execution of the lease and thereby commit the interests of 
those persons in whose behalf he is authorized to grant leases under 
Sec. 162.601(a)(1), (2), (3), and (5) of this subpart.
    (c) Where the Secretary may grant leases under Sec. 162.601 of this 
subpart he may negotiate leases when in his judgment the fair annual 
rental can thus be obtained.



Sec. 162.606  Advertisement.

    Except as otherwise provided in this part, prior to granting a lease 
or permit as authorized under Sec. 162.601 of this subpart the 
Secretary shall advertise the land for lease. Advertisements will call 
for sealed bids and will not offer preference rights.



Sec. 162.607  Duration of leases.

    Leases granted or approved under this part shall be limited to the 
minimum duration, commensurate with the purpose of the lease, that will 
allow the highest economic return to the owner consistent with prudent 
management and conservation practices, and except as otherwise provided 
in this part shall not exceed the number of years provided for in this 
section. Except for those leases authorized by Sec. 162.604(b)(1) and 
(2) of this subpart, unless the consideration for the lease is based 
primarily on percentages of income produced by the land, the lease shall 
provide for periodic review, at not less than five-year intervals, of 
the equities involved. Such review shall give consideration to the 
economic conditions at the time, exclusive of improvement or development 
required by the contract or the contribution value of such improvements. 
Any adjustments of rental resulting from such review may be made by the 
Secretary where he has the authority to grant leases, otherwise the 
adjustment must be made with the written concurrence of the owners and 
the approval of the Secretary.
    (a) Leases for public, religious, educational, recreational, 
residential, or business purposes shall not exceed 25 years but may 
include provisions authorizing a renewal or an extension for one 
additional term of not to exceed 25 years, except such leases of land on 
the Hollywood (formerly Dania) Reservation, Fla.; the Navajo 
Reservation, Ariz., N. Mex., and Utah; the Palm Springs Reservation, 
Calif.; the Southern Ute Reservation, Colo.; the Fort Mohave 
Reservation, Calif., Ariz., and Nev.; the Pyramid Lake Reservation, 
Nev.; the Gila River Reservation, Ariz.; the San Carlos Apache 
Reservation, Ariz.; the Spokane Reservation, Wash.; the Hualapai 
Reservation, Ariz.; the Swinomish Reservation, Wash.; the Pueblos of 
Cochiti, Pojoaque, Tesuque, and Zuni, N. Mex.; and land on the Colorado 
River Reservation, Ariz., and Calif.; which leases may be made for terms 
of not to exceed 99 years.
    (b) Leases granted by the Secretary pursuant to Sec. 162.601(a)(3) 
of this subpart shall be for a term of not to exceed two years except as 
otherwise provided in Sec. 162.605(b) of this subpart.



Sec. 162.608  Ownership of improvements.

    Improvements placed on the leased land shall become the property of 
the

[[Page 462]]

lessor unless specifically excepted therefrom under the terms of the 
lease. The lease shall specify the maximum time allowed for removal of 
any improvements so excepted.



Sec. 162.609  Unitization for leasing.

    Where it appears advantageous to the owners and advantageous to the 
operation of the land a single lease contract may include more than one 
parcel of land in separate ownerships, tribal or individual, provided 
the statutory authorities and other applicable requirements of this part 
are observed.



Sec. 162.610  Subleases and assignments.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, a sublease, assignment, amendment or encumbrance of any lease 
or permit issued under this part may be made only with the approval of 
the Secretary and the written consent of all parties to such lease or 
permit, including the surety or sureties.
    (b) With the consent of the Secretary, the lease may contain a 
provision authorizing the lessee to sublease the premises, in whole or 
in part, without further approval. Subleases so made shall not serve to 
relieve the sublessor from any liability nor diminish any supervisory 
authority of the Secretary provided for under the approved lease.
    (c) With the consent of the Secretary, the lease may contain 
provisions authorizing the lessee to encumber his leasehold interest in 
the premises for the purpose of borrowing capital for the development 
and improvement of the leased premises. The encumbrance instrument, must 
be approved by the Secretary. If a sale or foreclosure under the 
approved encumbrance occurs and the encumbrancer is the purchaser, he 
may assign the leasehold without the approval of the Secretary or the 
consent of the other parties to the lease, provided, however, that the 
assignee accepts and agrees in writing to be bound by all the terms and 
conditions of the lease. If the purchaser is a party other than the 
encumbrancer, approval by the Secretary of any assignment will be 
required, and such purchaser will be bound by the terms of the lease and 
will assume in writing all the obligations thereunder.
    (d) With the consent of the Secretary, leases of tribal land to 
individual members of the tribe or to tribal housing authorities may 
contain provisions permitting the assignment of the lease without 
further consent or approval where a lending institution or an agency of 
the United States makes, insures or guarantees a loan to an individual 
member of the tribe or to a tribal housing authority for the purpose of 
providing funds for the construction of housing for Indians on the 
leased premises; provided, the leasehold has been pledged as security 
for the loan and the lender has obtained the leasehold by foreclosure or 
otherwise. Such leases may with the consent of the Secretary also 
contain provisions permitting the lessee to assign the lease without 
further consent or approval.



Sec. 162.611  Payment of fees and drainage and irrigation charges.

    (a) Any lease covering lands within an irrigation project or 
drainage district shall require the lessee to pay annually on or before 
the due date, during the term of the lease and in the amounts 
determined, all charges assessed against such lands. Such charges shall 
be in addition to the rental payments prescribed in the lease. All 
payments of such charges and penalties shall be made to the official 
designated in the lease to receive such payments.
    (b) We will charge an administrative fee each time we approve an 
agricultural lease, amendment, assignment, sublease, mortgage, or 
related document. These fees will be paid by the tenant, assignee, or 
subtenant, to cover our costs in preparing or processing the documents 
and administering the lease.
    (c) Except as provided in paragraph (d) of this section, we will 
charge administrative fees based on the rent payable under the lease. 
The fee will be 3% of the annual rent payable, including any percentage 
or cropshare rent that can be reasonably estimated.
    (d) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00, and any administrative fees that have 
been paid will be non-refundable. However, we may

[[Page 463]]

waive all or part of these administrative fees, in our discretion.
    (e) If all or part of the expenses of the work are paid from tribal 
funds, the tribe may establish an additional or alternate schedule of 
fees.



Sec. 162.612  Can a lease provide for negotiated remedies in the event 
of a violation?

    (a) A lease of tribal land may provide the tribe with certain 
negotiated remedies in the event of a lease violation, including the 
power to terminate the lease. A lease of individually-owned land may 
provide the individual Indian landowners with similar remedies, so long 
as the lease also specifies the manner in which those remedies may be 
exercised by or on behalf of the landowners.
    (b) The negotiated remedies described in paragraph (a) of this 
section will apply in addition to the cancellation remedy available to 
us under Sec. 162.619(c) of this subpart. If the lease specifically 
authorizes us to exercise any negotiated remedies on behalf of the 
Indian landowners, the exercise of such remedies may substitute for 
cancellation.
    (c) A lease may provide for lease disputes to be resolved in tribal 
court or any other court of competent jurisdiction, or through 
arbitration or some other alternative dispute resolution method. We may 
not be bound by decisions made in such forums, but we will defer to 
ongoing proceedings, as appropriate, in deciding whether to exercise any 
of the remedies available to us under Sec. 162.619 of this subpart.



Sec. 162.613  Will BIA notify a tenant when a rent payment is due under 
a lease?

    We may issue bills or invoices to a tenant in advance of the dates 
on which rent payments are due under a lease, but the tenant's 
obligation to make such payments in a timely manner will not be excused 
if such bills or invoices are not delivered or received.



Sec. 162.614  Will untimely rent payments made under a lease be subject 
to interest charges or late payment penalties?

    A lease must specify the rate at which interest will accrue on any 
rent payment not made by the due date or any other date specified in the 
lease. A lease may also identify additional late payment penalties that 
will apply if a rent payment is not made by a specified date. Unless 
otherwise provided in the lease, such interest charges and late payment 
penalties will apply in the absence of any specific notice to the tenant 
from us or the Indian landowners, and the failure to pay such amounts 
will be treated as a lease violation under Sec. 162.618 of this 
subpart.



Sec. 162.615  What will BIA do if rent payments are not made in the 
time and manner required by a lease?

    (a) A tenant's failure to pay rent in the time and manner required 
by a lease will be a violation of the lease, and a notice of violation 
will be issued under Sec. 162.618 of this subpart. If the lease 
requires that rent payments be made to us, we will send the tenant and 
its sureties a notice of violation within five business days of the date 
on which the rent payment was due. If the lease provides for payment 
directly to the Indian landowners, we will send the tenant and its 
sureties a notice of violation within five business days of the date on 
which we receive actual notice of non-payment from the landowners.
    (b) If a tenant fails to provide adequate proof of payment or cure 
the violation within the requisite time period described in Sec. 
162.618(b) of this subpart, and the amount due is not in dispute, we may 
immediately take action to recover the amount of the unpaid rent and any 
associated interest charges or late payment penalties. We may also 
cancel the lease under Sec. 162.619 of this subpart, or invoke any 
other remedies available under the lease or applicable law, including 
collection on any available bond or referral of the debt to the 
Department of the Treasury for collection. An action to recover any 
unpaid amounts will not be conditioned on the prior cancellation of the 
lease or any further notice to the tenant, nor will such an action be 
precluded by a prior cancellation.
    (c) Partial payments and underpayments may be accepted by the Indian 
landowners or us, but acceptance will not operate as a waiver with 
respect to any amounts remaining unpaid or any

[[Page 464]]

other existing lease violations. Unless otherwise provided in the lease, 
overpayments may be credited as an advance against future rent payments, 
or refunded.
    (d) If a personal or business check is dishonored, and a rent 
payment is therefore not made by the due date, the failure to make the 
payment in a timely manner will be a violation of the lease, and a 
notice of violation will be issued under Sec. 162.618 of this subpart. 
Any payment made to cure such a violation, and any future payments by 
the same tenant, must be made by an alternative payment method approved 
by us.



Sec. 162.616  Will any special fees be assessed on delinquent rent 
payments due under a lease?

    The following special fees will be assessed if rent is not paid in 
the time and manner required, in addition to any interest or late 
payment penalties that must be paid to the Indian landowners under a 
lease. The following special fees will be assessed to cover 
administrative costs incurred by the United States in the collection of 
the debt:

------------------------------------------------------------------------
       The tenant will pay * * *                    For * * *
------------------------------------------------------------------------
(a) $50.00.............................  Administrative fee for
                                          dishonored checks.
(b) $15.00.............................  Administrative fee for BIA
                                          processing of each notice or
                                          demand letter.
(c) 18% of balance due.................  Administrative fee charged by
                                          Treasury following referral
                                          for collection of delinquent
                                          debt.
------------------------------------------------------------------------



Sec. 162.617  How will BIA determine whether the activities of a tenant 
under a lease are in compliance with the terms of the lease?

    (a) Unless a lease provides otherwise, we may enter the leased 
premises at any reasonable time, without prior notice, to protect the 
interests of the Indian landowners and ensure that the tenant is in 
compliance with the operating requirements of the lease.
    (b) If an Indian landowner notifies us that a specific lease 
violation has occurred, we will initiate an appropriate investigation 
within five business days of that notification.



Sec. 162.618  What will BIA do in the event of a violation under a lease?

    (a) If we determine that a lease has been violated, we will send the 
tenant and its sureties a notice of violation within five business days 
of that determination. The notice of violation must be provided by 
certified mail, return receipt requested.
    (b) Within ten business days of the receipt of a notice of 
violation, the tenant must:
    (1) Cure the violation and notify us in writing that the violation 
has been cured;
    (2) Dispute our determination that a violation has occurred and/or 
explain why we should not cancel the lease; or
    (3) Request additional time to cure the violation.



Sec. 162.619  What will BIA do if a violation of a lease is not cured 
within the requisite time period?

    (a) If the tenant does not cure a violation of a lease within the 
requisite time period, we will consult with the Indian landowners, as 
appropriate, and determine whether:
    (1) The lease should be canceled by us under paragraph (c) of this 
section and Sec. Sec. 162.620 through 162.621 of this subpart;
    (2) We should invoke any other remedies available to us under the 
lease, including collecting on any available bond;
    (3) The Indian landowners wish to invoke any remedies available to 
them under the lease; or
    (4) The tenant should be granted additional time in which to cure 
the violation.
    (b) If we decide to grant a tenant additional time in which to cure 
a violation, the tenant must proceed diligently to complete the 
necessary corrective actions within a reasonable or specified time 
period from the date on which the extension is granted.
    (c) If we decide to cancel the lease, we will send the tenant and 
its sureties a cancellation letter within five business days of that 
decision. The cancellation letter must be sent to the tenant by 
certified mail, return receipt requested. We will also provide actual or 
constructive notice of a cancellation decision to the Indian landowners, 
as

[[Page 465]]

appropriate. The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) Notify the tenant of the amount of any unpaid rent, interest 
charges, or late payment penalties due under the lease;
    (3) Notify the tenant of its right to appeal under part 2 of this 
chapter, as modified by Sec. 162.620 of this subpart, including the 
amount of any appeal bond that must be posted with an appeal of the 
cancellation decision; and
    (4) Order the tenant to vacate the property within 30 days of the 
date of receipt of the cancellation letter, if an appeal is not filed by 
that time.



Sec. 162.620  Will BIA's regulations concerning appeal bonds apply 
to cancellation decisions involving leases?

    (a) The appeal bond provisions in Sec. 2.5 of part 2 of this 
chapter will not apply to appeals from lease cancellation decisions made 
under Sec. 162.619 of this subpart. Instead, when we decide to cancel 
an agricultural lease, we may require that the tenant post an appeal 
bond with an appeal of the cancellation decision. The requirement to 
post an appeal bond will apply in addition to all of the other 
requirements in part 2 of this chapter.
    (b) An appeal bond should be set in an amount necessary to protect 
the Indian landowners against financial losses that will likely result 
from the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
lease cancellation decision.



Sec. 162.621  When will a cancellation of a lease be effective?

    A cancellation decision involving an agricultural lease will not be 
effective until 30 days after the tenant receives a cancellation letter 
from us. The cancellation decision will remain ineffective if the tenant 
files an appeal under Sec. 162.620 of this subpart and part 2 of this 
chapter, unless the decision is made immediately effective under part 2. 
While a cancellation decision is ineffective, the tenant must continue 
to pay rent and comply with the other terms of the lease. If an appeal 
is not filed in accordance with Sec. 162.620 of this subpart and part 2 
of this chapter, the cancellation decision will be effective on the 31st 
day after the tenant receives the cancellation letter from us.



Sec. 162.622  Can BIA take emergency action if the leased premises 
are threatened with immediate and significant harm?

    If a tenant or any other party causes or threatens to cause 
immediate and significant harm to the leased premises during the term of 
a lease, we will take appropriate emergency action. Emergency action may 
include judicial action seeking immediate cessation of the activity 
resulting in or threatening the harm. Reasonable efforts will be made to 
notify the Indian landowners, either before or after the emergency 
action is taken.



Sec. 162.623  What will BIA do if a tenant holds over after the 
expiration or cancellation of a lease?

    If a tenant remains in possession after the expiration or 
cancellation of a lease, we will treat the unauthorized use as a 
trespass. Unless we have reason to believe that the tenant is engaged in 
negotiations with the Indian landowners to obtain a new lease, we will 
take action to recover possession on behalf of the Indian landowners, 
and pursue any additional remedies available under applicable law.



PART 163_GENERAL FORESTRY REGULATIONS--Table of Contents




                      Subpart A_General Provisions

Sec.
163.1 Definitions.
163.2 Information collection.
163.3 Scope and objectives.
163.4 Secretarial recognition of tribal laws.

               Subpart B_Forest Management and Operations

163.10 Management of Indian forest land.
163.11 Forest management planning and sustained yield management.
163.12 Harvesting restrictions.
163.13 Indian tribal forest enterprise operations.
163.14 Sale of forest products.
163.15 Advertisement of sales.
163.16 Forest product sales without advertisement.

[[Page 466]]

163.17 Deposit with bid.
163.18 Acceptance and rejection of bids.
163.19 Contracts for the sale of forest products.
163.20 Execution and approval of contracts.
163.21 Bonds required.
163.22 Payment for forest products.
163.23 Advance payment for timber products.
163.24 Duration of timber contracts.
163.25 Forest management deductions.
163.26 Forest product harvesting permits.
163.27 Free-use harvesting without permits.
163.28 Fire management measures.
163.29 Trespass.
163.30 Revocable road use and construction permits for removal of 
          commercial forest products.
163.31 Insect and disease control.
163.32 Forest development.
163.33 Administrative appeals.
163.34 Environmental compliance.
163.35 Indian forest land assistance account.
163.36 Tribal forestry program financial support.
163.37 Forest management research.

  Subpart C_Forestry Education, Education Assistance, Recruitment and 
                                Training

163.40 Indian and Alaska Native forestry education assistance.
163.41 Postgraduation recruitment, continuing education and training 
          programs.
163.42 Obligated service and breach of contract.

          Subpart D_Alaska Native Technical Assistance Program

163.60 Purpose and scope.
163.61 Evaluation committee.
163.62 Annual funding needs assessment and rating.
163.63 Contract, grant, or agreement application and award process.

                    Subpart E_Cooperative Agreements

163.70 Purpose of agreements.
163.71 Agreement funding.
163.72 Supervisory relationship.

                      Subpart F_Program Assessment

163.80 Periodic assessment report.
163.81 Assessment guidelines.
163.82 Annual status report.
163.83 Assistance from the Secretary of Agriculture.

    Authority: 25 U.S.C. 2, 5, 9, 13, 406, 407, 413, 415, 466; and 3101-
3120.

    Source: 60 FR 52260, Oct. 5, 1995, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 163.1  Definitions.

    Advance deposits means, in Timber Contract for the Sale of Estimated 
Volumes, contract-required deposits in advance of cutting which the 
purchaser furnishes to maintain an operating balance against which the 
value of timber to be cut will be charged.
    Advance payments means, in Timber Contract for the Sale of Estimated 
Volumes, non-refundable partial payments of the estimated value of the 
timber to be cut. Payments are furnished within 30 days of contract 
approval and prior to cutting. Advance payments are normally 25 percent 
of the estimated value of the forest products on each allotment. Advance 
payments may be required for tribal land.
    Alaska Native means native as defined in section 3(b) of the Alaska 
Native Claims Settlement Act of December 18, 1971 (43 U.S.C. 1604).
    ANCSA corporation means both profit and non-profit corporations 
established pursuant to the Alaska Native Claims Settlement Act (43 
U.S.C. 1604).
    Approval means authorization by the Secretary, Area Director, 
Superintendent, tribe or individual Indian in accordance with 
appropriate delegations of authority.
    Approving officer means the officer approving instruments of sale 
for forest products or his/her authorized representative.
    Authorized representative means an individual or entity duly 
empowered to make decisions under a direct, clear, and specific 
delegation of authority.
    Authorized tribal representative means an individual or entity duly 
empowered to make decisions under a direct, clear, and specific 
delegation of authority from an Indian tribe.
    Beneficial owner means an individual or entity who holds an 
ownership interest in Indian land.
    Bid deposit means, in Timber Contract for the Sale of Estimated 
Volumes or in Timber Contract for the Sale of Predetermined Volumes, a 
deposit with bid furnished by prospective purchasers. At contract 
execution, the bid deposit of the successful bidder becomes a portion of 
the contract required advance deposit in estimated

[[Page 467]]

volume contracts or an installment payment in predetermined volume 
contracts.
    Commercial forest land means forest land that is producing or 
capable of producing crops of marketable forest products and is 
administratively available for intensive management and sustained 
production.
    Expenditure plan means a written agreement between an Indian tribe 
and the Secretary documenting tribal commitment to undertake specified 
forest land management activities within general time frames.
    Forest or forest land means an ecosystem at least one acre in size, 
including timberland and woodland, which: Is characterized by a more or 
less dense and extensive tree cover; contains, or once contained, at 
least ten percent tree crown cover, and is not developed or planned for 
exclusive non-forest resource use.
    Forest land management activities means all activities performed in 
the management of Indian forest land including:
    (a) All aspects of program administration and executive direction 
such as:
    (1) Development and maintenance of policy and operational 
procedures, program oversight, and evaluation;
    (2) Securing of legal assistance and handling of legal matters;
    (3) Budget, finance, and personnel management; and
    (4) Development and maintenance of necessary data bases and program 
reports.
    (b) All aspects of the development, preparation and revision of 
forest inventory and management plans, including aerial photography, 
mapping, field management inventories and re- inventories, inventory 
analysis, growth studies, allowable annual cut calculations, 
environmental assessment, and forest history, consistent with and 
reflective of tribal integrated resource management plans where such 
plans exist.
    (c) Forest land development, including forestation, thinning, tree 
improvement activities, and the use of silvicultural treatments to 
restore or increase growth and yield to the full productive capacity of 
the forest environment.
    (d) Protection against losses from wildfire, including acquisition 
and maintenance of fire fighting equipment and fire detection systems, 
construction of fire breaks, hazard reduction, prescribed burning, and 
the development of cooperative wildfire management agreements.
    (e) Protection against insects and disease, including:
    (1) All aspects of detection and evaluation;
    (2) Preparation of project proposals containing project 
descriptions, environmental assessments and statements, and cost- 
benefit analyses necessary to secure funding;
    (3) Field suppression operations and reporting.
    (f) Assessment of damage caused by forest trespass, infestation or 
fire, including field examination and survey, damage appraisal, 
investigation assistance and report, demand letter, and testimony 
preparation.
    (g) All aspects of the preparation, administration, and supervision 
of timber sale contracts, paid and free use permits, and other Indian 
forest product harvest sale documents, including;
    (1) Cruising, product marketing, silvicultural prescription, 
appraisal and harvest supervision;
    (2) Forest product marketing assistance, including evaluation of 
marketing and development opportunities related to Indian forest 
products and consultation and advice to tribes, tribal and Indian 
enterprises on maximization of return on forest products;
    (3) Archeological, historical, environmental and other land 
management reviews, clearances, and analyses;
    (4) Advertising, executing, and supervising contracts;
    (5) Marking and scaling of timber; and
    (6) Collecting, recording and distributing receipts from sales.
    (h) Provision of financial assistance for the education of Indians 
and Alaska Natives enrolled in accredited programs of postsecondary and 
postgraduate forestry and forestry-related fields of study, including 
the provision of scholarships, internships, relocation assistance, and 
other forms of assistance to cover educational expenses.

[[Page 468]]

    (i) Participation in the development and implementation of tribal 
integrated resource management plans, including activities to coordinate 
current and future multiple uses of Indian forest lands.
    (j) Improvement and maintenance of extended season primary and 
secondary Indian forest land road systems.
    (k) Research activities to improve the basis for determining 
appropriate management measures to apply to Indian forest land.
    Forest management deduction means a percentage of the gross proceeds 
from the sales of forest products harvested from Indian land which is 
collected by the Secretary pursuant to 25 U.S.C. 413 to cover in whole 
or in part the cost of managing and protecting such Indian forest lands.
    Forest management plan means the principal document, approved by the 
Secretary, reflecting and consistent with an integrated resource 
management plan, which provides for the regulation of the detailed, 
multiple-use operation of Indian forest land by methods ensuring that 
such lands remain in a continuously productive state while meeting the 
objectives of the tribe and which shall include: Standards setting forth 
the funding and staffing requirements necessary to carry out each 
management plan, with a report of current forestry funding and staffing 
levels; and standards providing quantitative criteria to evaluate 
performance against the objectives set forth in the plan.
    Forest products means marketable products extracted from Indian 
forests, such as: Timber; timber products, including lumber, lath, 
crating, ties, bolts, logs, pulpwood, fuelwood, posts, poles, and split 
products; bark; Christmas trees, stays, branches, firewood, berries, 
mosses, pinyon nuts, roots, acorns, syrups, wild rice, mushrooms, and 
herbs; other marketable material; and gravel which is extracted from, 
and utilized on, Indian forest land.
    Forestry-related field or forestry-related curriculum means a 
renewable natural resource management field necessary to manage Indian 
forest land and other professionally recognized fields as approved by 
the education committee established pursuant to Sec. 163.40(a)(1).
    Forest resources means all the benefits derived from Indian forest 
land, including forest products, soil productivity, water, fisheries, 
wildlife, recreation, and aesthetic or other traditional values of 
Indian forest land.
    Forester intern means an Indian or Alaska Native who: Is employed as 
a forestry or forestry-related technician with the Bureau of Indian 
Affairs, an Indian tribe, or tribal forest-related enterprise; is 
acquiring necessary academic qualifications to become a forester or a 
professional trained in forestry-related fields; and is appointed to one 
of the Forester Intern positions established pursuant to Sec. 
163.40(b).
    Indian means a member of an Indian tribe.
    Indian enterprise means an enterprise which is designated as such by 
the Secretary or tribe.
    Indian forest land means Indian land, including commercial, non-
commercial, productive and non-productive timberland and woodland, that 
are considered chiefly valuable for the production of forest products or 
to maintain watershed or other land values enhanced by a forest cover, 
regardless of whether a formal inspection and land classification action 
has been taken.
    Indian land means land title which is held by: The United States in 
trust for an Indian, an individual of Indian or Alaska Native ancestry 
who is not a member of a federally-recognized Indian tribe, or an Indian 
tribe; or by an Indian, an individual of Indian or Alaska Native 
ancestry who is not a member of a federally recognized tribe, or an 
Indian tribe subject to a restriction by the United States against 
alienation.
    Indian tribe or tribe means any Indian tribe, band, nation, 
rancheria, Pueblo or other organized group or community which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians and 
shall mean, where appropriate, the recognized tribal government of such 
tribe's reservation.
    Installment payments means, in Timber Contract for the Sale of 
Predetermined Volumes, scheduled partial payments of the total contract 
value based

[[Page 469]]

on purchaser bid. Payments made are normally not refundable.
    Integrated resource management plan means a document, approved by an 
Indian tribe and the Secretary, which provides coordination for the 
comprehensive management of the natural resources of such tribe's 
reservation.
    Noncommercial forest land means forest land that is available for 
extensive management, but is incapable of producing sustainable forest 
products within the general rotation period. Such land may be 
economically harvested, but the site quality does not warrant 
significant investment to enhance future crops.
    Productive forest land means forest land producing or capable of 
producing marketable forest products that is unavailable for harvest 
because of administrative restrictions or because access is not 
practical.
    Reservation means an Indian reservation established pursuant to 
treaties, Acts of Congress, or Executive Orders and public domain Indian 
allotments, Alaska Native allotments, rancherias, and former Indian 
reservations in Oklahoma.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Stumpage rate means the stumpage value per unit of measure for a 
forest product.
    Stumpage value means the value of a forest product prior to 
extraction from Indian forest land.
    Sustained yield means the yield of forest products that a forest can 
produce continuously at a given intensity of management.
    Timberland means forest land stocked, or capable of being stocked, 
with tree species that are regionally utilized for lumber, pulpwood, 
poles or veneer products.
    Trespass means the removal of forest products from, or damaging 
forest products on, Indian forest land, except when authorized by law 
and applicable federal or tribal regulations. Trespass can include any 
damage to forest resources on Indian forest land resulting from 
activities under contracts or permits or from fire.
    Tribal forest enterprise means an Indian enterprise that is 
initiated and organized by a reservation's recognized tribal government.
    Unproductive forest land means forest land that is not producing or 
capable of producing marketable forest products and is also unavailable 
for harvest because of administrative restrictions or because access is 
not practical.
    Woodland means forest land not included within the timberland 
classification, stocked, or capable of being stocked, with tree species 
of such form and size to produce forest products that are generally 
marketable within the region for products other than lumber, pulpwood, 
or veneer.



Sec. 163.2  Information collection.

    The information collection requirements contained in 25 CFR part 163 
do not require the approval of the Office of Management and Budget under 
44 U.S.C. 3504(h) et seq.



Sec. 163.3  Scope and objectives.

    (a) The regulations in this part are applicable to all Indian forest 
land except as this part may be superseded by legislation.
    (b) Indian forest land management activities undertaken by the 
Secretary shall be designed to achieve the following objectives:
    (1) The development, maintenance and enhancement of Indian forest 
land in a perpetually productive state in accordance with the principles 
of sustained yield and with the standards and objectives set forth in 
forest management plans by providing effective management and protection 
through the application of sound silvicultural and economic principles 
to the harvesting of forest products, forestation, timber stand 
improvement and other forestry practices;
    (2) The regulation of Indian forest land through the development and 
implementation, with the full and active consultation and participation 
of the appropriate Indian tribe, of forest management plans which are 
supported by written tribal objectives;
    (3) The regulation of Indian forest land in a manner that will 
ensure the use of good method and order in harvesting so as to make 
possible, on a

[[Page 470]]

sustained yield basis, continuous productivity and a perpetual forest 
business;
    (4) The development of Indian forest land and associated value-added 
industries by Indians and Indian tribes to promote self-sustaining 
communities, so that Indians may receive from their Indian forest land 
not only stumpage value, but also the benefit of all the labor and 
profit that such Indian forest land is capable of yielding;
    (5) The retention of Indian forest land in its natural state when an 
Indian tribe determines that the recreational, cultural, aesthetic, or 
traditional values of the Indian forest land represents the highest and 
best use of the land;
    (6) The management and protection of forest resources to retain the 
beneficial effects to Indian forest land of regulating water run-off and 
minimizing soil erosion; and
    (7) The maintenance and improvement of timber productivity, grazing, 
wildlife, fisheries, recreation, aesthetic, cultural and other 
traditional values.



Sec. 163.4  Secretarial recognition of tribal laws.

    Subject to the Secretary's trust responsibilities, and unless 
otherwise prohibited by Federal statutory law, the Secretary shall 
comply with tribal laws pertaining to Indian forest land, including laws 
regulating the environment or historic or cultural preservation, and 
shall cooperate with the enforcement of such laws on Indian forest land. 
Such cooperation does not constitute a waiver of United States sovereign 
immunity and shall include:
    (a) Assistance in the enforcement of such laws;
    (b) Provision of notice of such laws to persons or entities 
undertaking activities on Indian forest land; and
    (c) Upon the request of an Indian tribe, the appearance in tribal 
forums.



               Subpart B_Forest Management and Operations



Sec. 163.10  Management of Indian forest land.

    (a) The Secretary shall undertake forest land management activities 
on Indian forest land, either directly or through contracts, cooperative 
agreements, or grants under the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-638, as amended).
    (b) Indian forest land management activities undertaken by the 
Secretary shall be designed to achieve objectives enumerated in Sec. 
163.3 of this part.



Sec. 163.11  Forest management planning and sustained yield management.

    (a) To further the objectives identified in Sec. 163.3 of this 
part, an appropriate forest management plan shall be prepared and 
revised as needed for all Indian forest lands. Such documents shall 
contain a statement describing the manner in which the policies of the 
tribe and the Secretary will be applied, with a definite plan of 
silvicultural management, analysis of the short term and long term 
effects of the plan, and a program of action, including a harvest 
schedule, for a specified period in the future. Forest management plans 
shall be based on the principle of sustained yield management and 
objectives established by the tribe and will require approval of the 
Secretary.
    (b) Forest management planning for Indian forest land shall be 
carried out through participation in the development and implementation 
of integrated resource management plans which provide coordination for 
the comprehensive management of all natural resources on Indian land. If 
the integrated resource management planning process has not been 
initiated, or is not ongoing or completed, a stand-alone forest 
management plan will be prepared.
    (c) The harvest of forest products from Indian forest land will be 
accomplished under the principles of sustained yield management and will 
not be authorized until practical methods of harvest based on sound 
economic and silvicultural and other forest management principles have 
been prescribed. Harvest schedules will be prepared for a specified 
period of time and updated annually. Such schedules shall support the 
objectives of the beneficial land owners and the Secretary and shall be 
directed toward achieving an approximate balance between net

[[Page 471]]

growth and harvest at the earliest practical time.



Sec. 163.12  Harvesting restrictions.

    (a) Harvesting timber on commercial forest land will not be 
permitted unless provisions for natural and/or artificial reforestation 
of acceptable tree species is included in harvest plans.
    (b) Clearing of large contiguous areas will be permitted only on 
land that, when cleared, will be devoted to a more beneficial use than 
growing timber crops. This restriction shall not prohibit clearcutting 
when it is silviculturally appropriate, based on ecological principles, 
to harvest a particular stand of timber by such method and it otherwise 
conforms with objectives in Sec. 163.3 of this part.



Sec. 163.13  Indian tribal forest enterprise operations.

    Indian tribal forest enterprises may be initiated and organized with 
consent of the authorized tribal representatives. Such enterprises may 
contract for the purchase of non-Indian owned forest products. Subject 
to approval by the Secretary the following actions may be taken:
    (a) Authorized tribal enterprises may enter into formal agreements 
with tribal representatives for the use of tribal forest products, and 
with individual beneficial Indian owners for their forest products;
    (b) Authorized officials of tribal enterprises, operating under 
approved agreements for the use of Indian-owned forest products pursuant 
to this section, may sell the forest products produced according to 
generally accepted trade practices;
    (c) With the consent of the beneficial Indian owners, such 
enterprises may, without advertisement, contract for the purchase of 
forest products on Indian land at stumpage rates authorized by the 
Secretary;
    (d) Determination of and payment for stumpage and/or products 
utilized by such enterprises will be authorized in accordance with Sec. 
163.22. However, the Secretary may issue special instructions for 
payment by methods other than those in Sec. 163.22 of this part; and
    (e) Performance bonds may or may not be required in connection with 
operations on Indian land by such enterprises as determined by the 
Secretary.



Sec. 163.14  Sale of forest products.

    (a) Consistent with the economic objectives of the tribe and with 
the consent of the Secretary and authorized by tribal resolution or 
resolution of recognized tribal government, open market sales of Indian 
forest products may be authorized. Such sales require consent of the 
authorized representatives of the tribe for the sale of tribal forest 
products, and the owners of a majority Indian interest on individually 
owned lands. Open market sales of forest products from Indian land 
located off reservations will be permitted with the consent of the 
Secretary and majority Indian interest of the beneficial Indian 
owner(s).
    (b) On individually owned Indian forest land not formally designated 
for retention in its natural state, the Secretary may, after 
consultation, sell the forest products without the consent of the 
owner(s) when in his or her judgment such action is necessary to prevent 
loss of value resulting from fire, insects, diseases, windthrow or other 
catastrophes.
    (c) Unless otherwise authorized by the Secretary, each sale of 
forest products having an estimated stumpage value exceeding $15,000 
will not be approved until:
    (1) An examination of the forest products to be sold has been made 
by a forest officer; and
    (2) A report setting forth all pertinent information has been 
submitted to the approving officer as provided in Sec. 163.20 of this 
part.
    (d) With the approval of the Secretary, authorized beneficial Indian 
owners who have been duly apprised as to the value of the forest 
products to be sold, may sell or transfer forest products for less than 
the appraised value.
    (e) Except as provided in Sec. 163.14(d) of this part, in all such 
sales, the forest products shall be appraised and sold at stumpage rates 
not less than those established by the Secretary.



Sec. 163.15  Advertisement of sales.

    Except as provided in Sec. Sec. 163.13, 163.14, 163.16, and 163.26 
of this part, sales of

[[Page 472]]

forest products shall be made only after advertising.
    (a) The advertisement shall be approved by the officer who will 
approve the instrument of sale. Advertised sales shall be made under 
sealed bids, or at public auction, or under a combination thereof. The 
advertisement may limit sales of Indian forest products to Indian forest 
enterprises, members of the tribe, or may grant to Indian forest 
enterprises and/or members of the tribe who submitted bids the right to 
meet the higher bid of a non-member. If the estimated stumpage value of 
the forest products offered does not exceed $15,000, the advertisement 
may be made by posters and circular letters. If the estimated stumpage 
value exceeds $15,000, the advertisement shall also be made in at least 
one edition of a newspaper of general circulation in the locality where 
the forest products are situated. If the estimated stumpage value does 
not exceed $50,000, the advertisement shall be made for not less than 15 
days; if the estimated stumpage value exceeds $50,000 but not $250,000, 
for not less than 30 days; and if the estimated stumpage value exceeds 
$250,000, for not less than 60 days.
    (b) The approving officer may reduce the advertising period because 
of emergencies such as fire, insect attack, blowdown, limitation of 
time, or when there would be no practical advantage in advertising for 
the prescribed period.
    (c) If no instrument of sale is executed after such advertisement, 
the approving officer may, within one year from the last day on which 
bids were to be received as defined in the advertisement, permit the 
sale of such forest products. The sale will be made upon the terms and 
conditions in the advertisement and at not less than the advertised 
value or the appraised value at the time of sale, whichever is greater.



Sec. 163.16  Forest product sales without advertisement.

    (a) Sales of forest products may be made without advertisement to 
Indians or non-Indians with the consent of the authorized tribal 
representatives for tribal forest products or with the consent of the 
beneficial owners of a majority Indian interest of individually owned 
Indian land, and the approval of the Secretary when:
    (1) Forest products are to be cut in conjunction with the granting 
of a right-of-way;
    (2) Granting an authorized occupancy;
    (3) Tribal forest products are to be purchased by an Indian tribal 
forest enterprise;
    (4) It is impractical to secure competition by formal advertising 
procedures;
    (5) It must be cut to protect the forest from injury; or
    (6) Otherwise specifically authorized by law.
    (b) The approving officer shall establish a documented record of 
each negotiated transaction. This will include:
    (1) A written determination and finding that the transaction is a 
type allowing use of negotiation procedures;
    (2) The extent of solicitation and competition, or a statement of 
the facts upon which a finding of impracticability of securing 
competition is based; and
    (3) A statement of the factors on which the award is based, 
including a determination as to the reasonability of the price accepted.



Sec. 163.17  Deposit with bid.

    (a) A deposit shall be made with each proposal for the purchase of 
Indian forest products. Such deposits shall be at least:
    (1) Ten (10) percent if the appraised stumpage value is less than 
$100,000 and in any event not less than $1,000 or full value whichever 
is less;
    (2) Five (5) percent if the appraised stumpage value is $100,000 to 
$250,000 but in any event not less than $10,000; and
    (3) Three (3) percent if the appraised stumpage value exceeds 
$250,000 but in any event not less than $12,500.
    (b) Deposits shall be in the form of either a certified check, 
cashier's check, bank draft, postal money order, or irrevocable letter-
of-credit, drawn payable as specified in the advertisement, or in cash.
    (c) The deposit of the apparent high bidder, and of others who 
submit a written request to have their bids considered for acceptance 
will be retained

[[Page 473]]

pending acceptance or rejection of the bids. All other deposits will be 
returned following the opening and posting of bids.
    (d) The deposit of the successful bidder will be forfeited and 
distributed as damages to the beneficial owners if the bidder does not:
    (1) Furnish the performance bond required by Sec. 163.21 of this 
part within the time stipulated in the advertisement for sale of forest 
products;
    (2) Execute the contract; or
    (3) Perform the contract.
    (e) Forfeiture of a deposit does not limit or waive any further 
claims for damages available under applicable law or terms of the 
contract.
    (f) In the event of an administrative appeal under 25 CFR part 2, 
the Secretary may hold such bid deposits in an escrow account pending 
resolution of the appeal.



Sec. 163.18  Acceptance and rejection of bids.

    (a) The high bid received in accordance with any advertisement 
issued under authority of this part shall be accepted, except that the 
approving officer, having set forth the reason(s) in writing, shall have 
the right to reject the high bid if:
    (1) The high bidder is considered unqualified to fulfill the 
contractual requirement of the advertisement; or
    (2) There are reasonable grounds to consider it in the interest of 
the Indians to reject the high bid.
    (b) If the high bid is rejected, the approving officer may 
authorize:
    (1) Rejection of all bids; or
    (2) Acceptance of the offer of another bidder who, at bid opening, 
makes written request that their bid and bid deposit be held pending a 
bid acceptance.
    (c) The officer authorized to accept the bid shall have the 
discretion to waive minor technical defects in advertisements and 
proposals, such as typographical errors and misplaced entries.



Sec. 163.19  Contracts for the sale of forest products.

    (a) In sales of forest products with an appraised stumpage value 
exceeding $15,000, the contract forms approved by the Secretary must be 
used unless a special form for a particular sale or class of sales is 
approved by the Secretary.
    (b) Unless otherwise directed, the contracts for forest products 
from individually-owned Indian land will be paid by remittance drawn to 
the Bureau of Indian Affairs and transmitted to the Superintendent. Upon 
the request of the tribe, the contracts for tribal forest products may 
require that the proceeds be paid promptly and directly into a bank 
depository account designated by such tribe, or by remittance drawn to 
the Bureau of Indian Affairs and transmitted to the Superintendent.
    (c) By mutual agreement of the parties to a contract, contracts may 
be extended, modified, or assigned subject to approval by the approving 
officer, and may be terminated by the approving officer upon completion 
or by mutual agreement.



Sec. 163.20  Execution and approval of contracts.

    (a) All contracts for the sale of tribal forest products shall be 
executed by the authorized tribal representative(s). There shall be 
included with the contract an affidavit executed by the authorized 
tribal representative(s) setting forth the resolution or other authority 
of the governing body of the tribe. Contracts must be approved by the 
Secretary to be valid.
    (b) Contracts for the sale of individually owned forest products 
shall be executed by the beneficial Indian owner(s) or the Secretary 
acting pursuant to a power of attorney from the beneficial Indian 
owner(s). Contracts must be approved by the Secretary to be valid.
    (1) The Secretary may, after consultation with any legally appointed 
guardian, execute contracts on behalf of minors and beneficial Indian 
owners who are non compos mentis.
    (2) The Secretary may execute contracts for a decedent's estate 
where ownership has not been determined or for those persons who cannot 
be located after a reasonable and diligent search and the giving of 
notice by publication.
    (3) Upon the request of the owner of an undivided but unrestricted 
interest in land in which there are trust or restricted Indian 
interests, the Secretary

[[Page 474]]

may include such unrestricted interest in a sale of the trust or 
restricted interests in the timber, pursuant to this part, and perform 
any functions required of him/her by the contract of sale for both the 
restricted and the unrestricted interests, including the collection and 
disbursement of payments for timber and the forest management deductions 
from such payments.
    (4) When consent of only a majority interest has been obtained, the 
Secretary may execute the sale on behalf of all owners to fulfill 
responsibilities to the beneficiaries of the trust. In such event, the 
contract file must contain evidence of the effort to obtain consent of 
all owners. When an individual cannot be located, the Secretary, after a 
reasonable and diligent search and the giving of notice by publication, 
may sign a power of attorney consenting to the sale for particular 
interests. For Indian forest land containing undivided restricted and 
unrestricted interests, only the restricted interests are considered in 
determining if a majority interest has been obtained.



Sec. 163.21  Bonds required.

    (a) Performance bonds will be required in connection with all sales 
of forest products, except they may or may not be required, as 
determined by the approving officer, in connection with the use of 
forest products by Indian tribal forest enterprises pursuant to this 
part in Sec. 163.13 or in timber cutting permits issued pursuant to 
Sec. 163.26 of this part.
    (1) In sales in which the estimated stumpage value, calculated at 
the appraised stumpage rates, does not exceed $15,000, the bond shall be 
at least 20 percent of the estimated stumpage value.
    (2) In sales in which the estimated stumpage value exceeds $15,000 
but is not over $150,000, the bond shall be at least 15 percent of the 
estimated stumpage value but not less than $3,000.
    (3) In sales in which the estimated stumpage value exceeds $150,000, 
but is not over $350,000, the bond shall be at least 10 percent of the 
estimated stumpage value but not less than $22,500.
    (4) In sales in which the estimated stumpage value exceeds $350,000, 
the bond shall be at least 5 percent of the estimated stumpage value but 
not less than $35,000.
    (b) Bonds shall be in a form acceptable to the approving officer and 
may include:
    (1) A corporate surety bond by an acceptable surety company;
    (2) A cash bond designating the approving officer to act as trustee 
under terms of an appropriate trust;
    (3) Negotiable U.S. Government securities supported by an 
appropriate trust instrument; or
    (4) An irrevocable letter of credit.



Sec. 163.22  Payment for forest products.

    (a) The basis of volume determination for forest products sold shall 
be the Scribner Decimal C log rules, cubic volume, lineal measurement, 
piece count, weight, or such other form of measurement as the Secretary 
may authorize for use. With the exception of Indian tribal forest 
enterprises pursuant to Sec. 163.13 of this part, payment for forest 
products will be required in advance of cutting for timber, or removal 
for other forest products.
    (b) Upon the request of an Indian tribe, the Secretary may provide 
that the purchaser of the forest products of such tribe, which are 
harvested under a timber sale contract, permit, or other harvest sale 
document to make advanced deposits, or direct payments of the gross 
proceeds of such forest products, less any amounts segregated as forest 
management deductions pursuant to Sec. 163.25 of this part, into 
accounts designated by such Indian tribe. Such accounts may be in one or 
more of the following formats:
    (1) Escrow accounts at a tribally designated financial institution 
for receiving deposits with bids and advance deposits from which direct 
disbursements for timber harvested shall be made to tribes and forest 
management deductions accounts; or
    (2) Tribal depository accounts for receiving advance payments, 
installment payments, payments from Indian tribal forest enterprises, 
and/or disbursements from advance deposit accounts or escrow accounts.

[[Page 475]]

    (c) The format must allow the Secretary to maintain trust 
responsibility through written verification that all required deposits, 
payments, and disbursements have been made.
    (d) Terms and conditions for payment of forest products under lump 
sum (predetermined volume) sales shall be specified in forest product 
contract documents.



Sec. 163.23  Advance payment for timber products.

    (a) Unless otherwise authorized by the Secretary, and except in the 
case of lump sum (predetermined volume) sales, contracts for the sale of 
timber from allotted, trust or restricted Indian forest land shall 
provide for an advance payment of up to 25 percent of the stumpage 
value, calculated at the bid price, within 30 days from the date of 
approval and before cutting begins. Additional advance payments may be 
specified in contracts. However, no advance payment will be required 
that would make the sum of such payment and of advance deposits and 
advance payments previously applied against timber cut from each 
ownership in a sale exceed 50 percent of the bid stumpage value. Advance 
payments shall be credited against the timber of each ownership in the 
sale as the timber is cut and scaled at stumpage rates governing at the 
time of scaling. Advance payments are not refundable.
    (b) Advance payments may be required on tribal land. When required, 
advance payments will operate the same as provided for in Sec. 
163.23(a) of this part.



Sec. 163.24  Duration of timber contracts.

    After the effective date of a forest product contract, unless 
otherwise authorized by the Secretary, the maximum period which shall be 
allowed for harvesting the estimated volume of timber purchased, shall 
be five years.



Sec. 163.25  Forest management deductions.

    (a) Pursuant to the provisions of 25 U.S.C. 413 and 25 U.S.C. 3105, 
a forest management deduction shall be withheld from the gross proceeds 
of sales of forest products harvested from Indian forest land as 
described in this section.
    (b) Gross proceeds shall mean the value in money or money's worth of 
consideration furnished by the purchaser of forest products purchased 
under a contract, permit, or other document for the sale of forest 
products.
    (c) Forest management deductions shall not be withheld where the 
total consideration furnished under a contract, permit or other document 
for the sale of forest products is less than $5,001.
    (d) Except as provided in Sec. 163.25(e) of this part, the amount 
of the forest management deduction shall not exceed the lesser amount of 
ten percent (10%) of the gross proceeds or, the actual percentage in 
effect on November 28, 1990.
    (e) The Secretary may increase the forest management deduction 
percentage for Indian forest land upon receipt of a written request from 
a tribe supported by a resolution executed by the authorized tribal 
representatives. At the request of the authorized tribal representatives 
and at the discretion of the Secretary the forest management deduction 
percentage may be decreased to not less than one percent (1%) or the 
requirement for collection may be waived.
    (f) Forest management deductions are to be utilized to perform 
forest land management activities in accordance with an approved 
expenditure plan. Expenditure plans shall describe the forest land 
management activities anticipated to be undertaken, establish a time 
period for their completion, summarize anticipated obligations and 
expenditures, and specify the method through which funds are to be 
transferred or credited to tribal accounts from special deposit accounts 
established to hold amounts withheld as forest management deductions. 
Any forest management deductions that have not been incorporated into an 
approved expenditure plan by the end of the fiscal year following the 
fiscal year in which the deductions are withheld, shall be collected 
into the general funds of the United States Treasury pursuant to 25 
U.S.C. 413.
    (1) For Indian forest lands located on an Indian reservation, a 
written expenditure plan for the use of forest

[[Page 476]]

management deductions shall be prepared annually and approved by the 
authorized tribal representative(s) and the Secretary. The approval of 
the expenditure plan by the authorized tribal representatives 
constitutes allocation of tribal funds for Indian forest land management 
activities. Approval of the expenditure plan by the Secretary shall 
constitute authority for crediting of forest management deductions to 
tribal account(s). The full amount of any deduction collected by the 
Secretary plus any income or interest earned thereon shall be available 
for expenditure according to the approved expenditure plan for the 
performance of forest land management activities on the reservation from 
which the forest management deduction is collected.
    (2) Forest management deductions shall be handled in the same manner 
as described under Sec. 163.25(f)(1) of this part if the expenditure 
plan approved by an Indian tribe and the Secretary provides for the 
conduct of forest land management activities on Indian forest lands 
located outside the boundaries of an Indian reservation.
    (3) For public domain and Alaska Native allotments held in trust for 
Indians by the United States, forest management deductions may be 
utilized to perform forest land management activities on such lands in 
accordance with an expenditure plan approved by the Secretary.
    (g) Forest management deductions withheld pursuant to this section 
shall not be available to cover the costs that are paid from funds 
appropriated for fire suppression or pest control or otherwise offset 
federal appropriations for meeting the Federal trust responsibility for 
management of Indian forest land.
    (h) Within 120 days after the close of the tribal fiscal year, 
tribes shall submit to the Secretary a written report detailing the 
actual expenditure of forest management deductions during the past 
fiscal year. The Secretary shall have the right to inspect accounts, 
books, or other tribal records supporting the report.
    (i) Forest management deductions incorporated into an expenditure 
plan approved by the Secretary shall remain available until expended.
    (j) As provided in Sec. 163.25(f) of this part, only forest 
management deductions that have not been incorporated into an approved 
expenditure plan may be deposited to a U.S. Treasury miscellaneous 
receipt account. No amount collected as forest management deductions 
shall be credited to any Federal appropriation. No other forest 
management deductions or fees derived from Indian forest land shall be 
collected to be covered into the general funds of the United States 
Treasury.



Sec. 163.26  Forest product harvesting permits.

    (a) Except as provided in Sec. Sec. 163.13 and 163.27 of this part, 
removal of forest products that are not under formal contract, pursuant 
to Sec. 163.19, shall be under forest product harvesting permit forms 
approved by the Secretary. Permits will be issued only with the written 
consent of the beneficial Indian owner(s) or the Secretary, for harvest 
of forest products from Indian forest land, as authorized in Sec. 
163.20 of this part. To be valid, permits must be approved by the 
Secretary. Minimum stumpage rates at which forest products may be sold 
will be set at the time consent to issue the permit is obtained. Payment 
and bonding requirements will be stipulated in the permit document as 
appropriate.
    (b) Free use harvesting permits issued shall specify species and 
types of forest products to be removed. It may be stipulated that forest 
products removed under this authority cannot be sold or exchanged for 
other goods or services. The estimated value which may be harvested in a 
fiscal year by any individual under this authority shall not exceed 
$5,000. For the purpose of issuance of free use permits, individual 
shall mean an individual Indian or any organized group of Indians.
    (c) Paid permits subject to forest management deductions, as 
provided in Sec. 163.25 of this part, may be issued. Unless otherwise 
authorized by the Secretary, the stumpage value which may be harvested 
under paid permits in a fiscal year by any individual under this 
authority shall not exceed $25,000. For the purpose of issuance of paid 
permits, individual shall mean an individual or

[[Page 477]]

any operating entity comprised of more than one individual.
    (d) A Special Allotment Timber Harvest Permit may be issued to an 
Indian having sole beneficial interest in an allotment to harvest and 
sell designated forest products from his or her allotment. The special 
permit shall include provision for payment by the Indian of forest 
management deductions pursuant to Sec. 163.25 of this part. Unless 
waived by the Secretary, the permit shall also require the Indian to 
make a bond deposit with the Secretary as required by Sec. 163.21. Such 
bonds will be returned to the Indian upon satisfactory completion of the 
permit or will be used by the Secretary in his or her discretion for 
planting or other work to offset damage to the land or the timber caused 
by failure to comply with the provisions of the permit. As a condition 
to granting a special permit under authority of this paragraph, the 
Indian shall be required to provide evidence acceptable to the Secretary 
that he or she has arranged a bona fide sale of the forest products, on 
terms that will protect the Indian's interests.



Sec. 163.27  Free-use harvesting without permits.

    With the consent of the beneficial Indian owners and the Secretary, 
Indians may harvest designated types of forest products from Indian 
forest land without a permit or contract, and without charge. Forest 
products harvested under this authority shall be for the Indian's 
personal use, and shall not be sold or exchanged for other goods or 
services.



Sec. 163.28  Fire management measures.

    (a) The Secretary is authorized to maintain facilities and staff, 
hire temporary labor, rent fire fighting equipment, purchase tools and 
supplies, and pay for their transportation as needed, to maintain an 
adequate level of readiness to meet normal wildfire protection needs and 
extinguish forest or range fires on Indian land. No expenses for 
fighting a fire outside Indian lands may be incurred unless the fire 
threatens Indian land or unless the expenses are incurred pursuant to an 
approved cooperative agreement with another protection agency. The rates 
of pay for fire fighters and for equipment rental shall be the rates for 
fire fighting services that are currently in use by public and private 
wildfire protection agencies adjacent to Indian reservations on which a 
fire occurs, unless there are in effect at the time different rates that 
have been approved by the Secretary. The Secretary may also enter into 
reciprocal agreements with any fire organization maintaining protection 
facilities in the vicinity of Indian reservations or other Indian land 
for mutual aid in wildfire protection. This section does not apply to 
the rendering of emergency aid, or agreements for mutual aid in fire 
protection pursuant to the Act of May 27, 1955 (69 Stat. 66).
    (b) The Secretary is authorized to conduct a wildfire prevention 
program to reduce the number of person-caused fires and prevent damage 
to natural resources on Indian land.
    (c) The Secretary is authorized to expend funds for emergency 
rehabilitation measures needed to stabilize soil and watershed on Indian 
land damaged by wildfire.
    (d) Upon consultation with the beneficial Indian owners, the 
Secretary may use fire as a management tool on Indian land to achieve 
land and/or resource management objectives.



Sec. 163.29  Trespass.

    (a) Trespassers will be liable for civil penalties and damages to 
the enforcement agency and the beneficial Indian owners, and will be 
subject to prosecution for acts of trespass.
    (1) Cases in Tribal Court. For trespass actions brought in tribal 
court pursuant to these regulations, the measure of damages, civil 
penalties, remedies and procedures will be as set forth in this Sec. 
163.29 of this part. All other aspects of a tribal trespass prosecution 
brought under these regulations will be that prescribed by the law of 
the tribe in whose reservation or within whose jurisdiction the trespass 
was committed, unless otherwise prescribed under federal law. Absent 
applicable tribal or federal law, the measure of damages shall be that 
prescribed by the law of the state in which the trespass was committed.
    (2) Cases in Federal Court. For trespass actions brought in Federal 
court

[[Page 478]]

pursuant to these regulations, the measure of damages, civil penalties, 
remedies and procedures will be as set forth in this Sec. 163.29. In 
the absence of applicable federal law, the measure shall be that 
prescribed by the law of the tribe in whose reservation or within whose 
jurisdiction the trespass was committed, or in the absence of tribal 
law, the law of the state in which it was committed.
    (3) Civil penalties for trespass include, but are not limited to:
    (i) Treble damages, whenever any person, without lawful authority 
injures, severs, or carries off from a reservation any forest product as 
defined in Sec. 163.1 of this part. Proof of Indian ownership of the 
premises and commission of the acts by the trespasser are prima facie 
evidence sufficient to support liability for treble damages, with no 
requirement to show willfulness or intent. Treble damages shall be based 
upon the highest stumpage value obtainable from the raw materials 
involved in the trespass.
    (ii) Payment of costs associated with damage to Indian forest land 
includes, but is not limited to, rehabilitation, reforestation, lost 
future revenue and lost profits, loss of productivity, and damage to 
other forest resources.
    (iii) Payment of all reasonable costs associated with the 
enforcement of these trespass regulations beginning with detection and 
including all processes through the prosecution and collection of 
damages, including but not limited to field examination and survey, 
damage appraisal, investigation assistance and reports, witness 
expenses, demand letters, court costs, and attorney fees.
    (iv) Interest calculated at the statutory rate prescribed by the law 
of the tribe in whose reservation or within whose jurisdiction the 
trespass was committed, or in the absence of tribal law in the amount 
prescribed by federal law. Where tribal law or federal law does not 
supply a statutory interest rate, the rate of interest shall be 
statutory rate upon judgments as prescribed by the law of the state in 
which the trespass was committed. Interest shall be based on treble the 
highest stumpage value obtainable from the raw materials involved in the 
trespass, and calculated from the date of the trespass until payment is 
rendered.
    (b) Any cash or other proceeds realized from forfeiture of equipment 
or other goods or from forest products damaged or taken in the trespass 
shall be applied to satisfy civil penalties and other damages identified 
under Sec. 163.29(a) of this part. After disposition of real and 
personal property to pay civil penalties and damages resulting from 
trespass, any residual funds shall be returned to the trespasser. In the 
event that collection and forfeiture actions taken against the 
trespasser result in less than full recovery, civil penalties shall be 
distributed as follows:
    (1) Collection of damages up to the highest stumpage value of the 
trespass products shall be distributed pro rata between the Indian 
beneficial owners and any costs and expenses needed to restore the 
trespass land; or
    (2) Collections exceeding the highest stumpage value of the trespass 
product, but less than full recovery, shall be proportionally 
distributed pro rata between the Indian beneficial owners, the law 
enforcement agency, and the cost to restore the trespass land. Forest 
management deductions shall not be withheld where less than the highest 
stumpage value of the unprocessed forest products taken in trespass has 
been recovered.
    (c) Indian beneficial owners who trespass, or who are involved in 
trespass upon their own land, or undivided land in which such owners 
have a partial interest, shall not receive their beneficial share of any 
civil penalties and damages collected in consequence of the trespass. 
Any civil penalties and damages defaulted in consequence of this 
provision instead shall be distributed first toward restoration of the 
land subject of the trespass and second toward costs of the enforcement 
agency in consequence of the trespass, with any remainder to the forest 
management deduction account of the reservation in which the trespass 
took place.
    (d) Civil penalties and other damages collected under these 
regulations, except for penalties and damages provided for in Sec. Sec. 
163.29(a)(3) (ii) and (iii) of this part, shall be treated as proceeds 
from the sale of forest products from

[[Page 479]]

the Indian forest land upon which the trespass occurred.
    (e) When a federal official or authorized tribal representative 
pursuant to Sec. 163.29(j) of this part has reason to believe that 
Indian forest products are involved in trespass, such individual may 
seize and take possession of the forest products involved in the 
trespass if the products are located on reservation. When forest 
products are seized, the person seizing the products must at the time of 
the seizure issue a Notice of Seizure to the possessor or claimant of 
the forest products. The Notice of Seizure shall indicate the date of 
the seizure, a description of the forest products seized, the estimated 
value of forest products seized, an indication of whether the forest 
products are perishable, and the name and authority of the person 
seizing the forest products. Where the official initiates seizure under 
these regulations only, the Notice of Seizure shall further include the 
statement that any challenge or objection to the seizure shall be 
exclusively through administrative appeal pursuant to part 2 of title 
25, and shall provide the name and the address of the official with whom 
the appeal may be filed. Alternately, an official may exercise 
concurrent tribal seizure authority under these regulations using 
applicable tribal law. In such case, the Notice of Seizure shall 
identify the tribal law under which the seizure may be challenged, if 
any. A copy of a Notice of Seizure shall be given to the possessor or 
claimant at the time of the seizure. If the claimant or possessor is 
unknown or unavailable, Notice of Seizure shall be posted on the 
trespass property, and a copy of the Notice shall be kept with any 
incident report generated by the official seizing the forest products. 
If the property seized is perishable and will lose substantial value if 
not sold or otherwise disposed of, the representative of the Secretary, 
or authorized tribal representative where deferral has been requested, 
may cause the forest products to be sold. Such sale action shall not be 
stayed by the filing of an administrative appeal nor by a challenge of 
the seizure action through a tribal forum. All proceeds from the sale of 
the forest products shall be placed into an escrow account and held 
until adjudication or other resolution of the underlying trespass. If it 
is found that the forest products seized were involved in a trespass, 
the proceeds shall be applied to the amount of civil penalties and 
damages awarded. If it is found that a trespass has not occurred or the 
proceeds are in excess of the amount of the judgment awarded, the 
proceeds or excess proceeds shall be returned to the possessor or 
claimant.
    (f) When there is reason to believe that Indian forest products are 
involved in trespass and that such products have been removed to land 
not under federal or tribal government supervision, the federal official 
or authorized tribal representative pursuant to Sec. 163.29(k) of this 
part responsible for the trespass shall immediately provide the 
following notice to the owner of the land or the party in possession of 
the trespass products:
    (1) That such products could be Indian trust property involved in a 
trespass; and
    (2) That removal or disposition of the forest products may result in 
criminal and/or civil action by the United States or tribe.
    (g) A representative of the Secretary or authorized tribal 
representative pursuant to Sec. 163.29(j) of this part will promptly 
determine if a trespass has occurred. The appropriate representative 
will issue an official Notice of Trespass to the alleged trespasser and, 
if necessary, the possessor or potential buyer of any trespass products. 
The Notice is intended to inform the trespasser, buyer, or the 
processor:
    (1) That a determination has been made that a trespass has occurred;
    (2) The basis for the determination;
    (3) An assessment of the damages, penalties and costs;
    (4) Of the seizure of forest products, if applicable; and
    (5) That disposition or removal of Indian forest products taken in 
the trespass may result in civil and/or criminal action by the United 
States or the tribe.
    (h) The Secretary may accept payment of damages in the settlement of 
civil trespass cases. In the absence of a court order, the Secretary 
will determine the procedure and approve acceptance of any settlements 
negotiated

[[Page 480]]

by a tribe exercising its concurrent jurisdiction pursuant to Sec. 
163.29(j) of this part.
    (i) The Secretary may delegate by written agreement or contract, 
responsibility for detection and investigation of forest trespass.
    (j) Indian tribes that adopt the regulations set forth in this 
section, conformed as necessary to tribal law, shall have concurrent 
civil jurisdiction to enforce 25 U.S.C. 3106 and this section against 
any person.
    (1) The Secretary shall acknowledge said concurrent civil 
jurisdiction over trespass, upon:
    (i) Receipt of a formal tribal resolution documenting the tribe's 
adoption of this section; and
    (ii) Notification of the ability of the tribal court system to 
properly adjudicate forest trespass cases, including a statement that 
the tribal court will enforce the Indian Civil Rights Act or a tribal 
civil rights law that contains provisions for due process and equal 
protection that are similar to or stronger than those contained in the 
Indian Civil Rights Act.
    (2) Where an Indian tribe has acquired concurrent civil jurisdiction 
over trespass cases as set forth in Sec. 163.29(j)(1) of this part, the 
Secretary and tribe's authorized representatives will be jointly 
responsible to coordinate prosecution of trespass actions. The Secretary 
shall, upon timely request of the tribe, defer prosecution of forest 
trespasses to the tribe. Where said deferral is not requested, the 
designated Bureau of Indian Affairs forestry trespass official shall 
coordinate with the authorized forest trespass official of each tribe 
the exercise of concurrent tribal and Federal trespass jurisdiction as 
to each trespass. Such officials shall review each case, determine in 
which forums to recommend bringing an action, and promptly provide their 
recommendation to the Federal officials responsible for initiating and 
prosecuting forest trespass cases. Where an Indian tribe has acquired 
concurrent civil jurisdiction, but does not request deferral of 
prosecution, the federal officials responsible for initiating and 
prosecuting such cases may file and prosecute the action in the tribal 
court or forum.
    (3) The Secretary may rescind an Indian tribe's concurrent civil 
jurisdiction over trespass cases under this regulation if the Secretary 
or a court of competent jurisdiction determines that the tribal court 
has not adhered to the due process or equal protection requirements of 
the Indian Civil Rights Act. If it is determined that said rescission is 
justified, the Secretary shall provide written Notice of the rescission, 
including the findings justifying the rescission and the steps needed to 
remedy the violations causing the rescission, to the chief judge of the 
tribal judiciary or other authorized tribal official should there be no 
chief judge. If said steps are not taken within 60 days, the Secretary's 
rescission of concurrent civil jurisdiction shall become final. The 
affected tribe(s) may appeal a Notice of Rescission under part 2 of 
title 25.
    (4) Nothing shall be construed to prohibit or in any way diminish 
the authority of a tribe to prosecute individuals under its criminal or 
civil trespass laws where it has jurisdiction over those individuals.



Sec. 163.30  Revocable road use and construction permits for removal 
of commercial forest products.

    (a) In accordance with 25 U.S.C. 415 as amended, the Secretary may 
request tribes and/or other beneficial owners to sign revocable permits 
designating the Secretary as agent for the landowner and empowering him 
or her to issue revocable road use and construction permits to users for 
the purpose of removing forest products.
    (b) When a majority of trust interest in a tract has consented, the 
Secretary may issue revocable road use and con- struction permits for 
removal of forest products over and across such land. In addition, the 
Secretary may act for individual owners when:
    (1) One or more of the individual owner(s) of the land or of an 
interest therein is a minor or a person non compos mentis, and the 
Secretary finds that such grant, in total or for an interest therein, 
will cause no substantial injury to the land or the owner, which cannot 
be adequately compensated for by monetary damages;

[[Page 481]]

    (2) The whereabouts of the owner(s) of the land or those with an 
interest therein are unknown so long as the majority of owner(s) of 
interests whose whereabouts are known, consent to the grant;
    (3) The heirs or devisees of a deceased owner of the land or 
interest have not been determined, and the Secretary finds the grant 
will cause no substantial injury to the land or any land owner; or
    (4) The owners of interests in the land are so numerous that the 
Secretary finds it would be impractical to obtain the consent of the 
majority and finds that such grant in total or an interest therein will 
cause no substantial injury to the land or the owner(s), that cannot be 
adequately compensated for by monetary damages.
    (c) Nothing in this section shall preclude acquisition of rights-of-
way over Indian lands, under 25 CFR part 169, or conflict with 
provisions of that part.



Sec. 163.31  Insect and disease control.

    (a) The Secretary is authorized to protect and preserve Indian 
forest land from disease or insects (Sept. 20, 1922, Ch. 349, 42 Stat. 
857). The Secretary shall consult with the authorized tribal 
representatives and beneficial owners of Indian forest land concerning 
control actions.
    (b) The Secretary is responsible for controlling and mitigating 
harmful effects of insects and diseases on Indian forest land and will 
coordinate control actions with the Secretary of Agriculture in 
accordance with 92 Stat. 365, 16 U.S.C. 2101.



Sec. 163.32  Forest development.

    Forest development pertains to forest land management activities 
undertaken to improve the sustainable productivity of commercial Indian 
forest land. The program shall consist of reforestation, timber stand 
improvement projects, and related investments to enhance productivity of 
commercial forest land with emphasis on accomplishing on-the-ground 
projects. Forest development funds will be used to re-establish, 
maintain, and/or improve growth of commercial timber species and control 
stocking levels on commercial forest land. Forest development activities 
will be planned and executed using benefit-cost analyses as one of the 
determinants in establishing priorities for project funding.



Sec. 163.33  Administrative appeals.

    Any challenge to action under 25 CFR part 163 taken by an approving 
officer or subordinate official exercising delegated authority from the 
Secretary shall be exclusively through administrative appeal or as 
provided in the Indian Self-Determination and Education Assistance Act 
(Pub. L. 93-638, as amended). Such appeal(s) shall be filed in 
accordance with the provisions of 25 CFR part 2, Appeals from 
administrative actions, except that an appeal of any action under part 
163 of this title shall:
    (a) Not stay any action unless otherwise directed by the Secretary; 
and
    (b) Define ``interested party'' for purposes of bringing such an 
appeal or participating in such an appeal as any person whose own direct 
economic interest is adversely affected by an action or decision.



Sec. 163.34  Environmental compliance.

    Actions taken by the Secretary under the regulations in this part 
must comply with the National Environmental Policy Act of 1969, 
applicable Council on Environmental Quality Regulations, and tribal laws 
and regulations.



Sec. 163.35  Indian forest land assistance account.

    (a) At the request of a tribe's authorized representatives, the 
Secretary may establish tribal-specific forest land assistance accounts 
within the trust fund system.
    (b) Deposits shall be credited either to forest transportation or to 
general forest land management accounts.
    (c) Deposits into the accounts may include:
    (1) Funds from non-federal sources related to activities on or for 
the Indian forest land of such tribe's reservation;
    (2) Donations or contributions;
    (3) Unobligated forestry appropriations for the tribe;
    (4) User fees; and

[[Page 482]]

    (5) Funds transferred under Federal interagency agreements if 
otherwise authorized by law.
    (d) For purposes of Sec. 163.35(c)(3) of this part; unobligated 
forestry appropriations shall consist of balances that remain 
unobligated at the end of the fiscal year(s) for which funds are 
appropriated for the benefit of an Indian tribe.
    (e) Funds in the Indian forest land assistance account plus any 
interest or other income earned shall remain available until expended 
and shall not be available to otherwise offset Federal appropriations 
for the management of Indian forest land.
    (f) Funds in the forest land assistance account shall be used only 
for forest land management activities on the reservation for which the 
account is established.
    (g) Funds in a tribe's forest land assistance account shall be 
expended in accordance with a plan approved by the tribe and the 
Secretary.
    (h) The Secretary may, where circumstances warrant, at the request 
of the tribe, or upon the Secretary's own volition, conduct audits of 
the forest land assistance accounts and shall provide the audit results 
of to the tribe(s).



Sec. 163.36  Tribal forestry program financial support.

    (a) The Secretary shall maintain a program to provide financial 
support to qualifying tribal forestry programs. A qualifying tribal 
forestry program is an organization or entity established by a tribe for 
purposes of carrying out forest land management activities. Such 
financial support shall be made available through the Indian Self-
Determination and Education Assistance Act (Pub. L. 93-638, as amended).
    (b) The authorized tribal representatives of any category 1, 2, or 3 
reservation (as defined under Sec. 163.36(b)(1)-(3)) with an 
established tribal forestry program or with an intent to establish such 
a program for the purpose of carrying out forest land management 
activities may apply and qualify for tribal forestry program financial 
support. Reservation categories, as determined by the Secretary, are 
defined as:
    (1) Category 1 includes major forested reservations comprised of 
more than 10,000 acres of trust or restricted commercial timberland or 
having more than a one million board foot harvest of forest products 
annually.
    (2) Category 2 includes minor forested reservations comprised of 
less than 10,000 acres of trust or restricted commercial timberland and 
having less than a one million board foot harvest of forest products 
annually, or whose forest resource is determined by the Secretary to be 
of significant commercial timber value.
    (3) Category 3 includes significant woodland reservations comprised 
of an identifiable trust or restricted forest area of any size which is 
lacking a timberland component, and whose forest resource is determined 
by the Secretary to be of significant commercial woodland value.
    (c) A group of tribes that has either established or intends to 
establish a cooperative tribal forestry program to provide forest land 
management services to their reservations may apply and qualify for 
tribal forestry program financial support. For purposes of financial 
support under this provision, the cooperative tribal forestry program 
and the commercial forest acreage and annual allowable cut which it 
represents may be considered as a single reservation.
    (d) Before the beginning of each Federal fiscal year, tribes 
applying to qualify for forestry program financial support shall submit 
application packages to the Secretary which:
    (1) Document that a tribal forestry program exists or that there is 
an intent to establish such a program;
    (2) Describe forest land management activities and the time line for 
implementing such activities which would result from receiving tribal 
forestry program financial support; and
    (3) Document commitment to sustained yield management.
    (e) Tribal forestry program financial support shall provide 
professional and technical services to carry out forest land management 
activities and shall be based on levels of funding assistance as 
follows:
    (1) Level one funding assistance shall be equivalent to a Federal 
Employee

[[Page 483]]

General Pay Schedule GS 9 step 5 position salary plus an additional 40 
percent of the annual salary for such a position to pay for fringe 
benefits and support costs;
    (2) Level two funding assistance shall be equivalent to an 
additional Federal Employee General Pay Schedule GS 9 step 5 position 
salary plus an additional 40 percent of the annual salary for such a 
position to pay for fringe benefits and support costs; and
    (3) Level three funding assistance shall be based on equal 
distribution of remaining funds among qualifying applicants.
    (f) Determination of qualification for level of funding assistance 
shall be as follows:
    (1) A funding level qualification value shall be determined for each 
eligible applicant using the formula below. Such formula shall only be 
used to determine which applicants qualify for level one funding 
assistance. Acreage and allowable cut data used in the formula shall be 
as maintained by the Secretary. Eligible applicants with a funding level 
qualification value of one (1) or greater shall qualify for level one 
assistance.

                   Funding Level Qualification Formula
[GRAPHIC] [TIFF OMITTED] TR05OC95.000

where:

CA=applicant's total commercial Indian forest land acres;
Tot. CA=national total commercial Indian forest land acres;
AAC=applicant's total allowable annual cut from commercial Indian forest 
land acres; and
Tot. AAC=national total allowable annual cut from commercial Indian 
forest land acres.

    (2) All category 1 or 2 reservations that are eligible applicants 
under Sec. 163.36(d) of this part are qualified and eligible for level 
two assistance.
    (3) All category 1, 2 or 3 reservations that are eligible applicants 
under Sec. 163.36(d) of this part are qualified and eligible for level 
three assistance.
    (g) Tribal forestry program financial support funds shall be 
distributed based on the following:
    (1) All requests from reservations qualifying for level one funding 
assistance must be satisfied before funds are made available for level 
two funding assistance;
    (2) All requests from reservations qualifying for level two funding 
assistance must be satisfied before funds are made available for level 
three funding assistance; and
    (3) If available funding is not adequate to satisfy all requests at 
a particular level of funding, funds will be evenly divided among tribes 
qualifying at that level.



Sec. 163.37  Forest management research.

    The Secretary, with the consent of the authorized Indian 
representatives' is authorized to perform forestry research activities 
to improve the basis for determining appropriate land management 
activities to apply to Indian forest land.



  Subpart C_Forestry Education, Education Assistance, Recruitment and 
                                Training



Sec. 163.40  Indian and Alaska Native forestry education assistance.

    (a) Establishment and evaluation of the forestry education 
assistance programs. (1) The Secretary shall establish within the Bureau 
of Indian Affairs Division of Forestry an education committee to 
coordinate and implement the forestry education assistance programs and 
to select participants for all the forestry education assistance 
programs with the exception of the cooperative education program. This 
committee will be, at a minimum, comprised of a professional educator, a 
personnel specialist, an Indian or Alaska Native who is not employed by 
the Bureau of Indian Affairs, and a professional forester from the 
Bureau of Indian Affairs.
    (2) The Secretary, through the Bureau of Indian Affairs Division of 
Forestry, shall monitor and evaluate the forestry education assistance 
programs to ensure that there are adequate Indian and Alaska Native 
foresters and forestry-related professionals to manage the Bureau of 
Indian Affairs forestry programs and forestry programs maintained by or 
for tribes and ANCSA Corporations. Such monitoring and

[[Page 484]]

evaluating shall identify the number of participants in the intern, 
cooperative education, scholarship, and outreach programs; the number of 
participants who completed the requirements to become a professional 
forester or forestry-related professional; and the number of 
participants completing advanced degree requirements.
    (b) Forester intern program. (1) The purpose of the forester intern 
program is to ensure the future participation of trained, professional 
Indians and Alaska Natives in the management of Indian and Alaska Native 
forest land. In keeping with this purpose, the Bureau of Indian Affairs 
in concert with tribes and Alaska Natives will work:
    (i) To obtain the maximum degree of participation from Indians and 
Alaska Natives in the forester intern program;
    (ii) To encourage forester interns to complete an undergraduate 
degree program in a forestry or forestry-related field which could 
include courses on indigenous culture; and
    (iii) To create an opportunity for the advancement of forestry and 
forestry-related technicians to professional resource management 
positions with the Bureau of Indian Affairs, a tribe, tribal forest 
enterprise or ANCSA Corporation.
    (2) The Secretary, through the Bureau of Indian Affairs Division of 
Forestry, subject to the availability of personnel resource levels 
established in agency budgets, shall establish and maintain in the 
Bureau of Indian Affairs at least 20 positions for the forester intern 
program. All Indians and Alaska Natives who satisfy the qualification 
criteria in Sec. 163.40(b)(3) of this part may compete for such 
positions.
    (3) To be considered for selection, applicants for forester intern 
positions must meet the following criteria:
    (i) Be eligible for Indian preference as defined in 25 CFR part 5, 
subchapter A;
    (ii) Possess a high school diploma or its recognized equivalent;
    (iii) Be able to successfully complete the intern program within a 
three year maximum time period; and
    (iv) Possess a letter of acceptance to an accredited post-secondary 
school or demonstrate that such a letter of acceptance will be acquired 
within 90 days.
    (4) The Bureau of Indian Affairs shall advertise vacancies for 
forester intern positions semiannually, no later than the first day of 
April and October, to accommodate entry into school.
    (5) Selection of forester interns will be based on the following 
guidelines:
    (i) Selection will be on a competitive basis selecting applicants 
who have the greatest potential for success in the program;
    (ii) Selection will take into consideration the amount of time which 
will be required for individual applicants to complete the intern 
program;
    (iii) Priority in selection will be given to candidates currently 
employed with and recommended for participation by the Bureau of Indian 
Affairs, a tribe, a tribal forest enterprise or ANCSA Corporation; and
    (iv) Selection of individuals to the program awaiting the letter of 
acceptance required by Sec. 163.40(b)(3)(iv) of this part may be 
canceled if such letter of acceptance is not secured and provided to the 
education committee in a timely manner.
    (6) Forester interns shall comply with each of the following program 
requirements:
    (i) Maintain full-time status in a forestry related curriculum at an 
accredited post-secondary school having an agreement which assures the 
transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a forestry 
related program at a bachelor degree granting institution accredited by 
the American Association of Universities;
    (ii) Maintain good academic standing;
    (iii) Enter into an obligated service agreement to serve as a 
professional forester or forestry-related professional with the Bureau 
of Indian Affairs, the recommending tribe, tribal forest enterprise or 
ANCSA Corporation for two years for each year in the program; and
    (iv) Report for service with the Bureau of Indian Affairs, a tribe, 
tribal forest enterprise or ANCSA Corporation during any break in 
attendance at school of more than three weeks duration. Time spent in 
such service shall

[[Page 485]]

be counted toward satisfaction of the intern's obligated service.
    (7) The education committee established pursuant to Sec. 
163.40(a)(1) of this part will evaluate annually the performance of 
forester intern program participants against requirements enumerated in 
Sec. 163.40(b)(6) of this part to ensure that they are satisfactorily 
progressing toward completing program requirements.
    (8) The Secretary shall pay all costs for tuition, books, fees and 
living expenses incurred by a forester intern while attending an 
accredited post-secondary school.
    (c) Cooperative education program. (1) The purpose of the 
cooperative education program is to recruit and develop promising Indian 
and Alaska Native students who are enrolled in secondary schools, tribal 
or Alaska Native community colleges, and other post-secondary schools 
for employment as professional foresters and other forestry-related 
professionals by the Bureau of Indian Affairs, a tribe, tribal forest 
enterprise or ANCSA Corporation.
    (2) The program shall be operated by the Bureau of Indian Affairs 
Division of Forestry in accordance with the provisions of 5 CFR 
213.3202(a) and 213.3202(b).
    (3) To be considered for selection, applicants for the cooperative 
education program must meet the following criteria:
    (i) Meet eligibility requirements stipulated in 5 CFR 213.3202;
    (ii) Be accepted into or enrolled in a course of study at a high 
school offering college preparatory course work, an accredited 
institution which grants bachelor degrees in forestry or forestry-
related curriculums or a post-secondary education institution which has 
an agreement with a college or university which grants bachelor degrees 
in forestry or forestry-related curriculums. The agreement must assure 
the transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a forestry 
related program at the bachelor degree-granting institution.
    (4) Cooperative education steering committees established at the 
field level shall select program participants based on eligibility 
requirements stipulated in Sec. 163.40(c)(3) of this part without 
regard to applicants' financial needs.
    (5) A recipient of assistance under the cooperative education 
program shall be required to enter into an obligated service agreement 
to serve as a professional forester or forestry- related professional 
with the Bureau of Indian Affairs, a recommending tribe, tribal forest 
enterprise or ANCSA Corporation for one year in return for each year in 
the program.
    (6) The Secretary shall pay all costs of tuition, books, fees, and 
transportation to and from the job site to school, for an Indian or 
Alaska Native student who is selected for participation in the 
cooperative education program.
    (d) Scholarship program. (1) The Secretary is authorized, within the 
Bureau of Indian Affairs Division of Forestry, to establish and grant 
forestry scholarships to Indians and Alaska Natives enrolled in 
accredited programs for post-secondary and graduate forestry and 
forestry-related programs of study as full-time students.
    (2) The education committee established pursuant to this part in 
Sec. 163.40(a)(1) shall select program participants based on 
eligibility requirements stipulated in Sec. Sec. 163.40(d)(5), 
163.40(d)(6) and 163.40(d)(7) without regard to applicants' financial 
needs or past scholastic achievements.
    (3) Recipients of scholarships must reapply annually to continue 
funding beyond the initial award period. Students who have been 
recipients of scholarships in past years, who are in good academic 
standing and have been recommended for continuation by their academic 
institution will be given priority over new applicants for selection for 
scholarship assistance.
    (4) The amount of scholarship funds an individual is awarded each 
year will be contingent upon the availability of funds appropriated each 
fiscal year and, therefore, may be subject to yearly changes.
    (5) Preparatory scholarships are available for a maximum of two and 
one half academic years of general, undergraduate course work leading to 
a

[[Page 486]]

degree in forestry or forestry-related curriculums and may be awarded to 
individuals who meet the following criteria:
    (i) Must possess a high school diploma or its recognized equivalent; 
and
    (ii) Be enrolled and in good academic standing or accepted for 
enrollment at an accredited post-secondary school which grants degrees 
in forestry or forestry-related curriculums or be in a post-secondary 
institution which has an agreement with a college or university which 
grants bachelor degrees in forestry or forestry-related curriculums. The 
agreement must assure the transferability of a minimum of 55 semester 
hours from the post-secondary institution which meet the program 
requirements for a forestry-related curriculum at the bachelor degree 
granting institution.
    (6) Pregraduate scholarships are available for a maximum of three 
academic years and may be awarded to individuals who meet the following 
criteria:
    (i) Have completed a minimum of 55 semester hours towards a bachelor 
degree in a forestry or forestry-related curriculum; and
    (ii) Be accepted into a forestry or forestry-related bachelor 
degree-granting program at an accredited college or university.
    (7) Graduate scholarships are available for a maximum of three 
academic years for individuals selected into the graduate program of an 
accredited college or university that grants advanced degrees in 
forestry or forestry-related fields.
    (8) A recipient of assistance under the scholarship program shall be 
required to enter into an obligated service agreement to serve as a 
professional forester or forestry-related professional with the Bureau 
of Indian Affairs, a tribe, tribal forest enterprise or ANCSA 
Corporation for one year for each year in the program.
    (9) The Secretary shall pay all scholarships approved by the 
education committee established pursuant to this part in Sec. 
163.40(a)(1), for which funding is available.
    (e) Forestry education outreach. (1) The Secretary shall establish 
and maintain a forestry education outreach program within the Bureau of 
Indian Affairs Division of Forestry for Indian and Alaska Native youth 
which will:
    (i) Encourage students to acquire academic skills needed to succeed 
in post-secondary mathematics and science courses;
    (ii) Promote forestry career awareness that could include modern 
technologies as well as native indigenous forestry technologies;
    (iii) Involve students in projects and activities oriented to 
forestry related professions early so students realize the need to 
complete required precollege courses; and
    (iv) Integrate Indian and Alaska Native forestry program activities 
into the education of Indian and Alaska Native students.
    (2) The program shall be developed and carried out in consultation 
with appropriate community education organizations, tribes, ANCSA 
Corporations, and Alaska Native organizations.
    (3) The program shall be coordinated and implemented nationally by 
the education committee established pursuant to Sec. 163.40(a)(1) of 
this part.
    (f) Postgraduate studies. (1) The purpose of the postgraduate 
studies program is to enhance the professional and technical knowledge 
of Indian and Alaska Native foresters and forestry-related professionals 
working for the Bureau of Indian Affairs, a tribe, tribal forest 
enterprise or ANCSA Corporations so that the best possible service is 
provided to Indian and Alaska Native publics.
    (2) The Secretary is authorized to pay the cost of tuition, fees, 
books and salary of Alaska Natives and Indians who are employed by the 
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA 
Corporation who have previously received diplomas or degrees in forestry 
or forestry-related curriculums and who wish to pursue advanced levels 
of education in forestry or forestry-related fields.
    (3) Requirements of the postgraduate study program are:
    (i) The goal of the advanced study program is to encourage 
participants to obtain additional academic credentials such as a degree 
or diploma in a forestry or forestry-related field;

[[Page 487]]

    (ii) The duration of course work cannot be less than one semester or 
more than three years; and
    (iii) Students in the postgraduate studies program must meet 
performance standards as required by the graduate school offering the 
study program during their course of study.
    (4) Program applicants will submit application packages to the 
education committee established by Sec. 163.40(a)(1). At a minimum, 
such packages shall contain a complete SF 171 and an endorsement, signed 
by the applicant's supervisor clearly stating the needs and benefits of 
the desired training.
    (5) The education committee established pursuant to Sec. 
163.40(a)(1) shall select program participants based on the following 
criteria:
    (i) Need for the expertise sought at both the local and national 
levels;
    (ii) Expected benefits, both to the location and nationally; and
    (iii) Years of experience and the service record of the employee.
    (6) Program participants will enter into an obligated service 
agreement in accordance with Sec. 163.42(a), to serve as a professional 
forester or forestry-related professional with the Bureau of Indian 
Affairs, a tribe, tribal forest enterprise or ANCSA Corporation for two 
years for each year in the program. However, the obligated service 
requirement may be reduced by the Secretary if the employee receives 
supplemental funding such as research grants, scholarships or graduate 
stipends and, as a result, reduces the need for financial assistance. If 
the obligated service agreement is breached, the Secretary is authorized 
to pursue collection in accordance with Sec. 163.42(b) of this part.



Sec. 163.41  Postgraduation recruitment, continuing education and 
training programs.

    (a) Postgraduation recruitment program. (1) The purpose of the 
postgraduation recruitment program is to recruit Indian and Alaska 
Native graduate foresters and trained forestry technicians into the 
Bureau of Indian Affairs forestry program or forestry programs conducted 
by a tribe, tribal forest enterprise or ANCSA Corporation.
    (2) The Secretary is authorized to assume outstanding student loans 
from established lending institutions of Indian and Alaska Native 
foresters and forestry technicians who have successfully completed a 
post-secondary forestry or forestry- related curriculum at an accredited 
institution.
    (3) Indian and Alaska Natives receiving benefits under this program 
shall enter into an obligated service agreement in accordance with Sec. 
163.42(a) of this part. Obligated service required under this program 
will be one year for every $5,000 of student loan debt repaid.
    (4) If the obligated service agreement is breached, the Secretary is 
authorized to pursue collection of the student loan(s) in accordance 
with Sec. 163.42(b) of this part.
    (b) Postgraduate intergovernmental internships. (1) Forestry 
personnel working for the Bureau of Indian Affairs, a tribe, tribal 
forest enterprise or ANCSA Corporation may apply to the Secretary and be 
granted an internship within forestry-related programs of agencies of 
the Department of the Interior.
    (2) Foresters or forestry-related personnel from other Department of 
the Interior agencies may apply through proper channels for internships 
within Bureau of Indian Affairs forestry programs and, with the consent 
of a tribe or Alaska Native organization, within tribal or Alaska Native 
forestry programs.
    (3) Forestry personnel from agencies not within the Department of 
the Interior may apply, through proper agency channels and pursuant to 
an interagency agreement, for an internship within the Bureau of Indian 
Affairs and, with the consent of a tribe or Alaska Native organization, 
within a tribe, tribal forest enterprise or ANCSA Corporation.
    (4) Forestry personnel from a tribe, tribal forest enterprise or 
ANCSA Corporation may apply, through proper channels and pursuant to a 
cooperative agreement, for an internship within another tribe, tribal 
forest enterprise or ANCSA Corporation forestry program.
    (5) The employing agency of participating Federal employees will 
provide for the continuation of salary and benefits.

[[Page 488]]

    (6) The host agency for participating tribal, tribal forest 
enterprise or ANCSA Corporation forestry employees will provide for 
salaries and benefits.
    (7) A bonus pay incentive, up to 25 percent of the intern's base 
salary, may be provided to intergovernmental interns at the conclusion 
of the internship period. Bonus pay incentives will be at the discretion 
of and funded by the host organization and will be conditioned upon the 
host agency's documentation of the intern's superior performance, in 
accordance with the agency's performance standards, during the 
internship period.
    (c) Continuing education and training. (1) The purpose of continuing 
education and training is to establish a program to provide for the 
ongoing education and training of forestry personnel employed by the 
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA 
Corporation. This program will emphasize continuing education and 
training in three areas:
    (i) Orientation training, including tribal-Federal relations and 
responsibilities;
    (ii) Technical forestry education; and
    (iii) Developmental training in forest land-based enterprises and 
marketing.
    (2) The Secretary shall implement within the Bureau of Indian 
Affairs Division of Forestry, an orientation program designed to 
increase awareness and understanding of Indian culture and its effect on 
forest management practices and on Federal laws that affect forest 
management operations and administration in the Indian forestry program.
    (3) The Secretary shall implement within the Bureau of Indian 
Affairs Division of Forestry, a continuing technical forestry education 
program to assist foresters and forestry-related professionals to 
perform forest management on Indian forest land.
    (4) The Secretary shall implement, within the Bureau of Indian 
Affairs Division of Forestry, a forest land-based forest enterprise and 
marketing training program to assist with the development and use of 
Indian and Alaska Native forest resources.



Sec. 163.42  Obligated service and breach of contract.

    (a) Obligated service. (1) Individuals completing forestry education 
programs with an obligated service requirement may be offered full time 
permanent employment with the Bureau of Indian Affairs, a tribe, tribal 
forest enterprise or ANCSA Corporation to fulfill their obligated 
service within 90 days of the date all program education requirements 
have been completed. If such employment is not offered within the 90-day 
period, the student shall be relieved of obligated service requirements. 
Not less than 30 days prior to the commencement of employment, the 
employer shall notify the participant of the work assignment, its 
location and the date work must begin. If the employer is other than the 
Bureau of Indian Affairs, the employer shall notify the Secretary of the 
offer for employment.
    (2) Qualifying employment time eligible to be credited to fulfilling 
the obligated service requirement will begin the day after all program 
education requirements have been completed, with the exception of the 
forester intern program, which includes the special provisions outlined 
in Sec. 163.40(b)(6)(iv). The minimum service obligation period shall 
be one year of full-time employment.
    (3) The Secretary or other qualifying employer reserves the right to 
designate the location of employment for fulfilling the service 
obligation.
    (4) A participant in any of the forestry education programs with an 
obligated service requirement who receives a degree may, within 30 days 
of the degree completion date, request a deferment of obligated service 
to pursue postgraduate or postdoctoral studies. In such cases, the 
Secretary shall issue a decision within 30 days of receipt of the 
request for deferral. The Secretary may grant such a request, however, 
deferments granted in no way waive or otherwise affect obligated service 
requirements.
    (5) A participant in any of the forestry education programs with an 
obligated service requirement may, within 30 days of the date all 
program education requirements have been completed, request a waiver of 
obligated

[[Page 489]]

service based on personal or family hardship. The Secretary may grant a 
full or partial waiver or deny the request for waiver. In such cases, 
the Secretary shall issue a decision within 30 days of receipt of the 
request for waiver.
    (b) Breach of contract. Any individual who has participated in and 
accepted financial support under forestry education programs with an 
obligated service requirement and who does not accept employment or 
unreasonably terminates such employment by their own volition will be 
required to repay financial assistance as follows:
    (1) Forester intern program--Amount plus interest equal to the sum 
of all salary, tuition, books, and fees that the forester intern 
received while occupying the intern position. The amount of salary paid 
to the individual during breaks in attendance from school, when the 
individual was employed by the Bureau of Indian Affairs, a tribe, tribal 
forest enterprise, or ANCSA Corporation, shall not be included in this 
total.
    (2) Cooperative education program--Amount plus interest equal to the 
sum of all tuition, books, and fees that the individual received under 
the cooperative education program.
    (3) Scholarship program--Amount plus interest equal to 
scholarship(s) provided to the individual under the scholarship program.
    (4) Postgraduation recruitment program--Amount plus interest equal 
to the sum of all the individual's student loans assumed by the 
Secretary under the postgraduation recruitment program.
    (5) Postgraduate studies program--Amount plus interest equal to the 
sum of all salary, tuition, books, and fees that the individual received 
while in the postgraduate studies program. The amount of salary paid to 
that individual during breaks in attendance from school, when the 
individual was employed by the Bureau of Indian Affairs, a tribe, a 
tribal enterprise, or ANCSA Corporation, shall not be included in this 
total.
    (c) Adjustment of repayment for obligated service performed. Under 
forestry education programs with an obligated service requirement, the 
amount required for repayment will be adjusted by crediting time of 
obligated service performed prior to breach of contract toward the final 
amount of debt.



          Subpart D_Alaska Native Technical Assistance Program



Sec. 163.60  Purpose and scope.

    (a) The Secretary shall provide a technical assistance program to 
ANCSA corporations to promote sustained yield management of their forest 
resources and, where practical and consistent with the economic 
objectives of the ANCSA Corporations, promote local processing and other 
value-added activities. For the purpose of this subpart, technical 
assistance means specialized professional and technical help, advice or 
assistance in planning, and providing guidance, training and review for 
programs and projects associated with the management of, or impact upon, 
Indian forest land, ANCSA corporation forest land, and their related 
resources. Such technical assistance shall be made available through 
contracts, grants or agreements entered into in accordance with the 
Indian Self-Determination and Education Assistance Act (Pub. L. 93-638, 
as amended).
    (b) Nothing in this part shall be construed as: Affecting, modifying 
or increasing the responsibility of the United States toward ANCSA 
corporation forest land, or affecting or otherwise modifying the Federal 
trust responsibility towards Indian forest land; or requiring or 
otherwise mandating an ANCSA corporation to apply for a contract, grant, 
or agreement for technical assistance with the Secretary. Such 
applications are strictly voluntary.



Sec. 163.61  Evaluation committee.

    (a) The Secretary shall establish an evaluation committee to assess 
and rate technical assistance project proposals. This committee will 
include, at a minimum, local Bureau of Indian Affairs and Alaska Native 
representatives with expertise in contracting and forestry.

[[Page 490]]



Sec. 163.62  Annual funding needs assessment and rating.

    (a) Each year, the Secretary will request a technical assistance 
project needs assessment from ANCSA corporations. The needs assessments 
will provide information on proposed project goals and estimated costs 
and benefits and will be rated by the evaluation committee established 
pursuant to Sec. 163.61 for the purpose of making funding 
recommendations to the Secretary. To the extent practicable, such 
recommendations shall achieve an equitable funding distribution between 
large and small ANCSA corporations and shall give priority for 
continuation of previously approved multi-year projects.
    (b) Based on the recommendations of the evaluation committee, the 
Secretary shall fund such projects, to the extent available 
appropriations permit.



Sec. 163.63  Contract, grant, or agreement application and award process.

    (a) At such time that the budget for ANCSA corporation technical 
assistance projects is known, the Secretary shall advise the ANCSA 
corporations on which projects were selected for funding and on the 
deadline for submission of complete and detailed contract, grant or 
agreement packages.
    (b) Upon the request of an ANCSA corporation and to the extent that 
funds and personnel are available, the Bureau of Indian Affairs shall 
provide technical assistance to ANCSA corporations to assist them with:
    (1) Preparing the technical parts of the contract, grant, or 
agreement application; and
    (2) Obtaining technical assistance from other Federal agencies.



                    Subpart E_Cooperative Agreements



Sec. 163.70  Purpose of agreements.

    (a) To facilitate administration of the programs and activities of 
the Department of the Interior, the Secretary is authorized to negotiate 
and enter into cooperative agreements between Indian tribes and any 
agency or entity within the Department. Such cooperative agreements 
include engaging tribes to undertake services and activities on all 
lands managed by Department of the Interior agencies or entities or to 
provide services and activities performed by these agencies or entities 
on Indian forest land to:
    (1) Engage in cooperative manpower and job training and development 
programs;
    (2) Develop and publish cooperative environmental education and 
natural resource planning materials; and
    (3) Perform land and facility improvements, including forestry and 
other natural resources protection, fire protection, reforestation, 
timber stand improvement, debris removal, and other activities related 
to land and natural resource management.
    (b) The Secretary may enter into such agreements when he or she 
determines the public interest will be benefited. Nothing in Sec. 
163.70(a) shall be construed to limit the authority of the Secretary to 
enter into cooperative agreements otherwise authorized by law.



Sec. 163.71  Agreement funding.

    In cooperative agreements, the Secretary is authorized to advance or 
reimburse funds to contractors from any appropriated funds available for 
similar kinds of work or by furnishing or sharing materials, supplies, 
facilities, or equipment without regard to the provisions of 31 U.S.C. 
3324, relating to the advance of public moneys.



Sec. 163.72  Supervisory relationship.

    In any agreement authorized by the Secretary, Indian tribes and 
their employees may perform cooperative work under the supervision of 
the Department of the Interior in emergencies or otherwise, as mutually 
agreed to, but shall not be deemed to be Federal employees other than 
for purposes of 28 U.S.C. 2671 through 2680, and 5 U.S.C. 8101 through 
8193.



                      Subpart F_Program Assessment



Sec. 163.80  Periodic assessment report.

    The Secretary shall commission every ten years an independent 
assessment of Indian forest land and Indian forest land management 
practices

[[Page 491]]

under the guidelines established in Sec. 163.81 of this part.
    (a) Assessments shall be conducted in the first year of each decade 
(e.g., 2000, 2010, etc.) and shall be completed within 24 months of 
their initiation date. Each assessment shall be initiated no later than 
November 28 of the designated year.
    (b) Except as provided in Sec. 163.83 of this part, each assessment 
shall be conducted by a non-Federal entity knowledgeable of forest 
management practices on Federal and private land. Assessments will 
evaluate and compare investment in and management of Indian forest land 
with similar Federal and private land.
    (c) Completed assessment reports shall be submitted to the Committee 
on Interior and Insular Affairs of the United States House of 
Representatives and the Select Committee on Indian Affairs of the United 
States Senate and shall be made available to Indian tribes.



Sec. 163.81  Assessment guidelines.

    Assessments shall be national in scope and shall include:
    (a) An in-depth analysis of management practices on, and the level 
of funding by management activity for, specific Indian forest land 
compared with similar Federal and private forest land;
    (b) A survey of the condition of Indian forest land, including 
health and productivity levels;
    (c) An evaluation of the staffing patterns, by management activity, 
of forestry organizations of the Bureau of Indian Affairs and of Indian 
tribes;
    (d) An evaluation of procedures employed in forest product sales 
administration, including preparation, field supervision, and 
accountability for proceeds;
    (e) An analysis of the potential for streamlining administrative 
procedures, rules and policies of the Bureau of Indian Affairs without 
diminishing the Federal trust responsibility;
    (f) A comprehensive review of the intensity and utility of forest 
inventories and the adequacy of Indian forest land management plans, 
including their compatibility with other resource inventories and 
applicable integrated resource management plans and their ability to 
meet tribal needs and priorities;
    (g) An evaluation of the feasibility and desirability of 
establishing or revising minimum standards against which the adequacy of 
the forestry program of the Bureau of Indian Affairs in fulfilling its 
trust responsibility to Indian forest land can be measured;
    (h) An evaluation of the effectiveness of implementing the Indian 
Self-Determination and Education Assistance Act (Pub. L. 93-638, as 
amended) in regard to the Bureau of Indian Affairs forestry program;
    (i) A recommendation of any reforms and increased funding and other 
resources necessary to bring Indian forest land management programs to a 
state-of-the-art condition; and
    (j) Specific examples and comparisons from across the United States 
where Indian forest land is located.



Sec. 163.82  Annual status report.

    The Secretary shall, within 6 months of the end of each fiscal year, 
submit to the Committee on Interior and Insular Affairs of the United 
States House of Representatives, the Select Committee on Indian Affairs 
of the United States Senate, and to the affected Indian tribes, a report 
on the status of Indian forest land with respect to attaining the 
standards, goals and objectives set forth in approved forest management 
plans. The report shall identify the amount of Indian forest land in 
need of forestation or other silvicultural treatment, and the quantity 
of timber available for sale, offered for sale, and sold, for each 
Indian tribe.



Sec. 163.83  Assistance from the Secretary of Agriculture.

    The Secretary of the Interior may ask the Secretary of Agriculture, 
through the Forest Service, on a nonreimbursable basis, for technical 
assistance in the conduct of such research and evaluation activities as 
may be necessary for the completion of any reports or assessments 
required by Sec. 163.80 of this part.

[[Page 492]]



PART 166_GRAZING PERMITS--Table of Contents




                Subpart A_Purpose, Scope, and Definitions

Sec.
166.1 What is the purpose and scope of this part?
166.2 Can the BIA waive the application of these regulations?
166.3 May decisions under this part be appealed?
166.4 What terms do I need to know?

        Subpart B_Tribal Policies and Laws Pertaining to Permits

166.100 What special tribal policies will we apply to permitting on 
          Indian agricultural lands?
166.101 May individual Indian landowners exempt their land from certain 
          tribal policies for permitting on Indian agricultural lands?
166.102 Do tribal laws apply to permits?
166.103 How will tribal laws be enforced on Indian agricultural land?
166.104 What notifications are required that tribal laws apply to 
          permits on Indian agricultural lands?

                      Subpart C_Permit Requirements

                          General Requirements

166.200 When is a permit needed to authorize possession of Indian land 
          for grazing purposes?
166.201 Must parents or guardians of Indian minors who own Indian land 
          obtain a permit before using land for grazing purposes?
166.202 May an emancipated minor grant a permit?
166.203 When can the Indian landowners grant a permit?
166.204 Who may represent an individual Indian landowner in granting a 
          permit?
166.205 When can the BIA grant a permit on behalf of Indian landowners?
166.206 What requirements apply to a permit on a fractionated tract?
166.207 What provisions will be contained in a permit?
166.208 How long is a permit term?
166.209 Must a permit be recorded?
166.210 When is a decision by the BIA regarding a permit effective?
166.211 When are permits effective?
166.212 When may a permittee take possession of permitted Indian land?
166.213 Must I comply with any standards of conduct if I am granted a 
          permit?
166.214 Will the BIA notify the permittee of any change in land title 
          status?

                           Obtaining a Permit

166.215 How can I find Indian land available for grazing?
166.216 Who is responsible for permitting Indian land?
166.217 In what manner may a permit on Indian land be granted?
166.218 How do I acquire a permit through tribal allocation?
166.219 How do I acquire a permit through negotiation?
166.220 What are the basic steps for acquiring a permit through 
          negotiation?
166.221 How do I acquire an advertised permit through competitive 
          bidding?
166.222 Are there standard permit forms?

                       Permit (Leasehold) Mortgage

166.223 Can I use a permit as collateral for a loan?
166.224 What factors does the BIA consider when reviewing a leasehold 
          mortgage?
166.225 May a permittee voluntarily assign a leasehold interest under an 
          approved encumbrance?
166.226 May the holder of a leasehold mortgage assign the leasehold 
          interest after a sale or foreclosure of an approved 
          encumbrance?

                           Modifying a Permit

166.227 How can Indian land be removed from an existing permit?
166.228 How will the BIA provide notice if Indian land is removed from 
          an existing permit?
166.229 Other than to remove land, how can a permit be amended, 
          assigned, subpermitted, or mortgaged?
166.230 When will a BIA decision to approve an amendment, assignment, 
          subpermit, or mortgage under a permit be effective?
166.231 Must an amendment, assignment, subpermit, or mortgage approved 
          under a permit be recorded?

                Subpart D_Land and Operations Management

166.300 How is Indian agricultural land managed?
166.301 How is Indian land for grazing purposes described?
166.302 How is a range unit created?
166.303 Can more than one parcel of Indian land be combined into one 
          permit?
166.304 Can there be more than one permit for each range unit?
166.305 When is grazing capacity determined?
166.306 Can the BIA adjust the grazing capacity?
166.307 Will the grazing capacity be increased if I graze adjacent trust 
          or non-trust rangelands not covered by the permit?

[[Page 493]]

166.308 Can the number of animals and/or season of use be modified on 
          the permitted land if I graze adjacent trust or non-trust 
          rangelands under an on-and-off grazing permit?
166.309 Who determines livestock class and livestock ownership 
          requirements on permitted Indian land?
166.310 What must a permittee do to protect livestock from exposure to 
          disease?

              Management Plans and Environmental Compliance

166.311 Is an Indian agricultural resource management plan required?
166.312 Is a conservation plan required?
166.313 Is environmental compliance required?

                 Conservation Practices and Improvements

166.314 Can a permittee apply a conservation practice on permitted 
          Indian land?
166.315 Who is responsible for the completion and maintenance of a 
          conservation practice if the permit expires or is canceled 
          before the completion of the conservation practice?
166.316 Can a permittee construct improvements on permitted Indian land?
166.317 What happens to improvements constructed on Indian lands when 
          the permit has been terminated?

 Subpart E_Grazing Rental Rates, Payments, and Late Payment Collections

                Rental Rate Determination and Adjustment

166.400 Who establishes grazing rental rates?
166.401 How does the BIA establish grazing rental rates?
166.402 Why must the BIA determine the fair annual rental of Indian 
          land?
166.403 Will the BIA ever grant or approve a permit at less than fair 
          annual rental?
166.404 Whose grazing rental rate will be applicable for a permit on 
          tribal land?
166.405 Whose grazing rental rate will be applicable for a permit on 
          individually-owned Indian land?
166.406 Whose grazing rental rate will be applicable for a permit on 
          government land?
166.407 If a range unit consists of tribal and individually-owned Indian 
          lands, what is the grazing rental rate?
166.408 Is the grazing rental rate established by the BIA adjusted 
          periodically?

                             Rental Payments

166.409 How is my grazing rental payment determined?
166.410 When are grazing rental payments due?
166.411 Will a permittee be notified when a grazing rental payment is 
          due?
166.412 What if the permittee does not receive an invoice that a grazing 
          rental payment is due?
166.413 To whom are grazing rental payments made?
166.414 What forms of grazing rental payments are acceptable?
166.415 What will the BIA do if the permittee fails to make a direct 
          payment to an Indian landowner?
166.416 May a permittee make a grazing rental payment in advance of the 
          due date?
166.417 May an individual Indian landowner modify the terms of the 
          permit on a fractionated tract for advance grazing rental 
          payment?
166.418 When is a grazing rental payment late?

                     Late Rental Payment Collections

166.419 What will the BIA do if grazing rental payments are not made in 
          the time and manner required by the permit?
166.420 Will any special fees be assessed on delinquent grazing rental 
          payments due under a permit?
166.421 If a permit is canceled for non-payment, does that extinguish 
          the permittee's debt?

                    Compensation to Indian Landowners

166.422 What does the BIA do with grazing rental payments received from 
          permittees?
166.423 How do Indian landowners receive grazing rental payments that 
          the BIA has received from permittees?
166.424 How will the BIA determine the grazing rental payment amount to 
          be distributed to each Indian landowner?

                Subpart F_Administrative and Tribal Fees

166.500 Are there administrative fees for a permit?
166.501 How are annual administrative fees determined?
166.502 Are administrative fees refundable?
166.503 May the BIA waive administrative fees?
166.504 Are there any other administrative or tribal fees, taxes, or 
          assessments that must be paid?

              Subpart G_Bonding and Insurance Requirements

166.600 Must a permittee provide a bond for a permit?
166.601 How is the amount of the bond determined?
166.602 What form of bonds will the BIA accept?

[[Page 494]]

166.603 If cash is submitted as a bond, how is it administered?
166.604 Is interest paid on a cash performance bond?
166.605 Are cash performance bonds refunded?
166.606 What happens to a bond if a violation occurs?
166.607 Is insurance required for a permit?
166.608 What types of insurance may be required?

                       Subpart H_Permit Violations

166.700 What permit violations are addressed by this subpart?
166.701 How will the BIA determine whether the activities of a permittee 
          under a permit are in compliance with the terms of the permit?
166.702 Can a permit provide for negotiated remedies in the event of a 
          permit violation?
166.703 What happens if a permit violation occurs?
166.704 What will a written notice of a permit violation contain?
166.705 What will the BIA do if a permit violation is not cured within 
          the required time period?
166.706 Will the BIA's regulations concerning appeal bonds apply to 
          cancellation decisions involving permits?
166.707 When will a cancellation of a permit be effective?
166.708 Can the BIA take emergency action if the rangeland is threatened 
          with immediate, significant, and irreparable harm?
166.709 What will the BIA do if a permittee holds over after the 
          expiration or cancellation of a permit?

                           Subpart I_Trespass

166.800 What is trespass?
166.801 What is the BIA's trespass policy?
166.802 Who can enforce this subpart?

                              Notification

166.803 How are trespassers notified of a trespass determination?
166.804 What can I do if I receive a trespass notice?
166.805 How long will a written trespass notice remain in effect?

                                 Actions

166.806 What actions does the BIA take against trespassers?
166.807 When will we impound unauthorized livestock or other property?
166.808 How are trespassers notified if their unauthorized livestock or 
          other property are to be impounded?
166.809 What happens after my unauthorized livestock or other property 
          are impounded?
166.810 How do I redeem my impounded livestock or other property?
166.811 How will the sale of impounded livestock or other property be 
          conducted?

                      Penalties, Damages, and Costs

166.812 What are the penalties, damages, and costs payable by 
          trespassers on Indian agricultural land?
166.813 How will the BIA determine the value of forage or crops consumed 
          or destroyed?
166.814 How will the BIA determine the value of the products or property 
          illegally used or removed?
166.815 How will the BIA determine the amount of damages to Indian 
          agricultural land?
166.816 How will the BIA determine the costs associated with enforcement 
          of the trespass?
166.817 What happens if I do not pay the assessed penalties, damages and 
          costs?
166.818 How are the proceeds from trespass distributed?
166.819 What happens if the BIA does not collect enough money to satisfy 
          the penalty?

Subpart J_Agriculture Education, Education Assistance, Recruitment, and 
                                Training

166.900 How are the Indian agriculture education programs operated?
166.901 How will the BIA select an agriculture intern?
166.902 How can I become an agriculture educational employment student?
166.903 How can I get an agriculture scholarship?
166.904 What is agriculture education outreach?
166.905 Who can get assistance for postgraduate studies?
166.906 What can happen if we recruit you after graduation?
166.907 Who can be an intern?
166.908 Who can participate in continuing education and training?
166.909 What are my obligations to the BIA after I participate in an 
          agriculture education program?
166.910 What happens if I do not fulfill my obligation to the BIA?

                            Subpart K_Records

166.1000 Who owns the records associated with this part?
166.1001 How must records associated with this part be preserved?


[[Page 495]]


    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 
9; Sec. 6, 96 Stat. 986, 25 U.S.C. 466. Interpret or apply R.S. 2078, 25 
U.S.C. 68; R.S. 2117, 25 U.S.C. 179; Sec. 3, 26 Stat. 795, 25 U.S.C. 
397; Sec. 1, 28 Stat. 305, 25 U.S.C. 402; Sec. 4, 36 Stat. 856, 25 
U.S.C. 403; Sec. 1, 39 Stat. 128, 25 U.S.C. 394; Sec. 1, 41 Stat. 1232, 
25 U.S.C. 393; Sec. 16, 17, 48 Stat. 987, 988, 25 U.S.C. 476, 477; Sec. 
1, 2, 4, 5, 6, 69 Stat. 539, 540, 25 U.S.C. 415, 415a, 415b, 415c, 415d, 
25 U.S.C. 3701, 3702, 3703, 3711, 3712, 3713, 3714, 3731, 3732, 3733, 
3734, 3741, 3742, 3743, 3744, 3745, 107 Stat. 2011; 44 U.S.C. Sec. 
3101, et seq.)

    Source: 66 FR 7126, Jan. 22, 2001, unless otherwise noted.



                Subpart A_Purpose, Scope, and Definitions



Sec. 166.1  What is the purpose and scope of this part?

    (a) The purpose of this part is to describe the authorities, 
policies, and procedures the BIA uses to approve, grant, and administer 
a permit for grazing on tribal land, individually-owned Indian land, or 
government land.
    (b) If the BIA's approval is not required for a permit, these 
regulations will not apply.
    (c) These regulations do not apply to any tribal land which is 
permitted under a corporate charter issued by us pursuant to 25 U.S.C. 
Sec. 477, or under a special act of Congress authorizing permits 
without our approval under certain conditions, except to the extent that 
the authorizing statutes require us to enforce such permits on behalf of 
the Indian landowners.
    (d) To the extent that any provisions of this part conflict with 
Section 213 of the Indian Land Consolidation Act Amendments of 2000, the 
provisions of that act will govern.
    (e) In approving a permit on behalf of the Indian landowners, the 
BIA will not permit for fee interest owners nor will we collect rent on 
behalf of fee interest owners. Our permitting of the trust and 
restricted interests of the Indian landowners will not be conditioned on 
a permit having been obtained from any fee interest owners. However, 
where all of the trust or restricted interests in a tract are subject to 
a life estate held in fee status, we will approve a permit of the 
remainder interests of the Indian landowners only if such action is 
necessary to preserve the value of the land or protect the interests of 
the Indian landowners. Where a life estate and remainder interest are 
both owned in trust or restricted status, the life estate and remainder 
interest must both be permitted under these regulations, unless the 
permit is for less than one year in duration. Unless otherwise provided 
by the document creating the life estate or by agreement, rent payable 
under the permit must be paid to the holder of the life estate under 
part 179 of this title.



Sec. 166.2  Can the BIA waive the application of these regulations?

    Yes. In any case in which these regulations conflict with the 
objectives of the agricultural resource management plan provided for in 
Sec. 166.311 of this part, or with a tribal law, the BIA may waive the 
application of such regulations unless the waiver would constitute a 
violation of a federal statute or judicial decision or would conflict 
with the BIA's general trust responsibility under federal law.



Sec. 166.3  May decisions under this part be appealed?

    Yes. Except where otherwise provided in this part, appeals from 
decisions by the BIA under this part may be taken pursuant to 25 CFR 
part 2.



Sec. 166.4  What terms do I need to know?

    Adult means an individual Indian who is 18 years of age or older.
    Agency means the agency or field office or any other designated 
office in the Bureau of Indian Affairs (BIA) having jurisdiction over 
trust or restricted property or money.
    Agricultural product means:
    (1) Crops grown under cultivated conditions whether used for 
personal consumption, subsistence, or sold for commercial benefit;
    (2) Domestic livestock, including cattle, sheep, goats, horses, 
buffalo, swine, reindeer, fowl, or other animals specifically raised and 
used for food or fiber or as a beast of burden;
    (3) Forage, hay, fodder, food grains, crop residues and other items 
grown or harvested for the feeding and care of

[[Page 496]]

livestock, sold for commercial profit, or used for other purposes; and
    (4) Other marketable or traditionally used materials authorized for 
removal from Indian agricultural lands.
    Agricultural resource management plan means a ten-year plan 
developed through the public review process specifying the tribal 
management goals and objectives developed for tribal agricultural and 
grazing resources. Plans developed and approved under AIARMA will govern 
the management and administration of Indian agricultural resources and 
Indian agricultural lands by the BIA and Indian tribal governments.
    AIARMA means American Indian Agricultural Resources Management Act 
of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), and 
amended on November 2, 1994 (108 Stat. 4572).
    Allocation means the apportionment of grazing privileges without 
competition to tribal members or tribal entities, including the tribal 
designation of permittees and the number and kind of livestock to be 
grazed.
    Animal Unit Month (AUM) means the amount of forage required to 
sustain one cow or one cow with one calf for one month.
    Approving/approval means the action taken by the BIA to approve a 
permit.
    Assign/assignment means an agreement between a permittee and an 
assignee, whereby the assignee acquires all of the permittee's rights, 
and assumes all of the permittee's obligations under a permit.
    Assignee means the person to whom the permit rights for use of 
Indian land are assigned.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior and any tribe acting on behalf of the BIA under this part.
    Bond means security for the performance of certain permit 
obligations, as furnished by the permitee, or a guaranty of such 
performance as furnished by a third-party surety.
    Conservation plan means a statement of management objectives for 
grazing, including contract stipulations defining required uses, 
operations, and improvements.
    Conservation practice means a management action to protect, 
conserve, utilize, and maintain the sustained yield productivity of 
Indian agricultural land.
    Day means a calendar day.
    Encumbrance means mortgage, deed of trust or other instrument which 
secures a debt owed by a permittee to a lender or other holder of a 
leasehold mortgage on the permit interest.
    Emancipated minor means a person under 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself.
    Fair annual rental means the amount of rental income that a 
permitted parcel of Indian land would most probably command in an open 
and competitive market.
    Farmland means Indian land, excluding Indian forest land, that is 
used for production of food, feed, fiber, forage, and seed, oil crops, 
or other agricultural products, and may be either dry land, irrigated 
land, or irrigated pasture.
    Fee interest means an interest in land that is owned in unrestricted 
fee status, and is thus freely alienable by the fee owner.
    Fractionated tract means a tract of Indian land owned in common by 
Indian landowners and/or fee owners holding undivided interests therein.
    Government land means any tract, or interest therein, in which the 
surface estate is owned by the United States and administered by the 
BIA, not including tribal land which has been reserved for 
administrative purposes.
    Grant/granting means the process of the BIA or the Indian landowner 
agreeing or consenting to a permit.
    Grazing capacity means the maximum sustainable number of livestock 
that may be grazed on a defined area and within a defined period, 
usually expressed in an Animal Unit Month (AUM).
    Grazing rental payment means the total of the grazing rental rate 
multiplied by the number of AUMs or acres in the permit.
    Grazing rental rate means the amount you must pay for an AUM or acre 
based on the fair annual rental.
    I/You means the person to whom these regulations directly apply.

[[Page 497]]

    Immediate family means the spouse, brothers, sisters, lineal 
ancestors, lineal descendants, or members of the household of an 
individual Indian landowner.
    Indian agricultural land means Indian land, including farmland and 
rangeland, excluding Indian forest land, that is used for production of 
agricultural products, and Indian lands occupied by industries that 
support the agricultural community, regardless of whether a formal 
inspection and land classification has been conducted.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land in trust or restricted status.
    Individually-owned Indian land means any tract, or interest therein, 
in which the surface estate is owned by an individual Indian in trust or 
restricted status.
    Interest means, when used with respect to Indian land, an ownership 
right to the surface estate of Indian land that is unlimited or 
uncertain in duration, including a life estate.
    Life estate means an interest in Indian land which is limited in 
duration to the life of the permittor holding the interest, or the life 
of some other person.
    Majority interest means the ownership interest(s) that are greater 
than 50 percent of the trust or restricted ownership interest(s) in a 
tract of Indian land.
    Minor means an individual who is less than 18 years of age.
    Mortgage means a mortgage, deed of trust or other instrument which 
pledges a permittee's permit (leasehold) interest as security for a debt 
or other obligation owed by the permittee to a lender or other 
mortgagee.
    Non compos mentis means a person who has been legally determined by 
a court of competent jurisdiction to be of unsound mind or incapable of 
transacting or conducting business and managing one's own affairs.
    On-and-off grazing permit means a written agreement with a permittee 
for additional grazing capacity for other rangeland not covered by the 
permit.
    Permit means a written agreement between Indian landowners and a 
permittee, whereby the permittee is granted a revocable privilege to use 
Indian land or Government land, for a specified purpose.
    Permittee means an a person or entity who has acquired a legal right 
of possession to Indian land by a permit for grazing purposes under this 
part.
    Range unit means rangelands consolidated to form a unit of land for 
the management and administration of grazing under a permit. A range 
unit may consist of a combination of tribal, individually-owned Indian, 
and/or government land.
    Rangeland means Indian land, excluding Indian forest land, on which 
native vegetation is predominantly grasses, grass-like plants, half-
shrubs or shrubs suitable for grazing or browsing use, and includes 
lands re-vegetated naturally or artificially to provide a forage cover 
that is managed as native vegetation.
    Restricted land or restricted status means land the title to which 
is held by an individual Indian or a tribe and which can only be 
alienated or encumbered by the owner with the approval of the Secretary 
because of limitations contained in the conveyance instrument pursuant 
to federal law.
    Subpermit means a written agreement, whereby the permittee grants to 
an individual or entity a right to possession (i.e., pasturing 
authorization), no greater than that held by the permittee under the 
permit.
    Surety means one who guarantees the performance of another.
    Sustained yield means the yield of agricultural products that a unit 
of land can produce continuously at a given level of use.
    Trespass means any unauthorized occupancy, use of, or action on 
Indian lands.
    Tribal land means the surface estate of land or any interest therein 
held by the United States in trust for a tribe, band, community, group 
or pueblo of Indians, and land that is held by a

[[Page 498]]

tribe, band, community, group or pueblo of Indians, subject to federal 
restrictions against alienation or encumbrance, and includes such land 
reserved for BIA administrative purposes when it is not immediately 
needed for such purposes. The term also includes lands held by the 
United States in trust for an Indian corporation chartered under section 
17 of the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 476).
    Tribal law means the body of non-federal law that governs lands and 
activities under the jurisdiction of a tribe, including ordinances or 
other enactments by the tribe, tribal court rulings, and tribal common 
law.
    Trust land means any tract, or interest therein, that the United 
States holds in trust status for the benefit of a tribe or individual 
Indian.
    Undivided interest means a fractional share in the surface estate of 
Indian land, where the surface estate is owned in common with other 
Indian landowners or fee owners.
    Us/We/Our means the BIA and any tribe acting on behalf of the BIA 
under 166.1 of this part.
    Uniform Standards of Professional Appraisal Practices (USPAP) means 
the standards promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.
    Written notice means a written letter mailed by way of United States 
mail, certified return receipt requested, postage prepaid, or hand-
delivered letter.



        Subpart B_Tribal Policies and Laws Pertaining to Permits



Sec. 166.100  What special tribal policies will we apply to permitting 
on Indian agricultural lands?

    (a) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for permitting of Indian agricultural 
lands, the BIA will:
    (1) Waive the general prohibition against Indian operator 
preferences in permits advertised for bid under Sec. 166.221 of this 
part, by allowing prospective Indian operators to match the highest 
responsible bid (unless the tribal law or leasing policy specifies some 
other manner in which the preference must be afforded);
    (2) Waive or modify the requirement that a permittee post a surety 
or performance bond;
    (3) Provide for posting of other collateral or security in lieu of 
surety or other bonds; and
    (4) Approve permits of tribally-owned agricultural lands at rates 
determined by the tribal governing body.
    (b) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for permitting of Indian agricultural 
lands, and subject to paragraph (c) of this section, the BIA may:
    (1) Waive or modify any general notice requirement of federal law; 
and
    (2) Grant or approve a permit on ``highly fractionated undivided 
heirship lands'' as defined by tribal law.
    (c) The BIA may take the action specified in paragraph (b) of this 
section only if:
    (1) The tribe defines by resolution what constitutes ``highly 
fractionated undivided heirship lands'';
    (2) The tribe adopts an alternative plan for notifying individual 
Indian landowners; and
    (3) The BIA's action is necessary to prevent waste, reduce idle land 
acreage and ensure income.



Sec. 166.101  May individual Indian landowners exempt their land from 
certain tribal policies for permitting on Indian agricultural lands?

    (a) The individual Indian landowners of Indian land may exempt their 
land from our application of a tribal policy referred to under Sec. 
166.100 of this part if:
    (1) The Indian landowners have at least a 50% interest in such 
fractionated tract; and
    (2) The Indian landowners submit a written objection to the BIA of 
all or any part of such tribal policies to the permitting of such parcel 
of land.
    (b) Upon verification of the written objection we will notify the 
tribe of the Indian landowners' exemption from the specific tribal 
policy.
    (c) The procedures described in paragraphs (a) and (b) of this 
section will also apply to withdrawing an approved exemption.

[[Page 499]]



Sec. 166.102  Do tribal laws apply to permits?

    Tribal laws will apply to permits of Indian land under the 
jurisdiction of the tribe enacting such laws, unless those tribal laws 
are inconsistent with applicable federal law.



Sec. 166.103  How will tribal laws be enforced on Indian agricultural 
land?

    (a) Unless prohibited by federal law, we will recognize and comply 
with tribal laws regulating activities on Indian agricultural land, 
including tribal laws relating to land use, environmental protection, 
and historic or cultural preservation.
    (b) While the tribe is primarily responsible for enforcing tribal 
laws pertaining to Indian agricultural land, we will:
    (1) Assist in the enforcement of tribal laws;
    (2) Provide notice of tribal laws to persons or entities undertaking 
activities on Indian agricultural land, under Sec. 166.104(b) of this 
part; and
    (3) Require appropriate federal officials to appear in tribal forums 
when requested by the tribe, so long as such an appearance would not:
    (i) Be inconsistent with the restrictions on employee testimony set 
forth at 43 CFR Part 2, Subpart E;
    (ii) Constitute a waiver of the sovereign immunity of the United 
States; or
    (iii) Authorize or result in a review of our actions by a tribal 
court.
    (c) Where the regulations in this subpart are inconsistent with a 
tribal law, but such regulations cannot be superseded or modified by the 
tribal law under Sec. 166.2 of this part, we may waive the regulations 
under part 1 of this title, so long as the waiver does not violate a 
federal statute or judicial decision or conflict with our general trust 
responsibility under federal law.



Sec. 166.104  What notifications are required that tribal laws apply 
to permits on Indian agricultural lands?

    (a) Tribes must notify us of the content and effective dates of new 
tribal laws.
    (b) We will then notify affected Indian landowners and any persons 
or entities undertaking activities on Indian agricultural lands of the 
superseding or modifying effect of the tribal law. We will:
    (1) Provide individual written notice; or
    (2) Post public notice. This notice will be posted at the tribal 
community building, U.S. Post Office, and/or published in the local 
newspaper nearest to the Indian lands where activities are occurring.



                      Subpart C_Permit Requirements

                          General Requirements



Sec. 166.200  When is a permit needed to authorize possession of Indian 
land for grazing purposes?

    (a) Unless otherwise provided for in this part, any person or legal 
entity, including an independent legal entity owned and operated by a 
tribe, must obtain a permit under these regulations before taking 
possession of Indian land for grazing purposes.
    (b) An Indian landowner who owns 100% of the trust or restricted 
interests in a tract may take possession of that Indian land without a 
permit or any other prior authorization from us.
    (c) If an Indian landowner does not own 100 percent (%) of his or 
her Indian land and wants to use the Indian land for grazing purposes, a 
permit must be granted by the majority interest of the fractionated 
tract.



Sec. 166.201  Must parents or guardians of Indian minors who own Indian 
land obtain a permit before using land for grazing purposes?

    Parents or guardians need not obtain a permit for Indian lands owned 
by their minor Indian children if:
    (a) Those minor children own 100 percent (%) of the land; and
    (b) The minor children directly benefit from the use of the land. We 
may require the user to provide evidence of the direct benefits to the 
minor children. When one of the minor children becomes an adult, the 
permit will have to be obtained from the majority interest.



Sec. 166.202  May an emancipated minor grant a permit?

    Yes. An emancipated minor may grant a permit.

[[Page 500]]



Sec. 166.203  When can the Indian landowners grant a permit?

    (a) Tribes grant permits of tribal land, including any tribally-
owned undivided interest(s) in a fractionated tract. A permit granted by 
the tribe must be approved by us, unless the permit is authorized by a 
charter approved by us under 25 U.S.C. Sec. 477, or unless our approval 
is not required under other applicable federal law. In order to permit 
tribal land in which the beneficial interest has been assigned to 
another party, the assignee and the tribe must both grant the permit, 
subject to our approval.
    (b) Individual Indian landowners may grant a permit of their land, 
including their undivided interest in a fractionated tract, subject to 
our approval. Except as otherwise provided in this part, these Indian 
landowners may include the owner of a life estate holding 100 percent 
(%) interest in their land.
    (c) The owners of a majority interest in the Indian ownership of a 
fractionated tract may grant a permit, subject to our approval, without 
giving prior notice to the minority Indian landowners as long as the 
minority interest owners receive fair annual rental.



Sec. 166.204  Who may represent an individual Indian landowner in 
granting a permit?

    The following individuals or entities may represent an individual 
Indian landowner in granting a permit:
    (a) An adult with custody acting on behalf of their minor children;
    (b) A guardian, conservator, or other fiduciary appointed by a court 
of competent jurisdiction to act on behalf of an individual Indian 
landowner;
    (c) An adult or legal entity who has been given a written power of 
attorney that:
    (1) Meets all of the formal requirements of any applicable tribal or 
state law;
    (2) Identifies the attorney-in-fact and the land to be permitted; 
and
    (3) Describes the scope of the power granted and any limits thereon.



Sec. 166.205  When can the BIA grant a permit on behalf of Indian 
landowners?

    (a) We may grant a permit on behalf of:
    (1) An individual who is adjudicated to be non compos mentis by a 
court of competent jurisdiction;
    (2) An orphaned minor;
    (3) An Indian landowner who has granted us written authority to 
permit his or her land;
    (4) The undetermined heirs and devisees of a deceased Indian 
landowner;
    (5) An Indian landowner whose whereabouts are unknown to us after a 
reasonable attempt is made to locate the Indian landowner;
    (6) Indian landowners, where:
    (i) We have provided written notice of our intent to grant a permit 
on their behalf, but the Indian landowners are unable to agree upon a 
permit during a three-month negotiation period immediately following 
such notice, or any other notice period established by a tribe under 
Sec. 166.100(c)(2) of this part; and
    (ii) The land is not being used by an individual Indian landowner 
under Sec. 166.200 of this part.
    (7) The individual Indian owners of fractionated Indian land, when 
necessary to protect the interests of the individual Indian landowners.



Sec. 166.206  What requirements apply to a permit on a fractionated 
tract?

    We may grant a permit on behalf of all Indian landowners of a 
fractionated tract as long as the owners receive fair annual rental. 
Before granting such a permit, we may offer a preference right to any 
Indian landowner who:
    (a) Is in possession of the entire tract;
    (b) Submits a written offer to permit the land, subject to any 
required or negotiated terms and conditions, prior to our granting a 
permit to another party; and
    (c) Provides any supporting documents needed to demonstrate the 
ability to perform all of the obligations under the proposed permit.

[[Page 501]]



Sec. 166.207  What provisions will be contained in a permit?

    A permit, at a minimum, must include:
    (a) Authorized user(s);
    (b) Conservation plan requirements;
    (c) Prohibition against creating a nuisance, any illegal activity, 
and negligent use or waste or resources;
    (d) Numbers and types of livestock allowed;
    (e) Season(s) of use;
    (f) Grazing rental payment, payment schedule, and late payment 
interest and penalties;
    (g) Administrative fees;
    (h) Tribal fees, if applicable;
    (i) Payment method;
    (j) Range unit number or name;
    (k) Animal identification requirements;
    (l) A description (preferably a legal description) of the permitted 
area;
    (m) Term of permit (including beginning and ending dates of the term 
allowed, as well as any option to renew, extend or terminate);
    (n) Conditions for making improvements, if any;
    (o) A right of entry by the BIA for purposes of inspection or 
enforcement purposes;
    (p) A provision concerning the applicability of tribal jurisdiction;
    (q) A provision stating how trespass proceeds are to be distributed; 
and
    (r) A provision for the permittee to indemnify the United States and 
the Indian landowners against all liabilities or costs relating to the 
use, handling, treatment, removal, storage, transportation, or disposal 
of hazardous materials or the release or discharge of any hazardous 
material from the permitted premises that occur during the permit term, 
regardless of fault.



Sec. 166.208  How long is a permit term?

    (a) The duration must be reasonable given the purpose of the permit 
and the level of investment required by the permittee to place the 
property into productive use.
    (b) On behalf of the undetermined heirs of an individual Indian 
decedent owning 100 percent (%) interest in the land, we will grant or 
approve permits for a maximum term of two years.
    (c) Permits granted for agricultural purposes will not usually 
exceed ten years. A term longer than ten years, but not to exceed 25 
years unless authorized by other federal law, may be authorized when a 
longer term is determined by us to be in the best interest of the Indian 
landowners and when such permit requires substantial investment in the 
development of the lands by the permittee.
    (d) A tribe may determine the duration of permits composed entirely 
of its tribal land or in combination with government land, subject to 
the same limitations provided in paragraph (d) of this section.
    (e) A permit will specify the beginning and ending dates of the term 
allowed, as well as any option to renew, extend, or terminate.
    (f) Permits granted by us for protection of the Indian land will be 
for no more than two years.



Sec. 166.209  Must a permit be recorded?

    A permit must be recorded in our Land Titles and Records Office 
which has jurisdiction over the land. We will record the permit 
immediately following our approval under this subpart.



Sec. 166.210  When is a decision by the BIA regarding a permit effective?

    Our decision to approve a permit will be effective immediately, 
notwithstanding any appeal which may be filed under Part 2 of this 
title. Copies of the approved permit will be provided to the permitee 
and made available to the Indian landowners upon request.



Sec. 166.211  When are permits effective?

    Unless otherwise provided in the permit, a permit will be effective 
on the date on which the permit is approved by us. A permit may be made 
effective on some past or future date, by agreement, but such a permit 
may not be granted or approved more than one year prior to the date on 
which the permit term is to commence.



Sec. 166.212  When may a permittee take possession of permitted Indian 
land?

    The permittee may take possession of permitted Indian land on the 
date

[[Page 502]]

specified in the permit as the beginning date of the term, but not 
before we approve the permit.



Sec. 166.213  Must I comply with any standards of conduct if I am 
granted a permit?

    Yes. Permittees are expected to:
    (a) Conduct grazing operations in accordance with the principles of 
sustained yield management, agricultural resource management planning, 
sound conservation practices, and other community goals as expressed in 
tribal laws, agricultural resource management plans, and similar 
sources.
    (b) Comply with all applicable laws, ordinances, rules, regulations, 
and other legal requirements. You must also pay all applicable penalties 
that may be assessed for non-compliance.
    (c) Fulfill all financial obligations of your permit owed to the 
Indian landowners and the United States.
    (d) Conduct only those activities authorized by the permit.



Sec. 166.214  Will the BIA notify the permittee of any change in land 
title status?

    Yes. We will notify the permittee if a fee patent is issued or if 
restrictions are removed. After we notify the permittee our obligation 
under Sec. 166.228 of this part ceases.

                           Obtaining A Permit



Sec. 166.215  How can I find Indian land available for grazing?

    You may contact a local BIA office or tribal office to determine 
what Indian land may be available for grazing permits.



Sec. 166.216  Who is responsible for permitting Indian land?

    The Indian landowner is primarily responsible for granting permits 
on their Indian land, with the assistance and approval of the BIA, 
except where otherwise provided by law. You may contact the local BIA or 
tribal office for assistance in obtaining a permit for grazing purposes 
on Indian land.



Sec. 166.217  In what manner may a permit on Indian land be granted?

    (a) A tribe may grant a permit on tribal land through tribal 
allocation, negotiation, or advertisement in accordance with Sec. 
166.203 of this part. We must approve all permits of tribal land in 
order for the permit to be valid, except where otherwise provided by 
law.
    (b) Individual Indian landowners may grant a permit on their Indian 
land through negotiation or advertisement in accordance with Sec. 
166.203 of this part. We must approve all permits of Individual Indian 
land in order for the permit to be valid.
    (c) We will grant permits through negotiation or advertisement for 
range units containing, in whole or part, individually-owned Indian land 
and range units that consist of, or in combination with individually-
owned Indian land, tribal or government land, under Sec. 166.205 of 
this part. We will consult with tribes prior to granting permits for 
range units that include tribal land.



Sec. 166.218  How do I acquire a permit through tribal allocation?

    (a) A tribe may allocate grazing privileges on range units 
containing trust or restricted land which is entirely tribally-owned or 
which contains only tribal and government land under the control of the 
tribe.
    (b) A tribe may allocate grazing privileges to its members and to 
tribally-authorized entities without competitive bidding on tribal and 
tribally-controlled government land.
    (c) We will implement the tribe's allocation procedure by 
authorizing the grazing privileges on individually-owned Indian land and 
government land, subject to the rental rate provisions in Sec. 
166.400(b) and (c) of this part.
    (d) A tribe may prescribe the eligibility requirements for 
allocations 60 days before granting a new permit or before an existing 
permit expires.
    (e) 120 days before the expiration of existing permits, we will 
notify the tribe of the 60-day period during which the tribe may 
prescribe eligibility requirements.
    (f) We will prescribe the eligibility requirements after the 
expiration of the 60-day period in the event satisfactory action is not 
taken by the tribe.
    (g) Grazing rental rates for grazing privileges allocated from an 
existing permit, in whole or in part, must equal

[[Page 503]]

or exceed the rates paid by the preceding permittee(s). Tribal members 
will pay grazing rental rates established by the tribe on tribal lands.



Sec. 166.219  How do I acquire a permit through negotiation?

    (a) Permits may be negotiated and granted by the Indian landowners 
with the permittee of their choice. The BIA may negotiate and grant 
permits on behalf of Indian landowners pursuant to Sec. 166.205 of this 
part.
    (b) Upon the conclusion of negotiations with the Indian landowners 
or their representatives, and the satisfaction of any applicable 
conditions, you may submit an executed permit and any required 
supporting documents to us for appropriate action. Where a permit is in 
a form that has previously been accepted or approved by us, and all of 
the documents needed to support the findings required by this part have 
been received, we will decide whether to approve the permit within 30 
days of the date of our receipt of the permit and supporting documents. 
If we decide to approve or disapprove a permit, we will notify the 
parties immediately and advise them of their right to appeal the 
decision under part 2 of this title.
    (c) In negotiating a permit, the Indian landowners may choose to 
include their land in the permit in exchange for their receipt of a 
share of the revenues or profits generated by the permit. Under such an 
arrangement, the permit may be granted to a joint venture or other legal 
entity owned, in part, by the Indian landowners.
    (d) Receipt of permit payments based upon income received from the 
land will not, of itself, make the Indian landowner a partner, joint 
venturer, or associate of the permittees.
    (e) We will assist prospective permittees in contacting the Indian 
landowners or their representatives, for the purpose of negotiating a 
permit.



Sec. 166.220  What are the basic steps for acquiring a permit through 
negotiation?

    The basic steps for acquiring a permit by negotiation are as 
follows:
    (a) The BIA or the Indian landowner will:
    (1) Receive a request to permit from an Indian landowner or the 
potential permittee;
    (2) Prepare the permit documents; and
    (3) Grant the permit.
    (b) A potential permittee will complete the requirements for 
securing a permit, (e.g., bond, insurance, payment of administrative 
fee, etc.);
    (c) We will:
    (1) Review the permit for proper documentation and compliance with 
all applicable laws and regulations;
    (2) Approve the permit after our review;
    (3) Send the approved permit to the permittee and, upon request, to 
the Indian landowner; and
    (4) Record and maintain the approved permit.



Sec. 166.221  How do I acquire an advertised permit through competitive 
bidding?

    (a) As part of the negotiation of a permit, Indian landowners may 
advertise their Indian land to identify potential permittees with whom 
to negotiate.
    (b) When the BIA grants and approves a permit on behalf of an 
individual Indian landowner using an advertisement for bids, we will:
    (1) Prepare and distribute an advertisement of lands available for 
permit that identifies the terms and conditions of the permit sale, 
including, for agricultural permits, any preference rights;
    (2) Solicit sealed bids and conduct the public permit sale;
    (3) Determine and accept the highest or best responsible bidder(s), 
which may require further competitive bidding after the bid opening; and
    (4) Prepare permits for successful bidders.
    (c) After completion of the steps in paragraph (b) of this section, 
the successful bidder must complete and submit the permit and satisfy 
all applicable requirements, (e.g., bond, insurance, payment of 
administrative fee, etc.).
    (d) After review of the permit documentation for proper completion 
and compliance with all applicable laws and regulations, within 30 days 
we will:

[[Page 504]]

    (1) Grant and approve the permit on behalf of Indian landowners 
where we are authorized to do so by law;
    (2) Distribute the approved permit to the permittee(s) and, upon 
request, to the Indian landowner(s); and
    (3) Record and maintain the approved permit.



Sec. 166.222  Are there standard permit forms?

    Yes. Standard permit forms, including bid forms, permit forms, and 
permit modification forms are available at our agency offices.

                       Permit (Leasehold) Mortgage



Sec. 166.223  Can I use a permit as collateral for a loan?

    We may approve a permit containing a provision that authorizes the 
permittee to encumber the permit interest, known as a leasehold 
mortgage, for the development and improvement of the permitted Indian 
land. We must approve the leasehold mortgage that encumbers the permit 
interest before it can be effective. We will record the approved 
leasehold mortgage instrument.



Sec. 166.224  What factors does the BIA consider when reviewing a 
leasehold mortgage?

    (a) We will approve the leasehold mortgage if:
    (1) All consents required in the permit have been obtained from the 
Indian landowners and any surety or guarantor;
    (2) The mortgage covers only the permit interest, and no unrelated 
collateral belonging to the permittee;
    (3) The financing being obtained will be used only in connection 
with the development or use of the permitted premises, and the mortgage 
does not secure any unrelated obligations owed by the permittee to the 
mortgagee; and
    (4) We find no compelling reason to withhold our approval, in order 
to protect the best interests of the Indian landowner.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The ability to perform the permit obligations would be adversely 
affected by the cumulative mortgage obligations;
    (2) Any negotiated permit provisions as to the allocation or control 
of insurance or condemnation proceeds would be modified;
    (3) The remedies available to us or the Indian landowners would be 
limited (beyond the additional notice and cure rights to be afforded to 
the mortgagee), if the permittee defaults on the permit;
    (4) Any rights of the Indian landowners would be subordinated or 
adversely affected in the event of a foreclosure, assignment in lieu of 
foreclosure, or issuance of a ``new permit'' to the mortgagee.
    (c) We will notify the Indian landowners of our approval of the 
leasehold mortgage.



Sec. 166.225  May a permittee voluntarily assign a leasehold interest 
under an approved encumbrance?

    With our approval, under an approved encumbrance, a permittee 
voluntarily may assign the leasehold interest to someone other than the 
holder of a leasehold mortgage if the assignee agrees in writing to be 
bound by the terms of the permit. A permit may provide the Indian 
landowners with a right of first refusal on the conveyance of the 
leasehold interest.



Sec. 166.226  May the holder of a leasehold mortgage assign the 
leasehold interest after a sale or foreclosure of an approved encumbrance?

    Yes. The holder of a leasehold mortgage may assign a leasehold 
interest obtained by a sale or foreclosure of an approved encumbrance 
without our approval if the assignee agrees in writing to be bound by 
the terms of the permit. A permit may provide the Indian landowners with 
a right of first refusal on the conveyance of the permit interest 
(leasehold).

                           Modifying a Permit



Sec. 166.227  How can Indian land be removed from an existing permit?

    (a)We will remove Indian land from the permit if:
    (1)The trust status of the Indian land terminates;
    (2) The Indian landowners request removal of their interest, with 
the written approval of the majority interest of the fractionated tract 
to be removed,

[[Page 505]]

and we determine that the removal is beneficial to such interests;
    (3) A tribe allocates grazing privileges for Indian land covered by 
your permit under Sec. 166.218 of this part;
    (4) The permittee requests removal of the Indian land, the owners of 
the majority interest of the Indian land provides written approval of 
the removal of the Indian land, and we determine that the removal is 
warranted; or
    (5) We determine that removal of the Indian land is appropriate, 
with the written approval of the owners of the majority interest of the 
Indian land.
    (b) We will revise the grazing capacity to reflect the removal of 
Indian land and show it on the permit.



Sec. 166.228  How will the BIA provide notice if Indian land is removed 
from an existing permit?

    If the reason for removal is:
    (a) Termination of trust status. We will notify the parties to the 
permit in writing within 30 days. The removal will be effective on the 
next anniversary date of the permit.
    (b) A request from Indian landowners or the permittee, or our 
determination. We will notify the parties to the permit in writing 
within 30 days of such request. The removal will be effective 
immediately if all sureties, Indian landowners, and permittee agree. 
Otherwise, the removal will be effective upon the next anniversary date 
of the permit. If our written notice is within 180 days of the 
anniversary date of the permit, the removal of Indian land will be 
effective 180 days after the written notice.
    (c) Tribal allocation under Sec. 166.218 of this part. We will 
notify the parties to the permit in writing within 180 days of such 
action. The removal of tribal land will be effective on the next 
anniversary date of the permit. If our written notice is within 180 days 
of the anniversary date of the permit, the removal of Indian land will 
be effective 180 days after the written notice.



Sec. 166.229  Other than to remove land, how can a permit be amended, 
assigned, subpermitted, or mortgaged?

    (a) We must approve an amendment, assignment, subpermit, or mortgage 
with the written consent of the parties to the permit in the same manner 
that the permit was approved, and the consent of the sureties.
    (b) Indian landowners may designate in writing one or more of their 
co-owners or representatives to negotiate and/or agree to amendments on 
their behalf.
    (1) The designated landowner or representative may:
    (i) Negotiate or agree to amendments; and
    (ii) Consent to or approve other items as necessary.
    (2) The designated landowner or representative may not:
    (i) Negotiate or agree to amendments that reduce the grazing rental 
payments payable to the other Indian landowners; or
    (ii) Terminate the permit or modify the term of the permit.
    (c) We may approve a permit for tribal land to individual members of 
a tribe which contains a provision permitting the assignment of the 
permit by the permittee or the lender without our approval when a 
lending institution or an agency of the United States:
    (1) Accepts the interest in the permit (leasehold) as security for 
the loan; and
    (2) Obtains the interest in the permit (leasehold) through 
foreclosure or otherwise.
    (d) We will revise the grazing capacity and modify the permit.



Sec. 166.230  When will a BIA decision to approve an amendment, 
assignment, subpermit, or mortgage under a permit be effective?

    Our decision to approve an amendment, assignment, subpermit, or 
mortgage under a permit will be effective immediately, notwithstanding 
any appeal which may be filed under Part 2 of this title. Copies of 
approved documents will be provided to the party requesting approval, 
and made available to the Indian landowners upon request.



Sec. 166.231  Must an amendment, assignment, subpermit, or mortgage 
approved under a permit be recorded?

    An amendment, assignment, subpermit, or mortgage approved under a 
permit must be recorded in our Land Titles and Records Office which has 
jurisdiction over the Indian land. We will

[[Page 506]]

record the document immediately following our approval.



                Subpart D_Land and Operations Management



Sec. 166.300  How is Indian agricultural land managed?

    Tribes, individual Indian landowners, and the BIA will manage Indian 
agricultural land either directly or through contracts, compacts, 
cooperative agreements, or grants under the Indian Self-Determination 
and Education Assistance Act (Public Law 93-638, as amended).



Sec. 166.301  How is Indian land for grazing purposes described?

    Indian land for grazing purposes should be described by legal 
description (e.g., aliquot parts, metes and bounds) or other acceptable 
description. Where there are undivided interests owned in fee status, 
the aggregate portion of trust and restricted interests should be 
identified in the description of the permitted land.



Sec. 166.302  How is a range unit created?

    We create a range unit after we consult with the Indian landowners 
of rangeland, by designating units of compatible size, availability, and 
location.



Sec. 166.303  Can more than one parcel of Indian land be combined into 
one permit?

    Yes. A permit may include more than one parcel of Indian land. 
Permits may include tribal land, individually-owned Indian land, or 
government land, or any combination thereof.



Sec. 166.304  Can there be more than one permit for each range unit?

    Yes. There can be more than one permit for each range unit.



Sec. 166.305  When is grazing capacity determined?

    Before we grant, modify, or approve a permit, in consultation with 
the Indian landowners, we will establish the total grazing capacity for 
each range unit based on the summation of each parcel's productivity. We 
will also establish the season(s) of use on Indian lands.



Sec. 166.306  Can the BIA adjust the grazing capacity?

    Yes. In consultation with the Indian landowners or in the BIA's 
discretion based on good cause, we may adjust the grazing capacity using 
the best evaluation method(s) relevant to the ecological region.



Sec. 166.307  Will the grazing capacity be increased if I graze adjacent 
trust or non-trust rangelands not covered by the permit?

    No. You will not receive an increase in grazing capacity in the 
permit if you graze trust or non-trust rangeland in common with the 
permitted land. Grazing capacity will be established only for Indian 
land covered by your permit.



Sec. 166.308  Can the number of animals and/or season of use be modified 
on the permitted land if I graze adjacent trust or non-trust rangelands 
under an on- and-off grazing permit?

    Yes. The number of animals and/or season of use may be modified on 
permitted Indian land with an on-and-off grazing permit only when a 
conservation plan includes the use of adjacent trust or non-trust 
rangelands not covered by the permit and when that land is used in 
common with permitted land.



Sec. 166.309  Who determines livestock class and livestock ownership 
requirements on permitted Indian land?

    (a) Tribes determine the class of livestock and livestock ownership 
requirements for livestock that may be grazed on range units composed 
entirely of tribal land or which include government land, subject to the 
grazing capacity prescribed by us under Sec. 166.305 of this part.
    (b) For permits on range units containing, in whole or part, 
individually-owned Indian land, we will adopt the tribal determination 
in paragraph (a) of this section.



Sec. 166.310  What must a permittee do to protect livestock from 
exposure to disease?

    In accordance with applicable law, permittees must:
    (a) Vaccinate livestock;

[[Page 507]]

    (b) Treat all livestock exposed to or infected with contagious or 
infectious diseases; and
    (c) Restrict the movement of exposed or infected livestock.

              Management Plans and Environmental Compliance



Sec. 166.311  Is an Indian agricultural resource management plan 
required?

    (a) Indian agricultural land under the jurisdiction of a tribe must 
be managed in accordance with the goals and objectives in any 
agricultural resource management plan developed by the tribe, or by us 
in close consultation with the tribe, under the AIARMA.
    (b) The ten-year agricultural resource management and monitoring 
plan must be developed through public meetings and completed within 
three years of the initiation of the planning activity. Such a plan must 
be developed through public meetings, and be based on the public meeting 
records and existing survey documents, reports, and other research from 
federal agencies, tribal community colleges, and land grant 
universities. When completed, the plan must:
    (1) Determine available agricultural resources;
    (2) Identify specific tribal agricultural resource goals and 
objectives;
    (3) Establish management objectives for the resources;
    (4) Define critical values of the tribe and its members and provide 
identified holistic management objectives; and
    (5) Identify actions to be taken to reach established objectives.
    (c) Where the regulations in this subpart are inconsistent with a 
tribe's agricultural resource management plan, we may waive the 
regulations under part 1 of this title, so long as the waiver does not 
violate a federal statute or judicial decision or conflict with our 
general trust responsibility under federal law.



Sec. 166.312  Is a conservation plan required?

    A conservation plan must be developed for each permit with the 
permittee and approved by us prior to the issuance of the permit. The 
conservation plan must be consistent with the tribe's agricultural 
resource management plan and must address the permittee's management 
objectives regarding animal husbandry and resource conservation. The 
conservation plan must cover the entire permit period and reviewed by us 
on an annual basis.



Sec. 166.313  Is environmental compliance required?

    Actions taken by the BIA under the regulations in this part must 
comply with the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.), applicable regulations of the Council on Environmental 
Quality (40 CFR part 1500), and applicable tribal laws and regulations.

                 Conservation Practices and Improvements



Sec. 166.314  Can a permittee apply a conservation practice on permitted 
Indian land?

    Yes. A permittee can apply a conservation practice on permitted 
Indian land as long as the permittee has approval from the BIA and 
majority interest and the conservation practice is consistent with the 
conservation plan.



Sec. 166.315  Who is responsible for the completion and maintenance of 
a conservation practice if the permit expires or is canceled before the 
completion of the conservation practice?

    Prior to undertaking a conservation practice, the BIA, landowner, 
and permittee will negotiate who will complete and maintain a 
conservation practice if the permit expires or is canceled before the 
conservation practice is completed. That conservation practice agreement 
will be reflected in the conservation plan and permit.



Sec. 166.316  Can a permittee construct improvements on permitted 
Indian land?

    Improvements may be constructed on permitted Indian land if the 
permit contains a provision allowing improvements.

[[Page 508]]



Sec. 166.317  What happens to improvements constructed on Indian lands 
when the permit has been terminated?

    (a) If improvements are to be constructed on Indian land, the permit 
must contain a provision that improvements will either:
    (1) Remain on the land upon termination of the permit, in a 
condition that is in compliance with applicable codes, to become the 
property of the Indian landowner; or
    (2) Be removed and the land restored within a time period specified 
in the permit. The land must be restored as close as possible to the 
original condition prior to construction of such improvements. At the 
request of the permittee we may, at our discretion, grant an extension 
of time for the removal of improvements and restoration of the land for 
circumstances beyond the control of the permittee.
    (b) If the permittee fails to remove improvements within the time 
allowed in the permit, the permittee may forfeit the right to remove the 
improvements and the improvements may become the property of the Indian 
landowner or at the request of the Indian landowner, we will apply the 
bond for the removal of the improvement and restoration of the land.



 Subpart E_Grazing Rental Rates, Payments, and Late Payment Collections

                Rental Rate Determination and Adjustment



Sec. 166.400  Who establishes grazing rental rates?

    (a) For tribal lands, a tribe may establish a grazing rental rate 
that is less or more than the grazing rental rate established by us. We 
will assist a tribe to establish a grazing rental rate by providing the 
tribe with available information concerning the value of grazing on 
tribal lands.
    (b) We will establish the grazing rental rate by determining the 
fair annual rental for:
    (1) Individually-owned Indian lands; and
    (2) Tribes that have not established a rate under paragraph (a) of 
this section.
    (c) Indian landowners may give us written authority to grant grazing 
privileges on their individually-owned Indian land at a grazing rental 
rate that is:
    (1) Above the grazing rental rate set by us; or
    (2) Below the grazing rental rate set by us, subject to our 
approval, when the permittee is a member of the Indian landowner's 
immediate family as defined in this part.



Sec. 166.401  How does the BIA establish grazing rental rates?

    An appraisal can be used to determine the rental value of real 
property. The development and reporting of the valuation will be 
completed in accordance with the Uniform Standards of Professional 
Appraisal Practices (USPAP). If an appraisal is not desired, competitive 
bids, negotiations, advertisements, or any other method can be used in 
conjunction with a market study, rent survey, or feasibility analysis 
developed in accordance with the USPAP.



Sec. 166.402  Why must the BIA determine the fair annual rental of 
Indian land?

    The BIA must determine the fair annual rental of Indian land to:
    (a) Assist the Indian landowner in negotiating a permit with 
potential permittees; and
    (b) Enable us to determine whether a permit is in the best interests 
of the Indian landowner.



Sec. 166.403  Will the BIA ever grant or approve a permit at less than 
fair annual rental?

    (a) We will grant a permit for grazing on individually-owned Indian 
land at less than fair annual rental if, after competitive bidding of 
the permit, we determine that such action would be in the best interests 
of the individual Indian landowners.
    (b) We may approve a permit for grazing on individually-owned Indian 
land at less than fair annual rental if:

[[Page 509]]

    (1) The permit is for the Indian landowner's immediate family or co-
owner; or
    (2) We determine it is in the best interest of the Indian 
landowners.
    (c) We may approve a permit for grazing on tribal land at less than 
fair annual rental if the tribe sets the rate.



Sec. 166.404  Whose grazing rental rate will be applicable for a permit 
on tribal land?

    The following grazing rental rate schedule will apply for tribal 
land:

------------------------------------------------------------------------
                                                       Then you will pay
        If you are * * *             And if * * *            * * *
------------------------------------------------------------------------
(a) Grazing livestock on tribal   The tribe           The rate set by
 land.                             established the     the tribe.
                                   grazing rental
                                   rate.
(b) Grazing livestock on tribal   No tribal grazing   The rate set by
 land.                             rental rate has     the BIA.
                                   been established.
(c) The successful bidder for                         Your rental rate
 use of any of these specific                          bid, but not less
 parcels of Indian land.                               than the minimum
                                                       bid rate
                                                       advertised.
------------------------------------------------------------------------



Sec. 166.405  Whose grazing rental rate will be applicable for a permit 
on individually-owned Indian land?

    The following grazing rental rate schedule will apply for 
individually-owned Indian land:

------------------------------------------------------------------------
       If you are * * *                 Then you will pay * * *
------------------------------------------------------------------------
(a) Grazing livestock on       The rate set by the BIA or by the
 Individually-owned Indian      individual Indian landowner and approved
 land.                          by us.
(b) The successful bidder for  Your rental rate bid, but not less than
 use of any of these specific   the minimum bid rate advertised, unless
 parcels of Indian land.        the permit is granted at less than fair
                                annual rental under Sec.  166.403.
(c) The recipient of an        The bid rate or the appraised rate,
 allocation from a bid unit.    whichever is higher.
------------------------------------------------------------------------



Sec. 166.406  Whose grazing rental rate will be applicable for a permit 
on government land?

    The following grazing rental rate schedule will apply for government 
land:

------------------------------------------------------------------------
                                                       Then you will pay
        If you are * * *             And if * * *            * * *
------------------------------------------------------------------------
(a) Grazing livestock on          The tribe has       The rate set by
 government land.                  control over the    the tribe.
                                   land or the tribe
                                   has authority to
                                   set the rate.
(b) Grazing livestock on          Government          The rate set by
 government land.                  controls all use    the BIA.
                                   of the land.
------------------------------------------------------------------------



Sec. 166.407  If a range unit consists of tribal and individually-owned 
Indian lands, what is the grazing rental rate?

    The grazing rental rate for tribal land will be the rate set by the 
tribe. The grazing rental rate for individually-owned Indian land will 
be the grazing rental rate set by us.



Sec. 166.408  Is the grazing rental rate established by the BIA adjusted 
periodically?

    Yes. To ensure that Indian landowners are receiving the fair annual 
return, we may adjust the grazing rental rate established by the BIA, 
based upon an appropriate valuation method, taking into account the 
value of improvements made under the permit, unless the permit provides 
otherwise, following the Uniform Standards of Professional Appraisal 
Practice.
    (a) We will:
    (1) Review the grazing rental rate prior to each anniversary date or 
when specified by the permit.
    (2) Provide you with written notice of any adjustment of the grazing 
rental rate 60 days prior to each anniversary date.
    (3) Allow the adjusted grazing rental rate to be less than the fair 
annual rental if we determine that such a rate is in the best interest 
of the Indian landowner.

[[Page 510]]

    (b) If adjusted, the grazing rental rate will become effective on 
the next anniversary date of the permit.
    (c) These adjustments will be retroactive, if they are not made at 
the time specified in the permit.
    (d) For permits granted by tribes, we will consult with the granting 
tribe to determine whether an adjustment of the grazing rental payment 
should be made. The permit must be modified to document the granting 
tribe's waiver of the adjustment. A tribe may grant a permit without 
providing for a rental adjustment, if the tribe establishes such a 
policy under Sec. 166.100(a)(4) of this part and negotiates such a 
permit.

                             Rental Payments



Sec. 166.409  How is my grazing rental payment determined?

    The grazing rental payment is the total of the grazing rental rate 
multiplied by the number of AUMs or acres covered by the permit.



Sec. 166.410  When are grazing rental payments due?

    The initial grazing rental payment is due and payable as specified 
in the permit or 15 days after the BIA approves the permit, whichever is 
later. Subsequent payments are due as specified in the permit.



Sec. 166.411  Will a permittee be notified when a grazing rental payment 
is due?

    Each permit states the schedule of rental payments agreed to by the 
parties. We will issue an invoice to the permittee 30 to 60 days prior 
to the rental payment due date.



Sec. 166.412  What if the permittee does not receive an invoice that a 
grazing rental payment is due?

    If we fail to send an invoice or if we send an invoice and the 
permittee does not receive it, the permittee is still responsible for 
making timely payment of all amounts due under the permit.



Sec. 166.413  To whom are grazing rental payments made?

    (a) A permit must specify whether grazing rental payments will be 
made directly to the Indian landowners or to us on behalf of the Indian 
landowners. If the permit provides for payment to be made directly to 
the Indian landowners, the permit must also require that the permittee 
retain specific documentation evidencing proof of payment, such as 
canceled checks, cash receipt vouchers, or copies of money orders or 
cashier's checks, consistent with the provisions of Sec. Sec. 166.1000 
and 166.1001 of this part.
    (b) Grazing rental payments made directly to the Indian landowners 
must be made to the parties specified in the permit, unless the 
permittee receives a notice of a change of ownership. Unless otherwise 
provided in the permit, grazing rental payments may not be made payable 
directly to anyone other than the Indian landowners.
    (c) A permit which provides for grazing rental payments to be made 
directly to the Indian landowners must also provide for such payments to 
be suspended and rent thereafter paid to us, rather than directly than 
to the Indian landowners, if:
    (1) An Indian landowner dies;
    (2) An Indian landowner requests that payment be made to us;
    (3) An Indian landowner is found by us to be in need of assistance 
in managing his/her financial affairs; or
    (4) We determine, in our discretion and after consultation with the 
Indian landowner(s), that direct payment should be discontinued.



Sec. 166.414  What forms of grazing rental payments are acceptable?

    (a) When grazing rental payments are made directly to the Indian 
landowners, the form of payment must be acceptable to the Indian 
landowners.
    (b) Payments made to us may be delivered in person or by mail. We 
will not accept cash, foreign currency, or third-party checks. We will 
accept:
    (1) Personal or business checks drawn on the account of the 
permittee;
    (2) Money orders;
    (3) Cashier's checks;
    (4) Certified checks; or
    (5) Electronic funds transfer payments.

[[Page 511]]



Sec. 166.415  What will the BIA do if the permittee fails to make a 
direct payment to an Indian landowner?

    Within five business days of the Indian landowner's notification to 
us that a payment has not been received, we will contact the permittee 
either in writing or by telephone requesting that the permittee provide 
documentation (e.g., canceled check, cash receipt voucher, copy of a 
money order or cashier's check) showing that payment has been made to 
the Indian landowner. If the permitee fails to provide such 
documentation, we will follow the procedures identified in Sec. 166.419 
of this part to collect the money on behalf of the Indian landowner or 
to cancel the permit.



Sec. 166.416  May a permittee make a grazing rental payment in advance 
of the due date?

    Rent may be paid no more than 30 days in advance, unless otherwise 
specified in the permit.



Sec. 166.417  May an individual Indian landowner modify the terms of 
the permit on a fractionated tract for advance grazing rental payment?

    No. An individual Indian landowner of a fractionated tract may not 
modify a permit to allow a grazing rental payment in advance of the due 
date specified in the initial approved permit.



Sec. 166.418  When is a grazing rental payment late?

    A grazing rental payment is late if it is not received on or before 
the due date.

                     Late Rental Payment Collections



Sec. 166.419  What will the BIA do if grazing rental payments are not 
made in the time and manner required by the permit?

    (a) A permitee's failure to pay grazing rental payments in the time 
and manner required by a permit will be a violation of the permit, and a 
notice of violation will be issued under Sec. 166.703 of this part. If 
the permit requires that grazing rental payments be made to us, we will 
send the permittee and its sureties a notice of violation within five 
business days of the date on which the grazing rental payment was due. 
If the permit provides for payment directly to the Indian landowner(s), 
we will send the permittee and its sureties a notice of violation within 
five business days of the date on which we receive actual notice of non-
payment from the Indian landowner(s).
    (b) If a permittee fails to provide adequate proof of payment or 
cure the violation within the requisite time period described in Sec. 
166.704 of this part, and the amount due is not in dispute, we may 
immediately take action to recover the amount of the unpaid rent and any 
associated interest charges or late payment penalties. We may also 
cancel the permit under Sec. 166.705 of this part, or invoke any other 
remedies available under the permit or applicable law, including 
collection on any available bond or referral of the debt to the 
Department of the Treasury for collection. An action to recover any 
unpaid amounts will not be conditioned on the prior cancellation of the 
permit or any further notice to the permittee, nor will such an action 
be precluded by a prior cancellation.
    (c) Partial payments may be accepted, under special circumstances, 
by the Indian landowners or us, but acceptance will not operate as a 
waiver with respect to any amounts remaining unpaid or any other 
existing permit violations. Unless otherwise provided in the permit, 
overpayments may be credited as an advance against future grazing rental 
payments.
    (d) If a personal or business check is dishonored, and a grazing 
rental payment is therefore not made by the due date, the failure to 
make the payment in a timely manner will be a violation of the permit, 
and a written notice of violation will be issued under Sec. 166.703 of 
this part. Any payment made to cure such a default, and any future 
payments by the same permittee, must be made by one of the alternative 
payment methods listed in Sec. 166.414(b) of this part.



Sec. 166.420  Will any special fees be assessed on delinquent grazing 
rental payments due under a permit?

    The following special fees will be assessed if a grazing rental 
payment is not paid in the time and manner required, in addition to any 
interest or

[[Page 512]]

late payment penalties which must be paid to the Indian landowners under 
a permit. The following special fees will be assessed to cover 
administrative costs incurred by the United States in the collection of 
the debt:

------------------------------------------------------------------------
    The permittee will pay * * *                   For * * *
------------------------------------------------------------------------
(a) $50.00..........................  Administrative fee for checks
                                       returned by the bank for
                                       insufficient funds.
(b) $15.00..........................  Administrative fee for the BIA
                                       processing of each demand letter.
(c) 18% of balance due..............  Administrative fee charged by the
                                       Department of Treasury for
                                       collection.
------------------------------------------------------------------------



Sec. 166.421  If a permit is canceled for non-payment, does that 
extinguish the permittee's debt?

    No. The permittee remains liable for any delinquent payment. No 
future permits will be issued until all outstanding debts related to 
Indian agricultural lands are paid.

                    Compensation to Indian Landowners



Sec. 166.422  What does the BIA do with grazing rental payments received 
from permittees?

    Unless arrangements for direct payment to the Indian landowners has 
been provided, the rent will be deposited to the appropriate account 
maintained by the Office of Trust Funds Management in accordance with 
part 115 of this title.



Sec. 166.423  How do Indian landowners receive grazing rental payments 
that the BIA has received from permittees?

    Funds will be paid to the Indian landowners by the Office of Trust 
Funds Management in accordance with 25 CFR part 115.



Sec. 166.424  How will the BIA determine the grazing rental payment 
amount to be distributed to each Indian landowner?

    Unless otherwise specified in the permit, the grazing rental payment 
will be distributed to each Indian landowner according to the forage 
production that each parcel of Indian land contributes to the permit, 
annual rental rate of each parcel, and the Indian landowner's interest 
in each parcel.



                Subpart F_Administrative and Tribal Fees



Sec. 166.500  Are there administrative fees for a permit?

    Yes. We will charge an administrative fee before approving any 
permit, subpermit, assignment, encumbrance, modification, or other 
related document.



Sec. 166.501  How are annual administrative fees determined?

    (a) Except as provided in subsection (b), we will charge a three 
percent (%) administrative fee based on the annual grazing rent.
    (b) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00.
    (c) If a tribe performs all or part of the administrative duties for 
this part, the tribe may establish, collect, and use reasonable fees to 
cover its costs associated with the performance of administrative 
duties.



Sec. 166.502  Are administrative fees refundable?

    No. We will not refund administrative fees.



Sec. 166.503  May the BIA waive administrative fees?

    Yes. We may waive the administrative fee for a justifiable reason.



Sec. 166.504  Are there any other administrative or tribal fees, taxes, 
or assessments that must be paid?

    Yes. The permittee may be required to pay additional fees, taxes, 
and/or assessments associated with the use of the land as determined by 
us or by the tribe. Failure to make such payments will constitute a 
permit violation under subpart H of this part.



              Subpart G_Bonding and Insurance Requirements



Sec. 166.600  Must a permittee provide a bond for a permit?

    Yes. A permittee, assignee or subpermittee must provide a bond for 
each permit interest acquired. Upon request by an Indian landowner, we 
may waive the bond requirement.

[[Page 513]]



Sec. 166.601  How is the amount of the bond determined?

    (a) The amount of the bond for each permit is based on the:
    (1) Value of one year's grazing rental payment;
    (2) Value of any improvements to be constructed;
    (3) Cost of performance of any additional obligations; and
    (4) Cost of performance of restoration and reclamation.
    (b) Tribal policy made applicable by Sec. 166.100 of this part may 
establish or waive specific bond requirements for permits.



Sec. 166.602  What form of bonds will the BIA accept?

    (a) We will only accept bonds in the following forms:
    (1) Cash;
    (2) Negotiable Treasury securities that:
    (i) Have a market value equal to the bond amount; and
    (ii) Are accompanied by a statement granting full authority to the 
BIA to sell such securities in case of a violation of the terms of the 
permit.
    (3) Certificates of deposit that indicate on their face that 
Secretarial approval is required prior to redemption by any party;
    (4) Irrevocable letters of credit (LOC) issued by federally-insured 
financial institutions authorized to do business in the United States. 
LOC's must:
    (i) Contain a clause that grants the BIA authority to demand 
immediate payment if the permittee defaults or fails to replace the LOC 
within 30 calendar days prior to its expiration date;
    (ii) Be payable to the ``Department of the Interior, BIA'';
    (iii) Be irrevocable during its term and have an initial expiration 
date of not less than one year following the date we receive it; and
    (iv) Be automatically renewable for a period of not less than one 
year, unless the issuing financial institution provides the BIA with 
written notice at least 90 calendar days before the letter of credit's 
expiration date that it will not be renewed;
    (5) Surety bond; or
    (6) Any other form of highly liquid, non-volatile security 
subsequently approved by us that is easily convertible to cash by us and 
for which our approval is required prior to redemption by any party.
    (b) Indian landowners may negotiate a permit term that specifies the 
use of any of the bond forms described in paragraph (a) of this section.
    (c) A tribe may accept and hold any form of bond described in 
paragraph (a) of this section, to secure performance under a permit of 
tribal land.



Sec. 166.603  If cash is submitted as a bond, how is it administered?

    If cash is submitted as a bond, we will establish an account in the 
name of the permittee and retain it.



Sec. 166.604  Is interest paid on a cash performance bond?

    No. Interest will not be paid on a cash performance bond.



Sec. 166.605  Are cash performance bonds refunded?

    If the cash performance bond has not been forfeited for cause, the 
amount deposited will be refunded to the depositor at the end of the 
permit period.



Sec. 166.606  What happens to a bond if a violation occurs?

    We may apply the bond to remedy the violation, in which case we will 
require the permittee to submit a replacement bond of an appropriate 
amount.



Sec. 166.607  Is insurance required for a permit?

    When we determine it to be in the best interest of the Indian 
landowners, we will require a permittee to provide insurance. If 
insurance is required, it must:
    (a) Be provided in an amount sufficient to:
    (1) Protect any improvements on the permit premises;
    (2) Cover losses such as personal injury or death; and
    (3) Protect the interest of the Indian landowner.
    (b) Identify the tribe, individual Indian landowners, and United 
States as insured parties.

[[Page 514]]



Sec. 166.608  What types of insurance may be required?

    We may require liability or casualty insurance (such as for fire, 
hazard, or flood), depending upon the activity conducted under the 
permit.



                       Subpart H_Permit Violations



Sec. 166.700  What permit violations are addressed by this subpart?

    This subpart addresses violations of permit provisions other than 
trespass. Trespass is addressed under subpart I of this part.



Sec. 166.701  How will the BIA determine whether the activities of 
a permittee under a permit are in compliance with the terms of the permit?

    Unless the permit provides otherwise, we may enter the range unit at 
any reasonable time, without prior notice, to protect the interests of 
the Indian landowners and ensure that the permittee is in compliance 
with the operating requirements of the permit.



Sec. 166.702  Can a permit provide for negotiated remedies in the event 
of a permit violation?

    (a) A permit of tribal land may provide the tribe with certain 
negotiated remedies in the event of a permit violation, including the 
power to terminate the permit. A permit of individually-owned Indian 
land may provide the individual Indian landowners with similar remedies, 
so long as the permit also specifies the manner in which those remedies 
may be exercised by or on behalf of the Indian landowners. Any notice of 
violation must be provided by written notice.
    (b) The negotiated remedies described in paragraph (a) of this 
section will apply in addition to the cancellation remedy available to 
us under Sec. 166.705(c) of this subpart. If the permit specifically 
authorizes us to exercise any negotiated remedies on behalf of the 
Indian landowners, the exercise of such remedies may substitute for 
cancellation.
    (c) A permit may provide for permit disputes to be resolved in 
tribal court or any other court of competent jurisdiction, or through 
arbitration or some other alternative dispute resolution method. We may 
not be bound by decisions made in such forums, but we will defer to any 
ongoing proceedings, as appropriate, in deciding whether to exercise any 
of the remedies available to us under Sec. 166.705 of this subpart.



Sec. 166.703  What happens if a permit violation occurs?

    (a) If an Indian landowner notifies us that a specific permit 
violation has occurred, we will initiate an appropriate investigation 
within five business days of that notification.
    (b) If we determine that a permit violation has occurred based on 
facts known to us, we will provide written notice to the permittee and 
the sureties of the violation within five business days.



Sec. 166.704  What will a written notice of a permit violation contain?

    The written notice of a permit violation will provide the permittee 
with ten days from the receipt of the written notice to:
    (a) Cure the permit violation and notify us that the violation is 
cured.
    (b) Explain why we should not cancel the permit; or
    (c) Request in writing additional time to complete corrective 
actions. If additional time is granted, we may require that certain 
corrective actions be taken immediately.



Sec. 166.705  What will the BIA do if a permit violation is not cured 
within the required time period?

    (a) If the permittee does not cure a violation within the required 
time period, we will consult with the Indian landowners, as appropriate, 
and determine whether:
    (1) The permit should be canceled by us under paragraph (c) of this 
section and Sec. Sec. 166.706 through 166.707 of this subpart;
    (2) We should invoke any other remedies available to us under the 
permit, including collecting on any available bond;
    (3) The Indian landowners wish to invoke any remedies available to 
them under the permit; or

[[Page 515]]

    (4) The permittee should be granted additional time in which to cure 
the violation.
    (b) If we decide to grant a permittee additional time in which to 
cure a violation, the permittee must proceed diligently to complete the 
necessary corrective actions within a reasonable or specified time 
period from the date on which the extension is granted.
    (c) If we decide to cancel the permit, we will send the permittee 
and its sureties a written notice of cancellation within five business 
days of that decision. We will also provide actual or constructive 
notice of a cancellation decision to the Indian landowners, as 
appropriate. The written notice of cancellation will:
    (1) Explain the grounds for cancellation;
    (2) Notify the permittee of the amount of any unpaid rent, interest 
charges, or late payment penalties due under the permit;
    (3) Notify the permittee of its right to appeal under Part 2 of this 
chapter, as modified by Sec. 166.706 of this subpart, including the 
amount of any appeal bond that must be posted with an appeal of the 
cancellation decision; and
    (4) Order the permittee to vacate the property within 30 days of the 
date of receipt of the written notice of cancellation, if an appeal is 
not filed by that time.



Sec. 166.706  Will the BIA's regulations concerning appeal bonds apply 
to cancellation decisions involving permits?

    (a) The appeal bond provisions in Sec. 2.5 of part 2 of this 
chapter will not apply to appeals from permit cancellation decisions 
made under Sec. 166.705 of this subpart. Instead, when we decide to 
cancel a permit, we may require the permittee to post an appeal bond 
with an appeal of the cancellation decision. The requirement to post an 
appeal bond will apply in addition to all of the other requirements in 
part 2 of this chapter.
    (b) An appeal bond should be set in an amount necessary to protect 
the Indian landowners against financial losses that will likely result 
from the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
permit cancellation decision.



Sec. 166.707  When will a cancellation of a permit be effective?

    A cancellation decision involving a permit will not be effective for 
30 days after the permittee receives a written notice of cancellation 
from us. The cancellation decision will remain ineffective if the 
permittee files an appeal under Sec. 166.706 of this subpart and part 2 
of this chapter, unless the decision is made immediately effective under 
part 2. While a cancellation decision is ineffective, the permittee must 
continue to pay rent and comply with the other terms of the permit. If 
an appeal is not filed in accordance with Sec. 166.706 of this subpart 
and part 2 of this chapter, the cancellation decision will be effective 
on the 31st day after the permittee receives the written notice of 
cancellation from us.



Sec. 166.708  Can the BIA take emergency action if the rangeland is 
threatened with immediate, significant, and irreparable harm?

    Yes. If a permittee or any other party causes or threatens to cause 
immediate, significant and irreparable harm to the Indian land during 
the term of a permit, we will take appropriate emergency action. 
Emergency action may include trespass proceedings under subpart I of 
this part, or judicial action seeking immediate cessation of the 
activity resulting in or threatening the harm. Reasonable efforts will 
be made to notify the Indian landowners, either before or after the 
emergency action is taken.



Sec. 166.709  What will the BIA do if a permittee holds over after 
the expiration or cancellation of a permit?

    If a permittee remains in possession of Indian land after the 
expiration or cancellation of a permit, we will treat the unauthorized 
use as a trespass. Unless we have reason to believe that the permittee 
is engaged in negotiations with the Indian landowners to obtain a new 
permit, we will take action to recover possession of the Indian land on 
behalf of the Indian landowners, and pursue any additional remedies 
available under applicable law, including

[[Page 516]]

the assessment of civil penalties and costs under subpart I of this 
part.



                           Subpart I_Trespass



Sec. 166.800  What is trespass?

    Under this part, trespass is any unauthorized occupancy, use of, or 
action on Indian agricultural lands. These provisions also apply to 
Indian agricultural land managed under an agricultural lease or permit 
under part 162 of this title.



Sec. 166.801  What is the BIA's trespass policy?

    We will:
    (a) Investigate accidental, willful, and/or incidental trespass on 
Indian agricultural land;
    (b) Respond to alleged trespass in a prompt, efficient manner;
    (c) Assess trespass penalties for the value of products used or 
removed, cost of damage to the Indian agricultural land, and enforcement 
costs incurred as a consequence of the trespass.
    (d) Ensure that damage to Indian agricultural lands resulting from 
trespass is rehabilitated and stabilized at the expense of the 
trespasser.



Sec. 166.802  Who can enforce this subpart?

    (a) The BIA enforces the provisions of this subpart. If the tribe 
adopts the provisions of this subpart, the tribe will have concurrent 
jurisdiction to enforce this subpart. Additionally, if the tribe so 
requests, we will defer to tribal prosecution of trespass on Indian 
agricultural lands.
    (b) Nothing in this subpart shall be construed to diminish the 
sovereign authority of Indian tribes with respect to trespass.

                              Notification



Sec. 166.803  How are trespassers notified of a trespass determination?

    (a) Unless otherwise provided under tribal law, when we have reason 
to believe that a trespass on Indian agricultural land has occurred, 
within five business days, we or the authorized tribal representative 
will provide written notice to the alleged trespasser, the possessor of 
trespass property, any known lien holder, and beneficial Indian 
landowner, as appropriate. The written notice will include the 
following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of ownership of unauthorized property (e.g., 
brands in the State Brand Book for cases of livestock trespass, if 
applicable);
    (4) Corrective actions that must be taken;
    (5) Time frames for taking the corrective actions;
    (6) Potential consequences and penalties for failure to take 
corrective action; and
    (7) A statement that unauthorized livestock or other property may 
not be removed or disposed of unless authorized by us.
    (b) If we determine that the alleged trespasser or possessor of 
trespass property is unknown or refuses delivery of the written notice, 
a public trespass notice will be posted at the tribal community 
building, U.S. Post Office, and published in the local newspaper nearest 
to the Indian agricultural lands where the trespass is occurring.
    (c) Trespass notices under this subpart are not subject to appeal 
under 25 CFR part 2.



Sec. 166.804  What can I do if I receive a trespass notice?

    If you receive a trespass notice, you will within the time frame 
specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact us in writing to explain why the trespass notice is in 
error. You may contact us by telephone but any explanation of trespass 
you wish to provide must be in writing. If we determine that we issued 
the trespass notice in error, we will withdraw the notice.



Sec. 166.805  How long will a written trespass notice remain in effect?

    A written trespass notice will remain in effect for the same conduct 
identified in that written notice for a period of one year from the date 
of receipt of the written notice by the trespasser.

[[Page 517]]

                                 Actions



Sec. 166.806  What actions does the BIA take against trespassers?

    If the trespasser fails to take the corrective action specified by 
us, we may take one or more of the following actions, as appropriate:
    (a) Seize, impound, sell or dispose of unauthorized livestock or 
other property involved in the trespass. We may keep such property we 
seize for use as evidence.
    (b) Assess penalties, damages, and costs, under Sec. 166.812 of 
this subpart.



Sec. 166.807  When will we impound unauthorized livestock or other 
property?

    We will impound unauthorized livestock or other property under the 
following conditions:
    (a) Where there is imminent danger of severe injury to growing or 
harvestable crop or destruction of the range forage.
    (b) When the known owner or the owner's representative of the 
unauthorized livestock or other property refuses to accept delivery of a 
written notice of trespass and the unauthorized livestock or other 
property are not removed within the period prescribed in the written 
notice.
    (c) Any time after five days of providing notice of impoundment if 
you failed to correct the trespass.



Sec. 166.808  How are trespassers notified if their unauthorized 
livestock or other property are to be impounded?

    (a) If the trespass is not corrected in the time specified in the 
initial trespass notice, we will send written notice of our intent to 
impound unauthorized livestock or other property to the unauthorized 
livestock or property owner or representative, and any known lien holder 
of the unauthorized livestock or other property.
    (b) If we determine that the owner of the unauthorized livestock or 
other property or the owner's representative is unknown or refuses 
delivery of the written notice, we will post a public notice of intent 
to impound at the tribal community building, U.S. Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) After we have given notice as described above, we will impound 
unauthorized livestock or other property without any further notice.



Sec. 166.809  What happens after my unauthorized livestock or other 
property are impounded?

    Following the impoundment of unauthorized livestock or other 
property, we will provide notice that we will sell the impounded 
property as follows:
    (a) We will provide written notice of the sale to the owner, the 
owner's representative, and any known lien holder. The written notice 
must include the procedure by which the impounded property may be 
redeemed prior to the sale.
    (b) We will provide public notice of sale of impounded property by 
posting at the tribal community building, U.S. Post Office, and 
publishing in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring. The public notice will include a 
description of the impounded property, and the date, time, and place of 
the public sale. The sale date must be at least five days after the 
publication and posting of notice.



Sec. 166.810  How do I redeem my impounded livestock or other property?

    You may redeem impounded livestock or other property by submitting 
proof of ownership and paying all penalties, damages, and costs under 
Sec. 166.812 of this subpart and completing all corrective actions 
identified by us under Sec. 166.804 of this subpart.



Sec. 166.811  How will the sale of impounded livestock or other property 
be conducted?

    (a) Unless the owner or known lien holder of the impounded livestock 
or other property redeems the property prior to the time set by the 
sale, by submitting proof of ownership and settling all obligations 
under Sec. 166.804 and Sec. 166.812 of this subpart, the property will 
be sold by public sale to the highest bidder.
    (b) If a satisfactory bid is not received, the livestock or property 
may be re-offered for sale, returned to the

[[Page 518]]

owner, condemned and destroyed, or otherwise disposed of.
    (c) We will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

                      Penalties, Damages, and Costs



Sec. 166.812  What are the penalties, damages, and costs payable by 
trespassers on Indian agricultural land?

    Trespassers on Indian agricultural land must pay the following 
penalties and costs:
    (a) Collection of the value of the products illegally used or 
removed plus a penalty of double their values;
    (b) Costs associated with any damage to Indian agricultural land 
and/or property;
    (c) The costs associated with enforcement of the regulations, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees;
    (d) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under Sec. 
166.807 of this subpart; and
    (e) All other penalties authorized by law.



Sec. 166.813  How will the BIA determine the value of forage or crops 
consumed or destroyed?

    We will determine the value of forage or crops consumed or destroyed 
based upon the average rate received per month for comparable property 
or grazing privileges, or the estimated commercial value or replacement 
costs of such products or property.



Sec. 166.814  How will the BIA determine the value of the products or 
property illegally used or removed?

    We will determine the value of the products or property illegally 
used or removed based upon a valuation of similar products or property.



Sec. 166.815  How will the BIA determine the amount of damages to Indian 
agricultural land?

    We will determine the damages by considering the costs of 
rehabilitation and revegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.



Sec. 166.816  How will the BIA determine the costs associated with 
enforcement of the trespass?

    Costs of enforcement may include detection and all actions taken by 
us through prosecution and collection of damages. This includes field 
examination and survey, damage appraisal, investigation assistance and 
report preparation, witness expenses, demand letters, court costs, 
attorney fees, and other costs.



Sec. 166.817  What happens if I do not pay the assessed penalties, 
damages and costs?

    Unless otherwise provided by applicable tribal law:
    (a) We will refuse to issue you a permit for use, development, or 
occupancy of Indian agricultural lands; and
    (b) We will forward your case for appropriate legal action.



Sec. 166.818  How are the proceeds from trespass distributed?

    Unless otherwise provided by tribal law:
    (a) We will treat any amounts recovered under Sec. 166.812 of this 
subpart as proceeds from the sale of agricultural property from the 
Indian agricultural land upon which the trespass occurred.
    (b) Proceeds recovered under Sec. 166.812 of this subpart may be 
distributed to:
    (1) Repair damages of the Indian agricultural land and property;
    (2) Reimburse the affected parties, including the permittee for loss 
due to the trespass, as negotiated and provided in the permit; and
    (3) Reimburse for costs associated with the enforcement of this 
subpart.
    (c) If any money is left over after the distribution of the proceeds 
described in paragraph (b) of this section, we will return it to the 
trespasser or, where we cannot identify the owner of the impounded 
property within 180 days, we will deposit the net proceeds of the sale 
into the accounts of the landowners where the trespass occurred.

[[Page 519]]



Sec. 166.819  What happens if the BIA does not collect enough money 
to satisfy the penalty?

    We will send written notice to the trespasser demanding immediate 
settlement and advising the trespasser that unless settlement is 
received within five business days from the date of receipt, we will 
forward the case for appropriate legal action. We may send a copy of the 
notice to the Indian landowner, permittee, and any known lien holders.



Subpart J_Agriculture Education, Education Assistance, Recruitment, and 
                                Training



Sec. 166.900  How are the Indian agriculture education programs operated?

    (a) The purpose of the Indian agriculture education programs is to 
recruit and develop promising Indian and Alaska Natives who are enrolled 
in secondary schools, tribal or Alaska Native community colleges, and 
other post-secondary schools for employment as professional resource 
managers and other agriculture-related professionals by approved 
organizations.
    (b) We will operate the student educational employment program as 
part of our Indian agriculture education programs in accordance with the 
provisions of 5 CFR 213.3202(a) and (b).
    (c) We will establish an education committee to coordinate and carry 
out the agriculture education assistance programs and to select 
participants for all agriculture education assistance programs. The 
committee will include at least one Indian professional educator in the 
field of natural resources or agriculture, a personnel specialist, a 
representative of the Intertribal Agriculture Council, and a natural 
resources or agriculture professional from the BIA and a representative 
from American Indian Higher Education Consortium. The committee's duties 
will include the writing of a manual for the Indian and Alaska Native 
Agriculture Education and Assistance Programs.
    (d) We will monitor and evaluate the agriculture education 
assistance programs to ensure that there are adequate Indian and Alaska 
Native natural resources and agriculture-related professionals to manage 
Indian natural resources and agriculture programs by or for tribes and 
Alaska Native Corporations. We will identify the number of participants 
in the intern, student educational employment program, scholarship, and 
outreach programs; the number of participants who completed the 
requirements to become a natural resources or agriculture-related 
professional; and the number of participants completing advanced degree 
requirements.



Sec. 166.901  How will the BIA select an agriculture intern?

    (a) The purpose of the agriculture intern program is to ensure the 
future participation of trained, professional Indians and Alaska Natives 
in the management of Indian and Alaska Native agricultural land. In 
keeping with this purpose, we will work with tribes and Alaska Natives:
    (1) To obtain the maximum degree of participation from Indians and 
Alaska Natives in the agriculture intern program;
    (2) To encourage agriculture interns to complete an undergraduate 
degree program in natural resources or agriculture-related field; and
    (3) To create an opportunity for the advancement of natural 
resources and agriculture-related technicians to professional resource 
management positions with the BIA, other federal agencies providing an 
agriculture service to their respective tribe, a tribe, or tribal 
agriculture enterprise.
    (b) Subject to restrictions imposed by agency budgets, we will 
establish and maintain in the BIA at least 20 positions for the 
agriculture intern program. All Indians and Alaska Natives who satisfy 
the qualification criteria may compete for positions.
    (c) Applicants for intern positions must meet the following 
criteria:
    (1) Be eligible for Indian preference as defined in 25 CFR part 5;
    (2) Possess a high school diploma or its recognized equivalent;
    (3) Be able to successfully complete the intern program within a 
three-year period; and
    (4) Possess a letter of acceptance to an accredited post-secondary 
school or

[[Page 520]]

demonstrate that one will be sent within 90 days.
    (d) We will advertise vacancies for agriculture intern positions 
semi-annually, no later than the first day of April and October, to 
accommodate entry into school.
    (e) In selecting agriculture interns, we will seek to identify 
candidates who:
    (1) Have the greatest potential for success in the program;
    (2) Will take the shortest time period to complete the intern 
program; and
    (3) Provide the letter of acceptance required by paragraph (c)(4) of 
this section.
    (f) Agriculture interns must:
    (1) Maintain full-time status in an agriculture-related curriculum 
at an accredited post-secondary school;
    (2) Maintain good academic standing;
    (3) Enter into an obligated service agreement to serve as a 
professional resource manager or agriculture-related professional with 
an approved organization for one year in exchange for each year in the 
program; and
    (4) Report for service with the approved organization during any 
break in attendance at school of more than three weeks.
    (g) The education committee will evaluate annually the performance 
of the agriculture intern program participants against requirements to 
ensure that they are satisfactorily progressing toward completion of 
program requirements.
    (h) We will pay all costs for tuition, books, fees, and living 
expenses incurred by an agriculture intern while attending an accredited 
post-secondary school.



Sec. 166.902  How can I become an agriculture educational employment 
student?

    (a) To be considered for selection, applicants for the student 
educational employment program must:
    (1) Meet the eligibility requirements in 5 CFR part 308; and
    (2) Be accepted into or enrolled in a course of study at an 
accredited post-secondary institution which grants degrees in natural 
resources or agriculture-related curricula.
    (b) Student educational employment steering committees established 
at the field level will select program participants based on eligibility 
requirements without regard to applicants' financial needs.
    (c) A recipient of assistance under the student educational 
employment program will be required to enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for one year in exchange for 
each year in the program.
    (d) We will pay all costs of tuition, books, fees, and 
transportation to and from the job site to school, for an Indian or 
Alaska Native student who is selected for the cooperative education 
program.



Sec. 166.903  How can I get an agriculture scholarship?

    (a) We may grant agriculture scholarships to Indians and Alaska 
Natives enrolled as full-time students in accredited post-secondary and 
graduate programs of study in natural resources and agriculture-related 
curricula.
    (b) The education committee established in Sec. 166.900(c) of this 
subpart will select program participants based on eligibility 
requirements stipulated in paragraphs (e) through (g) of this section 
without regard to applicants' financial needs or past scholastic 
achievements.
    (c) Recipients of scholarships must reapply annually to continue to 
receive funding beyond the initial award period. Students who have 
received scholarships in past years, are in good academic standing, and 
have been recommended for continuation by their academic institution 
will be given priority over new applicants for scholarship assistance.
    (d) The amount of scholarship funds an individual is awarded each 
year will be contingent upon the availability of funds appropriated each 
fiscal year and is subject to yearly change.
    (e) Preparatory scholarships may be available for a maximum of three 
academic years of general, undergraduate course work leading to a degree 
in natural resources or agriculture-related curricula and may be awarded 
to individuals who:

[[Page 521]]

    (1) Possess a high school diploma or its recognized equivalent; and
    (2) Are enrolled and in good academic standing at an acceptable 
post-secondary school.
    (f) Undergraduate scholarships are available for a maximum of three 
academic years and may be awarded to individuals who:
    (1) Have completed a minimum of 55 semester hours toward a 
bachelor's degree in a natural resources or agriculture-related 
curriculum; and
    (2) Have been accepted into a natural resource or agriculture-
related degree-granting program at an accredited college or university.
    (g) Graduate scholarships are available for a maximum of five 
academic years for individuals selected into the graduate program of an 
accredited college or university that grants advanced degrees in natural 
resources or agriculture-related fields.
    (h) A recipient of assistance under the scholarship program must 
enter into an obligated service agreement to serve as a natural 
resources or agriculture-related professional with the BIA, other 
federal agency providing assistance to their respective tribe, a tribe, 
tribal agriculture enterprise, or an ANCSA Corporation for one year for 
each year in the program.
    (i) We will pay all scholarships approved by the education committee 
established in Sec. 166.900 of this subpart for which funding is 
available.



Sec. 166.904  What is agriculture education outreach?

    (a) We will establish and maintain an agriculture education outreach 
program for Indian and Alaska Native youth that will:
    (1) Encourage students to acquire academic skills needed to succeed 
in post-secondary mathematics and science courses;
    (2) Promote agriculture career awareness;
    (3) Involve students in projects and activities oriented to 
agriculture related professions early so students realize the need to 
complete required pre-college courses; and
    (4) Integrate Indian and Alaska Native agriculture program 
activities into the education of Indian and Alaska Native students.
    (b) We will develop and carry out the program in consultation with 
appropriate community education organizations, tribes, ANCSA 
Corporations, Alaska Native organizations, and other federal agencies 
providing agriculture services to Indians.
    (c) The education committee established under Sec. 166.900(c) of 
this subpart will coordinate and implement the program nationally.



Sec. 166.905  Who can get assistance for postgraduate studies?

    (a) The purpose of the postgraduate studies program is to enhance 
the professional and technical knowledge of Indian and Alaska Native 
natural resource and agriculture-related professionals working for an 
approved organization so that the best possible service is provided to 
Indian and Alaska Natives.
    (b) We may pay the cost of tuition, fees, books, and salary of 
Alaska Natives and Indians who are employed by an approved organization 
and who wish to pursue advanced levels of education in natural resource 
or agriculture-related fields.
    (c) The goal of the advanced study program is to encourage 
participants to obtain additional academic credentials such as a degree 
or diploma in a natural resources or agriculture-related field. 
Requirements of the postgraduate study program are:
    (1) The duration of course work cannot be less than one semester or 
more than three years; and
    (2) Students in the postgraduate studies program must meet 
performance standards as required by the graduate school offering the 
study program.
    (d) Program applicants must submit application packages to the 
education committee. At a minimum, such packages must contain a resume 
and an endorsement signed by the applicant's supervisor clearly stating 
the need for and benefits of the desired training.
    (e) The education committee must use the following criteria to 
select participants:
    (1) Need for the expertise sought at both the local and national 
levels;

[[Page 522]]

    (2) Expected benefits, both locally and nationally; and
    (3) Years of experience and the service record of the employee.
    (f) Program participants will enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for one year for each year in 
the program. We may reduce the obligated service requirement if the 
employee receives supplemental funding such as research grants, 
scholarships, or graduate stipends and, as a result, reduces the need 
for financial assistance under this part. If the obligated service 
agreement is breached, we will collect the amount owed us in accordance 
with Sec. 166.910 of this subpart.



Sec. 166.906  What can happen if we recruit you after graduation?

    (a) The purpose of the post graduation recruitment program is to 
recruit Indian and Alaska Native natural resource and trained 
agriculture technicians into the agriculture programs of approved 
organizations.
    (b) We may assume outstanding student loans from established lending 
institutions of Indian and Alaska Native natural resources and 
agriculture technicians who have successfully completed a post-secondary 
natural resources or agriculture-related curriculum at an accredited 
institution.
    (c) Indian and Alaska Natives receiving benefits under this program 
will enter into an obligated service agreement in accordance with Sec. 
166.901 of this subpart. Obligated service required under this program 
will be one year for every $5,000 of student loan debt repaid.
    (d) If the obligated service agreement is breached, we will collect 
student loan(s) in accordance with Sec. 166.910 of this subpart.



Sec. 166.907  Who can be an intern?

    (a) Natural resources or agriculture personnel working for an 
approved organization may apply for an internship within agriculture-
related programs of agencies of the Department of the Interior or other 
federal agencies providing an agriculture service to their respective 
reservations.
    (b) Natural resources or agriculture-related personnel from other 
Department of the Interior agencies may apply through proper channels 
for ``internships'' within the BIA's agriculture programs. With the 
consent of a tribe or Alaska Native organization, the BIA can arrange 
for an Intergovernmental Personnel Act assignment in tribal or Alaska 
Native agriculture programs.
    (c) Natural resources and agriculture personnel from agencies not 
within the Department of the Interior may apply, through proper agency 
channels and pursuant to an interagency agreement, for an ``internship'' 
within the BIA and, with the consent of a tribe or Alaska Native 
organization, we can facilitate an Intergovernmental Personnel Act 
assignment in a tribe, tribal agriculture enterprise, or Alaska Native 
Corporation.
    (d) Natural resources or agriculture personnel from a tribe, tribal 
agriculture enterprise, or Alaska Native Corporation may apply, through 
proper channels and pursuant to a cooperative agreement, for an 
internship within another tribe, tribal forest enterprise, or ANCSA 
Corporation agriculture program.
    (e) The employing agency of participating federal employees will 
provide for the continuation of salary and benefits.
    (f) The host agency for participating tribal, tribal agriculture 
enterprise, or Alaska Native Corporation agriculture employees will 
provide for salaries and benefits.
    (g) A bonus pay incentive, up to 25 percent (%) of the intern's base 
salary, may be provided to intergovernmental interns at the conclusion 
of the internship period. Bonus pay incentives will be at the discretion 
of and funded by the host organization and must be conditioned upon the 
host agency's documentation of the intern's superior performance, in 
accordance with the agency's performance standards, during the 
internship period.



Sec. 166.908  Who can participate in continuing education and training?

    (a) The purpose of continuing education and training is to establish 
a program to provide for the ongoing

[[Page 523]]

education and training of natural resources and agriculture personnel 
employed by approved organizations. This program will emphasize 
continuing education and training in three areas:
    (1) Orientation training including tribal-federal relations and 
responsibilities;
    (2) Technical agriculture education; and
    (3) Developmental training in agriculture-based enterprises and 
marketing.
    (b) We will maintain an orientation program to increase awareness 
and understanding of Indian culture and its effect on natural resources 
management and agriculture practices and on federal laws that effect 
natural resources management and agriculture operations and 
administration in the Indian agriculture program.
    (c) We will maintain a continuing technical natural resources and 
agriculture education program to assist natural resources managers and 
agriculture-related professionals to perform natural resources and 
agriculture management on Indian land.
    (d) We will maintain an agriculture land-based enterprise and 
marketing training program to assist with the development and use of 
Indian and Alaska Native agriculture resources.



Sec. 166.909  What are my obligations to the BIA after I participate 
in an agriculture education program?

    (a) Individuals completing agriculture education programs with an 
obligated service requirement may be offered full time permanent 
employment with an approved organization to fulfill their obligated 
service within 90 days of the date all program education requirements 
have been completed. If employment is not offered within the 90-day 
period, the student will be relieved of obligated service requirements. 
Not less than 30 days before the start of employment, the employer must 
notify the participant of the work assignment, its location and the date 
work must begin. If the employer is other than the BIA, the employer 
must also notify us.
    (b) Employment time that can be credited toward obligated service 
requirement will begin the day after all program education requirements 
have been completed, with the exception of the agriculture intern 
program which includes the special provisions outlined in Sec. 
166.901(f)(4) of this subpart. The minimum service obligation period 
will be one year of full time employment.
    (c) The employer has the right to designate the location of 
employment for fulfilling the service obligation.
    (d) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a deferment of obligated service 
to pursue postgraduate or post-doctoral studies. In such cases, we will 
issue a decision within 30 days of receipt of the request for deferral. 
We may grant such a request; however, deferments granted in no way waive 
or otherwise affect obligated service requirements.
    (e) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a waiver of obligated service 
based on personal or family hardship. We may grant a full or partial 
waiver or deny the request for wavier. In such cases, we will issue a 
decision within 30 days of receiving the request for waiver.



Sec. 166.910  What happens if I do not fulfill my obligation to the BIA?

    (a) Any individual who accepts financial support under agriculture 
education programs with an obligated service requirement, and who does 
not accept employment or unreasonably terminates employment must repay 
us in accordance with the following table:

------------------------------------------------------------------------
                               Then the costs that   And then the costs
        If you are...            you must repay     that you do not need
                                     are...            to repay are...
------------------------------------------------------------------------
(1) Agriculture intern......  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               occupying position    employed by an
                               plus interest.        approved
                                                     organization.
(2) Cooperative education...  Tuition, books, and
                               fees plus interest.
(3) Scholarship.............  Costs of scholarship
                               plus interest.

[[Page 524]]

 
(4)Post graduation            All student loans
 recruitment.                  assumed by us under
                               the program plus
                               interest.
(5) Postgraduate studies....  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               in the program plus   employed by an
                               interest.             approved
                                                     organization.
------------------------------------------------------------------------

    (b) For agriculture education programs with an obligated service 
requirement, we will adjust the amount required for repayment by 
crediting toward the final amount of debt any obligated service 
performed before breach of contract.



                            Subpart K_Records



Sec. 166.1000  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under 25 U.S.C. Sec. 450f et seq., 
including the operation of a trust program; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.
    (b) Records not covered by paragraph (a) of this section that are 
made or received by a tribe or tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the tribe.



Sec. 166.1001  How must a records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have records identified in Sec. 166.1000(a) of this part must 
preserve the records in accordance with approved Departmental records 
retention procedures under the Federal Records Act, 44 U.S.C. Chapters 
29, 31 and 33. These records and related records management practices 
and safeguards required under the Federal Records Act are subject to 
inspection by the Secretary and the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec. 166.1000(b) of this part for the period of time 
authorized by the Archivist of the United States for similar Department 
of the Interior records in accordance with 44 U.S.C. Chapter 33. If a 
tribe or tribal organization does not preserve records associated with 
its conduct of business with the Department of the Interior under this 
part, it may prevent the tribe or tribal organization from being able to 
adequately document essential transactions or furnish information 
necessary to protect its legal and financial rights or those of persons 
directly affected by its activities.



PART 167_NAVAJO GRAZING REGULATIONS--Table of Contents




Sec.
167.1 Authority.
167.2 General regulations.
167.3 Objectives.
167.4 Regulations; scope; exceptions.
167.5 Land management districts.
167.6 Carrying capacities.
167.7 Records.
167.8 Grazing rights.
167.9 Grazing permits.
167.10 Special grazing permits.
167.11 Tenure of grazing permits.
167.12 Grazing fees.
167.13 Trespass.
167.14 Movement of livestock.
167.15 Control of livestock disease and introduction of livestock.
167.16 Fences.
167.17 Construction near permanent livestock water developments.

    Authority: R.S. 465, 2117, as amended, sec. 3, 26 Stat. 795, sec. 1, 
28 Stat. 305, as amended; 25 U.S.C. 9, 179, 397, 345, 402.

    Source: 22 FR 10578, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 167.1  Authority.

    It is within the authority of the Secretary of the Interior to 
protect Indian tribal lands against waste. Subject to regulations of 
this part, the right exists for Indian tribes to authorize the granting 
of permits upon their tribal

[[Page 525]]

lands and to prescribe by appropriate tribal action the conditions under 
which their lands may be used.



Sec. 167.2  General regulations.

    Part 166 of this subchapter authorizes the Commissioner of Indian 
Affairs to regulate the grazing of livestock on Indian lands under 
conditions set forth therein. In accordance with this authority and that 
of the Navajo Tribal Council, the Central Grazing Committee and the 
District Grazing Committees, the grazing of livestock on the Navajo 
Reservation shall be governed by the regulations in this part.



Sec. 167.3  Objectives.

    It is the purpose of the regulations in this part to aid the Navajo 
Indians in achievement of the following objectives:
    (a) The preservation of the forage, the land, and the water 
resources on the Navajo Reservation, and the building up of those 
resources where they have deteriorated.
    (b) The protection of the interests of the Navajo Indians from the 
encroachment of unduly aggressive and anti-social individuals who may or 
may not be members of the Navajo Tribe.
    (c) The adjustment of livestock numbers to the carrying capacity of 
the range in such a manner that the livestock economy of the Navajo 
Tribe will be preserved.
    (d) To secure increasing responsibility and participation of the 
Navajo people, including tribal participation in all basic policy 
decisions, in the sound management of one of the Tribe's greatest 
assets, its grazing lands, and to foster a better relationship and a 
clearer understanding between the Navajo people and the Federal 
Government in carrying out the grazing regulations.
    (e) The improvement of livestock through proper breeding practices 
and the maintenance of a sound culling policy. Buck and bull pastures 
may be established and maintained either on or off the reservation 
through District Grazing Committee and Central Grazing Committee action.



Sec. 167.4  Regulations; scope; exceptions.

    The grazing regulations in this part apply to all lands within the 
boundaries of the Navajo Reservation held in trust by the United States 
for the Navajo Tribe and all the trust lands hereafter added to the 
Navajo Reservation. The regulations in this part do not apply to any of 
the area described in the Executive order of December 16, 1882, to 
individually owned allotted lands within the Navajo Reservation nor to 
tribal purchases, allotted or privately owned Navajo Indian lands 
outside the exterior boundaries of the Navajo Reservation.

[34 FR 14599, Sept. 19, 1969. Redesignated at 47 FR 13327, Mar. 30, 
1982]



Sec. 167.5  Land management districts.

    The Commissioner of Indian Affairs has established and will retain 
the present land management districts within the Navajo Indian 
Reservation, based on the social and economic requirements of the Navajo 
Indians and the necessity of rehabilitating the grazing lands. District 
boundary changes may be made when deemed necessary and advisable by the 
District Grazing Committees, Central Grazing Committee and Tribal 
Council, with approval by the Superintendent, Area Director, and the 
Commissioner of Indian Affairs.



Sec. 167.6  Carrying capacities.

    (a) The Commissioner of Indian Affairs on June 26, 1943, promulgated 
the authorized carrying capacity for each land management district of 
the Navajo Reservation.
    (b) Recommended adjustments in carrying capacities shall be referred 
by the Superintendent to District Grazing Committee, Central Grazing 
Committee, and the Navajo Tribal Council for review and recommendations 
prior to presentation to the Area Director and the Commissioner of 
Indian Affairs for approval.
    (c) Upon the request of the District Grazing Committee, Central 
Grazing Committee and Navajo Tribal Council to the Superintendent; 
recommendations for future adjustments to the established carrying 
capacities shall be made by Range Technicians based on

[[Page 526]]

the best information available through annual utilization studies and 
range condition studies analyzed along with numbers of livestock and 
precipitation data. The recommendations of the Range Technicians shall 
be submitted to the Superintendent, the Area Director and the 
Commissioner of Indian Affairs.
    (d) Carrying capacities shall be stated in terms of sheep units 
yearlong, in the ratio of horses, mules, and burros 1 to 5; cattle 1 to 
4; goats 1 to 1. The latter figure in each case denotes sheep units. 
Sheep, goats, cattle, horses, mules, and burros one year of age or older 
shall be counted against the carrying capacity.



Sec. 167.7  Records.

    The District Grazing Committee, the Superintendent, and his 
authorized representatives shall keep accurate records of all grazing 
permits and ownership of all livestock. Master files shall be maintained 
by the Superintendent or his authorized representatives.
    (a) The District Grazing Committee shall be responsibile for and 
assist in organizing the sheep and goat dipping and horse and cattle 
branding program and obtaining the annual live- stock count.
    (b) In order to obtain true records of ownership the permittee shall 
personally appear at the dipping vat or tallying point designated by the 
Grazing Committee with his or her sheep and goats and at branding and 
tallying points for cattle and horses. Should the permittee be unable to 
appear personally he or she shall designate a representative to act for 
and in his or her behalf. The sheep and goats will be dipped and the 
cattle and horses will be branded and recorded in the name of the 
permittee.
    (c) The Superintendent shall prepare and keep current a register 
containing the names of all permittees using the range, the number of 
each class of stock by age classes grazed annually and the periods 
during which grazing shall be permitted in each part thereof. An annual 
stock census will be taken to insure that the carrying capacity is not 
exceeded. All classes of livestock twelve months of age or over will be 
counted against range use and permitted number, except that yearling 
colts will not be counted against permitted numbers on all permits with 
less than six horses. (Cross Reference Sec. 167.9.)



Sec. 167.8  Grazing rights.

    (a) The Superintendent shall determine grazing rights of bona fide 
live-stock owners based on recommendations of District Grazing 
Committees. Grazing rights shall be recognized for those permittees 
having ownership records as established in accordance with Sec. 167.7 
or who have acquired grazing rights by marriage, inheritance, purchase 
or division of permits. Whenever the permitted number of sheep units 
within a district is less than the carrying capacity, new permits to the 
carrying capacity limit may be granted as provided in Sec. 167.9.
    (b) All enrolled members of the Navajo Tribe over 18 years of age 
are eligible to acquire and hold grazing permits. Minors under 18 years 
of age can get possession of grazing permits only through inheritance or 
gift, and in each case Trustees must be appointed by the Tribal Courts 
to manage the permits and livestock of such minors until they become 18 
years of age and can hold grazing permits in their own right.
    (c) No person can hold a grazing permit in more than one district on 
the Navajo Reservation.
    (d) Determination of rights to grazing permits involved in cases of 
divorce, separation, threatened family disruption, and permits of 
deceased permittees shall be the responsibility of the Navajo Court of 
Indian Offenses under existing laws, rules, and regulations.



Sec. 167.9  Grazing permits.

    (a) All livestock grazed on the Navajo Reservation must be covered 
by an authorized grazing permit issued by the Superintendent based upon 
the recommendations of the District Grazing Committee. All such grazing 
permits will be automatically renewed annually until terminated. 
District Grazing Committees shall act on all grazing permit changes 
resulting from negotiability within their respective Districts.

[[Page 527]]

The number of livestock that may be grazed under each permit shall be 
the number originally permitted plus or minus any changes as indicated 
by Transfer Agreements and Court Judgment Orders.
    (b) Any permittee who has five or more horses on his current permit 
will be required to apply any acquired sheep units in classes of stock 
other than horses. If the purchaser wishes more than his present number 
of horses, he must have his needs evaluated by the District Grazing 
Committee. Yearling colts will be counted against permitted number on 
all permits with six or more horses. Yearling colts will not be counted 
against permitted number on all permits with less than six horses. In 
hardship cases the District Grazing Committee may reissue horses removed 
from grazing permits through negotiability to permit holders who are 
without sufficient horses on their present permits to meet minimum 
needs.
    (c) No permittee shall be authorized to graze more than ten head of 
horses or to accumulate a total of over 350 sheep units.
    (d) Upon recommendation of the District Grazing Committee and with 
the approval of the Superintendent, grazing permits may be transferred 
from one permittee to another in accordance with instructions provided 
by the Advisory Committee of the Navajo Tribal Council, or may be 
inherited; provided that the permitted holdings of any individual 
permittee shall not exceed 350 sheep units or the equivalent thereof. 
Should inheritance or other acquisition of permits increase the holdings 
of any permittee to more than 350 sheep units, said permittee shall 
dispose of all livestock in excess of 350 sheep units not later than 
November 15 following date of inheritance or other acquisition, and that 
portion of his or her permit in excess of 350 sheep units within one 
year from date of inheritance.
    (e) By request of a permittee to sublet all or a part of his or her 
regular grazing permit to a member of his family or to any person who 
would receive such permit by inheritance, such subletting of permits may 
be authorized by the District Grazing Committee and the Superintendent 
or his authorized representative.



Sec. 167.10  Special grazing permits.

    The problem of special grazing permits shall be settled by the 
Bureau of Indian Affairs working in cooperation with the Tribal Council, 
or any Committee designated by it, with a view to terminating these 
permits at a suitable date and with the least hardship to the Indians 
concerned.



Sec. 167.11  Tenure of grazing permits.

    (a) All active regular grazing permits shall be for one year and 
shall be automatically renewed annually until terminated. Any Navajo 
eligible to hold a grazing permit as defined in Sec. 167.8 may become a 
livestock operator by obtaining an active grazing permit through 
negotiability or inheritance or both.
    (b) In many Districts, and portions of all districts, unused grazing 
permits or portions of grazing permits are beneficial in aiding range 
recovery. Each District Grazing Committee will handle each matter of 
unused grazing permit or portions of grazing permits on individual 
merits. Where ample forage is available operators will be encouraged to 
fill their permits with livestock or dispose of their unused permits 
through negotiability. In those areas where forage is in need of 
rehabilitation permittees will not be encouraged to stock to their 
permitted numbers until the range has sufficiently recovered to justify 
the grazing of additional livestock.



Sec. 167.12  Grazing fees.

    Grazing fees shall not be charged at this time. \1\
---------------------------------------------------------------------------

    \1\ Grazing Committees were organized in May 1953. These committees 
have not had ample time to fully acquaint themselves or the stockmen in 
their respective districts with all of the various items of range 
administration and range management. Also the drought of several years 
has not broken. The Navajo Tribe therefore requests that the matter of 
establishing regulations regarding the adoption of grazing fees be 
deferred until such a time as a full understanding of the advantages of 
fees can be had by the majority of the stockmen in all Districts. The 
assessment of grazing fees will not aid materially in obtaining proper 
range use. At this time it is more important that other sections of 
these grazing regulations be adopted and enforced. Resolution of Navajo 
Tribal Council No. CJ-22-54 of June 9, 1954.

---------------------------------------------------------------------------

[[Page 528]]



Sec. 167.13  Trespass.

    The owner of any livestock grazing in trespass in Navajo Tribal 
ranges shall be subject to action by the Navajo Court of Indian Offenses 
as provided in part 11 of this chapter, however, upon recommendations of 
the District Grazing Committee, first offenses may be referred to the 
Central Grazing Committee and the Superintendent or his authorized 
representative for proper settlement out of court. The following acts 
are considered as trespass:
    (a) Any person who sells an entire permit must dispose of all his 
livestock or be in trespass. Any person selling a portion of his permit 
must not run more stock than covered by his remaining permit, or be 
subject to immediate trespass.
    (b) All persons running livestock in excess of their permitted 
number must by April 25, 1959, either obtain permits to cover their 
total livestock numbers or reduce to their permitted number, or be in 
trespass. Additional time may be granted in unusual individual cases as 
determined and approved by the District Grazing Committee, General 
Grazing Committee, and the Superintendent or his authorized 
representative.
    (c) Failure to comply with the provisions in Sec. 167.9, shall be 
considered as trespass.
    (d) Any person who willfully allows his livestock to drift from one 
district to another shall be subject to trespass action. The grazing of 
livestock in customary use areas extending over District Boundary lines, 
when such customary use areas are defined and agreed upon by the 
District Grazing Committees involved, shall not be considered as willful 
trespass.
    (e) The owner of any livestock who violates the customary or 
established use units of other permittees shall be subject to trespass 
action.

[22 FR 10578, Dec. 24, 1957, as amended at 24 FR 1178, Feb. 17, 1959. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 167.14  Movement of livestock.

    Annually, prior to the normal lamb buying season, the Central 
Grazing Committee after consultation with District Grazing Committees 
shall issue regulations covering the buying period and the procedures 
and methods to be used in moving livestock to market. All movements of 
livestock other than trucking from buying areas to loading or shipping 
points must be authorized by Trailing Permits issued by the District 
Grazing Committees on the approved forms. Failure to comply with this 
section and with annual lamb buying regulations will be considered as 
trespass.



Sec. 167.15  Control of livestock disease and introduction of livestock.

    (a) The District Grazing Committees with the approval of the 
Superintendent shall require livestock to be dipped, vaccinated, 
inspected and be restricted in movement when necessary to prevent the 
introduction and spread of contagious or infectious disease in the 
economic interest of the Navajo stock owners. Upon the recommendation of 
the District Grazing Committee livestock shall be dipped annually when 
such dipping is necessary to prevent the spread of contagious diseases. 
These annual dippings shall be completed on or before September 1st each 
year. Livestock, however, may be dipped at other times when necessary. 
The Superintendent or his authorized representative and the District 
Grazing Committee may also require the rounding up of cattle, horses, 
mules, etc., in each District for the purpose of inspection for disease, 
vaccinating, branding and other related operations.
    (b) No livestock shall be brought onto the Reservation without a 
permit issued by the Superintendent or his authorized representative 
following inspection, in order to safeguard Indian livestock from 
infections and contagious disease and to insure the introduction of good 
quality sires and breeding stock.
    (c) Any unusual disease conditions beyond the control measures 
provided herein shall be immediately reported by the District Grazing 
Committee to the Chairman of the Navajo Tribal Council and the 
Superintendent who

[[Page 529]]

shall attempt to obtain specialists and provide emergency funds to 
control and suppress the disease.



Sec. 167.16  Fences.

    Favorable recommendation from the District Grazing Committee and a 
written authorization from the Superintendent or his authorized 
representative must be secured before any fences may be constructed in 
non-agricultural areas. The District Grazing Committee shall recommend 
to the Superintendent the removal of unauthorized existing fences, or 
fences enclosing demonstration areas no longer used as such, if it is 
determined that such fences interfere with proper range management or an 
equitable distribution of range privileges. All enclosures fenced for 
the purpose of protecting agricultural land shall be kept to a size 
commensurate with the needs for protection of agricultural land and must 
be enclosed by legal four strand barbed wire fence or the equivalent.



Sec. 167.17  Construction near permanent livestock water developments.

    (a) The District Grazing Committee shall regulate the construction 
of all dwellings, corrals and other structures within one-half mile of 
Government or Navajo Tribal developed permanent livestock waters such as 
springs, wells, and charcos or deep reservoirs.
    (b) A written authorization from the District Grazing Committee must 
be secured before any dwellings, corrals, or other structures may be 
constructed within one-half mile of Government or Navajo Tribal 
developed springs, wells and charcos or deep reservoirs.
    (c) No sewage disposal system shall be authorized to be built which 
will drain into springs or stream channels in such a manner that it 
would cause contamination of waters being used for livestock or human 
consumption.



PART 168_GRAZING REGULATIONS FOR THE HOPI PARTITIONED LANDS AREA
--Table of Contents




Sec.
168.1 Definitions.
168.2 Authority.
168.3 Purpose.
168.4 Establishment of range units.
168.5 Grazing capacity.
168.6 Grazing on range units authorized by permit.
168.7 Kind of livestock.
168.8 Grazing fees.
168.9 Assignment, modification and cancellation of permits.
168.10 Conservation and land use provisions.
168.11 Range improvements; ownership; new construction.
168.12 Special permit requirements and provisions.
168.13 Fences.
168.14 Livestock trespass.
168.15 Control of livestock diseases and parasites.
168.16 Impoundment and disposal of unauthorized livestock.
168.17 Concurrence procedures.
168.18 Appeals.
168.19 Information collection.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 640d-8, and 640d-18.

    Source: 47 FR 39817, Sept. 10, 1982, unless otherwise noted.



Sec. 168.1  Definitions.

    As used in this part, terms shall have the meanings set forth in 
this section.
    (a) Secretary means the Secretary of Interior or his designee;
    (b) Area Director means the officer in charge of the Phoenix Bureau 
of Indian Affairs Area Office (or his successor; and/or his authorized 
representative) to whom has been delegated the authority of the 
Assistant Secretary--Indian Affairs to act in all matters pertaining to 
lands partitioned to the Hopi Tribe under its jurisdiction, within the 
boundaries of the former Joint Use Area.
    (c) Superintendent means the Superintendent, Hopi Agency or his 
designee.
    (d) Tribal Government means the Hopi Tribal Council, or its duly 
designated representative.
    (e) Project Officer means the former Special Project Officer of the 
Bureau of Indian Affairs, Administrative Office, Flagstaff, Arizona 
86001, who had been delegated the authority of the Commissioner of 
Indian Affairs to act in matters respecting the former Joint Use Area.
    (f) Former Joint Use Area means the area established by the United 
States District Court for the District of Arizona in the case entitled 
Healing v. Jones, 210 F. Supp. 125 (1962), which is

[[Page 530]]

inside the Executive order area (Executive order of December 16, 1882) 
but outside Land Management District 6 and which was partitioned by the 
judgment of partition dated April 18, 1979.
    (g) Hopi Partition Area means that portion of the Former Joint Use 
Area which has been added to the Hopi Tribe's reservation.
    (h) Range Unit means a tract of range land designated as a 
management unit for administration of grazing.
    (i) Range improvements means fences, stockwater devices, corrals, 
trails and other similar devices or practices which are applied to the 
land to enhance range productivity or usability.
    (j) Permit means a revocable privilege granted in writing limited to 
entering on and utilizing forage by domestic livestock on a specified 
tract of land. The term as used herein shall include written 
authorizations issued to enable the crossing or trailing of domestic 
livestock across specified tracts or range units.
    (k) Interim permit means a permit granted to members of the Navajo 
tribe residing on Hopi Partitioned Lands who meet the qualifications of 
Sec. 168.6(b) in accordance with Pub. L. 93-531 as amended.
    (l) Animal unit (AU) means one adult cow with unweaned calf by her 
side or equivalent thereof based on comparative forage consumption. 
Accepted conversion factors are: sheep and goats, one ewe, doe, buck or 
ram equals 0.25 A.U.; one sheep unit year long (SUYL) equals 0.25 Animal 
Unit year long; horses and mules, one horse, mule, donkey or burro 
equals 1.25 A.U.
    (m) Tribe means the Hopi Tribe including all villages and clans.
    (n) Allocate means to apportion grazing, including the determination 
of who may graze livestock, the number and kind of livestock, and the 
place such livestock will be grazed.
    (o) Person awaiting relocation means a resident of the Hopi 
Partitioned Area who meets each of the following criteria:
    (1) Is listed on the Bureau of Indian Affairs enumeration (as 
defined in (q) below);
    (2) Has a livestock inventory listed with the project Officer (see 
(r) below);
    (3) Is awaiting relocation under the Settlement Act; and
    (4) Was grazing livestock on the date of the entry of the Judgment 
of Partition, April 18, 1979.
    (p) Carrying capacity means the maximum stocking rate possible 
without inducing damage to vegetation or related resources.
    (q) BIA enumeration means the list of persons living on and 
improvements located within the former Joint Use Area obtained by 
interviews by the Project Officer's staff.
    (r) Livestock inventory means the original list as amended 
(developed by the Project Officer in 1976-77) of livestock owned by 
persons having customary grazing use in the former Joint Use Area.
    (s) Settlement Act means the Act of December 22, 1974, 88 Stat. 
1712, as amended.
    (t) Life tenant means a person who has applied for and been granted 
a life estate lease pursuant to section 30 of the Settlement Act, 25 
U.S.C. 640d-28.



Sec. 168.2  Authority.

    It is within the general authority of the Secretary to protect 
Indian trust lands against waste and to prescribe rules and regulations 
under which these lands may be leased or permitted for grazing. Also, 
under the Navajo-Hopi Settlement Act as amended, 25 U.S.C. 640d-8 and 
18, the Secretary is authorized and directed to:
    (a) Reduce livestock grazing within the former Joint Use Area to 
carrying capacity,
    (b) Restore the grazing range potential of the resource to maximum 
grazing extent feasible,
    (c) Survey, monument and fence the partition boundary,
    (d) Protect the rights and property of individuals awaiting 
relocation or authorized to reside on life estates, and
    (e) To administer conservation practices, including grazing control 
and range restoration activities on the Hopi Partitioned Lands.



Sec. 168.3  Purpose.

    These regulations are issued to implement the Secretary's 
responsibilities mandated by the Settlement Act and subsequent U.S. 
District Court

[[Page 531]]

Judgement filed May 4, 1982, in the case, Hopi Tribe v. Watt, Civ. No. 
81-272 PCT-EHC. This portion of the regulations apply only to lands 
partitioned to the Hopi Tribe within the former Joint Use Area.



Sec. 168.4  Establishment of range units.

    The Area Director will use Soil and Range Inventory data to 
establish range units on the Hopi Partitioned Area to provide for a 
surface land management program to restore the land to its full grazing 
potential and maintain that potential to the maximum extent feasible. 
The establishment of range units on Hopi Partitioned Lands is subject to 
the concurrence of the Hopi Tribe in accordance with Sec. 168.17 of 
these regulations.



Sec. 168.5  Grazing capacity.

    (a) The Area Director shall prescribe the maximum number of each 
kind of livestock which may be grazed on land under his jurisdiction 
without inducing damage to vegetation or related resources on each range 
unit and the season or seasons of use to achieve the objectives of the 
land recovery program required by the Settlement Act.
    (b) The Area Director shall review the stocking rate upon which the 
grazing permits are issued on a continuing basis and adjust that rate as 
conditions warrant.



Sec. 168.6  Grazing on range units authorized by permit.

    Grazing use on range units is authorized only by permits granted 
under paragraph (a) or (b) of this section.
    (a) Grazing permits to Hopi tribal members on their partitioned 
lands. The Area Director shall assign grazing privileges to the Hopi 
Tribe for lands within Hopi Partitioned Lands. The tribal government 
will then allocate use to their tribal members for permit periods not to 
exceed five years. Grazing use by Hopi tribal enterprises may be 
authorized. The Area Director will issue permits based on the 
determination of the Hopi tribal government.
    (b) Interim Grazing Permit for persons awaiting relocation. Navajo 
Tribal members who have maintained both a permanent residence on Hopi 
Partitioned lands; a livestock inventory since enumeration; and meet all 
the criteria listed in Sec. 168.1(o), shall be eligible for an interim 
grazing allocation on Hopi Partitioned Lands under the following terms 
and conditions:
    (1) The Area Director shall first verify that an applicant meets the 
criteria of the definition in Sec. 168.1(o) and will issue all permits.
    (2) The permitted number shall not exceed either (i) 10 SUYL (See 
Sec. 168.1(1)) for each eligible family member, or (ii) the grazing 
applicant's livestock inventory reduced by voluntary sales as adjusted 
by reproduction, in accordance with procedures developed by the Project 
Officer based upon the study by Stubblefield and Camfield, 1975 page 5. 
The determination of the person to whom permits will be issued and the 
number of livestock to be permitted will be based on information 
provided by the permit applicant and an assessment of the number of 
dependents residing in the immediate household.
    (3) The permit shall authorize grazing for a specific number and 
kind of animal(s) in a specified range unit. Interim grazing permits 
will not be issued in excess of one-half the authorized carrying 
capacity of the Hopi Partition area.
    (4) Subject to the provisions of Sec. 168.9(b), permits shall 
expire when the person awaiting relocation is relocated pursuant to the 
Settlement Act. No interim permit will be issued for a term greater than 
one year. Permits may be reissued upon application and redetermination 
of eligibility. All interim permits will expire at the end of the period 
provided for completion of relocation, Pub. L. 99-190. When a Navajo 
permit holder discontinues grazing livestock or reduces the number being 
grazed whether by reason of his relocating or for any other reason, his 
grazing permit will be cancelled or reduced and no permit will be issued 
in lieu thereof. The total number of authorized animal units grazed by 
the Navajo permit holders awaiting relocation will reduced by the number 
of animal units authorized under the cancelled or reduced permit.

[47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25, 1986]

[[Page 532]]



Sec. 168.7  Kind of livestock.

    Unless determined otherwise by the Area Director for conservation 
purposes, the Hopi Tribe may determine, subject to the authorized 
carrying capacity, the kind of livestock that may be grazed by their 
tribal members on the range units within the Hopi Partitioned Land area.



Sec. 168.8  Grazing fees.

    (a) The rental value of all uses of Hopi Partitioned lands by 
persons who are not members of the Hopi Tribe, including eligible 
holders of interim permits, will be determined, and assessed by the Area 
Director and paid in accordance with 25 U.S.C. 640d-15.
    (b) The Hopi Tribe has established an annual grazing fee to be 
assessed all range users on Hopi Partitioned Lands. The annual Hopi 
grazing fee shall be paid in full in advance of the annual effective 
date of the permit, prior to the issuance of a grazing permit. All 
interim permits will expire at the end of the period provided for 
completion of relocation, Pub. L. 99-190. Failure of the permittee to 
make payment in full in advance will be cause to deny issuance of the 
grazing permit.

[47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25, 1986]



Sec. 168.9  Assignment, modification and cancellation of permits.

    (a) Grazing permits to Hopi tribal members shall not be reassigned, 
subpermitted or transferred without the approval of the permit 
issuer(s).
    (b) The Area Director may revoke or withdraw all or any part of any 
grazing permit in Hopi Partitioned Lands by cancellation or modification 
on 30 days written notice of a violation of the permit or special 
conditions affecting the land or the safety of the livestock thereon, as 
may result from flood, disaster, drought, contagious diseases, etc. 
Except in the case of extreme necessity, cancellation or modification 
shall be effected on the next annual anniversay date of the grazing 
permit following the date of notice. Revocation or withdrawal of all or 
any of the grazing permit by cancellation or modification as provided 
herein is effective on the date the notice of cancellation or 
modification is received and shall be appealable under 25 CFR

part 2.



Sec. 168.10  Conservation and land use provisions.

    Grazing operations shall be conducted in accordance with recognized 
principles of good range management. Conservation management plans 
necessary to accomplish this will be made a part of the grazing permit 
by stipulation.



Sec. 168.11  Range improvements; ownership; new construction.

    Except as provided by the Relocation Act, range improvements placed 
on the permitted land shall be considered affixed to the land unless 
specifically excepted therefrom under the permit terms. Written 
permission to construct or remove improvements must be obtained from the 
Hopi Tribe.



Sec. 168.12  Special permit requirements and provisions.

    All grazing permits shall contain the following provisions:
    (a) Because the lands covered by the permit are in trust status, all 
of the permittees' obligations on the permit and the obligations of his 
sureties are to the United States as well as to the beneficial owners of 
the lands.
    (b) The permittee agrees he will not use, cause, or allow to be used 
any part of the permitted area for any unlawful conduct or purpose.
    (c) The permit authorizes only the grazing of livestock.



Sec. 168.13  Fences.

    Fencing will be erected by the Federal Government around the 
perimeter of the 1882 Executive Order Area, Land Management District 6, 
and on the boundary of the former Joint Use Area partitioned to each 
tribe by the Judgment of Partition of April 18, 1979. Fencing of other 
areas in the former Joint Use Area will be required for a range recovery 
program in accordance with the range units established under Sec. 
168.4. Such fencing shall be erected at Government expense and ownership 
shall be clearly identified by appropriate posting on the fencing. 
Intentional destruction of Federal property

[[Page 533]]

will be treated as a violation of 18 U.S.C. 1164.



Sec. 168.14  Livestock trespass.

    The owner of any livestock grazing in trespass on the Hopi 
Partitioned Lands Area is liable to a civil penalty of $1 per head per 
day for each animal in trespass, together with the replacement value of 
the forage consumed and a reasonable value for damages to property 
injured or destroyed. The Superintendent may take appropriate action to 
collect all such penalties and damages and seek injunctive relief when 
appropriate. All payments for such penalties and damages shall be 
credited to the Tribe. The following acts are prohibited:
    (a) The grazing upon or driving across any of the Hopi Partitioned 
Lands of any livestock without an approved grazing or crossing permit;
    (b) Allowing livestock to drift and graze on lands without an 
approved permit;
    (c) The grazing of livestock upon lands within an area closed to 
grazing of that class of livestock;
    (d) The grazing of livestock by permittees upon any land withdrawn 
from use for grazing purpose to protect it from damage, after the 
receipt of notice from the Area Director; and
    (e) Grazing livestock in excess of those numbers and kinds 
authorized on a livestock grazing permit approved by the Area Director.



Sec. 168.15  Control of livestock diseases and parasites.

    Whenever livestock within the Hopi Partitioned Lands become infected 
with contagious or infectious diseases or parasites or have been exposed 
thereto, such livestock must be treated and the movement thereof 
restricted in accordance with applicable laws.



Sec. 168.16  Impoundment and disposal of unauthorized livestock.

    Unauthorized livestock within any range unit of the Hopi Partitioned 
Lands which are not removed therefrom within the periods prescribed by 
the regulation will be impounded and disposed of by the Superintendent 
as provided herein.
    (a) When the Area Director determines that unauthorized livestock 
use is occurring and has definite knowledge of the kind of unauthorized 
livestock, and knows the name and address of the owners, such livestock 
may be impounded any time five days after written notice of intent to 
impound unauthorized livestock is mailed by certified mail or personally 
delivered to such owners or their agent.
    (b) When the Area Director determines that unauthorized livestock 
use is occurring but does not have complete knowledge of the number and 
class of livestock or if the name and address of the owner thereof are 
unknown, such livestock will be impounded anytime 15 days after the date 
of a General Notice of Intent to Impound unauthorized livestock is first 
published in the local newspaper, posted at the nearest chapter house, 
and in one or more local trading posts.
    (c) Unauthorized livestock on the Hopi Partitioned Lands which are 
owned by persons given notice under paragraph (a) of this section, and 
any unauthorized livestock in areas for which a notice has been posted 
and published under paragraph (b) of this section, will be impounded 
without further notice anytime within the twelve-month period 
immediately following the effective date of the notice.
    (d) Following the impoundment of unauthorized livestock a notice of 
sale of impounded livestock will be published in the local newspaper, 
posted at the nearest chapter house, and in one or more local trading 
posts. The notice will describe the livestock and specify the date, time 
and place of sale. The date set shall be at least 5 days after the 
publication and posting of such notice.
    (e) The owners or their agent may redeem the livestock anytime 
before the time set for the sale by submitting proof of ownership and 
paying for all expenses incurred in gathering, impounding and feeding or 
pasturing the livestock and any trespass fees and/or damages caused by 
the animals.
    (f) Livestock erroneously impounded shall be returned to the 
rightful owner and all expenses accruing thereto shall be waived.

[[Page 534]]

    (g) If the livestock are not redeemed before the time fixed for 
their sale, they shall be sold at public sale to the highest bidder, 
provided his bid is at or above the minimum amount set by the 
Superintendent based upon U.S.D.A.'s current Agricultural Statistic's 
Report for Arizona. If a bid at or above the minimum is not received the 
livestock may be sold at private sale at or above the minimum amount, 
reoffered at public sale, condemned and destroyed, or otherwise disposed 
of. When livestock are sold pursuant to this regulation, the 
superintendent shall furnish the buyer a bill of sale or other written 
instrument evidencing the sale.
    (h) The proceeds of any sale of impounded livestock shall be applied 
as follows:
    (1) To the payment of all expenses incurred by the United States in 
gathering, impounding, and feeding or pasturing the livestock;
    (2) In payment of any penalties or damages assessed pursuant to 
Sec. 168.14 of this part which penalties or damages shall be credited 
to the Hopi tribe as provided in said section;
    (3) Any remaining amount shall be paid over to the owner of said 
livestock upon his submitting proof of ownership.

Any proceeds remaining after payment of the first and second items noted 
above not claimed with one year from the date of sale, will be credited 
to the Hopi Tribe.



Sec. 168.17  Concurrence procedures.

    (a) Definitions. As used in this section, terms shall have the 
meaning set forth as follows:
    (1) Concurrence means agreement by the Area Director and the Hopi 
Tribe, speaking through the Chairman of the Tribe (or his designee).
    (2) Non-concurrence means disagreement between the Area Director and 
the Hopi Tribe, speaking through the Chairman of the Hopi Tribe (or his 
designee), or a failure of the Hopi Tribe to respond to a proposal by 
the Area Director in a timely manner.
    (3) Timely manner means a period of thirty days, unless this period 
is shortened by the existence of an emergency. Upon request by the 
Tribal Council, the Area Director may extend the 30 day period. In 
instances where this period applies to the Area Director, he may extend 
the period by so notifying the Tribe.
    (4) An emergency is a condition that the Area Director finds 
threatens the rights and property of life tenants and persons awaiting 
relocation or one that the Area Director finds is causing the condition 
of the range land to deteriorate.
    (5) Conservation practice is a program consisting of a series of 
acts in conformance with the Bureau's range management policies and 
procedures which maintains or seeks to achieve the grazing potential of 
range lands on a continuing basis.
    (6) Range restoration activities is a program consisting of a series 
of range management acts, including but not limited to procedures which 
increase range forage production, reduce erosion, improve range 
usability and reduce stocking by issuing grazing permits to persons 
residing on Hopi partitioned lands at rates which maximize the carrying 
capacity of the range lands on a continuing basis.
    (7) Grazing control is a program consisting of a series of range 
management acts, including but not limited to procedures by which 
grazing permits are issued to persons residing on Hopi partitioned 
lands, which limit the grazing on range lands to its carrying capacity.
    (b) The Area Director will seek the participation of the Hopi Tribe 
in his investigation, formulation and planning of conservation practices 
for Hopi partitioned lands. The Area Director will submit, in writing, 
the proposed plan to the Hopi Tribe.
    (c) Upon receipt of the Area Director's proposed conservation 
practices, the Hopi Tribe will deliver, in writing, to the Area Director 
its concurrence or non-concurrence on all of the proposed conservation 
practices in a timely manner. The Area Director will continue to seek 
Hopi Tribal participation during the review process.
    (d) Concurrence of the Hopi Tribe will be sought on all conservation 
practices, range restoration activities, and grazing control programs on 
the Hopi Partitioned Lands.

[[Page 535]]

    (1) If the Area Director and the Hopi Tribe concur on all or part of 
the proposed conservation practices in writing in a timely manner, those 
practices concurred upon may be immediately implemented.
    (2) If the Hopi Tribe does not concur on all or part of the proposed 
conservation practices in a timely manner, the Area Director will submit 
in writing to the Hopi Tribe a declaration of non-concurrence. The Area 
Director will then notify the Hopi Tribe in writing of a formal hearing 
to be held not sooner than 15 days from the date of the non-concurrence 
declaration.
    (i) The formal hearing on non-concurrence will permit the submission 
of written evidence and argument concerning the proposal. Minutes of the 
hearing will be taken. Following the hearing, the Area Director may 
amend, alter or otherwise change his proposed conservation practices. 
Except as provided in Sec. 168.17(d)(1) of this section, if following 
the hearing, the Area Director altered or amends portions of his 
proposed plan of action, he will submit those individual altered or 
amended portions of the plan to the Tribe in a timely manner for their 
concurrence.
    (ii) In the event the Tribe fails or refuses to give its concurrence 
to the proposal at the hearing, then the implementation of such proposal 
may only be undertaken in those situations where the Area Director 
expressly determines in a written order, based upon findings of fact, 
that the proposed action is necessary to protect the rights and property 
of life tenants and/or persons awaiting relocation.



Sec. 168.18  Appeals.

    Appeals from decisions issued under this part will be in accordance 
with procedures in 25 CFR part 2.



Sec. 168.19  Information collection.

    The information collection requirement(s) contained in this 
regulation have been approved by the Office of Management and Budget 
under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0027. 
The information is being collected in order to ascertain eligibility for 
the issuance of a grazing permit. Response is mandatory in order to 
obtain a permit.



PART 169_RIGHTS-OF-WAY OVER INDIAN LANDS--Table of Contents




Sec.
169.1 Definitions.
169.2 Purpose and scope of regulations.
169.3 Consent of landowners to grants of right-of-way.
169.4 Permission to survey.
169.5 Application for right-of-way.
169.6 Maps.
169.7 Field notes.
169.8 Public survey.
169.9 Connection with natural objects.
169.10 Township and section lines.
169.11 Affidavit and certificate.
169.12 Consideration for right-of-way grants.
169.13 Other damages.
169.14 Deposit and disbursement of consideration and damages.
169.15 Action on application.
169.16 Affidavit of completion.
169.17 Change of location.
169.18 Tenure of approved right-of-way grants.
169.19 Renewal of right-of-way grants.
169.20 Termination of right-of-way grants.
169.21 Condemnation actions involving individually owned lands.
169.22 Service lines.
169.23 Railroads.
169.24 Railroads in Oklahoma.
169.25 Oil and gas pipelines.
169.26 Telephone and telegraph lines; radio, television, and other 
          communications facilities.
169.27 Power projects.
169.28 Public highways.

    Authority: 5 U.S.C. 301; 62 Stat. 17 (25 U.S.C. 323--328), and other 
acts cited in the text.

    Source: 33 FR 19803, Dec. 27, 1968, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 169.1  Definitions.

    As used in this part 169:
    (a) Secretary means the Secretary of the Interior or his authorized 
representative acting under delegated authority. Before proceeding under 
these regulations anyone desiring a right-of-way should inquire at the 
Indian Agency, Area Field Office, or other office of the Bureau of 
Indian Affairs having immediate supervision over the lands involved to 
determine the identity of the authorized representative of the Secretary 
for the purposes of this part 169.
    (b) Individually owned land means land or any interest therein held 
in

[[Page 536]]

trust by the United States for the benefit of individual Indians and 
land or any interest therein held by individual Indians subject to 
Federal restrictions against alienation or encumbrance.
    (c) Tribe means a tribe, band, nation, community, group or pueblo of 
Indians.
    (d) Tribal land means land or any interest therein, title to which 
is held by the United States in trust for a tribe, or title to which is 
held by any tribe subject to Federal restrictions against alienation or 
encumbrance, and includes such land reserved for Indian Bureau 
administrative purposes. The term also includes lands held by the United 
States in trust for an Indian corporation chartered under section 17 of 
the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477).
    (e) Government owned land means land owned by the United States and 
under the jurisdiction of the Secretary which was acquired or set aside 
for the use and benefit of Indians and not included in the definitions 
set out in paragraphs (b) and (d) of this section.



Sec. 169.2  Purpose and scope of regulations.

    (a) Except as otherwise provided in Sec. 1.2 of this chapter, the 
regulations in this part 169 prescribe the procedures, terms and 
conditions under which rights-of-way over and across tribal land, 
individually owned land and Government owned land may be granted.
    (b) Appeals from administrative action taken under the regulations 
in this part 169 shall be made in accordance with part 2 of this 
chapter.
    (c) The regulations contained in this part 169 do not cover the 
granting of rights-of-way upon tribal lands within a reservation for the 
purpose of constructing, operating, or maintaining dams, water conduits, 
reservoirs, powerhouses, transmission lines or other works which shall 
constitute a part of any project for which a license is required by the 
Federal Power Act. The Federal Power Act provides that any license which 
shall be issued to use tribal lands within a reservation shall be 
subject to and contain such conditions as the Secretary of the Interior 
shall deem necessary for the adequate protection and utilization of such 
lands. (16 U.S.C. 797(e)). In the case of tribal lands belonging to a 
tribe organized under the Act of June 18, 1934 (48 Stat. 984), the 
Federal Power Act requires that annual charges for the use of such 
tribal lands under any license issued by the Federal Power Commission 
shall be subject to the approval of the tribe (16 U.S.C. 803(e)).



Sec. 169.3  Consent of landowners to grants of right-of-way.

    (a) No right-of-way shall be granted over and across any tribal 
land, nor shall any permission to survey be issued with respect to any 
such lands, without the prior written consent of the tribe.
    (b) Except as provided in paragraph (c) of this section, no right-
of-way shall be granted over and across any individually owned lands, 
nor shall any permission to survey be issued with respect to any such 
lands, without the prior written consent of the owner or owners of such 
lands and the approval of the Secretary.
    (c) The Secretary may issue permission to survey with respect to, 
and he may grant rights-of-way over and across individually owned lands 
without the consent of the individual Indian owners when
    (1) The individual owner of the land or of an interest therein is a 
minor or a person non compos mentis, and the Secretary finds that such 
grant will cause no substantial injury to the land or the owner, which 
cannot be adequately compensated for by monetary damages;
    (2) The land is owned by more than one person, and the owners or 
owner of a majority of the interests therein consent to the grant;
    (3) The whereabouts of the owner of the land or an interest therein 
are unknown, and the owners or owner of any interests therein whose 
whereabouts are known, or a majority thereof, consent to the grant;
    (4) The heirs or devisees of a deceased owner of the land or an 
interest therein have not been determined, and the Secretary finds that 
the grant will cause no substantial injury to the land or any owner 
thereof;
    (5) The owners of interests in the land are so numerous that the 
Secretary finds it would be impracticable

[[Page 537]]

to obtain their consent, and also finds that the grant will cause no 
substantial injury to the land or any owner thereof.

[36 FR 14183, July 31, 1971. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.4  Permission to survey.

    Anyone desiring to obtain permission to survey for a right-of-way 
across individually owned, tribal or Government owned land must file a 
written application therefor with the Secretary. The application shall 
adequately describe the proposed project, including the purpose and 
general location, and it shall be accompanied by the written consents 
required by Sec. 169.3, by satisfactory evidence of the good faith and 
financial responsibility of the applicant, and by a check or money order 
of sufficient amount to cover twice the estimated damages which may be 
sustained as a result of the survey. With the approval of the Secretary, 
a surety bond may be substituted in lieu of a check or money order 
accompanying an application, provided the company issuing the surety 
bond is licensed to do business in the State where the land to be 
surveyed is located. The application shall contain an agreement to 
indemnify the United States, the owners of the land, and occupants of 
the land, against liability for loss of life, personal injury and 
property damage occurring because of survey activities and caused by the 
applicant, his employees, contractors and their employees, or 
subcontractors and their employees. When the applicant is an agency or 
instrumentality of the Federal or a State Government and is prohibited 
by law from depositing estimated damages in advance or agreeing to 
indemnification, the requirement for such a deposit and indemnification 
may be waived providing the applicant agrees in writing to pay damages 
promptly when they are sustained. An application filed by a corporation 
must be accompanied by a copy of its charter or articles of 
incorporation duly certified by the proper State official of the State 
where the corporation was organized, and a certified copy of the 
resolution or bylaws of the corporation authorizing the filing of the 
application. When the land covered by the application is located in a 
State other than that in which the application was incorporated, it must 
also submit a certificate of the proper State official that the 
applicant is authorized to do business in the State where the land is 
located. An application filed by an unincorporated partnership or 
association must be accompanied by a certified copy of the articles of 
partnership or association, or if there be none, this fact must be 
stated over the signature of each member of the partnership or 
association. If the applicant has previously filed with the Secretary an 
application accompanied by the evidence required in this section, a 
reference to the date and place of such filing, accompanied by proof of 
current financial responsibility and good faith, will be sufficient. 
Upon receipt of an application made in compliance with the regulations 
of this part 169, the Secretary may grant the applicant written 
permission to survey.



Sec. 169.5  Application for right-of-way.

    Written application identifying the specific use requested shall be 
filed in duplicate with the Secretary. The application shall cite the 
statute or statutes under which it is filed and the width and length of 
the desired right-of-way, and shall be accompanied by satisfactory 
evidence of the good faith and financial responsibility of the 
applicant. An application filed by a corporation must be accompanied by 
a copy of its charter or articles of incorporation duly certified by the 
proper State official of the State where the corporation was organized, 
and a certified copy of the resolution or bylaws of the corporation 
authorizing the filing of the application. When the land covered by the 
application is located in a State other than that in which the applicant 
was incorporated, it must also submit a certificate of the proper State 
official that the applicant is authorized to do business in the State 
where the land is located. An application filed by an unincorporated 
partnership or association must be accompanied be a certified copy of 
the articles of partnership or association, or if there be none, this 
fact must be stated over the signature of each member of the partnership 
or association. If the

[[Page 538]]

applicant has previously filed with the Secretary an application 
accompanied by the evidence required by this section, a reference to the 
date and place of such filing will be sufficient. Except as otherwise 
provided in this section, the application shall be accompanied by a duly 
executed stipulation, in duplicate, expressly agreeing to the following:
    (a) To construct and maintain the right-of-way in a workmanlike 
manner.
    (b) To pay promptly all damages and compensation, in addition to the 
deposit made pursuant to Sec. 169.4, determined by the Secretary to be 
due the landowners and authorized users and occupants of the land on 
account of the survey, granting, construction and maintenance of the 
right-of-way.
    (c) To indemnify the landowners and authorized users and occupants 
against any liability for loss of life, personal injury and property 
damage arising from the construction, maintenance, occupancy or use of 
the lands by the applicant, his employees, contractors and their 
employees, or subcontractors and their employees.
    (d) To restore the lands as nearly as may be possible to their 
original condition upon the completion of construction to the extent 
compatible with the purpose for which the right-of-way was granted.
    (e) To clear and keep clear the lands within the right-of-way to the 
extent compatible with the purpose of the right-of-way; and to dispose 
of all vegetative and other material cut, uprooted, or otherwise 
accumulated during the construction and maintenance of the project.
    (f) To take soil and resource conservation and protection measures, 
including weed control, on the land covered by the right-of-way.
    (g) To do everything reasonably within its power to prevent and 
suppress fires on or near the lands to be occupied under the right-of-
way.
    (h) To build and repair such roads, fences, and trails as may be 
destroyed or injured by construction work and to build and maintain 
necessary and suitable crossings for all roads and trails that intersect 
the works constructed, maintained, or operated under the right-of-way.
    (i) That upon revocation or termination of the right-of-way, the 
applicant shall, so far as is reasonably possible, restore the land to 
its original condition.
    (j) To at all times keep the Secretary informed of its address, and 
in case of corporations, of the address of its principal place of 
business and of the names and addresses of its principal officers.
    (k) That the applicant will not interfere with the use of the lands 
by or under the authority of the landowners for any purpose not 
inconsistent with the primary purpose for which the right-of-way is 
granted.

When the applicant is the U.S. Government or a State Government or an 
instrumentality thereof and is prohibited by law from executing any of 
the above stipulations, the Secretary may waive the requirement that the 
applicant agree to any stipulations so prohibited.

[33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.6  Maps.

    (a) Each application for a right-of-way shall be accompanied by maps 
of definite location consisting of an original on tracing linen or other 
permanent and reproducible material and two reproductions thereof. The 
field notes shall accompany the application, as provided in Sec. 169.7. 
The width of the right-of-way shall be clearly shown on the maps.
    (b) A separate map shall be filed for each section of 20 miles of 
right-of-way, but the map of the last section may include any excess of 
10 miles or less.
    (c) The scale of maps showing the line of route normally should be 
2,000 feet to an inch. The maps may, however, be drawn to a larger scale 
when necessary and when an increase in scale cannot be avoided through 
the use of separate field notes, but the scale must not be increased to 
such extent as to make the maps too cumbersome for convenient handling 
and filing.
    (d) The maps shall show the allotment number of each tract of 
allotted land, and shall clearly designate each tract of tribal land 
affected, together with the sections, townships, and

[[Page 539]]

ranges in which the lands crossed by the right-of-way are situated.



Sec. 169.7  Field notes.

    Field notes of the survey shall appear along the line indicating the 
right-of-way on the maps, unless the maps would be too crowded thereby 
to be easily legible, in which event the field notes may be filed 
separately on tracing linen in such form that they may be folded readily 
for filing. Where field notes are placed on separate tracing linen, it 
will be necessary to place on the maps only a sufficient number of 
station numbers so as to make it convenient to follow the field notes. 
The field notes shall be typewritten. Whether endorsed on the maps or 
filed separately, the field notes shall be sufficiently complete so as 
to permit the line indicating the right-of-way to be readily retraced on 
the ground from the notes. They shall show whether the line was run on 
true or magnetic bearings, and, in the latter case, the variation of the 
needle and date of determination must be stated. One or more bearings 
(or angular connections with public survey lines) must be given. The 10-
mile sections must be indicated and numbered on all lines of road 
submitted.



Sec. 169.8  Public survey.

    (a) The terminal of the line of route shall be fixed by reference of 
course and distance to the nearest existing corner of the public survey. 
The maps, as well as the engineer's affidavit and the certificate, shall 
show these connections.
    (b) When either terminal of the line of route is upon unsurveyed 
land, it must be connected by traverse with an established corner of the 
public survey if not more than 6 miles distant from it, and the single 
bearing and distance from the terminal point to the corner computed and 
noted on the maps, in the engineer's affidavit, and in the certificate. 
The notes and all data for the computation of the traverse must be 
given.



Sec. 169.9  Connection with natural objects.

    When the distance to an established corner of the public survey is 
more than 6 miles, this connection will be made with a natural object or 
a permanent monument which can be readily found and recognized, and 
which will fix and perpetuate the position of the terminal point. The 
maps must show the position of such mark, and course and distance to the 
terminus. There must be given an accurate description of the mark and 
full data concerning the traverse, and the engineer's affidavit and the 
certificate on the maps must state the connections.



Sec. 169.10  Township and section lines.

    Whenever the line of survey crosses a township or section line of 
the public survey, the distance to the nearest existing corner shall be 
noted. The maps shall show these distances and the station numbers at 
the points of intersections. The field notes shall show these distances 
and the station numbers.



Sec. 169.11  Affidavit and certificate.

    (a) There shall be subscribed on the maps of definite location an 
affidavit executed by the engineer who made the survey and a certificate 
executed by the applicant, both certifying to the accuracy of the survey 
and maps and both designating by termini and length in miles and 
decimals, the line of route for which the right-of-way application is 
made.
    (b) Maps covering roads built by the Bureau of Indian Affairs which 
are to be transferred to a county or State government shall contain an 
affidavit as to the accuracy of the survey, executed by the Bureau 
highway engineer in charge of road construction, and a certificate by 
the State or county engineer or other authorized State or county officer 
accepting the right-of-way and stating that he is satisfied as to the 
accuracy of the survey and maps.



Sec. 169.12  Consideration for right-of-way grants.

    Except when waived in writing by the landowners or their 
representatives as defined in Sec. 169.3 and approved by the Secretary, 
the consideration for any right-of-way granted or renewed under this 
part 169 shall be not less than but not limited to the fair market value 
of the rights granted, plus severance damages, if any, to the remaining 
estate.

[[Page 540]]

The Secretary shall obtain and advise the landowners of the appraisal 
information to assist them (the landowner or landowners) in negotiations 
for a right-of-way or renewal.

[45 FR 45910, July 8, 1980. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.13  Other damages.

    In addition to the consideration for a grant of right-of-way 
provided for by the provisions of Sec. 169.12, the applicant for a 
right-of-way will be required to pay all damages incident to the survey 
of the right-of-way or incident to the construction or maintenance of 
the facility for which the right-of-way is granted.



Sec. 169.14  Deposit and disbursement of consideration and damages.

    At the time of filing an application for right-of-way, the applicant 
must deposit with the Secretary the total estimated consideration and 
damages, which shall include consideration for the right-of-way, 
severance damages, damages caused during the survey, and estimated 
damages to result from construction less any deposit previously made 
under Sec. 169.4. In no case shall the amount deposited as 
consideration for the right-of-way over any parcel be less than the 
amount specified in the consent covering that parcel. If in reviewing 
the application, the Secretary determines that the amounts deposited are 
inadequate to compensate the owners, the applicant shall increase the 
deposit to an amount determined by the Secretary to be adequate. The 
amounts so deposited shall be held in a ``special deposit'' account for 
distribution to or for the account of the landowners and authorized 
users and occupants of the land. Amounts deposited to cover damages 
resulting from survey and construction may be disbursed after the 
damages have been sustained. Amounts deposited to cover consideration 
for the right-of-way and severance damages shall be disbursed upon the 
granting of the right-of-way. Any part of the deposit which is not 
required for disbursement as aforesaid shall be refunded to the 
applicant promptly following receipt of the affidavit of completion of 
construction filed pursuant to Sec. 169.16.



Sec. 169.15  Action on application.

    Upon satisfactory compliance with the regulations in this part 169, 
the Secretary is authorized to grant the right-of-way by issuance of a 
conveyance instrument in the form approved by the Secretary. Such 
instrument shall incorporate all conditions or restrictions set out in 
the consents obtained pursuant to Sec. 169.3. A copy of such instrument 
shall be promptly delivered to the applicant and thereafter the 
applicant may proceed with the construction work. Maps of definite 
location may be attached to and incorporated into the conveyance 
document by reference. In the discretion of the Secretary, one 
conveyance document may be issued covering all of the tracts of land 
traversed by the right-of-way, or separate conveyances may be made 
covering one or several tracts included in the application. A duplicate 
original copy of the conveyance instrument, permanent and reproducible 
maps, a copy of the application and stipulations, together with any 
other pertinent documents shall be transmitted by the Secretary to the 
office of record for land documents affecting the land covered by the 
right-of-way, where they will be recorded and filed.



Sec. 169.16  Affidavit of completion.

    Upon the completion of the construction of any right-of-way, the 
applicant shall promptly file with the Secretary an affidavit of 
completion, in duplicate, executed by the engineer and certified by the 
applicant. The Secretary shall transmit one copy of the affidavit to the 
office of record mentioned in Sec. 169.15. Failure to file an affidavit 
in accordance with this section shall subject the right-of-way to 
cancellation in accordance with Sec. 169.20.



Sec. 169.17  Change of location.

    If any change from the location described in the conveyance 
instrument is found to be necessary on account of engineering 
difficulties or otherwise, amended maps and field notes of the new 
location shall be filed, and a right-of-way for such new route or 
location shall be subject to consent, approval, the ascertainment of 
damages, and the payment thereof, in all respects as in

[[Page 541]]

the case of the original location. Before a revised conveyance 
instrument is issued, the applicant shall execute such instruments 
deemed necessary by the Secretary extinguishing the right-of-way at the 
original location. Such instruments shall be transmitted by the 
Secretary to the office of record mentioned in Sec. 169.15 for 
recording and filing.



Sec. 169.18  Tenure of approved right-of-way grants.

    All rights-of-way granted under the regulations in this part 169 
shall be in the nature of easements for the periods stated in the 
conveyance instrument. Except as otherwise determined by the Secretary 
and stated in the conveyance instrument, rights-of-way granted under the 
Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), for railroads, 
telephone lines, telegraph lines, public roads and highways, access 
roads to homesite properties, public sanitary and storm sewer lines 
including sewage disposal and treatment plants, water control and use 
projects (including but not limited to dams, reservoirs, flowage 
easements, ditches, and canals), oil, gas, and public utility water 
pipelines (including pumping stations and appurtenant facilities), 
electric power projects, generating plants, switchyards, electric 
transmission and distribution lines (including poles, towers, and 
appurtenant facilities), and for service roads and trails essential to 
any of the aforestated use purposes, may be without limitation as to 
term of years; whereas, rights-of-way for all other purposes shall be 
for a period of not to exceed 50 years, as determined by the Secretary 
and stated in the conveyance instrument.

[37 FR 12937, June 30, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.19  Renewal of right-of-way grants.

    On or before the expiration date of any right-of-way heretofore or 
hereafter granted for a limited term of years, an application may be 
submitted for a renewal of the grant. If the renewal involves no change 
in the location or status of the original right-of-way grant, the 
applicant may file with his application a certificate under oath setting 
out this fact, and the Secretary, with the consent required by Sec. 
169.3, may thereupon extend the grant for a like term of years, upon the 
payment of consideration as set forth in Sec. 169.12. If any change in 
the size, type, or location of the right-of-way is involved, the 
application for renewal shall be treated and handled as in the case of 
an original application for a right-of-way.



Sec. 169.20  Termination of right-of-way grants.

    All rights-of-way granted under the regulations in this part may be 
terminated in whole or in part upon 30 days written notice from the 
Secretary mailed to the grantee at its latest address furnished in 
accordance with Sec. 169.5(j) for any of the following causes:
    (a) Failure to comply with any term or condition of the grant or the 
applicable regulations;
    (b) A nonuse of the right-of-way for a consecutive 2-year period for 
the purpose for which it was granted;
    (c) An abandonment of the right-of-way.

If within the 30-day notice period the grantee fails to correct the 
basis for termination, the Secretary shall issue an appropriate 
instrument terminating the right-of-way. Such instrument shall be 
transmitted by the Secretary to the office of record mentioned in Sec. 
169.15 for recording and filing.

[33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.21  Condemnation actions involving individually owned lands.

    The facts relating to any condemnation action to obtain a right-of-
way over individually owned lands shall be reported immediately by 
officials of the Bureau of Indian Affairs having knowledge of such facts 
to appropriate officials of the Interior Department so that action may 
be taken to safeguard the interests of the Indians.



Sec. 169.22  Service lines.

    (a) An agreement shall be executed by and between the landowner or a 
legally authorized occupant or user of individually owned land and the 
applicant before any work by the applicant

[[Page 542]]

may be undertaken to construct a service line across such land. Such a 
service line shall be limited in the case of power lines to a voltage of 
14.5 kv. or less except lines to serve irrigation pumps and commercial 
and industrial uses which shall be limited to a voltage not to exceed 
34.5 kv. A service line shall be for the sole purpose of supplying the 
individual owner or authorized occupant or user of land, including 
schools and churches, with telephone, water, electric power, gas, and 
other utilities for use by such owner, occupant, or user of the land on 
the premises.
    (b) A similar agreement to that required in paragraph (a) of this 
section shall be executed by the tribe or legally authorized occupant or 
user of tribal land and the applicant before any work by the applicant 
may be undertaken for the construction of a service line across tribal 
land. A service line shall be for the sole purpose of supplying an 
occupant or user of tribal land with any of the utilities specified in 
paragraph (a) of this section. No agreement under this paragraph shall 
be valid unless its execution shall have been duly authorized in advance 
of construction by the governing body of the Indian tribe whose land is 
affected, unless the contract under which the occupant or user of the 
land obtained his rights specifically authorizes such occupant or user 
to enter into service agreements for utilities without further tribal 
consent.
    (c) In order to encourage the use of telephone, water, electric 
power, gas and other utilities and to facilitate the extension of these 
modern conveniences to sparsely settled Indian areas without undue costs 
the agreement referred to in paragraph (a) of this section shall only be 
required to include or have appended thereto, a plat or diagram showing 
with particularity the location, size, and extent of the line. When the 
plat or diagram is placed on a separate sheet it shall bear the 
signature of the parties. In case of tribal land, the agreement shall be 
accompanied by a certified copy of the tribal authorization when 
required.
    (d) An executed copy of the agreement, together with a plat or 
diagram, and in the case of tribal land, an authenticated copy of the 
tribal authorization, when required, shall be filed with the Secretary 
within 30 days after the date of its execution. Failure to meet this 
requirement may result in the removal of improvements placed on the land 
at the expense of the party responsible for the placing of such 
improvements and subject such party to the payment of damages caused by 
his unauthorized act.



Sec. 169.23  Railroads.

    (a) The Act of March 2, 1899 (30 Stat. 990), as amended by the Acts 
of February 28, 1902 (32 Stat. 50), June 21, 1906 (34 Stat. 330), and 
June 25, 1910 (36 Stat. 859; 25 U.S.C. 312--318); the Act of March 3, 
1875 (18 Stat. 482; 43 U.S.C. 934); and the Act of March 3, 1909 (35 
Stat. 781), as amended by the Act of May 6, 1910 (36 Stat. 349; 25 
U.S.C. 320), authorize grants of rights-of-way across tribal, 
individually owned and Government-owned land, except in the State of 
Oklahoma, for railroads, station buildings, depots, machine shops, side 
tracks, turnouts, and water stations; for reservoirs, material or 
ballast pits needed to the construction, repair, and maintenance of 
railroads; and for the planting and growing of trees to protect railroad 
lines. Rights-of-way granted under the above acts shall be subject to 
the provisions of this section as well as other pertinent sections of 
this part 169. Except when otherwise determined by the Secretary, 
rights-of-way for the above purposes granted under the Act of February 
5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), shall also be subject to the 
provisions of this section.
    (b) Rights-of-way for railroads shall not exceed 50 feet in width on 
each side of the centerline of the road, except where there are heavy 
cuts and fills, when they shall not exceed 100 feet in width on each 
side of the road. The right-of-way may include grounds adjacent to the 
line for station buildings, depots, machine shops, side tracks, 
turnouts, and water stations, not to exceed 200 feet in width by a 
length of 3,000 feet, with no more than one station to be located within 
any one continuous length of 10 miles of road.
    (c) Short spurs and branch lines may be shown on the map of the main 
line,

[[Page 543]]

separately described by termini and length. Longer spurs and branch 
lines shall be shown on separate maps. Grounds desired for station 
purposes may be indicated on the map of definite location but separate 
plats must be filed for such grounds. The maps shall show any other line 
crossed, or with which connection is made. The station number shall be 
shown on the survey thereof at the point of intersection. All 
intersecting roads must be represented in ink of a different color from 
that used for the line for which application is made.
    (d) Plats of railroad station grounds shall be drawn on a scale of 
400 feet to an inch, and must be filed separately from the line of 
route. Such plats shall show enough of the line of route to indicate the 
position of the tract with reference thereto. Each station ground tract 
must be located with respect to the public survey as provided in Sec. 
169.8 and all buildings or other structures shall be platted on a scale 
sufficiently large to show clearly their dimensions and relative 
positions.
    (e) If any proposed railroad is parallel to, and within 10 miles of, 
a railroad already built or in course of construction, it must be shown 
wherein the public interest will be promoted by the proposed road. Where 
the Interstate Commerce Commission has passed on this point, a certified 
copy of its findings must be filed with the application.
    (f) The applicant must certify that the road is to be operated as a 
common carrier of passengers and freight.
    (g) The applicant shall execute and file, in duplicate, a 
stipulation obligating the company to use all precautions possible to 
prevent forest fires and to suppress such fires when they occur, to 
construct and maintain passenger and freight stations for each 
Government townsite, and to permit the crossing, in a manner 
satisfactory to the Government officials in charge, of the right-of-way 
by canals, ditches, and other projects.
    (h) A railroad company may apply for sufficient land for ballast or 
material pits, reservoirs, or tree planting to aid in the construction 
or maintenance of the road. The authority to use any land for such 
purposes shall terminate upon abandonment or upon failure to use the 
land for such purposes for a continuous period of 2 years.



Sec. 169.24  Railroads in Oklahoma.

    (a) The Act of February 28, 1902 (32 Stat. 43), authorizes right-of-
way grants across tribal and individually owned land in Oklahoma. 
Rights-of-way granted under that act shall be subject to the provisions 
of this section as well as other pertinent sections of this part 169. 
Except when otherwise determined by the Secretary, railroad rights-of-
way in Oklahoma granted under the Act of February 5, 1948 (62 Stat. 17; 
25 U.S.C. 323-328), shall also be subject to the provisions of this 
section.
    (b) One copy on tracing linen of the map of definite location 
showing the line of route and all lands included within the right-of-way 
must be filed with the Secretary. When tribal lands are involved, a copy 
of the map must also be filed with the tribal council.
    (c) Before any railroad may be constructed or any lands taken or 
condemned for any of the purposes set forth in section 13 of the Act of 
February 28, 1902 (32 Stat. 47), full damages shall be paid to the 
Indian owners.
    (d) After the maps have been filed, the matter of damages shall be 
negotiated by the applicant directly with the Indian owners. If an 
amicable settlement cannot be reached, the amount to be paid as 
compensation and damages shall be fixed and determined as provided in 
the statute. If court proceedings are instituted, the facts shall be 
reported immediately as provided in Sec. 169.21.



Sec. 169.25  Oil and gas pipelines.

    (a) The Act of March 11, 1904 (33 Stat. 65), as amended by the Act 
of March 2, 1917 (39 Stat. 973; 25 U.S.C. 321), authorizes right-of-way 
grants for oil and gas pipelines across tribal, individually owned and 
Government-owned land. Rights-of-way granted under that act shall be 
subject to the provisions of this section as well as other pertinent 
sections of this part 169. Except when otherwise determined by the 
Secretary, rights-of-way granted for such purposes under the Act of 
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328) shall also be

[[Page 544]]

subject to the provisions of this section.
    (b) Rights-of-way, granted under aforesaid Act of March 11, 1904, as 
amended, for oil and gas pipelines, pumping stations or tank sites shall 
not extend beyond a term of 20 years and may be extended for another 
period of not to exceed 20 years following the procedures set out in 
Sec. 169.19 of this part.
    (c) All oil or gas pipelines, including connecting lines, shall be 
buried a sufficient depth below the surface of the land so as not to 
interfere with cultivation. Whenever the line is laid under a road or 
highway, the right-of-way for which has been granted under an approved 
application pursuant to an act of Congress, its construction shall be in 
compliance with the applicable Federal and State laws; during the period 
of construction, at least one-half the width of the road shall be kept 
open to travel; and, upon completion, the road or highway shall be 
restored to its original condition and all excavations shall be 
refilled. Whenever the line crosses a ravine, canyon, or waterway, it 
shall be laid below the bed thereof or upon such superstructure as will 
not interfere with the use of the surface.
    (d) The size of the proposed pipeline must be shown in the 
application, on the maps, and in the engineer's affidavit and 
applicant's certificate. The application and maps shall specify whether 
the pipe is welded, screw-joint, dresser, or other type of coupling. 
Should the grantee of an approved right-of-way desire at any time to lay 
additional line or lines of pipe in the same trench, or to replace the 
original line with larger or smaller pipe, written permission must first 
be obtained from the Secretary and all damages to be sustained by the 
owners must be paid in advance in the amount fixed and determined by the 
Secretary.
    (e) Applicants for oil or gas pipeline rights-of-way may apply for 
additional land for pumping stations or tank sites. The maps shall show 
clearly the location of all structures and the location of all lines 
connecting with the main line. Applicants for lands for pumping stations 
or tank sites shall execute and file a stipulation agreeing as follows:
    (1) Upon abandonment of the right-of-way to level all dikes, fire-
guards, and excavations and to remove all concrete masonry foundations, 
bases, and structural works and to restore the land as nearly as may be 
possible to its original condition.
    (2) That a grant for pumping station or tank site purposes shall be 
subservient to the owner's right to remove or authorize the removal of 
oil, gas, or other mineral deposits; and that the structures for pumping 
station or tank site will be removed or relocated if necessary to avoid 
interference with the exploration for or recovery of oil, gas, or other 
minerals.
    (f) Purely lateral lines connecting with oil or gas wells on 
restricted lands may be constructed upon filing with the Secretary a 
copy of the written consent of the Indian owners and a blueprint copy of 
a map showing the location of the lateral. Such lateral lines may be of 
any diameter or length, but must be limited to those used solely for the 
transportation of oil or gas from a single tract of tribal or 
individually owned land to another lateral or to a branch of the main 
line.
    (g) The applicant, by accepting a pipeline right-of-way, thereby 
agrees that the books and records of the applicant shall be open to 
inspection by the Secretary at all reasonable times, in order to obtain 
information pertaining in any way to oil or gas produced from tribal or 
individually owned lands or other lands under the jurisdiction of the 
Secretary.



Sec. 169.26  Telephone and telegraph lines; radio, television, and 
other communications facilities.

    (a) The Act of February 15, 1901 (31 Stat. 790), as amended by the 
Act of March 4, 1940 (54 Stat. 41; 43 U.S.C. 959); the Act of March 4, 
1911 (36 Stat. 1253), as amended by the Act of May 27, 1952 (66 Stat. 
95; 43 U.S.C. 961); and the Act of March 3, 1901 (31 Stat. 1083; 25 
U.S.C. 319), authorize right-of-way grants across tribal, individually 
owned, and Government-owned land for telephone and telegraph lines and 
offices, for poles and lines for communication purposes, and for radio, 
television, and

[[Page 545]]

other forms of communication transmitting, relay, and receiving 
structures and facilities. Rights-of-way granted under these acts shall 
be subject to the provisions of this section as well as other pertinent 
sections of this part 169. Except when otherwise determined by the 
Secretary, rights-of-way granted for such purposes under the Act of 
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323--328), shall also be 
subject to the provisions of this section.
    (b) A right-of-way granted under the said Act of March 4, 1911, as 
amended, shall be limited to a term not exceeding 50 years from the date 
of the issuance of such grant.
    (c) No right-of-way shall be granted for a width in excess of 50 
feet on each side of the centerline, unless special requirements are 
clearly set forth in the application which fully justify a width in 
excess of 50 feet on each side of the centerline.
    (d) Applicants engaged in the general telephone and telegraph 
business may apply for additional land for office sites. The maps 
showing the location of proposed office sites shall be filed separately 
from those showing the line of route, and shall be drawn to a scale of 
50 feet to an inch. Such maps shall show enough of the line of route to 
indicate the position of the tract with reference thereto. The tract 
shall be located with respect to the public survey as provided in Sec. 
169.8, and all buildings or other structures shall be platted on a scale 
sufficiently large to show clearly their dimensions and relative 
positions.
    (e) Rights-of-way for poles and lines for communication purposes, 
and for radio, television, and other forms of communication 
transmitting, relay, and receiving structures and facilities, shall be 
limited to 200 feet on each side of the centerline of such lines and 
poles; radio and television, and other forms of communication 
transmitting, relay, and receiving structures and facilities shall be 
limited to an area not to exceed 400 feet by 400 feet.



Sec. 169.27  Power projects.

    (a) The Act of March 4, 1911 (36 Stat. 1253), as amended by the Act 
of May 27, 1952 (66 Stat. 95; 43 U.S.C. 961), authorizes right-of-way 
grants across tribal, individually owned and Government-owned land for 
electrical poles and lines for the transmission and distribution of 
electrical power. Rights-of-way granted under that act shall be subject 
to the provisions of this section as well as other pertinent sections of 
this part 169. Except when otherwise determined by the Secretary, 
rights-of-way granted for such purposes under the Act of February 5, 
1948 (62 Stat. 17; 25 U.S.C. 323--328) shall also be subject to the 
provisions of this section.
    (b) All applications, other than those made by power-marketing 
agencies of the Department of the Interior, for authority to survey, 
locate, or commence construction work on any project for the generation 
of electric power, or the transmission or distribution of electrical 
power of 66 kV or higher involving Government-owned lands shall be 
referred to the Office of the Assistant Secretary of the Interior for 
Water and Power Resources or such other agency as may be designated for 
the area involved, for consideration of the relationship of the proposed 
project to the power development program of the United States. Where the 
proposed project will not conflict with the program of the United 
States, the Secretary, upon notification to the effect, may then proceed 
to act upon the application. In the case of necessary changes respecting 
the proposed location, construction, or utilization of the project in 
order to eliminate conflicts with the power development program of the 
United States, the Secretary shall obtain from the applicant written 
consent to or compliance with such requirements before taking further 
action on the application.
    (c) A right-of-way granted under the said Act of March 4, 1911, as 
amended, shall be limited to a term not exceeding 50 years from the date 
of the issuance of such grant.
    (d) Rights-of-way for power lines shall be limited to those widths 
which can be justified and in no event shall exceed a width of 200 feet 
on each side of the centerline.
    (e) The applicant shall make provision, or bear the reasonable cost 
(as may be determined by the Secretary) of making provision, for 
avoiding inductive interference between any

[[Page 546]]

project transmission line or other project works constructed, operated, 
or maintained by it on the right-of-way authorized under the grant and 
any radio installation, telephone line, or other communication 
facilities now or hereafter constructed and operated by the United 
States or any agency thereof. This provision shall not relieve the 
applicant from any responsibility or requirement which may be imposed by 
other lawful authority for avoiding or eliminating inductive 
interference.
    (f) An applicant for a right-of-way for a transmission line across 
Government-owned lands having a voltage of 66 kV or more must, in 
addition to the stipulation required by Sec. 169.5, execute and file 
with its application a stipulation agreeing to accept the right-of-way 
grant subject to the following conditions:
    (1) The applicant agrees that, in the event it becomes necessary for 
the United States to acquire the applicant's transmission line or 
facilities constructed on or across such right-of-way, the United States 
reserves the right to acquire such line or facilities at a sum to be 
determined upon by a representative of the applicant, a representative 
of the Secretary of the Interior, and a third representative to be 
selected by the other two for the purpose of determining the value of 
such property thus to be acquired by the United States.
    (2) To allow the Department of the Interior to utilize for the 
transmission of electrical power any surplus capacity of the line in 
excess of the capacity needed by the holder of the grant for the 
transmission of electrical power in connection with the applicant's 
operations, or to increase the capacity of the line at the Department's 
expense and to utilize the increased capacity for the transmission of 
electrical power. Utilization by the Department of surplus or increased 
capacity shall be subject to the following terms and conditions:
    (i) When the Department desires to utilize surplus capacity thought 
to exist in a line, notification will be given to the applicant and the 
applicant shall furnish to the Department within 30 days a certificate 
stating whether the line has any surplus capacity not needed by the 
applicant for the transmission of electrical power in connection with 
the applicant's operations, and, if so, the extent of such surplus 
capacity.
    (ii) In order to utilize any surplus capacity certified by the 
applicant to be available, or any increased capacity provided by the 
Department at its own expense, the Department may interconnect its 
transmission facilities with the applicant's line in a manner 
conformable to approved standards of practice for the interconnection of 
transmission circuits.
    (iii) The expense of interconnection will be borne by the 
Department, and the Department will at all times provide and maintain 
adequate switching, relaying, and protective equipment so as to insure 
that the normal and efficient operation of the applicant's line will not 
be impaired.
    (iv) After any interconnection is completed, the applicant shall 
operate and maintain its line in good condition; and, except in 
emergencies, shall maintain in a closed position all connections under 
the applicant's control between the applicant's line and the 
interconnecting facilities provided by the Department.
    (v) The interconnected power systems of the Department and the 
applicant will be operated in parallel.
    (vi) The transmission of electrical power by the Department over the 
applicant's line will be effected in such manner and quantity as will 
not interfere unreasonably with the applicant's use and operation of the 
line in accordance with the applicant's normal operating standards, 
except that the Department shall have the exclusive right to utilize any 
increased capacity of the line which has been provided at the 
Department's expense.
    (vii) The applicant will not be obligated to allow the transmission 
over its line by the Department of electrical power to any person 
receiving service from the applicant on the date of the filing of the 
application for a grant, other than persons entitled to statutory 
preference in connection with the distribution and sale of electrical 
power by the Department.
    (viii) The Department will pay to the applicant an equitable share 
of the

[[Page 547]]

total monthly cost of maintaining and operating the part of the 
applicant's line utilized by the Department for the transmission of 
electrical power, the payment to be an amount in dollars representing 
the same proportion of the total monthly operation and maintenance cost 
of such part of the line as the maximum amount in kilowatts of the power 
transmitted on a scheduled basis by the Department over the applicant's 
line during the month bears to the total capacity in kilowatts of that 
part of the line. The total monthly cost may include interest and 
amortization, in accordance with the system of accounts prescribed by 
the Federal Power Commission, on the applicant's net total investment 
(exclusive of any investment by the Department) in the part of the line 
utilized by the Department.
    (ix) If, at any time subsequent to a certification by the applicant 
that surplus capacity is available for utilization by the Department, 
the applicant needs for the transmission of electrical power in 
connection with its operations the whole or any part of the capacity of 
the line theretofore certified as being surplus to its needs, the 
applicant may modify or revoke the previous certification by giving the 
Secretary of the Interior 30 months' notice, in advance, of the 
applicant's intention in this respect. After the revocation of a 
certificate, the Department's utilization of the particular line will be 
limited to the increased capacity, if any, provided by the Department at 
its expense.
    (x) If, during the existence of the grant, the applicant desires 
reciprocal accommodations for the transmission of electrical power over 
the interconnecting system of the Department to its line, such 
reciprocal accommodations will be accorded under terms and conditions 
similar to those prescribed in this paragraph with respect to the 
transmission by the Department of electrical power over the applicant's 
line.
    (xi) The terms and conditions prescribed in this paragraph may be 
modified at any time by means of a supplemental agreement negotiated 
between the applicant and the Secretary of the Interior or his designee.
    (g) Applicants may apply for additional lands for generating plants 
and appurtenant facilities. The lands desired for such purposes may be 
indicated on the maps showing the definite location of the right-of-way, 
but separate maps must be filed therefor. Such maps shall show enough of 
the line of route to indicate the position of the tract with respect to 
said line. The tract shall be located with respect to the public survey 
as provided in Sec. 169.8, and all buildings or other structures shall 
be platted on a scale sufficiently large to show clearly their 
dimensions and relative positions.

[33 FR 19803, Dec. 27, 1968, as amended at 38 FR 14680, June 4, 1973. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.28  Public highways.

    (a) The appropriate State or local authorities may apply under the 
regulations in this part 169 for authority to open public highways 
across tribal and individually owned lands in accordance with State 
laws, as authorized by the Act of March 3, 1901 (31 Stat. 1084; 25 
U.S.C. 311).
    (b) In lieu of making application under the regulations in this part 
169, the appropriate State or local authorities in Nebraska or Montana 
may, upon compliance with the requirements of the Act of March 4, 1915 
(38 Stat. 1188), lay out and open public highways in accordance with the 
respective laws of those States. Under the provisions of that act, the 
applicant must serve the Secretary with notice of intention to open the 
proposed road and must submit a map of definite location on tracing 
linen showing the width of the proposed road for the approval of the 
Secretary prior to the laying out and opening of the road.
    (c) Applications for public highway rights-of-way over and across 
roadless and wild areas shall be considered in accordance with the 
regulations contained in part 265 of this chapter.

[[Page 548]]



PART 170_INDIAN RESERVATION ROADS PROGRAM--Table of Contents




           Subpart A_Policies, Applicability, and Definitions

Sec.
170.1 What does this part do?
170.2 What is the IRR Program and BIA Road Maintenance Program policy?
170.3 When do other requirements apply to the IRR Program?
170.4 What is the effect of this part on existing tribal rights?
170.5 What definitions apply to this part?
170.6 Information collection.

    Subpart B_Indian Reservation Roads Program Policy and Eligibility

                Consultation, Collaboration, Coordination

170.100 What do the terms ``consultation, collaboration, and 
          coordination'' mean?
170.101 What is the IRR Program consultation and coordination policy?
170.102 How do the Departments consult, collaborate, and coordinate with 
          tribal governments?
170.103 What goals and principles guide the Secretaries?
170.104 Must the Secretary consult with tribal governments before 
          obligating IRR Program funds?
170.105 Are funds available for consultation, collaboration, and 
          coordination activities?
170.106 When must State governments consult with tribes?
170.107 Should planning organizations and local governments consult with 
          tribes when planning for transportation projects?
170.108 Should Indian tribes and BIA consult with States' planning 
          organizations and local governments in the development of 
          their IRRTIP?
170.109 How do the Secretaries prevent discrimination or adverse 
          impacts?
170.110 How can State and local governments prevent discrimination or 
          adverse impacts?
170.111 What can a tribe do if discrimination or adverse impacts occur?

                   Eligible Uses of IRR Program Funds

170.115 What activities may be funded with IRR Program funds?
170.116 What activities are not eligible for IRR Program funding?
170.117 How can a tribe determine whether a new use of funds is 
          allowable?

                  Use of IRR and Cultural Access Roads

170.120 What restrictions apply to the use of an Indian Reservation 
          Road?
170.121 What is a cultural access road?
170.122 Can a tribe close a cultural access road?

                     Seasonal Transportation Routes

170.123 What are seasonal transportation routes?
170.124 Does the IRR Program cover seasonal transportation routes?

                        IRR Housing Access Roads

170.127 What terms apply to access roads?
170.128 Are housing access roads and housing streets eligible for IRR 
          Program funding?

                   Toll, Ferry and Airport Facilities

170.130 How can tribes use Federal highway funds for toll and ferry 
          facilities?
170.131 How can a tribe find out more about designing and operating a 
          toll facility?
170.132 When can a tribe use IRR Program funds for airport facilities?

                     Recreation, Tourism and Trails

170.135 Can a tribe use Federal funds for its recreation, tourism, and 
          trails program?
170.136 How can a tribe obtain funds?
170.137 What types of activities can a recreation, tourism, and trails 
          program include?
170.138 Can roads be built in roadless and wild areas?

                        Highway Safety Functions

170.141 What Federal funds are available for a tribe's highway safety 
          activities?
170.142 How can tribes obtain funds to perform highway safety projects?
170.143 How can IRR Program funds be used for highway safety?
170.144 What are eligible highway safety projects?
170.145 Are other funds available for a tribe's highway safety efforts?

                           Transit Facilities

170.148 What is a tribal transit program?
170.149 How do tribes identify transit needs?
170.150 What Federal funds are available for a tribe's transit program?
170.151 May a tribe or BIA use IRR Program funds as matching funds?
170.152 What transit facilities and activities are eligible for IRR 
          Program funding?

                   IRR Program Coordinating Committee

170.155 What is the IRR Program Coordinating Committee?
170.156 What are the IRR Program Coordinating Committee's 
          responsibilities?

[[Page 549]]

170.157 What is the IRR Program Coordinating Committee's role in the 
          funding process?
170.158 How does the IRR Program Coordinating Committee conduct 
          business?

                Indian Local Technical Assistance Program

170.161 What is the Indian Local Technical Assistance Program?
170.162 How is the Indian LTAP funded?
170.163 How are Indian LTAP recipients selected?
170.164 How are tribal representatives nominated and chosen for the 
          selection committee?
170.165 May a tribe enter into a contract or agreement for Indian LTAP 
          funds?
170.166 What services do Indian LTAP centers provide?
170.167 How does a tribe obtain services from an Indian LTAP center?
170.168 Do Indian LTAP centers offer services similar to those of State 
          LTAPs?
170.169 What can a tribe do if Indian LTAP services are unsatisfactory?
170.170 How are Indian LTAP centers managed?
170.171 How are tribal advisory technical panel members selected?

       Indian LTAP-Sponsored Education and Training Opportunities

170.175 What Indian LTAP-sponsored transportation training and 
          educational opportunities exist?
170.176 Where can tribes get scholarships and tuition for Indian LTAP-
          sponsored education and training?

Appendix A to Subpart B--Allowable Uses of IRR Program Funds
Appendix B to Subpart B--Sources of Tribal Transportation Training and 
          Education Opportunities

           Subpart C_Indian Reservation Roads Program Funding

           Tribal Transportation Allocation Methodology (TTAM)

170.200 How does BIA allocate IRR Program funds?
170.201 How does BIA allocate and distribute tribal transportation 
          planning funds?
170.202 Does the Relative Need Distribution Factor allocate funding 
          among tribes?

                   IRR High Priority Project (IRRHPP)

170.205 What is an IRR High Priority Project (IRRHPP)?
170.206 How is an emergency/disaster defined?
170.207 What is the intent of IRRHPP emergency/disaster funding?
170.208 What funding is available for IRRHPP?
170.209 How will IRRHPP applications be ranked and funded?
170.210 How may a tribe apply for IRRHPP?
170.211 What is the IRRHPP Funding Priority List?
170.212 What is the timeline for IRRHPPs?
170.213 How long are IRRHPP funds available for a project?
170.214 How does award of an emergency/disaster project affect projects 
          on the FPL?

                      Population Adjustment Factor

170.220 What is the Population Adjustment Factor?
170.221 What funding is available for distribution using the PAF?

                    Relative Need Distribution Factor

170.223 What is the Relative Need Distribution Factor (RNDF)?

       IRR Inventory and Long-Range Transportation Planning (LRTP)

170.225 How does the LRTP process relate to the IRR Inventory?
170.226 How will this part affect the IRR Inventory?
170.227 How does BIA develop and use the IRR Inventory?
170.228 Are all facilities included in the IRR Inventory used to 
          calculate CTC?

                          General Data Appeals

170.231 May a tribe challenge the data BIA uses in the RNDF?
170.232 How does a tribe appeal a disapproval from the BIA Regional 
          Director?

                           Flexible Financing

170.300 May tribes use flexible financing to finance IRR transportation 
          projects?
170.301 Can a tribe use IRR Program funds to leverage other funds or pay 
          back loans?
170.302 Can BIA regional offices borrow IRR Program funds from each 
          other?
170.303 Can a tribe apply for loans or credit from a State 
          infrastructure bank?

Appendix A to Subpart C--IRR High Priority Project Scoring Matrix
Appendix B to Subpart C--Population Adjustment Factor
Appendix C to Subpart C--Relative Need Distribution Factor

[[Page 550]]

Appendix D to Subpart C--Cost To Construct

Subpart D_Planning, Design, and Construction of Indian Reservation Roads 
                           Program Facilities

                         Transportation Planning

170.400 What is the purpose of transportation planning?
170.401 What is BIA's role in transportation planning?
170.402 What is the tribal role in transportation planning?
170.403 What IRR Program funds can be used for transportation planning?
170.404 What happens when a tribe uses its IRR Program construction 
          funds for transportation planning?
170.405 Can tribal transportation planning funds be used for road 
          construction and other projects?
170.406 How must tribes use planning funds?
170.407 What happens to unobligated planning funds?

                   Long-Range Transportation Planning

170.410 What is the purpose of tribal long-range transportation 
          planning?
170.411 What can a long-range transportation plan include?
170.412 How is the tribal IRR long-range transportation plan developed 
          and approved?
170.413 What is the public role in developing the long-range 
          transportation plan?
170.414 How is the tribal long-range transportation plan used and 
          updated?
170.415 What is pre-project planning?

                   Transportation Improvement Program

170.420 What is the tribal priority list?
170.421 What is the Tribal Transportation Improvement Program (TTIP)?
170.422 What is the IRR Transportation Improvement Program (IRRTIP)?
170.423 How are projects placed on the IRRTIP?
170.424 How does the public participate in developing the IRRTIP?
170.425 How does BIA update the IRRTIP?
170.426 What is the approval process for the IRRTIP?
170.427 How may an IRRTIP be amended?
170.428 How is the State Transportation Improvement Program related to 
          the IRRTIP?

                             Public Hearings

170.435 How does BIA or the tribe determine the need for a public 
          hearing?
170.436 How are public hearings for IRR planning and projects funded?
170.437 How must BIA or a tribe inform the public when no hearing is 
          held?
170.438 How must BIA or a tribe inform the public when a hearing is 
          held?
170.439 How is a public hearing conducted?
170.440 How can the public learn the results of a public hearing?
170.441 Can a decision resulting from a hearing be appealed?

                              IRR Inventory

170.442 What is the IRR Inventory?
170.443 How can a tribe list a proposed transportation facility in the 
          IRR Inventory?
170.444 How is the IRR Inventory updated?
170.445 What is a strip map?

              Environmental and Archeological Requirements

170.450 What archeological and environmental requirements must the IRR 
          Program meet?
170.451 Can IRR Program funds be used for archeological and 
          environmental compliance?

                                 Design

170.454 What design standards are used in the IRR Program?
170.455 How are design standards used in IRR projects?
170.456 When can a tribe request an exception from the design standards?
170.457 Can a tribe appeal a denial?

       Review and Approval of Plans, Specifications, and Estimates

170.460 What must a project package include?
170.461 May a tribe approve plans, specifications, and estimates?
170.462 When may a self-determination contract or self-governance 
          agreement include PS&E review and approval?
170.463 What should the Secretary do if a design deficiency is 
          identified?

                Construction and Construction Monitoring

170.470 What are the IRR construction standards ?
170.471 How are projects administered?
170.472 What construction records must tribes and BIA keep?
170.473 What happens when a construction project ends?
170.474 Who conducts the project closeout?

                 Program Reviews and Management Systems

170.500 What program reviews do the Secretaries conduct?
170.501 What happens when the review process identifies areas for 
          improvement?
170.502 Are management systems required for the IRR Program?

[[Page 551]]

170.503 How are IRR Program management systems funded?

                            Bridge Inspection

170.504 When and how are bridge inspections performed?
170.505 How must bridge inspections be coordinated?
170.506 What are the minimum qualifications for certified bridge 
          inspectors?
170.507 Who reviews bridge inspection reports?

Appendix A to Subpart D--Cultural Resource and Environmental 
          Requirements for the IRR Program
Appendix B to Subpart D--Design Standards for the IRR Program

         Subpart E_Service Delivery for Indian Reservation Roads

                             Funding Process

170.600 What must BIA include in the notice of availability of funds?
170.601 What happens to the unused portion of IRR Program management and 
          oversight funds reserved by the Secretary?
170.602 If a tribe incurs unforeseen construction costs, can it get 
          additional funds?

                        Miscellaneous Provisions

170.605 When may BIA use force account methods in the IRR Program?
170.606 How do legislation and procurement requirements affect the IRR 
          Program?
170.607 Can a tribe use its allocation of IRR Program funds for contract 
          support costs?
170.608 Can a tribe pay contract support costs from Department of the 
          Interior or BIA appropriations?

                  Contracts and Agreements Under ISDEAA

170.610 What IRR Program functions may a tribe assume under ISDEAA?
170.611 What special provisions apply to ISDEAA contracts and 
          agreements?
170.612 How are non-contractible functions funded?
170.613 When does BIA determine the amount of funds needed for non-
          contractible non-project related functions?
170.614 Can a tribe receive funds before BIA publishes the notice of 
          funding availability?
170.615 Can a tribe receive advance payments for non-construction 
          activities?
170.616 How are advance payments made when additional IRR Program funds 
          are made available after execution of the self-governance 
          agreement?
170.617 May a tribe include a contingency in its proposal budget?
170.618 Can a tribe keep savings resulting from project administration?
170.619 Do tribal preference and Indian preference apply to IRR Program 
          funding?
170.620 How do ISDEAA's Indian preference provisions apply?
170.621 What if a tribe fails to substantially perform work under a 
          contract or agreement?
170.622 What IRR programs, functions, services, and activities are 
          subject to the self-governance construction regulations?
170.623 How are IRR Program projects and activities included in a self-
          governance agreement?
170.624 Is technical assistance available?
170.625 What regulations apply to waivers?
170.626 How does a tribe request a waiver of a Department of 
          Transportation regulation?

Appendix A to Subpart E--IRR Program functions that are not otherwise 
          contractible

             Subpart F_Program Oversight and Accountability

170.700 What is the IRR Program stewardship plan?
170.701 May a direct service tribe and BIA Region sign a Memorandum of 
          Understanding?
170.702 What activities may the Secretary review and monitor?

                     Subpart G_BIA Road Maintenance

170.800 Who owns IRR transportation facilities?
170.801 What is the BIA Road Maintenance Program?
170.802 How is road maintenance funded?
170.803 What facilities are eligible under the BIA Road Maintenance 
          Program?
170.804 How is BIA's Road Maintenance Program related to the IRR 
          Program?
170.805 What are the local, tribal, and BIA roles in transportation 
          facility maintenance?
170.806 What is an IRR Transportation Facilities Maintenance Management 
          System (IRR TFMMS)?
170.807 What must BIA include when it develops an IRR Transportation 
          Facilities Maintenance Management System?
170.808 Can BIA Road Maintenance Program funds be used to improve IRR 
          transportation facilities?
170.809 Can a tribe perform road maintenance under a self-determination 
          contract or self-governance agreement?
170.810 To what standards must an IRR transportation facility be 
          maintained?
170.811 What happens if lack of funds results in inadequate maintenance?
170.812 What is emergency maintenance?
170.813 When can access to IRR transportation facilities be restricted?

[[Page 552]]


Appendix A to Subpart G--List of Activities Eligible for Funding Under 
          BIA Transportation Facility Maintenance Program

                   Subpart H_Miscellaneous Provisions

               Hazardous and Nuclear Waste Transportation

170.900 What is the purpose of the provisions relating to transportation 
          of hazardous and nuclear waste?
170.901 What standards govern transportation of radioactive and 
          hazardous materials?
170.902 What is the role of State, tribal, and local governments?
170.903 Who notifies tribes of the transport of radioactive waste?
170.904 Who responds to an accident involving a radioactive or hazardous 
          materials shipment?
170.905 How can tribes obtain training in handling hazardous material?
170.906 Who cleans up radioactive and hazardous material spills?

              Reporting Requirements and Indian Preference

170.910 What information on the IRR Program or projects must BIA provide 
          to tribes?
170.911 Are Indians entitled to employment and training preferences?
170.912 Does Indian employment preference apply to Federal-aid Highway 
          Projects?
170.913 Do tribal-specific employment rights and contract preference 
          laws apply?
170.914 What is the difference between tribal employment preference and 
          Indian employment preference?
170.915 May tribal employment taxes or fees be included in an IRR 
          project budget?
170.916 May tribes impose taxes or fees on those performing IRR Program 
          services?
170.917 Can tribes receive direct payment of tribal employment taxes or 
          fees?

                            Emergency Relief

170.920 What is the purpose of the provisions relating to emergency 
          relief?
170.921 What emergency or disaster assistance programs are available?
170.922 How can States get Emergency Relief Program funds to repair IRR 
          System damage?
170.923 What qualifies for ERFO funding?
170.924 What happens if DOT denies an ERFO claim?
170.925 Is ERFO funding supplemental to IRR Program funding?
170.926 Can a tribe administer approved ERFO repairs under a self-
          determination contract or a self-governance agreement?
170.927 How can FEMA Program funds be used to repair damage?

                    Tribal Transportation Departments

170.930 What is a tribal transportation department?
170.931 Can tribes use IRR Program funds to pay tribal transportation 
          department operating costs?
170.932 Are there other funding sources for tribal transportation 
          departments?
170.933 Can tribes regulate oversize or overweight vehicles?

                           Resolving Disputes

170.934 Are alternative dispute resolution procedures available?
170.935 How does a direct service tribe begin the alternative dispute 
          resolution process?

                     Other Miscellaneous Provisions

170.941 May tribes become involved in transportation research?
170.942 Can a tribe use Federal funds for transportation services for a 
          tribe's Welfare-to-Work, Temporary Assistance to Needy 
          Families, and other quality-of-life improvement programs?

    Authority: Pub. L. 105-178, 112 Stat. 107; 5 U.S.C. 565; 23 U.S.C. 
101(a), 202, 204, 308; 25 U.S.C. 47, 25 U.S.C. 450.

    Source: 69 FR 43102, July 19, 2004, unless otherwise noted.



           Subpart A_Policies, Applicability, and Definitions



Sec. 170.1  What does this part do?

    This part provides rules and a funding formula for the Department of 
the Interior (DOI) in implementing the Indian Reservation Roads (IRR) 
Program. Included in this part are other Title 23 programs administered 
by the Secretary and implemented by tribes and tribal organizations 
under the Indian Self-Determination and Education Assistance Act of 
1975, as amended (ISDEAA).



Sec. 170.2  What is the IRR Program and BIA Road Maintenance Program 
policy?

    (a) It is the policy of the Secretary of the Interior and the 
Secretary of Transportation (Secretaries) to do the following in 
relation to the IRR and BIA Road Maintenance Programs:
    (1) Provide a uniform and consistent set of rules;
    (2) Foster knowledge of the programs by providing information about 
them and the opportunities that they create;

[[Page 553]]

    (3) Facilitate tribal planning, conduct, and administration of the 
programs;
    (4) Encourage the inclusion of these programs under self-
determination contracts or self-governance agreements;
    (5) Make available all contractible administrative functions under 
self-determination contracts or self-governance agreements; and
    (6) Implement policies, procedures, and practices in consultation 
with Indian tribes to ensure the letter, spirit, and goals of Federal 
transportation programs are fully implemented.
    (b) Where this part differs from provisions in the Indian Self-
Determination and Education Assistance Act of 1975 (ISDEAA), this part 
should advance the policy of increasing tribal autonomy and discretion 
in program operation.
    (c) This part is designed to enable Indian tribes to participate in 
all contractible IRR and BIA Road Maintenance programs. The Secretary of 
the Interior will afford Indian tribes the flexibility, information, and 
discretion to design roads programs under self-determination contracts 
and self-governance agreements to meet the needs of their communities 
consistent with this part.
    (d) The Secretaries recognize that programs, functions, services, 
and activities, regardless of how they are administered, are an exercise 
of Indian tribes' self-determination and self-governance.
    (1) The tribe is responsible for managing the day-to-day operation 
of its contracted Federal programs, functions, services, and activities.
    (2) The tribe accepts responsibility and accountability to the 
beneficiaries under self-determination contracts and self-governance 
agreements for:
    (i) Use of the funds; and
    (ii) Satisfactory performance of all activities funded under the 
contract or agreement.
    (3) The Secretary will continue to discharge the trust 
responsibilities to protect and conserve the trust resources of tribes 
and the trust resources of individual Indians.
    (e) The Secretary should interpret Federal laws and regulations to 
facilitate including programs covered by this part in the government-to-
government agreements authorized under ISDEAA.
    (f) The administrative functions referenced in paragraph (a)(5) of 
this section are contractible without regard to the organizational level 
within the Department of the Interior that carries out these functions. 
Including IRR Program administrative functions under self-determination 
contracts and self-governance agreements does not limit or reduce the 
funding for any program or service serving any other tribe.
    (g) The Secretary is not required to reduce funding for a tribe 
under these programs to make funds available to another tribe.
    (h) This part must be liberally construed for the benefit of tribes 
and to implement the Federal policy of self-determination and self-
governance.
    (i) Any ambiguities in this part must be construed in favor of the 
tribes so as to facilitate and enable the transfer of programs 
authorized by 23 U.S.C. 202 and title 25 U.S.C.



Sec. 170.3  When do other requirements apply to the IRR Program?

    IRR Program Policy and Guidance Manuals and directives apply to the 
IRR Program only if they are consistent with this part and 25 CFR parts 
900 and 1000. See 25 CFR part 900.5 for when a tribe must comply with 
other unpublished requirements.



Sec. 170.4  What is the effect of this part on existing tribal rights?

    This part does not:
    (a) Affect the sovereign immunity from suit enjoyed by tribes;
    (b) Terminate or reduce the trust responsibility of the United 
States to tribes or individual Indians;
    (c) Require a tribe to assume a program relating to the IRR Program; 
or
    (d) Impede awards by other agencies of the United States or a State 
to tribes to administer programs under any other law.



Sec. 170.5  What definitions apply to this part?

    AASHTO means the American Association of State Highway and 
Transportation Officials.

[[Page 554]]

    Annual Funding Agreement means a negotiated agreement of the 
Secretary to fund, on an annual basis, the programs, functions, 
services, and activities transferred to a tribe under the Indian Self-
Determination and Education Assistance Act, as amended.
    Appeal means a request by a tribe or consortium for an 
administrative review of an adverse agency decision.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BIADOT means the Bureau of Indian Affairs, Division of 
Transportation.
    BIA force account means the performance of work done by BIA 
employees.
    BIA Road System means the Bureau of Indian Affairs Road System under 
the IRR system. It includes those existing and proposed IRR's for which 
BIA has or plans to obtain legal right-of-way. BIA has the primary 
responsibility to improve and maintain the roads on this system.
    CFR means the United States Code of Federal Regulations.
    Construction means the supervising, inspecting, actual building, and 
incurrence of all costs incidental to the construction or reconstruction 
of an IRR transportation facility, as defined in 23 U.S.C. 101. This 
includes bond costs and other related costs of bonds or other debt 
financing instruments. It also includes costs incurred by the State in 
performing Federal-aid project related audits that directly benefit the 
Federal-aid highway program. The term includes--
    (1) Locating, surveying, and mapping (including establishing 
temporary and permanent geodetic markers in accordance with 
specifications of the U.S. Geological Survey);
    (2) Resurfacing, restoration, and rehabilitation;
    (3) Acquiring rights-of-way;
    (4) Providing relocation assistance; acquiring replacement housing 
sites; and acquiring, rehabilitating, relocating, and constructing 
replacement housing;
    (5) Eliminating hazards of railway grade crossings;
    (6) Eliminating roadside obstacles;
    (7) Making improvements that facilitate and control traffic flow, 
such as grade separation of intersections, widening lanes, channelizing 
traffic, installing traffic control systems, and establishing passenger 
loading and unloading areas; and
    (8) Making capital improvements that directly facilitate an 
effective vehicle weight enforcement program, such as scales (fixed and 
portable), scale pits, scale installation, and scale houses.
    Construction contract means a fixed price or cost reimbursement 
self-determination contract for a construction project, except that such 
term does not include any contract--
    (1) That is limited to providing planning services and construction 
management services (or a combination of such services);
    (2) For the housing improvement program or roads maintenance program 
of the BIA administered by the Secretary of the Interior; or
    (3) For the health facility maintenance and improvement program 
administered by the Secretary of Health and Human Services.
    Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to:
    (1) Secure meaningful tribal input and involvement in the decision-
making process; and
    (2) Advise the tribe of the final decision and provide an 
explanation.
    Contract means a self-determination contract as defined in section 
4(j) of ISDEAA or a procurement document issued under Federal or tribal 
procurement acquisition regulations.
    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 shall carry over to the next business day unless 
otherwise prohibited by law.
    Design means services performed by licensed design professionals 
related to preparing drawings, specifications, and other design 
submissions specified in the contract or agreement, as well as services 
provided by or for licensed design professionals during the bidding/
negotiating, construction, and operational phases of the project.
    DOI means the Department of the Interior.

[[Page 555]]

    FHWA means the Federal Highway Administration of the Department of 
Transportation.
    FTA means the Federal Transit Administration of the Department of 
Transportation.
    Governmental subdivision of a tribe means a unit of a federally-
recognized tribe which is authorized to participate in an IRR Program 
activity on behalf of the tribe.
    Indian means a person who is a member of a Tribe or as otherwise 
defined in 25 U.S.C. 450b.
    Indian Reservation Road (IRR) means a public road that is located 
within or provides access to an Indian reservation or Indian trust land, 
or restricted Indian land that is not subject to fee title alienation 
without the approval of the Federal government, or Indian or Alaska 
Native Villages, groups, or communities in which Indians and Alaska 
Natives reside, whom the Secretary of the Interior has determined are 
eligible for services generally available to Indians under Federal laws 
specifically applicable to Indians.
    IRR Bridge Program means the program authorized under 23 U.S.C. 
202(d)(4) using IRR Program funds for the improvement of deficient IRR 
highway bridges.
    IRR Inventory means a comprehensive database of all transportation 
facilities eligible for IRR Program funding by tribe, reservation, BIA 
agency and region, Congressional district, State, and county. Other 
specific information collected and maintained under the IRR Program 
includes classification, route number, bridge number, current and future 
traffic volumes, maintenance responsibility, and ownership.
    IRR Program means a part of the Federal Lands Highway Program 
established in 23 U.S.C. 204 to address transportation needs of tribes.
    IRR Program construction funds means the pool of funds BIA 
distributes according to the Relative Need Distribution Factor.
    IRR Program funds means the funds covered in chapter 2 of title 23 
U.S.C. and the associated program management costs. These funds are used 
for:
    (1) Transportation planning, research, and engineering; and
    (2) Construction of highways, roads, parkways, or transit facilities 
within or providing access to Indian lands, communities, and Alaska 
Native villages.
    IRR Program management and oversight funds means those funds 
authorized by Congress to pay the cost of performing IRR Program 
management activities.
    IRR System means all the roads and bridges that comprise the IRR.
    IRR transportation facilities means public roads, bridges, drainage 
structures, culverts, ferry routes, marine terminals, transit 
facilities, boardwalks, pedestrian paths, trails, and their 
appurtenances, and other transportation facilities as designated by the 
tribe and the Secretary.
    IRR Transportation Improvement Program (IRRTIP) means a list 
developed by BIA of projects programmed for construction in the next 3 
to 5 years.
    ISDEAA means the Indian Self-Determination and Education Assistance 
Act of 1975, Public Law 93-638, as amended.
    Maintenance means the preservation of the entire highway, including 
surface, shoulders, roadsides, structures, and such traffic-control 
devices as are necessary for safe and efficient utilization of the 
highway.
    NBI means the national bridge inventory, which is the database of 
structural and appraisal data collected to fulfill the requirements of 
the National Bridge Inspection Standards, as defined in 23 CFR part 650, 
subpart C. Each State and BIA must maintain an inventory of all bridges 
that are subject to the NBI standards and provide this data to the 
Federal Highway Administration (FHWA). The NBI is maintained and 
monitored by the FHWA Office of Bridge Technology.
    Office of Self-Governance (OSG) means the office within the Office 
of the Assistant Secretary--Indian Affairs, Department of the Interior, 
that is responsible for implementing and developing tribal self-
governance.
    Program means any program, function, service, activity, or portion 
thereof.
    Project Planning means project-related activities that precede the 
design

[[Page 556]]

phase of a transportation project. Examples of these activities are: 
Collecting data on traffic, accidents, or functional, safety or 
structural deficiencies; corridor studies; conceptual studies, 
environmental studies; geotechnical studies; archaeological studies; 
project scoping; public hearings; location analysis; preparing 
applications for permits and clearances; and meetings with facility 
owners and transportation officials.
    Proposed road means a road which does not currently exist and needs 
to be constructed.
    Public Authority means a Federal, State, county, town, or township, 
Indian tribe, municipal, or other local government or instrumentality 
with authority to finance, build, operate, or maintain toll or toll-free 
facilities.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Real Property means any interest in land together with the 
improvements, structures, and fixtures and appurtenances.
    Regionally significant project means a project that modifies a 
facility that serves regional transportation needs and would normally be 
included in the modeling of a metropolitan area's transportation 
network. The term includes work on principal arterial highways and all 
fixed guideway transit facilities that offer a significant alternative 
to regional highway travel. (``Regional transportation needs'' includes 
access to and from the area outside of the region; major planned 
developments such as new retail malls, sports complexes, etc.; or 
transportation terminations, as well as most terminals themselves).
    Rehabilitation means the work required to restore the structural 
integrity of transportation facilities as well as work necessary to 
correct safety defects.
    Relocation means the adjustment of transportation facilities and 
utilities required by a highway project. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring necessary right-of-way on the new location; moving, 
rearranging or changing the type of existing facilities; and taking any 
necessary safety and protective measures. It also means constructing a 
replacement facility that is both functionally equivalent to the 
existing facility and necessary for continuous operation of the utility 
service, the project economy, or sequence of highway construction.
    Relocation Services means payment and assistance authorized by the 
Uniform Relocation and Real Property Acquisitions Policy Act, 42 U.S.C. 
4601 et seq., as amended.
    Rest area means an area or site established and maintained within or 
adjacent to the highway right-of-way or under public supervision or 
control for the convenience of the traveling public.
    Secretaries means the Secretary of the Interior and the Secretary of 
Transportation.
    Secretary means the Secretary of the Interior or her/his designee 
authorized to act on behalf of the Secretary.
    Secretary of Transportation means the Secretary of Transportation or 
a designee authorized to act on behalf of the Secretary.
    State transportation agency means that department, commission, 
board, or official of any State charged by its laws with the 
responsibility for highway construction. The term ``State'' would be 
considered equivalent to ``State transportation agency'' if the context 
so implies.
    STIP means Statewide Transportation Improvement Program. It is a 
financially constrained, multi-year list of transportation projects. The 
STIP is developed under 23 U.S.C. 134 and 135, and 49 U.S.C. 5303-5305. 
The Secretary of Transportation reviews and approves the STIP for each 
State.
    Transit means services, equipment, and functions associated with the 
public movement of people served within a community or network of 
communities.
    Transportation planning means developing land use, economic 
development, traffic demand, public safety, health and social strategies 
to meet transportation current and future needs.
    Tribal transportation planning funds means funds referenced in 23 
U.S.C. 204(j).

[[Page 557]]

    Tribe means any tribe, nation, band, pueblo, rancheria,colony, or 
community, including any Alaska Native village or regional or village 
corporation as defined or established under the Alaska Native Claims 
Settlement Act that is federally recognized by the U.S. government for 
special programs and services provided by the Secretary to Indians 
because of their status as Indians.
    TTIP means Tribal Transportation Improvement Program. It is a multi-
year financially constrained list of proposed transportation projects 
developed by a tribe from the tribal priority list or the long-range 
transportation plan.
    U.S.C. means the United States Code.



Sec. 170.6  Information Collection.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget under 44 U.S.C. et 
seq. and assigned clearance number 1076-0161. This information 
collection is specifically found in subparts C and D of this part and 
represent a total reporting burden to the public of 31,470 hours or an 
average of 56.5 hours per respondent. A Federal agency may not conduct 
or sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
Comments and suggestions on the burden estimate or any other aspect of 
the form should be sent directly to the Office of Management and Budget; 
Attention: Interior Desk Officer; Washington, DC 20503; and a copy of 
the comments should be sent to the Information Collection Clearance 
Officer, Bureau of Indian Affairs, 1849 C Street, NW., Washington, DC 
20240.



    Subpart B_Indian Reservation Roads Program Policy and Eligibility

                Consultation, Collaboration, Coordination



Sec. 170.100  What do the terms ``consultation, collaboration, and 
coordination'' mean?

    (a) Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to:
    (1) Secure meaningful tribal input and involvement in the decision-
making process; and
    (2) Advise the tribe of the final decision and provide an 
explanation.
    (b) Collaboration means that all parties involved in carrying out 
planning and project development work together in a timely manner to 
achieve a common goal or objective.
    (c) Coordination means that each party:
    (1) Shares and compares in a timely manner its transportation plans, 
programs, projects, and schedules with the related plans, programs, 
projects, and schedules of the other parties; and
    (2) Adjusts its plans, programs, projects, and schedules to optimize 
the efficient and consistent delivery of transportation projects and 
services.



Sec. 170.101  What is the IRR Program consultation and coordination 
policy?

    (a) The IRR Program's government-to-government consultation and 
coordination policy is to foster and improve communication, cooperation, 
and coordination among tribal, Federal, state, and local governments and 
other transportation organizations when undertaking the following, 
similar, or related activities:
    (1) Identifying high-accident locations and locations for improving 
both vehicle and pedestrian safety;
    (2) Developing State, metropolitan, regional, IRR, and tribal 
transportation improvement programs that impact tribal lands, 
communities, and members;
    (3) Developing short- and long-range transportation plans;
    (4) Developing IRR Program transportation projects;
    (5) Developing environmental mitigation measures necessary to 
protect and/or enhance Indian lands and the environment, and counteract 
the impacts of the projects;
    (6) Developing plans or projects to replace or rehabilitate 
deficient IRR bridges;
    (7) Developing plans or projects for disaster and emergency relief 
response

[[Page 558]]

and the repair of eligible damaged IRR transportation facilities;
    (8) Assisting in the development of State and tribal agreements 
related to the IRR Program;
    (9) Developing and improving transit systems serving Indian lands 
and communities; and
    (10) Assisting in the submission of discretionary grant applications 
for State and Federal funding for IRR transportation facilities.
    (b) Tribes and State and Federal Government agencies may enter into 
intergovernmental Memoranda of Agreement (MOA) to streamline and 
facilitate consultation, collaboration, and coordination.



Sec. 170.102  How do the Departments consult, collaborate, and 
coordinate with tribal governments?

    The Department of the Interior and the Department of Transportation 
operate within a government-to-government relationship with federally 
recognized tribes. As a critical element of this relationship, these 
agencies should assess the impact of Federal transportation policies, 
plans, projects, and programs on tribal rights and interests to ensure 
that these rights and concerns are appropriately considered.



Sec. 170.103  What goals and principles guide the Secretaries?

    When undertaking transportation activities affecting tribes, the 
Secretaries should, to the maximum extent permitted by law:
    (a) Establish regular and meaningful consultation and collaboration 
with affected tribal governments, including facilitating the direct 
involvement of tribal governments in short- and long-range Federal 
transportation planning efforts;
    (b) Promote the rights of tribal governments to govern their own 
internal affairs;
    (c) Promote the rights of tribal governments to receive direct 
transportation services from the Federal Government or to enter into 
agreements to directly operate any tribally related transportation 
programs serving tribal members;
    (d) Ensure the continuation of the trust responsibility of the 
United States to tribes and Indian individuals;
    (e) Reduce the imposition of unfunded mandates upon tribal 
governments;
    (f) Encourage flexibility and innovation in the implementation of 
the IRR Program;
    (g) Reduce, streamline, and eliminate unnecessarily restrictive 
transportation policies, guidelines, or procedures;
    (h) Ensure that tribal rights and interests are appropriately 
considered during program development;
    (i) Ensure that the IRR Program is implemented consistent with 
tribal sovereignty and the government-to-government relationship; and
    (j) Consult with, and solicit the participation of, tribes in the 
development of the annual BIA budget proposals.



Sec. 170.104  Must the Secretary consult with tribal governments before 
obligating IRR Program funds?

    Yes. Before obligating IRR program funds on any project that is for 
direct service activities, the Secretary must consult with the affected 
tribe to determine the tribal preferences concerning the project. The 
Secretary must provide information in accordance with Sec. 170.600 
within 30 days of the Notice of Availability of Funds publication in the 
Federal Register.



Sec. 170.105  Are funds available for consultation, collaboration, and 
coordination activities?

    To fund consultation, collaboration, and coordination of IRR Program 
activities, tribes may use:
    (a) The tribes' IRR Program allocations;
    (b) Tribal Priority Allocation (TPA) funds;
    (c) Administration for Native Americans (ANA) funds;
    (d) Economic Development Administration (EDA) funds;
    (e) United States Department of Agriculture (USDA) Rural Development 
funds;
    (f) Community Development Block Grant (CDBG) funds; Indian Housing 
Block Grant (IHBG) funds;
    (g) Indian Health Service Tribal Management Grant (IHSTMG) funds;

[[Page 559]]

    (h) General funds of the tribal government; and
    (i) Any other funds available for the purpose of consultation, 
collaboration, and coordination activities.



Sec. 170.106  When must State governments consult with tribes?

    Each State must develop the State Transportation Improvement Program 
(STIP) in consultation with tribes and BIA in those areas under Indian 
tribal jurisdiction. This includes providing for a fully coordinated 
transportation planning process that coordinates transportation planning 
efforts carried out by the State with transportation planning efforts 
carried out by tribes. The statewide and metropolitan planning 
organization requirements are in 23 U.S.C. 134 and 135. Regulations can 
be found at 23 CFR part 450.



Sec. 170.107  Should planning organizations and local governments 
consult with tribes when planning for transportation projects?

    Yes. The Department's policy is to foster and improve communication, 
cooperation, and coordination among metropolitan planning organizations 
(MPOs), regional planning organizations (RPOs), local governments, 
municipal governments, and tribes on transportation matters of common 
concern. Accordingly, planning organizations and local governments 
should consult with tribal governments when planning for transportation 
projects.



Sec. 170.108  Should Indian tribes and BIA consult with States' planning 
organizations and local governments in the development of their IRRTIP?

    Yes.
    (a) All regionally significant IRR Program projects must be:
    (1) Developed in cooperation with State and metropolitan planning 
organizations; and
    (2) Included in appropriate Federal Lands Highway Program 
transportation improvement programs for inclusion in state and 
metropolitan plans.
    (b) BIA and tribes are encouraged to consult with States, 
metropolitan and regional planning organizations, and local and 
municipal governments, on transportation matters of common concern.



Sec. 170.109  How do the Secretaries prevent discrimination or adverse 
impacts?

    In administering the IRR Program, the Secretaries ensure that 
nondiscrimination and environmental justice principles are integral 
program elements. The Secretaries consult with tribes early in the 
program development process to identify potential discrimination and to 
recommend corrective actions to avoid disproportionately high and 
adverse effects on tribes and Native American populations.



Sec. 170.110  How can State and local governments prevent discrimination 
or adverse impacts?

    (a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and 
local government officials should consult and work with tribes early in 
the development of programs to:
    (1) Identify potential discrimination; and
    (2) Recommend corrective actions to avoid disproportionately high 
and adverse effects on tribes and Native American populations.
    (b) Examples of adverse effects include, but are not limited to:
    (1) Impeding access to tribal communities or activities;
    (2) Creating excessive access to culturally or religiously sensitive 
areas;
    (3) Negatively affecting natural resources, trust resources, tribal 
businesses, religious, and cultural sites;
    (4) Harming indigenous plants and animals; and
    (5) Impairing the ability of tribal members to engage in commercial, 
cultural, and religious activities.



Sec. 170.111  What can a tribe do if discrimination or adverse impacts 
occur?

    If discrimination or adverse impacts occur, a tribe should take the 
following steps in the order listed:
    (a) Take reasonable steps to resolve the problem directly with the 
State or local government involved;
    (b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as 
appropriate, to report the problem and

[[Page 560]]

seek assistance in resolving the problem.

                   Eligible Uses if IRR Program Funds



Sec. 170.115  What activities may be funded with IRR Program funds?

    (a) IRR Program funds may be used:
    (1) For all of the items listed in appendix A to this subpart;
    (2) For other purposes identified in this part; or
    (3) For other purposes recommended by the IRR Program Coordinating 
Committee under the procedures in Appendix A to Subpart B (35) and Sec. 
170.156 and approved by FHWA or BIA pursuant to Sec. 170.117.
    (b) Each of the items listed in Appendix A must be interpreted in a 
manner that permits, rather than prohibits, a proposed use of funds.



Sec. 170.116  What activities are not eligible for IRR Program funding?

    IRR Program funds cannot be used for any of the following:
    (a) Routine maintenance work such as: grading shoulders and ditches; 
cleaning culverts; snow removal, roadside mowing, normal sign repair and 
replacement, painting roadway structures, and the maintaining, cleaning, 
or repair of bridge appurtenances;
    (b) Structures and erosion protection unrelated to transportation 
and roadways;
    (c) General reservation planning not involving transportation;
    (d) Landscaping and irrigation systems not involving transportation 
programs and projects;
    (e) Work performed on projects that are not included on an FHWA-
approved IRR Transportation Improvement Program (TIP), unless otherwise 
authorized by the Secretary of the Interior and the Secretary of 
Transportation;
    (f) Purchase of equipment unless authorized by Federal law or in 
this part; or
    (g) Condemnation of land for recreational trails.



Sec. 170.117  How can a tribe determine whether a new use of funds is 
allowable?

    (a) A tribe that proposes new uses of IRR Program funds must ask BIA 
in writing whether the proposed use is eligible under Federal law. The 
tribe must also provide a copy of its inquiry to FHWA.
    (1) In cases involving eligibility questions that refer to 25 
U.S.C., BIA will determine whether the new proposed use of IRR Program 
funds is allowable and provide a written response to the requesting 
tribe within 45 days of receiving the written inquiry. Tribes may appeal 
a denial of a proposed use by BIA under 25 CFR part 2. The address is: 
Department of the Interior, BIA, Division of Transportation, 1849 C 
Street, NW., MS 4058-MIB, Washington, DC 20240.
    (2) In cases involving eligibility questions that refer to the IRR 
Program or 23 U.S.C., BIA will refer an inquiry to FHWA for decision. 
FHWA must provide a written response to the requesting tribe within 45 
days of receiving the written inquiry from the tribe. Tribes may appeal 
denials of a proposed use by the FHWA to: FHWA, 400 7th St., SW., HFL-1, 
Washington, DC 20590.
    (b) To the extent practical, the deciding agency must consult with 
the IRR Program Coordinating Committee before denying a request. BIA and 
FHWA will send copies of all eligibility determinations to the IRR 
Program Coordinating Committee and BIA Regional offices.
    (c) If either BIA or FHWA fails to issue the requesting tribe a 
timely response to the eligibility inquiry, the proposed use will be 
deemed to be allowable for that specific project.

                  Use of IRR and Cultural Access Roads



Sec. 170.120  What restrictions apply to the use of an Indian 
Reservation Road?

    Indian Reservation Roads (IRRs) must be open and available for 
public use. However, the public authority having jurisdiction over these 
roads may:
    (a) Restrict road use or close roads temporarily when required for 
public safety, fire prevention or suppression, fish or game protection, 
low load capacity bridges, prevention of damage to unstable roadbeds, or 
as contained in Sec. Sec. 170.122 and 170.813;
    (b) Conduct engineering and traffic analysis to determine maximum 
speed

[[Page 561]]

limits, maximum vehicular size, and weight limits, and identify needed 
traffic control devices; and
    (c) Erect, maintain, and enforce compliance with signs and pavement 
markings.



Sec. 170.121  What is a cultural access road?

    (a) A cultural access road is a public road that provides access to 
sites for cultural purposes as defined by individual tribal traditions, 
which 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.
    (b) A tribal government may unilaterally designate a tribal road as 
a cultural access road. A cultural access road designation is an 
entirely voluntary and internal decision made by the tribe to help it 
and other public authorities manage, protect, and preserve access to 
locations that have cultural significance.
    (c) In order for a tribal government to designate a non-tribal road 
as a cultural access road, it must enter into an agreement with the 
public authority having jurisdiction over the road.
    (d) Cultural access roads may be included in the IRR Inventory if 
they meet the definition of an IRR.



Sec. 170.122  Can a tribe close a cultural access road?

    (a) A tribe with jurisdiction over a cultural access road can close 
it. The tribe can do this:
    (1) During periods when the tribe or tribal members are involved in 
cultural activities; and
    (2) In order to protect the health and safety of the tribal members 
or the general public.
    (b) Cultural access roads designated through an agreement with a 
public authority may only be closed according to the provisions of the 
agreement. See Sec. 170.121(c).

                     Seasonal Transportation Routes



Sec. 170.123  What are seasonal transportation routes?

    Seasonal transportation routes are non-recreational transportation 
routes in the IRR Inventory that provide access to Indian communities or 
villages and may not be open for year-round use. They include snowmobile 
trails, ice roads, and overland winter roads.



Sec. 170.124  Does the IRR Program cover seasonal transportation routes?

    Yes. IRR Program funds can be used to build seasonal transportation 
routes and a tribe may request that BIA include seasonal transportation 
routes in the IRR Inventory.
    (a) Standards for seasonal transportation routes are found in the 
design standards identified in appendix B to subpart D. A tribe can also 
develop or adopt standards that are equal to or exceed these standards.
    (b) Construction of a seasonal transportation route requires a 
right-of-way or use permit.

                        IRR Housing Access Roads



Sec. 170.127  What terms apply to access roads?

    (a) IRR housing access road means a public road on the IRR System 
that provides access to a housing cluster.
    (b) IRR housing street means a public road on the IRR System that 
provides access to adjacent homes within a housing cluster.
    (c) Housing cluster means three or more existing or proposed housing 
units.



Sec. 170.128  Are housing access roads and housing streets eligible for 
IRR Program funding?

    Yes. IRR housing access roads and housing streets on public rights-
of-way are eligible for construction, reconstruction, and rehabilitation 
funding under the IRR Program. Tribes, following the transportation 
planning process as required in subpart D, may include housing access 
roads and housing street projects on the Tribal Transportation 
Improvement Program (TTIP). IRR Program funds are available after the 
projects are listed on the FHWA-approved IRRTIP.

[[Page 562]]

                   Toll, Ferry and Airport Facilities



Sec. 170.130  How can tribes use Federal highway funds for toll and ferry 
facilities?

    (a) A tribe can use Federal-aid highway funds, including IRR Program 
funds, to study, design, construct, and operate toll highways, bridges, 
and tunnels, as well as ferry boats and ferry terminal facilities. The 
following table shows how a tribe can initiate construction of these 
facilities.

------------------------------------------------------------------------
  To initiate construction of a . . .           A tribe must . . .
------------------------------------------------------------------------
(1) Toll highway, bridge, or tunnel....  (i) Meet and follow the
                                          requirements set forth in 23
                                          U.S.C. 129; and
                                         (ii) If IRR Program funds are
                                          used, enter into a self-tunnel
                                          governance agreement or self-
                                          determination contract with
                                          the Secretary of the Interior.
(2) Ferry boat or ferry terminal.......  Meet and follow the
                                          requirements set forth in 23
                                          U.S.C. 129(c).
------------------------------------------------------------------------

    (b) A tribe can use IRR Program funds to fund 100 percent of the 
conversion or construction of a toll facility.
    (c) If a tribe obtains non-IRR Program Federal funding for the 
conversion or construction of a toll facility, these funds will cover a 
maximum of 80 percent of the project cost. In this case, the tribe may 
use IRR Program funds for the required 20 percent local match.



Sec. 170.131  How can a tribe find out more about designing and 
operating a toll facility?

    Information on designing and operating a toll highway, bridge or 
tunnel is available from the International Bridge, Tunnel and Turnpike 
Association. The Association publishes a variety of reports, statistics, 
and analyses. The Web site is located at http://www.ibtta.org. 
Information is also available from FHWA.



Sec. 170.132  When can a tribe use IRR Program funds for airport 
facilities?

    (a) A tribe can use IRR Program funds for construction of airport 
and heliport access roads, if the access roads are open to the public.
    (b) A tribe cannot use IRR Program funds to construct or improve 
runways, airports or heliports. Funds for these uses are available under 
the Airport Improvement Program (AIP) from the Federal Aviation 
Administration (FAA). (See FAA Advisory Circular No. 150/5370-10A.)

                     Recreation, Tourism and Trails



Sec. 170.135  Can a tribe use Federal funds for its recreation, 
tourism, and trails program?

    Yes. A tribe, tribal organization, tribal consortium, or BIA may use 
IRR Program funds for recreation, tourism, and trails programs if the 
programs are included in the IRRTIP. Additionally, the following Federal 
programs for recreation, tourism, and trails are possible sources of 
Federal funding:
    (a) IRR Program (23 U.S.C. 204);
    (b) Surface Transportation Program--Transportation Enhancement (23 
U.S.C. 133);
    (c) National Scenic Byway Program (23 U.S.C. 162);
    (d) Recreational Trails Program (23 U.S.C. 206);
    (e) National Highway System (23 U.S.C. 104);
    (f) Public Lands Discretionary Program (23 U.S.C. 204);
    (g) Other funding from other Federal departments; and
    (h) Other funding that Congress may authorize and appropriate.



Sec. 170.136  How can a tribe obtain funds?

    (a) To receive funding for programs that serve recreation, tourism, 
and trails' goals, a tribe should:
    (1) Identify a program meeting the eligibility guidelines for the 
funds and have it ready for development; and
    (2) Have a viable project ready for improvement or construction, 
including necessary permits.
    (b) FHWA provides Federal funds to the States for recreation, 
tourism, and

[[Page 563]]

trails under 23 U.S.C. 104, 133, 162, 204, and 206. States solicit 
proposals from tribes and local governments in their transportation 
planning process. A tribe may ask:
    (1) To administer these programs under the State's locally 
administered project program; or
    (2) That for projects that are otherwise contractible under Public 
Law 93-638 (25 U.S.C. 450 et seq.), that the State return the funds to 
FHWA and have them transferred to BIA for tribal self-determination 
contracts or self-governance agreements under ISDEAA.
    (c) Congress provides funds under 23 U.S.C. 205 and 214 for 
activities for Federal agencies. A tribe can contract with all agencies 
within the Department of the Interior under ISDEAA for this work.
    (d) In order to use National Scenic Byway funds, the project must be 
on a road designated as a State or Federal scenic byway.
    (e) In order to expend non-IRR Program Federal funds for its 
recreation, tourism, and trails programs, a tribe must ensure that the 
project is on an approved TIP or STIP.



Sec. 170.137  What types of activities can a recreation, tourism, and 
trails program include?

    (a) The following are examples of activities that tribes and tribal 
organizations may perform under a recreation, tourism, and trails 
program:
    (1) Transportation planning for tourism and recreation travel;
    (2) Adjacent vehicle parking areas;
    (3) Development of tourist information and interpretative signs;
    (4) Provision for non-motorized trail activities including 
pedestrians and bicycles;
    (5) Provision for motorized trail activities including all terrain 
vehicles, motorcycles, snowmobiles, etc.;
    (6) Construction improvements that enhance and promote safe travel 
on trails;
    (7) Safety and educational activities;
    (8) Maintenance and restoration of existing recreational trails;
    (9) Development and rehabilitation of trailside and trailhead 
facilities and trail linkage for recreational trails;
    (10) Purchase and lease of recreational trail construction and 
maintenance equipment;
    (11) Safety considerations for trail intersections;
    (12) Landscaping and scenic enhancement (see 23 U.S.C. 319);
    (13) Bicycle Transportation and pedestrian walkways (see 23 U.S.C. 
217); and
    (14) Trail access roads.
    (b) The items listed in paragraph (a) of this section are not the 
only activities that are eligible for recreation, tourism, and trails 
funding. The funding criteria may vary with the specific requirements of 
the programs.
    (c) Tribes may use IRR Program funds for any activity that is 
eligible for Federal funding under any provision of title 23 U.S.C.



Sec. 170.138  Can roads be built in roadless and wild areas?

    Under 25 CFR part 265 no roads can be built in roadless and wild 
areas on Indian reservations.

                        Highway Safety Functions



Sec. 170.141  What Federal funds are available for a tribe's highway 
safety activities?

    Federal funds available for a tribe's highway safety activities 
include, but are not limited to, the following which may be amended, 
repealed, or added to:
    (a) The tribes' IRR Program allocations under 23 U.S.C. 204;
    (b) Highway Safety Program funds under 23 U.S.C. 402;
    (c) Occupant protection program funds under 23 U.S.C. 405;
    (d) Alcohol traffic safety program funds under 23 U.S.C. 408;
    (e) Alcohol-impaired driver countermeasures under 23 U.S.C. 410;
    (f) Funding for highway safety activities from the U.S. Department 
of Health and Human Services (HHS);
    (g) Indian Highway Safety Program 25 CFR 181; and
    (h) Other funding that Congress may authorize and appropriate.



Sec. 170.142  How can tribes obtain funds to perform highway safety 
projects?

    There are two methods to obtain National Highway Traffic Safety 
Administration (NHTSA) and other FHWA

[[Page 564]]

safety funds for highway safety projects:
    (a) FHWA provides safety funds to BIA under 23 U.S.C. 402. BIA 
annually solicits proposals from tribes for use of these funds. 
Proposals are processed under 25 CFR part 181. Tribes may obtain a 
contract or agreement under ISDEAA for these projects.
    (b) FHWA provides funds to the States under 23 U.S.C. 402, 405, 408, 
and 410. States annually solicit proposals from tribes and local 
governments. Tribes may request:
    (1) To administer these programs under the State's locally 
administered project program; or
    (2) That for projects that are otherwise contractible under Public 
Law 93-638 (25 U.S.C. 450 et seq.), that the State return the funds to 
FHWA and have them transferred to BIA for tribal self-determination 
contracts or self-governance agreements under ISDEAA.



Sec. 170.143  How can IRR Program funds be used for highway safety?

    A tribe, tribal organization, tribal consortium, or BIA may fund 
projects to improve highway safety. Those projects that are not fully 
funded by the BIA-administered Indian Highway Safety Program must be 
incorporated into the FHWA-approved IRRTIP if IRR Program funds are used 
to complete funding of the project.



Sec. 170.144  What are eligible highway safety projects?

    The following are examples of activities that can be considered as 
highway safety projects:
    (a) Highway alignment improvement;
    (b) Bridge widening;
    (c) Pedestrian paths/sidewalks and bus shelters;
    (d) Installation and replacement of signs when designated as, or 
made part of, a highway safety project;
    (e) Construction improvements that enhance and promote safe travel 
on IRRs, such as guardrail construction and traffic markings;
    (f) Development of a safety management system;
    (g) Education and outreach highway safety programs, such as use of 
child safety seats, defensive driving, and Mothers Against Drunk 
Drivers;
    (h) Development of a highway safety plan designed to reduce traffic 
accidents and deaths, injuries, and property damage;
    (i) Collecting data on traffic-related deaths, injuries and 
accidents;
    (j) Impaired driver initiatives;
    (k) Child safety seat programs; and
    (l) Purchasing necessary specific traffic enforcement equipment, 
such as radar equipment, breathalyser, video cameras.



Sec. 170.145  Are other funds available for a tribe's highway safety 
efforts?

    Yes. Tribes may seek grant and program funding for highway safety 
activities from appropriate Federal, state, and local agencies and 
private grant organizations.

                           Transit Facilities



Sec. 170.148  What is a tribal transit program?

    A tribal transit program is the planning, administration, 
acquisition, and operation and maintenance of a system associated with 
the public movement of people served within a community or network of 
communities on or near Indian reservations, lands, villages, 
communities, and pueblos.



Sec. 170.149  How do tribes identify transit needs?

    Tribes identify transit needs during the tribal transportation 
planning process (see subpart D). Transit projects using IRR Program 
funds must be included in the FHWA-approved IRRTIP.



Sec. 170.150  What Federal funds are available for a tribe's transit 
program?

    Title 23 U.S.C. authorizes the use of IRR Program funds for transit 
facilities as defined in this part. Additionally, there are many sources 
of Federal funds that may help support tribal transit programs. These 
include the Federal programs listed in this section. Note that each 
program has its own terms and conditions of assistance. For further 
information on these programs and their use for transit, contact the

[[Page 565]]

FTA Regional Transit Assistance Program (RTAP) National Transit Resource 
Center at http://www.ctaa.org/ntrc.
    (a) U.S. Department of Agriculture (USDA): community facilities 
loans; rural development loans; business and industrial loans; rural 
enterprise grants; commerce, public works and economic development 
grants; and economic adjustment assistance.
    (b) U.S. Department of Housing and Urban Development (HUD): 
community development block grants, supportive housing, tribal housing 
loan guarantees, resident opportunity and support services.
    (c) U.S. Department of Labor: Native American employment and 
training, welfare-to-work grants.
    (d) DOT: Welfare-to-Work, Indian Reservation Roads Program, 
transportation and community and systems preservation, Federal transit 
capital improvement grants, public transportation for non-urbanized 
areas, capital assistance for elderly and disabilities transportation, 
education, and Even Start.
    (e) HHS: programs for Native American elders, community service 
block grants, job opportunities for low-income individuals, Head Start 
(capital or operating), administration for Native Americans programs, 
Medicaid, HIV Care Grants, Healthy Start, and the Indian Health Service.



Sec. 170.151  May a tribe or BIA use IRR Program funds as matching funds?

    (a) A tribe may use 23 U.S.C. 204 IRR Program funds provided under a 
self-determination contract or self-governance agreement to meet 
matching or cost participation requirements for any Federal or non-
Federal transit grant or program.
    (b) BIA may use 23 U.S.C. 204 IRR Program funds to pay local 
matching funds for transit facilities and transit activities funded 
under 23 U.S.C. 104.



Sec. 170.152  What transit facilities and activities are eligible for 
IRR Program funding?

    Transit facilities and activities eligible for IRR Program funding 
include, but are not limited to:
    (a) Acquiring, constructing, supervising or inspecting new, used or 
refurbished equipment, buildings, facilities, buses, vans, water craft, 
and other vehicles for use in mass transportation;
    (b) Transit-related intelligent transportation systems;
    (c) Rehabilitating, remanufacturing, and overhauling a transit 
vehicle;
    (d) Preventive maintenance;
    (e) Leasing transit vehicles, equipment, buildings, and facilities 
for use in mass transportation;
    (f) Third-party contracts for otherwise eligible transit facilities 
and activities;
    (g) Mass transportation improvements that enhance economic and 
community development, such as bus shelters in shopping centers, parking 
lots, pedestrian improvements, and support facilities that incorporate 
other community services;
    (h) Passenger shelters, bus stop signs, and similar passenger 
amenities;
    (i) Introduction of new mass transportation technology;
    (j) Provision of fixed route, demand response services, and non-
fixed route paratransit transportation services (excluding operating 
costs) to enhance access for persons with disabilities;
    (k) Radio and communication equipment to support tribal transit 
programs; and
    (l) Transit capital project activities authorized by 49 U.S.C. 5302 
(a)(1).

                   IRR Program Coordinating Committee



Sec. 170.155  What is the IRR Program Coordinating Committee?

    (a) Under this part, the Secretaries will establish an IRR Program 
Coordinating Committee that:
    (1) Provides input and recommendations to BIA and FHWA in developing 
IRR Program policies and procedures; and
    (2) Supplements government-to-government consultation by 
coordinating with and obtaining input from tribes, BIA, and FHWA.
    (b) The Committee consists of 12 tribal regional representatives 
(one from each BIA Region) and two non-voting Federal representatives 
(FHWA and BIA). The Secretary of the Interior will select one alternate 
tribal member

[[Page 566]]

from each BIA Region to attend committee meetings in the absence of the 
regional representative.
    (c) The Secretary must select regional tribal representatives and 
alternates from nominees officially selected by the region's tribes.
    (1) To the extent possible, the Secretary must make the selection so 
that there is representation from a broad cross-section of large, 
medium, and small tribes.
    (2) Each tribal representative must be a tribal governmental 
official or employee with authority to act for the tribal government.
    (d) For purposes of continuity, the Secretary will appoint the 
initial tribal representative and alternate from each BIA region to 
either a 1-, 2-, or 3-year term so that only one-third of the tribal 
representatives and alternates change every year. Thereafter, all 
appointments must be for a term of 3 years.
    (e) The Secretary of the Interior will provide guidance regarding 
the replacement of representatives should the need arise.



Sec. 170.156  What are the IRR Program Coordinating Committee's 
responsibilities?

    (a) Committee responsibilities are to provide input and 
recommendations to BIA and FHWA during the development or revision of:
    (1) BIA/FHWA IRR Program Stewardship Plan;
    (2) IRR Program policy and procedures;
    (3) IRR Program eligible activities determination;
    (4) IRR Program transit policy;
    (5) IRR Program regulations;
    (6) IRR Program management systems policy and procedures;
    (7) IRR Program fund distribution formula (as outlined in Sec. 
170.157); and
    (8) National tribal transportation needs.
    (b) The Committee may establish work groups to carry out its 
responsibilities; and
    (c) The Committee also reviews and provides recommendations on IRR 
Program national concerns (including the implementation of this part) 
brought to its attention.



Sec. 170.157  What is the IRR Program Coordinating Committee's role 
in the funding process?

    The Committee's role is to provide input and recommendations to BIA 
and FHWA regarding:
    (a) New IRR Inventory Data Format and Form;
    (b) Simplified Cost to Construct (CTC) Methodology (including 
formula calculations, formula program and design, and bid tab 
methodology);
    (c) Cost Elements;
    (d) Over-Design Issues;
    (e) Inflation Impacts on $1 Million Cap for IRRHPP and Emergency 
Projects (including the IRRHPP Ranking System and emergency/disaster 
expenditures report); and
    (f) The impact of including funded but non-constructed projects in 
the CTC calculation.



Sec. 170.158  How does the IRR Program Coordinating Committee conduct 
business?

    The Committee holds at least two meetings a year. Additional 
Committee meetings may be called with the consent of one-third of the 
Committee members or by BIA or FHWA. The Committee conducts business at 
its meetings as follows:
    (a) A quorum consists of eight Committee members of which a majority 
must be tribal committee members.
    (b) The Committee will operate by consensus or majority vote, as 
determined by the Committee in its protocols.
    (c) Any Committee member can submit an agenda item to the Chair.
    (d) The Committee will work through a committee-approved annual work 
plan and budget.
    (e) Annually, the Committee must elect from among the Committee 
membership a Chair, a Vice-Chair, and other officers. These officers 
will be responsible for preparing for and conducting Committee meetings 
and summarizing meeting results. These officers will also have other 
duties that the Committee may prescribe.
    (f) The Committee must keep the Secretary and the tribes informed 
through an annual accomplishment report provided within 90 days after 
the end of each fiscal year.

[[Page 567]]

    (g) The Committee's budget will be funded through the IRR Program 
management and oversight funds, not to exceed $150,000 annually.

                Indian Local Technical Assistance Program



Sec. 170.161  What is the Indian Local Technical Assistance Program?

    The Indian Local Technical Assistance Program (Indian LTAP) is 
authorized under 23 U.S.C. 504(b), and Sec. Sec. 170.161 through 
170.176 are provided for information only. The Program assists tribal 
governments and other IRR Program participants in extending their 
technical capabilities by providing them greater access to 
transportation technology, training, and research opportunities.



Sec. 170.162  How is the Indian LTAP funded?

    FHWA uses Highway Trust Funds to fund the Indian LTAP. BIA may use 
IRR Program management and oversight funds for Indian LTAP centers. 
These funds may be used to operate Indian LTAP centers and to develop 
training materials and products for these centers. The Indian LTAP 
centers should apply for supplemental funding from other sources to 
accommodate their needs.



Sec. 170.163  How are Indian LTAP recipients selected?

    (a) FHWA announces Indian LTAP grant, cooperative agreement, and 
contracting opportunities in the Federal Register. The announcements 
state that tribal governments, a consortium of tribal governments, State 
transportation departments, or universities are eligible for these 
awards; indicate the funds available; and provide eligibility criteria.
    (b) FHWA sends the information in paragraph (a) of this section to 
BIA for distribution to tribal governments and consortia. BIA must 
provide written notice to tribal governments and consortia.
    (c) A selection committee of Federal and tribal representatives (see 
Sec. 170.164) reviews the proposals of eligible applicants and 
recommends award recipients. FHWA selects and notifies award recipients 
consistent with applicable law.



Sec. 170.164  How are tribal representatives nominated and chosen for 
the selection committee?

    In its written notice to tribal governments announcing opportunities 
under the Indian LTAP, FHWA requests nominations within each Indian 
LTAP's service area for representatives to serve on the selection 
committee. Forty-five days after receiving the request for nominations, 
FHWA will notify tribal governments of the nominees for the service 
area. Each tribe then has 30 days to notify FHWA of its selection from 
the nominees.



Sec. 170.165  May a tribe enter into a contract or agreement for Indian 
LTAP funds?

    Yes. If selected for an award as an Indian LTAP Center, a tribe will 
enter into a cooperative agreement with the FHWA and be subject to the 
guidelines of the agreement.



Sec. 170.166  What services do Indian LTAP centers provide?

    (a) Indian LTAP centers provide transportation technology transfer 
services, including education, training, technical assistance and 
related support services to tribal governments and IRR Program 
participants. Indian LTAPs will:
    (1) Develop and expand tribal expertise in road and transportation 
areas;
    (2) Improve IRR Program performance;
    (3) Enhance tribal transportation planning, project selection, 
transit and freight programs;
    (4) Develop transportation training and technical resource materials 
and present workshops;
    (5) Improve tribal tourism and recreational travel programs;
    (6) Help tribes deal more effectively with transportation-related 
problems by developing and sharing tribal transportation technology and 
traffic safety systems and information with other transportation 
agencies;
    (7) Operate Indian technical centers in cooperation with State 
transportation departments and universities;
    (8) Provide technical assistance on transportation technology and 
enhance

[[Page 568]]

new technology implementation in cooperation with the private sector;
    (9) Develop educational programs to encourage and motivate interest 
in transportation careers among Native American students; and
    (10) Act as information clearinghouses for tribal governments and 
Indian-owned businesses on transportation-related topics.
    (b) Unless otherwise stated in an Indian LTAP agreement, an Indian 
technical assistance program center must, at a minimum:
    (1) Maintain a current mailing list including, at a minimum, each 
tribe and IRR Program participant within the service area;
    (2) Publish a quarterly newsletter and maintain a Web site;
    (3) Conduct or coordinate 10 workshops per year;
    (4) Maintain a library of technical publications and video tapes;
    (5) Provide technical assistance to IRR Program participants;
    (6) Hold two advisory committee meetings a year;
    (7) Develop a yearly action plan in consultation with the advisory 
committee;
    (8) Coordinate with State LTAPs, other Indian technical centers, 
Rural Technical Assistance Program (RTAP) centers, tribal governments, 
and local planning and transportation agencies to share and exchange 
publications, videotapes, training material, and conduct joint 
workshops;
    (9) Consult with tribes and IRR Program participants concerning 
technical assistance and training desired; and
    (10) Prepare an annual report and distribute this report to service 
area tribes.



Sec. 170.167  How does a tribe obtain services from an Indian LTAP 
center?

    A tribe that wants to obtain services should contact the Indian LTAP 
center serving its service area or its BIA regional road engineer. 
Information about the centers and the services provided can be found on 
the World Wide Web at the following address: http://www.ltap.org.



Sec. 170.168  Do Indian LTAP centers offer services similar to those 
of State LTAPs?

    Yes. However, Indian LTAP centers are primarily responsible for 
increasing the capacity of tribal governments to administer 
transportation programs. State LTAPs also provide services to local and 
rural governments, including tribal governments. Indian LTAP centers 
should coordinate education and training opportunities with State LTAP 
centers to maximize resources.



Sec. 170.169  What can a tribe do if Indian LTAP services are 
unsatisfactory?

    A tribal government can address concerns over quality of services to 
the Indian LTAP Center Director, FHWA, and BIA. If the center does not 
adequately address these concerns in writing within 30 calendar days, 
the tribal government may request any or all of the following:
    (a) A special meeting with the Center's Director and staff to 
address the concern;
    (b) A review of the Center's performance by FHWA and BIA or;
    (c) Services from other Indian LTAP centers.



Sec. 170.170  How are Indian LTAP centers managed?

    (a) Each Indian LTAP center is managed by its Center Director and 
staff, with the advice of its technical panel under the Indian LTAP 
agreements. FHWA, BIA, and tribes review the performance of the Indian 
LTAP centers.
    (b) Each Indian LTAP center has a technical panel consisting of one 
BIA Regional Road Engineer, one FHWA representative, one state DOT 
representative, and at least five tribal representatives from the 
service area. The technical panel may, among other activities:
    (1) Recommend center policies;
    (2) Review and approve the annual action plan for submission to FHWA 
for approval;
    (3) Provide direction on the areas of technical assistance and 
training;
    (4) Review and approve the annual report for submission to FHWA for 
approval;

[[Page 569]]

    (5) Develop recommendations for improving center operation services 
and budgets; and
    (6) Assist in developing goals and plans for obtaining or using 
supplemental funding.
    (c) The technical panel must meet at least twice a year. Tribal 
representatives may request IRR Program funding to cover the cost of 
participating in these committee meetings.



Sec. 170.171  How are tribal advisory technical panel members selected?

    (a) The Indian LTAP center requests nominations from tribal 
governments and consortia within the service area for tribal 
transportation representatives to serve on the technical panel.
    (b) Tribes from the service area select tribal panel members from 
those nominated.

       Indian LTAP-Sponsored Education and Training Opportunities



Sec. 170.175  What Indian LTAP-sponsored transportation training and 
educational opportunities exist?

    There are many programs and sources of funding that provide tribal 
transportation training and education opportunities. Each program has 
its own terms and conditions of assistance. For further information on 
these programs and their use for tribal transportation education and 
training opportunities, contact the regional Indian LTAP center or BIA 
regional road engineer. Appendix B to this subpart contains a list of 
programs and funding sources.



Sec. 170.176  Where can tribes get scholarships and tuition for Indian 
LTAP-sponsored education and training?

    Tribes can get tuition and scholarship assistance for Indian LTAP-
sponsored education and training from the following sources:
    (a) Indian LTAP centers;
    (b) BIA-appropriated funds (for approved training); and
    (c) IRR Program funds (for education and training opportunities and 
technical assistance programs related to developing skills for 
performing IRR Program activities).

      Appendix A to Subpart B--Allowable Uses of IRR Program Funds

    A. IRR Program funds can be used for the following planning and 
design activities:
    1. Planning and design of IRR transit facilities eligible for IRR 
construction funding.
    2. Planning and design of IRR roads and bridges.
    3. Planning and design of transit facilities that provide access to 
or are located within an Indian reservation or community.
    4. Transportation planning activities, including planning for 
tourism and recreational travel.
    5. Development, establishment, and implementation of tribal 
transportation management systems such as safety, bridge, pavement, and 
congestion management.
    6. Tribal transportation plans and transportation improvement 
programs (TIPS).
    7. Coordinated technology implementation program (CTIP) projects.
    8. Traffic engineering and studies.
    9. Identification and evaluation of accident prone locations.
    10. Tribal transportation standards.
    11. Preliminary engineering studies.
    12. Interagency program/project formulation, coordination and 
review.
    13. Environmental studies and archeological investigations directly 
related to transportation programs and projects.
    14. Costs associated with obtaining permits and/or complying with 
tribal, Federal, state, and local environmental, archeological and 
natural resources regulations and standards.
    15. Development of natural habitat and wetland conservation and 
mitigation plans, including plans authorized under the Water Resources 
Development Act of 1990, 104 Stat. 4604 (Water Resources Development 
Act).
    16. Architectural and landscape engineering services related to 
transportation programs.
    17. Engineering design related to transportation programs, including 
permitting activities.
    18. Inspection of bridges and structures.
    19. Indian local technical assistance program (LTAP) centers.
    20. Highway and transit safety planning, programming, studies and 
activities.
    21. Tribal employment rights ordinance (TERO) fees.
    22. Purchase or lease of advanced technological devices used for 
transportation planning and design activities such as global positioning 
units, portable weigh-in-motion systems, hand held data collection 
units, related hardware and software, etc.
    23. Planning, design and coordination for Innovative Readiness 
Training projects.
    24. Transportation planning and project development activities 
associated with border crossings on or affecting tribal lands.

[[Page 570]]

    25. Public meetings and public involvement activities.
    26. Leasing or rental of equipment used in transportation planning 
or design programs.
    27. Transportation-related technology transfer activities and 
programs.
    28. Educational activities related to bicycle safety.
    29. Planning and design of mitigation of damage to wildlife, 
habitat, and ecosystems caused by a transportation project.
    30. Evaluation of community impacts such as land use, mobility, 
access, social, safety, psychological, displacement, economic, and 
aesthetic impacts.
    31. Acquisition of land and interests in land required for right-of-
way, including control of access thereto from adjoining lands, the cost 
of appraisals, cost of examination and abstract of title, the cost of 
certificate of title, advertising costs, and any fees incidental to such 
acquisition.
    32. Cost associated with relocation activities including financial 
assistance for displaced businesses or persons and other activities as 
authorized by law.
    33. On the job education including classroom instruction and pre-
apprentice training activities related to transportation planning.
    34. Other eligible activities as approved by FHWA.
    35. Any additional activities identified by IRR Program Coordinating 
Committee guidance and approved by the appropriate Secretary (see Sec. 
170.156).
    36. Indirect general and administrative costs; and
    37. Other eligible activities described in this part.
    B. IRR Program funds can be used for the following construction and 
improvement activities:
    1. Construction, reconstruction, rehabilitation, resurfacing, 
restoration, and operational improvements for IRR roads and highway 
bridges including bridges and structures under 20 feet in length, 
including the replacement of low-water crossings, regardless of length, 
with bridges.
    2. Construction or reconstruction of IRR roads and bridges necessary 
to accommodate other transportation modes.
    3. Construction of toll roads, highway bridges and tunnels, and toll 
and non-toll ferry boats and terminal facilities, and approaches thereto 
(except when on the Interstate System) to the extent permitted under 23 
U.S.C. 129.
    4. Construction of projects for the elimination of hazards at 
railway-highway crossings, including the separation or protection of 
grades at crossings, the reconstruction of existing railroad grade 
crossing structures, and the relocation of highways to eliminate grade 
crossings.
    5. Installation of protective devices at railway-highway crossings.
    6. Transit facilities, whether publicly or privately owned, that 
serve Indian reservations and other communities or that provide access 
to or are located within an Indian reservation or community (see 
Sec. Sec. 170.148 through 170.152 for additional information).
    7. Engineered pavement overlays that add to the structural value and 
design life or increase the skid resistance of the pavement.
    8. Tribally-owned, post-secondary vocational school roads and 
bridges.
    9. Road sealing.
    10. Double bituminous surface and chip seals that are part of a 
predefined stage of construction or form the final surface of low volume 
roads.
    11. Seismic retrofit, replacement, rehabilitation, and painting of 
highway bridges.
    12. Application of calcium magnesium acetate, sodium acetate/
formate, or other environmentally acceptable, minimally corrosive anti-
icing and de-icing compositions on highway bridges, and approaches 
thereto and other elevated structures.
    13. Installation of scour countermeasures for highway bridges and 
other elevated structures.
    14. Special pedestrian facilities built in lieu of streets or roads, 
where standard street or road construction is not feasible.
    15. Interpretive signs, standard traffic regulatory and guide signs 
that are culturally relevant (native language, symbols, etc.) that are a 
part of transportation projects.
    16. Traffic barriers and bridge rails.
    17. Engineered spot safety improvements.
    18. Planning and development of rest areas, recreational trails, 
parking areas, sanitary facilities, water facilities, and other 
facilities that accommodate the traveling public.
    19. Public approach roads and interchange ramps that meet the 
definition of an Indian reservation road.
    20. Construction of roadway lighting and traffic signals.
    21. Adjustment or relocation of utilities directly related to 
roadway work, not required to be paid for by local utility companies.
    22. Conduits crossing under the roadway to accommodate utilities 
that are part of future development plans.
    23. Restoration of borrow and gravel pits created by projects funded 
from the IRR Program.
    24. Force account and day labor work, including materials and 
equipment rental, being performed in accordance with approved plans and 
specifications.
    25. Experimental features where there is a planned monitoring and 
evaluation schedule.
    26. Capital and operating costs for traffic monitoring, management, 
and control facilities and programs.
    27. Safely accommodating the passage of vehicular and pedestrian 
traffic through construction zones.

[[Page 571]]

    28. Construction engineering including contract/project 
administration, inspection, and testing.
    29. Construction of temporary and permanent erosion control, 
including landscaping and seeding of cuts and embankments.
    30. Landscape and roadside development features.
    31. Marine terminals as intermodal linkages.
    32. Construction of visitor information centers, kiosks, and related 
items.
    33. Other appropriate public road facilities such as visitor centers 
as determined by the Secretary of Transportation.
    34. Facilities adjacent to roadways to separate pedestrians and 
bicyclists from vehicular traffic for operational safety purposes, or 
special trails on separate rights-of-way.
    35. Construction of pedestrian walkways and bicycle transportation 
facilities, such as a new or improved lane, path, or shoulder for use by 
bicyclists and a traffic control device, shelter, or parking facility 
for bicycles.
    36. Facilities adjacent to roadways to separate modes of traffic for 
safety purposes.
    37. Acquisition of scenic easements and scenic or historic sites 
provided they are part of an approved project or projects.
    38. Debt service on bonds or other debt financing instruments issued 
to finance IRR construction and project support activities.
    39. Any project to encourage the use of carpools and vanpools, 
including provision of carpooling opportunities to the elderly and 
individuals with disabilities, systems for locating potential riders and 
informing them of carpool opportunities, acquiring vehicles for carpool 
use, designating existing highway lanes as preferential carpool highway 
lanes, providing related traffic control devices, and designating 
existing facilities for use for preferential parking for carpools.
    40. Fringe and corridor parking facilities including access roads, 
buildings, structures, equipment improvements, and interests in land.
    41. Adjacent vehicular parking areas.
    42. Costs associated with obtaining permits and/or complying with 
tribal, Federal, state, and local environmental, archeological, and 
natural resources regulations and standards on IRR projects.
    43. Seasonal transportation routes, including snowmobile trails, ice 
roads, overland winter roads, and trail markings. (See Sec. Sec. 
170.123 through 170.124.)
    44. Tribal fees such as employment taxes (TERO), assessments, 
licensing fees, permits, and other regulatory fees.
    45. On the job education including classroom instruction and pre-
apprentice training activities related to IRR construction projects such 
as equipment operations, surveying, construction monitoring, testing, 
inspection and project management.
    46. Installation of advance technological devices on IRR 
transportation facilities such as permanent weigh-in-motion systems, 
informational signs, intelligent transportation system hardware, etc.
    47. Tribal, cultural, historical, and natural resource monitoring, 
management and mitigation.
    48. Mitigation activities required by tribal, state, or Federal 
regulatory agencies and 42 U.S.C. 4321, et seq., the National 
Environmental Policy Act (NEPA).
    49. Leasing or rental of construction equipment.
    50. Coordination and construction materials for innovative readiness 
training projects such as the Department of Defense (DOD), the American 
Red Cross, the Federal Emergency Management Agency (FEMA), etc.
    51. Emergency repairs on IRR roads, bridges, trails, and seasonal 
transportation routes.
    52. Public meetings and public involvement activities.
    53. Construction of roads on dams and levees.
    54. Transportation enhancement activities as defined in 23 U.S.C. 
101(a).
    55. Modification of public sidewalks adjacent to or within IRR 
transportation facilities.
    56. Highway and transit safety infrastructure improvements and 
hazard eliminations.
    57. Transportation control measures such as employer-based 
transportation management plans, including incentives, shared-ride 
services, employer-sponsored programs to permit flexible work schedules 
and other activities, other than clause (xvi) listed in section 
108(f)(1)(A) of the Clean Air Act, (42 U.S.C. 7408(f)(1)(A)).
    58. Necessary environmental restoration and pollution abatement.
    59. Trail development and related activities as identified in 
Sec. Sec. 170.135-170.138.
    60. Development of scenic overlooks and information centers.
    61. Natural habitat and wetlands mitigation efforts related to IRR 
road and bridge projects, including:
    a. Participation in natural habitat and wetland mitigation banks, 
including banks authorized under the Water Resources Development Act, 
and
    b. Contributions to tribal, statewide and regional efforts to 
conserve, restore, enhance, and create natural habitats and wetland, 
including efforts authorized under the Water Resources Development Act.
    62. Mitigation of damage to wildlife, habitat and ecosystems caused 
as a result of a transportation project.
    63. Construction of permanent fixed or moveable structures for snow 
or sand control.
    64. Cultural access roads.

[[Page 572]]

    65. Other eligible items as approved by the Federal Highway 
Administration (FHWA).
    66. Any additional activities identified by IRR Program Coordinating 
Committee and approved by the appropriate Secretary (see Sec. 170.156).
    67. Other eligible activities described in this part.

 Appendix B to Subpart B--Sources of Tribal Transportation Training and 
                         Education Opportunities

    The following is a list of some of the many governmental sources for 
tribal transportation training and education opportunities. There may be 
other non-governmental, tribal, or private sources not listed here.

1. National Highway Institute training courses and fellowships
2. State and local technical assistance program workshops
3. Indian local technical assistance program workshops
4. FHWA and FTA Research Fellowships
5. Dwight David Eisenhower Transportation Fellowship (23 U.S.C. 504)
6. Intergovernmental personnel agreement assignments
7. BIA transportation cooperative education program
8. BIA force account operations
9. Federal Transit Administration workshops
10. State Departments of Transportation
11. Federal-aid highway construction and technology training including 
skill improvement programs under 23 U.S.C. 140 (b)(c)
12. Other funding sources identified in Sec. 170.150 (Transit)
13. Department of Labor work force development
14. Indian Employment, Training, and Related Services Demonstration Act, 
Public Law 102-477
15. Garrett Morgan Scholarship (FHWA)
16. NTRC--National Transit Resource Center
17. CTER--Council for Tribal Employment Rights
18. BIA Indian Highway Safety Program
19. FHWA/STIPDG and NSTISS Student Internship Programs (Summer 
Transportation Internship Program for Diverse Groups and National Summer 
Transportation Institute for Secondary Students)
20. Environmental Protection Agency (EPA)
21. Department of Commerce (DOC)
22. Department of Housing and Urban Development Community Planning and 
Development



           Subpart C_Indian Reservation Roads Program Funding

           Tribal Transportation Allocation Methodology (TTAM)



Sec. 170.200  How does BIA allocate IRR Program funds?

    This section sets forth the Tribal Transportation Allocation 
Methodology (TTAM) that BIA uses to allocate IRR Program funds. After 
appropriate statutory and regulatory set-asides, as well as other 
takedowns, the remaining funds are allocated as follows:

[[Page 573]]

[GRAPHIC] [TIFF OMITTED] TR19JY04.001

    (a) A statutorily determined percentage to a tribal transportation 
planning program (under 23 U.S.C. 204(j)); and
    (b) The remainder to a pool of funds designated as ``Remaining 
funding available for distribution.'' This ``Remaining funding available 
for distribution'' pool is further allocated as follows:
    (1) 5 percent to a discretionary pool for IRR High Priority Projects 
(IRRHPP); and
    (2) 95 percent to pool for distribution by the following Relative 
Need Distribution Factor (RNDF) as defined in Sec. 170.223:

(50 percent Cost to Construct + 30 percent Vehicle Miles Traveled + 20 
percent Population)

    (3) If the annual authorization is greater than $275 million, then 
the amount above $275 million, after appropriate statutory and 
regulatory set-asides, as well as other takedowns are applied, will be 
allocated as follows:
    (i) 12.5 percent to the IRRHPP (Sec. 170.205);
    (ii) 12.5 percent to the Population Adjustment Factor (PAF) (Sec. 
170.220); and
    (iii) 75 percent to the RNDF (Sec. 170.223).



Sec. 170.201  How does BIA allocate and distribute tribal transportation 
planning funds?

    Upon request of a tribal government and approval by the BIA Regional 
Office, BIA allocates tribal transportation planning funds described in 
Sec. 170.403 pro rata according to the tribes' relative need percentage 
from the RNDF described in Sec. 170.223. The tribal transportation 
planning funds will be distributed in accordance with the BIA procedures 
for self-governance tribes that negotiate tribal transportation planning 
in their annual funding agreements and to BIA Regional Offices for all 
other tribes.



Sec. 170.202  Does the Relative Need Distribution Factor allocate 
funding among tribes?

    Yes. The RNDF determines the amount of funding available to allocate

[[Page 574]]

to the tribes for their approved IRR projects and activities under 23 
U.S.C. 202(d)(2). The IRR Program construction funds are allocated pro 
rata according to the tribes' relative need percentage from the Funding 
Formula.
    (a) The IRR Program construction funds will be distributed in 
accordance with the BIA procedures for self-governance tribes that 
negotiate IRR construction projects into their AFA, and distributed to 
BIA Regional Offices for all other tribes.
    (b) In order for a tribe's IRR Program allocation to be expended on 
a construction project, the project must be included in an FHWA-approved 
Transportation Improvement Program (TIP).

                   IRR High Priority Project (IRRHPP)



Sec. 170.205  What is an IRR High Priority Project (IRRHPP)?

    (a) The IRRHPP is a special funding pool that can be used:
    (1) By a tribe whose annual allocation is insufficient to complete 
its highest priority project;
    (2) By a governmental subdivision of a tribe that is authorized to 
administer the tribe's IRR Program funding and whose annual allocation 
is insufficient to complete its highest priority project; or
    (3) By any tribe for an emergency/disaster on any IRR transportation 
facility.
    (b) Eligible applicants may have only one IRRHPP application pending 
at any time. This includes emergency/disaster applications.
    (c) IRRHPP funds cannot be used for transportation planning, 
research, routine maintenance activities, and items listed in Sec. 
170.116.



Sec. 170.206  How is an emergency/disaster defined?

    (a) An emergency/disaster is damage to an IRR transportation 
facility that:
    (1) Renders the facility impassable or unusable; and
    (2) Is caused by either a natural disaster over a widespread area or 
catastrophic failure from an external cause.
    (b) Some examples of natural disasters are: floods, droughts, 
earthquakes, tornadoes, landslides, avalanches, and severe storms.
    (c) An example of a catastrophic failure is the collapse of a 
highway bridge after being struck by a barge, truck, or landslide.



Sec. 170.207  What is the intent of IRRHPP emergency/disaster funding?

    The intent of IRRHPP emergency/disaster funding is to provide 
funding for a project that contains eligible work and would be approved 
for FHWA-ERFO Program funding except that the disaster dollar threshold 
for eligibility in the FHWA-ERFO program has not been met. Applicants 
are encouraged to apply for FHWA-ERFO Program funding if the project 
meets the requirements of the program.



Sec. 170.208  What funding is available for IRRHPP?

    The IRRHPP funding level (see chart in Sec. 170.200) for the year 
is:
    (a) Authorization Amount up to $275 million--5 percent of the pool 
of funds designated as ``Remaining funding available for distribution''; 
plus
    (b) Authorization Amount over $275 million--12.5 percent the amount 
above $275 million after appropriate statutory and regulatory set-
asides, as well as other takedowns.



Sec. 170.209  How will IRRHPP applications be ranked and funded?

    (a) BIADOT and the Federal Lands Highway (FLH) Program office will 
determine eligibility and fund IRRHPP applications subject to 
availability of funds and the following criteria:
    (1) Existence of safety hazards with documented fatality and injury 
accidents;
    (2) Number of years since the tribe's last IRR Program construction 
project completed;
    (3) Readiness to proceed to construction or IRRBP design need;
    (4) Percentage of project cost matched by other non-IRR Program 
funds (projects with a greater percentage of other matched funds rank 
ahead of lesser matches);
    (5) Amount of funds requested (smaller requests receive greater 
priority);
    (6) Challenges caused by geographic isolation; and

[[Page 575]]

    (7) All weather access for: employment, commerce, health, safety, 
educational resources, and housing.
    (b) Funding is limited to the estimated cost of repairing damage to 
the IRR transportation facility up to a maximum of $1 million per 
application.
    (c) A project submitted as an emergency/disaster must be at least 10 
percent of a tribe's relative need distribution.
    (d) BIA's regional roads engineer or the tribe, if it has plans, 
specifications, and estimates (PS&E) approval authority will certify the 
cost estimate in approving the plans, specifications, and estimates for 
the IRRHPP.
    (e) The Project Scoring Matrix is found in appendix A to subpart C.



Sec. 170.210  How may a tribe apply for IRRHPP?

    A tribe may apply for IRRHPP funds by submitting a complete 
application to BIADOT. The application must include:
    (a) Project scope of work (deliverables, budget breakdown, 
timeline);
    (b) Amount of IRRHPP funds requested;
    (c) Project information addressing ranking criteria identified in 
Sec. 170.209, or the nature of the emergency/disaster;
    (d) Documentation that the project meets the definition of an IRR 
transportation facility and is in the IRR Inventory;
    (e) Documentation of official tribal action requesting the IRRHPP 
project; and
    (f) Documentation from the tribe providing authority for BIA to 
place the project on an IRRHPP TIP if the project is selected and 
approved.



Sec. 170.211  What is the IRRHPP Funding Priority List?

    The IRRHPP Funding Priority List (FPL) is the ranked IRRHPPs 
approved for funding under Sec. 170.209.
    (a) The number of projects on the FPL is limited by the amount of 
IRRHPP funds available at the beginning of the fiscal year.
    (b) BIA will place all projects on the FPL on an IRRHPP TIP and 
forward them to FHWA for approval.



Sec. 170.212  What is the timeline for IRRHPPs?

    (a) BIA will accept IRRHPP applications until December 31 each year 
for projects during the following year. BIA processes IRRHPP 
applications as shown in the following table:

------------------------------------------------------------------------
           By . . .                          BIA will . . .
------------------------------------------------------------------------
(1) January 31...............  Notify all applicants and Regions in
                                writing of acceptance of applications.
(2) March 31.................  Coordinate with FLH to rank all accepted
                                applications in accordance with Appendix
                                A to Subpart C, develop the FPL, and
                                return unaccepted applications to the
                                applicant with an explanation of the
                                deficiencies.
(3) April 15.................  Notify all accepted applicants of the
                                projects included on the FPL.
(4) May 15...................  Distribute funds to BIA Regions or in
                                accordance with procedures of the Office
                                of Self-Governance for selected IRRHPP.
------------------------------------------------------------------------

    (b) If total funding for accepted projects does not equal the total 
funds available for IRRHPP, the remaining funds will be redistributed by 
the Relative Need Distribution Factor in accordance with Appendix C to 
subpart C.
    (c) All IRRHPP funds must be obligated on or before August 15. If it 
is anticipated that these funds cannot be obligated by the end of the 
fiscal year, IRRHPP funds assigned to an approved project must be 
returned to FHWA by August 1. BIA will redistribute these funds the 
following fiscal year to those approved projects. (See Sec. 170.213.)



Sec. 170.213  How long are IRRHPP funds available for a project?

    Any project not under contract for construction within 3 fiscal 
years of its initial listing on an FPL will forfeit its unexpended 
funding. Applicants may request, in writing, a one-time, 1-year 
extension of this deadline from BIA. Upon completion of an IRRHPP, funds 
that are reserved but not expended are to be recovered and returned to 
the IRRHPP funding pool.

[[Page 576]]



Sec. 170.214  How does award of an emergency/disaster project affect 
projects on the FPL?

    (a) A tribe may submit an emergency/disaster project any time during 
the fiscal year. BIA considers these projects a priority and funds them 
as follows:
    (1) If a tribe submits a project before the issuance of the FPL and 
it is determined as eligible for IRRHPP funds, BIA will provide funding 
before providing funding for the other approved projects on the FPL; or
    (2) If a tribe submits a project after the issuance of the FPL and 
the distribution of the IRRHPP funds, BIA will provide funding when 
funds provided to the FPL projects is returned to BIA due to their 
inability to be obligated. (See Sec. 170.212(c).)
    (b) If BIA uses funding previously designated for a project on the 
FPL to fund an emergency/disaster project, the FPL project that lost its 
funding will move to the top of the FPL for the following year.

                      Population Adjustment Factor



Sec. 170.220  What is the Population Adjustment Factor?

    The Population Adjustment Factor (PAF) is a special portion of the 
total IRR Program distribution calculated annually that provides for 
broader participation in the IRR Program by tribes (or a governmental 
subdivision of a tribe authorized to administer the tribe's IRR Program 
funding). The PAF is based upon the population ranges and distribution 
factors in appendix B to subpart C. The population data used is the 
American Indian and Alaska Native Service Population developed by the 
Department of Housing and Urban Development, under the Native American 
Housing Assistance and Self-Determination Act (NAHASDA), (25 U.S.C. 4101 
et seq.). Appendix B to subpart C explains how the PAF is derived. The 
funds generated by the PAF can be used for transportation planning or 
IRR projects.



Sec. 170.221  What funding is available for distribution using the PAF?

    When the annual authorization for the IRR Program is greater than 
$275 million, 12.5 percent of the amount above $275 million after the 
appropriate statutory and regulatory set-asides, as well as other 
takedowns, is available for distribution using the PAF.

                    Relative Need Distribution Factor



Sec. 170.223  What is the Relative Need Distribution Factor (RNDF)?

    The Relative Need Distribution Factor (RNDF) is a mathematical 
formula used for distributing the IRR Program construction funds. The 
RNDF is derived from a combination of the cost to construct, vehicle 
miles traveled, and population. Appendix C to subpart C explains how the 
RNDF is derived and applied.

       IRR Inventory and Long-Range Transportation Planning (LRTP)



Sec. 170.225  How does the LRTP process relate to the IRR Inventory?

    The LRTP process (see subpart D) is a uniform process that 
identifies the transportation needs and priorities of the tribes. The 
IRR Inventory is derived from transportation facilities identified 
through LRTP. It is also a means for identifying projects for the IRRHPP 
Program.



Sec. 170.226  How will this part affect the IRR Inventory?

    The IRR Inventory defined in this part will expand the IRR Inventory 
for funding purposes to include:
    (a) All roads, highway bridges, and other eligible transportation 
facilities that were previously approved in the BIA Road System in 1992 
and each following year;
    (b) All Indian reservation roads constructed using Highway Trust 
funds since 1983;
    (c) All designated IRR routes (25 CFR 170.442-170.444);
    (d) Non-road transportation related facilities; and
    (e) Other applicable IRR transportation facilities.



Sec. 170.227  How does BIA develop and use the IRR Inventory?

    The IRR Inventory as defined in Sec. 170.442 identifies the 
transportation need by providing the data that BIA uses to generate the 
Cost to Construct

[[Page 577]]

(CTC) and Vehicle Miles Traveled (VMT) components of RNDF. The IRR 
Inventory is developed through the LRTP process, as described in 
Sec. Sec. 170.410 through 170.415. BIA Regional offices maintain, 
certify, and enter the data for their region's portion of the IRR 
Inventory database. Only project-specific transportation activities are 
included in the IRR Inventory.



Sec. 170.228  Are all facilities included in the IRR Inventory used to 
calculate CTC?

    No. Projects/facilities proposed to receive construction funds on an 
approved IRRTIP are not eligible for future inclusion in the calculation 
of the CTC portion of the formula for a period of 5 years thereafter.

                          General Data Appeals



Sec. 170.231  May a tribe challenge the data BIA uses in the RNDF?

    (a) A tribe may submit a request to the BIA Regional Director to 
revise the data for the tribe that BIA uses in the RNDF. The request 
must include the tribe's data and written support for its contention 
that the tribal data is more accurate than BIA's.
    (b) A tribe may submit a data correction request at any time. In 
order to impact the distribution in a given fiscal year, a data 
correction request must be approved, or any subsequent appeals resolved, 
by June 1 of the prior fiscal year.
    (c) The BIA Regional Director must respond within 30 days of 
receiving a data correction request under this section.
    (1) Unless the BIA Regional Director determines that the existing 
BIA data is more accurate, the BIA Regional Director must approve the 
tribe's data correction request and accept the tribe's corrected data.
    (2) If the BIA Regional Director disapproves the tribe's request, 
the decision must include a detailed written explanation of the reasons 
for the disapproval, copies of any supporting documentation (other than 
the tribe's request) that the BIA Regional Director relied upon in 
reaching the decision, and notice of the tribe's right to appeal the 
decision.
    (3) If the BIA Regional Director does not approve the tribe's 
request within 30 days of receiving the request, the request must be 
deemed disapproved.



Sec. 170.232  How does a tribe appeal a disapproval from the BIA 
Regional Director?

    (a) Within 30 days of receiving a disapproval, or within 30 days of 
a disapproval by non-action of the BIA Regional Director, a tribe may 
file a written notice of appeal to the Director, Bureau of Indian 
Affairs, with a copy provided to the BIA Regional Director; and
    (b) Within 30 days of receiving an appeal, the Director, Bureau of 
Indian Affairs must issue a written decision upholding or reversing the 
BIA Regional Director's disapproval. This decision must include a 
detailed written explanation of the reasons for the disapproval, copies 
of any supporting documentation that the Director, Bureau of Indian 
Affairs relied upon in reaching the decision (other than the tribe's 
request or notice of appeal), and notice of the tribe's right to appeal 
the decision to the Interior Board of Indian Appeals under 25 CFR part 
2.

                           Flexible Financing



Sec. 170.300  May tribes use flexible financing to finance IRR 
transportation projects?

    Yes. Tribes may use flexible financing in the same manner as States 
to finance IRR transportation projects, unless otherwise prohibited by 
law.
    (a) Tribes may issue bonds or enter into other debt financing 
instruments under 23 U.S.C. 122 with the expectation of payment of IRR 
Program funds to satisfy the instruments.
    (b) Under 23 U.S.C. 183, the Secretary of Transportation may enter 
into an agreement for secured loans or lines of credit for IRR projects 
meeting the requirements contained in 23 U.S.C. 182. Tribes or BIA may 
service Federal credit instruments. The secured loans or lines of credit 
must be paid from tolls, user fees, or other dedicated revenue sources.
    (c) Tribes may use IRR Program funds as collateral for loans or 
bonds to finance IRR projects. Upon the request of a tribe, a BIA region 
will provide

[[Page 578]]

necessary documentation to banks and other financial institutions.



Sec. 170.301  Can a tribe use IRR Program funds to leverage other funds 
or pay back loans?

    (a) A tribe can use IRR Program funds to leverage other funds.
    (b) A tribe can use IRR Program funds to pay back loans or other 
finance instruments for a project that:
    (1) The tribe paid for in advance of the current year using non-IRR 
Program funds; and
    (2) Was included in FHWA-approved IRRTIP.



Sec. 170.302  Can BIA regional offices borrow IRR Program funds from 
each other?

    Yes. A BIA Regional office, in consultation with tribes, may enter 
into agreements to borrow IRR Program funds to assist another BIA 
regional office in financing the completion of an IRR project. These 
funds must be repaid within the next fiscal year. These agreements 
cannot be executed during the last year of a transportation 
authorization act unless Congress has authorized IRR Program funds for 
the next year.



Sec. 170.303  Can a tribe apply for loans or credit from a State 
infrastructure bank?

    Yes. Upon the request of a tribe, BIA region will provide necessary 
documentation to a State infrastructure bank to facilitate obtaining 
loans and other forms of credit for an IRR project. A state 
infrastructure bank is a state or multi-state fund that can offer loans 
and other forms of credit to help project sponsors, such as tribes, pay 
for transportation projects.

    Appendix A to Subpart C--IRR High Priority Project Scoring Matrix

--------------------------------------------------------------------------------------------------------------------------------------------------------
               Score                          10                     5                      3                      1                       0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Accident and fatality rate for      Severe...............  X....................  Moderate.............  Minimal.............  No accidents.
 candidate route \1\.
Years since last IRR construction   Never................  Last project more      Last project 5-9       Last project within   Currently has project.
 project completed.                                         than 10 years ago.     years ago.             last 1 to 4 years.
Readiness to Proceed to             PS&E Complete and      Bridge Replacement     Bridge Rehabilitation  Non-bridge PS & E     X.
 Construction or IRRBP Design Need.  approved.              PS&E development       PS&E development       development Project.
                                                            Project.               Project.
Percentage of Project matched by    X....................  80 percent or more by  20-79 percent by       1-19 percent........  No other funds.
 other funds.                                               other funds.           other funds.
Amount of funds requested \2\.....  X....................  250,000 or less......  250,001-500,000......  500,001-750,000.....  Over 750,000.
Geographic isolation..............  No external access to  Substandard Primary    Substandard Secondary  Substandard access    X.
                                     community.             access to community.   access to community.   to tribal facility.
All weather access for:...........  Addresses all 6        Addresses 4 or 5       Addresses 3 elements.  Addresses 2 elements  Addresses 1 element.
--Employment......................   elements.              elements.
--Commerce........................
--Health..........................
--Safety..........................
--Educational Resources...........
--Housing.........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ National Highway Traffic Safety Board standards.
\2\ Total funds requested, including preliminary engineering, construction, and construction engineering.


[[Page 579]]

          Appendix B to Subpart C--Population Adjustment Factor

    1. The Population Adjustment Factor allows for participation in the 
IRR Program by all tribes. This component of the funding formula creates 
a special calculation of funding which is available in accordance with 
the TTAM each fiscal year for a tribe based on the population range 
within which the tribe is included. The following table shows how BIA 
develops the PAF.

----------------------------------------------------------------------------------------------------------------
                                                                                             Funding amount  per
            Population  range                 Distribution  factor*      Number of tribes**         tribe
----------------------------------------------------------------------------------------------------------------
Less than 25............................                             1  N1.................  MBA*** x 1
25-100..................................                           3.5  N2.................  MBA x 3.5
101-1000................................                           5.0  N3.................  MBA x 5.0
1001-10,000.............................                           6.5  N4.................  MBA x 6.5
10,001+.................................                             8  N5.................  MBA x 8
----------------------------------------------------------------------------------------------------------------
* Multiplier used to determine the PAF funding for the population ranges. For example, if $1000 is available for
  the first population range (less than 25), then the second population range (25-100) will receive $3,500 or
  3.5 times the amount available to the first population range.
** The number of tribes changes yearly.
*** The Minimum Base Allocation (MBA) is the dollar value to be multiplied by the distribution factor for each
  population range to determine the distribution of the PAF.

    2. The following example shows how the PAF applies to a total IRR 
Program authorization for the allocation year of $375 million. The five 
steps to calculate the Population Adjustment Factor are applied as 
follows:
    Step 1. For each population range, multiply the Distribution Factor 
by the total number of tribes identified in the population range to 
determine the Step Factor;
    Step 2. Add the Step Factors determined in Step 1 above to derive a 
Total Step Factor;
    Step 3. Calculate the $A = IRR Program authorization available in 
the allocation year by taking the Total IRR Program authorization for 
the allocation year ($375M for this example) minus the appropriate 
statutory and regulatory set-asides, as well as other takedowns ($25M 
for this example)

$375M-$25M = $350M;

    Step 4. Derive a Minimum Base Allocation by taking 12\1/2\ per cent 
of the difference (from Step 3) and dividing it by the Total Step 
Factor. The mathematical equation for the Base Allocation is as follows:
[GRAPHIC] [TIFF OMITTED] TR19JY04.002

MBA = Minimum Base Allocation
Distribution Factors = 1, 3.5, 5, 6.5, and 8
$A = IRR Program Authorization Available in the Allocation Year
$275M = Base Reference Amount
n = The nth Population Range
1 . . . 5 = Population Ranges 1 through 5
Nn = Number of tribes in the nth Population Range

For the example above, the formula yields:
[GRAPHIC] [TIFF OMITTED] TR19JY04.003

    Step 5. Calculate Population Adjustment Factor within each 
Population Range by multiplying the Distribution Factor for the 
Population Range by the Minimum Base Allocation.

[[Page 580]]

    The mathematical equation for the Population Adjustment Factor 
calculation is as follows:

PAFn = DFn X MBA

Where:

PAF = Population Adjustment Factor
DF = Distribution Factor
n = The nth Population Range
MBA = Minimum Base Allocation

For example, for DF1 = 1.00; PAF1 = 1 x $3,215.57 
          = $3,215.57

For example, for DF3 = 5.00; PAF3 = 5 x $3,215.57 
          = $16,077.86

    The following table illustrates the results of the above 
calculations for all population ranges:

----------------------------------------------------------------------------------------------------------------
                                                                                  Tribal PAF per
      Population range (step)              Distribution    Step  factor     population   Total  funding
                                      of  tribes       factor                          range          per step
----------------------------------------------------------------------------------------------------------------
Less than 25.......................           17               1           17          $3,215.57      $54,664.72
25-100.............................           66               3.5        231          11,254.50      742,797.12
101-1000...........................          309               5         1545          16,077.36    4,968,058.65
1001-10,000........................          137               6.5        890.50       20,901.22    2,863,466.82
10,001 +...........................           29               8          232          25,724.58      746,012.69
                                    ----------------------------------------------------------------------------
    Totals.........................  ...........   Total Step Factor = 2,915.50   ..............       9,375,000
----------------------------------------------------------------------------------------------------------------

       Appendix C to Subpart C--Relative Need Distribution Factor

    The Relative Need Distribution Factor (RNDF) is a mathematical 
formula for distributing the IRR Program construction funds using the 
following three factors: Cost to Construct (CTC), Vehicle Miles Traveled 
(VMT), and Population (POP).

                  1. What Is the Formula for the RNDF?

    The Relative Need Distribution Factor is as follows:
    [GRAPHIC] [TIFF OMITTED] TR19JY04.004
    
Where:

A = percent Relative Need for an individual tribe
CTC = Total Cost to Construct calculated for an individual tribe
Total C = Total Cost to Construct calculated for all tribes shown in the 
          IRR Inventory
VMT = Total vehicle miles traveled for all routes in the IRR Inventory 
          for a given tribe
Total VMT = Total vehicle miles traveled for all routes for all tribes 
          in the IRR Inventory
POP = Population of an individual tribe
Total POP = Total population for all tribes
[alpha], [beta], [delta], = 0.50, 0.30, 0.20 respectively = Coefficients 
          reflecting relative weight given to each formula factor

    Example: Tribe X has the following data:

CTC = $51,583,000...........  Total CTC = $10,654,171,742
VMT = 45,680................  Total VMT = 10,605,298
POP = 4,637.................  Total POP = 1,010,236
A = 0.50 [CTC / Total CTC] + 0.30[VMT / Total VMT] + 0.20[ POP / Total
 POP].
 
A = 0.50 [51,583,000 / 10,654,171,742] + 0.30 [45,680 / 10,605,298] +
 0.20 [4,637 / 1,010,236].
A = 0.00242 + 0.00129 + 0.00092.........................................
A = 0.00463 or 0.463 percent............................................
 
If IRR Program construction funds available for the fiscal year are
 $226,065,139 .
Then the allocation amount
 would be: $226,065,139 x
 0.00463 = $1,046,682.
 

    2. How Does BIA Estimate Construction Costs?
    The methodology for calculating the Cost to Construct is explained 
in Appendix D of this subpart.
    3. What Is the Cost to Construct for an Individual Tribe?
    The Cost to Construct for an individual tribe is the sum of all 
eligible and approved project costs from the tribe's IRR Inventory.
    4. What Is the Cost to Construct Component in the RNDF?
    The Cost to Construct component is the total estimated cost of a 
tribe's transportation projects as a percentage of the total

[[Page 581]]

estimated cost nationally of all tribes' transportation facilities. 
Costs are derived from the IRR inventory of eligible IRR transportation 
facilities developed and approved by BIA and tribal governments through 
Long-Range Transportation Planning.
    5. May the Cost to Construct Component of the RNDF Be Modified?
    Yes, BIA and FHWA, with input and recommendations provided by the 
IRR Program Coordinating Committee, may consider revisions to the data 
elements used in calculating the Cost to Construct component.
    6. What Is the Source of the Construction Cost Used To Generate the 
CTC?
    (a) The construction cost will be derived from the average of the 
following three project bid tabulation sources:
    (1) Tribal bid tabulations or local BIA bid tabulations;
    (2) State bid tabulations for the region of the State in which the 
tribe's project will be constructed;
    (3) National IRR Program bid tabulations.
    (b) If one or more of these bid tabulation sources is unavailable, 
use the average of the available sources.
    (c) BIADOT will collect the national IRR Program bid tabulation data 
and enter it into the Cost to Construct database.
    7. What Is the VMT Component and How Is It Calculated?
    VMT is a measure of the current IRR transportation system use. BIA 
calculates VMT using the sum of the length of IRR route segments in 
miles multiplied by the Average Daily Traffic (ADT) of the route 
segment.
    8. What IRR Route Sections Does BIA Use To Calculate VMT?
    All IRR route sections in the IRR Inventory are used to calculate 
VMT, but percentage factors are applied in accordance with Appendix C to 
subpart C, question (10).
    9. What Is the Population Component and How Is It Determined?
    The population component is a factor used to define a portion of 
transportation need based on the number of American Indian or Alaska 
Native people served. The population data used will be the American 
Indian and Alaska Native Service Population developed by the Department 
of Housing and Urban Development, under the Native American Housing 
Assistance and Self-Determination Act (NAHASDA), (25 U.S.C. 4101 et 
seq.).
    10. Do All IRR Transportation Facilities in the IRR Inventory Count 
at 100 Percent of Their CTC and VMT?
    No. The CTC and VMT must be computed at the non-Federal share 
requirement for matching funds for any transportation facility that is 
added to the IRR inventory and is eligible for funding for construction 
or reconstruction with Federal funds, other than Federal Lands Highway 
Program funds.
    However, if a facility falls into one or more of the following 
categories, then the CTC and VMT factors must be computed at 100 
percent:
    (1) The transportation facility was approved, included, and funded 
at 100 percent of CTC and VMT in the IRR Inventory for funding purposes 
prior to the issuance of these regulations.
    (2) The facility is not eligible for funding for construction or 
reconstruction with Federal funds, other than Federal Lands Highway 
Program funds; or
    (3) The facility is eligible for funding for construction or 
reconstruction with Federal funds, however, the public authority 
responsible for maintenance of the facility provides certification of 
maintenance responsibility and its inability to provide funding for the 
project.

               Appendix D to Subpart C--Cost To Construct

                            Cost To Construct

    (Appendix D includes Tables 1-8 which BIA Division of Transportation 
developed based on internal IRR data and the negotiated rulemaking 
process.) This method utilizes the concepts of the Bureau of Indian 
Affairs' ``Simplified Approach to Compute the Cost to Construct''. The 
concept has been modified to include computing costs for High Capacity 
Roads (multi-lane roads), non-road projects (snowmobile trails, 
boardwalks, footpaths, etc.) and other eligible transportation facility 
projects.
    The theory behind this concept is based on the procedure that 
information gathered during any inventory update can be used to compare 
the existing conditions to defined Adequate Standard Characteristics. 
This comparison can then be used to determine the total cost required to 
bring the transportation facility road up to a necessary Adequate 
Standard. The IRR Inventory database is used to determine the costs of a 
new transportation facility or in the case of an existing facility, the 
costs that will be necessary to improve the facility from it's existing 
condition to an adequate standard. Therefore, the Cost to Construct for 
a particular facility is the cost required to improve the facility's 
existing condition to a condition that would meet the Adequate Standard 
Characteristics (see Table 1). For roadways, the recommended design of 
the geometrics and surface type vary based on the road's functional 
classification and average daily traffic and will use four categories of 
cost. The four categories are Grade and Drain Costs, Aggregate Costs, 
Pavement Costs, and Incidental Costs. For bridges, costs are derived 
from costs in the National Bridge Inventory as well as the National 
Bridge Construction unit cost data developed by FHWA.

[[Page 582]]

For other transportation IRR transportation facilities, an inventory of 
needs must be developed with associated costs for new and existing IRR 
transportation facilities based on long range transportation planning. 
The BIA Regions and tribes must ensure the IRR Inventory is sufficiently 
updated to provide all the necessary information indicating the need, 
the condition and the construction cost data to compute the cost to 
construct of any proposed or existing facility.

                            Basic Procedures

    The IRR Inventory, based on transportation planning must be 
developed for those tribes without data and updated for those tribes 
that have an existing IRR Inventory. Once the IRR Inventory database is 
current and all IRR transportation facilities needs are identified and 
verified, the Cost to Construct for those IRR transportation facilities 
can be developed.
    The procedure for determining the cost to construct of a proposed 
transportation facility is computed through the following step-by-step 
process:
    (a) Determine the Future ADT of the transportation facility as 
applicable, based upon tribal transportation planning or set default 
future ADT (see Table 2);
    (b) Determine the Class of transportation facility e.g., rural 
local, rural major collector, or other transportation facility, 
utilizing future ADT and based upon tribal transportation planning (see 
Table 1);
    (c) Identify, if appropriate, transportation facility terrain as 
flat, rolling, or mountainous;
    (d) Set Adequate Standard based on Class, and/or future ADT, and 
Terrain (see Table 1);
    (e) Identify the transportation facility's construction cost per 
unit (e.g., cost per mile, cost per linear foot) for the applicable 
components of construction: Aggregate, Paving, Grade/Drain, Incidental, 
or other costs associated with the transportation facility;
    (f) Multiply the construction cost per unit for each component of 
construction by the length of the proposed road or other appropriate 
unit of the transportation facility to determine the cost for each 
component of construction; and
    (g) Calculate the cost for the proposed road or transportation 
facility by adding together the costs for each component of 
construction.
    The procedure for determining the cost to reconstruct or 
rehabilitate an existing transportation facility is determined in the 
same manner as a proposed transportation facility, except that the 
existing condition of the project is evaluated to determine the 
remaining percentage of cost of each applicable component of 
construction that will be included in the cost for reconstruction. The 
steps are:
    (1) Evaluate existing condition of road or transportation facility 
in accordance with applicable management systems, guidelines or other 
requirements;
    (2) Identify the percentage of required cost for each component of 
applicable construction costs for the transportation facility by 
determining the Adequate Standards Characteristics (see Table 1) and 
existing condition of the transportation facility and by applying the 
applicable percent cost requirement tables for aggregate, paving, grade/
drain, incidental, and bridge (see Tables 4-8);
    (3) Multiply the construction cost per unit for each component of 
construction by the corresponding percent of cost required (see Tables 
4-8) and by the length of the road or other appropriate unit of the 
transportation facility to determine the reconstruction cost for each 
component; and
    (4) Calculate the reconstruction cost for the road or transportation 
facility by adding together the reconstruction costs for each component 
of construction.
    Average daily traffic (ADT) is acquired through actual traffic 
counts on the roadway sections. Where current ADT is practical to 
acquire, it should be acquired and future ADT calculated by projecting 
the current ADT at 2 percent per year for 20 years. If the road is 
proposed, the ADT impractical to acquire, or a current ADT does not 
exist, then BIA will assign a default current ADT and calculate future 
ADT by projecting the default current ADT at 2 percent per year for 20 
years to form the basis of the Adequate Standard (see Table 1). Table 2 
summarizes the default current and default future ADT by class of road.
    Functional Classification: Functional classification means an 
analysis of a specific transportation facility taking into account 
current and future traffic generators, and their relationship to 
connecting or adjacent BIA, state, county, Federal, and/or local roads 
and other intermodal facilities. Functional classification is used to 
delineate the difference between the various road and/or intermodal 
transportation facility standards eligible for funding under the IRR 
Program. As a part of the IRR Inventory system management, all IRR 
transportation facilities included on or added to the IRR Inventory must 
be classified according to the following functional classifications:
    (a) Class 1: Major arterial roads providing an integrated network 
with characteristics for serving traffic between large population 
centers, generally without stub connections and having average daily 
traffic volumes of 10,000 vehicles per day or more with more than two 
lanes of traffic.
    (b) Class 2: Rural minor arterial roads providing an integrated 
network having the characteristics for serving traffic between large 
population centers, generally without stub connections. May also link 
smaller

[[Page 583]]

towns and communities to major resort areas that attract travel over 
long distances and generally provide for relatively high overall travel 
speeds with minimum interference to through traffic movement. Generally 
provide for at least inter-county or inter-State service and are spaced 
at intervals consistent with population density. This class of road will 
have less than 10,000 vehicles per day.
    (c) Class 3: Streets that are located within communities serving 
residential areas.
    (d) Class 4: Rural Major Collector Road is a collector to rural 
local roads.
    (e) Class 5: Rural Local Road that is either a section line and/or 
stub type roads that collect traffic for arterial type roads, make 
connections within the grid of the IRR System. This class of road may 
serve areas around villages, into farming areas, to schools, tourist 
attractions, or various small enterprises. Also included are roads and 
motorized trails for administration of forest, grazing, mining, oil, 
recreation, or other use purposes.
    (f) Class 6: City Minor Arterial Streets that are located within 
communities, and serve as access to major arterials.
    (g) Class 7: City Collector Streets that are located within 
communities and serve as collectors to the city local streets.
    (h) Class 8: This classification encompasses all non-road projects 
such as paths, trails, walkways, or other designated types of routes for 
public use by foot traffic, bicycles, trail bikes, snowmobile, all 
terrain vehicles or other uses to provide for the general access of non-
vehicular traffic.
    (i) Class 9: This classification encompasses other transportation 
facilities such as public parking facilities adjacent to IRR routes and 
scenic byways, rest areas, and other scenic pullouts, ferry boat 
terminals, and transit terminals.
    (j) Class 10: This classification encompasses airstrips that are 
within the boundaries of the IRR System grid and are open to the public. 
These airstrips are included for inventory and maintenance purposes 
only.
    (k) Class 11: This classification indicates an overlapping of a 
previously inventoried section or sections of a route and is used to 
indicate that it is not to be used for accumulating needs data. This 
class is used for reporting and identification purposes only.
    Construction Need: All existing and proposed transportation 
facilities in the IRR Inventory must have a Construction Need (CN) which 
is used in the Cost to Construct calculations. These transportation 
facilities are assigned a CN by the tribe during the long-range 
transportation planning and inventory update process using certain 
guidelines which are: Ownership or responsibility of the facility, 
whether it is within or provides access to reservations, groups, 
villages and communities in which the majority of the residents are 
Indian, and whether it is vital to the economic development of Indian 
tribes. As part of the IRR Inventory management, all facilities included 
on or added to the IRR Inventory must be designated a CN which are 
defined as follows:
    (a) Construction Need 0: Transportation facilities which have been 
improved to their acceptable standard or projects/facilities proposed to 
receive construction funds on an approved IRRTIP are not eligible for 
future inclusion in the calculation of the CTC portion of the formula 
for a period of 5 years thereafter.
    (b) Construction Need 1: Existing BIA roads needing improvement.
    (c) Construction Need 2: Construction need other than BIA roads 
needing improvement.
    (d) Construction Need 3: Substandard or other roads for which no 
improvements are planned, maintenance only.
    (e) Construction Need 4: Roads which do not currently exist and need 
to be constructed, proposed roads.

[[Page 584]]

[GRAPHIC] [TIFF OMITTED] TR19JY04.005

    Table 2--Default Current ADT and Default Future ADT
    Table 2 summarizes the default current and default future ADT by 
class of road. Default future ADT is calculated by projecting default 
current ADT at 2 percent per year for 20 years. 2 percent per year for 
20 years yields a factor of 1.485.

[[Page 585]]



           Table 2--Default Current ADT and Default Future ADT
------------------------------------------------------------------------
                                           Default current and default
             IRR Class No.                         future ADT*
------------------------------------------------------------------------
1.....................................  N/A, Must Exist
2.....................................  100 * 1.485 = 149
3.....................................  25 * 1.485 = 37
4.....................................  50 * 1.485 = 74
5.....................................  50 * 1.485 = 74
6.....................................  50 * 1.485 = 74
7.....................................  50 * 1.485 = 74
8.....................................  20 * 1.485 = 30
9.....................................  N/A**
10....................................  N/A**
11....................................  N/A**
------------------------------------------------------------------------
* Default Future ADT is used for proposed roads or when impractical to
  acquire current ADT or when current ADT does not exist.
** Class 9, 10, and 11 are point features in the inventory and do not
  have an ADT. All multiplication is rounded.

                      Table 3--Future Surface Type

    Table 3 summarizes all possible scenarios of the future surface type 
either required or based on the various future ADT thresholds for each 
type or class of road in the inventory.

                                          Table 3--Future Surface Type
----------------------------------------------------------------------------------------------------------------
              Const. need                    IRR class No.              Future ADT         Future  surface type
----------------------------------------------------------------------------------------------------------------
0,1,2,3...............................  1......................  Any....................  Paved
0,1,2,3...............................  2......................  Any....................  Paved
0,1,2,3...............................  3,6,7..................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                  250........  Paved
0,1,2,3...............................  4,5....................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                  250........  Paved
0,1,2,3,4.............................  8......................  N/A....................  N/A*
0,1,2,3,4.............................  9......................  N/A....................  N/A**
0,1,2,3,4.............................  10.....................  N/A....................  N/A***
4***..................................  1......................  N/A****................  N/A****
4.....................................  2......................  ANY....................  Paved
4.....................................  3,6,7..................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                  250........  Paved
4.....................................  4......................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                  250........  Paved
4.....................................  5......................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                  250........  Paved
----------------------------------------------------------------------------------------------------------------
* Class 8 does not have a future surface type. Per mile costs are applied independent of future surface type.
** Class 9 does not have a future surface type. Costs are independent of future surface type.
*** Class 10 does not have a future surface type. These are airstrips and is used for identification purposed
  only.
**** Class 1 with Construction Need of 4 does not apply. Class 1 roads must exist.

            Table 4--Percent of Grade and Drain Cost Required

    Grade and Drain costs include the cost for constructing a roadbed to 
an adequate standard and providing adequate drainage. Specifically it 
includes the necessary earthwork to build the roadbed to the required 
horizontal and vertical geometric parameters above the surrounding 
terrain and provide for proper drainage away from the foundation with 
adequate cross drains.
    Table 4 summarizes the percentage of grade and drain costs required 
based on the existing roadbed condition observed in an inventory update.

                                Table 4--Percent of Grade and Drain Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                                                  Percent grade
                                                                                                  and drain cost
                   Code                                      Roadbed condition                       required
                                                                                                    (Percent)
----------------------------------------------------------------------------------------------------------------
0........................................  Proposed Road.......................................              100
1........................................  Primitive Trail.....................................              100
2........................................  Bladed Unimproved Earth Road, Poor Drainage, Poor                 100
                                            Alignment.

[[Page 586]]

 
3........................................  Minimum Built-up Roadbed (Shallow cuts and fills)                 100
                                            with inadequate drainage and alignment that
                                            generally follows existing ground.
4........................................  A designed and constructed roadbed with some                      100
                                            drainage and alignment improvements required.
5........................................  A roadbed constructed to the adequate standards with                0
                                            good horizontal and vertical alignment and proper
                                            drainage.
6........................................  A roadbed constructed to adequate standards with                    0
                                            curb and gutter on one side.
7........................................  A roadbed constructed to adequate standards with                    0
                                            curb and gutter on both sides.
----------------------------------------------------------------------------------------------------------------

           Table 5--Percent of Aggregate Surface Cost Required

    Table 5 summarizes the percentage of aggregate surface costs 
required based on all possible scenarios of existing surface type 
conditions and calculated future surface type.

                               Table 5--Percent of Aggregate Surface Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                                Future surface type
                                                                 -----------------------------------------------
                      Existing surface type                            Paved          Gravel           Earth
                                                                     (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
Proposed........................................................             100             100              0.
Primitive.......................................................             100             100              0.
Earth...........................................................             100             100              0.
Gravel..........................................................             100            *100              0.
Bituminous < 2[sec].............................................             100               0              0.
Bituminous  2[sec]...................................        0 or 100               0              0.
Concrete........................................................        0 or 100               0              0.
----------------------------------------------------------------------------------------------------------------
*If the Surface Condition Index (SCI) is 40 or less indicating that reconstruction will be required, then 100
  percent of the aggregate cost will be required. If greater than 40, then none of the aggregate cost will be
  applied.

           Table 6--Percent of Pavement Surface Cost Required

    Table 6 Summarizes the percentage of pavement surface costs for 
existing conditions required based on all possible scenarios of existing 
surface type conditions and calculated future surface type. Pavement 
overlays are calculated at 100 percent of the pavement costs.

                               Table 6--Percent of Pavement Surface Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                                Future surface type
                                                                 -----------------------------------------------
                      Existing surface type                            Paved          Gravel           Earth
                                                                     (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
Proposed........................................................             100             100              0.
Primitive.......................................................             100             100              0.
Earth...........................................................             100             100              0.
Gravel..........................................................             100             100              0.
Bituminous < 2[sec].............................................             100               0              0.
Bituminous  2[sec]...................................       *0 or 100               0              0.
Concrete........................................................       *0 or 100               0              0.
----------------------------------------------------------------------------------------------------------------
*If the Surface Condition Index (SCI) is 60 or less indicating that reconstruction will be required, then 100
  percent of the aggregate cost will be required. If greater than 60, then none of the aggregate cost will be
  applied.

        Table 7--Percent of Incidental Construction Cost Required

    Incidental cost items are generally required if a project includes 
construction or reconstruction of the roadbed. Some incidental items are 
included in all road improvement projects, while others are only 
required for specific projects. Table 7 summarizes the incidental 
construction determination estimating procedure for each of the Roadbed 
Category Codes. As shown in Table 4, roadbed condition codes 0 through 2 
will require 65 percent of the incidental costs for

[[Page 587]]

construction because they generally will not require maintenance of 
traffic during construction. If maintenance of traffic is required as 
will generally be the case for roadbed condition codes 3 and 4, the 
minimum percentage of incidental costs for these roadbed condition codes 
will be 75 percent. It is assumed that improvement roadbed condition 
codes 5, 6 and 7 will primarily be paving projects with little or no 
earthwork involved and the minimum percentage of the total incidental 
construction cost for these projects will be 30 percent.

        Table 7--Percent of Incidental Construction Cost Required
------------------------------------------------------------------------
                                                         Maintenance of
    Code        Roadbed condition       New alignment   traffic required
                                          (percent)         (percent)
------------------------------------------------------------------------
0..........  Proposed road..........                65               N/A
1..........  Primitive trail........                65               N/A
2..........  Bladed unimproved earth                65               N/A
              road, poor drainage,
              poor alignment.
3..........  Minimum built-up                      N/A                75
              roadbed (shallow cuts
              and fills) with
              inadequate drainage
              and alignment that
              generally follows
              existing ground.
4..........  A designed and                        N/A                75
              constructed roadbed
              with some drainage and
              alignment improvements
              required.
5..........  A roadbed constructed                 N/A                30
              to the adequate
              standards with good
              horizontal and
              vertical alignment and
              proper drainage.
              Requiring surfacing.
6..........  A roadbed constructed                 N/A                30
              to adequate standards
              with curb and gutter
              on one side. Requiring
              surfacing.
7..........  A roadbed constructed                 N/A                30
              to adequate standards
              with curb and gutter
              on both sides.
              Requiring surfacing.
------------------------------------------------------------------------

    Table 7 only accounts for those incidental construction costs 
normally found on a typical project. The construction items found in 
Table 8 may or may not be on any particular project and the cost of 
these items is 25 percent. Add the percentage required (from 0 to 25 
percent) based on the Regional recommendation with verification. If 
there are no additional items required, use the default of zero.

       Table 8--Percent of Additional Incidental Construction Cost
------------------------------------------------------------------------
                                                            Percent of
                                                               total
         Additional incidental construction item            incidental
                                                           construction
                                                               cost
------------------------------------------------------------------------
Fencing.................................................               1
Landscaping.............................................               9
Structural concrete.....................................               9
Traffic signals.........................................               3
Utilities...............................................               3
------------------------------------------------------------------------



Subpart D_Planning, Design, and Construction of Indian Reservation Roads 
                           Program Facilities

                         Transportation Planning



Sec. 170.400  What is the purpose of transportation planning?

    The purpose of transportation planning is to fulfill goals by 
developing strategies to meet transportation needs. These strategies 
address current and future land use, economic development, traffic 
demand, public safety, health, and social needs.



Sec. 170.401  What is BIA's role in transportation planning?

    Except as provided in Sec. 170.402, the functions and activities 
that BIA must perform for the IRR Program are:
    (a) Preparing the regional IRRTIP;
    (b) Updating the IRR Inventory from data updates;
    (c) Preparing IRR Inventory data updates as needed;
    (d) Coordinating with States and their political subdivisions, and 
appropriate planning authorities on regionally significant IRR projects;
    (e) Providing technical assistance to tribal governments;
    (f) Developing IRR Program budgets including transportation planning 
cost estimates;
    (g) Facilitating public involvement;
    (h) Participating in transportation planning and other 
transportation-related meetings;
    (i) Performing traffic studies;
    (j) Performing preliminary project planning;
    (k) Conducting special transportation studies;
    (l) Developing short and long-range transportation plans;
    (m) Mapping;

[[Page 588]]

    (n) Developing and maintaining management systems;
    (o) Performing transportation planning for operational and 
maintenance facilities; and
    (p) Researching rights-of-way documents for project planning.



Sec. 170.402  What is the tribal role in transportation planning?

    (a) All tribes must prepare a tribal TIP (TTIP) or tribal priority 
list.
    (b) Tribes with a self-determination contract or self-governance 
agreement may assume any of the following planning functions:
    (1) Coordinating with States and their political subdivisions, and 
appropriate planning authorities on regionally significant IRR projects;
    (2) Preparing IRR Inventory data updates;
    (3) Facilitating public involvement;
    (4) Performing traffic studies;
    (5) Developing short- and long-range transportation plans;
    (6) Mapping;
    (7) Developing and maintaining tribal management systems;
    (8) Participating in transportation planning and other 
transportation related meetings;
    (9) Performing transportation planning for operational and 
maintenance facilities;
    (10) Developing IRR Program budgets including transportation 
planning cost estimates;
    (11) Conducting special transportation studies, as appropriate;
    (12) Researching rights-of-way documents for project planning; and
    (13) Performing preliminary project planning.



Sec. 170.403  What IRR Program funds can be used for transportation 
planning?

    Funds as defined in 23 U.S.C. 204(j) are specifically reserved for a 
tribal government's transportation planning. Tribes may also identify 
transportation planning as a priority in their tribal priority list or 
TTIP and request the use of up to 100 percent of their IRR Program 
construction funds for transportation planning.



Sec. 170.404  What happens when a tribe uses its IRR Program 
construction funds for transportation planning?

    In order for IRR Program construction funds to be concentrated on 
the projects within the inventory, a tribe may use up to $35,000 or 5 
percent of its IRR Program construction funds, whichever is greater, for 
transportation planning. If a tribe exceeds this threshold, BIA will 
subtract the amount over the threshold from the tribe's CTC for the 
following year.



Sec. 170.405  Can tribal transportation planning funds be used for road 
construction and other projects?

    Yes, any tribe can request to have its planning funds as defined in 
23 U.S.C. 204(j) transferred into construction funds for use on any 
eligible and approved IRR project. (Also see Sec. 170.407.)



Sec. 170.406  How must tribes use planning funds?

    (a) IRR Program funds as defined in 23 U.S.C. 204(j) are only 
available upon request of a tribal government and approved by the BIA 
Regional Office. These funds support development and implementation of 
tribal transportation planning and associated strategies for identifying 
transportation needs, including:
    (1) Attending transportation planning meetings;
    (2) Pursuing other sources of funds; and
    (3) Developing the tribal priority list or any of the transportation 
functions/activities as defined in the FHWA IRR Program Transportation 
Planning Procedures and Guidelines (TPPG) or listed in Sec. 170.402.
    (b) A tribe may ask the BIA regional office to enter into a self-
determination contract or self-governance agreement for transportation 
planning activities and functions under ISDEAA or it may request a 
travel authorization to attend transportation planning functions and 
related activities using these funds. (See appendix A of subpart B for 
use of IRR Program Funds.)



Sec. 170.407  What happens to unobligated planning funds?

    Once all tribal governments' requests for tribal transportation 
planning

[[Page 589]]

funds have been satisfied for a given fiscal year or no later than 
August 15, the BIA regional office may use the remaining funds for 
construction after consultation with the affected tribal governments.

                   Long-Range Transportation Planning



Sec. 170.410  What is the purpose of tribal long-range transportation 
planning?

    (a) The purpose of long-range transportation planning is to clearly 
demonstrate a tribe's transportation needs and to fulfill tribal goals 
by developing strategies to meet these needs. These strategies should 
address future land use, economic development, traffic demand, public 
safety, and health and social needs.
    (b) The time horizon for long-range transportation planning should 
be 20 years to match state transportation planning horizons. A tribe may 
develop a long-range transportation plan under ISDEAA or may ask BIA to 
develop the plan on the tribe's behalf.



Sec. 170.411  What may a long-range transportation plan include?

    A comprehensive long-range transportation plan may include:
    (a) An evaluation of a full range of transportation modes and 
connections between modes such as highway, rail, air, and water, to meet 
transportation needs;
    (b) Trip generation studies, including determination of traffic 
generators due to land use;
    (c) Social and economic development planning to identify 
transportation improvements or needs to accommodate existing and 
proposed land use in a safe and economical fashion;
    (d) Measures that address health and safety concerns relating to 
transportation improvements;
    (e) A review of the existing and proposed transportation system to 
identify the relationships between transportation and the environment;
    (f) Cultural preservation planning to identify important issues and 
develop a transportation plan that is sensitive to tribal cultural 
preservation;
    (g) Scenic byway and tourism plans;
    (h) Measures that address energy conservation considerations;
    (i) A prioritized list of short and long-term transportation needs; 
and
    (j) An analysis of funding alternatives to implement plan 
recommendations.



Sec. 170.412  How is the tribal IRR long-range transportation plan 
developed and approved?

    (a) The tribal IRR long-range transportation plan is developed by:
    (1) A tribe working through a self-determination contract or self-
governance agreement or other funding sources; or
    (2) BIA upon request of, and in consultation with, a tribe. The 
tribe and BIA need to agree on the methodology and elements included in 
development of the IRR long-range transportation plan along with time 
frames before work begins.
    (b) During the development of the IRR long-range transportation 
plan, the tribe and BIA should jointly conduct a midpoint review.
    (c) The public reviews a draft IRR long-range transportation plan as 
required by Sec. 170.413. The plan is further refined to address any 
issues identified during the public review process. The tribe then 
approves the IRR long-range transportation plan.



Sec. 170.413  What is the public role in developing the long-range 
transportation plan?

    BIA or the tribe must solicit public involvement. If there are no 
tribal policies regarding public involvement, a tribe must use the 
procedures shown below. Public involvement begins at the same time long-
range transportation planning begins and covers the range of users, from 
stakeholders and private citizens to major public and private entities. 
Public involvement may be handled in either of the following two ways:
    (a) For public meetings, BIA or a tribe must:
    (1) Advertise each public meeting in local public newspapers at 
least 15 days before the meeting date. In the absence of local public 
newspapers, BIA or the tribe may post notices under local acceptable 
practices;

[[Page 590]]

    (2) Provide at the meeting copies of the draft long-range 
transportation plan;
    (3) Provide information on funding and the planning process; and
    (4) Provide the public the opportunity to comment, either orally or 
in writing.
    (b) For public notices, BIA or a tribe must:
    (1) Publish a notice in the local and tribal newspapers when the 
draft long-range transportation plan is complete. In the absence of 
local public newspapers, BIA or the tribe may post notices under local 
acceptable practices; and
    (2) State in the notice that the long-range transportation plan is 
available for review, where a copy can be obtained, whom to contact for 
questions, where comments may be submitted, and the deadline for 
submitting comments (normally 30 days).



Sec. 170.414  How is the tribal long-range transportation plan used 
and updated?

    The tribal government uses its IRR long-range transportation plan in 
its development of a tribal priority list or TTIP. To be consistent with 
State and MPO planning practices, the tribe or BIA (for direct service 
tribes) should:
    (a) Review the IRR long-range transportation plan annually; and
    (b) Update the plan every 5 years.



Sec. 170.415  What is pre-project planning?

    (a) Pre-project planning is part of overall transportation planning 
and includes the activities conducted before final project approval on 
the IRR Transportation Improvement Program (IRRTIP). These activities 
include;
    (1) Preliminary project cost estimates;
    (2) Certification of public involvement;
    (3) Consultation and coordination with States and/or MPO's for a 
regionally significant projects;
    (4) Preliminary needs assessments; and
    (5) Preliminary environmental and archeological reviews.
    (b) The BIA regional office must work cooperatively with tribal, 
state, regional, and metropolitan transportation planning organizations 
concerning the leveraging of funds from non-IRR Program sources and 
identification of other funding sources to expedite the planning, 
design, and construction of projects on the IRRTIP.

                   Transportation Improvement Program



Sec. 170.420  What is the tribal priority list?

    The tribal priority list is a list of all transportation projects 
that the tribe wants funded. The list:
    (a) May or may not identify projects in order of priority;
    (b) Is not financially constrained; and
    (c) Is provided to BIA by official tribal action, unless the tribal 
government submits a Tribal Transportation Improvement Program (TTIP).



Sec. 170.421  What is the Tribal Transportation Improvement Program 
(TTIP)?

    The TTIP:
    (a) Must be consistent with the tribal long-range transportation 
plan;
    (b) Must contain all IRR Program funded projects programmed for 
construction in the next 3 to 5 years;
    (c) Must identify the implementation year of each project scheduled 
to begin within the next 3 to 5 years;
    (d) May include other Federal, State, county, and municipal, 
transportation projects initiated by or developed in cooperation with 
the tribal government;
    (e) Will be reviewed and updated as necessary by the tribal 
government;
    (f) Can be changed only by the tribal government; and
    (g) Must be forwarded to BIA by resolution or by tribally authorized 
government action for inclusion into the IRRTIP.



Sec. 170.422  What is the IRR Transportation Improvement Program 
(IRRTIP)?

    The IRRTIP:
    (a) Is financially constrained;
    (b) Must include eligible projects from tribal TTIPs;
    (c) Is selected by tribal governments from TTIPs or other tribal 
actions;
    (d) Is organized by year, State, and tribe; and

[[Page 591]]

    (e) May include non-IRR projects for inclusion into the State 
Transportation Improvement Program (STIP).



Sec. 170.423  How are projects placed on the IRRTIP?

    (a) BIA selects projects from the TTIP or tribal priority list for 
inclusion on the IRRTIP as follows:
    (1) The tribal government develops a list of detailed tasks and 
information for each project from the tribal priority list or TTIP;
    (2) BIA includes this project information in its region-wide control 
schedule without change, unless the funding required exceeds the amount 
available to the tribe;
    (3) BIA must include projects that are scheduled in the next 3 to 5 
years; and
    (4) BIA develops the IRRTIP after consulting with the tribes and 
taking their priorities into account.
    (b) A tribe that does not generate enough annual funding under the 
IRR Program funding formula to complete a project may either:
    (1) Submit its tribal priority list to the appropriate BIA Region, 
which will develop the region-wide control schedule after consulting 
with the tribe and taking its priorities into account; or
    (2) Enter a consortium of tribes and delegate authority to the 
consortium to develop the TTIP and tribal control schedule;
    (3) Enter into agreement with other tribes to permit completion of 
the project; or
    (4) Apply for IRRHPP funding under subpart C.
    (c) In order to get a project on the IRRTIP, tribes may seek 
flexible financing alternatives as described in subpart C.



Sec. 170.424  How does the public participate in developing the IRRTIP?

    Public involvement is required in the development of the IRRTIP.
    (a) BIA or the tribe must publish a notice in local and tribal 
newspapers when the draft tribal or IRRTIP is complete. In the absence 
of local public newspapers, the tribe or BIA may post notices under 
local acceptable practices. The notice must indicate where a copy can be 
obtained, contact person for questions, where comments may be submitted, 
and the deadline for submitting comments.
    (b) BIA or the tribe may hold public meetings at which the public 
may comment orally or in writing.
    (c) BIA, the tribe, the State transportation agency or MPO may 
conduct public involvement activities.



Sec. 170.425  How does BIA update the IRRTIP?

    The IRRTIP annual update allows incorporation of transportation 
projects planned for the next 3 to 5 years. Each BIA regional office 
updates the IRRTIP for each State in its service area to reflect changes 
in the TTIPs or tribal project listings.
    (a) During the first quarter of the fiscal year each BIA Regional 
Office notifies tribes of the update and provides projected IRR Program 
funding amounts and a copy of the previous year's regional IRRTIP.
    (b) The tribe reviews any new transportation planning information, 
priority lists, and TTIP and forwards an updated TTIP or project listing 
to BIA Regional Office on or before July 15.
    (c) The BIA regional office reviews all submitted information with 
the tribes. BIA adds agreed-upon updates, including previously approved 
amendments (see Sec. 170.427), to the IRRTIP so that the Secretaries 
can approve the new updated IRRTIP before the start of the next fiscal 
year.



Sec. 170.426  What is the approval process for the IRRTIP?

    The approval process for the IRRTIP is:
    (a) The BIA Regional Office forwards the IRRTIP to the Secretaries 
for review and approval;
    (b) Federal Lands Highway Office will provide copies of the approved 
IRRTIP to the FHWA division office for transmittal to the State 
transportation agency for inclusion in the State Transportation 
Improvement Program (STIP). The approved IRRTIP will be returned to BIA;
    (c) BIA sends copies of the approved IRRTIP to BIA Regional Offices 
and tribal governments; and

[[Page 592]]

    (d) Within 10 working days of receiving the approved IRRTIP and IRR 
Program funds, BIA enters the projects into the Federal finance system.



Sec. 170.427  How may an IRRTIP be amended?

    (a) A tribe may amend the IRRTIP by changing its TTIP on or before 
July 15 and submitting the changed TTIP to BIA for inclusion in the 
IRRTIP. BIA's regional office will review all submitted information with 
the tribe and provide a written response (approving, denying, or 
requesting additional information) within 45 days. If the proposed 
IRRTIP amendment contains a project not listed on the current approved 
IRRTIP, BIA must submit the proposed amendment to FHWA for final 
approval.
    (b) BIA may amend the IRRTIP:
    (1) To add or delete projects or reflect significant changes in 
scope at any time if requested by the tribe; and
    (2) To reduce funding or reschedule a project after consulting with 
the affected tribe and obtaining its consent, if practical.
    (c) The Secretary may not reduce funding for or reschedule a project 
that is the subject of a negotiated agreement, except under the terms of 
the agreement.
    (d) BIA amends the IRRTIP using the same public involvement process 
used to develop the original IRRTIP.



Sec. 170.428  How is the State Transportation Improvement Program 
related to the IRRTIP?

    The annual update of the IRRTIP for each State in a BIA regional 
office's service area should be coordinated with the State 
transportation agencies. This will ensure that approved IRRTIP updates 
and amendments are included with the STIP.

                             Public Hearings



Sec. 170.435  How does BIA or the tribe determine the need for a public 
hearing?

    The tribe, or BIA after consultation with the appropriate tribe and 
other involved agencies, determines whether or not a public hearing is 
needed for an IRRTIP, long-range transportation plan or project. A 
public hearing must be held if a project:
    (a) Is a new route or facility;
    (b) Would significantly change the layout or function of connecting 
or related roads or streets;
    (c) Would cause a substantial adverse effect on adjacent property; 
or
    (d) Is controversial or expected to be controversial in nature.



Sec. 170.436  How are public hearings for IRR planning and projects 
funded?

    (a) Public hearings for IRR planning are funded as follows:
    (1) Public hearings for TTIPS and long-range transportation plans 
conducted by tribes are funded using the funds defined in title 23 
U.S.C. 204(j) or IRR Program construction funds; and
    (2) Public hearings for a tribe's long-range transportation plan 
conducted by BIA at the tribe's request are funded using the tribes' 
funds as defined in title 23 U.S.C. 204(j) or IRR Program construction 
funds.
    (b) Public hearings for IRR projects conducted by either tribes or 
BIA are funded using IRR Program construction funds.



Sec. 170.437  How must BIA or a tribe inform the public when no hearing 
is held?

    (a) When no public hearing for an IRR project is scheduled, either 
the tribe or BIA must give adequate notice to the public before project 
activities are scheduled to begin. The notice should include:
    (1) Project location;
    (2) Type of improvement planned;
    (3) Dates and schedule for work;
    (4) Name and address where more information is available; and
    (5) Provisions for requesting a hearing.
    (b) If the work is not to be performed by the tribe, BIA must send a 
copy of the notice to the affected tribe.



Sec. 170.438  How must BIA or a tribe inform the public when a hearing 
is held?

    When BIA or a tribe holds a hearing under this part, it must notify 
the public of the hearing by publishing a notice.
    (a) The public hearing notice is a document containing:

[[Page 593]]

    (1) Date, time, and place of the hearing;
    (2) Planning activities or project location;
    (3) Proposed work to be done, activities to be conducted, etc.;
    (4) Where preliminary plans, designs or specifications may be 
reviewed; and
    (5) How and where to get more information.
    (b) BIA or the tribe must publish the notice:
    (1) By posting and/or publishing the notice at least 30 days before 
the public hearing. A second notice for a hearing is optional; and,
    (2) By sending a courtesy copy of the notice to the affected 
tribe(s) and BIA Regional Office.



Sec. 170.439  How is a public hearing conducted?

    (a) Who conducts the hearing. A tribal or Federal official is 
appointed to preside over the public hearing. The official presiding 
over the hearing must maintain a free and open discussion of the issues.
    (b) Record of hearing. The presiding official is responsible for 
compiling the official record of the hearing. A record of a hearing is a 
summary of oral testimony and all written statements submitted at the 
hearing. Additional written comments made or provided at the hearing, or 
within 5 working days of the hearing, will be made a part of the record.
    (c) Hearing process. (1) The presiding official explains the purpose 
of the hearing and provides an agenda;
    (2) The presiding official solicits public comments from the 
audience on the merits of IRR projects and activities; and
    (3) The presiding official informs the hearing audience of the 
appropriate procedures for a proposed IRR project or activity, that may 
include, but are not limited to:
    (i) Project development activities;
    (ii) Rights-of-way acquisition;
    (iii) Environmental and archeological clearance;
    (iv) Relocation of utilities and relocation services;
    (v) Authorized payments allowed by the Uniform Relocation and Real 
Property Acquisition Policies Act, 42 U.S.C. 4601 et seq., as amended;
    (vi) Draft transportation plan; and
    (vii) The scope of the project and its effect on traffic during and 
after construction.
    (d) Availability of information. Appropriate maps, plats, project 
plans and specifications will be available at the hearing for public 
review. Appropriate officials are present to answer questions.
    (e) Opportunity for comment. Comments are received as follows:
    (1) Oral statement at the hearing;
    (2) Written statement submitted at the hearing;
    (3) Written statement sent to the address noted in the hearing 
notice within 5 working days following the public hearing.



Sec. 170.440  How can the public learn the results of a public hearing?

    Results of a public hearing are available as follows:
    (a) Within 20 working days of the completion of the public hearing, 
the presiding official issues a hearing statement summarizing the 
results of the public hearing and the determination of needed further 
action.
    (b) The presiding official posts the hearing statement at the 
hearing site. The public may request a copy. The hearing statement 
outlines appeal procedures.



Sec. 170.441  Can a decision resulting from a hearing be appealed?

    Yes. A decision resulting from the public hearing may be appealed 
pursuant to 25 CFR part 2.

                              IRR Inventory



Sec. 170.442  What is the IRR Inventory?

    (a) The IRR Inventory is a comprehensive database of all 
transportation facilities eligible for IRR Program funding by tribe, 
reservation, BIA agency and region, Congressional district, State, and 
county. Other specific information collected and maintained under the 
IRR Program includes classification, route number, bridge number, 
current and future traffic volumes, maintenance responsibility, and 
ownership.

[[Page 594]]

    (b) Elements of the inventory are used in the Relative Need 
Distribution Factor. BIA or tribes can also use the inventory to assist 
in transportation and project planning, justify expenditures, identify 
transportation needs, maintain existing IRR transportation facilities, 
and develop management systems.



Sec. 170.443  How can a tribe list a proposed transportation facility 
in the IRR Inventory?

    A proposed IRR transportation facility is any transportation 
facility, including a highway bridge, that will serve public 
transportation needs, is eligible for construction under the IRR Program 
and does not currently exist. To be included in the IRR inventory, a 
proposed transportation facility must:
    (a) Be supported by a tribal resolution or other official tribal 
authorization;
    (b) Address documented transportation needs as developed by and 
identified in tribal transportation planning efforts, such as the long-
range transportation plan;
    (c) Be eligible for IRR Program funding; and
    (d) Be open to the public when built.



Sec. 170.444  How is the IRR Inventory updated?

    The IRR Inventory data for a tribe is updated on an annual basis as 
follows:
    (a) Each BIA Regional Office provides the tribes in its region 
copies of the IRR Inventory by November 1st of each year;
    (b) The tribe reviews the data and submits changes (together with a 
strip map of each change) to the BIA Regional Office along with 
authorizing resolutions or similar official authorization by March 15;
    (c) The BIA Regional Office reviews each tribe's submission for 
errors or omissions and provides the tribe with its revised inventory by 
May 15;
    (d) The tribe must correct any errors or omissions by June 15;
    (e) Each BIA Regional Office certifies its data and enters the data 
into the IRR Inventory by July 15;
    (f) BIA provides each tribe with copies of the Relative Need 
Distribution Factor distribution percentages by August 15; and
    (g) BIADOT approves submissions from BIA Regional Offices before 
they are included in the National IRR Inventory.



Sec. 170.445  What is a strip map?

    A strip map is a graphic representation of a section of road or 
other transportation facility being added to or modified in the IRR 
Inventory. Each strip map submitted with an IRR Inventory change must:
    (a) Define the facility's location with respect to State, county, 
tribal, and congressional boundaries;
    (b) Define the overall dimensions of the facility and the 
accompanying inventory data;
    (c) Include a table that provides the IRR Inventory information 
about the transportation facility.

              Environmental and Archeological Requirements



Sec. 170.450  What archeological and environmental requirements must 
the IRR Program meet?

    (a) The archeological and environmental requirements with which BIA 
must comply on the IRR Program are contained in Appendix A to this 
subpart.
    (b) The archeological and environmental requirements for tribes that 
enter into self-determination contracts or self-governance agreements 
for the IRR Program are in 25 CFR 900.125 and 1000.243.



Sec. 170.451  Can IRR Program funds be used for archeological and 
environmental compliance?

    Yes. For approved IRR projects, IRR Program funds can be used for 
environmental and archeological work consistent with 25 CFR 
900.125(c)(6) and (c)(8) and 25 CFR 1000.243(b) and applicable tribal 
laws for:
    (a) Road and bridge rights-of-way;
    (b) Borrow pits and aggregate pits associated with IRR activities 
staging areas;
    (c) Limited mitigation outside of the construction limits as 
necessary to address the direct impacts of the construction activity as 
determined in the

[[Page 595]]

environmental analysis and after consultation with the affected tribe(s) 
and the appropriate Secretary(s); and
    (d) Construction easements.

                                 Design



Sec. 170.454  What design standards are used in the IRR Program?

    (a) Appendix B to this subpart lists design standards that BIA may 
use for the IRR program.
    (b) BIA may also use FHWA-approved State or tribal design standards.
    (c) Tribes may propose road and bridge design standards to be used 
in the IRR Program that are consistent with or exceed applicable Federal 
standards. The standards may be negotiated between BIA and the tribe and 
included in a self-determination contract or self-governance agreement.



Sec. 170.455  How are design standards used in IRR projects?

    The standards in this section must be applied to each construction 
project consistent with a minimum 20-year design life for highway 
projects and 75-year design life for highway bridges. The design of IRR 
projects must take into consideration:
    (a) The existing and planned future use of the IRR transportation 
facility in a manner that is conducive to safety, durability, and 
economy of maintenance;
    (b) The particular needs of each locality, and the environmental, 
scenic, historic, aesthetic, community, and other cultural values and 
mobility needs in a cost-effective manner; and
    (c) Access and accommodation for other modes of transportation.



Sec. 170.456  When can a tribe request an exception from the design 
standards?

    A tribe can request an exception from the design standards in 
Appendix B of this subpart under the conditions in this section. The 
tribe must submit its request for a design exception to the BIA Regional 
Office for approval. If the BIA Regional Office has design exception 
approval authority within their IRR Stewardship Plan with FHWA, they may 
approve or decline the request; otherwise BIA forwards the request to 
FHWA. The engineer of record must submit written documentation with 
appropriate supporting data, sketches, details, and justification based 
on engineering analysis.
    (a) FHWA or BIA may grant exceptions for:
    (1) Experimental features on projects; and
    (2) Projects where conditions warrant that exceptions be made.
    (b) FHWA or BIA can approve a project design that does not conform 
to the minimum criteria only after giving due consideration to all 
project conditions, such as:
    (1) Maximum service and safety benefits for the dollar invested;
    (2) Compatibility with adjacent features; and
    (3) Probable time before reconstruction of the project due to 
changed conditions or transportation demands.
    (c) FHWA or BIA have 30 days from receiving the request to approve 
or decline the exception.



Sec. 170.457  Can a tribe appeal a denial?

    Yes. If BIA denies a design exception request made by a tribe, the 
decision may be appealed to FHWA. Tribes may appeal the denial of a 
design exception to: FHWA, 400 7th St., SW., HFL-1, Washington, DC 
20590. If FHWA denies a design exception, the tribe may appeal the 
decision to the next higher level of review within the Department of 
Transportation at the Office of the FHWA Administrator, 400 7th Street, 
SW., HOA-1, Washington, DC 20590.

       Review and Approval of Plans, Specifications, and Estimates



Sec. 170.460  What must a project package include?

    (a) The minimum requirements for a project package are:
    (1) Plans;
    (2) Specifications; and
    (3) Estimates.
    (b) In order to receive project approval the following additional 
items are required:
    (1) A tribal resolution or other authorized document supporting the 
project;
    (2) Right-of-way clearances;
    (3) Required environmental, archeological, and cultural clearances; 
and

[[Page 596]]

    (4) Identification of design exceptions if used in the plans.
    (c) A tribe may include additional items at its option.



Sec. 170.461  May a tribe approve plans, specifications, and estimates?

    A tribe may review and approve plan, specification, and estimate 
(PS&E) project packages for IRR Program funded projects when:
    (a) This function is included in the tribe's self-determination 
contract or self-governance agreement; or
    (b) The tribe is the owner of the IRR transportation facility or is 
responsible for maintaining the facility. In this case, the tribe must 
have at least 30 days to review and approve the proposed PS&E package.



Sec. 170.462  When may a self-determination contract or self-governance 
agreement include PS&E review and approval?

    (a) For a BIA or tribally-owned facility, the tribe may assume 
responsibility to review and approve PS&E packages under a self-
determination contract or self-governance agreement if the tribe 
specifies in the contract or agreement that:
    (1) A licensed professional engineer will supervise design and 
approval of the PS&E package;
    (2) A licensed professional engineer will certify that the PS&E 
meets or exceeds the design, health, and safety standards in appendix B 
to subpart D for an IRR transportation facility;
    (3) An additional licensed professional engineer (either a BIA 
engineer or, if the tribe chooses, a non-BIA engineer) will review the 
PS&E package when it is at least 95 percent complete; and
    (4) If the project is to be performed by the tribe, the tribe will 
provide a copy of the certification and approved PS&E package to BIA 
before the solicitation of the project or notice to proceed.
    (b) For a facility maintained by a public authority other than BIA 
or a tribe, in addition to satisfying the requirements of paragraph (a) 
of this section:
    (1) The public authority must have a chance to review and approve 
the PS&E when it is between 75 percent and 95 percent complete, unless 
an agreement between the tribe and the public authority states 
otherwise;
    (2) If a licensed professional engineer performs the review and 
approval when the PS&E provided is at least 95 percent complete, the 
second level review requirement in paragraph (a)(2) of this section is 
satisfied; and
    (3) The tribe must allow the public authority at least 30 days for 
review and approval. If the public authority does not meet this deadline 
or an extension granted by the tribe, the tribe may proceed with the 
review in accordance with paragraph (a)(2) of this section.
    (c) If a BIA engineer does not complete a review within 30 days 
under paragraph (a)(2) of this section, the tribe may contract its own 
engineer to perform the review.



Sec. 170.463  What should the Secretary do if a design deficiency 
is identified?

    If a review under Sec. 170.462 identifies a design deficiency that 
may jeopardize public health and safety if the facility is completed, 
the Secretary must:
    (a) For a tribally-approved PS&E package, immediately notify the 
tribe of the design deficiency and request that the tribe promptly 
resolve the deficiency in accordance with the standards in appendix B to 
subpart D; and
    (b) For a BIA-approved PS&E package, promptly resolve the deficiency 
in accordance with the standards in appendix B to subpart D and notify 
the tribe of the required design changes.

                Construction and Construction Monitoring



Sec. 170.470  What are the IRR construction standards?

    (a) Appendix B to this subpart lists design standards that may be 
used for roads and bridges.
    (1) Tribes may propose road and highway bridge construction 
standards that are consistent with or exceed these standards.
    (2) BIA may also use FHWA-approved, State or tribal road and highway 
bridge construction standards.
    (b) For designing and building eligible intermodal projects funded 
by the IRR Program, tribes must use either:

[[Page 597]]

    (1) Nationally recognized standards for comparable projects; or
    (2) Tribally adopted standards that meet or exceed nationally 
recognized standards for comparable projects.



Sec. 170.471  How are projects administered?

    (a) When a tribe carries out an IRR project under ISDEAA, BIA will 
monitor performance under the requirements of 25 CFR 900.130 and 
900.131(b)(9) or 25 CFR 1000.243 and 1000.249(c) and (e), as 
appropriate. If BIA discovers a problem during an on-site monitoring 
visit, BIA must promptly notify the tribe and, if asked, provide 
technical assistance.
    (b) BIA or the tribal government, as provided for under the contract 
or agreement, is responsible for day-to-day project inspections except 
for BIA monitoring under paragraph (a) of this section.
    (c) BIA must process substantial changes in the scope of a 
construction project in coordination with the affected tribe.
    (d) The tribe, other contractors, and BIA may perform quality 
control.
    (e) Only the licensed professional engineer may change an IRR 
project's plans, specifications, and estimates (PS&E) during 
construction.
    (1) For substantial changes, the original approving agency must 
review the change. The approving agency is the Federal, tribal, State, 
or local entity with PS&E approval authority over the project.
    (2) In making any substantial change, the approving agency must 
consult with the affected tribe and the entity having maintenance 
responsibility.
    (3) A change that exceeds the limits of available funding may be 
made only with the approving agency's consent.



Sec. 170.472  What construction records must tribes and BIA keep?

    The following table shows which IRR construction records BIA and 
tribes must keep and the requirements for access.

------------------------------------------------------------------------
                              Records that must be
        Record keeper                 kept                 Access
------------------------------------------------------------------------
(a) Tribe...................  All records required  BIA is allowed
                               by ISDEAA and 25      access to tribal
                               CFR 900.130-131 or    IRR construction
                               25 CFR 1000.243 and   records as required
                               1000.249, as          under 25 CFR
                               appropriate.          900.130, 900.131 or
                                                     25 CFR 1000.243 and
                                                     1000.249, as
                                                     appropriate.
(b) BIA.....................  Completed daily       Upon reasonable
                               reports of            advance request by
                               construction          a tribe, BIA must
                               activities            provide reasonable
                               appropriate to the    access to records.
                               type of
                               construction it is
                               performing.
------------------------------------------------------------------------



Sec. 170.473  What happens when a construction project ends?

    (a) At the end of a construction project, the agency or organization 
responsible for the project must make a final inspection. The inspection 
determines whether the project has been completed in reasonable 
conformity with the PS&E.
    (1) Appropriate officials from the tribe, BIA, and FHWA should 
participate in the inspection, as well as contractors and maintenance 
personnel.
    (2) All project information must be made available during final 
inspection and used to develop the IRR construction project closeout 
report. Some examples of project information are: Daily diaries, weekly 
progress reports, subcontracts, subcontract expenditures, salaries, 
equipment expenditures, as-built drawings, etc.
    (b) An IRR construction project closeout is the final accounting of 
all IRR construction project expenditures. It is the closing of the 
financial books of the Federal Government for that construction project. 
Closeout occurs after:
    (1) The final project inspection concludes; and
    (2) The facility owner makes final acceptance of the project.

[[Page 598]]



Sec. 170.474  Who conducts the project closeout?

    The following table shows who must conduct the IRR construction 
project closeout and develop the report.

----------------------------------------------------------------------------------------------------------------
 If the project was completed by . . .            then . . .               and the closeout report must . . .
----------------------------------------------------------------------------------------------------------------
(a) BIA...............................  The regional engineer or        (1) Summarize the construction project
                                         designee is responsible for     records to ensure compliance
                                         closing out the project and     requirements have been met;
                                         preparing the report.          (2) Review the bid item quantities and
                                                                         expenditures to ensure reasonable
                                                                         conformance with the PS&E and
                                                                         modifications;
                                                                        (3) Be completed within 120 calendar
                                                                         days of the date of acceptance of the
                                                                         IRR. construction project; and
                                                                        (4) Be provided to the affected tribes
                                                                         and the Secretaries.
(b) A tribe...........................  Agreements negotiated under     (1) Meet the requirements of ISDEAA;
                                         ISDEAA specify who is          (2) Comply with 25 CFR 900.130(d) and
                                         responsible for closeout and   131(b) (10) and 25 CFR 1000.249, as
                                         preparing the report.           applicable;
                                                                        (3) Be completed within 120 calendar
                                                                         days of the date of acceptance of the
                                                                         project; and
                                                                        (4) Be provided to all parties specified
                                                                         in the agreements negotiated under
                                                                         ISDEAA.
----------------------------------------------------------------------------------------------------------------

                 Program Reviews and Management Systems



Sec. 170.500  What program reviews do the Secretaries conduct?

    (a) BIADOT and FHWA annually conduct informal program reviews to 
examine program procedures and identify improvements. BIA must notify 
tribes of these informal program reviews. Tribes may send 
representatives to these meetings at their own expense. These reviews 
may be held in conjunction with either a national BIA transportation 
meeting or an IRR Program Coordinating Committee meeting.
    (b) FHWA, BIA, and affected tribes periodically conduct an IRR 
Program process review of each BIA regional office's processes, 
controls, and stewardship. The review provides recommendations to 
improve the processes and controls of the following activities that a 
BIA Regional Office performs:
    (1) Program Management and Oversight;
    (2) Transportation planning;
    (3) Design;
    (4) Contract administration;
    (5) Construction;
    (6) Financial management; and
    (7) Systems management and existing stewardship agreements.
    (c) After the IRR process review, the review team must:
    (1) Conduct an exit interview during which it makes a brief oral 
report of findings and recommendations to the BIA Regional Director and 
staff; and
    (2) Provide a written report of its findings and recommendations to 
the reviewed office, BIA, all participants, and affected tribal 
governments and organizations.



Sec. 170.501  What happens when the review process identifies areas 
for improvement?

    When the review process identifies areas for improvement:
    (a) The regional office must develop a corrective action plan;
    (b) BIADOT and FHWA review and approve the plan;
    (c) FHWA may provide technical assistance during the development and 
implementation of the plan; and
    (d) The reviewed BIA regional office implements the plan and reports 
either annually or biennially to BIADOT and FHWA on implementation 
accomplishments.



Sec. 170.502  Are management systems required for the IRR Program?

    (a) To the extent appropriate, the Secretaries must, in consultation 
with tribes, develop and maintain the following systems for the IRR 
Program:
    (1) Pavement management;
    (2) Safety management;
    (3) Bridge management; and
    (4) Congestion management.
    (b) Other management systems may include the following:
    (1) Public transportation facilities;
    (2) Public transportation equipment; and

[[Page 599]]

    (3) Intermodal transportation facilities and systems.
    (c) All management systems for the IRR Program must meet the 
requirements of 23 CFR part 973.
    (d) A tribe may enter into an ISDEAA contract or agreement to 
develop, implement, and maintain an alternative tribal management system 
for that tribe, provided that such systems are consistent with Federal 
management systems.



Sec. 170.503  How are IRR Program management systems funded?

    BIA uses IRR Program management funds to develop the nationwide IRR 
Program management systems. If a tribe elects to develop its own tribal 
management system based on the nationwide management system requirements 
in 23 CFR part 973, it may use for this purpose either:
    (a) The funds defined in 23 U.S.C. 204(j) for IRR Program tribal 
transportation planning; or
    (b) IRR Program construction funds.

                            Bridge Inspection



Sec. 170.504  When and how are bridge inspections performed?

    IRR bridge inspections must be performed at least every 2 years to 
update the NBI using criteria that meets or exceeds applicable Federal 
standards (23 CFR 650.305).
    (a) Federal standards for bridge inspections are found in 23 CFR 
part 650, subpart C.
    (b) Tribes may develop alternative bridge inspection standards, 
provided that these standards meet or exceed applicable Federal 
standards.



Sec. 170.505  How must bridge inspections be coordinated?

    This section applies to bridge inspectors working for BIA; for 
tribes under an ISDEAA contract or self-governance agreement; or for 
State, county, or local governments. Before performing an inspection, 
inspectors must:
    (a) Notify affected tribes and State and local governments that an 
inspection will occur;
    (b) Offer tribal and State and local governments the opportunity to 
accompany the inspectors; and
    (c) Otherwise coordinate with tribal and State and local 
governments.



Sec. 170.506  What are the minimum qualifications for certified bridge 
inspectors?

    The person responsible for the bridge inspection team must meet the 
qualifications for bridge inspectors as defined in 23 CFR part 650, 
subpart C.



Sec. 170.507  Who reviews bridge inspection reports?

    The person responsible for the bridge inspection team must send a 
copy of the inspection report to the BIA regional office. The regional 
office:
    (a) Reviews the report and furnishes a copy to the affected tribe 
for review, comment, and use in programming transportation projects; and
    (b) Sends the report to BIADOT for quality assurance and inclusion 
in the National Bridge Inventory (NBI).

      Appendix A to Subpart D--Cultural Resource and Environmental 
                    Requirements for the IRR Program

    All BIA work for the IRR Program must comply with cultural resource 
and environmental requirements under applicable Federal laws and 
regulations, including, but not limited to:
    1. 16 U.S.C. 1531, Endangered Species Act.
    2. 16 U.S.C. 4601, Land and Water Conservation Fund Act (Section 
6(f)).
    3. 16 U.S.C. 661-667d, Fish and Wildlife Coordination Act.
    4. 23 U.S.C. 138, Preservation of Parklands.
    5. 25 U.S.C. 3001-3013, Native American Graves Protection and 
Repatriation Act.
    6. 33 U.S.C. 1251, Federal Water Pollution Control Act and Clean 
Water Act.
    7. 42 U.S.C. 7401, Clean Air Act.
    8. 42 U.S.C. 4321, National Environmental Policy Act.
    9. 49 U.S.C. 303, Preservation of Parklands.
    10. 7 U.S.C. 4201, Farmland Protection Policy Act.
    11. 50 CFR part 402, Endangered Species Act regulations.
    12. 7 CFR part 658, Farmland Protection Policy Act regulations.
    13. 40 CFR part 93, Air Quality Conformity and Priority Procedures 
for use in Federal-aid Highway and Federally-Funded Transit Programs.
    14. 23 CFR part 771, Environmental Impact and Related Procedures.
    15. 23 CFR part 772, Procedures for Abatement of Highway Traffic 
Noises and Construction Noises.

[[Page 600]]

    16. 23 CFR part 777, Mitigation of Impacts To Wetlands and Natural 
Habitat.
    17. 36 CFR part 800, Protection of Historic Properties.
    18. 40 CFR parts 260-271, Resource Conservation and Recovery Act.
    19. Applicable tribal/State laws.
    20. Other applicable Federal laws and regulations.

      Appendix B to Subpart D--Design Standards for the IRR Program

    Depending on the nature of the project, tribes may use the following 
design standards. Additional standards may also apply. To the extent 
that any provisions of these standards are inconsistent with ISDEAA, 
these provisions do not apply.
    1. AASHTO Policy on Geometric Design of Highways and Streets.
    2. AASHTO A Guide for Transportation Landscape and Environmental 
Design.
    3. AASHTO Roadside Design Guide, latest edition.
    4. AASHTO Guide for Selecting, Locating and Designing Traffic 
Barriers, latest edition.
    5. AASHTO Standard Specifications for Highway Bridges, latest 
edition.
    6. AASHTO Guidelines of Geometric Design of Very Low-Volume Local 
Roads (ADT less than or equal to 400).
    7. FHWA Federal Lands Highway, Project Development and Design 
Manual.
    8. FHWA Flexibility in Highway Design.
    9. FHWA Roadside Improvements for Local Road and Streets.
    10. FHWA Improving Guardrail Installations and Local Roads and 
Streets.
    11. 23 CFR part 625, Design Standards for Highways.
    12. 23 CFR part 630, Preconstruction Procedures.
    13. 23 CFR part 633, Required Contract Provisions.
    14. 23 CFR part 635, Construction and Maintenance.
    15. 23 CFR part 645, Utilities.
    16. 23 CFR part 646, Railroads.
    17. 23 U.S.C. 106, PS&E.
    18. 23 U.S.C. 109, Standards.
    19. DOT Metric Conversion Plan, October 31, 1991.
    20. MUTCD Manual of Uniform Traffic Safety Devices, latest edition.
    21. Standard Specifications for Construction of Roads and Bridges on 
Federal Highway Projects, latest edition.



         Subpart E_Service Delivery for Indian Reservation Roads

                             Funding Process



Sec. 170.600  What must BIA include in the notice of availability of 
funds?

    (a) Upon receiving the total fiscal year of IRR Program funding from 
FHWA, BIA will publish a notice of availability of funds in the Federal 
Register that includes the following:
    (1) The total funding available to each region for IRR 
transportation planning, design, and construction projects based on each 
region's Relative Need Distribution Factor (RNDF) defined in subpart C;
    (2) The total funding available to each tribe based on its RNDF, 
along with prior year information on IRR Program funding by tribe that 
identifies over-funded or advance-funded tribes; and
    (3) A listing of FHWA-approved IRRTIP projects for each State within 
each BIA region.
    (b) Upon publication of the notice under this section, each BIA 
Regional Office must provide to each tribe within its region:
    (1) A proposed project listing used to develop the region's control 
schedule;
    (2) An offer to provide the tribe with technical assistance in 
preparing contract proposals;
    (3) The various options available to the tribe for IRR construction 
projects (force account methods, direct service, self-determination 
contract, and self-governance agreement); and
    (4) A request for a response from the tribe within 30 days.



Sec. 170.601  What happens to the unused portion of IRR Program 
management and oversight funds reserved by the Secretary?

    BIA distributes any unused IRR Program management and oversight 
funds to its Regional Offices using the RNDF (see subpart C). The 
Regional Offices use the funds for additional construction activities.



Sec. 170.602  If a tribe incurs unforeseen construction costs, can it 
get additional funds?

    Yes. To the extent feasible, the Secretary must pay for all costs 
incurred

[[Page 601]]

resulting from unforeseen circumstances of the construction process 
(i.e., cost overruns). If the Secretary is unable to fund the unforeseen 
costs in a cost reimbursable contract, the tribe may suspend performance 
of the contract until sufficient additional funds are awarded. (See 25 
CFR 900.130(e).)

                        Miscellaneous Provisions



Sec. 170.605  When may BIA use force account methods in the IRR Program?

    BIA may use force account methods in the IRR Program unless the 
tribe elects otherwise to enter into a self-determination contract or a 
self-governance agreement for the IRR Program. However, BIA must 
continue to consult with the tribe before using a force account under 
this situation. The applicable FAR and Federal law apply to BIA force 
account project activities.



Sec. 170.606  How do legislation and procurement requirements affect 
the IRR Program?

    Other legislation and procurement requirements apply to the IRR 
Program as shown in the following table.

----------------------------------------------------------------------------------------------------------------
                                Applies to tribes under
 Legislation, regulation or       self-determination        Applies to tribes under      Applies to activities
      other requirement                contracts          self-governance agreements  performed by the Secretary
----------------------------------------------------------------------------------------------------------------
Buy Indian Act..............  No                          No                          Yes.
Buy American Act............  No                          No                          Yes.
Federal Acquisition           No\1\                       No                          Yes.
 Regulation (FAR).
Federal Tort Claims Act.....  Yes                         Yes                         Yes.
Davis-Bacon Act.............  Yes \2\                     Yes \2\                     Yes.
----------------------------------------------------------------------------------------------------------------
\1\ Unless agreed to by the tribe or tribal organization under ISDEAA, 25 U.S.C. 450j(a), and 25 CFR part
  900.115.
\2\ Does not apply when tribe performs work with its own employees.



Sec. 170.607  Can a tribe use its allocation of IRR Program funds for 
contract support costs?

    Yes. Contract support costs are an eligible item out of a tribe's 
IRR Program allocation and need to be included in a tribe's project 
construction budget.



Sec. 170.608  Can a tribe pay contract support costs from Department 
of the Interior or BIA appropriations?

    No. Contract support costs for IRR construction projects cannot be 
paid out of Department of the Interior or BIA appropriations.

                  Contracts and Agreements Under ISDEAA



Sec. 170.610  What IRR Program functions may a tribe assume under ISDEAA?

    A tribe may assume all IRR Program functions and activities that are 
otherwise contractible under a self-determination contract or self-
governance agreement following the requirements in 25 CFR parts 900 or 
1000.
    (a) Tribes may use IRR Program project funds contained in their 
contracts or annual funding agreements for contractible supportive 
administrative functions.
    (b) Appendix A to this subpart contains a list of non-contractible 
functions and activities that cannot be included in contracts or 
agreements.



Sec. 170.611  What special provisions apply to ISDEAA contracts and 
agreements?

    (a) Multi-year contracts and agreements. The Secretary can enter 
into a multi-year IRR Program self-determination contract and self-
governance agreement with a tribe under sections 105(c)(1)(A) and (2) of 
ISDEAA. The amount of such contracts or agreements is subject to the 
availability of appropriations.
    (b) Consortia. Under Title I and Title IV of ISDEAA, tribes and 
multi-tribal organizations are eligible to assume

[[Page 602]]

IRR Programs under consortium contracts or agreements. For an 
explanation of self-determination contracts, refer to Title I, 25 U.S.C. 
450f. For an explanation of self-governance agreements, see Title IV, 25 
U.S.C. 450b(l) and 458b(b)(2).
    (c) Advance payments. The Secretary and the tribe must negotiate a 
schedule of advance payments as part of the terms of a self-
determination contract in accordance with 25 CFR 900.132.
    (d) Design and construction contracts. The Secretary can enter into 
a design/construct IRR Program self-determination contract that includes 
both the design and construction of one or more IRR projects. The 
Secretary may make advance payments to a tribe:
    (1) Under a self-determination design/construct contract for 
construction activities based on progress, need, and the payment 
schedule negotiated under 25 CFR 900.132; and
    (2) Under a self-governance agreement in the form of annual or 
semiannual installments as indicated in the agreement.



Sec. 170.612  How are non-contractible functions funded?

    (a) All non-contractible IRR program functions are funded by IRR 
Program management and oversight funds.
    (b) All non-contractible IRR project functions are funded by IRR 
Program construction funds.



Sec. 170.613  When does BIA determine the amount of funds needed for 
non-contractible non-project related functions?

    Each fiscal year the Secretary will develop national and regional 
BIA IRR Program budgets. Within the first quarter of each fiscal year 
BIA will publish a copy of the national and regional IRR budgets.



Sec. 170.614  Can a tribe receive funds before BIA publishes the notice 
of funding availability?

    A tribe can receive funds before BIA publishes the notice of funding 
availability required by Sec. 170.600(a)(1) only if the tribe has a 
negotiated self-determination contract or self-governance agreement.



Sec. 170.615  Can a tribe receive advance payments for non-construction 
activities?

    Yes. BIA must make advance payments to a tribe for non-construction 
activities under 25 U.S.C. 450l for self-determination contracts on a 
quarterly, semiannual, lump-sum, or other basis proposed by a tribe and 
authorized by law.



Sec. 170.616  How are advance payments made when additional IRR Program 
funds are made available after execution of the self-governance agreement?

    When additional IRR Program funds are available, following the 
procedures in 25 CFR 1000.104, tribes can request to use the additional 
funds for IRR Program activities or projects and have an addendum to the 
agreement executed.



Sec. 170.617  May a tribe include a contingency in its proposal budget?

    (a) A tribe with a self-determination contract may include a 
contingency amount in its proposed budget in accordance with 25 CFR 
900.127(e)(8).
    (b) A tribe with a self-governance agreement may include a project-
specific line item for contingencies if the tribe does not include its 
full IRR Program funding allocation in the agreement.
    (c) The amounts in both paragraphs (a) and (b) of this section must 
be within the RNDF allocation or within the negotiated ISDEAA contract 
or agreement.



Sec. 170.618  Can a tribe keep savings resulting from project 
administration?

    When actual costs of the projects under contracts or agreements for 
construction projects are less than the estimated costs, the Secretary 
will determine the use of the excess funds after consultation with the 
tribe. (See 25 U.S.C. 450e-2.)



Sec. 170.619  Do tribal preference and Indian preference apply to IRR 
Program funding?

    Tribal preference and Indian preference apply to IRR Program funding 
as shown in the following table:

[[Page 603]]



------------------------------------------------------------------------
                 If . . .                            Then . . .
------------------------------------------------------------------------
(a) A contract serves a single tribe......  Section 7(c) under Title I
                                             of ISDEAA allows tribal
                                             employment or contract
                                             preference laws, including
                                             tribe local preference
                                             laws, to govern.
(b) A contract serves more than one tribe.  Section 7(b) under Title I
                                             of ISDEAA applies.
(c) A self-governance agreement exists      25 CFR 1000.406 applies.
 under Title IV of ISDEAA.
------------------------------------------------------------------------



Sec. 170.620  How do ISDEAA's Indian preference provisions apply?

    This section applies when the Secretary or a tribe enters into a 
cooperative agreement with a State or local government for an IRR 
construction project. The tribe and the parties may choose to 
incorporate the provisions of section 7(b) of ISDEAA in a cooperative 
agreement.



Sec. 170.621  What if a tribe fails to substantially perform work under 
a contract or agreement?

    If a tribe fails to substantially perform work under a contract or 
agreement:
    (a) For self-determination contracts, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR 900.131(a)-(b) and 
ISDEAA, part 900 subpart L (appeals); and
    (b) For self-governance agreements, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR part 1000 subpart K.



Sec. 170.622  What IRR programs, functions, services, and activities 
are subject to the self-governance construction regulations?

    All IRR Program design and construction projects and activities, 
whether included separately or under a program in the agreement, are 
subject to the regulations in 25 CFR 1000 subpart K, including 
applicable exceptions.



Sec. 170.623  How are IRR Program projects and activities included 
in a self-governance agreement?

    To include an IRR Program project or activity in a self-governance 
agreement, the following information is required:
    (a) A line item for each project or activity;
    (b) Sufficient detail to describe the work as included in the FHWA-
approved IRRTIP and Control Schedule; and
    (c) All other information required under 25 CFR 1000 subpart K.



Sec. 170.624  Is technical assistance available?

    Yes. Technical assistance is available from BIA for tribes with 
questions about contracting the IRR Program or IRR projects. For tribes 
with questions about self-governance agreements for the IRR Program or 
IRR project(s), technical assistance is available from the Office of 
Self-Governance and BIA. Technical assistance can include, but is not 
limited to, assistance in the preparation of self-determination contract 
proposal(s) and self-governance agreements.



Sec. 170.625  What regulations apply to waivers?

    The following regulations apply to waivers:
    (a) For self-determination contracts, 25 CFR 900.140-148;
    (b) For self-governance agreements, 25 CFR 1000.220-232; and
    (c) For direct service, 25 CFR 1.2.



Sec. 170.626  How does a tribe request a waiver of a Department of 
Transportation regulation?

    A tribe must follow the procedures in ISDEAA, Title I, and 25 CFR 
900.140-148 for self-determination contracts and Title IV, 25 CFR 
1000.220-232 for tribal self-governance agreements. A courtesy copy of 
the request should be sent to the Secretary of Transportation at: 400 
7th St., SW., HFL-1, Washington, DC 20590. When a waiver request is 
outside the Secretary's authority, the Secretary should forward the 
request to the Secretary of Transportation.

 Appendix A to Subpart E--IRR Program Functions That Are Not Otherwise 
                              Contractible

    The program functions listed in this appendix cannot be included in 
a self-determination contract or self-governance agreement. (23 U.S.C. 
202(d)(3)(B))
    A. IRR project-related pre-contracting activities:
    1. Notifying tribes of available funding including the right of 
first refusal; and

[[Page 604]]

    2. Providing technical assistance.
    B. IRR project-related contracting activities:
    1. Providing technical assistance;
    2. Reviewing all scopes of work under 25 CFR 900.122;
    3. Evaluating proposals and making declination decisions, if 
warranted;
    4. Performing declination activities;
    5. Negotiating and entering into contracts or agreements with State, 
tribal, and local governments and other Federal agencies;
    6. Processing progress payments or contract payments;
    7. Approving contract modifications;
    8. Processing claims and disputes with tribal governments; and
    9. Closing out contracts or agreements.
    C. Planning activities:
    1. Reviewing IRR transportation improvement programs developed by 
tribes or other contractors;
    2. Reviewing IRR long-range transportation plans developed by tribes 
or other contractors; and
    3. Performing other Federal responsibilities identified in the IRR 
Transportation Planning Procedures and Guidelines manual.
    D. Environmental and historical preservation activities:
    1. Reviewing and approving all items required for environmental 
compliance; and
    2. Reviewing and approving all items required for archaeological 
compliance.
    E. Processing rights-of-way:
    1. Reviewing rights-of-way applications and certifications;
    2. Approving rights-of-way documents;
    3. Processing grants and acquisition of rights-of-way requests for 
tribal trust and allotted lands under 25 CFR part 169;
    4. Responding to information requests;
    5. Filing Affidavit of Completion Forms; and
    6. Performing custodial functions related to storing rights-of-way 
documents.
    F. Conducting project development and design under 25 CFR 900.131:
    1. Participating in the plan-in-hand reviews on behalf of BIA as 
facility owner;
    2. Reviewing and/or approving plans, specifications, and cost 
estimates (PS&E's) for health and safety assurance on behalf of BIA as 
facility owner;
    3. Reviewing PS&E's to assure compliance with NEPA as well as all 
other applicable Federal laws; and
    4. Reviewing PS&E's to assure compliance with or exceeding Federal 
standards for IRR design and construction.
    G. Construction:
    1. Making application for clean air/clean water permits as facility 
owner;
    2. Ensuring that all required State/tribal/Federal permits are 
obtained;
    3. Performing quality assurance activities;
    4. Conducting value engineering activities as facility owner;
    5. Negotiating with contractors on behalf of Federal Government;
    6. Approving contract modifications/change orders;
    7. Conducting periodic site visits;
    8. Performing all Federal Government required project-related 
activities contained in the contract documents and required by 25 CFR 
parts 900 and 1000;
    9. Conducting activities to assure compliance with safety plans as a 
jurisdictional responsibility hazardous materials, traffic control, 
OSHA, etc.;
    10. Participating in final inspection and acceptance of project 
documents as-built drawings on behalf of BIA as facility owner; and
    11. Reviewing project closeout activities and reports.
    H. Other activities:
    1. Performing other non-contractible required IRR project activities 
contained in this part, ISDEAA and part 1000; and
    2. Other Title 23 non-project-related management activities.
    I. BIADOT program management:
    1. Developing budget on needs for the IRR Program;
    2. Developing legislative proposals;
    3. Coordinating legislative activities;
    4. Developing and issuing regulations;
    5. Developing and issuing IRR planning, design, and construction 
standards;
    6. Developing/revising interagency agreements;
    7. Developing and approving IRR Program stewardship agreements in 
conjunction with FHWA;
    8. Developing annual IRR Program obligation and IRR Program 
accomplishments reports;
    9. Developing reports on IRR Program project expenditures and 
performance measures for the Government Performance and Results Act 
(GPRA);
    10. Responding to/maintaining data for congressional inquiries;
    11. Developing and maintaining funding formula and its database;
    12. Allocating IRR Program and other transportation funding;
    13. Providing technical assistance to tribe/tribal organizations/
agencies/regions;
    14. Providing national program leadership for: National Scenic 
Byways Program, Public Lands Highways Discretionary Program, 
Transportation Enhancement Program, Indian Local Technical Assistance 
Program, Recreational Travel and Tourism, Transit Program, ERFO Program, 
Presidential initiatives (Millennium Trails, Lewis & Clark, Western 
Tourism Policy Group);
    15. Participating in and supporting tribal transportation 
association meetings;

[[Page 605]]

    16. Coordinating with and monitoring Indian Local Technical 
Assistance Program centers;
    17. Planning, coordinating, and conducting BIA/tribal training;
    18. Developing information management systems to support consistency 
in data format, use, etc., with the Secretary of Transportation for the 
IRR Program;
    19. Participating in special transportation related workgroups, 
special projects, task forces and meetings as requested by tribes;
    20. Participating in national, regional, and local transportation 
organizations;
    21. Participating in and supporting FHWA Coordinated Technology 
Implementation program;
    22. Participating in national and regional IRR Program meetings;
    23. Consulting with tribes on non-project related IRR Program 
issues;
    24. Participating in IRR Program, process, and product reviews;
    25. Developing and approving national indefinite quantity service 
contracts;
    26. Assisting and supporting the IRR Coordinating Committee;
    27. Processing IRR Bridge program projects and other discretionary 
funding applications or proposals from tribes;
    28. Coordinating with FHWA;
    29. Performing stewardship of the IRR Program;
    30. Performing oversight of the IRR Program and its funded 
activities;
    31. Performing any other non-contractible IRR Program activity 
included in this part; and
    32. Determining eligibility of new uses of IRR Program funds.
    J. BIADOT Planning:
    1. Maintaining the official IRR inventory;
    2. Reviewing long-range transportation plans;
    3. Reviewing and approving IRR transportation improvement programs;
    4. Maintaining nationwide inventory of IRR strip and atlas maps;
    5. Coordinating with tribal/State/regional/local governments;
    6. Developing and issuing procedures for management systems;
    7. Distributing approved IRR transportation improvement programs to 
BIA regions;
    8. Coordinating with other Federal agencies as applicable;
    9. Coordinating and processing the funding and repair of damaged 
Indian Reservation Roads with FHWA;
    10. Calculating and distributing IRR transportation planning funds 
to BIA regions;
    11. Reprogramming unused IRR transportation planning funds at the 
end of the fiscal year;
    12. Monitoring the nationwide obligation of IRR transportation 
planning funds;
    13. Providing technical assistance and training to BIA regions and 
tribes;
    14. Approving Atlas maps;
    15. Reviewing IRR inventory information for quality assurance; and
    16. Advising BIA regions and tribes of transportation funding 
opportunities.
    K. BIADOT engineering:
    1. Participating in the development of design/construction standards 
with FHWA;
    2. Developing and approving design/construction/maintenance 
standards;
    3. Conducting IRR Program/product reviews; and
    4. Developing and issuing technical criteria for management systems.
    L. BIADOT responsibilities for bridges:
    1. Maintaining BIA National Bridge Inventory information/database;
    2. Conducting quality assurance of the bridge inspection program;
    3. Reviewing and processing IRR Bridge program applications;
    4. Participating in second level review of IRR bridge PS-E's; and
    5. Developing criteria for bridge management systems.
    M. BIADOT responsibilities to perform other non-contractible 
required IRR Program activities contained in this part.
    N. BIA regional offices program management:
    1. Designating IRR System roads;
    2. Notifying tribes of available funding;
    3. Developing state IRR transportation improvement programs;
    4. Providing FHWA-approved IRR transportation improvement programs 
to tribes;
    5. Providing technical assistance to tribes/tribal organizations/
agencies;
    6. Funding common services as provided as part of the region/agency/
BIA Division of Transportation IRR Program costs;
    7. Processing and investigating non-project related tort claims;
    8. Preparing budgets for BIA regional and agency IRR Program 
activities;
    9. Developing/revising interagency agreements;
    10. Developing control schedules/transportation improvement 
programs;
    11. Developing regional IRR Program stewardship agreements;
    12. Developing quarterly/annual IRR Program obligation and program 
accomplishments reports;
    13. Developing reports on IRR project expenditures and performance 
measures for Government Performance and Results Act (GPRA);
    14. Responding to/maintaining data for congressional inquiries;
    15. Participating in Indian transportation association meetings;
    16. Participating in Indian Local Technical Assistance Program 
(LTAP) meetings and workshops;

[[Page 606]]

    17. Participating in BIA/tribal training development highway safety, 
work zone safety, etc.;
    18. Participating in special workgroups, task forces, and meetings 
as requested by tribes and BIA region/agency personnel;
    19. Participating in national, regional, or local transportation 
organizations meetings and workshops;
    20. Reviewing Coordinated Technology Implementation Program project 
proposals;
    21. Consulting with tribal governments on non-project related 
program issues;
    22. Funding costs for common services as provided as part of BIA IRR 
region/agency/contracting support costs;
    23. Reviewing IRR Atlas maps;
    24. Processing Freedom of Information Act (FOIA) requests;
    25. Monitoring the obligation and expenditure of all IRR Program 
funds allocated to BIA region;
    26. Performing activities related to the application for ERFO funds, 
administration, and oversight of such funds; and
    27. Participating in IRR Program, process, and product reviews.
    O. BIA regional offices' planning:
    1. Coordinating with tribal/State/regional/local government;
    2. Coordinating and processing the funding and repair of damaged 
Indian Reservation Roads with tribes;
    3. Reviewing and approving IRR Inventory data;
    4. Maintaining, reviewing, and approving the management systems 
databases;
    5. Reviewing and approving IRR State transportation improvement 
programs; and
    6. Performing Federal responsibilities identified in the IRR 
Transportation Planning Procedures and Guidelines manual.
    P. BIA regional offices' engineering:
    1. Approving tribal standards for the IRR Program use;
    2. Developing and implementing new engineering techniques in the IRR 
Program; and
    3. Providing technical assistance.
    Q. BIA regional offices' responsibilities for bridges:
    1. Reviewing and processing IRR bridge program applications;
    2. Reviewing and processing IRR bridge inspection reports and 
information; and
    3. Ensuring the safe use of roads and bridges.
R. BIA regional offices' other responsibilities for performing other 
          non-contractible required IRR Program activities contained in 
          this part.



             Subpart F_Program Oversight and Accountability



Sec. 170.700  What is the IRR Program stewardship plan?

    The IRR Program stewardship plan delineates the respective roles and 
responsibilities of BIA and FHWA in the administration of the IRR 
Program and the process used for fulfilling those roles and 
responsibilities.



Sec. 170.701  May a direct service tribe and BIA Region sign a 
Memorandum of Understanding?

    Yes. An IRR Program tribal/BIA region MOU is a document that a 
direct service tribe and BIA may enter into to help define the roles, 
responsibilities and consultation process between the regional BIA 
office and the Indian tribal government. It describes how the IRR 
Program will be carried out by BIA on the tribe's behalf.



Sec. 170.702  What activities may the Secretary review and monitor?

    The Secretary reviews and monitors the performance of construction 
activities under 25 CFR 900 subpart J and 25 CFR 1000 subpart K.



                     Subpart G_BIA Road Maintenance



Sec. 170.800  Who owns IRR transportation facilities?

    Public authorities such as tribes, States, counties, local 
governments, and the Federal Government own IRR transportation 
facilities.



Sec. 170.801  What is the BIA Road Maintenance Program?

    The BIA Road Maintenance Program covers the distribution and use of 
the funds provided by Congress in the annual Department of the Interior 
appropriations acts for maintaining transportation facilities. Appendix 
A to this subpart contains a list of activities that are eligible for 
funding under the BIA road maintenance program.



Sec. 170.802  How is road maintenance funded?

    (a) The U.S. Congress funds a BIA program for the maintenance of IRR 
transportation facilities as defined in

[[Page 607]]

this part through annual appropriations for the Department of the 
Interior.
    (b) The States, counties, and local governments fund the maintenance 
of IRR transportation facilities that they own or have agreed to 
maintain.
    (c) Tribal governments, at their discretion, may also provide for 
the maintenance of IRR transportation facilities.



Sec. 170.803  What facilities are eligible under the BIA Road Maintenance 
Program?

    (a) The following public transportation facilities are eligible for 
maintenance under the BIA Road Maintenance Program:
    (1) BIA transportation facilities listed in paragraph (b) of this 
section;
    (2) Non-BIA transportation facilities, if the tribe served by the 
facility feels that maintenance is required to ensure public health, 
safety, and economy, and if the tribe executes an agreement with the 
owning public authority within available funding;
    (3) Tribal transportation facilities such as public roads, highway 
bridges, trails, and bus stations; and
    (4) Other transportation facilities as approved by the Secretary.
    (b) The following BIA transportation facilities are eligible for 
maintenance under paragraph (a)(1) of this section:
    (1) BIA road systems and related road appurtenances such as signs, 
traffic signals, pavement striping, trail markers, guardrails, etc.;
    (2) Highway bridges and drainage structures;
    (3) Airport runways and heliport pads, including runway lighting;
    (4) Boardwalks;
    (5) Adjacent parking areas;
    (6) Maintenance yards;
    (7) Bus stations;
    (8) System public pedestrian walkways, paths, bike and other trails;
    (9) Motorized vehicle trails;
    (10) Public access roads to heliports and airports;
    (11) BIA and tribal post-secondary school roads and parking lots 
built with IRR Program funds; and
    (12) Public ferry boats and boat ramps.



Sec. 170.804  How is BIA's Road Maintenance Program related to the IRR 
Program?

    The following chart illustrates how BIA's Road Maintenance Program 
is related to other Title 23 U.S.C. programs:
[GRAPHIC] [TIFF OMITTED] TR19JY04.006


[[Page 608]]





Sec. 170.805  What are the local, tribal, and BIA roles in transportation 
facility maintenance?

    (a) State, county, and local governments normally perform the 
maintenance of their IRR transportation facilities.
    (b) Tribes may perform or provide for their maintenance 
responsibilities by formal agreement or other contracts with any other, 
State, county, or local government.
    (c) BIA's responsibility includes preparing annual budget requests 
under 23 U.S.C. 204(c) that include a report of the shortfalls in each 
BIA Region in appropriations of BIA Road Maintenance dollars.



Sec. 170.806  What is an IRR Transportation Facilities Maintenance 
Management System?

    An IRR Transportation Facilities Maintenance Management System 
(TFMMS) is a tool BIA and tribes will use to budget, prioritize, and 
schedule transportation facility maintenance activities. It will be used 
to extend the service life of an IRR transportation facility, ensure 
safety, and report future funding needs to the Secretary. BIA will 
develop the IRR TFMMS.



Sec. 170.807  What must BIA include when it develops an IRR 
Transportation Facilities Maintenance Management System?

    (a) At a minimum, an IRR TFMMS system must include components for:
    (1) Uniformly collecting, processing, and updating data;
    (2) Predicting facility deterioration;
    (3) Identifying alternative actions;
    (4) Projecting maintenance costs;
    (5) Tracking and reporting of actual maintenance costs and 
activities accomplished;
    (6) Forecasting short- and long-term budget needs;
    (7) Recommended programs and schedules for implementation within 
policy and budget constraints;
    (8) Tracking and reporting unmet needs; and
    (9) Ability to produce various reports, including customized 
reports.
    (b) The minimum data requirements include:
    (1) Cost of maintenance activity per mile broken down by surface 
type and frequency of activity;
    (2) Cost of bridge maintenance by surface area of deck and frequency 
of activity;
    (3) Cost of maintenance of other inter-modal facilities;
    (4) Information from other IRR Program management systems;
    (5) Future needs; and
    (6) Basic facility data including but not limited to route, bridge 
number, maintenance activity code, facility inspection dates.



Sec. 170.808  Can BIA Road Maintenance Program funds be used to improve 
IRR transportation facilities?

    No. BIA Road Maintenance Program funds cannot be used to improve 
roads or other IRR transportation facilities to a higher road 
classification, standard, or capacity.



Sec. 170.809  Can a tribe perform road maintenance under a 
self-determination contract or self-governance agreement?

    Yes. Any tribe may enter into a self-determination contract or self-
governance agreement to conduct BIA or tribal transportation facility 
maintenance under ISDEAA and 25 CFR part 900 or 1000. The self-
determination contract or self-governance agreement does not relieve BIA 
of its responsibility for maintenance.



Sec. 170.810  To what standards must an IRR transportation facility 
be maintained?

    IRR transportation facilities must be maintained, subject to 
availability of funding, in accordance with the IRR TFMMS. The Secretary 
will develop these standards with the input of the IRR Program 
Coordinating Committee. The Secretary must accept as interim standards 
any tribal maintenance standards that meet or exceed applicable Federal 
standards. Interim standards must include any of the following:
    (a) Appropriate National Association of County Engineers maintenance 
standards;
    (b) AASHTO road and bridge maintenance manuals, latest edition; or

[[Page 609]]

    (c) Other applicable Federal, State, tribal, or local government 
maintenance standards as may be negotiated in an ISDEAA road maintenance 
self-determination contract or self-governance agreement.



Sec. 170.811  What happens if lack of funds results in inadequate 
maintenance?

    If BIA determines that an IRR transportation facility is not being 
maintained under IRR TFMMS standards due to insufficient funding, the 
Secretary will notify the facility owner, and if tribal or BIA owned, 
continue to request annual maintenance funding for that facility. In 
addition, the Secretary will report these findings to Secretary of 
Transportation under 23 U.S.C. 204. The Secretary will provide a draft 
copy of the report to the affected tribe for comment before forwarding 
it to Secretary of Transportation.



Sec. 170.812  What is emergency maintenance?

    Emergency maintenance is work that must be accomplished immediately 
because of life threatening circumstances due to a catastrophic failure 
or natural disaster. Examples of emergency maintenance include: ice and 
snow control, traffic control, work in slide areas, repairs to drainage 
washouts, retrieving hazardous materials, suppressing wild fires, and 
repairing the ravages of other disasters.



Sec. 170.813  When can access to IRR transportation facilities be 
restricted?

    IRR transportation facilities must be open and available for public 
use, as are IRRs (Sec. 170.120).
    (a) The Secretary may, in consultation with a tribe and applicable 
private landowners, restrict or temporarily close an IRR transportation 
facility to public use for the following reasons:
    (1) Because of unsafe conditions;
    (2) Because of natural disasters;
    (3) For fish or game protection;
    (4) To prevent traffic from causing damage to the facility; and
    (5) For reasons deemed to be in the public interest such as fire 
prevention or suppression as approved by the Secretary.
    (b) Consultation is not required whenever the above conditions 
involve immediate safety or life-threatening situations.
    (c) Certain IRR transportation facilities owned by the tribes or BIA 
may be permanently closed when the tribal government and the Secretary 
agree. Once this agreement is reached, BIA must remove the facility from 
the IRR System.

 Appendix A to Subpart G--List of Activities Eligible for Funding Under 
             BIA Transportation Facility Maintenance Program

    The following activities are eligible for BIA Transportation 
Facility Maintenance Program. The list is not all-inclusive.
    1. Cleaning and repairing ditches and culverts.
    2. Stabilizing, removing, and controlling slides, drift sand, mud, 
ice, snow, and other impediments.
    3. Adding additional culverts to prevent roadway and adjoining 
property damage.
    4. Repairing, replacing or installing traffic control devices, 
guardrails and other features necessary to control traffic and protect 
the road and the traveling public.
    5. Removing roadway hazards.
    6. Repairing or developing stable road embankments.
    7. Repairing parking facilities and appurtenances such as striping, 
lights, curbs, etc.
    8. Repairing transit facilities and appurtenances such as bus 
shelters, striping, sidewalks, etc.
    9. Training maintenance personnel.
    10. Administering the BIA Transportation Facility Maintenance 
Program.
    11. Performing environmental/archeological mitigation associated 
with transportation facility maintenance.
    12. Leasing, renting, or purchasing of maintenance equipment.
    13. Paying utilities cost for roadway lighting and traffic signals.
    14. Purchasing maintenance materials.
    15. Developing, implementing, and maintaining an IRR Transportation 
Facility Maintenance Management System (TFMMS).
    16. Performing pavement maintenance such as pot hole patching, crack 
sealing, chip sealing, surface rejuvenation, and thin overlays (less 
than 1 inch).
    17. Performing erosion control.
    18. Controlling roadway dust.
    19. Re-graveling roads.
    20. Controlling vegetation through mowing, noxious weed control, 
trimming, etc.
    21. Making bridge repairs.

[[Page 610]]

    22. Paying the cost of closing of transportation facilities due to 
safety or other concerns.
    23. Maintaining airport runways, heliport pads, and their public 
access roads.
    24. Maintaining and operating BIA public ferry boats.
    25. Making highway alignment changes for safety reasons. These 
changes require prior notice to the Secretary.
    26. Making temporary highway alignment or relocation changes for 
emergency reasons.
    27. Maintaining other IRR intermodal transportation facilities 
provided that there is a properly executed agreement with the owning 
public authority within available funding.



                   Subpart H_Miscellaneous Provisions

               Hazardous and Nuclear Waste Transportation



Sec. 170.900  What is the purpose of the provisions relating to 
transportation of hazardous and nuclear waste?

    Sections 170.900 through 170.907 on transportation of nuclear and 
hazardous waste are provided for information only, they do not create 
any legal responsibilities or duties for any person or entity, and are 
not intended to create any basis for a cause of action under the Federal 
Tort Claims Act.



Sec. 170.901  What standards govern transportation of radioactive and 
hazardous materials?

    DOT, the International Atomic Energy Agency, the U.S. Nuclear 
Regulatory Commission (NRC) and the Environmental Protection Agency have 
established standards and regulations for the shipment of radioactive 
and hazardous materials. Legal authority includes, but is not limited 
to, 23 U.S.C. 141; 23 U.S.C. 127; 49 CFR parts 107, 171-180; 10 CFR part 
71.



Sec. 170.902  What is the role of State, tribal, and local governments?

    State, tribal, and local governments typically provide for the 
safety of their residents and other persons and protection of resources 
within their jurisdictions. With respect to radioactive and hazardous 
materials, some State, tribal, and local governments enact legislation, 
execute cooperative agreements, designate alternate transportation 
routes, develop emergency response plans, perform emergency response, 
issue permits, conduct vehicle inspections, enforce traffic laws, and 
perform highway construction and maintenance. These activities must not 
conflict with Federal laws and regulations.



Sec. 170.903  Who notifies tribes of the transport of radioactive waste?

    The Department of Energy (DOE) has elected, by policy, to notify 
tribes of DOE shipments through their jurisdiction.



Sec. 170.904  Who responds to an accident involving a radioactive or 
hazardous materials shipment?

    Tribal, Federal, local, and State police, fire departments, and 
rescue squads are often the first to respond to transportation accidents 
involving radioactive or hazardous materials. If radioactive materials 
are involved, DOE typically:
    (a) Ensures that appropriate State and tribal agencies are contacted 
and coordinate any necessary Radiological Assistance Program team 
activities; and
    (b) Dispatches a Radiological Assistance Program team that may 
include nuclear engineers, health physicists, industrial hygienists, 
public affairs specialists, and other personnel who provide related 
services.



Sec. 170.905  How can tribes obtain training in handling hazardous 
material?

    (a) Tribes cannot use IRR Program funds to train personnel to handle 
radioactive and hazardous material.
    (b) Tribes can seek training from DOE, EPA, NRC, OSHA, States, and 
other sources. Funding is available from DOT under the Hazardous 
Materials Uniform Safety Act, EPA for monitoring and FEMA for general 
preparedness.



Sec. 170.906  Who cleans up radioactive and hazardous material spills?

    The carrier is typically responsible for cleanup of a radioactive or 
hazardous material spill with assistance from the shipper using 
established

[[Page 611]]

standards and guidelines. The carrier should work with the appropriate 
tribal, local, State and Federal agencies to address all cleanup issues, 
such as arranging or repackaging of the cargo, if necessary, and 
disposing of contaminated materials.

              Reporting Requirements and Indian Preference



Sec. 170.910  What information on the IRR Program or projects must BIA 
provide to tribes?

    At the written request of a tribe, BIA must provide available 
information on the IRR Program or projects to a tribe within a 
reasonable time.



Sec. 170.911  Are Indians entitled to employment and training 
preferences?

    (a) Federal law gives hiring and training preferences, to the 
greatest extent feasible, to Indians for all work performed under the 
IRR Program.
    (b) Under 25 U.S.C. 450e(b) and 23 U.S.C. 204(e), Indian 
organizations and Indian-owned economic enterprises are entitled to a 
preference, to the greatest extent feasible, in the award of contracts, 
subcontracts and sub-grants for all work performed under the IRR 
Program.



Sec. 170.912  Does Indian employment preference apply to Federal-aid 
Highway Projects?

    (a) Tribal, State, and local governments may provide an Indian 
employment preference for Indians living on or near a reservation on 
projects and contracts that meet the definition of an Indian Reservation 
Road. (See 23 U.S.C. 101(a)(12) and 140(d), and 23 CFR 635.117(d).)
    (b) Tribes may target recruiting efforts toward Indians living on or 
near Indian reservations, Indian lands, Alaska Native villages, pueblos, 
and Indian communities.
    (c) Tribes and tribal employment rights offices should work 
cooperatively with State and local governments to develop contract 
provisions promoting employment opportunities for Indians on eligible 
federally funded transportation projects. Tribal, State, and local 
representatives should confer to establish Indian employment goals for 
these projects.



Sec. 170.913  Do tribal-specific employment rights and contract 
preference laws apply?

    Yes. When a tribe or consortium administers an IRR Program or 
project intended to benefit that tribe or a tribe within the consortium, 
the benefitting tribe's employment rights and contracting preference 
laws apply. (See Sec. 170.619 and 25 U.S.C. 450e(c).)



Sec. 170.914  What is the difference between tribal preference and 
Indian preference?

    Indian preference is a hiring preference for Indians in general. 
Tribal preference is a preference adopted by a tribal government that 
may or may not include a preference for Indians in general, Indians of a 
particular tribe, Indians in a particular region, or any combination 
thereof.



Sec. 170.915  May tribal employment taxes or fees be included in an 
IRR project budget?

    Yes. The cost of tribal employment taxes or fees may be included in 
the budget for an IRR program or project, except for BIA force account.



Sec. 170.916  May tribes impose taxes or fees on those performing IRR 
Program services?

    Yes. Tribes, as sovereign nations, may impose taxes and fees for IRR 
Program activities. When a tribe administers IRR programs or projects 
under ISDEAA, its tribal employment and contracting preference laws, 
including taxes and fees, apply.



Sec. 170.917  Can tribes receive direct payment of tribal employment 
taxes or fees?

    This section applies to non-tribally administered IRR projects. 
Tribes can request that BIA pay tribal employment taxes or fees directly 
to them under a voucher or other written payment instrument, based on a 
negotiated payment schedule. Tribes may consider requesting direct 
payment of tribal employment taxes or fees from other transportation 
departments in lieu of receiving their payment from the contractor.

[[Page 612]]

                            Emergency Relief



Sec. 170.920  What is the purpose of the provisions relating to 
emergency relief?

    Sections 170.920 through 170.927 relating to emergency relief are 
provided for information only and do not change the provisions of 23 CFR 
part 668 or existing guidance on emergency relief.



Sec. 170.921  What emergency or disaster assistance programs are 
available?

    (a) FHWA operates two emergency relief programs:
    (1) The Emergency Relief (ER) Program, which provides disaster 
assistance for Federal-aid highways owned by State, county and local 
governments; and
    (2) The Emergency Relief for Federally Owned Roads (ERFO) Program, 
which provides disaster assistance for Federal roads, including Indian 
Reservation Roads, that have been damaged due to natural disasters 
(floods, hurricanes, tornadoes, etc.).
    (b) The Federal Emergency Management Agency (FEMA) may be considered 
as an alternate funding source to repair damage that is ineligible under 
the ER or ERFO Programs.



Sec. 170.922  How can States get Emergency Relief Program funds to 
repair IRR System damage?

    States can request emergency relief program funds to repair damage 
to Federal-aid highways caused by natural disasters or catastrophic 
failures. It is the responsibility of individual States to request these 
funds.



Sec. 170.923  What qualifies for ERFO funding?

    (a) Tribes can use ERFO funding to repair damage to IRR 
transportation facilities (including roads, bridges, and related 
structures) caused by natural disaster over a widespread area or by a 
catastrophic failure from any external cause. The Secretary of 
Transportation determines eligible repairs under 23 CFR 668, subpart B.
    (1) Examples of natural disasters include, but are not limited to, 
floods, earthquakes, tornadoes, landslides, avalanches or severe storms, 
such as saturated surface conditions and high-water table caused by 
precipitation over an extended period of time.
    (2) An example of a catastrophic failure includes, but is not 
limited to, a bridge collapse after being struck by a barge, truck or a 
landslide.
    (b) Structural deficiencies, normal physical deterioration, and 
routine heavy maintenance do not qualify for ERFO funding.



Sec. 170.924  What happens if DOT denies an ERFO claim?

    The appealing tribe or the facility owner (if the tribe is not the 
owner) may appeal the finding or determination to the Secretary of 
Transportation at: FHWA, 400 7th St., SW., HFL-1, Washington, DC 20590. 
If the tribe is appealing it must provide a courtesy copy of its appeal 
to BIA.



Sec. 170.925  Is ERFO funding supplemental to IRR Program funding?

    Yes. If ERFO funds are approved and available, they can be used to 
supplement IRR construction and maintenance funds for FHWA-approved 
repairs. If IRR construction or maintenance funds are used to address an 
approved claim when ERFO funds are unavailable, the next authorized ERFO 
funds may be used to reimburse the construction or maintenance funds 
expended.



Sec. 170.926  Can a tribe administer approved ERFO repairs under a 
self-determination contract or a self-governance agreement?

    Yes.



Sec. 170.927  How can FEMA Program funds be used to repair damage?

    (a) A tribe can request FEMA Program funds for emergency repairs to 
damaged roads not on the IRR System if the President has declared a 
major disaster or emergency. The tribe makes the request by submitting 
an SF 424, Application for Federal Assistance, directly to FEMA, as 
described in FEMA Response and Recovery Directorate 9512.4 (Dec. 28, 
1999).
    (b) Tribes can ask States to seek FEMA Program funds to repair 
damage to roads not on the IRR System.

[[Page 613]]

                    Tribal Transportation Departments



Sec. 170.930  What is a tribal transportation department?

    A tribal transportation department is a department, commission, 
board, or official of any tribal government charged by its laws with the 
responsibility for highway construction. Tribal governments, as 
sovereign nations, have inherent authority to establish their own 
transportation departments under their own tribal laws. Tribes may staff 
and organize transportation departments in any manner that best suits 
their needs. Tribes can receive technical assistance from Indian LTAP 
centers, BIA regional road engineers, or AASHTO to establish a tribal 
transportation department.



Sec. 170.931  Can tribes use IRR Program funds to pay tribal 
transportation department operating costs?

    Yes. Tribes can use IRR Program funds to pay the cost of planning, 
administration, and performance of approved IRR Program activities (see 
appendix A, subpart B). Tribes can also use BIA road maintenance funds 
to pay the cost of planning, administration, and performance of 
maintenance activities under this part.



Sec. 170.932  Are there other funding sources for tribal transportation 
departments?

    There are many sources of funds that may help support a tribal 
transportation department. The following are some examples of additional 
funding sources:
    (a) Tribal general funds;
    (b) Tribal Priority Allocation;
    (c) Tribal permits and license fees;
    (d) Tribal fuel tax;
    (e) Federal, State, private, and local transportation grants 
assistance;
    (f) Tribal Employment Rights Ordinance fees (TERO); and
    (g) Capacity building grants from Administration for Native 
Americans and other organizations.



Sec. 170.933  Can tribes regulate oversize or overweight vehicles?

    Yes. Tribal governments can regulate travel on roads under their 
jurisdiction and establish a permitting process to regulate the travel 
of oversize or overweight vehicles, in accordance with applicable 
Federal law. BIA may, with the consent of the affected tribe, establish 
a permitting process to regulate the travel of oversize or overweight 
vehicles on BIA-system roads.

                           Resolving Disputes



Sec. 170.934  Are alternative dispute resolution procedures available?

    (a) Federal agencies should use mediation, conciliation, 
arbitration, and other techniques to resolve disputes brought by IRR 
Program beneficiaries. The goal of these alternative dispute resolution 
(ADR) procedures is to provide an inexpensive and expeditious forum to 
resolve disputes. Federal agencies should resolve disputes at the lowest 
possible staff level and in a consensual manner whenever possible.
    (b) Except as required in 25 CFR part 900 and part 1000, tribes 
operating under a self-determination contract or self-governance 
agreement are entitled to use dispute resolution techniques prescribed 
in:
    (1) The ADR Act, 5 U.S.C. 571-583;
    (2) The Contract Disputes Act, 41 U.S.C. 601-613; and
    (3) The Indian Self-Determination and Education Assistance Act and 
the implementing regulations (including for non-construction the 
mediation and alternative dispute resolution options listed in 25 U.S.C. 
4501 (model contract section (b)(12)).



Sec. 170.935  How does a direct service tribe begin the alternative 
dispute resolution process?

    (a) To begin the ADR process, a direct service tribe must write to 
the BIA Regional Director or the Chief of BIA Division of 
Transportation. The letter must:
    (1) Ask to begin one of the alternative dispute resolution (ADR) 
procedures in the Administrative Dispute Resolution Act of 1996, 5 
U.S.C. 571-583 (ADR Act); and
    (2) Explain the factual and legal basis for the dispute.
    (b) ADR proceedings will be governed by procedures in the ADR Act 
and the implementing regulations.

[[Page 614]]

                     Other Miscellaneous Provisions



Sec. 170.941  May tribes become involved in transportation research?

    Yes. Tribes may:
    (a) Participate in Transportation Research Board meetings, 
committees, and workshops sponsored by the National Science Foundation;
    (b) Participate in and coordinate the development of tribal and IRR 
transportation research needs;
    (c) Submit transportation research proposals to States, FHWA, 
AASHTO, and FTA;
    (d) Prepare and include transportation research proposals in their 
IRRTIPS;
    (e) Access Transportation Research Information System Network 
(TRISNET) database; and
    (f) Participate in transportation research activities under 
Intergovernmental Personnel Act agreements.



Sec. 170.942  Can a tribe use Federal funds for transportation services 
for a tribe's Welfare-to-Work, Temporary Assistance to Needy Families, 
and other quality-of-life improvement programs?

    (a) A tribe can use IRR Program funds:
    (1) To coordinate transportation-related activities to help provide 
access to jobs and make education, training, childcare, healthcare, and 
other services more accessible to tribal members; and
    (2) As the matching share for other Federal, State, and local 
mobility programs
    (b) To the extent authorized by law additional grants and program 
funds are available for the purposes in paragraph (a)(1) of this section 
from other programs administered by the Departments of Transportation, 
Health and Human Services, and Labor.
    (c) Tribes should also apply for Federal and State public 
transportation and personal mobility program grants and funds.



PART 171_OPERATION AND MAINTENANCE--Table of Contents




Sec.
171.1 Administration.
171.2 Irrigation season.
171.3 Domestic and stock water.
171.4 Farm units.
171.5 Delivery points.
171.6 Distribution and apportionment of water.
171.7 Application for and record of deliveries of irrigation water.
171.8 Surface drainage.
171.9 Structures.
171.10 Fencing.
171.11 Obstructions.
171.12 Rights-of-way.
171.13 Crops and statistical reports.
171.14 Carriage agreements and water right applications.
171.15 Leaching water.
171.16 Excess water.
171.17 Delivery of water.
171.18 Service or farm ditches.
171.19 Operation and maintenance assessments.
171.20 Water users' ledgers.
171.21 Health and sanitation.
171.22 Complaints.
171.23 Disputes.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. 
Sec. 171.4(b) also issued under 34 Stat. 1024, 38 Stat. 583, and 68 
Stat. 1026. Secs. 171.4(a), 171.4(c), 171.16(b), and 171.17(f) also 
issued under sec. 11, 39 Stat. 142.

    Source: 42 FR 30362, June 14, 1977, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 171.1  Administration.

    (a) The Agency Superintendent, Project Engineer or such official as 
authorized by the Area Director is the Officer-in-Charge of those Indian 
Irrigation Projects or units operated or subject to administration by 
the Bureau of Indian Affairs, whether or not each project or unit is 
specifically mentioned in this part. The Officer-in-Charge is fully 
authorized to administer, carry out, and enforce these regulations 
either directly or through employees designated by him. Such enforcement 
includes the refusal to deliver water.
    (b) The Officer-in-Charge is authorized to apply to irrigation 
subsistence units or garden tracts only those regulations in this part 
which in his judgment would be applicable in view of the size of the 
units and the circumstances under which they are operated.
    (c) The Officer-in-Charge is responsible for performing such work 
and

[[Page 615]]

taking any action which in his judgment is necessary for the proper 
operation, maintenance and administration of the irrigation project or 
unit. In making such judgments, the Officer-in-Charge consults with 
water users and their representatives, and with tribal council 
representatives, and seeks advice on matters of program priorities and 
operational policies. The Officer-in-Charge will be guided by the basic 
requirement that the operation will be so administered as to provide the 
maximum possible benefits from the project's or unit's constructed 
facilities. The operations will insure safe, economical, beneficial, and 
equitable use of the water supply and optimum water conservation.
    (d) The Secretary of the Interior reserves the right to exercise at 
any time all rights, powers, and privileges given him by law, and 
contracts with irrigation districts within Indian Irrigation Projects. 
Close cooperation between the Indian tribal councils, the project water 
users and the Officer-in-Charge is necessary and will be to the 
advantage of the entire project.
    (e) The Area Director, or his delegated representative, is 
authorized to fix as well as to announce, by notice published in the 
Federal Register, the annual operation and maintenance assessment rates 
for the irrigation projects or units within his area of responsibility. 
In addition to the rates, the notices will include such information as 
is pertinent to the assessment, payment, and collections of the charges 
including penalties and duty of water.
    (f) The rates will be based on a carefully prepared estimate of the 
cost of the normal operation and maintenance of the project. Normal 
operation and maintenance is defined for this purpose as the average per 
acre cost of all activities involved in delivering irrigation water and 
maintaining the facilities.
    (g) San Carlos Irrigation Project, Arizona. The administration, 
rights obligations and responsibilities for the operation and 
maintenance of this project are set forth in the Repayment Contract 
dated June 8, 1931 as supplemented or amended, between the San Carlos 
Irrigation and Drainage District and the United States as authorized by 
the Act of June 7, 1924 (43 Stat. 475-476) and the Secretarial Order of 
June 15, 1938, title ``Order Defining Joint, District and Indian Works 
of the San Carlos Federal Irrigation Project: Turning over Operation and 
Maintenance of District Works to the San Carlos Irrigation and Drainage 
District.'' The regulations appearing in this subchapter apply only to 
the Indian lands works and in the San Carlos Irrigation Project unless 
specified otherwise, and should not be interpreted or construed as 
amending or modifying the District Contract or the Secretarial Order.

[42 FR 30362, June 14, 1977, as amended at 43 FR 8799, Mar. 3, 1978. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 171.2  Irrigation season.

    The irrigation season, when water shall be available for irrigation, 
will be established by the Officer-in-Charge.



Sec. 171.3  Domestic and stock water.

    Domestic or stock water will not be carried in the project's or 
unit's irrigation system when in the judgment of the Officer-in-Charge 
such practice will:
    (a) Interfere with the operation and maintenance of the system.
    (b) Be detrimental to or endanger the canal, lateral system and/or 
related structures.
    (c) Adversely affect the stored water supply for irrigation.



Sec. 171.4  Farm units.

    For the purpose of delivery of water and the administration of the 
project or unit, a farm unit is defined as follows:
    (a) For the Blackfeet, Crow, Fort Belknap, and Fort Peck Irrigation 
Projects, Montana, and the Colville Irrigation Project, Washington.
    (1) Forty (40) or more contiguous acres of land in single ownership 
with the exception that those original Indian allotments containing less 
than 40 irrigable acres of the same subdivision of the public land 
survey shall also be considered farm units.
    (2) Forty (40) or more contiguous acres of Indian-owned land under 
lease to one party.

[[Page 616]]

    (3) Forty (40) contiguous acres in multiple ownership within the 
same forty (40) acre subdivision of the public land survey.
    (b) For the Fort Hall Irrigation Project, Idaho:
    (1) Twenty (20) or more contiguous acres of land in single ownership 
covered by one or more water rights contracts.
    (2) Twenty (20) or more contiguous acres of Indian-owned land under 
lease to one party or being farmed by one Indian.
    (3) Ten (10) or more contiguous acres of subdivided land in multiple 
ownership.
    (c) For the Flathead Irrigation Project, Montana: A contiguous area 
of land in single ownership containing not less than one forty (40) acre 
subdivision of the public land survey, or the original allotment as 
established by the Secretary of the Interior and as recorded or amended 
in the records of the Bureau of Land Management. In the case of leased 
land, it is defined as a contiguous area under a single lease. For 
Bureau of Land Management regulations pertaining to Flathead Project, 
see 43 CFR 2211.8, Flathead Irrigation District, Montana.
    (d) For the Wapato Irrigation Project (all units), Washington:
    (1) Eighty (80) or more contiguous acres in single ownership at the 
time of the establishment of the delivery system, or when subsequent 
changes of ownership result in larger tracts under single ownership and 
the owner requests that this land be treated as a farm unit, whether 
covered by one or more water right contracts.
    (2) Eighty (80) or more contiguous acres of Indian-owned land under 
lease to one person or being farmed by one Indian.
    (3) Eighty (80) contiguous acres in multiple ownership: Provided, 
That such acreage shall be within the same eight (80) acre subdivision 
of the U.S. public land survey.
    (4) In all cases where an original Indian allotment consisted of 
less than eighty (80) contiguous acres, such original Indian allotment, 
whether (i) under single or multiple ownership and/or covered by one or 
more water right contracts, (ii) under lease to the same or different 
lessees, or (iii) farmed by one or more Indians, shall be treated as a 
farm unit.
    (e) For all other projects or units: An original allotment, 
homestead, an assignment of unallotted tribal lands, or a contiguous, 
development lease area.



Sec. 171.5  Delivery points.

    (a) Project operators will deliver irrigation water to one point on 
the boundary of each farm unit within the irrigation project. The 
Officer-in-Charge may establish additional delivery points when in his 
judgment it is impractical for the landowner to irrigate his farm unit 
from the one delivery point for such reasons as topography, isolation, 
or cost. When irrigation water is supplied from wells, the delivery 
point may be established at the well head. Where portions of a farm unit 
lie at an elevation too high to be watered by gravity flow from the 
normal elevation of water in the project distribution system, no change 
will be made in the water level elevation of the project system so as to 
place water on such land. Where such land has been included in the 
project, the landowner may install and operate pumping equipment at his 
own expense to raise the water to such included land from a point 
designated by the Officer-in-Charge and in accordance with his 
specifications. If the landowner so installs pumping equipment and pays 
the construction and maintenance charges, the project will deliver the 
same amount of water per acre for this land as the project delivers at 
the delivery point for other lands on the project.
    (b) If a farm unit for which a project delivery point has been 
established is subsequently subdivided into smaller units by the owner 
or owners of the farm unit, the following provisions apply:
    (1) A plat or map of the subdivision must be recorded and a copy 
filed with the Officer-in-Charge. The plat or map must show how the 
irrigation water is to be delivered to the irrigable acres in the 
subdivision.
    (2) No further extensions or alterations in the project's system 
will be provided officials to serve the subdivided units, except as 
agreed to by

[[Page 617]]

the Officer-in-Charge and at the landowner's expense.
    (3) Any additional construction necessary to deliver irrigation 
water to these units must be mutually worked out between the original 
owner of the farm units and the new owners of the subdivided unit at 
their expense.
    (4) The project will not bear any responsibility for the operation 
and maintenance of such internal systems, or the division of irrigation 
water after it is delivered to the established project delivery points.
    (c) Where project points of delivery have been established for farm 
units which are to be combined under lease or ownership into a singular 
farm unit to be irrigated by means of a sprinkler of more efficient 
system, the Officer-in-Charge may approve the removal or relocation of 
project delivery facilities. Such reorganization shall be at the expense 
of the landowners or lessees in conformance with established project 
standards and a time schedule which will not disrupt water delivery 
service to others on the system.
    (d) Where a reorganization has been approved and established as in 
Sec. 171.5(c), any reversion requiring reestablishment of removed or 
relocated project delivery facilities must be approved by the Officer-
in-Charge and conform to established project standards and time 
schedules which will not disrupt water delivery service to other water 
users on the system. All expenses incurred shall be the responsibility 
of the landowners or lessees.



Sec. 171.6  Distribution and apportionment of water.

    (a) The Officer-in-Charge will establish the method of and 
procedures for the delivery and distribution of the available irrigation 
water supply. He will endeavor to apportion the water at all times on a 
fair and equitable basis between all project water users entitled to the 
receipt of irrigation water.
    (b) Any person who interferes with the flow of water in or from the 
project's storage, carriage or lateral systems or opens or closes or in 
any other way changes the position of a headgate or any other water 
control structure without specific authority from the Officer-in-Charge 
or his designated representative will be subject to prosecution. Cutting 
a canal or lateral bank for the purpose of diverting water or placing an 
obstruction in such facilities in order to change the flow of water 
through a headgate will be considered a violation of this section.
    (c) San Carlos Irrigation Project, Arizona--(1) The portion of the 
project's common water supply available for the Indian lands will be 
distributed subject to beneficial use in equal per acre amounts to each 
acre under irrigation and cultivation, insofar as possible.
    (2) All water users (Indian and non-Indian) will be notified at the 
beginning of the irrigation season of the amount of stored and pumped 
water available. An apportionment of this water will be recommended by 
the Officer-in-Charge of the irrigation project to the approval of the 
Area Director. Subsequent apportionments may be made if and when 
additional water is available.
    (3) If it is determined by the Officer-in-Charge that there is water 
in excess of demands and available storage facilities, he will promptly 
notify all water users that such water is available. This water shall 
not be charged against the water apportionment of the land on which it 
is used.
    (d) Uintah Irrigation Project, Utah--(1) Water will be delivered to 
all lands under the Lakefork, Uintah and Whiterocks Rivers in accordance 
with the provisions of the decree of the Federal Court in the cases of 
the ``United States v. Dry Gulch Irrigation Company, et al.,'' and the 
``United States v. Cedarview Irrigation Company, et al.,'' which decrees 
fix the maximum duty of three (3) acre-feet per acre for the period from 
March 1 to November 1 of each year. The rate of delivery will be 
substantially in accordance with the following schedule except that it 
may be modified by the Officer-in-Charge at such times as changed 
climatic conditions and the water supply indicate that such modification 
would be beneficial to the project.

------------------------------------------------------------------------
                                             Acres per     Acre feet per
                  Period                    second-feet        acre
------------------------------------------------------------------------
Mar. 1 to 18.............................      None         None
Mar. 19 to 31............................     1,000            0.023
Apr. 1 to 10.............................       800             .025
Apr. 11 to 20............................       400             .050

[[Page 618]]

 
Apr. 21 to 30............................       200             .099
May 1 to 10..............................       180             .110
May 11 to 20.............................       135             .147
May 21 to 31.............................        95             .229
June 1 to 20.............................        70             .566
June 21 to 31............................        85             .233
July 1 to 10.............................        90             .220
July 11 to 20............................        95             .208
July 21 to 31............................       100             .218
Aug. 1 to 10.............................       133             .147
Aug. 11 to 20............................       155             .128
Aug. 21 to 31............................       175             .124
Sept.1 to 10.............................       195             .101
Sept. 11 to 30...........................       220             .180
Oct. 1 to 10.............................       220             .090
Oct. 11 to 20............................       300             .066
Oct. 21 to 31............................       600             .036
                                          ------------------------------
 Total...................................  .............   3,000
------------------------------------------------------------------------

    (2) The rotation method will be used in distributing the water 
diverted from the Lakefork, Uintah and Whiterocks Rivers. Rotation 
schedules will be prepared under direction of the Officer-in-Charge and 
will be put into effect each season as soon as it is determined what 
acreage is to be irrigated. A written copy of the water schedule will be 
delivered to each water user showing the time that his turn starts on 
each tract and the duration of each turn.
    (3) In the event a rotation system is adopted for lands receiving 
water from the Duchesne River, the same procedure will be used as for 
the lands under the Lakefork, Uintah and Whiterocks Rivers. The Officer-
in-Charge will advise all water users sufficiently in advance of the 
time the rotation schedule will go into effect.
    (e) Wapato Irrigation Project, Washington--(1) To protect adjoining 
lands against seepage and erosion by the excess use of water on the 
bench lands of the Wapato-Satus Unit, the maximum delivery of water to 
the bench lands shall not exceed 4.5 acre-feet per acre per season.
    (2) The rate of delivery to lands of the Satus 2 and Satus 3 
subunits shall not exceed one (1) cubic foot per second for each 50 
irrigated acres.
    (3) The measurement and distribution of water for the lands on the 
Ahtanum Unit shall take place at the mutually advantageous points on the 
Ahtanum Main or Lower Canals. The conveyance of the water from these 
points of distribution to the irrigable acres of the farm units shall be 
entirely by and at the expense of the individual operators of the farms. 
However, when several such users join together to use one single channel 
for the conveyance of their water to the points of final diversion, they 
shall be jointly responsible for the channel of conveyance and the 
apportionment of the water to their respective farm units.



Sec. 171.7  Application for and record of deliveries of irrigation water.

    (a) Except when rotation schedules have been established and are 
being followed, water users in requesting the delivery of water will so 
notify the Officer-in-Charge or his designated representative by such 
means and with such advance notice as may be required by system 
operations and as established by the Officer-in-Charge. The request 
shall indicate the time the water is to be delivered, the period of time 
it will be used, the rate of flow desired, and where the water will be 
used.
    (b) It is the responsibility of the ditchriders during the 
irrigation season to maintain records showing the beginning and ending 
time of each water delivery, the amount of such delivery, and the 
estimated acreage irrigated. Such records are to be filed at the 
irrigation project office at the end of the season.
    (c) Water users on the Indian portion of the San Carlos Indian 
Irrigation Project will submit their requests for water to the 
Superintendent, Pima Agency.



Sec. 171.8  Surface drainage.

    (a) The water users will be responsible for all waste water 
resulting from their irrigation practices and for its conveyance to 
project canals, drains, wasteways or natural drainage channels. Any 
expenses involved in doing this will be borne by the water user. Waste 
water may be emptied into project constructed ditches only at points 
designated by and in a manner approved by the Officer-in-Charge. In 
those situations involving two or more landowners and/or water users, it 
is their responsibility to work out a satisfactory arrangement among 
themselves for the conveyance of their waste water to project ditches or 
natural drainage channels.

[[Page 619]]

    (b) Waste water shall not be permitted to flow upon or collect in 
road or project rights-of-way. Failure to comply with this requirement 
could result in the Officer-in-Charge refusing the further delivery of 
water.



Sec. 171.9  Structures.

    (a) All structures, including bridges or other crossings, which are 
necessary as a part of the project's irrigation and drainage system will 
be installed and maintained by the project.
    (b) During the construction of a new irrigation project or the 
extension of an existing project, bridges, crossings or other structures 
may be built by the Officer-in-Charge for private use where justified by 
severance agreements or other practical considerations. Title to these 
structures may or may not be vested in the United States depending upon 
the agreement with the landowner. Structures built partially or wholly 
in lieu of severance damages may be required to be maintained by the 
landowner even though title remains with the United States.
    (c) After a project is completed, additional structures crossing or 
encroaching on project canal, lateral or drain rights-of-way which are 
needed for private use may be constructed privately in accordance with 
plans approved by the Officer-in-Charge or by the project. In either 
case the cost of installing such structures will not be at the project's 
expense. Such structures will be constructed and maintained under 
revocable permits on proper forms issued by the Officer-in-Charge of the 
irrigation project to the party or parties desiring such structures.
    (d) It it is determined that a crossing constructed for and by the 
project is no longer needed for operation and maintenance of the system. 
It should be removed. However, if a private party, corporation, State, 
or other Federal entity desires to use the crossing, it may be 
transferred to such entity by the Officer-in-Charge under a permit which 
relieves the United States from any further liability or responsibility 
for the crossing, including its maintenance. The following provisions 
pertain:
    (1) Permits issued in such situations shall stipulate what is 
granted, and accepted by the permittee on the condition that the repair 
and maintenance of the structure shall be the duty of the permittee or 
his successors without cost to the irrigation project.
    (2) The permit shall further provide that if any such structure is 
not regularly used for a period of one year or is not properly 
maintained, the Officer-in-Charge may notify the person responsible for 
the structure's maintenance either to remove it or to correct any unsafe 
conditions within a period of 90 days.
    (3) If the structure is not removed or the unsafe condition 
corrected within the time allowed, it may be removed by the Officer-in-
Charge, the cost of such removal to be paid by the party responsible for 
the maintenance of the structure.



Sec. 171.10  Fencing.

    Fences across project rights-of-way will not be constructed without 
the approval of the Officer-in-Charge. The granting of such approval 
shall be dependent upon proper installation so as not interfere with the 
flow of water or the passage of project operators and equipment. In case 
an unauthorized fence is installed, the landowner shall be notified to 
remove it. If it is not removed within a reasonable period of time or 
satisfactory arrangements made with the Officer-in-Charge, it may be 
removed by project personnel at the landowner's expense.



Sec. 171.11  Obstructions.

    No obstructions of any kind including service or farm ditches, will 
be permitted upon project rights-of-way. Due notice will be given to an 
operator or landowner to remove any obstructions. If not removed within 
a reasonable period of time after notice is given, an obstruction will 
be removed by project forces at the expense of the operator or 
landowner.



Sec. 171.12  Rights-of-way.

    (a) Rights-of-way reserved for the project's irrigation system are 
of sufficient width to permit passage and use of equipment necessary for 
construction and proper operation and maintenance of the project's 
canals, laterals, and other irrigation works.

[[Page 620]]

    (b) In the construction of new irrigation projects or extension of 
existing projects, rights-of-way which have not been reserved across 
Indian lands will be obtained in accordance with part 169 of this 
chapter.



Sec. 171.13  Crops and statistical reports.

    An annual project crops and statistical report shall be prepared by 
the Officer-in-Charge. The landowner or farm unit operator shall 
cooperate in furnishing such information as requested.



Sec. 171.14  Carriage agreements and water right applications.

    (a) Pine River Indian Irrigation Project, Colorado. If the Area 
Director determines that there is sufficient capacity in the project's 
carriage and/or distribution system in excess of that required by the 
project he is authorized to enter into carriage agreements with non-
project water users to convey non-project water through project 
facilities for delivery to non-project lands.
    (b) Uintah Indian Irrigation Project, Utah. If the Superintendent 
determines that there is sufficient capacity in the irrigation project's 
carriage and/or distribution system in excess of that required by the 
project, he is authorized to enter into carriage agreements with non-
project water users to convey non-project lands. The Superintendent is 
also authorized to enter into carriage agreements with private 
irrigation or ditch companies for the conveyance of project water 
through non-project facilities for delivery to isolated Indian lands 
that cannot be served from project facilities.
    (c) Wapato Irrigation Project, Washington. The Project Engineer is 
authorized to execute water right applications submitted by landowners 
in the project on behalf of the Secretary of the Interior. Such 
applications should be submitted on the approved Departmental form.



Sec. 171.15  Leaching water.

    (a) The Officer-in-Charge is authorized to furnish irrigation water 
for leaching purposes without the payment of operation and maintenance 
charges to any Indian trust land, or patent in fee land covered by a 
repayment contract, as an aid to improve land within the project that is 
impregnated by alkali or in the development of new project land.
    (b) Delivery of such water will depend upon the availability of 
water and the preparation of a definite plan of operation by the land 
operator satisfactory to the Officer-in-Charge. In addition, the 
operator shall agree to meet such reasonable leaching and cropping 
activities as shall be prescribed by the Officer-in-Charge.
    (c) If prompt and beneficial use of the leaching water is not made 
by or before July 1 of the season for which it is granted, the Officer-
in-Charge may declare the leaching permit forfeited. The normal water 
charges will be considered as assessed and any delinquency enforced as 
though no leaching privilege had been granted.
    (d) In the case of patent in fee lands no water will be delivered 
for leaching purposes until the annual construction costs, when 
assessed, are paid.



Sec. 171.16  Excess water.

    (a) General. On those irrigation projects where a water duty or 
water quota has been established each water user will be notified when 
his quota of water, as covered by the basic assessment and as announced 
in the public notice, has been delivered. In such cases, additional 
irrigation water, if available, may be delivered providing the water 
user so requests it and agrees to pay for the excess water in accordance 
with the excess water provisions as set forth in the public notice.
    (b) Flathead Indian Irrigation Project, Montana. (1) After an 
agreement has been reached by the Commissioners of the irrigation 
district and the Officer-in-Charge as to the duty of water on individual 
tracts where water users claim excess requirements above the duty of 
water established for the project on account of porous or gravelly 
soils, the Officer-in-Charge is authorized to increase the quantity of 
water to be delivered to such tracts.
    (2) The amount of water delivered in such cases will not exceed four 
(4) acre feet per assessable acre except in the Moiese Division where 
the amount shall not exceed six (6) acre feet providing there is 
sufficient water available in Lower Crow Reservoir without

[[Page 621]]

having to draw on the water supply for the Mission Valley Division.
    (3) The charge for such water shall be at the same general rate as 
established for project land not having such a porous or gravely 
condition.



Sec. 171.17  Delivery of water.

    (a) Irrigation water will not be delivered until the annual 
operation and maintenance assessments are paid in accordance with the 
established annual rate schedule as set forth in the public notice 
issued by the Area Director. Under the following special circumstances, 
this rule may be waived and water delivered to:
    (1) Trust and restricted lands farmed by the Indian owner when the 
Superintendent has certified that the operator is financially unable to 
pay the assessment and he has made arrangements to pay such assessments 
from the proceeds received from the sale of crops or from any other 
source of income. In such cases the unpaid charges will stand as a first 
lien against the land until paid but without penalty on account of 
delinquency.
    (2) Non-Indian lands on which there is an approved deferred payment 
contract executed under the provisions of the Act of June 22, 1936 (49 
Stat, 1803).
    (3) Land on which an adjustment or cancellation of unpaid 
assessments has been recommended and final action is pending.
    (b) Water will not be delivered to Indian trust or restricted land 
that are under lease approved by the Secretary of the Interior or his 
authorized representative acting under delegated authority until the 
lessee has paid the annual assessed operation and maintenance charges.
    (c) No water will be delivered to Indian trust land under a lease 
that has been negotiated by an Indian owner until the owner has paid the 
annual assessed operation and maintenance charges or has made 
satisfactory arrangements for their payment with the Superintendent who 
has so notified the Officer-in-Charge.
    (d) Water will not be delivered to any lands within an irrigation 
district which has executed a repayment contract with the United States 
until all irrigation charges, as assessed, are paid in accordance with 
the terms and conditions of the contracts and the public notice as 
issued by the Area Director.
    (e) All irrigation districts may make such rules and regulations as 
they may find necessary in regard to the delivery of the water to water 
users within the district who are delinquent in their payments to the 
district of assessed irrigation charges. Such rules and regulations will 
be adhered to by the Officer-in-Charge when it appears to be in the best 
interests of the United States and the district to do so.
    (f) Water will not be delivered to lands that are subject to 
construction assessments not paid in accordance with part 134 of this 
chapter.
    (g) Flathead Indian Irrigation Project, Montana--(1) Secretarial 
Water Right holders. (i) For all acres recognized by the Secretary of 
the Interior as entitled to a ``Secretarial Water Right'', the Officer-
in-Charge is authorized to carry such water in the project's carriage 
and distribution system and deliver it: Providing, That landowner 
holding such a right requests it and his land is so located that the 
water can be delivered without undue expense to the project. Before this 
service is provided, the landowner must also agree to pay a minimum of 
fifty (50) percent of up to a maximum of one hundred (100) percent of 
the annual operation and maintenance charges as assessed against project 
lands in the same general area as his. Under such agreement the project 
will not be obligated to deliver more than that allowed for each acre of 
land under the Secretary's private water right findings less a 
proportionate share of the project's normal losses in transporting the 
water from the point of entry into the project's system to the point of 
delivery.
    (ii) ``Secretarial Water rights'' are defined as those rights 
allocated to Indian allotments by the Assistant Secretary of the 
Interior by his approval on November 25, 1921, of the findings of the 
Commission appointed by him to investigage the ``private rights'' on the 
Flathead Indian Reservation. Authority: Sec. 9, Act of May 29, 1908 (35 
Stat. 449).

[[Page 622]]

    (2) Pump lands--Flathead Irrigation Project. (i) The Officer-in-
Charge is authorized to deliver irrigation water to lands (pump lands) 
within a project farm unit that are too high to be served from the 
project's gravity flow system: Providing, The holder of legal title to 
the lands so requests it in writing and agrees to have such land 
designated by the Secretary of the Interior or his authorized 
representative as a part of the irrigation project. Land so designated 
shall be subject to the assessment and payment of the pro rata per acre 
share of the project's construction, operation and maintenance costs the 
same as all other lands within the irrigation project in the same 
general area. In addition, such ``pump lands'' shall be obligated to pay 
an additional assessment on an annual basis as determined by the 
Officer-inCharge to defray the cost of pumping the water from the 
Flathead River for those lands in the Mission Valley Division, and from 
the Little Bitterroot Lake for lands in the Camas Division.
    (ii) At the time he submits the request, the landowner must also 
agree in writing to include the ``pump lands'' in an existing irrigation 
district or a district that may be subsequently formed pursuant to the 
laws of the State of Montana. This will not apply to Indian trust or 
restricted lands as such lands cannot be included within an irrigation 
district.
    (iii) A request for the inclusion of ``pump lands'' into the project 
will not be considered until the Officer-in-Charge determines that there 
is sufficient project water available to serve these lands without 
adversely affecting in any way the water entitlement of the designated 
project lands for which the project was designed and constructed.
    (iv) All costs incidental to the pumping and distribution of the 
delivered water from the project farm unit delivery point to the ``pump 
lands'' shall be borne by the landowner.



Sec. 171.18  Service or farm ditches.

    The service or farm ditches into which water is delivered from 
project canals or laterals must have ample capacity and be maintained by 
the water user in proper condition to receive water and convey it to the 
place of use with a minimum of loss. Water delivery will be refused to 
such ditches not satisfactorily maintained. Project irrigation water 
shall be put to beneficial use.



Sec. 171.19  Operation and maintenance assessments.

    (a) Operation and maintenance assessments will be levied against the 
acreage within each allotment, farm unit or tribal unit that is 
designated as assessable and to which irrigation water can be delivered 
by the project operators from the constructed works whether water is 
requested or not, unless specified otherwise in this section.
    (1) Colville Indian Irrigation Project, Washington. Operation and 
maintenance assessments will be levied against all patent in fee and 
Indian trust lands to which water can be delivered for irrigation and 
for which an application for water has been made by the water user and 
approved by the Superintendent.
    (2) Wapato Irrigation Project-Toppenish-Simcoe Unit, Washington. 
Operation and maintenance assessments will be levied against all lands 
which can be irrigated from the constructed works for which application 
for water is made annually and approved by the Project Engineer.
    (b) Subdivided farm units--(1) General. (i) Where farm units, as 
defined in Sec. 171.4 have been subdivided into smaller units, the Area 
Director or such official as he may so delegate may, at his discretion, 
fix a higher operation and maintenance rate for such subdivided acreage 
than the rate fixed for the acreage in the original farm unit. In such 
cases the higher rate will also be announced in the annual public 
notice.
    (ii) In the event higher rates are fixed for a subdivided farm unit, 
the individual owners thereof may obtain for their lands the same rate 
as fixed for acreages within farm units not so divided by joining in a 
written contract with the other owners within the subdivided unit. Under 
such a contract, the various owners will appoint an agent in whom shall 
be vested full power and authority to enter into a

[[Page 623]]

contract with the Area Director, hereafter referred to as the 
Contracting Officer, or such official as he may so authorize, covering 
the water rights for the entire area of the several small acreages: 
Provided, however, Such contract must not represent less acreage than 
that included in the original farm unit unless a smaller unit has been 
established by project regulation as eligible for a subdivision 
contract; And provided further, That whether the contract involves 
acreage in one or more farm units, it must represent contiguous 
acreages.
    (iii) The contract between the agent of the owners of the small 
tracts and the Contracting Officer shall be executed on or before 
February 1 of the year preceding the next irrigation season. The agent 
shall at the time of the execution of this contract, on a form approved 
by the Secretary of the Interior, furnish a certified copy of the 
contract executed by the several landowners of the subdivided tract 
appointing the agent to act in their behalf.
    (iv) Any owner of a tract within a subdivided unit, with the written 
consent of the owners of a majority of the acreage, under a contract as 
set forth in paragraph (b)(1)(iii) of this section, may voluntarily 
withdraw from the contract by filing a written notice of his intent to 
withdraw with the Contracting Officer on or before February 1 of the 
year, such withdrawal is to be effective, together with the consent of 
the owners of the majority of the acreage endorsed thereon; Provided, 
That, the remaining acreage is contiguous; such withdrawal does not 
reduce the remaining acreage under the contract to less than the acreage 
included in the original farm unit before it was subdivided or less than 
the minimum acreage established on a project as eligible for a 
subdivision contract; and all irrigation charges due under said contract 
have been paid. Upon the receipt of said notice, the Contracting 
Officer, if the notice meets the requirements as herein provided, shall 
note his approval thereon and send a copy thereof to the agent of the 
landowners. Thereafter the land of the withdrawing owner shall no longer 
be subject to the contract.
    (v) If one or more owners under a contract desire to withdraw, and 
if, by so doing, it would reduce the total remaining contiguous acreage 
under the contract to less than the total acreage included in the 
original farm unit, or the minimum eligible acreage established on the 
project, the contract can be terminated. However, before such a 
termination can be approved, a written notice from the owners of the 
majority of the acreage must be filed with the Contracting Officer 
indicating their consent to and requesting his approval of the 
termination. The notice must be filed on or before February 1 of the 
year the termination is to become effective, and must include the 
payment of any irrigation charges then due under the existing contract. 
Upon the receipt of the written notice, the contracting Officer shall 
note his approval thereon provided that the requirements set forth 
herein are satisfied. A copy of the approved notice will be given to the 
agent of the landowners concerned.
    (2) Fort Hall Irrigation Project. The Superintendent, Fort Hall 
Agency, is authorized to approve contracts as set forth in this section 
as well as withdrawals or termination of such contracts. However, no 
contracts will be entered into if the total contiguous acreage is less 
than 10 acres.
    (3) Wapato Irrigation Project. The Project Engineer is authorized to 
approve contracts as set forth in paragraph (b) of this section, as well 
as withdrawals or termination of such contracts. However, no contracts 
will be entered into if the total contiguous acreage is less than 40 
acres.



Sec. 171.20  Water users' ledgers.

    (a) Water users' ledgers will be maintained by the Officer-in-Charge 
on all irrigation projects or units where irrigation assessments are 
levied and collected. Separate entries shall be made in the ledger for 
each farm tract, and bills issued to the owner or owners of record. When 
payment is received, it will be credited to the proper ledger account.
    (b) When Indian trust or restricted land is leased and the Officer-
in-Charge has been so advised by the Superintendent, irrigation bills 
will be submitted to the lessee. Upon receipt of

[[Page 624]]

payment, it will be credited to the Indian owner or owners of record in 
the ledger account.
    (c) On those projects where irrigation districts have been formed 
and have executed repayment contracts, irrigation bills will be rendered 
to the district. When payment is received, it will be credited to the 
proper ledger accounts.



Sec. 171.21  Health and sanitation.

    Use of Government storage reservoirs, canals, laterals or drains for 
disposal of sewage and trash shall not be permitted under any 
circumstances. If such conditions occur, and project forces are unable 
to correct them, the Officer-in-Charge shall request the Area Director 
to arrange for the necessary legal action.



Sec. 171.22  Complaints.

    All complaints must be made in writing to the Project Engineer or 
the Officer-in-Charge of the project.



Sec. 171.23  Disputes.

    In case of a dispute between a water user and the Project Engineer 
or Officer-in-Charge of the project concerning the application of the 
regulations of this part or a decision rendered by such official, the 
water user within 30 days may appeal to the Area Director. Further 
appeals may be made to the Commissioner of Indian Affairs pursuant to 
part 2 of this chapter.



PART 172_PUEBLO INDIAN LANDS BENEFITED BY IRRIGATION AND DRAINAGE WORKS 
OF MIDDLE RIO GRANDE CONSERVANCY DISTRICT, NEW MEXICO--Table of Contents




    Authority: 45 Stat. 312.



Sec. 172.1  Acreage designated.

    Pursuant to the provisions of the act of March 13, 1928 (45 Stat. 
312) the contract executed between the Middle Rio Grande Conservancy 
District of New Mexico and the United States under date of December 14, 
1928, the official plan approved pursuant thereto, as modified, and the 
terms of section 24 of a contract between said parties dated September 
4, 1936, dealing among other things with the payment of operation and 
maintenance and betterment assessments by the United States to the 
District, and section 24 of a similar contract dated April 8, 1938 
executed by the representative of the United States, on this date, it is 
found that a total of 20,242.05 acres of Pueblo Indian lands of the 
Pueblos of Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia and 
Isleta is susceptible of economic irrigation and cultivation and is 
materially benefited by the works constructed by said District. This 
acreage is designated as follows:

Lands with recognized water rights not subject to operation and 
maintenance or betterment charges by the District and designated as 
``now irrigated''--8,847
Lands classified as ``newly reclaimed'' lands (exclusive of the 
purchased area)--11,074.4
Lands classified as newly reclaimed lands (the area recently 
purchased)--320.65
Total irrigable area materially benefited--20,242.05

[22 FR 10641, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 173_CONCESSIONS, PERMITS AND LEASES ON LANDS WITHDRAWN OR ACQUIRED 
IN CONNECTION WITH INDIAN IRRIGATION PROJECTS--Table of Contents




Sec.
173.0 Scope.
173.1 Terms used.
173.2 Project engineer's authority.
173.3 Enforcement.
173.4 Permits subject to existing and future rights-of-way.
173.5 Plans, approval thereof.
173.6 Stock grazing.
173.7 Permits, transferable.
173.8 Applications.
173.9 Bonds.
173.10 Payments.
173.11 Supervision of permittees' rates.
173.12 Services from project.
173.13 Permit not a lease.
173.14 Further requirements authorized.
173.15 Permittee subject to State law.
173.16 Reserved area, Coolidge Dam.
173.17 Agricultural and grazing permits and leases.
173.18 Term and renewal of permits.
173.19 Improvements.
173.20 Revocation of permits.
173.21 Notice to vacate.
173.22 Disposition of revenue.
173.23 Organized tribes.

    Authority: 52 Stat. 193; 25 U.S.C. 390.

[[Page 625]]


    Source: 22 FR 10642, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 173.0  Scope.

    The regulations in this part are promulgated governing the granting 
of concessions, business, agricultural and grazing leases or permits on 
reservoir sites, reserves for canals or flowage areas, and other lands 
withdrawn or otherwise acquired in connection with the San Carlos, Fort 
Hall, Flathead and Duck Valley or Western Shoshone irrigation projects.



Sec. 173.1  Terms used.

    When used in this part ``Secretary'' refers to the Secretary of the 
Interior; ``project'' to the Federal Indian irrigation project on which 
concession, lease or permit is granted, and ``project engineer'' to the 
engineer in charge of said project.



Sec. 173.2  Project engineer's authority.

    The project engineer is the official charged with the responsibility 
for the enforcement of this part. He is vested with the authority to 
issue temporary concession permits to applicants for periods not to 
exceed 30 days. All except temporary permits shall become effective when 
approved by the Secretary.



Sec. 173.3  Enforcement.

    The project engineer shall enforce these and all project regulations 
now or hereafter promulgated by the Secretary. Willful violation or 
failure to comply with the provisions of this part and all proper orders 
of the project engineer shall be cause for revocation of the permit by 
the Secretary who shall be the judge of what constitutes such violation. 
The project engineer may suspend any permit for cause. The project 
engineer shall, immediately after suspending a permit, submit to the 
Secretary through the Commissioner of Indian Affairs a detailed report 
of the case, accompanied by his reasons for the action and his 
recommendations, for final action by the Secretary.



Sec. 173.4  Permits subject to existing and future rights-of-way.

    Use by the permittee of any land authorized under this part shall be 
subject to the right of the Secretary to establish trails, roads and 
other rights-of-way including improvements thereupon or through the 
premises, and the right to use same by the public. No interference shall 
be permitted with the continued use of all existing roads, trails and 
other rights-of-way and improvements thereon.



Sec. 173.5  Plans, approval thereof.

    No building or other structure shall be erected by permittee except 
in accordance with plans, specifications and locations approved by the 
project engineer. All premises and appurtenances shall be kept in a 
sanitary, safe and sightly condition.



Sec. 173.6  Stock grazing.

    Permittees may graze upon lands covered by such permits, such stock 
as may be required in connection with the purposes for which the permit 
is issued subject to such restrictions and limitations as may be 
prescribed by the project engineer.



Sec. 173.7  Permits, transferable.

    Permits may be transferred only with the approval of the Secretary.



Sec. 173.8  Applications.

    All applications for permits must be made on the approved form. The 
project engineer will furnish copies of this form upon request. All 
applications must be executed in triplicate.



Sec. 173.9  Bonds.

    Except in cases of temporary concession permits, leases, permits, 
and traders' licenses granted under parts 166, 162, and 140 of this 
chapter, which are governed by the requirements of those parts, the 
applicant shall within 60 days after approval of the application furnish 
a surety bond for the faithful performance of the terms of the permit in 
an amount equal to the total sum accruing during the period of the 
permit. Such bond shall be executed by an approved surety company, or by 
at least three individual sureties, whose

[[Page 626]]

individual unencumbered assets are equal to double the amount of the 
bond. In the case of temporary concession permits, the permittee shall 
deposit at the time of receiving the permit, a sum equal to twice the 
rental, which sum shall, upon the expiration of the permit, be refunded 
to the permittee, if all the terms and conditions of the permit have 
been met; otherwise, such sum shall be retained as liquidated damages.



Sec. 173.10  Payments.

    Each permittee shall pay at the time of receiving the permit the 
first year's charge as fixed therein. When a permit extends over a 
period of years, the next and succeeding payments shall be due and 
payable annually in advance. The full amount accruing under a temporary 
permit shall be paid at the time the application is filed.



Sec. 173.11  Supervision of permittees' rates.

    All rates or charges collected by a permittee for services rendered 
by the permittee in the operation of the concession granted under a 
permit, must be submitted through the project engineer to the Secretary 
for approval. Copies of the approved rate schedule shall be posted in at 
least two conspicuous places on the premises. Approved rates may not be 
changed without first obtaining in the same manner a change in the rate 
schedule. The Secretary shall have the right to readjust rates charged 
from time to time and to amend or change any permit issued. Failure to 
comply with the approved rates automatically makes the permit subject to 
cancellation.



Sec. 173.12  Services from project.

    When the facilities of the project make it possible to supply water 
for domestic purposes, electricity or any other type of service to the 
permittee, the cost of connecting the project facilities shall be borne 
by the permittee and the work must be in accordance with standard 
practices and accepted by the project engineer, and as provided for in 
project regulations. All services rendered by the project to the 
permittee shall be paid for at the existing or modified schedule of 
rates; or if no schedule has been approved, at a rate to be approved by 
the Secretary which will reasonably reimburse the project for the cost 
of such services.



Sec. 173.13  Permit not a lease.

    Any permit issued under this part does not grant any leasehold 
interest nor cover the sale, barter, merchandising, or renting of any 
supplies or equipment except as therein specified. Any permittee who 
engages in trade with the Indians must also apply for and receive a 
trader's license as provided by part 140 of this chapter.



Sec. 173.14  Further requirements authorized.

    The project engineer is authorized to incorporate into any proposed 
permit to meet the needs of any particular case, subject to the approval 
of the Secretary, such further special requirements as may be agreed 
upon by him and the applicant, such requirements to be consistent with 
the general purposes of this part.



Sec. 173.15  Permittee subject to State law.

    The holder of any permit issued under this part shall be subject to 
and abide by the laws and regulations of the United States and State 
laws if applicable to the conduct of the particular business or activity 
conducted by the permittee. Violations of this section shall render the 
permit void but shall not release the permittee from any obligations 
arising thereunder.



Sec. 173.16  Reserved area, Coolidge Dam.

    No permit for any commercial business or other activity (except 
boating concessions confined to the Soda Spring Canyon) shall be issued 
to any applicant to operate within a radius of three-fourths of a mile 
from the center of the Coolidge Dam, Arizona.



Sec. 173.17  Agricultural and grazing permits and leases.

    (a) Permits or leases may be granted after the lands set forth in 
Sec. 173.0 have been classified as to use and then only for the purpose 
for which the land is classified. Permits for grazing lands suitable for 
division into range units shall be granted in accordance with

[[Page 627]]

part 166 of this chapter; and agricultural lands and all other grazing 
lands shall be leased in accordance with part 166 of this chapter.
    (b) Lands for which leases or permits are granted pursuant to the 
terms and conditions of this part shall not be eligible for benefit 
payments under the provisions and conditions of the Crop Control and 
Soil Conservation Act of April 27, 1935 (49 Stat. 163; 16 U.S.C. 590a), 
as amended by the act of February 29, 1936 (49 Stat. 1148; 16 U.S.C. 
590g), and subsequent amendatory acts.



Sec. 173.18  Term and renewal of permits.

    No concession granted under the provisions of this part shall extend 
for a period in excess of 10 years. An application for the renewal of a 
lease, permit, or concession permit shall be treated in the same manner 
as an original application under this part. Should there be an 
application or applications other than the renewal application for a 
permit covering the same area, the renewal application may, if the 
applicant has met all the requirements of the expiring permit and has 
been a satisfactory permittee, be given preferential consideration for 
the renewal of the permit should the applicant meet the highest and most 
satisfactory offer contained in the several applications.



Sec. 173.19  Improvements.

    Title to improvements constructed on the premises by the permittee 
shall be fixed and determined by the terms of the permit.



Sec. 173.20  Revocation of permits.

    Any permit issued pursuant to this part may be revoked at any time 
within the discretion of the Secretary. Agricultural and grazing leases 
dealt with in Sec. 173.17 shall be subject to cancellation as provided 
for in the respective parts 162 and 166 of this chapter, and the 
conditions of the instruments executed pursuant thereto.



Sec. 173.21  Notice to vacate.

    A permittee shall within 10 days after notification in writing of 
the cancellation of his permit by the Secretary, vacate the premises 
covered by the said permit. Any person occupying lands dealt with in the 
act of April 4, 1938 (52 Stat. 193) without an approved permit or lease 
shall be notified in writing by the project engineer of the requirements 
of this part and that for the failure of such person to comply with 
these requirements and receive a permit or lease within 60 days after 
receipt of the written notice shall constitute a willful violation of 
this part, and the project engineer shall submit promptly to the 
Commissioner of Indian Affairs a detailed report concerning the case, 
together with recommendations looking to the taking of appropriate legal 
action to remove such person from the area and to the collection of such 
funds to compensate for any use made of the property or damages suffered 
thereto.



Sec. 173.22  Disposition of revenue.

    Funds derived from concessions or leases under this part except 
those so derived from Indian tribal property withdrawn for irrigation 
purposes and for which the tribe has not been compensated, shall be 
available for expenditure under existing law in the operation and 
maintenance of the irrigation project on which collected and as provided 
for in part 161 of this chapter. Funds so derived from Indian tribal 
property withdrawn for irrigation purposes and for which the tribe has 
not been compensated, shall be deposited to the credit of the proper 
tribe.



Sec. 173.23  Organized tribes.

    Concessions and leases on tribal lands withdrawn or reserved for the 
purposes specified in the act of April 4, 1938 (52 Stat. 193) and dealt 
with in this part, of any Indian tribe organized under section 16 of the 
act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) for which the tribe 
has not been compensated shall be made by the organized tribe pursuant 
to its constitution or charter: Provided, No lease or concession so made 
shall be inconsistent with the primary purpose for which the lands were 
reserved or withdrawn.

[[Page 628]]



PART 175_INDIAN ELECTRIC POWER UTILITIES--Table of Contents




                      Subpart A_General Provisions

Sec.
175.1 Definitions.
175.2 Purpose.
175.3 Compliance.
175.4 Authority of area director.
175.5 Operations manual.
175.6 Information collection.

        Subpart B_Service Fees, Electric Power Rates and Revenues

175.10 Revenues collected from power operations.
175.11 Procedures for setting service fees.
175.12 Procedures for adjusting electric power rates except for 
          adjustments due to changes in the cost of purchased power or 
          energy.
175.13 Procedures for adjusting electric power rates to reflect changes 
          in the cost of purchased power or energy.

                Subpart C_Utility Service Administration

175.20 Gratuities.
175.21 Discontinuance of service.
175.22 Requirements for receiving electrical service.
175.23 Customer responsibilities.
175.24 Utility responsibilities.

              Subpart D_Billing, Payments, and Collections

175.30 Billing.
175.31 Methods and terms of payment.
175.32 Collections.

                Subpart E_System Extensions and Upgrades

175.40 Financing of extensions and upgrades.

                         Subpart F_Rights-of-Way

175.50 Obtaining rights-of-way.
175.51 Ownership.

                            Subpart G_Appeals

175.60 Appeals to the area director.
175.61 Appeals to the Interior Board of Indian Appeals.
175.62 Utility actions pending the appeal process.

    Authority: 5 U.S.C. 301; sec. 2, 49 Stat. 1039-1040; 54 Stat. 422; 
sec. 5, 43 Stat. 475-476; 45 Stat. 210-211; and sec. 7, 62 Stat. 273.

    Source: 56 FR 15136, Apr. 15, 1991, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 175.1  Definitions.

    Appellant means any person who files an appeal under this part.
    Area Director means the Bureau of Indian Affairs official in charge 
of a designated Bureau of Indian Affairs Area, or an authorized 
delegate.
    Customer means any individual, business, or government entity which 
is provided, or which seeks to have provided, services of the utility.
    Customer service means the assistance or service provided to 
customers, other than the actual delivery of electric power or energy, 
including but not limited to such items as: Line extension, system 
upgrade, meter testing, connections or disconnection, special meter-
reading, or other assistance or service as provided in the operations 
manual.
    Electric power utility or Utility means that program administered by 
the Bureau of Indian Affairs which provides for the marketing of 
electric power or energy.
    Electric service means the delivery of electric energy or power by 
the utility to the point of delivery pursuant to a service agreement or 
special contract. The requirements for such delivery are set forth in 
the operations manual.
    Officer-in-Charge means the individual designated by the Area 
Director as the official having day-to-day authority and responsibility 
for administering the utility, consistent with this part.
    Operations manual means the utility's written compilation of its 
procedures and practices which govern service provided by the utility.
    Power rates means the charges established in a rate schedule(s) for 
electric service provided to a customer.
    Service means electric service and customer service provided by the 
utility.
    Service agreement means the written form provided by the utility 
which constitutes a binding agreement between the customer and the 
utility for service except for service provided under a special 
contract.
    Service fees means the charge for providing administrative or 
customer

[[Page 629]]

service to customers, prospective customers, and other entities having 
business relationships with the utility.
    Special contract means a written agreement between the utility and a 
customer for special conditions of service. A special contract may 
include, but is not limited to, such items as: Street or area lights, 
traffic lights, telephone booths, irrigation pumping, unmetered 
services, system extensions and extended payment agreements.
    Utility office(s) means the current or future facility or facilities 
of the utility which are used for conducting general business with 
customers.



Sec. 175.2  Purpose.

    The purpose of this part is to regulate the electric power utilities 
administered by the Bureau of Indian Affairs.



Sec. 175.3  Compliance.

    All utility customers and the utilities are bound by the rule in 
this part.



Sec. 175.4  Authority of area director.

    The Area Director may delegate authority under this part to the 
Officer-in-Charge except for the authority to set rates as described in 
Sec. Sec. 175.10 through 175.13.



Sec. 175.5  Operations manual.

    (a) The Area Director shall establish an operations manual for the 
administration of the utility, consistent with this part and all 
applicable laws and regulations. The Area Director shall amend the 
operations manual as needed.
    (b) The public shall be notified by the Area Director of a proposed 
action to establish or amend the operations manual. Notices of the 
proposed action shall be published in local newspaper(s) of general 
circulation, posted at the utility office(s), and provided by such other 
means, if any, as determined by the Area Director. The notice shall 
contain: A brief description of the proposed action; the effective date; 
the name, address, and telephone number for addressing comments and 
inquiries; and the period of time in which comments will be received. 
Notices shall be published and posted at least 30 days before the 
scheduled effective date of the operations manual, or amendments 
thereto.
    (c) After giving consideration to all comments received, the Area 
Director shall establish or amend the operations manual, as appropriate. 
A notice of the Area Director's decision and the basis for the decision 
shall be published and posted in the same manner as the previous 
notices.



Sec. 175.6  Information collection.

    The information collection requirements contained in Sec. 175.22 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance number 1076-0021. This 
information is being collected to provide electric power service to 
customers. Response to this request is ``required to obtain a benefit.'' 
Public reporting for this information collection is estimated to average 
.5 hours per response, including the time for reviewing instructions, 
gathering and maintaining data, and completing and reviewing the 
information collection. Direct comments regarding the burden estimate or 
any other aspect of this information collection to the Bureau of Indian 
Affairs, Information Collection Clearance Officer, room 337-SIB, 1849 C 
Street, NW., Washington, DC 20240; and the Office of Information and 
Regulatory Affairs, Project 1076-0021, Office of Management and Budget, 
Washington, DC 20502.



        Subpart B_Service Fees, Electric Power Rates and Revenues



Sec. 175.10  Revenues collected from power operations.

    The Area Director shall set service fees and electric power rates in 
accordance with the procedures in Sec. Sec. 175.11 and 175.12 to 
generate power revenue.
    (a) Revenues. Revenues collected from power operations shall be 
administered for the following purposes, as provided in the Act of 
August 7, 1946 (60 Stat. 895), as amended by the Act of August 31, 1951 
(65 Stat. 254):
    (1) Payment of the expenses of operating and maintaining the 
utility;
    (2) Creation and maintenance of reserve Funds to be available for 
making repairs and replacements to, defraying

[[Page 630]]

emergency expenses for, and insuring continuous operation of the 
utility;
    (3) Amortization, in accordance with repayment provisions of the 
applicable statutes or contracts, of construction costs allocated to be 
returned from power revenues; and
    (4) Payment of other expenses and obligations chargeable to power 
revenues to the extent required or permitted by law.
    (b) Rate and fee reviews. Rates and fees shall be reviewed at least 
annually to determine if project revenues are sufficient to meet the 
requirements set forth in paragraph (a) of this section. The review 
process shall be as prescribed by the Area Director.



Sec. 175.11  Procedures for setting service fees.

    The Area Director shall establish, and amend as needed, service fees 
to cover the expense of customer service. Service fees shall be set by 
unilateral action of the Area Director and remain in effect until 
amended by the Area Director pursuant to this section. At least 30 days 
prior to the effective date, a schedule of the service fees, together 
with the effective date, shall be published in local newspaper(s) of 
general circulation and posted in the utility office(s). The Area 
Director's decision shall be final for the Department of the Interior.



Sec. 175.12  Procedures for adjusting electric power rates except for 
adjustments due to changes in the cost of purchased power or energy.

    Except for adjustments to rates due to changes in the cost of 
purchased power or energy, the Area Director shall adjust electric power 
rates according to the following procedures:
    (a) Whenever the review described in Sec. 175.10(b) of this part 
indicates that an adjustment in rates may be necessary for reasons other 
than a change in cost of purchased power or energy, the Area Director 
shall direct further studies to determine whether a rate adjustment is 
necessary and, if indicated, prepare rate schedules.
    (b) Upon completion of the rate studies, and where a rate adjustment 
has been determined necessary, the Area Director shall conduct public 
information meetings as follows:
    (1) Notices of public meetings shall be published in local 
newspapers of general circulation, posted at the utility office(s), and 
provided by such other means, if any, as determined by the Area 
Director. The notice shall provide: The date, time, and place of the 
scheduled meeting; a brief description of the action; the name, the 
address, and the telephone number for addressing comments and inquiries; 
and the period of time in which comments will be received. Notices shall 
be published and posted at least 15 days before the scheduled date of 
the meeting.
    (2) Written and oral statements shall be received at the public 
meetings. The record of the public meeting shall remain open for the 
filing of written statements for five days following the meeting.
    (c) After giving consideration to all written and oral statements, 
the Area Director shall make a decision about a rate adjustment. A 
notice of the Area Director's decision, the basis for the decision, and 
the adjusted rate schedule(s), if any, shall be published and posted in 
the same manner as the previous notices of public meetings.
    (d) Rates shall remain in effect until further adjustments are 
approved by the Area Director pursuant to this part.



Sec. 175.13  Procedures for adjusting electric power rates to reflect 
changes in the cost of purchased power or energy.

    Whenever the cost of purchased power or energy changes, the effect 
of the change on the cost of service shall be determined and the Area 
Director shall adjust the power rates accordingly. Rate adjustments due 
to the change in cost of purchased power or energy shall become 
effective upon the unilateral action of the Area Director and shall 
remain in effect until amended by the Area Director pursuant to this 
section. A notice of the rate adjustment, the basis for the adjustment, 
the rate schedule(s) shall be published and posted in the same manner as 
described in Sec. 175.12(c) of this part. The Area Director's decision 
shall be final for the Department of the Interior.

[[Page 631]]



                Subpart C_Utility Service Administration



Sec. 175.20  Gratuities.

    All employees of the utility are forbidden to accept from a customer 
any personal compensation or gratuity rendered related to employment by 
the utility.



Sec. 175.21  Discontinuance of service.

    Failure of customer(s) to comply with utility requirements as set 
forth in this part and the operations manual may result in 
discontinuance of service. The procedure(s) for discontinuance of 
service shall be set forth in the operations manual.



Sec. 175.22  Requirements for receiving electrical service.

    In addition to the other requirements of this part, the customer, in 
order to receive electrical service, shall enter into a written service 
agreement or special contract for electrical power services.



Sec. 175.23  Customer responsibilities.

    The customer(s) of a utility subject to this part shall:
    (a) Comply with the National Electrical Manufacturers Association 
Standards and/or the National Electrical Code of the National Board of 
Fire Underwriters for Electric Wiring and Apparatus as they apply to the 
installation and operation of customer-owned equipment;
    (b) Be responsible for payment of all financial obligations 
resulting from receiving utility service;
    (c) Comply with additional requirements as further defined in the 
operations manual;
    (d) Not operate or handle the utility's facilities without the 
express permission of the utility;
    (e) Not allow the unauthorized-use of electricity; and
    (f) Not install or utilize equipment which will adversely affect the 
utility system or other customers of the utility.



Sec. 175.24  Utility responsibilities.

    A utility subject to this part shall:
    (a) Endeavor to provide safe and reliable energy to its customers. 
The specific types of service and limitations shall be further defined 
in the operations manual;
    (b) Construct and operate facilities in accordance with accepted 
industry practice;
    (c) Exercise reasonable care in protecting customer-owned equipment 
and property;
    (d) Comply with additional requirements as further defined in the 
operations manual;
    (e) Read meters or authorize the customer(s) to read meters at 
intervals prescribed in the operations manual, service agreement, or 
special contract, except in those situations where the meter cannot be 
read due to conditions described in the operations manual;
    (f) Not operate or handle customer-owned equipment without the 
express permission of the customer, except to eliminate what, in the 
judgment of the utility, is an unsafe condition; and
    (g) Not allow the unauthorized use of electricity.



              Subpart D_Billing, Payments, and Collections



Sec. 175.30  Billing.

    (a) Metered customers. The utility shall render bills at monthly 
intervals unless otherwise provided in special contracts. Bills shall be 
based on the applicable rate schedule(s). Unless otherwise determined, 
the amount of energy and/or power demand used by the customer shall be 
as determined from the register on the utility's meter at the customer's 
point of delivery. A reasonable estimate of the amount of energy and/or 
power demand may be made by the utility in the event a meter is found 
with the seal broken, the utility's meter fails, utility personnel are 
unable to obtain actual meter registrations, or as otherwise agreed by 
the customer and the utility. Estimates shall be based on the pattern of 
the customer's prior consumption, or on an estimate of the customer's 
electric load where no billing history exists.
    (b) Unmetered customers. Bills shall be determined and rendered as 
provided in the customer's special contract.

[[Page 632]]

    (c) Service fee billing. The utility shall render service fee bills 
to the customer(s) as a special billing.



Sec. 175.31  Methods and terms of payment.

    Payments shall be made in person or by mail to the utility's office 
designated in the operations manual. The utility may refuse, for cause, 
to accept personal checks for payment of bills.



Sec. 175.32  Collections.

    The utility shall attempt collection on checks returned by the 
customer's bank due to insufficient funds or other cause. An 
administrative fee shall be charged for each collection action taken by 
the utility other than court proceedings. An unredeemed check shall 
cause the customer's account to become delinquent, which may be cause 
for discontinuance of service. Only legal tender, a cashier's check, or 
a money order shall be accepted by the utility to cover an unredeemed 
check and associated charges.



                Subpart E_System Extensions and Upgrades



Sec. 175.40  Financing of extensions and upgrades.

    (a) The utility may extend or upgrade its electric system to serve 
additional loads (new or increased loads).
    (b) If funds are not available, but the construction would not be 
adverse to the interests of the utility, a customer may contract with 
the utility to finance all necessary construction.
    (1) A customer may be allowed to furnish required material or 
equipment for an extension or upgrade or to install such items or to pay 
the utility for such installation. Any items furnished or construction 
performed by the customer shall comply with the applicable plans and 
specifications approved by the utility.
    (2) The utility may arrange to refund all or part of a customer's 
payment of construction costs if additional customers are later served 
by the same extension or if the Area Director determines that the 
service will provide substantial economic benefits to the utility. All 
arrangements for refunds shall be stipulated in a special contract.



                         Subpart F_Rights-of-Way



Sec. 175.50  Obtaining rights-of-way.

    Where there is no existing right(s)-of-way for the utility's 
facilities, the customer shall be responsible for obtaining all rights-
of-way necessary to the furnishing of service.



Sec. 175.51  Ownership.

    All rights-of-way, material, or equipment furnished and/or installed 
by a customer pursuant to this part shall be and remain the property of 
the United States.



                            Subpart G_Appeals



Sec. 175.60  Appeals to the area director.

    (a) Any person adversely affected by a decision made under this part 
by a person under the authority of an Area Director may file a notice of 
appeal with the Area Director within 30 days of the personal delivery or 
mailing of the decision. The notice of appeal shall be in writing and 
shall clearly identify the decision being appealed. No extension of time 
shall be granted for filing a notice of appeal.
    (b) Within 30 days after a notice of appeal has been filed, the 
appellant shall file a statement of reason(s) with the Area Director. 
The statement of reason(s) shall explain why the appellant believes the 
decision being appealed is in error, and shall include any argument(s) 
that the appellant wishes to make and any supporting document(s). The 
statement of reason(s) may be filed at the same time as the notice of 
appeal. If no statement of reason(s) is filed, the Area Director may 
summarily dismiss the appeal.
    (c) Documents are properly filed with the Area Director when they 
are received in the facility officially designated for receipt of mail 
addressed to the Area Director, or in the immediate office of the Area 
Director.
    (d) Within 30 days of filing of the statement of reason(s), the Area 
Director shall:
    (1) Render a written decision on the appeal, or
    (2) Refer the appeal to the Office of Hearings and Appeals Board of 
Indian Appeals for decision.

[[Page 633]]

    (e) Where the Area Director has not rendered a decision with 30 days 
of filing of the statement of reasons, the appellant may file an appeal 
with the Office of Hearings and Appeals Board of Indian Appeals pursuant 
to Sec. 175.61.



Sec. 175.61  Appeals to the Interior Board of Indian Appeals.

    (a) An Area Director's decision under this part, except a decision 
under Sec. 175.11 or 175.13, may be appealed to the Office of Hearings 
and Appeals Board of Indian Appeals pursuant to the provisions of 43 CFR 
part 4, subpart D, except that a notice of appeal from a decision under 
Sec. 175.12 shall be filed within 30 days of publication of the 
decision. The address for the Interior Board of Indian Appeals shall be 
included in the operations manual.
    (b) Where the Area Director determines to refer an appeal to the 
Office of Hearings and Appeals Board of Indian Appeals, in lieu of 
deciding the appeal, he/she shall be responsible for making the 
referral.
    (c) If no appeal is timely filed with the Office of Hearings and 
Appeals Board of Indian Appeals, the Area Director's decision shall be 
final for the Department of the Interior.



Sec. 175.62  Utility actions pending the appeal process.

    Pending an appeal, utility actions relating to the subject of the 
appeal shall be as follows:
    (a) If the appeal involves discontinuance of service, the utility is 
not required to resume such service during the appeal process unless the 
customer meets the utility's requirements.
    (b) If the appeal involves the amount of a bill and:
    (1) The customer has paid the bill, the customer shall be deemed to 
have paid the bill under protest until the final decision has been 
rendered on the appeal; or
    (2) The customer has not paid the bill and the final decision 
rendered in the appeal requires payment of the bill, the bill shall be 
handled as a delinquent account and the amount of the bill shall be 
subject to interest, penalties, and administrative costs pursuant to 
section 3 of the Federal Claims Collection Act of 1966, As amended, 31 
U.S.C. 3717.
    (c) If the appeal involves an electric power rate, the rate shall be 
implemented and remain in effect subject to the final decision on the 
appeal.



PART 179_LIFE ESTATES AND FUTURE INTERESTS--Table of Contents




Sec.
179.1 Purpose, scope, and information collection.
179.2 Definitions.
179.3 Application of State law.
179.4 Distribution of principal and income.
179.5 Value of life estates and remainders.
179.6 Notice of termination of life estate.

    Authority: 86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat. 2515; 
25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201-11.

    Cross Reference: For regulations pertaining to income, rents, 
profits, bonuses and principal from Indian lands and the recording of 
title documents pertaining thereto, see parts 150, Land Records and 
Title Documents; 152, Issuance of Patents in Fee, Certificates of 
Competency, Removal of Restrictions, and Sale of Certain Indian Lands; 
162, Leasing and Permitting; 163, General Forest Regulations; 166, 
General Grazing Regulations; 169, Rights-of-Way over Indian Lands; 170, 
Roads of the Bureau of Indian Affairs; 212, Leasing of Allotted Lands 
for Mining; 213, Leasing of Restricted Lands of Members of the Five 
Civilized Tribes, Oklahoma, for Mining; 215, Lead and Zinc Mining 
Operations and Leases, Quapaw Agency.

    Source: 53 FR 25953, July 8, 1988, unless otherwise noted.



Sec. 179.1  Purpose, scope, and information collection.

    (a) These regulations set forth the authorities, policy and 
procedures governing the administration of life estates and future 
interests in Indian lands by the Secretary of the Interior. These 
regulations do not apply to any use rights assigned by tribes, in the 
exercise of their jurisdiction over tribal lands, to tribal members.
    (b) These regulations do not contain information collection 
requirements which require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501 et seq.



Sec. 179.2  Definitions.

    Agency means an Indian Agency or other field unit of the Bureau of 
Indian Affairs having the Indian land under its immediate jurisdiction.

[[Page 634]]

    Contract Bonus means cash consideration paid or agreed to be paid as 
incentive for execution of the contract.
    Income means the rents and profits of real property and the interest 
on invested principal.
    Indian Land means all lands held in trust by the United States for 
individual Indians or tribes; or all lands, titles to which are held by 
individual Indians or tribes, subject to Federal restrictions against 
alienation or encumbrance.
    Principal means the corpus and capital of an estate, including any 
payment received for the sale or diminishment of the corpus, as opposed 
to the income.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Superintendent means the designated officer in charge of an Agency.



Sec. 179.3  Application of State law.

    In the absence of Federal law or Federally-approved tribal law to 
the contrary, the rules of life estates and future interests in the 
State in which the land is located shall be applied on Indian land. 
State procedural laws concerning the appointment and duties of private 
trustees shall not apply.



Sec. 179.4  Distribution of principal and income.

    In all cases where the document creating the life estate does not 
specify a distribution of proceeds; or where the vested remainderman and 
life tenant have not entered into a written agreement approved by the 
Secretary providing for the distribution of proceeds; or where, by such 
document or agreement or by the application of State law, the open mine 
doctrine does not apply; the Secretary shall:
    (a) Distribute all rents and profits, as income, to the life tenant.
    (b) Distribute any contract bonus one-half each to the life tenant 
and the remainderman.
    (c) In the case of mineral contracts, invest the principal, with 
interest income to be paid the life tenant during the life estate, 
except in those instances where the administrative cost of investment is 
disproportionately high, in which case Sec. 179.4(d) shall apply. The 
principal will be distributed to the remainderman upon termination of 
the life estate.
    (d) In all other instances, distribute the principal immediately 
according to the formulas set forth in Sec. 179.5, investing all 
proceeds attributable to any contingent remainderman in an account, with 
disbursement to take place upon determination of the contingent 
remainderman.



Sec. 179.5  Value of life estates and remainders.

    (a) The value of a life estate shall be determined by the formula: 
Value of Life Estate =P x L, where P =Value of principal, and L =Life 
estate factor for the age and sex of the life tenant, as shown in Column 
2 on tables A(1) and A(2).
    (b) The value of a remainder shall be determined by the formula: 
Value of Remainder =P x R, where P =Value of principal, and R =Remainder 
factor for the age and sex of the life tenant, as shown in Column 3 on 
tables A(1) and A(2).

 Table A(1)--Single Life Male, 6 Percent, Showing the Present Worth of a
            Life Estate Interest, and of a Remainder Interest
------------------------------------------------------------------------
                                               (2)--Life
                   (1)--Age                      estate   (3)--Remainder
------------------------------------------------------------------------
0............................................     0.9305       0.06295
1............................................     .96217        .03783
2............................................     .96170        .03830
3............................................     .96053        .03947
4............................................     .95905        .04095
5............................................     .95732        .04268
6............................................     .95540        .04460
7............................................     .95331        .04669
8............................................     .95195        .04895
9............................................     .94861        .05139
 
10...........................................     .94598        .05402
11...........................................     .94316        .05684
12...........................................     .94019        .05981
13...........................................     .93708        .06292
14...........................................     .93391        .06609
15...........................................     .93069        .06931
16...........................................     .92746        .07254
17...........................................     .92419        .07581
18...........................................     .92089        .07911
19...........................................     .91751        .08249
 
20...........................................     .91403        .08597
21...........................................     .91046        .08954
22...........................................     .90678        .09328
23...........................................     .90292        .09702
24...........................................     .89884        .10116
25...........................................     .89445        .10555
26...........................................     .88972        .11028
27...........................................     .88465        .11535
28...........................................     .87925        .12075
29...........................................     .87353        .12647
 

[[Page 635]]

 
30...........................................     .86750        .13250
31...........................................     .86117        .13883
32...........................................     .85451        .14549
33...........................................     .84752        .15248
34...........................................     .84020        .15980
35...........................................     .83255        .16745
36...........................................     .82455        .17545
37...........................................     .81622        .18378
38...........................................     .80755        .19245
39...........................................     .79854        .20146
 
40...........................................     .78923        .21077
41...........................................     .77960        .22040
42...........................................     .76967        .23033
43...........................................     .75944        .24056
44...........................................     .74891        .25109
45...........................................     .73808        .26192
46...........................................     .72695        .27305
47...........................................     .71552        .28448
48...........................................     .70385        .29615
49...........................................     .69198        .30802
 
50...........................................     .67997        .32003
51...........................................     .66785        .33215
52...........................................     .65560        .34440
53...........................................     .64320        .35680
54...........................................     .63060        .36940
55...........................................     .61776        .38224
56...........................................     .60466        .39534
57...........................................     .59131        .40869
58...........................................     .57778        .42222
59...........................................     .56417        .43583
 
60...........................................     .55052        .44948
61...........................................     .53687        .46313
62...........................................     .52321        .47679
63...........................................     .50954        .49046
64...........................................     .49585        .50415
65...........................................     .48212        .51788
66...........................................     .46836        .53164
67...........................................     .45458        .54542
68...........................................     .44077        .55923
69...........................................     .42689        .57311
 
70...........................................     .41294        .58706
71...........................................     .39889        .60111
72...........................................     .38474        .61526
73...........................................     .37051        .62949
74...........................................     .35624        .64376
75...........................................     .34194        .65806
76...........................................     .32761        .67239
77...........................................     .31327        .68673
78...........................................     .29895        .70105
79...........................................     .28481        .71519
 
80...........................................     .27098        .72902
81...........................................     .25773        .74227
82...........................................     .24527        .75473
83...........................................     .23354        .76646
84...........................................     .22217        .77783
85...........................................     .21070        .78930
86...........................................     .19955        .80045
87...........................................     .18870        .81130
88...........................................     .17822        .82178
89...........................................     .16831        .83169
 
90...........................................     .15922        .84078
91...........................................     .15097        .84903
92...........................................     .14350        .85650
93...........................................     .13681        .86319
94...........................................     .13081        .86919
95...........................................     .12535        .87465
96...........................................     .11998        .88002
97...........................................     .11487        .88513
98...........................................     .10999        .89001
99...........................................     .10532        .89468
 
100..........................................     .10087        .89913
101..........................................     .09661        .90339
102..........................................     .09250        .90750
103..........................................     .08846        .91154
104..........................................     .08439        .91561
105..........................................     .08000        .92000
106..........................................     .07471        .92529
107..........................................     .06718        .93282
108..........................................     .05426        .94574
109..........................................     .02830        .97170
------------------------------------------------------------------------


 Table A(2)--Single Life Female, 6 Percent, Showing the Present Worth of
           a Life Estate Interest, and of a Remainder Interest
------------------------------------------------------------------------
                                               (2)--Life
                   (1)--Age                      estate   (3)--Remainder
------------------------------------------------------------------------
0............................................    0.95383       0.04617
1............................................     .97370        .02630
2............................................     .97372        .02628
3............................................     .97308        .02692
4............................................     .97217        .02783
5............................................     .97110        .02890
6............................................     .96989        .03011
7............................................     .96853        .03147
8............................................     .96703        .03297
9............................................     .96541        .03459
 
10...........................................     .96365        .03635
11...........................................     .96176        .03824
12...........................................     .95975        .04025
13...........................................     .95764        .04236
14...........................................     .95543        .04457
15...........................................     .95314        .04686
16...........................................     .95076        .04924
17...........................................     .94829        .05171
18...........................................     .94572        .05428
19...........................................     .94303        .05697
 
20...........................................     .94021        .05979
21...........................................     .93724        .06276
22...........................................     .93412        .06588
23...........................................     .93085        .06915
24...........................................     .92739        .07261
25...........................................     .92375        .07625
26...........................................     .91993        .08007
27...........................................     .91591        .08409
28...........................................     .91168        .08832
29...........................................     .90725        .09275
30...........................................     .90259        .09741
 
31...........................................     .89773        .10227
32...........................................     .89265        .10735
33...........................................     .88733        .11267
34...........................................     .88176        .11824

[[Page 636]]

 
35...........................................     .87593        .12407
36...........................................     .86985        .13015
37...........................................     .86349        .13651
38...........................................     .85687        .14313
39...........................................     .84998        .15002
40...........................................     .84281        .15719
 
41...........................................     .83536        .16464
42...........................................     .82764        .17236
43...........................................     .81962        .18038
44...........................................     .81131        .18869
45...........................................     .80269        .19731
46...........................................     .79374        .20626
47...........................................     .78448        .21552
48...........................................     .77488        .22512
49...........................................     .76498        .23502
50...........................................     .75476        .24524
 
51...........................................     .74423        .25577
52...........................................     .73339        .26661
53...........................................     .72220        .27780
54...........................................     .71062        .28938
55...........................................     .69859        .30141
56...........................................     .68612        .31388
57...........................................     .67320        .32680
58...........................................     .65988        .34012
59...........................................     .64622        .35378
60...........................................     .63226        .36774
 
61...........................................     .61803        .38197
62...........................................     .60352        .39648
63...........................................     .58871        .41129
64...........................................     .57355        .42645
65...........................................     .55803        .44197
66...........................................     .54211        .45789
67...........................................     .52583        .47417
68...........................................     .50924        .49076
69...........................................     .49241        .50759
70...........................................     .47540        .52460
 
71...........................................     .45823        .54177
72...........................................     .44088        .55912
73...........................................     .42341        .57659
74...........................................     .40587        .59413
75...........................................     .38833        .61167
76...........................................     .37073        .62927
77...........................................     .35307        .64693
78...........................................     .33546        .66454
79...........................................     .31811        .68189
80...........................................     .30117        .69883
 
81...........................................     .28489        .71511
82...........................................     .26935        .73065
83...........................................     .25439        .74561
84...........................................     .23956        .76044
85...........................................     .22441        .77559
86...........................................     .21010        .78990
87...........................................     .19674        .80326
88...........................................     .18431        .81569
89...........................................     .17285        .82715
90...........................................     .16241        .83759
 
91...........................................     .15301        .84699
92...........................................     .14470        .85530
93...........................................     .13741        .86259
94...........................................     .13103        .86897
95...........................................     .12535        .87465
96...........................................     .11998        .88002
97...........................................     .11487        .88513
98...........................................     .10999        .89001
99...........................................     .10532        .89468
 
100..........................................     .10087        .89913
101..........................................     .09661        .90339
102..........................................     .09250        .90750
103..........................................     .08846        .91154
104..........................................     .08439        .91561
105..........................................     .08000        .92000
106..........................................     .07471        .92529
107..........................................     .06718        .93282
108..........................................     .05426        .94574
109..........................................     .02830        .97170
------------------------------------------------------------------------



Sec. 179.6  Notice of termination of life estate.

    Upon receipt of a renunciation of interest or notice of death of an 
Indian or non-Indian who died possessed of a life estate in Indian land, 
the Superintendent having jurisdiction shall file a copy of the 
renunciation or death certificate or other evidence of death with the 
appropriate Bureau of Indian Affairs' Land Titles and Records Office for 
recording.



PART 181_INDIAN HIGHWAY SAFETY PROGRAM--Table of Contents




Sec.
181.1 Purpose.
181.2 Definitions.
181.3 Am I eligible to receive a program grant?
181.4 How do I obtain an application?
181.5 How are applications ranked?
181.6 How are applicants informed of the results?
181.7 Appeals.

    Authority: 23 U.S.C. 402; 25 U.S.C. 13.

    Source: 62 FR 55331, Oct. 24, 1997, unless otherwise noted.



Sec. 181.1  Purpose.

    This part will assist the BIA Indian Highway Safety Program 
Administrator to disperse funds DOT/NHTSA has made available. The funds 
assist selected tribes with their proposed Highway Safety Projects. 
These projects are designed to reduce traffic

[[Page 637]]

crashes, reduce impaired driving crashes, increase occupant protection 
education, provide Emergency Medical Service training, and increase 
police traffic services.



Sec. 181.2  Definitions.

    Appeal means a written request for review of an action or the 
inaction of an official of the BIA that is claimed to adversely affect 
the interested party making the request.
    Applicant means an individual or persons on whose behalf an 
application for assistance and/or services has been made under this 
part.
    Application means the process through which a request is made for 
assistance or services.
    Grant means a written agreement between the BIA and the governing 
body of an Indian tribe or Indian organization wherein the BIA provides 
funds to the grantee to plan, conduct, or administer specific programs, 
services, or activities and where the administrative and programmatic 
provisions are specifically delineated.
    Grantee means the tribal governing body of an Indian tribe or Board 
of Directors of an Indian organization responsible for grant 
administration.
    Recipient means an individual or persons who have been determined as 
eligible and are receiving financial assistance or services under this 
part.



Sec. 181.3  Am I eligible to receive a program grant?

    The Indian Highway Safety Program grant is available to any 
federally recognized tribe. Because of the limited financial resources 
available for the program, the Bureau of Indian Affairs (BIA) is unable 
to award grants to all applicants. Furthermore, some grant recipients 
may only be awarded a grant to fund certain aspects of their proposed 
tribal projects.



Sec. 181.4  How do I obtain an application?

    BIA mails grant application packages for a given fiscal year to all 
federally recognized tribes by the end of February of the preceding 
fiscal year. Additional application packages are available from the 
Program Administrator, Indian Highway Safety Program, P.O. Box 2003, 
Albuquerque, New Mexico 87103. Each application package contains the 
necessary information concerning the application process, including 
format, content, and filing requirements.



Sec. 181.5  How are applications ranked?

    BIA ranks each timely filed application by assigning points based 
upon four factors.
    (a) Factor No. 1--Magnitude of the problem (Up to 50 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether a highway safety problem exists.
    (2) Whether the problem is significant.
    (3) Whether the proposed tribal project will contribute to 
resolution of the identified highway safety problem.
    (4) The number of traffic accidents occurring within the applicant's 
jurisdiction over the previous 3 years.
    (5) The number of alcohol-related traffic accidents occurring within 
the applicant's jurisdiction over the previous 3 years.
    (6) The number of reported traffic fatalities occurring within the 
applicant's jurisdiction over the previous 3 years.
    (7) The number of reported alcohol-related traffic fatalities 
occurring within the applicant's jurisdiction over the previous 3 years.
    (b) Factor No. 2--Countermeasure selection (Up to 40 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether the countermeasures selected are the most effective for 
the identified highway safety problem.
    (2) Whether the countermeasures selected are cost effective.
    (3) Whether the applicant's objectives are realistic and attainable.
    (4) Whether the applicant's objectives are time framed and, if so, 
whether the time frames are realistic and attainable.
    (c) Factor No. 3--Tribal Leadership and Community Support (Up to 10 
points available). In awarding points under this factor, BIA will take 
into account the following:
    (1) Whether the applicant proposes using tribal resources in the 
project.

[[Page 638]]

    (2) Whether the appropriate tribal governing body supports the 
proposal plan, as evidenced by a tribal resolution or otherwise.
    (3) Whether the community supports the proposal plan, as evidenced 
by letters or otherwise.
    (d) Factor No. 4--Past Performance (+ or -10 points available). In 
awarding points under this factor, BIA will take into account the 
following:
    (1) Financial and programmatic reporting requirements.
    (2) Project accomplishments.



Sec. 181.6  How are applicants informed of the results?

    BIA will send a letter to all applicants notifying them of their 
selection or non-selection for participation in the Indian Highway 
Safety Program for the upcoming fiscal year. BIA will explain to each 
applicant not selected for participation the reason(s) for non-
selection.



Sec. 181.7  Appeals.

    You may appeal actions taken by BIA officials under this part by 
following the procedures in 25 CFR part 2.



PART 183_USE AND DISTRIBUTION OF THE SAN CARLOS APACHE TRIBE DEVELOPMENT 
TRUST FUND AND SAN CARLOS APACHE TRIBE LEASE FUND--Table of Contents




                         Subpart A_Introduction

Sec.
183.1 What is the purpose of this part?
183.2 What terms do I need to know?
183.3 Does the American Indian Trust Fund Management Reform Act of 1994 
          apply to this part?

                    Subpart B_Trust Fund Disposition

                       Use of Principal and Income

183.4 How can the Tribe use the principal and income from the Trust 
          Fund?

                         Clearance Requirements

183.5 What documents must the Tribe submit to request money from the 
          Trust Fund?
183.6 How long will it take to get a decision?
183.7 What would cause the Secretary to disapprove a request?

                               Limitations

183.8 How can the Tribe spend funds?

                    Subpart C_Lease Fund Disposition

                       Use of Principal and Income

183.9 Can the Tribe request the principal of the Lease Fund?
183.10 How can the Tribe use income from the Lease Fund?

                         Clearance Requirements

183.11 What documents must the Tribe submit to request money from the 
          Lease Fund?
183.12 How long will it take to receive a decision?
183.13 What would cause the Secretary to disapprove a request?

                               Limitations

183.14 What limits are there on how the Tribe can spend funds?

                            Subpart D_Reports

183.15 Must the Tribe submit any reports?
183.16 What information must be included in the Tribe's annual report?

                           Subpart E_Liability

183.17 If expenditures under this part lead to a claim or cause of 
          action, who is liable?
183.18 Information collection requirements

    Authority: Pub. L. 102-575, 106 Stat. 4740 et seq.

    Source: 66 FR 21088, Apr. 27, 2001, unless otherwise noted.



                         Subpart A_Introduction



Sec. 183.1  What is the purpose of this part?

    This part implements section 3707(e) of the San Carlos Apache Tribe 
Water Settlement Act (the Act), Public Law 102-575, 106 Stat. 4748, that 
requires regulations to administer the Trust Fund, and the Lease Fund 
established by the Act.



Sec. 183.2  What terms do I need to know?

    In this part:
    Administrative costs means any cost, including indirect costs, 
incurred by the Tribe reasonably related to an allowed use of funds 
under the Settlement Act, including indirect costs.
    Beneficial use means any use to which the Tribe's water entitlement 
is put

[[Page 639]]

that is authorized by the Settlement Act, the Settlement Agreement, or 
by the Tribal Council under the Settlement Act, the Settlement Agreement 
or otherwise permitted by law.
    CAP means the Central Arizona Project, a reclamation project 
authorized under title III of the Colorado River Basin Project Act of 
1968 (43 U.S.C. 1521 et seq.).
    Community development project or purpose means any business, 
recreational, social, health, education, environment, or general welfare 
project approved by the Tribal Council for the benefit of any community 
within the reservation.
    Economic development project or purpose means any commercial, 
industrial, agricultural, or business project approved by the Tribal 
Council for the purpose of profit to the Tribe.
    Income means interest or income earned or accrued on the principal 
of the Trust Fund or the Lease Fund and is available for distribution to 
the Tribe in accordance with the Settlement Act and this part. Beginning 
with calendar year 2001, any income that has been earned or has accrued 
on the principal of the Trust Fund or the Lease Fund and that has not 
been requested for distribution by the Tribe by December 31, shall 
become part of the principal of the Trust Fund or the Lease Fund on 
January 1 of the next calendar year.
    Lease Fund means the San Carlos Apache Tribe Lease Fund established 
in the Treasury of the United States under section 3711(d)(3)(E)(iv) of 
the Settlement Act.
    Principal means:
    (1) The amount of funds in the Trust Fund or the Lease Fund as of 
January 1, 2002; and
    (2) Any income thereon that is not distributed, and has been added 
to the principal, in accordance with the Settlement Act and this part.
    Pro forma budget means a budget, and operating statement, showing 
the estimated results for operating the economic development project for 
two years after injection of the principal or income into the operation.
    Secretary means the Secretary of the Interior or an authorized 
representative acting under delegated authority. The term ``Secretary':
    (1) Includes the Regional Director for the Western Regional Office 
of the Bureau of Indian Affairs; and
    (2) Does not include the Superintendent of the San Carlos Agency of 
the Bureau of Indian Affairs.
    Settlement Act means the San Carlos Apache Tribe Water Settlement 
Act of 1992, Title XXXVII of Public Law 102-575, 106 Stat. 4740, and any 
amendments thereto.
    Settlement Agreement means the agreement and any amendments executed 
and approved in accordance with the Settlement Act.
    Tribe means the San Carlos Apache Tribe, a Tribe of Apache Indians, 
under the Apache Treaty, July 1, 1852, 10 Stat. 970, organized under 
section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 
987; 25 U.S.C. 476), and duly recognized by the Secretary of the 
Interior.
    Trust Fund means the San Carlos Apache Tribe Development Trust Fund 
established in the Treasury of the United States under section 3707(b) 
of the Settlement Act.
    We and us mean the Secretary of the Interior as defined in this 
section.



Sec. 183.3  Does the American Indian Trust Fund Management Reform Act 
of 1994 apply to this part?

    Yes. We will manage and make distributions from the Trust Fund in 
accordance with the American Indian Trust Funds Management Act of 1994 
(Management Act), except where the Management Act conflicts with the 
Settlement Act or this part. If there is a conflict, we will follow the 
provisions of the Settlement Act or this part.



                    Subpart B_Trust Fund Disposition

                       Use of Principal and Income



Sec. 183.4  How can the Tribe use the principal and income from the 
Trust Fund?

    The Tribe may use the principal and income from the Trust Fund in 
the following ways:
    (a) To put to beneficial use the water entitlement provided to the 
Tribe in the Settlement Act;

[[Page 640]]

    (b) To defray the cost to the Tribe of CAP operation, maintenance, 
and replacement charges;
    (c) For economic development purposes; provided, however, that 
principal may only be used for long-term economic development projects 
and income may be used for other economic and community development 
purposes; and
    (d) For Administrative Costs reasonably related to the above uses.

                         Clearance Requirements



Sec. 183.5  What documents must the Tribe submit to request money from 
the Trust Fund?

    To request a distribution of principal or income from the Trust 
Fund, the Tribe must submit to us all of the following documents.
    (a) A certified copy of a duly enacted resolution of the Tribal 
Council requesting a distribution from the Trust Fund;
    (b) A written budget and supporting documentation, approved by the 
Tribal Council, showing precisely how the tribe will spend the money, 
including what amounts should come from principal and what amounts 
should come from income;
    (c) A pro forma budget for each identified economic development 
project, and a program budget for each identified community development 
project; and
    (d) A certification stating that the Tribe will use the funds in 
accordance with budgets submitted under this section.



Sec. 183.6  How long will it take to get a decision?

    Within 30 days of receiving the information required by Sec. 183.5 
we will approve your request if it complies with the Settlement Act and 
this part. If we disapprove your request we will do so in writing and 
will provide you with the reasons for disapproval.



Sec. 183.7  What would cause the Secretary to disapprove a request?

    We will only disapprove a request for the distribution of principal 
or income from the Trust Fund if the request does any of the following:
    (a) Fails to provide the documents identified in Sec. 183.5;
    (b) Fails to provide reports required under Sec. Sec. 183.15 and 
183.16; or
    (c) Includes a use requested or written budget that does not comply 
with a specific provision of the Settlement Act, or this part.

                               Limitations



Sec. 183.8  How can the Tribe spend funds?

    (a) The Tribe must spend principal or income distributed from the 
Trust Fund only in accordance with a written budget submitted under 
Sec. 183.5.
    (b) The Tribe must not spend the principal or income from the Trust 
Fund to make per capita payments to members of the Tribe.



                    Subpart C_Lease Fund Disposition

                       Use of Principal and Income



Sec. 183.9  Can the Tribe request the principal of the Lease Fund?

    No. We cannot distribute the principal from the Lease Fund to the 
Tribe.



Sec. 183.10  How can the Tribe use income from the Lease Fund?

    The Tribe may use income from the Lease Fund for the following 
purposes:
    (a) For economic development purposes;
    (b) For community development purposes; and
    (c) For administrative costs reasonably related to the above.

                         Clearance Requirements



Sec. 183.11  What documents must the Tribe submit to request money 
from the Lease Fund?

    To request a distribution of income from the Lease Fund, the Tribe 
must submit to us all of the following documents:
    (a) A certified copy of a duly enacted resolution of the Tribal 
Council requesting a distribution from the Lease Fund;
    (b) A pro forma budget for each identified economic development 
project and a program budget for each identified community development 
project,

[[Page 641]]

approved by the Tribal Council, showing precisely how the Tribe will 
spend the money;
    (c) Supporting documentation for the budgets required by paragraph 
(b) of this section, and
    (d) A certification stating that the Tribe will use the funds in 
accordance with budgets submitted under this section.



Sec. 183.12  How long will it take to receive a decision?

    Within 30 days of receiving the information required by Sec. 183.11 
we will approve your request if it complies with the Settlement Act and 
this part. If we disapprove your request we will do so in writing and 
will provide you with the reasons for disapproval.



Sec. 183.13  What would cause the Secretary to disapprove a request?

    We will only disapprove a request for distribution of income from 
the Lease Fund if the request does any of the following:
    (a) Fails to provide the documents identified in Sec. 183.5;
    (b) Fails to provide reports required under Sec. Sec. 183.15 and 
183.16; or
    (c) Includes a use requested or written budget that does not comply 
with a specific provision of the Settlement Act or this part.

                               Limitations



Sec. 183.14  What limits are there on how the Tribe can spend funds?

    (a) The Tribe must spend income distributed from the Lease Fund only 
in accordance with a written budget submitted under Sec. 183.5.
    (b) The Tribe must not spend the income from the Lease Fund to make 
per capita payments to members of the Tribe.



                            Subpart D_Reports



Sec. 183.15  Must the Tribe submit any reports?

    Yes. The Tribe must submit the following reports after receiving 
funds under this part:
    (a) An Annual Report, that must be submitted no later than December 
31 of each year; and
    (b) A Financial Audit, that must be submitted no later than March 1 
of each year.



Sec. 183.16  What information must be included in the Tribe's annual 
report?

    The Tribe's annual report must contain the following information:
    (a) An accounting of the expenditures of funds distributed to the 
Tribe from the Trust Fund or the Lease Fund for the preceding 12 months;
    (b) A description, in detail, of how the Tribe has used the funds 
distributed from the Trust Fund or the Lease Fund consistently with the 
requirements in the Settlement Act, this part, and the budget approved 
by the Tribal Council and the Secretary; and
    (c) Sufficient documentation for us to determine that the Tribe has 
satisfied the requirements of paragraph (b) of this section.



                           Subpart E_Liability



Sec. 183.17  If expenditures under this part lead to a claim or cause 
of action, who is liable?

    The Tribe may be liable. The United States must not be liable for 
any claim or cause of action arising from the Tribe's use or expenditure 
of monies distributed from the Trust Fund or the Lease Fund.



Sec. 183.18  Information collection requirements

    The information collection requirements contained in this part do 
not meet the requirements of ``ten or more persons'' annually; 
therefore, the Office of Management and Budget does not need to clear 
the collection. You may direct comments concerning this information 
collection to the Bureau of Indian Affairs, Information Collection 
Control Officer, 1849 C Street, NW, Washington, DC 20240.

[[Page 642]]



                    SUBCHAPTER I_ENERGY AND MINERALS





PART 200_TERMS AND CONDITIONS: COAL LEASES--Table of Contents




Sec.
200.1-200.10 [Reserved]
200.11 Incorporation of coal lease terms and conditions.
200.12 Contract term incorporation.

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), as amended.

    Source: 54 FR 22188, May 22, 1989, unless otherwise noted.



Sec. Sec. 200.1-200.10  [Reserved]



Sec. 200.11  Incorporation of coal lease terms and conditions.

    (a) All leases of coal on Indian lands, as defined in Sec. 216.101 
of this chapter, issued by the Secretary, will include at the time of 
issuance, renewal, renegotiation, or readjustment, as applicable, the 
following provision:

    The Lessee shall comply with all applicable requirements of the 
Surface Mining Control and Reclamation Act of 1977, and all regulations 
promulgated thereunder, including those codified at 30 CFR part 750.

    (b) With respect to leases of coal on Indian lands issued by the 
Secretary after August 3, 1977, the Secretary shall, at the time of 
issuance, renewal, renegotiation, or readjustment, as applicable, 
include and enforce in such leases, terms and conditions related to the 
Surface Mining Control and Reclamation Act of 1977, as requested by the 
lessor Indian tribe in writing.



Sec. 200.12  Contract term incorporation.

    The requirements of 30 CFR part 750 shall be incorporated in all 
existing and new contracts entered into for coal mining on Indian lands.

[59 FR 43419, Aug. 23, 1994]



PART 211_LEASING OF TRIBAL LANDS FOR MINERAL DEVELOPMENT--Table of 
Contents




                            Subpart A_General

Sec.
211.1 Purpose and scope.
211.2 Information collection.
211.3 Definitions.
211.4 Authority and responsibility of the Bureau of Land Management 
          (BLM).
211.5 Authority and responsibility of the Office of Surface Mining 
          Reclamation and Enforcement (OSM).
211.6 Authority and responsibility of the Minerals Management Service 
          (MMS).
211.7 Environmental studies.
211.8 Government employees cannot acquire leases.
211.9 Existing permits or leases for minerals issued pursuant to 43 CFR 
          chapter II and acquired for Indian tribes.

                     Subpart B_How To Acquire Leases

211.20 Leasing procedures.
211.21 [Reserved]
211.22 Leases for subsurface storage of oil or gas.
211.23 Corporate qualifications and requests for information.
211.24 Bonds.
211.25 Acreage limitation.
211.26 [Reserved]
211.27 Duration of leases.
211.28 Unitization and communitization agreements, and well spacing.
211.29 Exemption of leases and permits made by organized tribes.

          Subpart C_Rents, Royalties, Cancellations and Appeals

211.40 Manner of payments.
211.41 Rentals and production royalty on oil and gas leases.
211.42 Annual rentals and expenditures for development on leases other 
          than oil and gas, and geothermal resources.
211.43 Royalty rates for minerals other than oil and gas.
211.44 Suspension of operations.
211.45 [Reserved]
211.46 Inspection of premises, books and accounts.
211.47 Diligence, drainage and prevention of waste.
211.48 Permission to start operations.
211.49 Restrictions on operations.
211.50 [Reserved]
211.51 Surrender of leases.
211.52 Fees.
211.53 Assignments, overriding royalties, and operating agreements.
211.54 Lease or permit cancellation; Bureau of Indian Affairs notice of 
          noncompliance.
211.55 Penalties.
211.56 Geological and geophysical permits.
211.57 Forms.
211.58 Appeals.


[[Page 643]]


    Authority: Sec. 4, Act of May 11, 1938, (52 Stat. 347): Act of 
August 1, 1956 (70 Stat. 774): 25 U.S.C. 396a-g; and 25 U.S.C. 2 and 9.

    Source: 61 FR 35653, July 8, 1996, unless otherwise noted.



                            Subpart A_General



Sec. 211.1  Purpose and scope.

    (a) The regulations in this part govern leases and permits for the 
development of Indian tribal oil and gas, geothermal, and solid mineral 
resources except as provided under paragraph (e) of this section. These 
regulations are applicable to lands or interests in lands the title to 
which is held in trust by the United States or is subject to a 
restriction against alienation imposed by the United States. These 
regulations are intended to ensure that Indian mineral owners desiring 
to have their resources developed are assured that they will be 
developed in a manner that maximizes their best economic interests and 
minimizes any adverse environmental impacts or cultural impacts 
resulting from such development.
    (b) The regulations in this part shall be subject to amendment at 
any time by the Secretary of the Interior. No regulation that becomes 
effective after the date of approval of any lease or permit shall 
operate to affect the duration of the lease or permit, rate of royalty, 
rental, or acreage unless agreed to by all parties to the lease or 
permit.
    (c) The regulations of the Bureau of Land Management, the Office of 
Surface Mining Reclamation and Enforcement, and the Minerals Management 
Service that are referenced in Sec. Sec. 211.4, 211.5, and 211.6 are 
supplemental to the regulations in this part, and apply to parties 
holding leases or permits for development of Indian mineral resources 
unless specifically stated otherwise in this part or in such other 
Federal regulations.
    (d) Nothing in the regulations in this part is intended to prevent 
Indian tribes from exercising their lawful governmental authority to 
regulate the conduct of persons, businesses, operations or mining within 
their territorial jurisdiction.
    (e) The regulations in this part do not apply to leasing and 
development governed by regulations in 25 CFR parts 213 (Members of the 
Five Civilized Tribes of Oklahoma), 226 (Osage), or 227 (Wind River 
Reservation).



Sec. 211.2  Information collection.

    The information collection requirements contained in this part do 
not require a review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501; et seq.).



Sec. 211.3  Definitions.

    As used in this part, the following words and phrases have the 
specified meaning except where otherwise indicated:
    Applicant means any person seeking a permit, lease, or an assignment 
from the superintendent or area director.
    Approving official means the Bureau of Indians Affairs official with 
delegated authority to approve a lease or permit.
    Area director means the Bureau of Indian Affairs official in charge 
of an area office.
    Authorized officer means any employee of the Bureau of Land 
Management authorized by law or by lawful delegation of authority to 
perform the duties described in this part and in 43 CFR parts 3160, 
3180, 3260, 3280, 3480 and 3590.
    Cooperative agreement means a binding arrangement between two or 
more parties purporting to the act of agreeing or of coming to a mutual 
arrangement that is accepted by all parties to a transaction (e.g., 
communitization and unitization).
    Director's representative means the Office of Surface Mining 
Reclamation and Enforcement director's representative authorized by law 
or lawful delegation of authority to perform the duties described in 30 
CFR part 750.
    Gas means any fluid, either combustible or non-combustible, that is 
produced in a natural state from the earth and that maintains a gaseous 
or rarefied state at ordinary temperature and pressure conditions.
    Geological and geophysical permit means a written authorization to 
conduct on-site surveys to locate potential deposits of oil and gas, 
geothermal or solid mineral resources on the lands.
    Geothermal resources means:

[[Page 644]]

    (1) All products of geothermal processes, including indigenous 
steam, hot water and hot brines;
    (2) Steam and other gases, hot water, and hot brines, resulting from 
water, gas or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any by-product derived therefrom.
    In the best interest of the Indian mineral owner refers to the 
standards to be applied by the Secretary in considering whether to take 
an administrative action affecting the interests of an Indian mineral 
owner. In considering whether it is ``in the best interest of the Indian 
mineral owner'' to take a certain action (such as approval of a lease, 
permit, unitization or communitization agreement), the Secretary shall 
consider any relevant factor, including, but not limited to: economic 
considerations, such as date of lease expiration; probable financial 
effect on the Indian mineral owner; leasability of land concerned; need 
for change in the terms of the existing lease; marketability; and 
potential environmental, social, and cultural effects.
    Indian lands means any lands owned by any individual Indian or 
Alaska Native, Indian tribe, band, nation, pueblo, community, rancheria, 
colony, or other tribal group which owns land or interests in the land, 
the title to which is held in trust by the United States or is subject 
to a restriction against alienation imposed by the United States.
    Indian mineral owner means an Indian tribe, band, nation, pueblo 
community, rancheria, colony, or other tribal group which owns mineral 
interests in oil and gas, geothermal or solid mineral resources, title 
to which is held in trust by the United States, or is subject to a 
restriction against alienation imposed by the United States.
    Indian surface owner means any individual Indian or Indian tribe 
whose surface estate is held in trust by the United States, or is 
subject to restriction against alienation imposed by the United States.
    Lease means any contract approved by the United States under the Act 
of May 11, 1938 (52 Stat. 347) (25 U.S.C. 396a-396g), as amended, that 
authorizes exploration for, extraction of, or removal of any minerals.
    Lessee means a natural person, proprietorship, partnership, 
corporation, or other entity that has entered into a lease with an 
Indian mineral owner, or who has been assigned an obligation to make 
royalty or other payments required by the lease.
    Lessor means an Indian mineral owner who is a party to a lease.
    Minerals includes both metalliferous and non-metalliferous minerals; 
all hydrocarbons, including oil and gas, coal and lignite of all ranks; 
geothermal resources; and includes but is not limited to, sand, gravel, 
pumice, cinders, granite, building stone, limestone, clay, silt, or any 
other energy or non-energy mineral.
    Minerals Management Service official means any employee of the 
Minerals Management Service (MMS) authorized by law or by lawful 
delegation of authority to perform the duties described in 30 CFR 
chapter II, subchapters A and C.
    Mining means the science, technique, and business of mineral 
development including, but not limited to: opencast work, underground 
work, and in-situ leaching directed to severance and treatment of 
minerals; Provided, when sand, gravel, pumice, cinders, granite, 
building stone, limestone, clay or silt is the subject mineral, an 
enterprise is considered ``mining'' only if the extraction of such a 
mineral exceeds 5,000 cubic yards in any given year.
    Oil means all nongaseous hydrocarbon substances other than those 
substances leasable as coal, oil shale, or gilsonite (including all 
vein-type solid hydrocarbons). Oil includes liquefiable hydrocarbon 
substances such as drip gasoline and other natural condensates recovered 
or recoverable in a liquid state from produced gas without resorting to 
a manufacturing process.
    Permit means any contract issued by the superintendent and/or area 
director to conduct exploration on; or removal of less than 5,000 cubic 
yards per year of common varieties of minerals from Indian lands.
    Permittee means a person holding or required by this part to hold a 
permit to conduct exploration operations on; or remove less than 5,000 
cubic yards

[[Page 645]]

per year of common varieties of minerals from Indian lands.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Solid minerals means all minerals excluding oil, gas and geothermal 
resources.
    Superintendent means the Bureau of Indian Affairs official in charge 
of the agency office having jurisdiction over the minerals subject to 
leasing under this part.



Sec. 211.4  Authority and responsibility of the Bureau of Land 
Management (BLM).

    The functions of the Bureau of Land Management are found in 43 CFR 
part 3160--Onshore Oil and Gas Operations, 43 CFR part 3180--Onshore Oil 
and Gas Unit Agreements: Unproven Area, 43 CFR part 3260--Geothermal 
Resources Operations, 43 CFR part 3280--Geothermal Resources Unit 
Agreements: Unproven Areas, 43 CFR part 3480--Coal Exploration and 
Mining Operations, and 43 CFR part 3590--Solid Minerals (other than 
coal) Exploration and Mining Operations; and currently include, but are 
not limited to, resource evaluation, approval of drilling permits, 
mining and reclamation, production plans, mineral appraisals, inspection 
and enforcement, and production verification. These regulations, apply 
to leases and permits approved under this part.



Sec. 211.5  Authority and responsibility of the Office of Surface 
Mining Reclamation and Enforcement (OSM).

    The OSM is the regulatory authority for surface coal mining and 
reclamation operations on Indian lands pursuant to the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). The 
relevant regulations for surface coal mining and reclamation operations 
are found in 30 CFR part 750. Those regulations apply to mining and 
reclamation on leases approved under this part.



Sec. 211.6  Authority and responsibility of the Minerals Management 
Service (MMS).

    The functions of the MMS for reporting, accounting, and auditing are 
found in 30 CFR chapter II, subchapters A and C, which, apply to leases 
approved under this part. To the extent the parties to a lease or permit 
are able to provide reasonable provisions satisfactorily addressing the 
functions governed by MMS regulations, the Secretary may approve 
alternate provisions in a lease or permit.



Sec. 211.7  Environmental studies.

    (a) The Secretary shall ensure that all environmental studies are 
prepared as required by the National Environmental Policy Act of 1969 
(NEPA) and the regulations promulgated by the Council on Environmental 
Quality (CEQ), found in 40 CFR parts 1500 through 1508.
    (b) The Secretary shall ensure that all necessary surveys are 
performed and clearances obtained in accordance with 36 CFR parts 60, 
63, and 800 and with the requirements of the Archaeological and Historic 
Preservation Act (16 U.S.C. 469 et seq.), the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), The American Indian Religious 
Freedom Act (42 U.S.C. 1996), and Executive Order 11593, Protection and 
Enhancement of the Cultural Environment (3 CFR, 1971 through 1975 Comp., 
p. 559). If these surveys indicate that a mineral development will have 
an adverse effect on a property listed on or eligible for listing on the 
National Register of Historic Places, the Secretary shall:
    (1) Seek the comments of the Advisory Council on Historic 
Preservation, in accordance with 36 CFR part 800;
    (2) Ensure that the property is avoided, that the adverse effect is 
mitigated, or;
    (3) Ensure that appropriate excavations or other related research is 
conducted and ensure that complete data describing the historic property 
is preserved.



Sec. 211.8  Government employees cannot acquire leases.

    U.S. Government employees are prevented from acquiring leases or 
interests in leases by the provisions of 25 CFR part 140 and 43 CFR part 
20 pertaining to conflicts of interest and ownership of an interest in 
trust land.

[[Page 646]]



Sec. 211.9  Existing permits or leases for minerals issued pursuant 
to 43 CFR chapter II and acquired for Indian tribes.

    (a) Title to the minerals underlying certain Federal lands, which 
were previously subject to general leasing and mining laws, is now held 
in trust by the United States for Indian tribes. Existing mineral 
prospecting permits, exploration and mining leases on these lands, 
issued prior to these lands being placed in trust status or becoming 
Indian lands, pursuant to 43 CFR chapter II (and its predecessor 
regulations), and all actions on the permits and leases shall be 
administered by the Secretary in accordance with the regulations set 
forth in 30 CFR chapters II and VII and 43 CFR chapter II, as 
applicable, provided, that all payment or reports required by a non-
producing lease or permit, issued pursuant to 43 CFR chapter II, shall 
be made to the superintendent having administrative jurisdiction over 
the land involved, instead of the officer of the Bureau of Land 
Management designated in 43 CFR unless specifically stated otherwise in 
the statutes authorizing the United States to hold the land in trust for 
an Indian tribe. Producing lease payments and reports will be submitted 
to the Minerals Management Service in accordance with 30 CFR chapter II, 
subchapters A and C.
    (b) Administrative actions regarding an existing lease or permit 
under this section, may be appealed pursuant to 25 CFR part 2.



                     Subpart B_How To Acquire Leases



Sec. 211.20  Leasing procedures.

    (a) Indian mineral owners may, with the approval of the 
superintendent or area director, lease their land for mining purposes. 
No oil and gas lease shall be approved unless it has first been offered 
for bidding at an advertised lease sale in accordance with this section. 
Leases for minerals other than oil and gas shall be advertised for bids 
as prescribed in this section unless the Secretary grants the Indian 
mineral owners written permission to negotiate for lease. Application 
for leases shall be made to the superintendent having jurisdiction over 
the lands.
    (b) Indian mineral owners may request that the Secretary prepare and 
advertise or negotiate (if the requirements of this section have been 
met) mineral leases on their behalf. If requested by an applicant 
interested in acquiring rights to Indian-owned minerals, the Secretary 
shall promptly notify the Indian mineral owner, and advise the owner in 
writing of the alternatives available, including the right to decline to 
lease. If the Indian mineral owner decides to have the leases 
advertised, the Secretary shall consult with the Indian mineral owner 
concerning the appropriate royalty rate and rental. The Secretary may 
then undertake the responsibility to advertise and lease in accordance 
with the following procedures:
    (1) Leases shall be advertised to receive optimum competition for 
bonus consideration, under sealed bid, oral auction, or a combination of 
both. Notice of such advertisement shall be published in at least one 
local newspaper and in one trade publication at least thirty (30) days 
in advance of sale. If applicable, such notice must identify the 
reservation within which the tracts to be leased are found. No specific 
description of the tracts to be leased need be published. Specific 
description of such tracts shall be available at the office of the 
superintendent and/or area director upon request. The complete text of 
the advertisement, including a specific description, shall be mailed to 
each person listed on the appropriate agency or area mailing list. 
Individuals and companies interested in receiving advertisements of 
lease sales should send their mailing information to the appropriate 
superintendent or area director for future reference.
    (2) The advertisement shall offer the tracts to the responsible 
bidder offering the highest bonus. The Secretary, after consultation 
with the Indian mineral owner, shall establish the rental and royalty 
rates which shall be stated in the advertisement and shall not be 
subject to negotiation. The advertisement shall provide that the 
Secretary reserves the right to reject any or all bids, and that 
acceptance of the lease bid by the Indian mineral owner is required.

[[Page 647]]

    (3) Each sealed bid must be accompanied by a cashier's check, 
certified check or postal money order, or any combination thereof, 
payable to the payee designated in the advertisement, in an amount not 
less than 25 percent of the bonus bid, which shall be returned if that 
bid is not accepted.
    (4) A successful oral auction bidder will be allowed five (5) 
working days to remit the required 25 percent deposit of the bonus bid.
    (5) A successful bidder shall, within thirty (30) days after 
notification of the bid award, remit to the Secretary the balance of the 
bonus, the first year's rental, a $75 filing fee, its prorated share of 
the advertising costs as determined by the Bureau of Indian Affairs, and 
file with the Secretary all required bonds. The successful bidder shall 
also file the lease in completed form at that time. However, for good 
reasons, the Secretary may grant extensions of time in thirty (30) day 
increments for filing of the lease and all required bonds, provided that 
additional extension requests are submitted and approved prior to the 
expiration of the original thirty (30) days or the previously granted 
extension. Failure on the part of the bidder to take all reasonable 
actions necessary to comply with the foregoing shall result in 
forfeiture of the required payment of 25 percent of any bonus bid for 
the use and benefit of the Indian mineral owner.
    (6) If no satisfactory bid is received, or if the accepted bidder 
fails to complete all requirements necessary for the approval of the 
lease, or if the Secretary determines that it is not in the best 
interest of the Indian mineral owner to accept any of the bids the 
Secretary may re-advertise the lease for sale, or, subject to the 
consent of the Indian mineral owner, the lease may be let through 
private negotiations.
    (c) The Secretary shall advise the Indian mineral owner of the 
results of the bidding, and shall not approve the lease until the 
consent of the Indian mineral owner has been obtained.
    (d) The Indian mineral owner may also submit negotiated leases to 
the Secretary for review and approval.



Sec. 211.21  [Reserved]



Sec. 211.22  Leases for subsurface storage of oil or gas.

    (a) The Secretary, with the consent of the Indian mineral owners, 
may approve storage leases, or modifications, amendments, or extensions 
of existing leases, on Indian lands to provide for the subsurface 
storage of oil or gas, irrespective of the lands from which production 
is initially obtained. The storage lease, or modification, amendment, or 
extension to an existing lease, shall provide for the payment of such 
storage fee or rental on such oil or gas as may be determined adequate 
in each case, or, in lieu thereof, for a royalty other than that 
prescribed in the oil and gas lease when such stored oil and gas is 
produced in conjunction with oil or gas not previously produced.
    (b) The Secretary, with consent of the Indian mineral owners, may 
approve a provision in an oil and gas lease under which storage of oil 
and gas is authorized, for continuance of the lease at least for the 
period of such storage use and so long thereafter as oil or gas not 
previously produced is produced in paying quantities.
    (c) Applications for subsurface storage of oil or gas shall be filed 
in triplicate with the authorized officer and shall disclose the 
ownership of the lands involved, the parties in interest, the storage 
fee, rental, or royalty offered to be paid for such storage, and all 
essential information showing the necessity for such project. Enough 
copies of the final agreement signed by the Indian mineral owners and 
other parties in interest shall be submitted for the approval of the 
Secretary to permit retention of five copies by the Department after 
approval.



Sec. 211.23  Corporate qualifications and requests for information.

    (a) The signing in a representative capacity and delivery of bids, 
geological and geophysical permits, mineral leases, or assignments, 
bonds, or other instruments required by the regulations in this part 
constitutes certification that the individual signing (except a surety 
agent) is authorized to act in such capacity. An agent for a

[[Page 648]]

surety shall furnish a power of attorney.
    (b) A corporate applicant proposing to acquire an interest in a 
permit or lease shall have on file with the superintendent or area 
director a statement showing:
    (1) The State(s) in which the corporation is incorporated, and that 
the corporation is authorized to hold such interests in the State where 
the land described in the instrument is situated; and
    (2) A notarized statement that the corporation has power to conduct 
all business and operations as described in the lease or permit.
    (c) The Secretary may, either before or after the approval of a 
permit, mineral lease, assignment, or bond, call for any reasonable 
additional information necessary to carry out the regulations in this 
part, or other applicable laws and regulations.



Sec. 211.24  Bonds.

    (a) The lessee, permittee or prospective lessee acquiring a lease, 
or any interest therein, by assignment shall furnish with each lease, 
permit or assignment a surety bond or personal bond in an amount 
sufficient to ensure compliance with all of the terms and conditions of 
the lease(s), permit(s), or assignment(s) and the statutes and 
regulations applicable to the lease, permit, or assignment. Surety bonds 
shall be issued by a qualified company approved by the Department of the 
Treasury (see Department of the Treasury Circular No. 570).
    (b) An operator may file a $75,000 bond for all geothermal, mining, 
or oil and gas leases, permits, or assignments in any one State, which 
may also include areas on that part of an Indian reservation extending 
into any contiguous State. Statewide bonds are subject to approval in 
the discretion of the Secretary.
    (c) An operator may file a $150,000 bond for full nationwide 
coverage to cover all geothermal or oil and gas leases, permits, or 
assignments without geographic or acreage limitation to which the 
operator is or may become a party. Nationwide bonds are subject to 
approval in the discretion of the Secretary.
    (d) Personal bonds shall be accompanied by:
    (1) Certificate of deposit issued by a financial institution, the 
deposits of which are federally insured, explicitly granting the 
Secretary full authority to demand immediate payment in case of default 
in the performance of the provisions and conditions of the lease or 
permit. The certificate shall explicitly indicate on its face that 
Secretarial approval is required prior to redemption of the certificate 
of deposit by any party;
    (2) Cashier's check;
    (3) Certified check;
    (4) Negotiable Treasury securities of the United States of a value 
equal to the amount specified in the bond. Negotiable Treasury 
securities shall be accompanied by a proper conveyance to the Secretary 
of full authority to sell such securities in case of default in the 
performance of the provisions and conditions of a lease or permit; or
    (5) Letter of credit issued by a financial institution authorized to 
do business in the United States and whose deposits are federally 
insured, and identifying the Secretary as sole payee with full authority 
to demand immediate payment in the case of default in the performance of 
the provisions and conditions of a lease or permit.
    (i) The letter of credit shall be irrevocable during its term.
    (ii) The letter of credit shall be payable to the Bureau of Indian 
Affairs upon demand, in part or in full, upon receipt from the Secretary 
of a notice of attachment stating the basis thereof (e.g., default in 
compliance with the lease or permit provisions and conditions or failure 
to file a replacement in accordance with paragraph (d)(5)(v) of this 
section).
    (iii) The initial expiration date of the letter of credit shall be 
at least one (1) year following the date it is filed in the proper 
Bureau of Indian Affairs office.
    (iv) The letter of credit shall contain a provision for automatic 
renewal for periods of not less than one (1) year in the absence of 
notice to the proper Bureau of Indian Affairs office at least ninety 
(90) days prior to the originally stated or any extended expiration 
date.

[[Page 649]]

    (v) A letter of credit used as security for any lease or permit upon 
which operations have taken place and final approval for abandonment has 
not been given, or as security for a statewide or nationwide bond, shall 
be forfeited and shall be collected by the Secretary if not replaced by 
other suitable bond or letter of credit at least thirty (30) days before 
its expiration date.
    (e) The required amount of bonds may be increased in any particular 
case at the discretion of the Secretary.



Sec. 211.25  Acreage limitation.

    A lessee may acquire more than one lease but no single lease shall 
be granted for mineral leasing purposes on Indian tribal or restricted 
lands in excess of the following acreage except where the rule of 
approximation applies:
    (a) Leases for oil and gas and all other minerals except coal are to 
be contained within one United States Governmental survey section of 
land and shall be described by legal subdivisions including lots or 
tract equivalents not to exceed 640 acres; in instances of irregular 
surveys, including lands not surveyed under the United States 
Governmental survey, lands shall be considered in multiples of 40 acres 
or the nearest aliquot equivalent thereof;
    (b) Leases for coal shall ordinarily be limited to 2,560 acres in a 
reasonably compact form and shall be described by legal subdivisions 
including lots or tract equivalents. In instances of irregular surveys, 
including lands not surveyed under the United States Governmental 
survey, lands shall be considered in multiples of 40 acres or the 
nearest aliquot equivalent thereof. The Secretary may, upon application 
and with the consent of the Indian mineral owner, approve the issuance 
of a single lease for more than 2,560 acres, in a reasonably compact 
form, upon a finding that the issuance is in the best interest of the 
lessor.



Sec. 211.26  [Reserved]



Sec. 211.27  Duration of leases.

    (a) All leases shall be for a term not to exceed a primary term of 
lease duration of ten (10) years and, absent specific lease provisions 
to the contrary, shall continue as long thereafter as the minerals 
specified in the lease are produced in paying quantities. Absent 
specific lease provisions to the contrary, all provisions in leases 
governing their duration shall be measured from the date of approval by 
the Secretary.
    (b) An oil and gas or geothermal resource lease which stipulates 
that it shall continue in full force and effect beyond the expiration of 
the primary term of lease duration (``commencement clause'') if drilling 
operations have commenced during the primary term, shall be valid and 
shall hold the lease beyond the primary term of lease duration if the 
lessee or the lessee's designee has commenced actual drilling by 
midnight of the last day of the primary term of the lease with a 
drilling rig designed to reach the total proposed depth, and drilling is 
continued with reasonable diligence until the well is completed to 
production or abandoned. However, in no case shall such drilling hold 
the lease longer than 120 days past the primary term of lease duration 
without actual production of oil, gas, or geothermal resources. 
Provided, that this extension does not allow a lease to continue past 
the 10-year statutory limitation. Drilling which meets the requirements 
of this section and occurs within a unit or communitization agreement to 
which the lease is committed shall be considered as if it occurs on the 
leasehold itself. If there is a conflict between the commencement clause 
and the habendum clause of a lease, the commencement clause will 
control.
    (c) A solid minerals lease which stipulates that it shall continue 
in full force and effect beyond the expiration of the primary term of 
lease duration if mining operations have commenced during the primary 
term (commencement clause), shall be valid and hold the lease beyond the 
primary term of lease duration if the lessee or the lessee's designee 
has by midnight of the last day of the primary term of the lease 
commenced actual removal of mineral materials intended for sale and upon 
which royalties will be paid. If there is a conflict between the 
commencement clause and the habendum clause of a lease, the commencement 
clause will control.

[[Page 650]]



Sec. 211.28  Unitization and communitization agreements, and well 
spacing.

    (a) For the purpose of promoting conservation and efficient 
utilization of minerals, the Secretary may approve a cooperative unit, 
drilling or other development plan on any leased area upon a 
determination that approval is advisable and in the best interest of the 
Indian mineral owner. For the purposes of this section, a cooperative 
unit, drilling or other development plan means an agreement for the 
development or operation of a specifically designated area as a single 
unit without regard to separate ownership of the land included in the 
agreement. Such cooperative agreements include, but are not limited to, 
unit agreements, communitization agreements and other types of 
agreements that allocate costs and benefits.
    (b) The consent of the Indian mineral owner to such unit or 
cooperative agreement shall not be required unless such consent is 
specifically required in the lease. However, the Secretary shall consult 
with the Indian mineral owner prior to making a determination concerning 
a cooperative agreement or well spacing plan.
    (c) Requests for approval of cooperative agreements which comply 
with the requirements of all applicable rules and regulations shall be 
filed with the superintendent or area director.
    (d) All Indian mineral owners of any right, title or interest in the 
mineral resources to be included in a cooperative agreement must be 
notified by the lessee at the time the agreement is submitted to the 
superintendent or area director. An affidavit from the lessee stating 
that a notice was mailed to each mineral owner of record for whom the 
superintendent or area director has an address will satisfy this notice 
requirement.
    (e) A request for approval of a proposed cooperative agreement, and 
all documents incident to such agreement, must be filed with the 
superintendent or area director at least ninety (90) days prior to the 
first expiration date of any of the Indian leases in the area proposed 
to be covered by the cooperative agreement.
    (f) Unless otherwise provided in the cooperative agreement, approval 
of the agreement commits each lease to the unit in the area covered by 
the agreement on the date approved by the Secretary or the date of first 
production, whichever is earlier, as long as the agreement is approved 
before the lease expiration date.
    (g) Any lease committed in part to any such cooperative agreement 
shall be segregated into a separate lease or leases as to the lands 
committed and lands not committed to the agreement. Segregation shall be 
effective on the date the agreement is effective.
    (h) Wells shall be drilled in conformity with a well spacing program 
approved by the authorized officer.



Sec. 211.29  Exemption of leases and permits made by organized tribes.

    The regulations in this part may be superseded by the provisions of 
any tribal constitution, bylaw or charter issued pursuant to the Indian 
Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), 
the Alaska Act of May 1, 1936 (49 Stat. 1250; 48 U.S.C. 362,258a), or 
the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967; 25 
U.S.C., and Sup., 501-509), or by ordinance, resolution, or other action 
authorized under such constitution, bylaw or charter; Provided, that 
such tribal law may not supersede the requirements of Federal statutes 
applicable to Indian mineral leases. The regulations in this part, in so 
far as they are not so superseded, shall apply to leases and permits 
made by organized tribes if the validity of the lease or permit depends 
upon the approval of the Secretary of the Interior.



          Subpart C_Rents, Royalties, Cancellations and Appeals



Sec. 211.40  Manner of payments.

    Unless otherwise specifically provided for in a lease, once 
production has been established, all payments shall be made to the MMS 
or such other party as may be designated, and shall be made at such time 
as provided in 30 CFR chapter II, subchapters A and C. Prior to 
production, all bonus and rental payments, shall be made to the 
superintendent or area director.

[[Page 651]]



Sec. 211.41  Rentals and production royalty on oil and gas leases.

    (a) A lessee shall pay, in advance, beginning with the effective 
date of the lease, an annual rental of $2.00 per acre or fraction of an 
acre or such other greater amount as prescribed in the lease. This 
rental shall not be credited against production royalty nor shall the 
rental be prorated or refunded because of surrender or cancellation.
    (b) The Secretary shall not approve leases with a royalty rate less 
than 16-\2/3\ percent of the amount or value of production produced and 
sold from the lease unless a lower royalty rate is agreed to by the 
Indian mineral owner and is found to be in the best interest of the 
Indian mineral owner. Such approval may only be granted by the area 
director if the approving official is the superintendent and by the 
Assistant Secretary for Indian Affairs if the approving official is the 
area director.
    (c) Value of lease production for royalty purposes shall be 
determined in accordance with applicable lease provisions and 
regulations in 30 CFR chapter II, subchapters A and C. If the valuation 
provisions in the lease are inconsistent with the regulations in 30 CFR 
chapter II, subchapters A and C, the lease provisions shall govern.
    (d) If the leased premises produce gas in excess of the lessee's 
requirements for the development and operation of said premises, then 
the lessor may use sufficient gas, free of charge, for any desired 
school or other buildings belonging to the tribe, by making his own 
connections to a regulator installed, connected to the well and 
maintained by the lessee, and the lessee shall not be required to pay 
royalty on gas so used. The use of such gas shall be at the lessor's 
risk at all times.



Sec. 211.42  Annual rentals and expenditures for development on leases 
other than oil and gas, and geothermal resources.

    (a) Unless otherwise authorized by the Secretary, a lease for 
minerals other than oil, gas and geothermal resources shall provide for 
a yearly development expenditure of not less than $20 per acre. All such 
leases shall provide for a rental payment of not less than $2.00 for 
each acre or fraction of an acre payable on or before the first day of 
each lease year.
    (b) Within twenty (20) days after the lease year, an itemized 
statement, in duplicate, of the expenditure for development under a 
lease for minerals other than oil and gas shall be filed with the 
superintendent or area director. The lessee must certify the statement 
under oath.



Sec. 211.43  Royalty rates for minerals other than oil and gas.

    (a) Except as provided in paragraph (b) of this section, the minimum 
rates for leases of minerals other than oil and gas shall be as follows:
    (1) For substances other than coal, the royalty rate shall be 10 
percent of the value of production produced and sold from the lease at 
the nearest shipping point.
    (2) For coal to be strip or open pit mined the royalty rate shall be 
12\1/2\ percent of the value of production produced and sold from the 
lease, and for coal removed from an underground mine, the royalty rate 
shall be 8 percent of the value of production produced and sold from the 
lease.
    (3) For geothermal resources, the royalty rate shall be 10 percent 
of the amount or value of steam, or any other form of heat or energy 
derived from production of geothermal resources under the lease and sold 
or utilized by the lessee. In addition, the royalty rate shall be 5 
percent of the value of any byproduct derived from production of 
geothermal resources under the lease and sold or utilized or reasonably 
susceptible of sale or utilization by the lessee, except that the 
royalty for any mineral byproduct shall be governed by the appropriate 
paragraph of this section.
    (b) A lower royalty rate shall be allowed if it is determined to be 
in the best interest of the Indian mineral owner. Approval of a lower 
rate may only be granted by the area director if the approving official 
is the superintendent or by the Assistant Secretary for Indian Affairs, 
if the approving official is the area director.

[[Page 652]]



Sec. 211.44  Suspension of operations.

    (a) After the expiration of the primary term of the lease the 
Secretary may approve suspension of operations for remedial purposes 
which are necessary for continued production, to protect the resource, 
the environment, or for other good reasons. Provided, that such remedial 
operations are conducted in accordance with 43 CFR part 3160, subpart 
3165 and under such stipulations and conditions as may be prescribed by 
the Secretary and are conducted with reasonable diligence. Any 
suspension shall not relieve the lessee from liability for the payment 
of rental and other payments as required by lease provisions.
    (b) An application for permission to suspend operations or 
production for economic or marketing reasons on a lease capable of 
production after the expiration of the primary term of lease duration 
must be accompanied by the written consent of the Indian mineral owner, 
an economic analysis, and an executed amendment by the parties to the 
lease setting forth the provisions pertaining to the suspension of 
operations and production. Such application shall be treated as a 
negotiated change to lease provisions, and as such, shall be subject to 
review and approval by the Secretary.



Sec. 211.45  [Reserved]



Sec. 211.46  Inspection of premises, books and accounts.

    Lessees shall allow the Indian mineral owner, the Indian mineral 
owner's representatives, or any authorized representative of the 
Secretary to enter all parts of the leased premises for the purpose of 
inspection and audit. Lessees shall keep a full and correct account of 
all operations and submit all related reports required by the lease and 
applicable regulations. Books and records shall be available for 
inspection during regular business hours.



Sec. 211.47  Diligence, drainage and prevention of waste.

    The lessee shall:
    (a) Exercise diligence in mining, drilling and operating wells on 
the leased lands while minerals production can be secured in paying 
quantities;
    (b) Protect the lease from drainage (if oil and gas or geothermal 
resources are being drained from the lease premises by a well or wells 
located on lands not included in the lease, the Secretary reserves the 
right to impose reasonable and equitable terms and conditions to protect 
the interest of the Indian mineral owner of the lands, such as payment 
of compensatory royalty for the drainage);
    (c) Carry on operations in a good and workmanlike manner in 
accordance with approved methods and practices;
    (d) Have due regard for the prevention of waste of oil or gas or 
other minerals, the entrance of water through wells drilled by the 
lessee to other strata, to the destruction or injury of the oil or gas, 
other mineral deposits, or fresh water aquifers, the preservation and 
conservation of the property for future productive operations, and the 
health and safety of workmen and employees;
    (e) Securely plug all wells and effectively shut off all water from 
the oil or gas-bearing strata before abandoning them;
    (f) Not construct any well pad location within 200 feet of any 
structures or improvements without the Indian surface owner's written 
consent;
    (g) Carry out, at the lessee's expense, all reasonable orders and 
requirements of the authorized officer relative to prevention of waste;
    (h) Bury all pipelines crossing tillable lands below plow depth 
unless other arrangements are made with the Indian surface owner; and
    (i) Pay the Indian surface owner all damages, including damages to 
crops, buildings, and other improvements of the Indian surface owner 
occasioned by the lessee's operations as determined by the 
superintendent.



Sec. 211.48  Permission to start operations.

    (a) No exploration, drilling, or mining operations are permitted on 
any Indian lands before the Secretary has granted written approval of a 
mineral lease or permit pursuant to the regulations in this part.
    (b) After a lease or permit is approved, written permission must be 
secured from the Secretary before any

[[Page 653]]

operations are started on the leased premises, in accordance with 
applicable rules and regulations in 25 CFR part 216; 30 CFR chapter II, 
subchapters A and C; 30 CFR part 750 (Requirements for Surface Coal 
Mining and Reclamation Operations on Indian Lands), 43 CFR parts 3160, 
3260, 3480, 3590, and Orders or Notices to Lessees (NTLs) issued 
thereunder.



Sec. 211.49  Restrictions on operations.

    Leases issued under the provisions of the regulations in this part 
shall be subject to such restrictions as to time or times for well 
operations and production from any leased premises as the Secretary 
judges may be necessary or proper for the protection of the natural 
resources of the leased land and in the interest of the lessor.



Sec. 211.50  [Reserved]



Sec. 211.51  Surrender of leases.

    A lessee may, with the approval of the Secretary, surrender a lease 
or any part of it, on the following conditions:
    (a) All royalties and rentals due on the date the request for 
surrender is received must be paid;
    (b) The superintendent, after consultation with the authorized 
officer, must be satisfied that proper provisions have been made for the 
conservation and protection of the property, and that all operations on 
the portion of the lease surrendered have been properly reclaimed, 
abandoned, or conditioned, as required;
    (c) If a lease has been recorded, the lessee must submit a release 
along with the recording information of the original lease so that, 
after acceptance of the release, it may be recorded;
    (d) If a lessee requests to surrender an entire lease or an entire 
undivided portion of a lease document, the lessee must deliver to the 
superintendent or area director the original lease documents; Provided, 
that where the request is made by an assignee to whom no copy of the 
lease was delivered, the assignee must deliver to the superintendent or 
area director only its copy of the assignment;
    (e) If the lease (or a portion thereof being surrendered) is owned 
in undivided interests, all lessees owning undivided interests in the 
lease must join in the request for surrender;
    (f) No part of any advance rental shall be refunded to the lessee, 
nor shall any subsequent surrender or termination of a lease relieve the 
lessee of the obligation to pay advance rental if advance rental became 
due prior to the date the request for surrender was received by the 
superintendent or area director;
    (g) If oil, gas, or geothermal resources are being drained from the 
leased premises by a well or wells located on lands not included in the 
lease, the Secretary reserves the right, prior to acceptance of the 
surrender, to impose reasonable and equitable terms and conditions to 
protect the interests of the Indian mineral owners of the lands 
surrendered. Such terms and conditions may include payment of 
compensatory royalty for any drainage; and
    (h) Upon expiration or surrender of a solid mineral lease the lessee 
shall deliver the leased premises in a condition conforming to the 
approved reclamation plan. Unless otherwise provided in the lease, the 
machinery necessary to operate the mine is the property of the lessee. 
However, the machinery may not be removed from the leased premises 
without the written permission of the Secretary.



Sec. 211.52  Fees.

    Unless otherwise authorized by the Secretary, each permit, lease, 
sublease, or other contract, or assignment, thereof shall be accompanied 
by a filing fee of $75.00 at the time of filing.



Sec. 211.53  Assignments, overriding royalties, and operating agreements.

    (a) Approved leases or any interest therein may be assigned or 
transferred only with the approval of the Secretary. The Indian mineral 
owner must also consent if approval of the Indian mineral owner is 
required in the lease. If consent is not required, then the Secretary 
shall notify the Indian mineral owner of the proposed assignment. To 
obtain the approval of the Secretary the assignee must be qualified to 
hold the lease under existing rules and regulations and shall furnish a 
satisfactory bond conditioned for the

[[Page 654]]

faithful performance of the covenants and conditions of the lease.
    (b) No lease or interest therein or the use of such lease shall be 
assigned, sublet, or transferred, directly or indirectly, by working or 
drilling contract, or otherwise, without the consent of the Secretary.
    (c) Assignments of leases, and stipulations modifying the provisions 
of existing leases, which stipulations are also subject to the approval 
of the Secretary, shall be filed with the superintendent within five (5) 
working days after the date of execution. Upon execution of satisfactory 
bonds by the assignee the Secretary may permit the release of any bonds 
executed by the assignor. Upon execution of satisfactory bonds the 
assignee accepts all the assignor's responsibilities and prior 
obligations and liabilities of the assignor (including but not limited 
to any underpaid royalties and rentals) under the lease.
    (d) Agreements creating overriding royalties or payments out of 
production shall not be considered as interests in the leases as such 
provision is used in this section. Agreements creating overriding 
royalties or payments out of production, or agreements designating 
operators are hereby authorized and the approval of the Secretary shall 
not be required with respect thereto, but such agreements shall be 
subject to the condition that nothing in such agreements shall be 
construed as modifying any of the obligations of the lessee, including, 
but not limited to, obligations imposed by requirements of the MMS for 
reporting, accounting, and auditing; obligations for diligent 
development and operation, protection against drainage and mining in 
trespass, compliance with oil and gas, geothermal, and mining 
regulations (25 CFR part 216; 43 CFR parts 3160, 3260, 3480, and 3590; 
and those applicable rules found in 30 CFR chapter II, subchapters A and 
C) and the requirements for Secretarial approval before abandonment of 
any oil and gas or geothermal well or mining operation. All such 
obligations are to remain in full force and effect, the same as if free 
of any such overriding royalties or payments. The existence of 
agreements creating overriding royalties or payments out of production, 
whether or not actually paid, shall not be considered as justification 
for the approval of abandonment of any oil and gas or geothermal well or 
mining operation. Nothing in this paragraph revokes the requirement for 
approval of assignments and other instruments which is required in this 
section, but any overriding royalties or payments out of production 
created by the provisions of such assignments or instruments shall be 
subject to the condition stated in this section. Agreements creating 
overriding royalties or payments out of production, or agreements 
designating operators shall be filed with the superintendent unless 
incorporated in assignments or instruments required to be filed pursuant 
to this section.



Sec. 211.54  Lease or permit cancellation; Bureau of Indian Affairs 
notice of noncompliance.

    (a) If the Secretary determines that a permittee or lessee has 
failed to comply with the terms of the permit or lease; the regulations 
in this part; or other applicable laws or regulations; the Secretary 
may:
    (1) Serve a notice of noncompliance specifying in what respect the 
permittee or lessee has failed to comply with the requirements 
referenced in this paragraph, and specifying what actions, if any, must 
be taken to correct the noncompliance; or
    (2) Serve a notice of proposed cancellation of the lease or permit. 
The notice of proposed cancellation shall set forth the reasons why 
lease or permit cancellation is proposed and shall specify what actions, 
if any, must be taken to avoid cancellation.
    (b) The notice of noncompliance or proposed cancellation shall 
specify in what respect the permittee or lessee has failed to comply 
with the requirements referenced in paragraph (a), and shall specify 
what actions, if any, must be taken to correct the noncompliance.
    (c) The notice shall be served upon the permittee or lessee by 
delivery in person or by certified mail to the permittee or lessee at 
the permittee's or lessee's last known address. When certified mail is 
used, the date of service shall be deemed to be when the notice is 
received or five (5) working days

[[Page 655]]

after the date it is mailed, whichever is earlier.
    (d) The lessee or permittee shall have thirty (30) days (or such 
longer time as specified in the notice) from the date that the notice is 
served to respond, in writing, to the official or the Bureau of Indian 
Affairs office that issued the notice.
    (e) If a permittee or lessee fails to take any action that is 
prescribed in the notice of proposed cancellation, fails to file a 
timely written response to the notice, or files a written response that 
does not, in the discretion of the Secretary, adequately justify the 
permittee's or lessee's actions, then the Secretary may cancel the lease 
or permit, specifying the basis for the cancellation.
    (f) If a permittee or lessee fails to take corrective action or to 
file a timely written response adequately justifying the permittee's or 
lessee's actions pursuant to a notice of noncompliance, the Secretary 
may issue an order of cessation of operations. If the permittee or 
lessee fails to comply with the order of cessation, or fails to timely 
file an appeal of the order of cessation pursuant to paragraph (h), the 
Secretary may issue an order of lease or permit cancellation.
    (g) Cancellation of a lease or permit shall not relieve the lessee 
or permittee of any continuing obligations under the lease or permit.
    (h) Orders of cessation or of lease or permit cancellation issued 
pursuant to this section may be appealed under 25 CFR part 2.
    (i) This section does not limit any other remedies of the Indian 
mineral owner as set forth in the lease or permit.
    (j) Nothing in this section is intended to limit the authority of 
the authorized officer or the MMS official to take any enforcement 
action authorized pursuant to statute or regulation.
    (k) The authorized officer, MMS official, and the superintendent 
and/or area director should consult with one another before taking any 
enforcement actions.



Sec. 211.55  Penalties.

    (a) In addition to or in lieu of cancellation under Sec. 211.54, 
violations of the terms and conditions of any lease, or the regulations 
in this part, or failure to comply with a notice of noncompliance or a 
cessation order issued by the Secretary, or, in the case of solid 
minerals the authorized officer, may subject a lessee or permittee to a 
penalty of not more than $1,000 per day for each day that such a 
violation or noncompliance continues beyond the time limits prescribed 
for corrective action.
    (b) A notice of a proposed penalty shall be served on the lessee or 
permittee either personally or by certified mail to the lessee or 
permittee at the lessee's or permittee's last known address. The date of 
service by certified mail shall be deemed to be the date when received 
or five (5) working days after the date mailed, whichever is earlier.
    (c) The notice shall specify the nature of the violation and the 
proposed penalty, and shall specifically advise the lessee or permittee 
of the lessee's or permittee's right to either request a hearing within 
thirty (30) days from receipt of the notice or pay the proposed penalty. 
Hearings shall be held before the superintendent and/or area director 
whose findings shall be conclusive, unless an appeal is taken pursuant 
to 25 CFR part 2.
    (d) If the lessee or permittee served with a notice of proposed 
penalty requests a hearing, penalties shall accrue each day the 
violations or noncompliance set forth in the notice continue beyond the 
time limits prescribed for corrective action. The Secretary may issue a 
written suspension of the requirement to correct the violations pending 
completion of the hearings provided by this section only upon a 
determination, at the discretion of the Secretary, that such a 
suspension will not be detrimental to the lessor and upon submission and 
acceptance of a bond deemed adequate to indemnify the lessor from loss 
or damage. The amount of the bond must be sufficient to cover the cost 
of correcting the violations set forth in the notice or any disputed 
amounts plus accrued penalties and interest.
    (e) Payment in full of penalties more than ten (10) days after a 
final decision imposing a penalty shall subject the

[[Page 656]]

lessee or permittee to late payment charges. Late payment charges shall 
be calculated on the basis of a percentage assessment rate of the amount 
unpaid per month for each month or fraction thereof until payment is 
received by the Secretary. In the absence of a specific lease provision 
prescribing a different rate, the interest rate on late payments and 
underpayments shall be a rate applicable under Sec. 6621(a)(2) of the 
Internal Revenue Code of 1954. Interest shall be charged only on the 
amount of payment not received and only for the number of days the 
payment is late.
    (f) None of the provisions of this section shall be interpreted as:
    (1) Replacing or superseding the independent authority of the 
authorized officer, the director's representative or the MMS official to 
impose penalties for violations of applicable regulations pursuant to 43 
CFR part 3160, and 43 CFR Groups 3400 and 3500, 30 CFR part 750, or 30 
CFR chapter II, subchapters A and C;
    (2) Replacing or superseding any penalty provision in the terms and 
conditions of a lease or permit approved by the Secretary pursuant to 
this part; or
    (3) Authorizing the imposition of a penalty for violations of lease 
or permit terms for which the authorized officer, director's 
representative or MMS official, have either statutory or regulatory 
authority to assess a penalty.



Sec. 211.56  Geological and geophysical permits.

    Permits to conduct geological and geophysical operations on Indian 
lands which do not conflict with any mineral leases entered into 
pursuant to this part, may be approved by the Secretary with the consent 
of the Indian mineral owner under the following conditions:
    (a) The permit must describe the area to be explored, the duration, 
and the consideration to be paid the Indian owner;
    (b) The permit will not grant the permittee any option or preference 
rights to a lease or other development contract, or authorize the 
production of, or removal of oil and gas, geothermal resources, or other 
minerals, except samples for assay and experimental purposes, unless 
specifically so stated in the permit; and
    (c) Copies of all data collected pursuant to operations conducted 
under the permit shall be forwarded to the Secretary and the Indian 
mineral owner, unless otherwise provided in the permit. Data collected 
under a permit may be held by the Secretary as privileged and 
proprietary information for the time prescribed in the permit. Where no 
time period is prescribed in the permit, the Secretary may release such 
information after six (6) years, with the consent of the Indian mineral 
owner.



Sec. 211.57  Forms.

    Leases, bonds, permits, assignments, and other instruments relating 
to mineral leasing shall be on forms, prescribed by the Secretary, that 
may be obtained from the superintendent or area director. The provisions 
of a standard lease or permit may be changed, deleted, or added to by 
written agreement of all parties with the approval of the Secretary.



Sec. 211.58  Appeals.

    Appeals from decisions of Bureau of Indian Affairs officers under 
this part may be taken pursuant to 25 CFR part 2.



PART 212_LEASING OF ALLOTTED LANDS FOR MINERAL DEVELOPMENT--Table of 
Contents




                            Subpart A_General

Sec.
212.1 Purpose and scope.
212.2 Information collection.
212.3 Definitions.
212.4 Authority and responsibility of the Bureau of Land Management 
          (BLM).
212.5 Authority and responsibility of the Office of Surface Mining 
          Reclamation and Enforcement (OSM).
212.6 Authority and responsibility of the Minerals Management Service 
          (MMS).
212.7 Environmental studies.
212.8 Government employees cannot acquire leases.

                     Subpart B_How To Acquire Leases

212.20 Leasing procedures.
212.21 Execution of leases.
212.22 Leases for subsurface storage of oil or gas.

[[Page 657]]

212.23 Corporate qualifications and requests for information.
212.24 Bonds.
212.25 Acreage limitation.
212.26 [Reserved]
212.27 Duration of leases.
212.28 Unitization and communitization agreements, and well spacing.
212.29 [Reserved]
212.30 Removal of restrictions.
212.31-212.32 [Reserved]
212.33 Terms applying after relinquishment.
212.34 Individual tribal assignments excluded.

         Subpart C_Rents, Royalties, Cancellations, and Appeals

212.40 Manner of payments.
212.41 Rentals and production royalty on oil and gas leases.
212.42 Annual rentals and expenditures for development on leases other 
          than oil and gas, and geothermal resources.
212.43 Royalty rates for minerals other than oil and gas.
212.44 Suspension of operations.
212.45 [Reserved]
212.46 Inspection of premises, books and accounts.
212.47 Diligence, drainage and prevention of waste.
212.48 Permission to start operations.
212.49 Restrictions on operations.
212.50 [Reserved]
212.51 Surrender of leases.
212.52 Fees.
212.53 Assignments, overriding royalties, and operating agreements.
212.54 Lease or permit cancellation; Bureau of Indian Affairs notice of 
          noncompliance.
212.55 Penalties.
212.56 Geological and geophysical permits.
212.57 Forms.
212.58 Appeals.

    Authority: Act of March 3, 1909, (35 Stat. 783; 25 U.S.C. 396 (as 
amended)): Act of May 11, 1938, (Sec. 2, 52 Stat. 347; 25 U.S.C. 396 b-
g: Act of August 1, 1956, (70 Stat. 774)); and 25 U.S.C. 2 and 9.

    Source: 61 FR 35661, July 8, 1996, unless otherwise noted.



                            Subpart A_General



Sec. 212.1  Purpose and scope.

    (a) The regulations in this part govern leases for the development 
of individual Indian oil and gas, geothermal and solid mineral 
resources. These regulations are applicable to lands or interests in 
lands the title to which is held, for any individual Indian, in trust by 
the United States or is subject to restriction against alienation 
imposed by the United States. These regulations are intended to ensure 
that Indian mineral owners desiring to have their resources developed 
are assured that they will be developed in a manner that maximizes their 
best economic interests and minimizes any adverse environmental impacts 
or cultural impacts resulting from such development.
    (b) The regulations in this part shall be subject to amendment at 
any time by the Secretary of the Interior. No regulation that becomes 
effective after the date of approval of any lease or permit shall 
operate to affect the duration of the lease or permit, rate of royalty, 
rental, or acreage unless agreed to by all parties to the lease or 
permit.
    (c) Nothing in the regulations in this part is intended to prevent 
Indian tribes from exercising their lawful governmental authority to 
regulate the conduct of persons, businesses, operations or mining within 
their territorial jurisdiction.
    (d) The regulations of the Bureau of Land Management, the Office of 
Surface Mining Reclamation and Enforcement, and the Minerals Management 
Service that are referenced in Sec. Sec. 212.4, 212.5, and 212.6 of 
this part are supplemental to these regulations, and apply to parties 
holding leases or permits for development of Indian mineral resources 
unless specifically stated otherwise in this part or in such other 
Federal regulations.
    (e) The regulations in this part do not apply to leasing and 
development governed by regulations in 25 CFR part 213 (Members of the 
Five Civilized Tribes of Oklahoma), 226 (Osage), or 227 (Wind River 
Reservation).



Sec. 212.2  Information collection.

    The information collection requirements contained in this part do 
not require a review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501; et seq.).



Sec. 212.3  Definitions.

    As used in this part, the following words and phrases have the 
specified meaning except where otherwise indicated:

[[Page 658]]

    Applicant means any person seeking a permit, lease, or an assignment 
from the superintendent or area director.
    Approving official means the Bureau of Indian Affairs official with 
delegated authority to approve a lease or permit.
    Area director means the Bureau of Indian Affairs official in charge 
of an area office.
    Authorized officer means any employee of the Bureau of Land 
Management authorized by law or by lawful delegation of authority to 
perform the duties described herein and in 43 CFR parts 3160, 3180, 
3260, 3280, 3480, and 3590.
    Cooperative agreement means a binding arrangement between two or 
more parties purporting to the act of agreeing or of coming to a mutual 
arrangement that is accepted by all parties to a transaction (e.g., 
communitization and unitization).
    Director's representative means the Office of Surface Mining 
Reclamation and Enforcement director's representative authorized by law 
or lawful delegation of authority to perform the duties described in 30 
CFR part 750.
    Gas means any fluid, either combustible or non-combustible, that is 
produced in a natural state from the earth and that maintains a gaseous 
or rarefied state at ordinary temperature and pressure conditions.
    Geological and geophysical permit means a written authorization to 
conduct on-site surveys to locate potential deposits of oil and gas, 
geothermal or solid mineral resources on the lands.
    Geothermal resources means:
    (1) All products of geothermal processes, including indigenous 
steam, hot water and hot brines;
    (2) Steam and other gases, hot water, and hot brines, resulting from 
water, gas or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any by-product derived therefrom.
    In the best interest of the Indian mineral owner refers to the 
standards to be applied by the Secretary in considering whether to take 
an administrative action affecting the interests of an Indian mineral 
owner. In considering whether it is ``in the best interest of the Indian 
mineral owner'' to take a certain action (such as approval of a lease, 
permit, unitization or communitization agreement), the Secretary shall 
consider any relevant factor, including, but not limited to: economic 
considerations, such as date of lease expiration; probable financial 
effect on the Indian mineral owner; leasability of land concerned; need 
for change in the terms of the existing lease; marketability; and 
potential environmental, social, and cultural effects.
    Indian lands means any lands owned by any individual Indian or 
Alaska Native, Indian tribe, band, nation, pueblo, community, rancheria, 
colony, or other tribal group which owns lands or interest in the 
minerals, the title to which is held in trust by the United States or is 
subject to restriction against alienation imposed by the United States.
    Indian mineral owner means any individual Indian or Alaska Native 
who owns mineral interests in oil and gas, geothermal, or solid mineral 
resources, title to which is held in trust by the United States, or is 
subject to the restriction against alienation imposed by the United 
States.
    Indian surface owner means any individual Indian or Indian tribe 
whose surface estate is held in trust by the United States, or is 
subject to restriction against alienation imposed by the United States.
    Lease means any contract, approved by the Secretary of the Interior 
under the Act of March 3, 1909 (35 Stat. 783)(25 U.S.C. 396), as 
amended, and the Act of May 11, 1938 (52 Stat. 347) (25 U.S.C. 396a-
396g), as amended, that authorize exploration for, extraction of, or 
removal of any minerals.
    Lessee means a natural person, proprietorship, partnership, 
corporation, or other entity which has entered into a lease with an 
Indian mineral owner, or who has been assigned an obligation to make 
royalty or other payments required by the lease.
    Lessor means an Indian mineral owner who is a party to a lease.
    Minerals includes both metalliferous and non-metalliferous minerals; 
all hydrocarbons, including oil, gas, coal and lignite of all ranks; 
geothermal resources; and includes but is not limited to, sand, gravel, 
pumice, cinders, granite, building stone, limestone, clay,

[[Page 659]]

silt, or any other energy or non-energy mineral.
    Minerals Management Service official means any employee of the 
Minerals Management Service (MMS) authorized by law or by lawful 
delegation of authority to perform the duties described in 30 CFR 
chapter II, subchapters A and C.
    Mining means the science, technique, and business of mineral 
development including, but not limited to: opencast work, underground 
work, and in-situ leaching directed to severance and treatment of 
minerals; Provided, when sand, gravel, pumice, cinders, granite, 
building stone, limestone, clay or silt is the subject mineral, an 
enterprise is considered ``mining'' only if the extraction of such a 
mineral exceeds 5,000 cubic yards in any given year.
    Oil means all nongaseous hydrocarbon substances other than those 
substances leasable as coal, oil shale, or gilsonite (including all 
vein-type solid hydrocarbons). Oil includes liquefiable hydrocarbon 
substances such as drip gasoline and other natural condensates recovered 
or recoverable in a liquid state from produced gas without resorting to 
a manufacturing process.
    Permit means any contract issued by the superintendent and/or area 
director to conduct exploration on; or removal of less than 5,000 cubic 
yards per year of common varieties of minerals from Indian lands.
    Permittee means a person holding or required by this part to hold a 
permit to conduct exploration operations on; or remove less than 5,000 
cubic yards per year of common varieties of minerals from Indian lands.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Solid minerals means all minerals excluding oil and gas and 
geothermal resources.
    Superintendent means the Bureau of Indian Affairs official in charge 
of the agency office having jurisdiction over the minerals subject to 
leasing under this part.



Sec. 212.4  Authority and responsibility of the Bureau of Land 
Management (BLM).

    The functions of the Bureau of Land Management are found in 43 CFR 
part 3160--Onshore Oil and Gas Operations, 43 CFR part 3180--Onshore Oil 
and Gas Unit Agreements: Unproven Area, 43 CFR part 3260--Geothermal 
Resources Operations, 43 CFR part 3280--Geothermal Resources Unit 
Agreements: Unproven Areas, 43 CFR part 3480--Coal Exploration and 
Mining Operations, and 43 CFR part 3590--Solid Minerals (Other Than 
Coal) Exploration and Mining Operations, and currently include, but are 
not limited to, resource evaluation, approval of drilling permits, 
mining and reclamation, production plans, mineral appraisals, inspection 
and enforcement, and production verification. Those regulations, apply 
to leases or permits issued under this part.



Sec. 212.5  Authority and responsibility of the Office of Surface Mining 
Reclamation and Enforcement (OSM).

    The OSM is the regulatory authority for surface coal mining and 
reclamation operations on Indian lands pursuant to the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). The 
relevant regulations for surface coal mining and reclamation operations 
are found in 30 CFR part 750. Those regulations apply to mining and 
reclamation on leases issued under this part.



Sec. 212.6  Authority and responsibility of the Minerals Management 
Service (MMS).

    The functions of the MMS for reporting, accounting, and auditing are 
found in 30 CFR chapter II, subchapters A and C, which apply to leases 
approved under this part. To the extent the parties to a lease or permit 
are able to provide reasonable provisions satisfactorily addressing the 
functions governed by MMS regulations, the Secretary may approve 
alternate provisions in a lease or permit.



Sec. 212.7  Environmental studies.

    The provisions of Sec. 211.7 of this subchapter, as amended, are 
applicable to leases under this part.

[[Page 660]]



Sec. 212.8  Government employees cannot acquire leases.

    U.S. Government employees are prevented from acquiring leases or 
interests in leases by the provisions of 25 CFR part 140 and 43 CFR part 
20 pertaining to conflicts of interest and ownership of an interest in 
trust land.



                     Subpart B_How To Acquire Leases



Sec. 212.20  Leasing procedures.

    (a) Application for leases shall be made to the superintendent 
having jurisdiction over the lands.
    (b) Indian mineral owners may request the Secretary to prepare, 
advertise and negotiate mineral leases on their behalf. Leases for 
minerals shall be advertised for bids as prescribed in this section 
unless one or more of the Indian mineral owners of a tract sought for 
lease request the Secretary to negotiate for a lease on their behalf 
without advertising. Unless the Secretary decides that negotiation of a 
mineral lease is in the best interests of the Indian mineral owners, he 
shall use the following procedure for leasing:
    (1) Leases shall be advertised to receive optimum competition for 
bonus consideration, under sealed bid, oral auction, or a combination of 
both. Notice of such advertisement shall be published in at least one 
local newspaper and in one trade publication at least thirty (30) days 
in advance of sale. If applicable, such notice must identify the 
reservation within which the tracts to be leased are found. No specific 
description of the tracts to be leased need be published. Specific 
description of such tracts shall be available at the office of the 
superintendent and/or area director upon request. The complete text of 
the advertisement, including a specific description, shall be mailed to 
each person listed on the appropriate agency or area mailing list. 
Individuals and companies interested in receiving advertisements on 
lease sales should send their mailing information to the appropriate 
agency or area office for future reference.
    (2) The advertisement shall offer the tracts to a responsible bidder 
offering the highest bonus. The Secretary shall establish the rental and 
royalty rates which shall be stated in the advertisement and will not be 
subject to negotiation. The advertisement shall provide that the 
Secretary reserves the right to reject any or all bids, and that 
acceptance of the lease bid by or on behalf of the Indian mineral owner 
is required. The requirements under Sec. 212.21 are applicable to the 
acceptance of a lease bid.
    (3) Each sealed bid must be accompanied by a cashier's check, 
certified check or postal money order, or any combination thereof, 
payable to the payee designated in the advertisement, in an amount not 
less than 25 percent of the bonus bid, which shall be returned if that 
bid is not accepted.
    (4) A successful oral auction bidder will be allowed five (5) 
working days to remit the required 25 percent deposit of the bonus bid.
    (5) A successful bidder shall, within thirty (30) days after 
notification of the bid award, remit to the Secretary the balance of the 
bonus, the first year's rental, a $75 filing fee, its prorated share of 
the advertising costs as determined by the Bureau of Indian Affairs, and 
file with the Secretary all required bonds. The successful bidder shall 
also file the lease in completed form, signed by the Indian mineral 
owner(s), at that time. However, for good reasons, the Secretary may 
grant extensions of time in thirty (30) day increments for filing of the 
lease and all required bonds, provided that additional extension 
requests are submitted and approved prior to the expiration of the 
original thirty (30) days or the previously granted extension. Failure 
on the part of the bidder to take all reasonable actions necessary to 
comply with the foregoing shall result in forfeiture of the required 
payment of 25 percent of any bonus bid for the use and benefit of the 
Indian mineral owner.
    (6) If no satisfactory bid is received, or if the accepted bidder 
fails to complete all requirements necessary for approval of the lease, 
or if the Secretary determines that it is not in the best interest of 
the Indian mineral owner to accept any of the bids the Secretary may re-
advertise the tract for sale, or subject to the consent of

[[Page 661]]

the Indian mineral owner, a lease may be let through private 
negotiations.
    (c) The Secretary shall advise the Indian mineral owner of the 
results of the bidding, and shall not approve the lease until the 
consent of the Indian mineral owner has been obtained. The requirements 
under Sec. 212.21 are applicable to the approval of a mineral lease.



Sec. 212.21  Execution of leases.

    (a) The Secretary shall not execute a mineral lease on behalf of an 
Indian mineral owner, except when such owner is deceased and the heirs 
to or devisee of the estate have not been determined, or if determined, 
some or all of them cannot be located. Leases involving such interests 
may be executed by the Secretary, provided that the mineral interest 
shall have been offered for sale under the provisions of section 
212.20(b) (1) through (6).
    (b) The Secretary may execute leases on behalf of minors and persons 
who are incompetent by reason of mental incapacity; Provided, that there 
is no parent, guardian, conservator, or other person who has lawful 
authority to execute a lease on behalf of the minor or person with 
mental incapacity.
    (c) If an owner is a life tenant, the procedures set forth in 25 CFR 
part 179 (Life Estates and Future Interests), shall apply.



Sec. 212.22  Leases for subsurface storage of oil or gas.

    The provisions of Sec. 211.22 of this subchapter are applicable to 
leases under this part.



Sec. 212.23  Corporate qualifications and requests for information.

    The provisions of Sec. 211.23 of this subchapter are applicable to 
leases under this part.



Sec. 212.24  Bonds.

    The provisions of Sec. 211.24 of this subchapter are applicable to 
leases under this part.



Sec. 212.25  Acreage limitation.

    The provisions of Sec. 211.25 of this subchapter are applicable to 
leases under this part.



Sec. 212.26  [Reserved]



Sec. 212.27  Duration of leases.

    The provisions of Sec. 211.27 of this subchapter are applicable to 
leases under this part.



Sec. 212.28  Unitization and communitization agreements, and well 
spacing.

    (a) For the purpose of promoting conservation and efficient 
utilization of minerals, the Secretary may approve a cooperative unit, 
drilling or other development plan on any leased area upon a 
determination that approval is advisable and in the best interest of the 
Indian mineral owner. For the purposes of this section, a cooperative 
unit, drilling or other development plan means an agreement for the 
development or operation of a specifically designated area as a single 
unit without regard to separate ownership of the land included in the 
agreement. Such cooperative agreements include, but are not limited to, 
unit agreements, communitization agreements and other types of 
agreements that allocate costs and benefits.
    (b) The consent of the Indian mineral owner to such unit or 
cooperative agreement shall not be required unless such consent is 
specifically required in the lease.
    (c) Requests for approval of cooperative agreements which comply 
with the requirements of all applicable rules and regulations shall be 
filed with the superintendent or area director.
    (d) All Indian mineral owners of any right, title or interest in the 
mineral resources to be included in a cooperative agreement must be 
notified by the lessee at the time the agreement is submitted to the 
superintendent or area director. An affidavit from the lessee stating 
that a notice was mailed to each mineral owner of record for whom the 
superintendent or area director has an address will satisfy this notice 
requirement.
    (e) A request for approval of a proposed cooperative agreement, and 
all documents incident to such agreement, must be filed with the 
superintendent or area director at least ninety (90) days prior to the 
first expiration date of any of the Indian leases in the area

[[Page 662]]

proposed to be covered by the cooperative agreement.
    (f) Unless otherwise provided in the cooperative agreement, approval 
of the agreement commits each lease to the unit in the area covered by 
the agreement on the date approved by the Secretary or the date of first 
production, whichever is earlier, as long as the agreement is approved 
before the lease expiration date.
    (g) Any lease committed in part to any such cooperative agreement 
shall be segregated into a separate lease or leases as to the lands 
committed and lands not committed to the agreement. Segregation shall be 
effective on the date the agreement is effective.
    (h) Wells shall be drilled in conformity with a well spacing program 
approved by the authorized officer.



Sec. 212.29  [Reserved]



Sec. 212.30  Removal of restrictions.

    (a) Notwithstanding the provisions of any mineral lease to the 
contrary, the removal of all restrictions against alienation shall 
operate to divest the Secretary of all supervisory authority and 
responsibility with respect to the lease. Thereafter, all payments 
required to be made under the lease shall be made directly to the 
owner(s).
    (b) In the event restrictions are removed from a part of the land 
included in any lease approved by the Secretary, the entire lease shall 
continue to be subject to the supervision of the Secretary until such 
times as the holder of the lease and the unrestricted Indian owner 
submits to the Secretary satisfactory evidence that adequate 
arrangements have been made to account for the mineral resources of the 
restricted land separately from those of the unrestricted. Thereafter, 
the unrestricted portion shall be relieved from the supervision of the 
Secretary, the lease, the regulations of this part, and all other 
applicable laws and regulations.



Sec. Sec. 212.31-212.32  [Reserved]



Sec. 212.33  Terms applying after relinquishment.

    All leases for individual Indian lands approved by the Secretary 
under this part shall contain provisions for the relinquishment of 
supervision and provide for operations of the lease after such 
relinquishment. These leases shall contain provisions that address the 
following issues:
    (a) Provisions of relinquishment. If the Secretary relinquishes 
supervision at any time during the life of the lease instrument as to 
all or part of the acreage subject to the lease, the Secretary shall 
give the Indian mineral owner and the lessee thirty (30) days written 
notice prior to the termination of supervision. After notice of 
relinquishment has been given to the lessee, the lease shall be subject 
to the following conditions:
    (1) All rentals and royalties thereafter accruing shall be paid 
directly to the lessor or the lessor's successors in title, or to a 
trustee appointed under the provisions of paragraph (b) of this section.
    (2) If, at the time supervision is relinquished by the Secretary, 
the lessee has made all payments then due and has fully performed all 
obligations on the lessee's part to be performed up to the time of such 
relinquishment, the bond given to secure the performance of the lease, 
on file in the appropriate agency or area office, shall be of no further 
force or effect.
    (3) Should relinquishment affect only part of the lease, then the 
lessee may continue to conduct operations on the land covered by the 
lease as an entirety; Provided, that the lessee shall pay, in the manner 
prescribed by the lease and regulations for the benefit of lessor, the 
same proportion of all rentals and royalties due under the provisions of 
this part as the acreage retained under the supervision of the Secretary 
bears to the entire acreage of the lessee, and shall pay the remainder 
of the rentals and royalties directly to the remaining lessors or 
successors in title or said trustee as the case may be, as provided in 
paragraph (a) (1) of this section.
    (b) Division of fee. If, after the execution of the lease and after 
the Secretary relinquishes supervision thereof, the fee of the leased 
land is divided into separate parcels held by different

[[Page 663]]

owners, or if the rental or royalty interest is divided in ownership, 
the obligations of the lessee shall not be modified in any manner except 
as specifically provided by the provisions of the lease. Notwithstanding 
such separate ownership, the lessee may continue to conduct operations 
on said premises as an entirety. Each separate owner shall receive such 
proportion of all rental and royalties accruing after the vesting of its 
title as the acreage of the fee, or rental or royalty interest, bears to 
the entire acreage covered by the lease; or to the entire rental or 
royalty interest as the case may be. If at any time after departmental 
supervision of the lease is relinquished, in whole or in part, to 
rentals and royalties, whether said parties are so entitled by virtue of 
undivided interest or by virtue of ownership of separate parcels of the 
land covered, the lessee may elect to withhold the payment of further 
rentals or royalties (except as the portion due the Indian lessor while 
under restriction), until all of said parties shall agree upon and 
designate a trustee in writing and in a recordable instrument to receive 
all payments due thereunder on behalf of said parties and their 
respective successors in title. Payments to said trustee shall 
constitute lawful payments, and the sole risk of an improper or unlawful 
distribution of said funds by said trustee shall rest upon the parties 
naming said trustee and their said respective successors in title.



Sec. 212.34  Individual tribal assignments excluded.

    The reference in this part to Indian mineral owners does not include 
assignments of tribal lands made pursuant to tribal constitutions or 
ordinances for the use of individual Indians and assignees of such 
lands.



         Subpart C_Rents, Royalties, Cancellations, and Appeals



Sec. 212.40  Manner of payments.

    The provisions of Sec. 211.40 of this subchapter are applicable to 
leases under this part.



Sec. 212.41  Rentals and production royalty on oil and gas leases.

    (a) A lessee shall pay, in advance, beginning with the effective 
date of the lease, an annual rental of $2.00 per acre or fraction of an 
acre or such other greater amount as prescribed in the lease. This 
rental shall not be credited against production royalty nor shall the 
rental be prorated or refunded because of surrender or cancellation.
    (b) The Secretary shall not approve leases with a royalty rate less 
than 16-\2/3\ percent of the amount or value of production produced and 
sold from the lease unless a lower royalty rate is agreed to by the 
Indian mineral owner and is found to be in the best interest of the 
Indian mineral owner. Such approval may only be granted by the area 
director if the approving official is the superintendent and the 
Assistant Secretary for Indian Affairs if the approving official is the 
area director.
    (c) Value of lease production for royalty purposes shall be 
determined in accordance with applicable lease provisions and 
regulations in 30 CFR chapter II, subchapters A and C. If the valuation 
provisions in the lease are inconsistent with the regulations in 30 CFR 
chapter II, subchapters A and C, the lease provisions shall govern.



Sec. 212.42  Annual rentals and expenditures for development on leases 
other than oil and gas, and geothermal resources.

    The provisions of Sec. 211.42 of this subchapter are applicable to 
leases under this part.



Sec. 212.43  Royalty rates for minerals other than oil and gas.

    The provisions of Sec. 211.43 of this subchapter are applicable to 
leases under this part.



Sec. 212.44  Suspension of operations.

    The provisions of Sec. 211.44 of this subchapter are applicable to 
leases under this part.

[[Page 664]]



Sec. 212.45  [Reserved]



Sec. 212.46  Inspection of premises, books, and accounts.

    The provisions of Sec. 211.46 of this subchapter are applicable to 
leases under this part.



Sec. 212.47  Diligence, drainage and prevention of waste.

    The provisions of Sec. 211.47 of this subchapter are applicable to 
leases under this part.



Sec. 212.48  Permission to start operations.

    The provisions of Sec. 211.48 of this subchapter are applicable to 
leases under this part.



Sec. 212.49  Restrictions on operations.

    The provisions of Sec. 211.49 of this subchapter are applicable to 
leases under this part.



Sec. 212.50  [Reserved]



Sec. 212.51  Surrender of leases.

    The provisions of Sec. 211.51 of this subchapter are applicable to 
leases under this part.



Sec. 212.52  Fees.

    The provisions of Sec. 211.52 of this subchapter are applicable to 
leases under this part.



Sec. 212.53  Assignments, overriding royalties, and operating agreements.

    The provisions of Sec. 211.53 of this subchapter are applicable to 
leases under this part.



Sec. 212.54  Lease or permit cancellation; Bureau of Indian Affairs 
notice of noncompliance.

    The provisions of Sec. 211.54 of this subchapter are applicable to 
leases under this part.



Sec. 212.55  Penalties.

    The provisions of Sec. 211.55 of this subchapter are applicable to 
this part.



Sec. 212.56  Geological and geophysical permits.

    (a) Permits to conduct geological and geophysical operations on 
Indian lands which do not conflict with any mineral lease entered into 
pursuant to this part may be approved by the Secretary with the consent 
of the Indian owner under the following conditions:
    (1) The permit must describe the area to be explored, the duration 
and the consideration to be paid the Indian owner;
    (2) The permit may not grant the permittee any option or preference 
rights to a lease or other development contract, authorize the 
production of, or removal of oil and gas, or geothermal resources, or 
other minerals except samples for assay and experimental purposes, 
unless specifically so stated in the permit; and
    (3) Copies of all data collected pursuant to operations conducted 
under the permit shall be forwarded to the Secretary and made available 
to the Indian mineral owner, unless otherwise provided in the permit. 
Data collected under a permit shall be held by the Secretary as 
privileged and proprietary information for the time prescribed in the 
permit. Where no time period is prescribed in the permit, the Secretary 
may, in the discretion of the Secretary, release such information after 
six (6) years.
    (b) A permit may be granted by the Secretary without 100 percent 
consent of the individual mineral owners if:
    (1) The minerals are owned by more than one person, and the owners 
of a majority of the interest therein consent to the permit;
    (2) The whereabouts of one or more owners of the minerals or an 
interest therein is unknown, and all the remaining owners of the 
interests consent to the permit;
    (3) The heirs or devisee of a deceased owner of the land or an 
interest therein have not been determined, and the Secretary finds that 
the permit activity will cause no substantial injury to the land or any 
owner thereof; or
    (4) The owners of interests in the land are so numerous that the 
Secretary finds it would be impractical to obtain their consent, and 
also finds that the permit activity will cause no substantial injury to 
the land or any owner thereof.
    (c) A lessee does not need a permit to conduct geological and 
geophysical operations on Indian lands, if provided for

[[Page 665]]

in the lessee's mineral lease, where the Indian mineral owner is also 
the surface land owner. In instances where the Indian mineral owner is 
not the surface owner, the lessee must obtain any additional necessary 
permits or rights of ingress or egress from the surface occupant.



Sec. 212.57  Forms.

    The provisions of Sec. 211.57 of this subchapter are applicable to 
leases under this part.



Sec. 212.58  Appeals.

    The provisions of Sec. 211.58 of this subchapter are applicable to 
leases under this part.



PART 213_LEASING OF RESTRICTED LANDS OF MEMBERS OF FIVE CIVILIZED TRIBES, 
OKLAHOMA, FOR MINING--Table of Contents




Sec.
213.1 Definitions.

                          How To Acquire Leases

213.2 Applications for leases.
213.3 No Government employee shall acquire leases.
213.4 Sale of oil and gas leases.
213.5 Term of oil and gas leases.
213.6 Leases for minerals other than oil and gas.
213.7 Fees.
213.8 Filing of lease deemed constructive notice.
213.9 Noncontiguous tracts.
213.10 Lessor's signature.
213.11 Minor lessors.
213.12 Leases executed by guardians of minors.
213.13 Inherited lands.
213.14 Corporations and corporate information.
213.15 Bonds.
213.16 Additional information may be requested by Area Director.
213.17 Government reserves right to purchase minerals produced.

                           Rents and Royalties

213.18 Manner of payment of rents and royalties.
213.19 Crediting advance annual payments.
213.20 [Reserved]
213.21 Rate of rents on leases other than oil and gas.
213.22 Expenditures under lease other than oil and gas.
213.23 Royalty rates for minerals other than oil and gas.
213.24 Rate of rents and royalties on oil and gas leases.
213.25 Free use of gas by lessor.
213.26 Rate of royalty on casing-head gas.
213.27 Rate of rental for nonutilized gas wells.
213.28 Royalty payments and production reports.
213.29 Division orders.

                               Operations

213.30 Permission to start operations.
213.31 Restrictions on operations.
213.32 Wells.
213.33 Diligence and prevention of waste.
213.34 Inspection of premises; books and accounts.
213.35 Mines to be timbered properly.
213.36 Surrender of leased premises in good condition.
213.37 Penalties.
213.38 Assignments and overriding royalties.
213.39 Stipulations.
213.40 Cancellations.

                         Removal of Restrictions

213.41 Leases executed but not approved before restrictions removed from 
          land.
213.42 Operations after removal of restrictions from leased lands.
213.43 Relinquishment of Government supervision.
213.44 Division of royalty to separate fee owners.
213.45 Restrictions especially continued as to certain lands.
213.46 Field clerks.
213.47 Forms.
213.48 Effective date.
213.49 Scope of regulations.

    Authority: Sec. 2, 35 Stat. 312, sec. 18, 41 Stat. 426, sec. 1, 45 
Stat. 495, sec. 1, 47 Stat. 777; 25 U.S.C. 356. Interpret or apply secs. 
3, 11, 35 Stat. 313, 316, sec. 8, 47 Stat. 779, unless otherwise noted.

    Cross Reference: For oil and gas operating regulations of the 
Geological Survey, see 30 CFR part 221.

    Source: 22 FR 10599, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 213.1  Definitions.

    Area Director. The term ``Area Director'' in this part refers to the 
officer in charge of the Five Civilized Tribes Indian Agency.
    Supervisor. The term ``supervisor'' in this part refers to a 
representative of

[[Page 666]]

the Secretary of the Interior under direction of the Director of the 
U.S. Geological Survey, authorized and empowered to supervise and direct 
operations under oil and gas or other mining leases, to furnish 
scientific and technical information and advice, to ascertain and record 
the amount and value of production, and to determine and record rentals 
and royalties due and paid.

                          How To Acquire Leases



Sec. 213.2  Applications for leases.

    Applications for leases should be made to the Area Director.



Sec. 213.3  No Government employee shall acquire leases.

    No lease, assignment thereof, or interest therein will be approved 
to any employee or employees of the U.S. Government, whether connected 
with the Bureau of Indian Affairs or otherwise, and no employee of the 
Department of the Interior shall be permitted to acquire any interest in 
such leases covering restricted Indian lands by ownership of stock in 
corporations having leases or in any other manner.

(R.S. 2078; 25 U.S.C. 68)



Sec. 213.4  Sale of oil and gas leases.

    (a) At such times and in such manner as he may deem appropriate, the 
Area Director shall publish notices at least thirty days prior to the 
sale, unless a shorter period is authorized by the Commissioner of 
Indian Affairs, that oil and gas leases on specific tracts, each of 
which shall be in a reasonably compact body, will be offered to the 
highest responsible bidder for a bonus consideration, in addition to 
stipulated rentals and royalties. Each bid must be accompanied by a 
cashier's check, certified check, or postal money order, payable to the 
payee designated in the invitation to bid, in an amount not less than 25 
percent of the bonus bid. Within 30 days after notification of being the 
successful bidder, said bidder must remit the balance of the bonus, the 
first year's rental, and his share of the advertising costs, and shall 
file with the Area Director the lease in completed form. The Area 
Director may, for good and sufficient reasons, extend the time for the 
completion and submission of the lease form, but no extension shall be 
granted for remitting the balance of monies due. If the successful 
bidder fails to pay the full consideration within said period, or fails 
to file the completed lease within said period or extension thereof, or 
if the lease is disapproved through no fault of the lessor or the 
Department of the Interior, 25 percent of the bonus bid will be 
forfeited for the use and benefit of the Indian lessor.
    (b) In cases where any part of the bonus bid for a lease is paid 
directly to the Indian lessor, upon his signing the lease, the lessee 
must procure and file with the lease an affidavit of the lessor, sworn 
to before a U.S. Commissioner, Postmaster, Area Director, local 
representative of the Area Director, county or district judge, Federal 
judge or clerk of a Federal court, showing the amount of bonus so paid, 
and the balance thereof must be paid into the office of the Area 
Director upon filing the lease. Where possible lessees are requested to 
take the lessor to the nearest United States field clerk who will render 
all proper assistance in the execution of leases, and before whom the 
bonus affidavit may be executed in cases where any part of bonus 
consideration is paid directly to the lessor. Where leases are executed 
by guardians, under order of court, the affidavit of lessor may be 
executed before a notary public.
    (c) All notices or advertisements of sales of oil and gas leases 
shall reserve to the Secretary of the Interior the right to reject all 
bids when in his judgment the interests of the Indians will be best 
served by so doing, and that if no satisfactory bid is received, or if 
the accepted bidder fails to complete the lease or if the Secretary of 
the Interior shall determine that it is unwise in the interests of the 
Indians to accept the highest bid, the Secretary may readvertise such 
lease for sale, or if deemed advisable, with the consent of the Indian 
owners, a lease may be made by private negotiations. The successful 
bidder or bidders will be required to pay his or their share of the 
advertising costs. Amounts received from unsuccessful bidders will be 
returned; but when no bid is accepted on

[[Page 667]]

a tract, the costs of advertising will be assessed against the applicant 
who requested that said tract be advertised.

(Secs. 16, 17, 48 Stat. 987, 988, sec. 9, 49 Stat. 1968, sec. 4, 52 
Stat. 348; 25 U.S.C. 396d, 476, 477, 509)



Sec. 213.5  Term of oil and gas leases.

    Oil and gas mining leases which require the approval of the 
Secretary of the Interior may be made for periods of 10 years from the 
date of approval of lease by the Secretary of the Interior and as much 
longer thereafter as oil and/or gas is produced in paying quantities.



Sec. 213.6  Leases for minerals other than oil and gas.

    Uncontested mining leases for minerals other than oil and gas shall 
be made on forms \1\ prescribed by the Department, for a period of 15 
years with the right of renewal on such terms as the superintendent may 
prescribe, and shall be subject only to approval by the Area Director. 
See provisions of the act of February 14, 1920 (41 Stat. 408). Any 
persons aggrieved by any decision or order of the Area Director 
approving, rejecting, or disapproving any such lease may appeal from the 
same to the Secretary of the Interior within 30 days from the date of 
such decision or order.
---------------------------------------------------------------------------

    \1\ For further information regarding forms, see Sec. 211.30.
---------------------------------------------------------------------------



Sec. 213.7  Fees.

    The provisions of Sec. 211.25 of this chapter, or as hereafter 
amended, are applicable to this part.

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 213.8  Filing of lease deemed constructive notice.

    The filing of any lease in the office of the Area Director shall be 
deemed constructive notice of the existence of such lease. See act of 
March 1, 1907.

(34 Stat. 1026)



Sec. 213.9  Noncontiguous tracts.

    No lease will be approved covering two or more noncontiguous tracts 
of land, but in such case a lease must be executed on each separate 
tract.



Sec. 213.10  Lessor's signature.

    Any Indian who cannot write his name will be required to sign all 
official papers by making a distinct thumbprint which shall be 
designated as ``right'' or ``left'' thumbmark. Such signatures must be 
witnessed by two persons, one of whom must be a U.S. Government employee 
(such as field clerk, postmaster, U.S. Commissioner, etc.).



Sec. 213.11  Minor lessors.

    Where the lessor is a minor, certified copies of letters of 
guardianship and court orders approving leases must be filed.



Sec. 213.12  Leases executed by guardians of minors.

    Leases executed by guardians of minors under order of court for a 
period extending beyond the minority of the minor will be approved 
unless it appears that such action would be prejudicial to the interests 
of the minor: Provided, That in the event the minor becomes of age 
within 1 year from the date of execution of lease the consent of the 
minor to the execution of the lease should be obtained and submitted 
with the lease for consideration.



Sec. 213.13  Inherited lands.

    Except to prevent loss or waste, leases on undivided inherited lands 
will not be approved until the heirship determination has been approved. 
If the heirs to undivided inherited lands are undetermined or cannot be 
located, or if the heirs owning less than one-half interest in the lands 
refuse to sign a lease and it appears necessary to lease the lands to 
prevent loss or waste, the Area Director will report the facts to the 
Commissioner of Indian Affairs and ask for instructions. Minor heirs can 
lease or joint adult heirs in leasing only through guardians under order 
of court. Proof of heirship shall be given upon Form F prescribed. If 
probate or other court proceedings have established the heirship in any 
case, or the land has been partitioned, certified copy of final order, 
judgment, or decree of the court will be accepted in lieu of Form F.

[[Page 668]]



Sec. 213.14  Corporations and corporate information.

    If the applicant for a lease is a corporation, it shall file 
evidence of authority of its officers to execute papers; and with its 
first application it shall also file a certified copy of its articles of 
incorporation, and, if foreign to the State in which the lands are 
located, evidence showing compliance with the corporation laws thereof. 
Statements of changes in officers and stockholders shall be furnished by 
a corporation lessee to the Area Director January 1 of each year, and at 
such other times as may be requested.
    Whenever deemed advisable in any case the Area Director may require 
a corporation applicant or lessee to file:
    (a) List of officers, principal stockholders, and directors, with 
post office addresses and numbers of shares held by each.
    (b) A sworn statement of the proper officer showing:
    (1) The total number of shares of the capital stock actually issued 
and the amount of cash paid into the treasury on each share sold; or, if 
paid in property, the kind of quantity and value of the same paid per 
share.
    (2) Of the stock sold, how much remains unpaid and subject to 
assessment.
    (3) The amount of cash the company has in its treasury and 
elsewhere.
    (4) The property, exclusive of cash, owned by the company and its 
value.
    (5) The total indebtedness of the company and the nature of its 
obligations.
    (6) Whether the applicant or any person controlling, controlled by 
or under common control with the applicant has filed any registration 
statement, application for registration, prospectus or offering sheet 
with the Securities and Exchange Commission pursuant to the Securities 
Act of 1933 or the Securities Exchange Act of 1934 or said Commission's 
rules and regulations under said acts; if so, under what provision of 
said acts or rules and regulations; and what disposition of any such 
statement, application, prospectus or offering sheet has been made.
    (c) Affidavits of individual stockholders, setting forth in what 
corporations, or with what persons, firms, or associations such 
individual stockholders are interested in mining leases on restricted 
lands within the State, and whether they hold such interest for 
themselves or in trust.

    Cross Reference: For regulations of the Securities and Exchange 
Commission, see 17 CFR chapter II.



Sec. 213.15  Bonds.

    (a) Lessee shall furnish with each mining lease a bond (Form 5-
154b), and an assignee of a lease shall furnish with each assignment a 
bond (Form 5-154m), with an acceptable company authorized to act as sole 
surety, or with two or more personal sureties and a deposit as 
collateral security of any public-debt obligations of the United States 
guaranteed as to principal and interest by the United States, equal to 
the full amount of such bonds, or other collateral satisfactory to the 
Secretary of the Interior, or show ownership of unencumbered real estate 
of the value equal to twice the amount of the bonds. Lessee may file a 
bond on Form 5-154a without sureties and a deposit as collateral 
security of Government bonds equal in value to the full amount of the 
bond. Lease bonds, except as provided in paragraph (c) of this section, 
shall not be less than the following amounts:

For less than 80 acres............................................$l,000
For 80 acres and less than 120 acres...............................1,500
For 120 acres and not more than 160 acres..........................2,000
For each additional 40 acres, or part thereof, above 160 acres.......500

    Provided, That for leases for minerals other than oil and gas the 
Secretary of the Interior or his authorized representative with the 
consent of the Indian landowner may authorize a bond for a lesser amount 
if, in his opinion, the circumstances warrant and the interests of the 
Indian landowners are fully protected: Provided further, That a lessee 
may file a bond (Form 5-154f), in the sum of $15,000 for all leases of 
minerals up to 10,240 acres under the jurisdiction of the officer in 
charge of the Five Civilized Tribe Agency.
    (b) In lieu of the bonds required under paragraph (a) of this 
section, a lessee may furnish a bond (Form 5-156) in the sum of $75,000 
for full nationwide coverage with an acceptable company

[[Page 669]]

authorized to act as sole surety to cover all oil and gas leases and oil 
and gas prospecting permits without geographic or acreage limitation to 
which the lessee or permittee is or may become a party.
    (c) The right is specifically reserved to increase the amount of 
bonds and the collateral security prescribed in paragraph (a) of this 
section in any particular case when the officer in charge deems it 
proper to do so. The nationwide bond may be increased at any time in the 
discretion of the Secretary of the Interior.

[22 FR 10599, Dec. 24, 1957, as amended at 26 FR 164, Jan. 10, 1961. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 213.16  Additional information may be requested by Area Director.

    The Area Director, or other Government officer having the matter in 
charge or under investigation, may, at any time, either before or after 
approval of a lease, call for any additional information desired to 
carry out the purpose of the regulations in this part, and such 
information shall be furnished within the time specified in the request 
therefor. If the lessee fails to furnish the information requested, the 
lease will be subject to disapproval or cancellation, whichever is 
appropriate.



Sec. 213.17  Government reserves right to purchase minerals produced.

    In time of war or other public emergency any of the executive 
departments of the U.S. Government shall have the option to purchase at 
the prevailing market price on the date of sale all or any part of the 
minerals produced under any lease.

                           Rents and Royalties



Sec. 213.18  Manner of payment of rents and royalties.

    (a) Except as provided in paragraph (b) of this section, all rents, 
royalties and other payments due under leases which have been or may be 
approved in accordance with this part shall be paid by check or bank 
draft to the order of the Treasurer of the United States and mailed to 
the Area Director for deposit to the credit of the various lessors. When 
lessees and purchasers are instructed, in writing, by the Area Director, 
which instructions shall be complete as to lessors for each lease, 
separate remittances for each payment due each lessor shall be mailed to 
the Area Director. Any payments under this paragraph, covering lands or 
interests therein from which restrictions have been removed by death or 
otherwise, may continue to be made in the manner provided by this 
paragraph until ten days after notice of relinquishment of supervision 
has been mailed to the lessee.
    (b) The Area Director may, in his discretion, whenever it appears to 
be in the best interest of any lessor, authorize and direct the lessee 
to pay directly to the lessor, or to the legal guardian of any lessor 
under guardianship, the rents, royalties and other payments (other than 
bonuses and advance payments for the first year) due under leases which 
have been or may be approved in accordance with the regulations in this 
part. Any such authority for direct payment shall be in writing, 
addressed to the owner or owners of the lease, and shall expressly 
provide for its revocation or modification at any time, in writing, by 
the Area Director. Written authorization for direct payment and written 
revocations or modifications thereof shall become a part of the lease 
and shall be distributed as in the case of original leases. All such 
revocations or modifications shall have a 5-day grace period after date 
of receipt. Rents, royalties, and other payments paid in accordance 
therewith shall constitute full compliance with the requirements of the 
lease pertaining to such payments.
    (c) Rents and royalties paid pursuant to paragraphs (a) and (b) of 
this section on producing leases shall be supported by statements, 
acceptable to the Secretary or his duly authorized representative, to be 
transmitted to the Supervisor, in duplicate, covering each lease, 
identified by contract number and lease number. Such statements shall 
show the specific items of rents or royalties for which remittances are 
made, and shall identify each remittance by the remittance number, date, 
amount, and name of each payee.
    (d) Rents paid on nonproducing leases pursuant to paragraphs (a) and 
(b) of

[[Page 670]]

this section shall be supported by a statement, acceptable to the Area 
Director, to be transmitted to the Area Director covering each lease, 
identified by contract number and lease number. Each remittance shall be 
identified by the remittance number, date, amount, name of each payee, 
and dates of mailing of remittances. Date of mailing, or, if remittance 
is sent by registered mail, the date of registration receipts covering 
remittances mailed, shall be considered as date of payment.
    (e) For leases other than oil and gas, all advance rentals and 
royalties for the first year shall be paid to the Area Director at the 
time of filing the lease, and the advance royalty and 20 percent of the 
first year's rental so paid shall be and become the property of the 
lessor, if the lease be disapproved because of the lessee's failure to 
meet the requirements of the law or of the regulations in this part or 
because of any other fault or defect chargeable to the lessee.



Sec. 213.19  Crediting advance annual payments.

    In the event of discovery of minerals, all advance rents and advance 
royalties shall be allowed as credit on stipulated royalties for the 
year for which such advance payments have been made. No refund of such 
advance payments made under any lease will be allowed in the event the 
royalty on production is not sufficient to equal such advance payment; 
nor will any part of the moneys so paid be refunded to the lessee 
because of any subsequent surrender or cancellation of the lease.



Sec. 213.20  [Reserved]



Sec. 213.21  Rate of rents on leases other than oil and gas.

    On all mineral leases of allotted lands other than oil and gas 
leases, rental shall be paid annually in advance from the date of 
approval of the lease, as follows: Fifty cents per acre for the first 
year, 75 cents per acre for the second year, and $1 per acre for the 
third and each succeeding year of the term of the lease.



Sec. 213.22  Expenditures under lease other than oil and gas.

    (a) On all leases for deposits of minerals other than oil and gas, 
there shall be expended for each calendar year the lease is in force, 
and for each fraction of a calendar year greater than 6 months, in 
actual mining operations, development, or improvements upon the lands 
leased, or for the benefit thereof, a sum which, with the annual rental, 
shall amount to not less than $5 per acre.
    (b) The expenditures for development required by this section upon 
application may be waived in writing by the Area Director or other 
officer in charge of the Five Civilized Tribes Agency either before or 
after the approval of a lease, such waiver to be subject to termination 
at any time upon 10 days' written notice to the holder of the lease by 
the said Area Director or other officer in charge.
    (c) Each lessee, except oil and gas lessees, shall file with the 
Area Director an itemized statement in duplicate, within 20 days after 
the close of each calendar year, of the amount and character of said 
expenditures during such years the statement to be certified under oath 
by the lessee or his agent having personal knowledge of the facts 
contained therein.



Sec. 213.23  Royalty rates for minerals other than oil and gas.

    Unless otherwise authorized by the Commissioner of Indian Affairs, 
the minimum rates for minerals other than oil and gas shall be as 
follows:
    (a) For substances other than gold, silver, copper, lead, zinc, 
tungsten, coal, asphaltum and allied substances, oil, and gas, the 
lessee shall pay quarterly or as otherwise provided in the lease, a 
royalty of not less than 10 percent of the value, at the nearest 
shipping point, of all ores, metals, or minerals marketed.
    (b) For gold and silver the lessee shall pay quarterly or as 
otherwise provided in the lease, a royalty of not less than 10 percent 
to be computed on the value of bullion as shown by mint returns after 
deducting forwarding charges to the point of sale; and for copper, lead, 
zinc, and tungsten, a royalty of not less than 10 percent to be

[[Page 671]]

computed on the value of ores and concentrates as shown by reduction 
returns after deducting freight charges to the point of sale. Duplicate 
returns shall be filed by the lessee with the Area Director within 10 
days after the ending of the quarter or other period specified in the 
lease within which such returns are made: Provided, however, That the 
lessee shall pay a royalty of not less than 10 percent of the value of 
the ore or concentrates sold at the mine unless otherwise provided in 
the lease.
    (c) For coal the lessee shall pay quarterly or as otherwise provided 
in the lease, a royalty of not less than 10 cents per ton of 2,000 
pounds of mine run, or coal as taken from the mine, including what is 
commonly called ``slack.''
    (d) For asphaltum and allied substances the lessee shall pay 
quarterly or as otherwise provided in the lease, a royalty of not less 
than 10 cents per ton of 2,000 pounds on crude material or not less than 
60 cents per ton on refined substances.



Sec. 213.24  Rate of rents and royalties on oil and gas leases.

    The lessee shall pay, beginning with the date of approval of oil and 
gas leases by the Secretary of the Interior, a rental of $1.25 per acre 
per annum in advance during the continuance thereof, together with a 
royalty of 12\1/2\ percent of the value or amount of all oil, gas and/or 
natural gasoline, and/or all other hydrocarbon substances produced and 
saved from the land leased, save and except oil and/or gas used by the 
lessee for development and operation purposes on the lease, which oil or 
gas shall be royalty free. A higher rate of royalty may be fixed by the 
Secretary of the Interior or his authorized representative, prior to the 
advertisement of land for oil and gas leases. During the period of 
supervision, ``value'' for the purposes of the lease may, in the 
discretion of the Secretary of the Interior be calculated on the basis 
of the highest price paid or offered (whether calculated on the basis of 
short or actual volume) at the time of production for the major portion 
of the oil of the same gravity, and gas, and/or natural gasoline, and/or 
all other hydrocarbon substances produced and sold from the field where 
the leased lands are situated, and the actual volume of the marketable 
product less the content of foreign substances as determined by the 
supervisor. The actual amount realized by the lessee from the sale of 
said products may, in the discretion of the Secretary of the Interior, 
be deemed mere evidence of or conclusive evidence of such value. When 
paid in value, such royalties shall be due and payable monthly at such 
time as the lease provides; when royalty on oil produced is paid in 
kind, such royalty oil shall be delivered in tanks provided by the 
lessee on the premises where produced without cost to the lessor unless 
otherwise agreed to by the parties thereto, at such time as may be 
required by the lessor. The lessee shall not be required to hold such 
royalty oil in storage longer than 30 days after the end of the calendar 
month in which said oil is produced. The lessee shall be in no manner 
responsible or held liable for loss or destruction of such oil in 
storage by causes beyond his control.



Sec. 213.25  Free use of gas by lessor.

    If the leased premises produce gas in excess of the lessee's 
requirements for the development and operation of said premises, then 
the lessor may use sufficient gas, free of charge, for all stoves and 
inside lights in the principal dwelling house on said premises, by 
making his own connections to a regulator, connected to the well and 
maintained by the lessee, and the lessee shall not be required to pay 
royalty on gas so used. The use of such gas shall be at the lessor's 
risk at all times.



Sec. 213.26  Rate of royalty on casing-head gas.

    (a) On casing-head gas used or sold for the manufacture of casing-
head gasoline the minimum rate of royalty shall be 12\1/2\ percent of 
the value of the casing-head gas, which value shall be determined and 
computed on the basis and in the manner provided in the applicable 
operating regulations of the Department.
    (b) In cases where gas produced and sold has a value for drip 
gasoline, casing-head gasoline content, and as dry

[[Page 672]]

gas from which the casing-head gasoline has been extracted, then the 
royalties above provided shall be paid on all such values.



Sec. 213.27  Rate of rental for nonutilized gas wells.

    If the gas from a gas producing well is not marketed or utilized, 
other than for operation of the lease, then for each such well the 
lessee shall pay such rental as may be determined by the supervisor and 
approved by the Secretary of the Interior, calculated from the date of 
the completion of the well. Payment of annual gas rentals shall be made 
within 30 days from the date such payment becomes due.



Sec. 213.28  Royalty payments and production reports.

    (a) Royalty payments on all oil and gas or other producing leases 
shall be made at the rates, and at such time, and in the manner 
prescribed by the terms of the lease.
    (b) Quarterly reports shall be made by each lessee on nonproducing 
leases other than oil and gas within 25 days after December 31, March 
31, June 30, and September 30, of each year, upon forms provided, 
showing manner of operations and total production during such quarter. A 
lessee may include within one sworn statement all leases upon which 
there is no production or upon which dry holes have been drilled. 
Reports of oil and gas leases where royalty accounting is done in the 
field office of the supervisor will be made as required in the operating 
regulations.



Sec. 213.29  Division orders.

    (a) Lessees may make arrangements with the purchasers of oil and gas 
for the payment of the royalties as provided for in the lease and the 
regulations but such arrangement, if made, shall not operate to relieve 
a lessee from responsibility should the purchaser fail or refuse to pay 
royalties when due. Where lessees avail themselves of this privilege, 
division orders should be executed by the lessee and forwarded to the 
supervisor for approval. Purchasers may be authorized by the supervisor 
to reimburse lessees out of royalties for advance rents and advance 
royalties. Copies of written instructions, notices, modifications, 
revocations, and authorizations, as provided for in Sec. 213.18 (a) and 
(b), shall be furnished to purchasers. The right is reserved for the 
supervisor to cancel a division order at any time or require the 
purchaser to discontinue to run the oil of any lessee who fails to 
operate the lease properly or otherwise violates the provisions of the 
lease, of the regulations in this part, or of the operating regulations.
    (b) When oil is taken by authority of a division order, the lessee 
or his representatives shall be actually present when the oil is gauged 
and records are made of the temperature, gravity, and impurities. The 
lessee will be held responsible for the correctness and the correct 
recording and reporting of all the foregoing measurements, which, except 
lowest gauge, shall be made at the time the oil is turned into the 
pipeline. Failure of the lessee to perform properly these duties will 
subject the division order to revocation.

                               Operations



Sec. 213.30  Permission to start operations.

    No operations will be permitted on any lease before it is approved. 
Written permission must be secured from the supervisor before any 
operations are started under any oil and gas lease. Operations must be 
in accordance with the operating regulations promulgated by the 
Secretary of the Interior. Copies of these regulations may be secured 
from either the supervisor or the Area Director and no operations should 
be attempted without a study of the operating regulations.



Sec. 213.31  Restrictions on operations.

    (a) Oil and gas leases issued under the provisions of this part 
shall be subject to imposition by the Secretary of the Interior of such 
restrictions as to time or times for the drilling of wells and as to the 
production from any well or wells as in his judgment may be necessary or 
proper for the protection of the natural resources of the leased land 
and in the interest of the lessor. In the exercise of his judgment the 
Secretary of the Interior may take into consideration, among other 
things, the Federal

[[Page 673]]

laws, State laws, regulations by competent Federal or State authorities, 
lawful agreements among operators regulating either drilling or 
production, or both.
    (b) All such leases shall be subject to any cooperative or unit plan 
of development affecting the leased lands that may be required by the 
Secretary of the Interior, but no lease shall be included in any 
cooperative or unit plan without prior approval of the Secretary of the 
Interior. If said plan effects a change in the lease terms, the consent 
of the lessor or lessors must be obtained before the plan is effective.



Sec. 213.32  Wells.

    The lessee shall agree (a) to drill and produce all wells necessary 
to offset or protect the leased land from drainage by wells on adjoining 
lands not the property of the lessor, or in lieu thereof, compensate the 
lessor in full each month for the estimated loss of royalty through 
drainage: Provided, That during the period of supervision by the 
Secretary of the Interior, the necessity for offset wells shall be 
determined by the supervisor and payment in lieu of drilling and 
producing shall be with the consent of, and in an amount determined by 
the Secretary of the Interior; (b) at the election of the lessee to 
drill and produce other wells: Provided, That the right to drill and 
produce such other wells shall be subject to any system of well spacing 
or production allotments authorized and approved under applicable law or 
regulations, approved by the Secretary of the Interior and affecting the 
field or area in which the leased lands are situated; and (c) if the 
lessee elects not to drill and produce such other wells for any period 
the Secretary of the Interior may, within 10 days after due notice in 
writing, either require the drilling and production of such wells to the 
number necessary, in his opinion, to insure reasonable diligence in the 
development and operation of the property, or may in lieu of such 
additional diligent drilling and production require the payment on and 
after the first anniversary date of the lease of not to exceed $1 per 
acre per annum, which sum shalI be in addition to any rental or royalty 
herein specified.



Sec. 213.33  Diligence and prevention of waste.

    The lessee shall exercise diligence in drilling and operating wells 
for oil and gas on the leased lands while such products can be secured 
in paying quantities; carry on all operations in a good and workmanlike 
manner in accordance with approved methods and practice, having due 
regard for the prevention of waste of oil or gas developed on the land, 
or the entrance of water through wells drilled by the lessee to the 
productive sands or oil or gas-bearing strata to the destruction or 
injury of the oil or gas deposits, the preservation and conservation of 
the property for future productive operations, and to the health and 
safety of workmen and employees; plug securely all wells before 
abandoning the same and to shut off effectually all water from the oil 
or gas-bearing strata; not drill any well within 200 feet of any house 
or barn on the premises without the lessor's written consent approved by 
the Area Director; carry out at his expense all reasonable orders and 
requirements of the supervisor relative to prevention of waste, and 
preservation of the property and the health and safety of workmen; bury 
all pipelines crossing tillable lands below plow depth unless other 
arrangements therefor are made with the Area Director; pay the lessor 
all damages to crops, buildings, and other improvements of the lessor 
occasioned by the lessee's operations: Provided, That the lessee shall 
not be held responsible for delays or casualties occasioned by causes 
beyond his control.



Sec. 213.34  Inspection of premises; books and accounts.

    Lessees shall agree to allow the lessors and their agents or any 
authorized representative of the Interior Department to enter, from time 
to time, upon and into all parts of the leased premises for the purpose 
of inspection, and shall further agree to keep a full and correct 
account of all operations and make reports thereof, as required by the 
applicable regulations of the Department; and their books and records, 
showing manner of operations and persons interested, shall be open at 
all times for examination by such officers

[[Page 674]]

of the Department as shall be instructed in writing by the Secretary of 
the Interior or authorized by regulations to make such examination.



Sec. 213.35  Mines to be timbered properly.

    In mining operations the lessee shall keep the mine well and 
sufficiently timbered at all points where necessary, in accordance with 
good mining practice, and in such manner as may be necessary to the 
proper preservation of the property leased and safety of workmen.



Sec. 213.36  Surrender of leased premises in good condition.

    On expiration of the term of a lease, or when a lease is 
surrendered, the lessee shall deliver to the Government the leased 
ground, with the mine workings in case of leases other than oil and gas, 
in good order and condition, and the bondsmen will be held for such 
delivery in good order and condition, unless relieved by the Secretary 
of the Interior for cause. It shall, however, be stipulated that the 
machinery necessary to operate any mine is the property of the lessee, 
but that it may be removed by him only after the condition of the 
property has been ascertained by inspection by the Secretary of the 
Interior or his authorized agents, to be in satisfactory condition.



Sec. 213.37  Penalties.

    Failure of the lessee to comply with any provisions of the lease, of 
the operating regulations, of the regulations in this part, orders of 
the Area Director or his representative, or of the orders of the 
supervisor or his representative, shall subject the lease to 
cancellation by the Secretary of the Interior or the lessee to a penalty 
of not more than $500 per day for each day the terms of the lease, the 
regulations, or such orders are violated, or to both such penalty and 
cancellation: Provided, That the lessee shall be entitled to notice and 
hearing, within 30 days after such notice, with respect to the terms of 
the lease, regulations, or orders violated, which hearing shall be held 
by the supervisor, whose findings shall be conclusive unless an appeal 
be taken to the Secretary of the Interior within 30 days after notice of 
the supervisor's decision, and the decision of the Secretary of the 
Interior upon appeal shall be conclusive.



Sec. 213.38  Assignments and overriding royalties.

    (a) Leases or any interest therein, may be assigned or transferred 
only with the approval of the Secretary of the Interior, and to procure 
such approval the assignee must be qualified to hold such lease under 
existing rules and regulations, and shall furnish a satisfactory bond 
for the faithful performance of the covenants and conditions thereof. No 
lease or any interest therein, or the use of such lease, shall be 
assigned, sublet, or transferred, directly or indirectly, by working or 
drilling contract, or otherwise, without the consent of the Secretary of 
the Interior. Assignments of leases shall be filed with the Area 
Director within 20 days after the date of execution.
    (b) An agreement creating overriding royalties or payments out of 
production on oil and gas leases under this part shall be subject to the 
provisions of Sec. 211.26(d) of this subchapter, or as hereafter 
amended.

[22 FR 10599, Dec. 24, 1957, as amended at 23 FR 9758, Dec. 18, 1958. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 213.39  Stipulations.

    The lessee under any lease heretofore approved may by stipulation 
(Form 5-154i) with the consent of the lessor and the approval of the 
Secretary of the Interior, make such approved lease subject to all the 
terms, conditions, and provisions contained in the lease form and 
regulations currently in use. Stipulations shall be filed with the Area 
Director within 20 days after the date of execution.



Sec. 213.40  Cancellations.

    (a) When, in the opinion of the Secretary of the Interior, the 
lessee has violated any of the terms and conditions of a lease or of the 
applicable regulations, or if mining operations are conducted wastefully 
and without regard to good mining practice, the Secretary of the 
Interior shall have the right at any time after 30 days' notice to the 
lessee specifying the terms and

[[Page 675]]

conditions violated, and after a hearing, if the lessee shall so request 
within 30 days after issuance of the notice, to declare such lease null 
and void, and the lessor shall then be entitled and authorized to take 
immediate possession of the land.
    (b) On the following conditions, the lessee may, on approval of the 
Secretary of the Interior, surrender a lease or any part of it:
    (1) That he make application for cancellation to the Area Director 
having jurisdiction over the land.
    (2) That he pay a surrender fee of $1 at the time the application is 
made.
    (3) That he pay all royalties and rentals due to the date of such 
application.
    (4) That he make a satisfactory showing that full provision has been 
made for conservation and protection of the property and that all wells, 
drilled on the portion of the lease surrendered, have been properly 
abandoned.
    (5) If the lease has been recorded, that he file, with his 
application, a recorded release of the acreage covered by the 
application.
    (6) If the application is for the cancellation of the entire lease 
or the entire undivided portion, that he surrender the lease: Provided, 
That where the application is made by an assignee to whom no copy of the 
lease was delivered, he will be required to surrender only his copy of 
assignment.
    (7) If the lease (or portion being surrendered or canceled) is owned 
in undivided interests by more than one party, then all parties shall 
join in the application for cancellation.
    (8) That all required fees and papers must be in the mail or 
received on or before the date upon which rents and royalties become 
due, in order for the lessee and his surety to be relieved from 
liability for the payment of such royalties and rentals.
    (9) If there has been a contest respecting a lease or leases, the 
approved, the disapproved, or the canceled parts thereof will be held in 
the office of the Area Director for 5 days after the Department's 
decision has been promulgated, by mail or delivery, and will not be 
delivered, if within that period a motion for review and reconsideration 
be filed, until such motion is passed upon by the Department.
    (10) In the event oil or gas is being drained from the leased 
premises by wells not covered by a lease; the lease, or any part of it, 
may be surrendered, only on such terms and conditions as the Secretary 
of the Interior may determine to be reasonable and equitable.
    (c) No part of any advance rental shall be refunded to the lessee 
nor shall he be relieved, by reason of any subsequent surrender or 
cancellation of the lease, from the obligation to pay said advance 
rental when it becomes due.
    (d) For proper method of terminating departmental leases covering 
lands from which restrictions have been removed see section 3 of the act 
of May 27, 1908 (35 Stat. 312).

                         Removal of Restrictions



Sec. 213.41  Leases executed but not approved before restrictions 
removed from land.

    Leases executed before the removal of restrictions against 
alienation on land from all of which restrictions against alienation 
shall be removed after such execution, if such leases contain specific 
provisions for approval by the Secretary of the Interior, whether now 
filed with the Department or presented for consideration hereafter, will 
be considered and acted upon by this Department as heretofore but only 
for the purpose of approving or disapproving the instrument.



Sec. 213.42  Operations after removal of restrictions from leased lands.

    (a) Oil and gas leases heretofore approved and leases for other 
minerals now or hereafter in force on land from all of which 
restrictions against alienation have been or shall be removed, even if 
such leases contain provision authorizing supervision by this 
Department, shall after such removal of restrictions against alienation, 
be operated entirely free from such supervision, and the authority and 
power delegated to the Secretary of the Interior in said leases shall 
cease and all payments required to be made to the Area Director shall 
thereafter be made to the lessor or the then owner of the land, and 
changes in regulations thereafter made by the Secretary of the Interior 
shall not apply to such leased

[[Page 676]]

land from which said restrictions are removed.
    (b) In the event restrictions are removed from a part of the land 
included in any lease to which this section applies the entire lease 
shall continue subject to the supervision of the Secretary of the 
Interior, and all royalties thereunder shall be paid to the Area 
Director until such time as the lessor and lessee shall furnish the 
Secretary of the Interior satisfactory information that adequate 
arrangements have been made to account for the oil, gas or mineral upon 
the restricted land separately from that upon the unrestricted. 
Thereafter the restricted land only shall be subject to the supervision 
of the Secretary of the Interior: Provided, That the unrestricted 
portion shall be relieved from such supervision as in the lease or 
regulations provided.



Sec. 213.43  Relinquishment of Government supervision.

    All oil and gas leases hereafter executed shall contain the 
following relinquishment of supervision clause and terms operative after 
such relinquishment, or other provisions similar in substance:

    Relinquishment of supervision by the Secretary of the Interior.--
Should the Secretary of the Interior, at any time during the life of 
this instrument, relinquish supervision as to all or part of the acreage 
covered hereby, such relinquishment shall not bind lessee until said 
Secretary shall have given 30 days' written notice. Until said 
requirements are fulfilled, lessee shall continue to make all payments 
due hereunder as heretofore in section 3(c). After notice of 
relinquishment has been received by lessee, as herein provided this 
lease shall be subject to the following further conditions:
    (a) All rentals and royalties thereafter accruing shall be paid in 
the following manner: Rentals and royalties shall be paid to lessor or 
his successors in title, or to a trustee appointed under the provision 
of section 9 hereof. Rentals and royalties shall be paid directly to 
lessor, his successors in title, or to said trustee as the case may be.
    (b) If, at the time supervision is relinquished by the Secretary of 
the Interior, lessee shall have made all payments then due hereunder, 
and shall have fully performed all obligations on its part to be 
performed up to the time of such relinquishment, then the bond given to 
secure the performance hereof, on file in the Indian Office, shall be of 
no further force or effect.
    (c) Should such relinquishment affect only part of the acreage, then 
lessee may continue to drill and operate the land covered hereby as an 
entirety: Provided, That lessee shall pay in the manner prescribed by 
section 3(c), for the benefit of lessor such proportion of all rentals 
and royalties due hereunder as the acreage retained under the 
supervision of the Secretary of the Interior bears to the entire acreage 
of the lease, the remainder of such rentals and royalties to be paid 
directly to lessor or his successors in title or said trustee as the 
case may be, as provided in subdivision (a) of this section.
    Division of fee. It is covenanted and agreed that should the fee of 
said land be divided into separate parcels, held by different owners, or 
should the rental or royalty interests hereunder be so divided in 
ownership, after the execution of this lease and after the Secretary of 
the Interior relinquishes supervision hereof, the obligations of lessee 
hereunder shall not be added to or changed in any manner whatsoever save 
as specifically provided by the terms of this lease. Notwithstanding 
such separate ownership, lessee may continue to drill and operate said 
premises as an entirety: Provided, That each separate owner shall 
receive such proportion of all rentals and royalties accruing after the 
vesting of his title as the acreage of the fee, or rental or royalty 
interest, bears to the entire acreage covered by the lease; or to the 
entire rental and royalty interest as the case may be: Provided further, 
That, if, at any time after departmental supervision hereof is 
relinquished, in whole or in part, there shall be four or more parties 
entitled to rentals or royalties hereunder, whether said parties are so 
entitled by virtue of undivided interests or by virtue of ownership of 
separate parcels of the land covered hereby, lessee at his election may 
withhold the payment of further rentals or royalties (except as to the 
portion due the Indian lessor while under restriction), until all of 
said parties shall agree upon and designate in writing and in a 
recordable instrument a trustee to receive all payments due hereunder on 
behalf of said parties and their respective successors in title. 
Payments to said trustee shall constitute lawful payments hereunder, and 
the sole risk of an improper or unlawful distribution of said funds by 
said trustee shall rest upon the parties naming said trustee and their 
respective successors in title. (The above provisions are copied from 
oil and gas mining lease Form 5-154h,\1\ revised April 24, 1935.)
---------------------------------------------------------------------------

    \1\ For information relative to obtaining Form 5-154h, see Sec. 
211.30.

---------------------------------------------------------------------------

[[Page 677]]



Sec. 213.44  Division of royalty to separate fee owners.

    Should the removal of restrictions affect only part of the acreage 
covered by a lease containing provisions to the effect that the 
royalties accruing under the lease, where the fee is divided into 
separate parcels, shall be paid to each owner in the proportion which 
his acreage bears to the entire acreage covered by the lease, the lessee 
or assignee of such unrestricted portion will be required to make the 
reports required by the regulations in this part and the operating 
regulations with respect to the beginning of drilling operations, 
completion of wells, and production the same as if the restrictions had 
not been removed. In the event the unrestricted portion of the leased 
premises is producing, the owner of the lease thereon will be required 
to pay the portion of the royalties due the Indian lessor at the time 
and in the manner specified by the regulations in this part.



Sec. 213.45  Restrictions especially continued as to certain lands.

    Restricted lands allotted as either homestead or surplus allotments, 
designated as tax exempt under section 4 of the act of May 10, 1928, as 
amended May 24, 1928 (45 Stat. 495, 733), the entire interest in which 
was acquired by inheritance, gift, devise, or purchase with restricted 
funds, by persons of one-half or more Indian blood, after the passage of 
the act of January 27, 1933 (47 Stat. 777), continue to be restricted 
under the provisions of the last mentioned act and oil and gas leases 
thereof are subject to the regulations in this part and all such leases 
to be valid must be approved by the Secretary of the Interior. Lands 
inherited by or devised to full blood Indians prior to the act of 
January 27, 1933, are not affected as to restrictions by the provisions 
of said act and may continue to be leased with the approval of the 
county court having jurisdiction of the estate of the deceased allottee 
and without approval of the Secretary of the Interior (54 L.D. 382; 10 
F. (2d), 487). Lands acquired prior to the passage of the act of January 
27, 1933 by Indians of less than full blood, whether such lands were 
restricted and tax exempt or restricted and taxable, passed to such 
persons free of all restrictions. Inherited homesteads restricted prior 
to April 26, 1931, by section 9,\2\ of the act of May 27, 1908 (35 Stat. 
312), for the benefit of heirs of one-half or more Indian blood but less 
than full bloods, born after March 4, 1906, became unrestricted April 
26, 1931, or upon the death prior thereto of the heir born subsequent to 
March 4, 1906, and oil and gas leases thereof are not subject to the 
regulations in this part nor under the jurisdiction of the Secretary of 
the Interior.
---------------------------------------------------------------------------

    \2\ Repealed restrictions on inherited homesteads, by sec. 2 of the 
act of May 10, 1928 (45 Stat. 495).
---------------------------------------------------------------------------



Sec. 213.46  Field clerks.

    Local representatives known officially as ``field clerks'' are 
located in the various districts comprising that part of the State of 
Oklahoma occupied by the Five Civilized Tribes. Such field clerks shall 
report to and act under the direction of the Area Director. Any and all 
counsel and advice desired by allottees concerning deeds, leases, or 
other instruments or matters relating to lands allotted to them shall be 
furnished by such field clerks free of charge. Field clerks shall not, 
during their term of employment, have any personal interest, directly or 
indirectly, in any transaction concerning leases covering lands of 
allottees or in the purchase or sale of any such lands regardless of 
whether the restrictions have or have not been removed. This 
prohibition, however, shall not apply to lands which such field clerks 
have legally acquired before their employment in the Bureau of Indian 
Affairs. Field clerks shall report to the Area Director at the end of 
each month the work performed during such period and special reports 
shall be made immediately of any apparently illegal transaction 
involving the estates or allotments of allottees.



Sec. 213.47  Forms.

    The provisions of Sec. 211.30 of this chapter, or as hereafter 
amended, are applicable to this part.

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 678]]



Sec. 213.48  Effective date.

    The regulations in this part shall become effective and in full 
force from and after the date of approval (Apr. 27, 1938), and shall be 
subject to change or alteration at any time by the Secretary of the 
Interior: Provided, That no regulations made after the approval of any 
lease shall operate to affect the term of the lease, rate of royalty, 
rental, or acreage unless agreed to by both parties to the lease. All 
former regulations governing the leasing of individually owned lands of 
the Five Civilized Tribes for mining purposes are superseded by the 
regulations in this part.



Sec. 213.49  Scope of regulations.

    The regulations in this part shall apply in so far as practicable to 
land purchased for Indians under the Oklahoma Indian Welfare Act of June 
26, 1936 (49 Stat. 1967; 25 U.S.C. 501-509), as well as to other lands 
of individual Indians of the Five Civilized Tribes.



PART 214_LEASING OF OSAGE RESERVATION LANDS, OKLAHOMA, FOR MINING, 
EXCEPT OIL AND GAS--Table of Contents




Sec.
214.1 Definition.
214.2 Sale of leases.
214.3 Corporate information.
214.4 Bonds.
214.5 Additional information.
214.6 Failure of lessee to complete lease.
214.7 Operation not permitted until lease approved; 160 acres maximum 
          for single lease.
214.8 Acreage limitation.
214.9 Advance rental.
214.10 Royalty rates.
214.11 Payment of rents and royalties.
214.12 Time of payment of royalties.
214.13 Diligence; annual expenditures; mining records.
214.14 Use of surface lands.
214.15 Homesteads.
214.16 Settlement of damages.
214.17 Use of timber from restricted lands.
214.18 Assignments.
214.19 Cancellation.
214.20 Annual reports by corporate lessees.
214.21 Inspection of lessees' books and records.
214.22 Serving of notices.
214.23 Plat of mine location.
214.24 Forms.
214.25 Forfeiture of lease.
214.26 Fine; notice and hearing.
214.27 Changes in regulations.
214.28 Location of sites for mines and buildings.
214.29 Prospecting; abandonment of mines.
214.30 Lessees must appoint local representative.

    Authority: Sec. 3, 34 Stat. 543.

    Source: 22 FR 10605, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 214.1  Definition.

    The term ``officer in charge'' shall refer to the superintendent of 
the Osage Indian Agency and school or other representative of the 
Government who may, for the time, be in charge of the Osage Agency and 
school, or any person who may be detailed by the Secretary of the 
Interior or the Commissioner of Indian Affairs to take charge of leasing 
or mining operations under the regulations in this part.



Sec. 214.2  Sale of leases.

    Leases of minerals other than oil and gas may be negotiated with the 
tribal council after permission to do so has been obtained from the 
officer in charge. Leases with all papers required, shall be filed with 
the officer in charge within 30 days from the date of execution by the 
lessee and the principal chief of the Osage Tribe. The lease will be 
forwarded to the Commissioner of Indian Affairs for consideration by him 
and the Secretary of the Interior and will become effective only after 
approval by the Secretary of the Interior. If any lease should be 
disapproved through no fault of the lessee, all amounts deposited by him 
will be promptly refunded.



Sec. 214.3  Corporate information.

    A corporation shall file with its first lease a certified copy of 
articles of incorporation, and, if a foreign corporation, evidence 
showing compliance with local corporation laws in duplicate; a list of 
all stockholders, with their post office addresses, and showing the 
number of shares of capital stock held by each; together with a sworn 
statement of its proper officer showing:
    (a) The total number of shares of the capital stock actually issued, 
the number of shares actually sold and the amount of cash paid into the 
treasury

[[Page 679]]

out of the stock sold, or, if paid in property, kind, quantity, and 
value of the same.
    (b) Of the stock sold, how much per share remains unpaid and subject 
to assessment.
    (c) How much cash the company has in its treasury and elsewhere, and 
from what source it was received.
    (d) What property, exclusive of cash, is owned by the company, and 
its value.
    (e) What the total indebtedness of the company is, and the nature of 
its obligations.
    (f) Names of officers and directors.



Sec. 214.4  Bonds.

    Lessee shall furnish with each lease at the time it is filed with 
the officer in charge an acceptable bond not less than the following 
amounts:

For less than 80 acres............................................$1,000
For 80 acres and less than 120 acres...............................1,500
For 120 acres and not more than 160 acres..........................2,000
For each additional 40 acres, or part thereof above 160 acres........500

    Provided, That for leases for minerals other than oil and gas the 
Secretary of the Interior or his authorized representatives with the 
consent of the Indian landowner may authorize a bond for a lesser amount 
if, in his opinion, the circumstances warrant and the interests of the 
Indian landowners are fully protected: Provided further, That the lessee 
shall be allowed to file bond, Form S \1\ covering all leases to which 
he or they are or may become parties instead of a separate bond in each 
case, such bond to be in the penal sum of $15,000. The right is reserved 
to change the amount of the bond in any particular case, or to require a 
new bond in the discretion of the Secretary of the Interior.
---------------------------------------------------------------------------

    \1\ For further information concerning forms, see Sec. 214.24.

[26 FR 164, Jan. 10, 1961. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 214.5  Additional information.

    The officer in charge may, at any time, either before or after 
approval of a lease call for any additional information necessary to 
carry out the purpose and intent of the regulations in this part, and 
such information shall be furnished within the time specified in the 
request therefor.



Sec. 214.6  Failure of lessee to complete lease.

    Should a lessee fail to furnish, within the time specified after his 
bid is accepted, the papers necessary to put his lease and bond in 
proper form for consideration, the officer in charge shall recommend 
that the sale be disapproved and money paid forfeited to the Osage 
Tribe.



Sec. 214.7  Operation not permitted until lease approved; 160 acres 
maximum for single lease.

    No mining or work of any nature will be permitted upon any tract of 
land until a lease covering such tract shall have been approved by the 
Secretary of the Interior and delivered to the lessee. All leases shall 
be made for such period as the title to the minerals remain in the Osage 
Tribe, which time will expire April 8, 1931, unless otherwise provided 
by Congress and shall be subject to cancellation or termination as 
specified in this part. Leases made by corporations shall be accompanied 
by an affidavit by the secretary or president of the company showing the 
authority of its officers to execute leases, bonds, and other papers. No 
lease shall be made covering more than 160 acres.



Sec. 214.8  Acreage limitation.

    No person, firm, or corporation shall hold under lease at any one 
time without special permission from the Secretary of the Interior in 
excess of the following areas:
    (a) For deposits of the nature of lodes, or veins containing ores of 
gold, silver, copper, or other useful metals, 640 acres.
    (b) For beds of placer gold, gypsum, asphaltum, phosphate, iron 
ores, and other useful minerals, other than coal, lead, and zinc, 960 
acres.
    (c) For coal, 4,800 acres.
    (d) For lead and zinc, 1,280 acres.



Sec. 214.9  Advance rental.

    (a) Lessees shall pay, in addition to other considerations, annual 
advance rentals as follows: 15 cents per acre for

[[Page 680]]

the first year; 30 cents per acre for the second year; 50 cents per acre 
for the third year; and $1 per acre per annum for the fourth and each 
succeeding year during the life of any lease: Provided, That all such 
payments of advance rentals shall be credits on royalties on production 
during the year for which payment of advance rental is made.
    (b) The payment of annual advance rental shall not release the 
lessee from the obligation to conduct mining operations, as required by 
the terms of the lease.



Sec. 214.10  Royalty rates.

    Royalties will be required as follows, subject to the approval of 
the President, in accordance with the act of June 28, 1906 (34 Stat. 
543):
    (a) For gold, silver, or copper lessee shall pay quarterly a royalty 
of 10 percent to be computed on the gross value of the ores as shown by 
reduction returns after deducting freight and treatment charges. 
Duplicate reduction returns shall be filed by the lessee with the 
officer in charge within 20 days after the reduction of the ores.
    (b) For coal the lessee shall pay a royalty of 10 cents per ton of 
2,000 pounds on mine run or coal as taken from the mines, including what 
is commonly called ``slack.''
    (c) For asphaltum and allied substances, the lessee shall pay 
quarterly a royalty of 10 cents per ton of 2,000 pounds on crude 
material, and 60 cents per ton on refined substances.
    (d) For substances other than gold, silver, copper, lead, zinc, 
coal, and asphaltum the lessee shall pay quarterly a royalty of 10 
percent of the value at the nearest shipping point of all ores, metals, 
or minerals marketed.
    (e) The royalties to be paid for lead and zinc shall be computed for 
each mineral at the same rate that the amount of the concentrates of 
such mineral bears to the total amount of dirt or rock actually mined, 
except as stipulated in this section. The royalty so determined shall be 
increased by adding 1 percent for each increase of $10 in the selling 
price per ton thereof over and above the following, which shall be the 
agreed base or standard:

For zinc--$50
For lead--$65


but in no case shall the rate of royalty be less than 5 percent or more 
than 20 percent. The percentage of recovery shall be computed as nearly 
as practicable upon the ore included in each sale, but where it is 
impracticable so to do the officer in charge and the lessee shall agree 
upon some other method of computation which will produce substantially 
the same result: Provided, That in case of their disagreement the 
Commissioner of Indian Affairs shall prescribe a rule of computation to 
be followed in such cases.

    Note: The royalty would always be determined under this rule by 
ascertaining the percentage of recovery were it not for two things: (1) 
the flat rates which are fixed as the minimum and the maximum rates of 
royalty and (2) variations in the selling price of the ores. Concrete 
examples coming under the rule are set forth in the following table:

                                  Zinc
               [Where the base or standard is $50 per ton]
------------------------------------------------------------------------
 Percentage of recovery       Selling price          Royalty (percent)
------------------------------------------------------------------------
           7                      $48                        7
          14                       49                       14
          12                       50                       12
          15                       60                       16
          30                       60                       20
           9                       70                       11
------------------------------------------------------------------------

A similar table might be constructed for royalties on lead, but in so 
doing it would be necessary to bear in mind that the base or standard 
selling price for the lead is to be $65 instead of $50.



Sec. 214.11  Payment of rents and royalties.

    All rentals, royalties, damages, or other amounts which may become 
due under leases approved in accordance with the regulations in this 
part shall be paid to the disbursing agent at Pawhuska, Okla. The 
remittances shall be in St. Louis exchange, except that where such 
exchanges cannot be procured post office or express money orders will be 
accepted. All royalties or other payments or claims of the Osage Tribe 
arising under such leases shall be a lien upon the mining plant 
machinery, and all minerals mined on the property leased or in which the 
lessee still retains any right, claim, or interest.

[[Page 681]]



Sec. 214.12  Time of payment of royalties.

    Royalties on all minerals produced in any quarter (January-March, 
April-June, July-September, October-December) shall be paid on or before 
the 25th day of the month next succeeding, and the remittance shaIl be 
accompanied by sworn reports covering all operations, whether there has 
been production or not. Annual advance rentals shall be paid within 10 
days after the beginning of the lease year.



Sec. 214.13  Diligence; annual expenditures; mining records.

    (a) Lessees shall exercise diligence in the conduct of prospecting 
and mining operations, and on all leases referred to in Sec. 214.8(a) 
shall expend annually in development work a sum which with the annual 
rental shall make an amount of not less than $5 per acre. On all leases 
referred to in Sec. 214.8 (b) and (c) there shall be expended annually 
in development work a sum which inclusive of the annual rental shall 
make an amount of not less than $1 for each acre or fraction thereof 
included in the lease. The lands covered by each lease referred to in 
Sec. 214.8 (d) shall be prospected for lead and zinc ores by drilling 
within 1 year test holes aggregating 2,000 feet unless a sufficient ore 
body is discovered to justify the sinking of a shaft to the ore body and 
the erecting of a mill when such tract may be released from further 
prospecting by the written consent of the superintendent: Provided, That 
within 90 days after an ore body of sufficient quantity is discovered, 
and shown by the logs or records of the drill holes, to justify the 
expenditure, the sinking of a shaft to the ore body, and the erection of 
a mill shall be commenced and continued to completion without cessation 
of work thereon, barring unavoidable accidents or causes beyond the 
control of the lessee.
    (b) Lessee shall keep upon the leased premises accurate records of 
the drilling, redrilling, or deepening of all holes showing the 
formations, and upon the completion of such holes, copies of such 
records shall be transmitted to the superintendent by the lessee after 
the first completion and of any further drilling thereafter, and a 
failure to so furnish report within the time prescribed shall be 
considered a violation of the regulations. Lessee shall, before 
commencing operations, file with the superintendent a plat and 
preliminary statement of how the openings are to be made and the 
property developed.



Sec. 214.14  Use of surface lands.

    (a) Lessees may use so much of the surface of the leased land as 
shall be reasonably necessary for the prospecting and mining operations 
and buildings required by the lease, and shall also have the right-of-
way over and across such land to any point of prospecting or mining 
operations, but such use of the surface shall be permissible only under 
condition of least injury and inconvenience to the allottee or owner of 
the land. Lessees before commencing and during such operations shall pay 
all reasonable damages for the use of the surface land and to any 
growing crops thereon, or to improvements on said land, or any damage 
that during the life of the lease may be occasioned in any manner 
whatsoever by the use of the surface, to the allottee or his successor 
in interest or assignee, or to a lessee of the surface of said land or 
to an oil and gas lessee, damages to be apportioned among the parties 
interested in the surface, whether as owner, lessee, or otherwise, as 
the parties in interest may mutually agree or as their interests may 
appear. If the parties are unable to agree concerning damages the same 
shall be determined by arbitration.
    (b) All agreements (or authenticated copies thereof) providing for 
the settlement of damages shall be filed in the Osage Agency if the 
surface owner is a restricted Indian, and all such amounts which may be 
due and payable to any such Indian shall be paid to the superintendent 
and by him immediately remitted to the Indian entitled thereto. All sums 
due as royalty or damages shall be a lien on all equipment on leased 
premises.



Sec. 214.15  Homesteads.

    Lessees and those acting under them shall not conduct prospecting or 
mining operations within or upon any homestead selection without written

[[Page 682]]

consent of the Secretary of the Interior.



Sec. 214.16  Settlement of damages.

    Any person, other than a lessee or an allottee or the heirs of a 
deceased allottee, claiming an interest in any leased tract or in 
damages thereto must furnish to the officer in charge a statment in 
writing showing his interest, and failure to furnish such statement 
shall constitute a waiver of notice and estop said person from claiming 
any part of such damages after the same shall have been disbursed.



Sec. 214.17  Use of timber from restricted lands.

    Lessees will not be permitted to use any timber from any Osage lands 
not relieved of restrictions upon alienation except under written 
agreement with the owner approved by the officer in charge.



Sec. 214.18  Assignments.

    Approved leases or any interest therein may be transferred or 
assigned with the consent and approval of the Secretary of the Interior 
and not otherwise. Transfers or assignments, when so approved, shall be 
subject to the terms and conditions of the original leases and 
regulations under which such leases were approved as well as to such 
additional requirements as the Secretary of the Interior may prescribe. 
The transferee or assignee shall furnish with his transfer or assignment 
a satisfactory bond as prescribed in Sec. 214.4 in connection with 
leases. Any attempt to transfer or assign an approved lease or any 
interest therein without the consent and approval of the Secretary of 
the Interior shall be absolutely void and shall subject the original 
lease to cancellation in the discretion of the secretary.



Sec. 214.19  Cancellation.

    When a lessee makes application for the cancellation of a lease in 
whole or in part, all royalties or rentals due up to and including the 
date of the application for cancellation must be paid, and that part of 
the lease delivered to the lessee shall be surrendered before such 
application will be considered. In the event a lease is surrendered for 
cancellation in whole or in part, after a new lease year has been 
entered upon, the lessee and his surety shall be liable for the advance 
rentals required to be paid under the lease for that year, and no part 
of such rentals which may have been paid shall be refunded.



Sec. 214.20  Annual reports by corporate lessees.

    Lessees and assignees must submit to the officer in charge on 
January 1, of each year and at such other times as may be required by 
the Secretary of the Interior, a statement containing the information 
called for in Sec. 214.3(a) and (f) and also showing any changes in 
officers or changes in or additions to stockholders. At any time 
individual stockholders may be required to show to the satisfaction of 
the Secretary of the Interior in what companies or with what persons or 
firms they are interested in mining leases on the Osage Reservation and 
whether they hold such stock or interest for themselves or in trust.



Sec. 214.21  Inspection of lessees' books and records.

    Lessees shall allow the agents and representatives of the lessor, or 
any authorized representative of the Interior Department, to enter, from 
time to time, upon and into all parts of the leased premises for the 
purpose of inspection, and their books and records showing manner of 
operations and persons interested, shall be open at all times for the 
examination of such officers of the department as shall be instructed by 
the Secretary of the Interior to make such examinations.



Sec. 214.22  Serving of notices.

    Wherever notice is provided for in this part it shall be sufficient 
if notice has been mailed to the last known place of address of the 
party, and time shall begin to run with the day next ensuing after the 
mailing or from the date of delivery of personal notice; but where the 
party is outside the State of Oklahoma the officer in charge may, in his 
discretion, increase the time allowed.

[[Page 683]]



Sec. 214.23  Plat of mine location.

    Lessees are required, when so requested, to file a plat of their 
leases showing exact locations of all mines, proposed locations, power 
houses, etc.



Sec. 214.24  Forms.

    Applications, leases, and other papers must be upon forms prepared 
by the department, and the superintendent of the Osage Indian school, 
Pawhuska, Okla., will furnish prospective lessees with such forms at a 
cost of $1 per set.

Form M. Application for mining lease, including financial showing.
Form N. Lease (except lead and zinc).
Form O. Bond.
Form P. Authority of officers to execute papers.
Form Q. Assignment.
Form R. Lease for lead and zinc.
Form S. Collective bond.



Sec. 214.25  Forfeiture of lease.

    On the failure of any lessee or assignee to comply with any 
regulation or any obligation in the lease or assignment, the Secretary 
of the Interior may cancel and annul such lease without resorting to the 
courts and without any further proceeding: Provided, That the party or 
parties charged with such violation shall be first given not less than 
30 days' notice to show cause why such lease should not be canceled and 
annulled or other order made with reference thereto.



Sec. 214.26  Fine; notice and hearing.

    Violation of any of the terms or conditions of any lease or of the 
regulations pertaining thereto shall subject the lease to cancellation 
by the Secretary of the Interior, or the lessee to a fine of not 
exceeding $500 per day for each and every day the terms of the lease or 
of the regulations are violated, or the orders of the superintendent in 
reference thereto are not complied with, or to both such fine and 
cancellation in the discretion of the Secretary of the Interior: 
Provided, That the lessee shall be entitled to notice and hearing with 
respect to the terms of the lease or of the regulations violated, which 
hearing shall be held by the superintendent, whose findings shall be 
conclusive unless an appeal be taken to the Secretary of the Interior 
within 30 days after notice of the superintendent's decision, and the 
decision of the Secretary of the Interior upon appeal shall be 
conclusive.



Sec. 214.27  Changes in regulations.

    The regulations in this part are subject to change or alteration at 
any time by the Secretary of the Interior.



Sec. 214.28  Location of sites for mines and buildings.

    In event of disagreement between two or more mineral lessees 
regarding sites for the location of wells, mines, buildings, plants, 
etc., the same shall be determined by the superintendent after 
investigation and after due consideration of prior right of any lessee 
by reason of date of approval of lease.



Sec. 214.29  Prospecting; abandonment of mines.

    All prospecting or mining operations or the abandonment of a well or 
mine shall be subject to the approval of the superintendent, and any 
disagreement between lessees of mineral leases regarding operations 
likely to result in injury to either lessee shall be determined by the 
superintendent, whose decision shall be final, unless an appeal is filed 
with the Secretary of the Interior within 30 days after notice of such 
decision.



Sec. 214.30  Lessees must appoint local representative.

    Before actual drilling or development operations are commenced on 
leased lands, the lessee or assignee shall appoint a local or resident 
representative within the State, on whom the superintendent or other 
authorized representative of the department may serve notice or 
otherwise communicate with in securing compliance with the regulations 
in this part and shall notify the superintendent of the name and post 
office address of the representative so appointed.



PART 215_LEAD AND ZINC MINING OPERATIONS AND LEASES, QUAPAW AGENCY
--Table of Contents




Sec.
215.0 Definitions.
215.1 No operations until lease approved.

[[Page 684]]

215.2 Local representative of lessee.
215.3 Manner and time of royalty payments.
215.4 Leases to be sold at public auction.
215.5 Royalty rates.
215.6 Applications for leases; consent of Indian owners.
215.7 Advertisement of sale of leases.
215.8 Submission of bids.
215.9 Execution of leases.
215.10 Renewal of leases on developed lands.
215.11 New leases where prior leases have been forfeited or abandoned.
215.12 Advertising costs.
215.13 Bond.
215.14 Payments to be made to superintendent.
215.15 Leases to be accompanied by Form D.
215.16 Requirements of corporate lessees.
215.17 Additional information required.
215.18 Term of leases.
215.19 Forms.
215.20 Assignment.
215.21 Payment of gross production tax on lead and zinc.
215.22 Operations.
215.23 Cooperation between superintendent and district mining 
          supervisor.
215.23a Suspension of operations and production on leases for minerals 
          other than oil and gas.
215.24 Books and accounts.
215.25 Other minerals and deep-lying lead and zinc minerals.

    Authority: Sec. 26, 41 Stat. 1248; 50 Stat. 68.

    Source: 22 FR 10608, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 215.0  Definitions.

    The following expressions, wherever used in the regulations in this 
part or leases thereunder, shall have the meaning designated in this 
section:
    (a) Superintendent. The term ``superintendent'' shall mean any 
person in charge of the Quapaw Indian Agency, or having supervision 
under the direction of the Secretary of the Interior of the Indian 
restricted and trust allotted lands thereunder.
    (b) Allottee. The term ``allottee'' shall mean any Indian to whom 
land has been allotted, or any Indian owner of land or interest therein 
as an heir or devisee.
    (c) Incompetent Indian. The term ``incompetent Indian'' or 
``incompetent'' shall mean any Indian who has been declared by the 
Secretary of the Interior to be incompetent to improve or manage his 
restricted or trust lands properly or with benefit to himself. The term 
shall also include any Indian who is a minor and any Indian who is a 
legal incompetent under the laws of the State. The term shall also apply 
to any Indian who is in fact incompetent, and the question of whether an 
Indian is competent or incompetent at the time of making a lease of his 
restricted or trust Indian lands is one for the Secretary of the 
Interior to determine.
    (d) Lessee. The term ``lessee,'' except where otherwise modified or 
limited in the regulations in this part, shall mean any person, firm, or 
corporation, their legal representatives, heirs, or assigns, to whom a 
lead and zinc mining lease has been made by or on behalf of Indians 
under the provisions of the regulations in this part.
    (e) Lessor. The term ``lessor,'' except where otherwise modified or 
limited in the regulations in this part, shall mean any Indian owning or 
having any interest in restricted or trust allotted any inherited lands 
under the supervision of the Quapaw Indian Agency, by or for whom a 
lease has been executed pursuant to the regulations in this part.
    (f) Leased lands. The terms ``leased lands,'' ``leased premises,'' 
or ``leased tract'' shall mean any leased restricted or trust lands 
within and under jurisdiction of the Quapaw Indian Agency allotted to or 
inherited by an Indian.
    (g) Mining operations. The term ``mining operation'' or 
``operations,'' except where otherwise modified or limited in the 
regulations in this part or in leases thereunder shall mean actual 
drilling, mining, or construction on the leased lands.



Sec. 215.1  No operations until lease approved.

    No operations under any lease executed under the regulations in this 
part shall be permitted upon any restricted or trust lands allotted to 
or inherited by an Indian until such lease covering such tract shall be 
approved by the Secretary of the Interior.



Sec. 215.2  Local representative of lessee.

    Before actual drilling or development operations are commenced on 
the leased lands the lessee shall appoint a local or resident 
representative within Ottawa County, Oklahoma, on whom the 
superintendent may serve notice or

[[Page 685]]

otherwise communicate with in securing compliance with the regulations, 
and shall notify the superintendent of the name and post office address 
of the representative so appointed. In the event of the incapacity or 
absence from the county of Ottawa of such designated local or resident 
representative, the lessee shall appoint some person to serve in his 
stead, and in the absence of such representative or of notice of the 
appointment of a substitute any employee of the lessee upon the leased 
premises, or the contractor, or other person in charge of mining 
operations thereon shall be considered the representative of the lessee 
for the purpose of service of orders or notices as provided in this 
part, and service upon any employee, contractor, or other person shall 
be deemed service on the lessee. Wherever a notice is provided for in 
the regulations in this part or in the lease from it shall be deemed 
sufficient if notice has been mailed to the last known address of the 
lessee or his local or resident representatives, and time shall begin to 
run with the day next ensuing after the mailing, or from date of 
delivery of personal notice.



Sec. 215.3  Manner and time of royalty payments.

    All royalties belonging to the lessor shall be paid to the 
superintendent of the Quapaw Agency at Miami, Okla., or such other 
official as the Secretary of the Interior may designate, for the benefit 
of the lessor, not later than 15 days from the 1st of each month for ore 
and concentrates sold during the preceding month.



Sec. 215.4  Leases to be sold at public auction.

    Except as otherwise provided in the regulations in this part, no 
lead and zinc mining lease under this part of restricted or trust 
allotted and inherited Indian lands within and under the Quapaw Indian 
Agency shall be made except to the highest responsible bidder at public 
auction.



Sec. 215.5  Royalty rates.

    (a) In leases offered for sale at public auction under the 
regulations in this part the royalty to be paid by the lessee shall be 
stipulated at a fixed percent of the gross proceeds of all lead and zinc 
ores and concentrates extracted from the leased premises, the royalty to 
be computed and based upon each sale of ore or concentrates separately, 
the rate of royalty to be determined and fixed by the Secretary of the 
Interior in the case of each lease prior to the offering of such lease 
for sale. Subject to the right of the Secretary of the Interior to 
reject any and all bids, leases offered for sale at public auction shall 
be awarded in each case to the responsible bidder submitting the highest 
bonus offer.
    (b) In leases not offered for sale at public auction but otherwise 
made and entered into under the provisions of the regulations in this 
part the royalty stipulated and fixed therein shall be such as may be 
determined by the Secretary of the Interior or as may be agreed upon in 
each case, subject to the approval of the Secretary of the Interior.
    (c) It shall be further provided, however, that said sale-price 
basis for the determination of the rates and amount of royalty shall not 
be less than the highest and best obtainable market price of the lead 
and zinc ores and concentrates at the usual and customary place of 
disposing of such ores and concentrates at the time of sale: Provided, 
however, That the right is reserved to the Secretary of the Interior to 
determine and declare such market price if it is deemed necessary for 
him to do so for the protection of the interests of the Indian lessor: 
And provided further, That the right is reserved to the Secretary of the 
Interior on behalf of the Indian lessors to reserve at any time it shall 
be deemed to be to the best interests of the Indian lessors and upon due 
notice to the lessee, the royalty share of the gross production of the 
ore and concentrates and upon such notice that the royalty share of such 
production shall be stored and not sold, the lessee shall be required to 
store, free of charge to the Indian lessors in the ore bins of said 
lessee, said royalty shares of the gross production of ore and 
concentrates, provided that the lessee may not be required to store ore 
or concentrates for the lessor in amounts

[[Page 686]]

greater than one-third of his bin capacity or for a period longer than 6 
months.



Sec. 215.6  Applications for leases; consent of Indian owners.

    (a) Applications or requests by the Indian owners of restricted or 
trust land, or by others, that such land be leased or offered for lease 
for lead and zinc mining purposes should be addressed to the Secretary 
of the Interior and submitted through the superintendent of the Quapaw 
Indian Agency. Upon receipt of such applications or requests, the 
superintendent shall give consideration thereto and forward the same to 
the Commissioner of Indian Affairs with his report and recommendation.
    (b) In no instance will a new lease be executed and delivered (or 
advertised for sale to the highest bidder) unless the Indian owner 
thereof, if an adult who has not been specifically found by the 
Secretary of the Interior to be personally incompetent to transact 
ordinary business affairs, has agreed to the terms of said lease or the 
terms under which said lease is advertised for lease, except in cases 
where the land is owned by several co-tenants, and, in such cases, no 
such lease shall be given or advertised for sale unless the co-owners or 
a majority in interest, if adults, and not specifically declared 
incompetent, have first consented thereto: Provided, That in the event 
the majority in interest is owned by minors, or adults specifically 
found to be incompetent, then and in that event, the Secretary of the 
Interior reserves the right to lease the entire tract if, in his 
opinion, such leasing will inure to the best interest of the restricted 
Indian owners.



Sec. 215.7  Advertisement of sale of leases.

    Upon authority being granted by the Secretary of the Interior to the 
superintendent to offer for sale at public auction a lead and zinc 
mining lease of any tract or tracts of restricted or trust allotted and 
inherited Indian lands, the superintendent shall cause a notice to be 
published once a week for at least 4 weeks in some designated newspaper 
of general circulation in the county in which the land is located, 
setting forth that upon a certain day, which shall be not less than 30 
days from the first publication of such notice and at a place to be 
named in the notice, the superintendent or other duly authorized 
representatives of the Secretary of the Interior will offer for sale at 
public auction a lead and zinc mining lease of such lands to the highest 
and best bidder, subject to the rules and regulations prescribed by the 
Secretary of the Interior, notice to be in such form as may be 
prescribed by the Secretary of the Interior.



Sec. 215.8  Submission of bids.

    At the time of public auction bidders may submit their bids in 
person or by authorized agents, but in the latter case the bids must be 
accompanied by power of attorney duly executed by the real party or 
person in interest. Sealed bids may be submitted by mail or otherwise to 
the superintendent at his office at Miami, Okla., or delivered to him at 
the place set for the sale at any time prior to the hour fixed for 
offering the lease for sale. At the time and place of the public auction 
and before receiving the public bids the officer in charge shall 
announce the amounts and terms of all sealed bids received by him and 
the names of the bidders. The persons present, including those, if any, 
who may have theretofore submitted sealed bids, shall then be allowed to 
offer public bids. Bids must contain the offer of the stipulated and 
fixed royalty (see Sec. 215.5 as to royalty) and, in addition thereto, 
the offer of a bonus payable as follows: 25 percent at time of sale and 
the balance before or at time of execution of the lease contract. 
Bidders shall be required to submit with their bids a draft or certified 
check payable to the order of the superintendent covering the advance 
rental for the first year on the proposed leasehold and 25 percent of 
the amount of the bonus offered. The superintendent shall, in each case, 
determine the highest and best bid, said determination, however, to be 
subject to the approval of the Secretary of the Interior. Upon approval 
by the Secretary of the Interior of the award, the successful bidder 
shall, within 30 days from notice thereof, enter into and execute the 
lease contract in accordance with said bid and the regulations in this 
part. The

[[Page 687]]

lease so executed shall be subject to the approval of the Secretary of 
the Interior and may be accepted or rejected by him when submitted for 
his approval. The right is reserved to the Secretary of the Interior, in 
the event of the rejection of such lease, to authorize and instruct the 
superintendent to accept the offer of some competitive bidder or to 
readvertise the land for lease. The report of the superintendent to the 
Commissioner of Indian Affairs relative to the auction sale shall 
contain full information as to all bids received for the lease rights on 
the land. If any person or party fails or refuses to execute a lease 
after being declared the highest bidder or after being awarded such 
lease, the amount tendered with his bid shall be forfeited to the 
superintendent for the benefit of the owner of the land.



Sec. 215.9  Execution of leases.

    Whenever a lease award to a proposed lessee has been approved by the 
Secretary of the Interior, as provided in Sec. Sec. 215.7 and 215.8, 
the lease contract shall be executed by the Indian owner of the land, if 
he be an adult and not incompetent as defined in Sec. 215.0(c). Before 
any lease is entered into by the Indian owners or is approved by the 
Secretary of the Interior, all the adult and competent owners or co-
owners of the tract of land which it is proposed to lease, shall be 
furnished by the Bureau such geological reports as may be available or 
that can be secured from the representative of the Geological Survey 
showing the estimated mineral reserves on said property, the estimated 
reasonable value of such property for mining purposes, and such other 
data as might reasonably be necessary to fully advise the owners of said 
property of the then present status and mining value of their lands. If 
the Quapaw or other Indian owner of the land is a minor, or is otherwise 
an incompetent as defined in the regulations in this part, the lease 
contract shall be executed by the superintendent for and on behalf of 
such minor or such incompetent. The leases executed, either by the 
Indian owner of the land or by the superintendent in his behalf, shall 
be subject to the approval of the Secretary of the Interior and shall be 
effective only upon such approval.

[22 FR 10608, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 215.10  Renewal of leases on developed lands.

    (a) In cases where the lands have heretofore been leased, and lead 
and zinc ores have been discovered hereon, and it shall appear to the 
Secretary of the Interior to be advisable and to the best interests of 
the Indian owners of the lands that the terms of the existing lease or 
leases be extended or that a new lease or leases for an additional 
period of time, or that a new lease or leases to take effect upon the 
expiration of present valid leases, should, upon application therefor, 
be granted to either the present lessees or to parties holding under 
assignments, subleases, or mining contracts, from such present lessees, 
or to parties who have expended capital in lead and zinc mining 
operation and development of the land under such leases, assignments, 
subleases, or mining contracts, a new lease or leases or contract of 
extension or existing lease or leases as may be authorized by the 
Secretary of the Interior may be entered into with the proper party or 
parties as may be determined by said Secretary of the Interior, and such 
new lease or leases or contract of extension of existing lease or leases 
shall be executed subject to the regulations in this part by and between 
the Indian owner of the land, if an adult and not incompetent as defined 
in Sec. 215.0 (c), and said proper party or parties. If the Quapaw or 
other Indian owner of the land is a minor or an otherwise incompetent as 
defined in Sec. 215.0 (c), the superintendent shall execute the new 
lease or leases or contract of extension of existing lease or leases for 
and on behalf of said Indian minor or incompetent. Said new leases or 
contracts of extension of old leases, whether executed by the Indian 
owner of the land or by the superintendent for and in his behalf, shall 
be subject to the approval of the Secretary of the Interior and shall 
become effective only upon such approval. No offering for sale at public 
auction or advertisement of sale

[[Page 688]]

will be necessary in reference to contracts of extension of leases, or 
to leases entered into under this section, as above provided, but such 
lease or contract shall be upon such terms as to bonus and royalty as 
may be determined and fixed in each case by the Secretary of the 
Interior under the provisions of Sec. 215.5. The approval by the 
Secretary of the Interior of new leases or of the contracts of extension 
of old leases shall be conclusive as to the validity of said leases, or 
contracts of extension of leases, the manner and method of negotiating 
the same, and the execution thereof. If, however, in any case where 
lands have heretofore been leased and lead and zinc ores have been 
discovered thereon, it shall appear to the Secretary of the Interior 
that the extension of the existing lease or leases or the granting of 
new leases to the present lessees, or to the persons or parties holding 
under said lessees by assignment, sublease, or mining contract, would 
not be to the best interests of the Indian owners of the land, the 
Secretary of the Interior may, at the expiration, cancellation, or 
forfeiture of the existing lease, cause the mining lease rights on said 
land to be offered for sale at public auction to the highest bidder. If 
the lead and zinc mining lease on said land be offered for sale at 
public auction, the same procedure shall be followed as provided in 
Sec. Sec. 215.7 through 215.9.
    (b) Applications under the provision of this section for a lease or 
extension of lease or for the approval of such lease or extension of 
lease will not be received or considered prior to the period of 1 year 
next preceding the date of the expiration of such valid existing lease 
or leases as may be on the land covered by such application.
    (c) Applications under the provisions of this section for a lease or 
extension of lease or for the approval of such lease or extension of 
lease shall be filed with the superintendent of the Quapaw Agency at any 
time within the period of 1 year next preceding the date of the 
expiration of such valid existing lease or leases as may be on the land 
covered by such application, and if the records of or papers in the 
office of said superintendent or the records of the county court of 
Ottawa County, Okla., indicate that there are any prior existing leases, 
subleases, assignments of leases or mining contracts covering any of the 
land applied for, the superintendent shall notify all persons having or 
claiming any rights or interest in or under said prior existing leases, 
subleases, assignments of leases, or mining contract concerning said 
application for lease or extension of lease, and that they will be 
allowed 10 days in which to file with the superintendent any objection 
they may have to the allowance of the application or to the approval of 
the new lease or extension of existing lease. If objection or protest is 
made by any owner of the land or by any person claiming rights or 
interests in or under existing lease, sublease, assignment of lease, or 
mining contract, a reasonable time, not exceeding 20 days, shall be 
allowed them in which to file their statement or brief in support of 
their protest or objection, and a reasonable further time not exceeding 
10 days shall be allowed the applicant for new lease or for extension of 
existing lease to reply in support of the application. In case of 
contest, hearings may be had if deemed necessary by the Secretary of the 
Interior or his representative. The application and papers in each case 
shall be forwarded by the superintendent of the Quapaw Indian Agency to 
the Commissioner of Indian Affairs with his report and recommendation in 
regard thereto.



Sec. 215.11  New leases where prior leases have been forfeited or 
abandoned.

    In cases where the lands have heretofore been leased and lead and 
zinc ores have been discovered but the mines and mining operations have 
been abandoned and the leases have been canceled or forfeited or have 
expired, special arrangements in the matter of the leasing and mining of 
said lands may be made provided the consent thereto of the Secretary of 
the Interior be first obtained. Applications containing special offers 
as to the terms and conditions may be considered by the Secretary of the 
Interior and the leasing of said lands may be made upon such special 
terms and conditions as the Secretary of the Interior may in each case 
deem to be for the best interests of the Indian owners of the land.

[[Page 689]]

If, however, in any case, it shall appear to the Secretary of the 
Interior that the granting of such lease would not be to the best 
interest of the Indian owners of the land, the Secretary of the Interior 
may cause the mining lease rights on said land to be offered for sale at 
public auction to the highest bidder. If the lead and zinc mining lease 
on said land be offered for sale at public auction, the same procedure 
shall be followed as provided in Sec. Sec. 215.7 through 215.9.



Sec. 215.12  Advertising costs.

    All advertising costs, publication fees, expenses incurred for 
abstracts of lease title, and other expenses incurred in connection with 
the advertising and sale of leases and in connection with the execution 
of lease contracts shall be borne by the lessee. In the event a lease of 
the land is offered to the highest bidder and he fails or refuses to 
execute such lease when duly notified and as required by or under the 
regulations in this part, and no other bid is accepted, such costs, 
fees, and expenses shall be paid from such money as he may have paid 
with his bid. If no bid is tendered after a tract is advertised, or if 
all bids are refused, said items of expenses shall be charged to the 
Indian owner of the land and be paid by him or be paid by the 
superintendent from any funds held by such superintendent to the credit 
of such Indian owner of the land.



Sec. 215.13  Bond.

    Every mineral lease made and entered into under the regulations in 
this part, by an Indian or by the superintendent as his representative 
or in his behalf, must be accompanied by a surety bond, executed by the 
lessee and by a responsible surety company or two or more satisfactory 
sureties, guaranteeing the payment of all deferred installments of bonus 
and the payment of all specified royalties and rentals and the 
performance of all covenants and agreements undertaken by the lessee. 
Such bonds, unless authorized by the Secretary of the Interior or his 
authorized representative, with the consent of the Indian landowner, 
shall be not less than the following amounts:

For less than 80 acres--$2,500
For 80 acres and less than 120 acres--3,500
For 120 acres or more--5,000

    Provided, however, That the lessee may, in lieu of such surety bond 
and upon execution of a proper penal bond to the United States in the 
sum prescribed and a proper power of attorney to the Secretary of the 
Interior, submit therewith United States bonds or notes in the aggregate 
sum prescribed as security for the carrying out of the terms, 
conditions, and provisions of the lease: Provided further, That a lessee 
may file in lieu of such individual lease bonds, one bond in a sum to be 
fixed by the Secretary of the Interior covering all leases to which he 
is or may become a party. The right is specifically reserved to the 
Secretary of the Interior to require an increase of the amount of any 
bond above the sum named in any particular case where he deems it 
necessary to require such increased bond.

[26 FR 164, Jan. 10, 1961. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 215.14  Payments to be made to superintendent.

    No bonus, rents, royalties, nor other payments accruing under any 
mineral lease executed in accordance with or subject to the regulations 
in this part and approved by the Secretary of the Interior shall be paid 
direct to the Indian lessor; but all such bonus, rents, royalties, and 
other payments accruing under any such lease shall be paid to the 
superintendent for the benefit of the Indian lessors, to be deposited by 
that officer to the credit of the superintendent in some bank designated 
for the deposit of individual Indian moneys.



Sec. 215.15  Leases to be accompanied by Form D.

    Lead and zinc leases should be accompanied, when filed, with 
application for approval (Form D) \1\ made under oath, and said 
application shall set forth the information therein required.
---------------------------------------------------------------------------

    \1\ For further information concerning forms, see Sec. 215.19.

---------------------------------------------------------------------------

[[Page 690]]



Sec. 215.16  Requirements of corporate lessees.

    (a) When the lessee is a corporation, its first application must be 
accompanied by a sworn statement of its proper officers showing:
    (1) The total number of shares of the capital stock actually issued 
and, specifically, the amount of cash paid into the treasury on each 
share sold; or, if paid in property, state kind, quantity, and value of 
the same paid per share.
    (2) Of the stock sold how much per share remains unpaid and subject 
to assessment.
    (3) How much cash the company has in its treasury and elsewhere and 
from what source it was received.
    (4) What property, exclusive of cash, is owned by the company and 
its value.
    (5) What the total indebtedness of the company is, and, 
specifically, the nature of its obligations.
    (b) Subsequent applications of the corporation should show briefly 
the aggregate amounts of assets and liabilities.



Sec. 215.17  Additional information required.

    Corporations, with their first application, must file one certified 
copy of articles of incorporation and, if a foreign corporation, 
evidence showing compliance with local corporation laws; also a list 
showing officers and stockholders, with post-office addresses and number 
of shares held by each. Statements of any changes of officers or any 
changes or additions of stockholders must be furnished to the Indian 
superintendent on January 1 of each year and at any time when requested. 
The right is reserved to the Secretary of the Interior to require of 
individual stockholders affidavits setting forth in what companies or 
with what persons or firms they are interested in lead and zinc mining 
leases, or land under the jurisdiction of the Quapaw Indian Agency, and 
whether they hold such stock for themselves or in trust. Evidence must 
also be given in a single affidavit (Form I) by the Secretary of the 
company or by the president of said company, showing authority of the 
officers of the company to execute the lease, bond, and other papers.



Sec. 215.18  Term of leases.

    The term of lead and zinc mining leases executed pursuant to acts of 
Congress and under the regulations in this part shall be for such period 
of time as may be determined in each case by the Secretary of the 
Interior, but in no case shall a lease be made to extend beyond the 
restriction or trust period on the lands covered by such lease.



Sec. 215.19  Forms.\2\

    Application, leases, and other papers must be upon forms prescribed 
by the Secretary of the Interior. Except as may be otherwise provided 
and required by the Secretary of the Interior, the leases and other 
papers required under the regulations in this part shall be in 
conformity with the forms designated, respectively, as follows:
---------------------------------------------------------------------------

    \2\ Forms may be obtained from the Commissioner of Indian Affairs, 
Washington, D.C.

Form A. Lease of Quapaw Indian land.
Form B. For lease of Indian land other than Quapaw.
Form C. Application by Indian.
Form D. Application for approval of lease.
Form E. Affidavit of lessor (or of superintendent acting for him) and 
affidavit of lessee.
Form F. Surety bond.
Form G. Affidavit of surety on personal bond.
Form H. Certificate as to sufficiency of surety on personal bond.
Form I. Affidavit as to authority of officers of corporation to execute 
lease and other papers.
Form J. Penal bond (in lieu of surety bond), and accompanying power of 
attorney.
Form K. Assignment of lead and zinc lease.



Sec. 215.20  Assignment.

    Leases granted or approved under the regulations in this part may be 
assigned and the leased premises may be subleased or sublet, but only 
with the consent and authority of the Secretary of the Interior and 
subject to his approval as to the terms and conditions of such 
assignments, sublease, and subletting contracts and not otherwise, and 
provided also that the proposed assignees, sublessee, or sublettee shall 
be qualified to hold such lease under the regulations in this part and 
shall furnish such bond as may be required by

[[Page 691]]

the Secretary of the Interior, such bond to be with responsible surety 
to the satisfaction of the Secretary of the Interior and conditioned for 
the faithful performance of the covenants and conditions of the lease. 
Upon the filing with the Indian agent of such assignment, financial 
statement, and bond, the said agent shall at once give notice in writing 
to all restricted Indian owners of said land, advising them of said 
proposed assignment, and that if they have any bona fide objections to 
same, such objections must be filed in writing within 10 days from the 
date of said notice.



Sec. 215.21  Payment of gross production tax on lead and zinc.

    The superintendent of the Quapaw Indian Agency is hereby authorized 
and directed to pay at the appropriate times, from the respective 
individual Indian funds held under his supervision, such gross 
production tax due the State on production of lead and zinc from 
restricted lands under his jurisdiction as may be properly assessed 
under provisions of law against the royalty interests of the respective 
Indian owners in the mineral produced from their lands.



Sec. 215.22  Operations.

    (a) All shafts shall be securely cribbed to a point at least 8 
inches above the immediate surrounding surface and cribbing shall be 
maintained in good condition during the life of the mining lease: 
Provided, however, That at any time shafts may be permanently sealed by 
a reinforced concrete slab after first obtaining the written approval of 
the duly authorized representative of the Department of the Interior. 
The slab shall be so placed as to prevent caving of the ground around 
the shaft collar.
    (b) All shafts, prior to the expiration, surrender, or upon 
cancellation of the mining lease or abandonment of the property, shall 
be permanently sealed so as to prevent the caving of the ground around 
the shaft collar: Provided, however, That this requirement may be waived 
after first obtaining the written consent of the duly authorized 
representative of the Department of the Interior.
    (c) All shaft entrances not permanently sealed shall be so fenced, 
boxed, or covered as to prevent persons or animals from falling into the 
mine when the shaft is not in actual use, and such fencing, boxing, or 
covering shall be maintained in good condition during the life of the 
mining lease.
    (d) All shafts where hoisting is done shall be boxed or fenced on 
three sides and the fourth side equipped with a gate which shall be kept 
closed when access to the shaft is not necessary.
    (e) All churn drill holes shall be securely plugged to the surface 
unless used for ventilation or other mining purposes, in which case they 
shall be cased or otherwise prevented from caving or becoming a hazard 
to persons or animals. If cased, the casing shall extend 4 feet above 
the collar of the hole.



Sec. 215.23  Cooperation between superintendent and district mining 
supervisor.

    (a) The district mining supervisor of the Miami field office, 
Geological Survey, directly or through his assistants, shall receive 
from lessees for the superintendent, all notices, reports, drill logs, 
maps, and records, and all other information relating to mining 
operations required by said regulations to be submitted by lessees, and 
shall maintain a file thereof for the superintendent.
    (b) The files of the Geological Survey supervisor relating to lead 
and zinc leases of Quapaw Indian lands shall be at all times available 
for inspection and use by authorized employees of the Bureau of Indian 
Affairs, and the employees of the Geological Survey assigned to work 
relating to Indian lands shall furnish to authorized employees of the 
Bureau of Indian Affairs such information and technical advice as may be 
necessary or appropriate to the most efficient cooperation in the 
conduct of the work assigned to the two bureaus. Likewise, similar 
facilities and service shall be provided for the benefit of the 
authorized employees of the Geological Survey by the Bureau of Indian 
Affairs.
    (c) No orders of any kind will be issued by Geological Survey 
representatives to any Indian, but such representatives shall have full 
authority

[[Page 692]]

to issue and amend orders to operators relative to production and 
operations: i.e., the supervision of all operations, including safety 
and efficiency, health and sanitation, and prevention of material or 
economic waste, such orders to be prepared with the advice of the local 
representative of the Bureau of Indian Affairs.

    Cross Reference: For regulations of the Geological Survey, see 30 
CFR chapter II.



Sec. 215.23a  Suspension of operations and production on leases for 
minerals other than oil and gas.

    The provisions of Sec. 212.15a of this subchapter are applicable to 
leases under this part.

[24 FR 9511, Nov. 26, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 215.24  Books and accounts.

    (a) The lessee shall maintain books in which shall be kept a correct 
account of all ore and rock mined on the tract, of all ore put through 
the mill, of all lead and zinc concentrates produced, and of all ore and 
concentrates sold and to whom sold, the weight, assay value, moisture 
content, base price, dates, penalties, and price received, and the 
percentage of lead and zinc recovered. A correct statement of the same 
for each month shall be furnished the office of the district mining 
supervisor pursuant to Sec. 215.23 not later than 15 days after the 
first of each month for the preceding month, together with a certificate 
from the smelter showing the unit price paid for the mineral purchased 
and the amount of ore and concentrates purchased during the month from 
said land.
    (b) An audit of the lessee's accounts and books shall be made 
semiannually, or at such other times as may be directed by the Secretary 
of the Interior, by certified public accountants, approved by the 
Secretary, and at the expense of the lessee. The lessee shall furnish 
free of cost a copy of such semiannual or other audit, through the 
office of the district mining supervisor pursuant to Sec. 215.23, 
within 30 days after the completion of each auditing.



Sec. 215.25  Other minerals and deep-lying lead and zinc minerals.

    Except as provided in Sec. 215.6(b), leases on Quapaw Indian lands, 
for mining minerals other than lead and zinc and for lead and zinc and 
associated minerals below the horizon of the rock stratum known as the 
Reed Springs Formation, shall be made pursuant to the provisions of part 
212 of this subchapter.

[26 FR 1910, Mar. 4, 1961. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 216_SURFACE EXPLORATION, MINING, AND RECLAMATION OF LANDS--Table 
of Contents




                      Subpart A_General Provisions

Sec.
216.1 Purpose.
216.2 Scope.
216.3 Definitions.
216.4 Technical examination of prospective surface exploration and 
          mining operations.
216.5 Basis for denial of a permit or lease.
216.6 Approval of exploration plan.
216.7 Approval of mining plan.
216.8 Performance bond.
216.9 Reports.
216.10 Inspection: Notice of noncompliance: Revocation.
216.11 Appeals.
216.12 Consultation.

    Authority: 34 Stat. 539, 35 Stat. 312; 25 U.S.C. 355 NT; 35 Stat 
781; 25 U.S.C. 396; sec. 1, 49 Stat. 1250; 25 U.S.C. 473a; 49 Stat. 
1967, 25 U.S.C. 501, 502; 52 Stat. 347, 25 U.S.C. 396a-f; 5 U.S.C. 301.



                      Subpart A_General Provisions

    Source: 34 FR 813, Jan. 18, 1969, unless otherwise noted. 
Redesignated at 42 FR 63394, Dec. 16, 1977; and further redesignated at 
47 FR 13327, Mar. 30, 1982.



Sec. 216.1  Purpose.

    It is the policy of this Department to encourage the development of 
the mineral resources underlying Indian lands where mining is 
authorized. However, interest of the Indian owners and the public at 
large requires that, with respect to the exploration for, and the

[[Page 693]]

surface mining of, such minerals, adequate measures be taken to avoid, 
minimize, or correct damage to the environment--land, water, and air--
and to avoid, minimize, or correct hazards to the public health and 
safety. The regulations in this part prescribe procedures to that end.



Sec. 216.2  Scope.

    (a) Except as provided in paragraph (b) of this section, the 
regulations in this part provide for the protection and conservation of 
nonmineral resources during operations for the discovery, development, 
surface mining, and onsite processing of minerals under permits or 
leases issued pursuant to statutes pertaining to Indian lands including 
but not limited to the following statutes or amendments thereto:

The Act of June 28, 1906 (34 Stat. 539);
    The Act of May 27, 1908 (35 Stat. 312);
    The Act of March 3, 1909 (35 Stat. 781, 25 U.S.C. 396);
    The Act of May 1, 1936 (49 Stat. 1250);
    The Act of June 26, 1936 (49 Stat. 1967);
    The Act of May 11, 1939 (52 Stat. 347, 25 U.S.C. 396a-f, and 5 
U.S.C. 301).
    (b) The regulations in this part do not cover the exploration for 
oil and gas or the issuance of leases, or operations thereunder, nor 
minerals underlying lands, the surface of which is not owned by the 
owner of the minerals.
    (c) The regulations in this part shall apply only to permits or 
leases issued subsequent to the date on which these regulations become 
effective and which are subject to the approval of the Secretary of the 
Interior or his designated representative.



Sec. 216.3  Definitions.

    As used in the regulations in the part:
    (a) Superintendent means the superintendent or other officer of the 
Bureau of Indian Affairs having jurisdiction under delegated authority, 
over the lands involved.
    (b) Mining supervisor means the Regional Mining Supervisor, or his 
authorized representative, of the Geological Survey authorized as 
provided in 30 CFR 211.3 and 231.2 to supervise operations on the land 
covered by a permit or lease.
    (c) Overburden means all the earth and other materials which lie 
above a natural deposit of minerals and such earth and other materials 
after removal from their natural state in the process of mining.
    (d) Area of land to be affected or area of land affected means the 
area of land from which overburden is to be or has been removed and upon 
which the overburden or waste is to be or has been deposited, and 
includes all lands affected by the construction of new roads or the 
improvement or use of existing roads to gain access to an operation and 
for haulage.
    (e) Operation means all of the premises, facilities, roads, and 
equipment used in the process of determining the location, composition 
or quality of a mineral deposit, or in developing, extracting, or onsite 
processing of a mineral deposit in a designated area.
    (f) Method of operation means the method or manner by which a cut or 
open pit is made, the overburden is placed or handled, water is 
controlled or affected and other acts performed by the operator in the 
process of exploring or uncovering and removing or onsite processing of 
a mineral deposit.
    (g) Holder or operator means the permittee or lessee designated in a 
permit or lease.
    (h) Reclamation means measures undertaken to bring about the 
necessary reconditioning or restoration of land or water that has been 
affected by exploration or mineral development, mining or onsite 
processing operations, and waste disposal, in ways which will prevent or 
control onsite and offsite damage to the environment.



Sec. 216.4  Technical examination of prospective surface exploration 
and mining operations.

    (a)(1) In connection with an application for a permit or lease, the 
superintendent shall make, or cause to be made, a technical examination 
of the prospective effects of the proposed exploration or surface mining 
operations upon the environment. The technical examination shall take 
into consideration the need for the preservation and protection of other 
resources, including cultural, recreational, scenic, historic, and 
ecological values; and control of

[[Page 694]]

erosion, flooding, and pollution of water; the isolation of toxic 
materials; the prevention of air pollution; the reclamation by 
revegetation, replacement of soil or by other means, of lands affected 
by the exploration or mining operations; the prevention of slides; the 
protection of fish and wildlife and their habitat; and the prevention of 
hazards to public health and safety.
    (2) A technical examination of an area should be made with the 
recognition that actual potential mining sites and mining operations 
vary widely with respect to topography, climate, surrounding land uses, 
proximity to densely used areas, and other environmental influences and 
that mining and reclamation requirements should provide sufficient 
flexibility to permit adjustment to local conditions.
    (b) Based upon the technical examination, the superintendent shall 
formulate the general requirements which the applicant must meet for the 
protection of nonmineral resources during the conduct of exploration or 
mining operations and for the reclamation of lands or waters affected by 
exploration or mining operations. The general requirements shall be made 
known in writing to the applicant before the issuance of a permit or 
lease and upon acceptance thereof by the applicant, shall be 
incorporated in the permit or lease.
    (c) In each instance in which an application is made the mining 
supervisor shall participate in the technical examination and in the 
formulation of the general requirements.
    (d) The superintendent may prohibit or otherwise restrict operations 
on any part of an area whenever it is determined that such part of the 
area described in an application for a permit or lease is such that 
previous experience under similar conditions has shown that operations 
cannot feasibly be conducted by any known methods or measures to avoid--
    (1) Rock or landslides which would be a hazard to human lives or 
endanger or destroy private or public property; or
    (2) Substantial deposition of sediment and silt into streams, lakes, 
reservoirs; or
    (3) A lowering of water quality below standards established by the 
appropriate State water pollution control agency, or by the Secretary of 
the Interior, or his authorized representative; or
    (4) A lowering of the quality of waters whose quality exceeds that 
required by the established standards--unless and until it has been 
affirmatively demonstrated to the Secretary of the Interior, or his 
authorized representative, that such lowering of quality is necessary to 
economic and social development and will not preclude any assigned uses 
made of such waters; or
    (5) The destruction of key wildlife habitat or important scenic, 
historical, or other natural or cultural features.
    (e) If, on the basis of a technical examination, the superintendent 
determines that there is a likelihood that there will be a lowering of 
water quality as described in paragraphs (d) (3) and (4) of this section 
caused by the operation, no lease or permit shall be issued until after 
consultation with the Federal Water Pollution Control Administration and 
a finding by the Administration that the proposed operation would not be 
in violation of the Federal Water Pollution Control Act, as amended (33 
U.S.C. 466 et seq.), or of Executive Order No. 11288 (31 FR 9261). Where 
a permit or lease is involved the Superintendent's determination shall 
be made in consultation with the mining supervisor.



Sec. 216.5  Basis for denial of a permit or lease.

    An application for a permit or lease to conduct exploratory or 
mining operations may be denied any applicant who has forfeited a 
required bond because of failure to comply with a mining plan. However, 
a permit or lease may not be denied an applicant because of the 
forfeiture of a bond if the lands disturbed under his previous permit or 
lease have subsequently been reclaimed without cost to the lessor or the 
United States.



Sec. 216.6  Approval of exploration plan.

    (a) Before commencing any surface disturbing operations to explore, 
test or prospect for minerals, the operator shall file with the mining 
supervisor a plan for the proposed exploration operations. The mining 
supervisor shall

[[Page 695]]

consult with the superintendent with respect to the surface protection 
and reclamation aspects before approving said plan.
    (b) Depending upon the size and nature of the operation and the 
requirements established pursuant to Sec. 216.4 the mining supervisor 
may require that the exploration plan submitted by the operator include 
any or all of the following:
    (1) A description of the area within which exploration is to be 
conducted;
    (2) Two copies of a suitable map or aerial photograph showing 
topographic, cultural and drainage features;
    (3) A statement of proposed exploration methods; i.e., drilling, 
trenching, etc., and the location of primary support roads and 
facilities;
    (4) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife or other natural resources, and hazards to public 
health and safety both during and upon abandonment of exploration 
activities.
    (c) The mining supervisor shall promptly review the exploration plan 
submitted to him by the operator and shall indicate to the operator any 
changes, additions, or amendments necessary to meet the requirements 
formulated pursuant to Sec. 216.4, the provisions of these regulations, 
and the terms of the permit.
    (d) The operator shall comply with the provisions of an approved 
exploration plan. The mining supervisor may, with respect to such a 
plan, exercise the authority provided by paragraphs (f) and (g) of Sec. 
216.7 respecting a mining plan.



Sec. 216.7  Approval of mining plan.

    (a) Before surface mining operations may commence under any permit 
or lease, the operator must file a mining plan with the mining 
supervisor and obtain his approval of the plan. The mining supervisor 
shall consult with the superintendent with respect to the surface 
protection and reclamation aspects before approving said plan.
    (b) Depending on the size and nature of the operation and the 
requirements established pursuant to Sec. 216.4 the mining supervisor 
may require that the mining plan submitted by the operator include any 
or all of the following:
    (1) A description of the location and area to be affected by the 
operations;
    (2) Two copies of a suitable map, or aerial photograph showing the 
topography, the area covered by the permit or lease, the name and 
location of major topographic and cultural features, and the drainage 
plan away from the area affected;
    (3) A statement of proposed methods of operating, including a 
description of proposed roads or vehicular trails; the size and location 
of structures and facilities to be built;
    (4) An estimate of the quantity of water to be used and pollutants 
that are expected to enter any receiving waters;
    (5) A design for the necessary impoundment, treatment or control of 
all runoff water and drainage from workings so as to reduce soil erosion 
and sedimentation and to prevent the pollution of receiving waters;
    (6) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife, and hazards to public health and safety; and
    (7) A statement of the proposed manner and time of performance of 
work to reclaim areas disturbed by the holder's operation.
    (c) In those instances in which the permit or lease requires the 
revegetation of an area of land to be affected, the mining plan shall 
show:
    (1) Proposed methods of preparation and fertilizing the soil prior 
to replanting;
    (2) Types and mixtures of shrubs, trees, or tree seedlings, grasses 
or legumes to be planted; and
    (3) Types and methods of planting, including the amount of grasses 
or legumes per acre, or the number and spacing of trees, or tree 
seedlings, or combinations of grasses and trees.
    (d) In those instances in which the permit or lease requires 
regrading and backfilling, the mining plan shall show the proposed 
methods and the timing of grading and backfilling of areas of land to be 
affected by the operation.

[[Page 696]]

    (e) The mining supervisor shall review the mining plan submitted to 
him by the operator and shall promptly indicate to the operator any 
changes, additions, or amendments necessary to meet the requirements 
formulated pursuant to Sec. 216.4, the provisions of these regulations 
and the terms of the permit or lease. The operator shall comply with the 
provisions of an approved mining plan.
    (f) A mining plan may be changed by mutual consent of the mining 
supervisor and the operator at any time to adjust to changed conditions 
or to correct any oversight. To obtain approval of a change or 
supplemental plan, the operator shall submit a written statement of the 
proposed changes or supplement and the justification for the changes 
proposed. The mining supervisor shall promptly notify the operator that 
he consents to the proposed changes or supplement, or in the event he 
does not consent, he shall specify the modifications thereto under which 
the proposed changes or supplement would be acceptable. After mutual 
acceptance of a change of a plan, the operator shall not depart 
therefrom without further approval.
    (g) If circumstances warrant or if development of a mining plan for 
the entire operation is dependent upon unknown factors which cannot or 
will not be determined except during the progress of the operations, a 
partial plan may be approved and supplemented from time to time. The 
operator shall not, however, perform any operation except under an 
approved plan.



Sec. 216.8  Performance bond.

    (a) Upon approval of an exploration plan or mining plan, the 
operator shall be required to file a suitable performance bond of not 
less than $2,000 with satisfactory surety, payable to the Secretary of 
the Interior, and the bond shall be conditioned upon the faithful 
compliance with applicable regulations, the terms and conditions of the 
permit, lease, or contract, and the exploration or mining plan as 
approved, amended or supplemented. The bond shall be in an amount 
sufficient to satisfy the reclamation requirements established pursuant 
to an approved exploration or mining plan, or an approved partial or 
supplemental plan. In determining the amount of the bond consideration 
shall be given to the character and nature of the reclamation 
requirements and the estimated costs of reclamation in the event that 
the operator forfeits his performance bond. In lieu of a surety bond an 
operator may elect to deposit cash or negotiable bonds of the U.S. 
government. The cash deposit or the market value of such securities 
shall be equal at least to the required sum of the bond.
    (b) In a particular instance where the circumstances are such as to 
warrant an exception, the amount of the bond for a particular operation 
may be reduced to less than the required minimum of $2,000.
    (c) The superintendent shall set the amount of a bond and take the 
necessary action for an increase or for a complete or partial release of 
a bond. He shall take action with respect to bonds for leases or permits 
only after consultation with the mining supervisor.



Sec. 216.9  Reports.

    (a) Within 30 days after the end of each calendar year, or if 
operations cease before the end of a calendar year, within 30 days after 
the cessation of operations, the operator shall submit an operations 
report to the mining supervisor containing the following information:
    (1) An identification of the permit or lease and the location of the 
operation.
    (2) A description of the operations performed during the period of 
time for which the report is filed.
    (3) An identification of the area of land affected by the operations 
and a description of the manner in which the land has been affected.
    (4) A statement as to the number of acres disturbed by the 
operations and the number of acres which were reclaimed during the 
period of time.
    (5) A description of the method utilized for reclamation and the 
results thereof.
    (6) A statement and description of reclamation work remaining to be 
done.
    (b) Upon completion of such grading and backfilling as may be 
required by

[[Page 697]]

an approved exploration or mining plan, the operator shall make a report 
thereon to the mining supervisor and request inspection for approval. 
Whenever it is determined by such inspection that backfilling and 
grading have been carried out in accordance with the established 
requirements and approved exploration or mining plan, the superintendent 
shall issue a release of an appropriate amount of the performance bond 
for the area graded and backfilled. Appropriate amounts of the bond 
shall be retained to assure that satisfactory planting, if required, is 
carried out.
    (c)(1) Whenever planting is required by an approved exploration or 
mining plan, the operator shall file a report with the superintendent 
whenever such planting is completed. The report shall--
    (i) Identify the permit or lease;
    (ii) Show the type of planting or seeding, including mixtures and 
amounts;
    (iii) Show the date of planting or seeding;
    (iv) Identify or describe the areas of the lands which have been 
planted;
    (v) Contain such other information as may be relevant.
    (2) The superintendent, as soon as possible after the completion of 
the first full growing season, shall make an inspection and evaluation 
of the vegetative cover and planting to determine if a satisfactory 
growth has been established.
    (3) If it is determined that a satisfactory vegetative cover has 
been established and is likely to continue to grow, any remaining 
portion of the surety bond may be released if all requirements have been 
met by the operator.
    (d)(1) Not less than 30 days prior to cessation or abandonment of 
operations, the operator shall report to the mining supervisor his 
intention to cease or abandon operations, together with a statement of 
the exact number of acres of land affected by his operations, the extent 
of reclamation accomplished and other relevant information.
    (2) Upon receipt of such report an inspection shall be made to 
determine whether operations have been carried out in accordance with 
the approved exploration or mining plan.



Sec. 216.10  Inspection: Notice of noncompliance: Revocation.

    (a) The mining supervisor and superintendent shall have the right to 
enter upon the lands under a permit or lease, at any reasonable time, 
for the purpose of inspection or investigation to determine whether the 
terms and conditions of the permit or lease and the requirements of the 
exploration or mining plan have been complied with.
    (b) If the mining supervisor determines that an operator has failed 
to comply with the terms and conditions of a permit or lease, or with 
the requirements of an exploration or mining plan, or with the 
provisions of applicable regulations, the superintendent shall serve a 
notice of noncompliance upon the operator by delivery in person to him 
or his agent or by certified or registered mail addressed to the 
operator at his last known address.
    (c) A notice of noncompliance shall specify in what respects the 
operator has failed to comply with the terms and conditions of a permit 
or lease or the requirements of an exploration or mining plan, or the 
provisions of applicable regulations, and shall specify the action which 
must be taken to correct the noncompliance and the time limits within 
which such action must be taken.
    (d) Failure of the operator to take action in accordance with the 
notice of noncompliance shall be grounds for suspension by the mining 
supervisor of operations or for the initiation of action for the 
cancellation of the permit or lease and for forfeiture of the surety 
bond required under Sec. 216.8.



Sec. 216.11  Appeals.

    An applicant, permittee, lessee, or lessor aggrieved by a decision 
or order of a mining supervisor or superintendent may appeal such 
decision or order. An appeal from a decision or order of a 
superintendent shall be made pursuant to 25 CFR part 2. An appeal from a 
decision or order of a mining supervisor shall be made pursuant to 30 
CFR parts 211 and 231.

[[Page 698]]



Sec. 216.12  Consultation.

    A superintendent shall consult with the Indian landowner with 
respect to actions he proposes to take under Sec. Sec. 216.4, 216.6, 
216.7, 216.9, and 216.10.



PART 217_MANAGEMENT OF TRIBAL ASSETS OF UTE INDIAN TRIBE, UINTAH AND 
OURAY RESERVATION, UTAH, BY THE TRIBE AND THE UTE DISTRIBUTION CORP.
--Table of Contents




Sec.
217.1 Definitions.
217.2 Authority and purpose.
217.3 Referral of questions by superintendent.
217.4 Referral of questions by the joint managers.
217.5 Management decisions.
217.6 Method of casting votes.
217.7 Implementation of decision.

    Authority: Secs. 27 and 28 of the Act of August 27, 1954, 68 Stat. 
868 (25 U.S.C. 677-677aa); 5 U.S.C. 301; secs. 463, 465 of the Revised 
Statutes (25 U.S.C. 2 and 9) and 230 DM 1 and 2.

    Source: 43 FR 40458, Sept. 12, 1978, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 217.1  Definitions.

    As used in this part:
    Assets means all unadjudicated or unliquidated claims against the 
United States, all gas, oil, and mineral rights of every kind, and all 
other assets of the Ute Tribe of Uintah and Ouray Reservation as 
constituted on August 27, 1954, not distributed in accordance with the 
terms of the Ute Partition Act.
    Business Committee means the Uintah and Ouray Tribal Business 
Committee, created pursuant to the provisions of the constitution and 
bylaws of the Ute Indian Tribe of the Uintah and Ouray Reservation.
    Board of directors means the board of directors of the Ute 
Distribution Corp., a corporation organized and existing under the laws 
of the State of Utah.
    Joint manager or joint managers means the business committee and the 
board of directors, or either of them, as is appropriate, within the 
context where one of those terms is used.
    Superintendent means the superintendent of the Uintah and Ouray 
Agency, Bureau of Indian Affairs.
    Secretary means the secretary of the Interior or a subordinate 
official acting pursuant to authority delegated by said Secretary.



Sec. 217.2  Authority and purpose.

    In accordance with the Ute Partition Act approved August 27, 1954 
(68 Stat. 868; 25 U.S.C. 677-677aa), as amended by the Act of August 2, 
1956 (70 Stat. 936), and the Act of September 25, 1962 (76 Stat. 597), 
assets shall be managed jointly by the business committee and the board 
of directors. These regulations set out the procedures for exercising 
such joint management.



Sec. 217.3  Referral of questions by superintendent.

    The superintendent shall refer all questions and problems related to 
the management of the assets as they come to his attention, together 
with his analysis of alternative solutions to each question or problem, 
to the business committee and to the board of directors for resolution. 
Such referrals shall be in writing and shall be addressed to the joint 
managers at such addresses as they furnish to the superintendent and to 
each other from time to time.



Sec. 217.4  Referral of questions by the joint managers.

    The business committee and the board of directors must refer to each 
other for resolution any questions or problems related to joint 
management of the assets which they from time to time determine need to 
be resolved together with the submitting party's proposal, if any, for 
solution. Such referrals shall be in writing, addressed to the other 
joint manager at the address furnished in accordance with Sec. 217.3 of 
this part. Copies of all such referrals shall also be furnished to the 
superintendent. Either of the parties may request an analysis of 
alternative solutions of each question or problem referred pursuant to 
this section, and the superintendent will furnish such analysis within 
ten working days, or within such longer period as he may notify the 
parties is required to prepare such analysis.

[[Page 699]]



Sec. 217.5  Management decisions.

    In arriving at management decisions concerning the assets, the 
business committee shall be entitled to cast 72.83814 votes and the 
board of directors shall be entitled to cast 27.16186 votes. Any total 
number of votes cast exceeding 50 shall be sufficient to determine an 
issue submitted to the joint managers for resolution. A majority of 
votes cast will decide an issue.



Sec. 217.6  Method of casting votes.

    Within 30 days after an issue and any analysis provided for in 
Sec. Sec. 217.4 and 217.5 have been submitted to the joint managers for 
resolution, they shall each notify the superintendent in writing of the 
number of votes cast for and against the proposed or alternative 
solutions. If either of the joint managers fails or refuses to cast his 
votes and to notify the superintendent thereof within the time 
specified, the superintendent may conclude that such joint managers' 
votes have been cast against the proposed solution or solutions; or, if 
no solutions have been proposed, for the maintenance of the status quo. 
At the time they notify the superintendent of the votes cast on an 
issue, each joint manager shall furnish to the superintendent a 
certified copy of a resolution of the business committee or the board of 
directors, as the case may be, authorizing such vote.



Sec. 217.7  Implementation of decision.

    The Secretary shall issue such documents as are necessary or 
expendient to implement the decisions of the joint managers, insofar as 
such issuance is authorized by law, and he shall execute and/or approve 
such documents for and on behalf of the joint managers, or either of 
them, and on behalf of the United States, as necessary. If it becomes 
necessary for the Secretary to execute an instrument on behalf of one or 
both of the joint managers and to approve the same instrument as 
trustee, two different officials having delegated authority from the 
Secretary shall serve as executing and approving officers, respectively.



PART 225_OIL AND GAS, GEOTHERMAL, AND SOLID MINERALS AGREEMENTS--Table 
of Contents




                            Subpart A_General

Sec.
225.1 Purpose and scope.
225.2 Information collection.
225.3 Definitions.
225.4 Authority and responsibility of the Bureau of Land Management 
          (BLM).
225.5 Authority and responsibility of the Office of Surface Mining 
          Reclamation and Enforcement (OSMRE).
225.6 Authority and responsibility of the Minerals Management Service 
          (MMS).

                      Subpart B_Minerals Agreements

225.20 Authority to contract.
225.21 Negotiation procedures.
225.22 Approval of minerals agreements.
225.23 Economic assessments.
225.24 Environmental studies.
225.25 Resolution of disputes.
225.26 Auditing and accounting.
225.27 Forms and reports.
225.28 Approval of amendments to minerals agreements.
225.29 Corporate qualifications and requests for information.
225.30 Bonds.
225.31 Manner of payments.
225.32 Permission to start operations.
225.33 Assignment of minerals agreements.
225.34 [Reserved]
225.35 Inspection of premises; books and accounts.
225.36 Minerals agreement cancellation; Bureau of Indian Affairs notice 
          of noncompliance.
225.37 Penalties.
225.38 Appeals.
225.39 Fees.
225.40 Government employees cannot acquire minerals agreements.

    Authority: Indian Mineral Development Act of 1982, 25 U.S.C. 2101-
2108; and 25 U.S.C. 2 and 9.

    Source: 59 FR 14971, Mar. 30, 1994, unless otherwise noted.



                            Subpart A_General



Sec. 225.1  Purpose and scope.

    (a) The regulations in this part, administered by the Bureau of 
Indian Affairs under the direction of the Secretary of the Interior, 
govern minerals agreements for the development of Indian-owned minerals 
entered into pursuant to the Indian Mineral Development Act of 1982, 25 
U.S.C. 2101-2108

[[Page 700]]

(IMDA). These regulations are applicable to the lands or interests in 
lands of any Indian tribe, individual Indian or Alaska native the title 
to which is held in trust by the United States or is subject to a 
restriction against alienation imposed by the United States. These 
regulations are intended to ensure that Indian mineral owners are 
permitted to enter into minerals agreements that will allow the Indian 
mineral owners to have more responsibility in overseeing and greater 
flexibility in disposing of their mineral resources, and to allow 
development in the manner which the Indian mineral owners believe will 
maximize their best economic interest and minimize any adverse 
environmental or cultural impact resulting from such development. 
Pursuant to section 4 of the IMDA (25 U.S.C. 2103(e)), as part of this 
greater flexibility, where the Secretary has approved a minerals 
agreement in compliance with the provisions of 25 U.S.C. chap. 23 and 
any other applicable provision of law, the United States shall not be 
liable for losses sustained by a tribe or individual Indian under such 
minerals agreement. However, as further stated in the IMDA, the 
Secretary continues to have a trust obligation to ensure that the rights 
of a tribe or individual Indian are protected in the event of a 
violation of the terms of any minerals agreement, and to uphold the 
duties of the United States as derived from the trust relationship and 
from any treaties, executive orders, or agreements between the United 
States and any Indian tribe.
    (b) The regulations in this part shall become effective and in full 
force on April 29, 1994, and shall be subject to amendment at any time 
by the Secretary; Provided, that no such regulation that becomes 
effective after the date of approval of any minerals agreement shall 
operate to affect the duration of the minerals agreement, the rate of 
royalty or financial consideration, rental, or acreage unless agreed to 
by all parties to the minerals agreement.
    (c) The regulations of the Bureau of Land Management, the Office of 
Surface Mining Reclamation and Enforcement, and the Minerals Management 
Service that are referenced in Sec. Sec. 225.4, 225.5, and 225.6 are 
supplemental to these regulations, and apply to minerals agreements for 
development of Indian mineral resources unless specifically stated 
otherwise in this part or in other Federal regulations. To the extent 
the parties to a minerals agreement are able to provide reasonable 
provisions satisfactorily addressing the issues of valuation, method of 
payment, accounting, and auditing, governed by the Minerals Management 
Service regulations, the Secretary may approve alternate provisions in a 
minerals agreement.
    (d) Nothing in these regulations is intended to prevent Indian 
tribes from exercising their lawful governmental authority to regulate 
the conduct of persons, businesses, or minerals operations within their 
territorial jurisdiction.



Sec. 225.2  Information collection.

    It has been determined by the Office of Management and Budget that 
the Information Collection Requirements contained in part 225 do not 
require review under the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).



Sec. 225.3  Definitions.

    As used in this part, the following terms have the specified meaning 
except where otherwise indicated.
    Area Director means the Bureau of Indian Affairs Official in charge 
of an Area Office.
    Assistant Secretary--Indian Affairs means the Assistant Secretary--
Indian Affairs of the Department of the Interior, a designee of the 
Secretary of the Interior who may be specifically authorized by the 
Secretary to disapprove minerals agreements (25 U.S.C. 2103(d)) and to 
issue orders of cessation and/or minerals agreement cancellations as 
final orders of the Department.
    Authorized Officer means any employee of the Bureau of Land 
Management authorized by law or by lawful delegation of authority to 
perform the duties described herein and in 43 CFR parts 3160, 3180, 
3260, 3280, 3480 and 3590.
    Director's Representative means the Office of Surface Mining 
Reclamation and Enforcement Director's Representative authorized by law 
or by lawful delegation of authority to perform the

[[Page 701]]

duties described in 30 CFR part 750 and 25 CFR part 216.
    Gas means any fluid, either combustible or noncombustible, that is 
produced in a natural state from the earth and that maintains a gaseous 
or rarefied state at ordinary temperature and pressure conditions.
    Geothermal resources means: (1) All products of geothermal 
processes, including indigenous steam, hot water, and hot brines;
    (2) Steam and other gases, hot water, and hot brines, resulting from 
water, gas, or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any by-product derived therefrom.
    In the best interest of the Indian mineral owner refers to the 
standards to be applied by the Secretary in considering whether to take 
administrative action affecting the interests of an Indian mineral 
owner. In considering whether it is ``in the best interest of the Indian 
mineral owner'' to take a certain action (such as approval of a minerals 
agreement or a unitization or communitization agreement) the Secretary 
shall consider any relevant factor, including, but not limited to: 
economic considerations, such as date of lease or minerals agreement 
expiration; probable financial effects on the Indian mineral owner; need 
for change in the terms of the existing minerals agreement; 
marketability of mineral products; and potential environmental, social 
and cultural effects.
    Indian lands means any lands or interests in lands owned by any 
individual Indian or Alaska Native, Indian tribe, band, nation, pueblo, 
community, rancheria, colony, or other group, the title to which is held 
in trust by the United States or is subject to a restriction against 
alienation imposed by the United States.
    Indian mineral owner means any individual Indian or Alaska Native, 
or Indian tribe, band, nation, pueblo, community, rancheria, colony, or 
other group that owns a mineral interest in oil and gas, geothermal 
resources or solid minerals, title to which is held in trust by the 
United States or is subject to a restriction against alienation imposed 
by the United States.
    Indian surface owner means any individual Indian or Alaska Native, 
or Indian tribe, band, nation, pueblo, community, rancheria, colony, or 
other group that owns the surface estate in land the title to which is 
held in trust by the United States or is subject to a restriction 
against alienation imposed by the United States.
    Indian tribe means any Indian tribe, band, nation, pueblo, 
community, rancheria, colony, or other group that owns land or interests 
in land the title to which is held in trust by the United States or is 
subject to a restriction against alienation imposed by the United 
States.
    Individual Indian means any individual Indian or Alaska Native who 
owns land or interests in land the title to which is held in trust by 
the United States or is subject to a restriction against alienation 
imposed by the United States.
    Minerals includes both metalliferous and non-metalliferous minerals; 
all hydrocarbons, including oil and gas, coal and lignite of all ranks; 
geothermal resources; and includes but is not limited to sand, gravel, 
pumice, cinders, granite, building stone, limestone, clay, silt, or any 
other energy or non-energy mineral.
    Minerals agreement means any joint venture, operating, production 
sharing, service, managerial, lease (other than a lease entered into 
pursuant to the Act of May 11, 1938, or the Act of March 3, 1909), 
contract, or other minerals agreement; or any amendment, supplement or 
other modification of such minerals agreement, providing for the 
exploration for, or extraction, processing, or other development of 
minerals in which an Indian mineral owner owns a beneficial or 
restricted interest, or providing for the sale or other disposition of 
the production or products of such minerals.
    Minerals Management Service official means any employee of the 
Minerals Management Service authorized by law or by lawful delegation of 
authority to perform the duties described in 30 CFR chapter II, 
subchapters A and C.
    Mining means the science, technique, and business of mineral 
development,

[[Page 702]]

including, but not limited to: opencast work, underground work, in-situ 
leaching, or other methods directed to severance and treatment of 
minerals; however, when sand, gravel, pumice, cinders, granite, building 
stone, limestone, clay or silt is the subject mineral, an enterprise is 
considered ``mining'' only if the extraction of such a mineral exceeds 
5,000 cubic yards in any given year.
    Oil means all non-gaseous hydrocarbon substances other than coal, 
oil shale, or gilsonite (including all vein-type solid hydrocarbons). 
Oil includes liquefiable hydrocarbon substances such as drip gasoline 
and other natural condensates recovered or recoverable in a liquid state 
from produced gas without resorting to a manufacturing process.
    Operator means a person, proprietorship, partnership, corporation, 
or other business entity that has entered into an approved minerals 
agreement under the authority of the Indian Mineral Development Act of 
1982, or who has been assigned an obligation to make royalty or other 
payments required by the minerals agreement.
    Secretary means the Secretary of the Interior or an authorized 
representative, except that as used in Sec. 225.22 (e) and (f) the 
authorized representative may only be the Assistant Secretary for Indian 
Affairs (25 U.S.C. 2103(d)).
    Solid minerals means all minerals excluding oil, gas, and geothermal 
resources.
    Superintendent means the Bureau of Indian Affairs official in charge 
of an agency office.



Sec. 225.4  Authority and responsibility of the Bureau of Land 
Management (BLM).

    The functions of the Bureau of Land Management are found in 43 CFR 
part 3160--Onshore Oil and Gas Operations, 43 CFR part 3180--Onshore Oil 
and Gas Unit Agreements: Unproven Areas, 43 CFR part 3260--Geothermal 
Resources Operations, 43 CFR part 3280--Geothermal Resources Unit 
Agreements: Unproven Areas, 43 CFR part 3480--Coal Exploration and 
Mining Operations, and 43 CFR part 3590--Solid Minerals (Other Than 
Coal) Exploration and Mining Operations. These functions include, but 
are not limited to, resource evaluation, approval of drilling permits, 
approval of mining, reclamation, and production plans, mineral 
appraisals, inspection and enforcement, and production verification. 
These regulations, as amended, apply to minerals agreements approved 
under this part.



Sec. 225.5  Authority and responsibility of the Office of Surface 
Mining Reclamation and Enforcement (OSMRE).

    The OSMRE is the regulatory authority for surface coal mining and 
reclamation operations on Indian lands pursuant to the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). The 
relevant regulations for surface mining and reclamation operations are 
found in 30 CFR part 750 and 25 CFR part 216. These regulations, as 
amended, apply to minerals agreements approved under this part.



Sec. 225.6  Authority and responsibility of the Minerals Management 
Service (MMS).

    The functions of the MMS for reporting, accounting, and auditing are 
found in 30 CFR chapter II, subchapters A and C. These regulations, 
unless specifically stated otherwise in this part or in other 
regulations, apply to all minerals agreements approved under this part. 
To the extent the parties to a minerals agreement are able to provide 
reasonable provisions satisfactorily addressing the issues or functions 
governed by the MMS regulations relating to valuation of mineral 
product, method of payment, accounting procedures, and auditing 
procedures, the Secretary may approve alternate provisions in a minerals 
agreement.



                      Subpart B_Minerals Agreements



Sec. 225.20  Authority to contract.

    (a) Any Indian tribe, subject to the approval of the Secretary and 
any limitation or provision contained in its constitution or charter, 
may enter into a minerals agreement with respect to mineral resources in 
which the tribe owns a beneficial or restricted interest.

[[Page 703]]

    (b) Any individual Indian owning a beneficial or restricted interest 
in mineral resources may include those resources in a tribal minerals 
agreement subject to the concurrence of the parties and a finding by the 
Secretary that inclusion of the resources is in the best interest of the 
individual Indian mineral owner.



Sec. 225.21  Negotiation procedures.

    (a) An Indian mineral owner that wishes to enter into a minerals 
agreement may ask the Secretary for advice, assistance, and information 
during the negotiation process. The Secretary shall provide advice, 
assistance, and information to the extent allowed by available 
resources.
    (b) No particular form of minerals agreement is prescribed. In 
preparing the minerals agreement the Indian mineral owner shall, if 
applicable, address provisions including, but not limited to, the 
following:
    (1) A general statement identifying the parties to the minerals 
agreement, the legal description of the lands, including, if applicable, 
rock intervals or thicknesses subject to the minerals agreement, and the 
purposes of the minerals agreement;
    (2) A statement setting forth the duration of the minerals 
agreement;
    (3) A statement providing indemnification to the Indian mineral 
owner(s) and the United States from all claims, liabilities and causes 
of action that may be made by persons not a party to the minerals 
agreement;
    (4) Provisions setting forth the obligations of the contracting 
parties;
    (5) Provisions describing the methods of disposition of production;
    (6) Provisions outlining the method of payment and amount of 
compensation to be paid;
    (7) Provisions establishing accounting and mineral valuation 
procedures;
    (8) Provisions establishing operating and management procedures;
    (9) Provisions establishing any limitations on assignment of 
interests, including any right of first refusal by the Indian mineral 
owner in the event of a proposed assignment;
    (10) Bond requirements;
    (11) Insurance requirements;
    (12) Provisions establishing audit procedures;
    (13) Provisions for resolving disputes;
    (14) A force majeure provision;
    (15) Provisions describing the rights of the parties to terminate or 
suspend the minerals agreement, and the procedures to be followed in the 
event of termination or suspension;
    (16) Provisions describing the nature and schedule of the activities 
to be conducted by the parties;
    (17) Provisions describing the proposed manner and time of 
performance of future abandonment, reclamation and restoration 
activities;
    (18) Provisions for reporting production and sales;
    (19) Provisions for unitizing or communitizing of lands included in 
a minerals agreement for the purpose of promoting conservation and 
efficient utilization of natural resources;
    (20) Provisions for protection of the minerals agreement lands from 
drainage and/or unauthorized taking of mineral resources; and
    (21) Provisions for record keeping.
    (c) In order to avoid delays in obtaining approval, the Indian 
mineral owner is encouraged to confer with the Secretary prior to 
formally executing the minerals agreement, and seek advice as to whether 
the minerals agreement appears to satisfy the requirements of Sec. 
225.22, or whether additions or corrections may be required in order to 
obtain Secretarial approval.
    (d) The executed minerals agreement, together with a copy of a 
tribal resolution authorizing tribal officers to enter into the minerals 
agreement, shall be forwarded by the tribal representative to the 
appropriate Superintendent, or in the absence of a Superintendent to the 
Area Director, for approval.



Sec. 225.22  Approval of minerals agreements.

    (a) A minerals agreement submitted for approval pursuant to Sec. 
225.21(d) shall be approved or disapproved within:
    (1) One hundred and eighty (180) days after submission, or
    (2) Sixty (60) days after compliance, if required, with section 
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)) or any other

[[Page 704]]

requirement of Federal law, whichever is later.
    (b) At least thirty (30) days prior to approval or disapproval of 
any minerals agreement, the affected Indian mineral owners shall be 
provided with written findings forming the basis of the Secretary's 
intent to approve or disapprove the minerals agreement.
    (1) The written findings shall include an environmental study which 
meets the requirements of Sec. 225.24 and an economic assessment, as 
described in Sec. 225.23.
    (2) The Secretary shall include in the written findings any 
recommendations for changes to the minerals agreement needed to qualify 
it for approval.
    (3) The 30-day period shall commence to run as of the date the 
written findings are received by the Indian mineral owner.
    (4) Notwithstanding any other law, such findings and all 
projections, studies, data or other information (other than the 
environmental study required by Sec. 225.24) possessed by the 
Department of the Interior regarding the terms and conditions of the 
minerals agreement; the financial return to the Indian parties thereto; 
the extent, nature, value or disposition of the mineral resources; or 
the production, products or proceeds thereof, shall be held by the 
Department of the Interior as privileged and proprietary information of 
the affected Indian mineral owners. The letter containing the written 
findings should be headed with: PRIVILEGED PROPRIETARY INFORMATION OF 
THE (names of Indian mineral owners).
    (c) A minerals agreement shall be approved if, at the Secretary's 
discretion, it is determined that the following conditions are met:
    (1) The minerals agreement is in the best interest of the Indian 
mineral owner;
    (2) The minerals agreement does not have adverse cultural, social, 
or environmental impacts sufficient to outweigh its expected benefits to 
the Indian mineral owners; and,
    (3) The minerals agreement complies with the requirements of this 
part and all other applicable regulations and the provisions of 
applicable Federal law.
    (d) The determinations required by paragraph (c) of this section 
shall be based on the written findings required by paragraph (b) and 
paragraphs (b)(1) through (b)(4), inclusive, of this section. The 
question of ``best interest'' within the meaning of paragraph (c)(1) of 
this section shall be determined by the Secretary based on information 
obtained from the parties, and any other information considered relevant 
by the Secretary, including, but not limited to, a review of comparable 
contemporary contractual arrangements or offers for the development of 
similar mineral resources received by Indian mineral owners, by non-
Indian mineral owners, or by the Federal Government, insofar as that 
information is readily available.
    (e) If a Superintendent or Area Director believes that a minerals 
agreement should not be approved, a written statement of the reasons why 
the minerals agreement should not be approved shall be prepared and 
forwarded, together with the minerals agreement, the written findings 
required by paragraph (b) and subparagraphs (b)(1) through (b)(4), 
inclusive, of this section, and all other pertinent documents, to the 
Secretary for a decision with a copy to the affected Indian mineral 
owner.
    (f) The Secretary shall review any minerals agreement referred with 
a recommendation that it be disapproved, and the Secretary's decision to 
disapprove a minerals agreement shall be deemed a final Federal agency 
action (25 U.S.C. 2103(d)).



Sec. 225.23  Economic assessments.

    The Secretary shall prepare or cause to be prepared an economic 
assessment that shall address, among other things:
    (a) Whether there are assurances in the minerals agreement that 
operations shall be conducted with appropriate diligence;
    (b) Whether the production royalties or other form of return on 
mineral resources is adequate; and
    (c) Whether the minerals agreement is likely to provide the Indian 
mineral owner with a return on the production comparable to what the 
owner might otherwise obtain through competitive

[[Page 705]]

bidding, when such a comparison can reasonably be made.



Sec. 225.24  Environmental studies.

    (a) The Secretary shall ensure that all environmental studies are 
prepared as required by the National Environmental Policy Act of 1969 
(NEPA) and the regulations promulgated by the Council on Environmental 
Quality (CEQ) found at 40 CFR parts 1500-1508.
    (b) The Secretary shall ensure that all necessary surveys are 
performed and clearances obtained in accordance with 36 CFR parts 60, 
63, and 800 and with the requirements of the Archaeological and Historic 
Preservation Act (16 U.S.C. 469 et seq.), the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), the American Indian Religious 
Freedom Act (42 U.S.C. 1996), and Executive Order 11593 (3 CFR 1971-1975 
Comp., p. 559, May 13, 1971). If these surveys indicate that a mineral 
development will have an adverse effect on a property listed on or 
eligible for listing on the National Register of Historic Places, the 
Secretary shall:
    (1) Seek the comments of the Advisory Council on Historic 
Preservation, in accordance with 36 CFR part 800;
    (2) Ensure that the property is avoided, that the adverse effect is 
mitigated, or that appropriate excavations or other related research is 
conducted; and
    (3) Ensure that complete data describing the historic property is 
preserved.



Sec. 225.25  Resolution of disputes.

    A minerals agreement shall contain provisions for resolving disputes 
that may arise between the parties. However, no such provision shall 
limit the Secretary's authority or ability to ensure that the rights of 
an Indian mineral owner are protected in the event of a violation of the 
provisions of the minerals agreement by any other party to the minerals 
agreement.



Sec. 225.26  Auditing and accounting.

    The Secretary may conduct audits relating to the scope, nature and 
extent of compliance with the minerals agreement and with applicable 
regulations and orders to lessees, operators, revenue payors, and other 
persons with rental, royalty, net profit share and other payment 
requirements arising from the provisions of a minerals agreement. 
Procedures and standards used for accounting and auditing of minerals 
agreements will be in accordance with audit standards established by the 
Comptroller General of the United States, in ``Standards for Auditing of 
Governmental Organizations, Programs, Activities, and Functions, 1981,'' 
and standards established by the American Institute of Certified Public 
Accountants.



Sec. 225.27  Forms and reports.

    Any forms required to be filed pursuant to a minerals agreement may 
be obtained from the Superintendent or Area Director. Prescribed forms 
for filing geothermal production reports required by the BLM (43 CFR 
part 3260, Sec. Sec. 3264.1, 3264.2-4 and 3264.2-5) may be obtained 
from the Superintendent, Area Director, or the Authorized Officer. 
Applicable reports required by the MMS shall be filed using the forms 
prescribed in 30 CFR part 210, which are available from MMS. Guidance on 
how to prepare and submit required information, collection reports, and 
forms to MMS is available from: Minerals Management Service, Attention: 
Lessee (or Reporter) Contact Branch, P.O. Box 5760, Denver, Colorado 
80217. Additional reporting requirements may be required by the 
Secretary.



Sec. 225.28  Approval of amendments to minerals agreements.

    An amendment, modification or supplement to a minerals agreement 
entered into pursuant to the regulations in this part, whether the 
minerals agreement was approved before or after the effective date of 
these regulations, must be approved in writing by all parties before 
being submitted to the Secretary for approval. The provisions of Sec. 
225.22 apply to approvals of amendments, modifications, or supplements 
to minerals agreements entered into under the regulations in this part. 
However, amendments, modifications, or supplements that do not 
substantially alter or affect the factors listed

[[Page 706]]

in Sec. 225.22(c), may be approved by referencing materials previously 
submitted for the initial review and approval of the minerals agreement. 
The Secretary may approve an amendment, modification, or supplement if 
it is determined that the underlying minerals agreement, as amended, 
modified, or supplemented meets the criteria for approval set forth in 
Sec. 225.22(c).



Sec. 225.29  Corporate qualifications and requests for information.

    (a) The signing in a representative capacity of minerals agreements 
or assignments, bonds, or other instruments required by a minerals 
agreement or these regulations, constitutes certification that the 
individual signing (except a surety agent) is authorized to act in such 
a capacity. An agent for a surety shall furnish a power of attorney.
    (b) A prospective corporate operator proposing to acquire an 
interest in a minerals agreement shall have on file with the 
Superintendent a statement showing:
    (1) The State(s) in which the corporation is incorporated, and a 
notarized statement that the corporation is authorized to hold such 
interests in the State where the land described in the minerals 
agreement is situated; and
    (2) A notarized statement that it has power to conduct all business 
and operations as described in the minerals agreement.
    (c) The Secretary may, either before or after the approval of a 
minerals agreement, assignment, or bond, call for any reasonable 
additional information necessary to carry out the regulations in this 
part, or other applicable laws and regulations.



Sec. 225.30  Bonds.

    (a) Bonds required by provisions of a minerals agreement should be 
in an amount sufficient to ensure compliance with all of the 
requirements of the minerals agreement and the statutes and regulations 
applicable to the minerals agreement. Surety bonds shall be issued by a 
qualified company approved by the Department of the Treasury (see 
Department of the Treasury Circular No. 570).
    (b) An operator may file a $75,000 bond for all geothermal, mining, 
or oil and gas minerals agreements in any one State, which may also 
include areas on that part of an Indian reservation extending into any 
contiguous State. Statewide bonds shall be filed for approval with the 
Secretary.
    (c) An operator may file a $150,000 bond for full nationwide 
coverage to cover all geothermal or oil and gas minerals agreements 
without geographic or acreage limitation to which the operator is or may 
become a party. Nationwide bonds shall be filed for approval with the 
Secretary.
    (d) Personal bonds shall be accompanied by:
    (1) Certificate of deposit issued by a financial institution, the 
deposits of which are Federally insured, explicitly granting the 
Secretary full authority to demand immediate payment in case of default 
in the performance of the provisions and conditions of the minerals 
agreement. The certificate shall explicitly indicate on its face that 
Secretarial approval is required prior to redemption of the certificate 
of deposit by any party;
    (2) Cashier's check;
    (3) Certified check;
    (4) Negotiable Treasury securities of the United States of a value 
equal to the amount specified in the bond. Negotiable Treasury 
securities shall be accompanied by a proper conveyance to the Secretary 
of full authority to sell such securities in case of default in the 
performance of the provisions and conditions of a minerals agreement; or
    (5) Letter of credit issued by a financial institution authorized to 
do business in the United States and whose deposits are Federally 
insured, and identifying the Secretary as sole payee with full authority 
to demand immediate payment in the case of default in the performance of 
the provisions and conditions of a minerals agreement.
    (i) The letter of credit shall be irrevocable during its term.
    (ii) The letter of credit shall be payable to the Bureau of Indian 
Affairs on demand, in part or in full, upon receipt from the Secretary 
of a notice of attachment stating the basis thereof (e.g., default in 
compliance with the minerals agreement provisions and

[[Page 707]]

conditions or failure to file a replacement in accordance with 
subparagraph (d)(5)(v) of this section).
    (iii) The initial expiration date of the letter of credit shall be 
at least one (1) year following the date it is filed in the proper 
Bureau of Indian Affairs office.
    (iv) The letter of credit shall contain a provision for automatic 
renewal for periods of not less than one (1) year in the absence of 
notice to the proper Bureau of Indian Affairs office at least ninety 
(90) days prior to the originally stated or any extended expiration 
date.
    (v) A letter of credit used as security for any minerals agreement 
upon which operations have taken place and final approval for 
abandonment has not been given, or as security for a statewide or 
nationwide bond, shall be forfeited and shall be collected by the 
Secretary if not replaced by other suitable bond or letter of credit at 
least thirty (30) days before its expiration date.
    (e) The required amount of a bond may be increased in any particular 
case at the discretion of the Secretary.

[59 FR 14971, Mar. 30, 1994; 60 FR 10474, Feb. 24, 1995]



Sec. 225.31  Manner of payments.

    Unless specified otherwise in the minerals agreement, after 
production has been established, all payments due for royalties, 
bonuses, rentals and other payments under a minerals agreement shall be 
made to the Secretary or such other party as may be designated, and 
shall be made at such time as provided in 30 CFR chapter II, subchapters 
A and C. Prior to production, all bonus and rental payments, shall be 
made to the Superintendent or Area Director.



Sec. 225.32  Permission to start operations.

    (a) No exploration, drilling, or mining operations are permitted on 
any Indian lands before the Secretary has granted written approval of 
the minerals agreement pursuant to the regulations. After a minerals 
agreement is approved, written permission to start operations must be 
secured by applying for the permits referred to in paragraph (b) of this 
section.
    (b) Applicable permits in accordance with rules and regulations in 
30 CFR part 750, 43 CFR parts 3160, 3260, 3480, 3590, and Orders or 
Notices to Lessees (NTL) issued thereunder shall be required before 
actual operations are conducted on the minerals agreement acreage.



Sec. 225.33  Assignment of minerals agreements.

    An assignment of a minerals agreement, or any interest therein, 
shall not be valid without the approval of the Secretary and, if 
required in the minerals agreement, the Indian mineral owner. The 
assignee must be qualified to hold the minerals agreement and shall 
furnish a satisfactory bond conditioned on the faithful performance of 
the covenants and conditions thereof as stipulated in the minerals 
agreement. A fully executed copy of the assignment shall be filed with 
the Secretary within five (5) working days after execution by all 
parties. The Secretary may permit the release of any bonds executed by 
the assignor upon submission of satisfactory bonds to the Bureau of 
Indian Affairs by the assignee, and a determination that the assignor 
has satisfied all accrued obligations.



Sec. 225.34  [Reserved]



Sec. 225.35  Inspection of premises; books and accounts.

    (a) Operators shall allow Indian mineral owners, their authorized 
representatives, or any authorized representatives of the Secretary to 
enter all parts of the minerals agreement area for the purpose of 
inspection. Operators shall keep a full and correct account of all 
operations and submit all related reports required by the minerals 
agreement and applicable regulations. Books and records shall be 
available for inspection during regular business hours.
    (b) Operators shall provide records to the Minerals Management 
Service (MMS) in accordance with MMS regulations and guidelines. All 
records pertaining to a minerals agreement shall be maintained by an 
operator in accordance with 30 CFR part 212.

[[Page 708]]

    (c) Operators shall provide records to the Authorized Officer in 
accordance with BLM regulations and guidelines.
    (d) Operators shall provide records to the Director's Representative 
in accordance with OSMRE regulations and guidelines.



Sec. 225.36  Minerals agreement cancellation; Bureau of Indian Affairs 
notice of noncompliance.

    (a) If the Secretary determines that an operator has failed to 
comply with the regulations in this part; other applicable laws or 
regulations; the terms of the minerals agreement; the requirements of an 
approved exploration, drilling or mining plan; Secretarial orders; or 
the orders of the Authorized Officer, the Director's Representative, or 
the MMS Official, the Secretary may:
    (1) Serve a notice of noncompliance; or
    (2) Serve a notice of proposed cancellation.
    (b) The notice of noncompliance shall specify in what respect the 
operator has failed to comply with the requirements referenced in 
paragraph (a), and shall specify what actions, if any, must be taken to 
correct the noncompliance.
    (c) The notice of proposed cancellation shall set forth the reasons 
why cancellation is proposed.
    (d) The notice of proposed cancellation or noncompliance shall be 
served upon the operator by delivery in person or by certified mail to 
the operator at the operator's last known address. When certified mail 
is used, the date of service shall be deemed to be when received or five 
(5) working days after the date it is mailed, whichever is earlier.
    (e) The operator shall have thirty (30) days (or such longer time as 
specified in the notice) from the date that the Bureau of Indian Affairs 
notice of proposed cancellation or noncompliance is served to respond, 
in writing, to the Superintendent or Area Director actually issuing the 
notice.
    (f) If an operator fails to take any action that may be prescribed 
in the notice of proposed cancellation, fails to file a timely written 
response to the notice, or files a written response that does not, in 
the discretion of the Secretary, adequately justify the operator's 
failure to comply, then the Secretary may cancel the minerals agreement, 
specifying the basis for the cancellation. Cancellation of a minerals 
agreement shall not relieve the operator of any continuing obligation 
under the minerals agreement.
    (g) If an operator fails to take corrective action or to file a 
timely written response adequately justifying the operator's actions 
pursuant to a notice of noncompliance, the Secretary may issue an order 
of cessation. If the operator fails to comply with the order of 
cessation, or fails to timely file an appeal of the order of cessation 
pursuant to paragraph (k) of this section, the Secretary may issue an 
order of minerals agreement cancellation.
    (h) This section does not limit any other remedies of the Indian 
mineral owner as set forth in the minerals agreement.
    (i) Nothing in this section is intended to limit the authority of 
the Authorized Officer, the Director's Representative, or the MMS 
Official to take any enforcement action authorized pursuant to statute 
or regulation.
    (j) The Authorized Officer, the Director's Representative, the MMS 
Official, and the Superintendent or Area Director should consult with 
one another before taking any enforcement actions.
    (k) If orders of cessation or minerals agreement cancellation issued 
pursuant to this section are issued by a designee of the Secretary other 
than the Assistant Secretary for Indian Affairs, the orders may be 
appealed under 25 CFR part 2. If the orders are issued by the Secretary 
or the Assistant Secretary for Indian Affairs, and not one of their 
delegates or subordinates, the orders are the final orders of the 
Department.



Sec. 225.37  Penalties.

    (a) In addition to or in lieu of cancellation under Sec. 225.36, 
violations of the terms and conditions of any minerals agreement, the 
regulations in this part, other applicable laws or regulations, or 
failure to comply with a notice of noncompliance or a cessation order 
issued by the Secretary may subject an operator to a penalty of not more 
than $1,000 per day for each day

[[Page 709]]

that such a violation or noncompliance continues beyond the time limits 
prescribed for corrective action.
    (b) A notice of a proposed penalty shall be served on the operator 
either personally or by certified mail to the operator at the operator's 
last known address. The date of service by certified mail shall be 
deemed to be the date received or five (5) working days after the date 
mailed, whichever is earlier.
    (c) The notice shall specify the nature of the violation and the 
proposed penalty, and shall specifically advise the operator of the 
operator's right to either request a hearing within thirty (30) days of 
receipt of the notice or pay the proposed penalty. Hearings shall be 
held before the Superintendent or Area Director whose findings shall be 
conclusive, unless an appeal is taken pursuant to 25 CFR part 2. If 
within thirty (30) days of receipt of the notice of proposed penalty the 
operator has not requested a hearing or paid the amount of the proposed 
penalty, a final notice of penalty shall be served.
    (d) If the person served with a notice of proposed penalty requests 
a hearing, penalties shall accrue each day the violations or 
noncompliance set forth in the notice continue beyond the time limits 
presented for corrective action. The Secretary may issue a written 
suspension of the requirement to correct the violations pending 
completion of the hearings provided by this section only upon a 
determination, at the discretion of the Secretary, that such a 
suspension will not be detrimental to the Indian mineral owner and upon 
submission and acceptance of a bond deemed adequate to indemnify the 
Indian mineral owner from loss or damage. The amount of the bond must be 
sufficient to cover the cost of correcting the violations set forth in 
the notice or any disputed amounts plus accrued penalties and interest.
    (e) Payment of penalties in full more than ten (10) days after a 
final decision imposing a penalty shall subject the operator to late 
payment charges. Late payment charges shall be calculated on the basis 
of a percentage assessment rate of the amount unpaid per month for each 
month or fraction thereof until payment is received by the Secretary. In 
the absence of a specific minerals agreement provision prescribing a 
different rate, the interest rate on late payments and underpayments 
shall be a rate applicable under section 6621(a)(2) of the Internal 
Revenue Code of 1954. Interest shall be charged only on the amount of 
payment not received and only for the number of days the payment is 
late.
    (f) None of the provisions of this section shall be interpreted as:
    (1) Replacing or superseding the independent authority of the 
Authorized Officer, the Director's Representative, or the MMS Official 
to impose penalties under applicable statutory or regulatory 
authorities;
    (2) Replacing, superseding, or replicating any penalty provision in 
the terms and conditions of a minerals agreement approved by the 
Secretary pursuant to this part; or
    (3) Authorizing the imposition of a penalty for violations of 
minerals agreement provisions for which the Authorized Officer, 
Director's Representative, or MMS Official has either statutory or 
regulatory authority to assess a penalty.



Sec. 225.38  Appeals.

    Appeals from decisions of Officials of the Bureau of Indian Affairs 
under this part may be taken pursuant to 25 CFR part 2.



Sec. 225.39  Fees.

    (a) Unless otherwise authorized by the Secretary, each minerals 
agreement or assignment thereof, shall be accompanied by a filing fee of 
$75.00 at the time of filing.
    (b) An Indian mineral owner shall not be required to pay a filing 
fee if the Indian mineral owner, pursuant to a provision in the existing 
minerals agreement, acquires an additional interest in that minerals 
agreement.



Sec. 225.40  Government employees cannot acquire minerals agreements.

    U.S. Government employees are prevented from acquiring any 
interest(s) in minerals agreements by the provisions of 25 CFR part 140 
and 43 CFR part 20 pertaining to conflicts of interest and ownership of 
an interest in trust land.

[[Page 710]]



PART 226_LEASING OF OSAGE RESERVATION LANDS FOR OIL AND GAS MINING
--Table of Contents




Sec.
226.1 Definitions.

                  Leasing Procedure, Rental and Royalty

226.2 Sale of leases.
226.3 Surrender of lease.
226.4 Form of payment.
226.5 Leases subject to current regulations.
226.6 Bonds.
226.7 Provisions of forms made a part of the regulations.
226.8 Corporation and corporate information.
226.9 Rental and drilling obligations.
226.10 Term of lease.
226.11 Royalty payments.
226.12 Government reserves right to purchase oil.
226.13 Time of royalty payments and reports.
226.14 Contracts and division orders.
226.15 Unit leases, assignments and related instruments.

                               Operations

226.16 Commencement of operations.
226.17 How to acquire permission to begin operations on a restricted 
          homestead allotment.
226.18 Information to be given surface owners prior to commencement of 
          drilling operations.
226.19 Use of surface of land.
226.20 Settlement of damages claimed.
226.21 Procedure for settlement of damages claimed.
226.22 Prohibition of pollution.
226.23 Easements for wells off leased premises.
226.24 Lessee's use of water.
226.25 Gas well drilled by oil lessees and vice versa.
226.26 Determining cost of well.
226.27 Gas for operating purposes and tribal use.

                         Cessation of Operations

226.28 Shutdown, abandonment, and plugging of wells.
226.29 Disposition of casings and other improvements.

                         Requirements of Lessees

226.30 Lessees subject to Superintendent's orders; books and records 
          open to inspection.
226.31 Lessee's process agents.
226.32 Well records and reports.
226.33 Line drilling.
226.34 Wells and tank batteries to be marked.
226.35 Formations to be protected.
226.36 Control devices.
226.37 Waste of oil and gas.
226.38 Measuring and storing oil.
226.39 Measurement of gas.
226.40 Use of gas for lifting oil.
226.41 Accidents to be reported.

                                Penalties

226.42 Penalty for violation of lease terms.
226.43 Penalties for violation of certain operating regulations.

                           Appeals and Notices

226.44 Appeals.
226.45 Notices.
226.46 Information collection.

    Authority: Sec. 3, 34 Stat. 543; secs. 1, 2, 45 Stat. 1478; sec. 3, 
52 Stat. 1034, 1035; sec. 2(a), 92 Stat. 1660.

    Source: 39 FR 22254, June 21, 1974, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 226.1  Definitions.

    As used in this part 226, terms shall have the meanings set forth in 
this section.
    (a) Secretary means the Secretary of the Interior or his authorized 
representative acting under delegated authority.
    (b) Osage Tribal Council means the duly elected governing body of 
the Osage Nation or Tribe of Indians of Oklahoma vested with authority 
to lease or take other actions on oil and gas mining pertaining to the 
Osage Mineral Estate.
    (c) Superintendent means the Superintendent of the Osage Agency, 
Pawhuska, Oklahoma, or his authorized representative acting under 
delegated authority.
    (d) Oil lessee means any person, firm, or corporation to whom an oil 
mining lease is made under the regulations in this part.
    (e) Gas lessee means any person, firm, or corporation to whom a gas 
mining lease is made under the regulations in this part.
    (f) Oil and gas lessee means any person, firm, or corporation to 
whom an oil and gas mining lease is made under the regulations in this 
part.
    (g) Primary term means the basic period of time for which a lease is 
issued during which the lease contract may be kept in force by payment 
of rentals.

[[Page 711]]

    (h) Major purchaser means any one of the minimum number of 
purchasers taking 95 percent of the oil in Osage County, Oklahoma. Any 
oil purchased by a purchaser from itself, its subsidiaries, 
partnerships, associations, or other corporations in which it has a 
financial or management interest shall be excluded from the 
determination of a major purchaser.
    (i) Casinghead gas means gas produced from an oil well as a 
consequence of oil production from the same formation.
    (j) Natural gas means any fluid, either combustible or 
noncombustible, recovered at the surface in the gaseous phase and/or 
hydrocarbons recovered at the surface as liquids which are the result of 
condensation caused by reduction of pressure and temperature of 
hydrocarbons originally existing in a reservoir in the gaseous phase.
    (k) Authorized representative of an oil lessee, gas lessee, or oil 
and gas lessee means any person, group, or groups of persons, 
partnership, association, company, corporation, organization or agent 
employed by or contracted with a lessee or any subcontractor to conduct 
oil and gas operations or provide facilities to market oil and gas.
    (l) Oil well means any well which produces one (1) barrel or more of 
crude petroleum oil for each 15,000 standard cubic feet of natural gas.
    (m) Gas well means any well which:
    (1) Produces natural gas not associated with crude petroleum oil at 
the time of production or
    (2) Produces more than 15,000 standard cubic feet of natural gas to 
each barrel of crude petroleum oil from the same producing formation.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50648, Nov. 17, 1976; 
43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33114, Aug. 14, 1990]

                  Leasing Procedure, Rental and Royalty



Sec. 226.2  Sale of leases.

    (a) Written application, together with any nomination fee, for 
tracts to be offered for lease shall be filed with the Superintendent.
    (b) The Superintendent, with the consent of the Osage Tribal 
Council, shall publish notices for the sale of oil leases, gas leases, 
and oil and gas leases to the highest responsible bidder on specific 
tracts of the unleased Osage Mineral Estate. The Superintendent may 
require any bidder to submit satisfactory evidence of his good faith and 
ability to comply with all provisions of the notice of sale. Successful 
bidders must deposit with the Superintendent on day of sale a check or 
cash in an amount not less than 25 percent of the cash bonus offered as 
a guaranty of good faith. Any and all bids shall be subject to the 
acceptance of the Osage Tribal Council and approval of the 
Superintendent. Within 20 days after notification of being the 
successful bidder, and said bidder must submit to the Superintendent the 
balance of the cash bonus, a $10 filing fee, and the lease in completed 
form. The Superintendent may extend the time for the completion and 
submission of the lease form, but no extension shall be granted for 
remitting the balance of moneys due. If the bidder fails to pay the full 
cash consideration within said period or fails to file the completed 
lease within said period or extention thereof, or if the lease is 
rejected through no fault of the Osage Tribal Council or the 
Superintendent, 25 percent of the cash bonus bid will be forfeited for 
the use and benefits of the Osage Tribe. The Superintendent may reject a 
lease made on an accepted bid, upon evidence satisfactory to him of 
collusion, fraud, or other irregularity in connection with the notice of 
sale. The Superintendent may approve oil leases, gas leases, and oil and 
gas leases made by the Osage Tribal Council in conformity with the 
notice of sale, regulations in this part, bonds, and other instruments 
required.
    (c) Each oil and/or gas lease and activities and installations 
associated therewith subject to these regulations shall be assessed and 
evaluated for its environmental impact prior to its approval by the 
Superintendent.
    (d) Lessee shall accept a lease with the understanding that a 
mineral not covered by his lease may be leased separately.
    (e) No lease, assignment thereof, or interest therein will be 
approved to any employee or employees of the Government and no such 
employee shall be

[[Page 712]]

permitted to acquire any interest in leases covering the Osage Mineral 
Estate by ownership of stock in corporations having leases or in any 
other manner.
    (f) The Osage Tribal Council may utilize the following procedures 
among others, in entering into a mining lease. A contract may be entered 
into through competitive bidding as outlined in Sec. 226.2(b), 
negotiation, or a combination of both. The Osage Tribal Council may also 
request the Superintendent to undertake the preparation, advertisement 
and negotiation. The Superintendent may approve any such contract made 
by the Osage Tribal Council.

[39 FR 22254, June 21, 1974, as amended at 43 FR 8135, Feb. 28, 1978. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.3  Surrender of lease.

    Lessee may, with the approval of the Superintendent and payment of a 
$10 filing fee, surrender all or any portion of any lease, have the 
lease cancelled as to the portion surrendered and be relieved from all 
subsequent obligations and liabilities. If the lease, or portion being 
surrendered, is owned in undivided interests by more than one party, 
then all parties shall join in the application for cancellation: 
Provided, That if this lease has been recorded, Lessee shall execute a 
release and record the same in the proper office. Such surrender shall 
not entitle Lessee to a refund of the unused portion of rental paid in 
lieu of development, nor shall it relieve Lessee and his sureties of any 
obligation and liability incurred prior to such surrender: Provided 
further, That when there is a partial surrender of any lease and the 
acreage to be retained is less than 160 acres or there is a surrender of 
a separate horizon, such surrender shall become effective only with the 
consent of the Osage Tribal Council and approval of the Superintendent.

[43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.4  Form of payment.

    Sums due under a lease contract and/or the regulations in this part 
shall be paid by cash or check made payable to the Bureau of Indian 
Affairs and delivered to the Osage Agency, Pawhuska, Oklahoma 74056. 
Such sums shall be a prior lien on all equipment and unsold oil on the 
leased premises.



Sec. 226.5  Leases subject to current regulations.

    Leases issued pursuant to this part shall be subject to the current 
regulations of the Secretary, all of which are made a part of such 
leases: Provided, That no amendment or change of such regulations made 
after the approval of any lease shall operate to affect the term of the 
lease, rate of royalty, rental, or acreage unless agreed to by both 
parties and approved by the Superintendent.



Sec. 226.6  Bonds.

    Lessees shall furnish with each lease a corporate surety bond 
acceptable to the Superintendent as follows:
    (a) A bond on Form D shall be filed with each lease submitted for 
approval. Such bond shall be in an amount of not less than $5,000 for 
each quarter section or fractional quarter section covered by said 
lease: Provided, however, That one bond in the penal sum or not less 
than $50,000 may be filed on Form G covering all oil, gas and 
combination oil and gas leases not in excess of 10,240 acres to which 
Lessee is or may become a party.
    (b) In lieu of the bonds required under paragraph (a) of this 
section, a bond in the penal sum of $150,000 may be filed on Form 5-5438 
for full nationwide coverage of all leases, without geographic or 
acreage limitation, to which the Lessee is or may become a party.
    (c) A bond on Form H shall be filed in an amount of not less than 
$5,000 covering a lease acquired through assignment where the assignee 
does not have a collective bond on form G or nationwide bond, or the 
corporate surety does not execute its consent to remain bound under the 
original bond given to secure the faithful performance of the terms and 
conditions of the lease.
    (d) The right is specifically reserved to increase the amount of 
bonds prescribed in paragraphs (a) and (c) of this section in any 
particular case when the Superintendent deems it proper. The

[[Page 713]]

nationwide bond may be increased at any time in the discretion of the 
Secretary.

[39 FR 22254, June 21, 1974, as amended at 43 FR 8135, Feb. 28, 1978; 43 
FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as 
amended at 55 FR 33114, Aug. 14, 1990]



Sec. 226.7  Provisions of forms made a part of the regulations.

    Leases, assignments, and supporting instruments shall be in the form 
prescribed by the Secretary, and such forms are hereby made a part of 
the regulations.



Sec. 226.8  Corporation and corporate information.

    (a) If the applicant for a lease is a corporation, it shall file 
evidence of authority of its officers to execute papers; and with its 
first application it shall also file a certified copy of its Articles of 
Incorporation and, if foreign to the State of Oklahoma, evidence showing 
compliance with the corporation laws thereof.
    (b) Whenever deemed advisable the Superintendent may require a 
corporation to file any additional information necessary to carry out 
the purpose and intent of the regulations in this part, and such 
information shall be furnished within a reasonable time.



Sec. 226.9  Rental and drilling obligations.

    (a) Oil leases, gas leases, and combination oil and gas leases. 
Unless Lessee shall complete and place on production a well producing 
and selling oil and/or gas in paying quantities on the land embraced 
within the lease within 12 months from the date of approval of the 
lease, or as otherwise provided in the lease terms, or 12 months from 
the date the Superintendent consents to drilling on any restricted 
homestead selection, the lease shall terminate unless rental at the rate 
of not less than $1 per acre for an oil or gas lease, or not less than 
$2.00 per acre for a combination oil and gas lease, shall be paid before 
the end of the first year of the lease. The lease may also be held for 
the remainder of its primary term without drilling upon payment of the 
specified rental annually in advance, commencing with the second lease 
year. The lease shall terminate as of the due date of the rental unless 
such rental shall be received by the Superintendent, or shall have been 
mailed as indicated by postmark on or before said date. The completion 
of a well producing in paying quantities shall, for so long as such 
production continues, relieve Lessee from any further payment of rental, 
except that should such production cease during the primary term the 
lease may be continued only during the remaining primary term of the 
lease by payment of advance rental which shall commence on the next 
anniversary date of the lease. Rental shall be paid on the basis of a 
full year and no refund will be made of advance rental paid in 
compliance with the regulations in this part: Provided, That the 
Superintendent in his discretion may order further development of any 
leased acreage or separate horizon if, in his opinion, a prudent 
operator would conduct further development. If Lessee refuses to comply, 
the refusal will be considered a violation of the lease terms and said 
lease shall be subject to cancellation as to the acreage or horizon the 
further development of which was ordered: Provided further, That the 
Superintendent may impose restrictions as to time of drilling and rate 
of production from any well or wells when in his judgment, such action 
may be necessary or proper for the protection of the natural resources 
of the leased land and the interests of the Osage Tribe. The 
superintendent may consider, among other things, Federal and Oklahoma 
laws regulating either drilling or production. If a lessee holds both an 
oil lease and a gas lease covering the same acreage, such lessee is 
subject to the provisions of this section as to both the oil lease and 
the gas lease.
    (b) The Superintendent may, with the consent of and under terms 
approved by the Osage Tribal Council, grant an extension of the primary 
term of a lease on which the actual drilling of a well shall have 
commenced within the term thereof or for the purpose of enabling Lessee 
to obtain a market for his oil and/or gas production.

[43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 714]]



Sec. 226.10  Term of lease.

    Leases issued hereunder shall be for a primary term as established 
by the Osage Tribal Council, approved by the Superintendent, and so 
stated in the notice of sale of such leases and so long thereafter as 
the minerals specified are produced in paying quantities.

[43 FR 8136, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.11  Royalty payments.

    (a) Royalty on oil--(1) Royalty rate. Lessee shall pay or cause to 
be paid to the Superintendent, as royalty, the sum of not less than 
16\2/3\ percent of the gross proceeds from sales after deducting the oil 
used by Lessee for development and operation purposes on the lease: 
Provided, That when the quantity of oil taken from all the producing 
wells on any quarter-section or fraction thereof, according to the 
public survey, during any calendar month is sufficient to average one 
hundred or more barrels per active producing well per day the royalty on 
such oil shall be not less than 20 percent. The Osage Tribal Council 
may, upon presentation of justifiable economic evidence by Lessee, agree 
to a revised royalty rate subject to approval by the Superintendent, 
applicable to additional oil produced from a lease or leases by enhanced 
recovery methods, which rate shall not be less than 12\1/2\ percent of 
the gross proceeds from sale of oil produced by enhanced recovery 
processes, other than gas injection, after deducting the oil used by 
Lessee for development and operating purposes on the lease or leases.
    (2) Unless the Osage Tribal Council, with approval of the Secretary, 
shall elect to take the royalty in kind, payment is owing at the time of 
sale or removal of the oil, except where payments are made on division 
orders, and settlement shall be based on the actual selling price, but 
at not less than the highest posted price by a major purchaser (as 
defined in Sec. 226.1(h)) in Osage County, Oklahoma, who purchases 
production from Osage oil leases.
    (3) Royalty in kind. Should Lessor, with approval of the Secretary, 
elect to take the royalty in kind, Lessee shall furnish free storage for 
royalty oil for a period not to exceed 60 days from date of production 
after notice of such election.
    (b) Royalty on gas--(1) Oil lease. All casinghead gas shall belong 
to the oil Lessee subject to any rights under existing gas leases. All 
casinghead gas removed from the lease from which it is produced shall be 
metered unless otherwise approved by the Superintendent and be subject 
to a royalty of not less than 16\2/3\ percent of the market value of the 
gas and all products extracted therefrom, less a reasonable allowance 
for manufacture or processing. If an oil Lessee supplies casinghead gas 
produced from one lease for operation and/or development of other 
leases, either his/hers or others, a royalty of not less than 16\2/3\ 
percent shall be paid on the market value of all casinghead gas so used. 
All casinghead gas not utilized by the oil Lessee may, with the approval 
of the Superintendent, be utilized or sold by the gas Lessee, subject to 
the prescribed royalty of not less than 16\2/3\ percent of the market 
value.
    (2) Gas lease. Lessee shall pay a royalty of not less than 16\2/3\ 
percent of the market value value of all natural gas and products 
extracted therefrom produced and sold from his lease. Natural gas used 
in the reasonable and prudent operation and development of said lease 
shall be exempted from royalty payment.
    (3) Combination oil and gas lease. Lessee shall pay royalty as 
provided in paragraphs (b)(1) and (2) of this section.
    (c) Minimum royalty. In no event shall the royalty paid from 
producing leases during any year be less than an amount equal to the 
annual rental specified for the lease. Any underpayment of minimum 
royalty shall be due and payable within 45 days following the end of the 
lease year. After the primary term, Lessee shall submit with his payment 
evidence that the lease is producing in paying quantities. The 
Superintendent is authorized to determine whether the lease is actually 
producing in paying quantities or has terminated for lack of such 
production. Payment for any underpayment not made within the time 
specified shall be subject to a late charge at the rate of not less than 
1\1/2\

[[Page 715]]

percent per month for each month or fraction thereof until paid.

[39 FR 22254, June 21, 1974, as amended at 43 FR 8136, Feb. 28, 1978; 43 
FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as 
amended at 55 FR 33114, Aug. 14, 1990; 59 FR 22104, Apr. 28, 1994]



Sec. 226.12  Government reserves right to purchase oil.

    Any of the executive departments of the U.S. Government shall have 
the option to purchase all or any part of the oil produced from any 
lease at not less than the highest posted price as defined in Sec. 
226.11.



Sec. 226.13  Time of royalty payments and reports.

    (a) Royalty payments due may be paid by either purchaser or Lessee. 
Unless otherwise provided by the Osage Tribal Council and approved by 
the Superintendent, all payments shall be due by the 25th day of each 
month and shall cover the sales of the preceding month. Failure to make 
such payments shall subject Lessee or purchaser, whoever is responsible 
for royalty payment, to a late charge at the rate of not less than 1\1/
2\ percent for each month or fraction thereof until paid. The Osage 
Tribal Council, subject to the approval of the Superintendent, may waive 
the late charges.
    (b) Lessee shall furnish certified monthly reports by the 25th of 
each following month covering all operations, whether there has been 
production or not, indicating therein the total amount of oil, natural 
gas, casinghead gas, and other products subject to royalty payment.
    (c) Failure to remit payments or reports shall subject Lessee to 
further penalties as provided in Sec. Sec. 226.42 and 226.43 and shall 
subject the division order to cancellation.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33114, Aug. 14, 1990]



Sec. 226.14  Contracts and division orders.

    (a) Lessee may enter into division orders or contracts with the 
purchasers of oil, gas, or derivatives therefrom which will provide for 
the purchaser to make payment of royalty in accordance with his lease: 
Provided, That such division orders or contracts shall not relieve 
Lessee from responsibility for the payment of the royalty should the 
purchaser fail to pay. No production shall be removed from the leased 
premises until a division order and/or contract and its terms are 
approved by the Superintendent: Provided further, That the 
Superintendent may grant temporary permission to run oil or gas from a 
lease pending the approval of a division order or contract. Lessee shall 
file a certified monthly report and pay royalty on the value of all oil 
and gas used off the premises for development and operating purposes. 
Lessee shall be responsible for the correct measurement and reporting of 
all oil and/or gas taken from the leased premises.
    (b) Lessee shall require the purchaser of oil and/or gas from his/
her lease or leases to furnish the Superintendent, no later than the 
25th day of each month, a statement reporting the gross barrels of oil 
and/or gross Mcf of gas sold during the preceding month. The 
Superintendent may authorize an extension of time, not to exceed 10 
days, for furnishing this statement.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33114, Aug. 14, 1990]



Sec. 226.15  Unit leases, assignments and related instruments.

    (a) Unitization of leases. The Osage Tribal Council and Lessee or 
Lessees, may, with the approval of the Superintendent, unitize or merge, 
two or more oil or oil and gas leases into a unit or cooperative 
operating plan to promote the greatest ultimate recovery of oil and gas 
from a common source of supply or portion thereof embracing the lands 
covered by such lease or leases. The cooperative or unit agreement shall 
be subject to the regulations in this part and applicable laws governing 
the leasing of the Osage Mineral Estate. Any agreement between the 
parties in interest to terminate a unit or cooperative agreement as to 
all or any portion of the lands included shall be submitted to the 
Superintendent for his approval. Upon approval the leases included 
thereunder shall be restored to their original terms: Provided, That for 
the purpose of preventing waste and to promote the

[[Page 716]]

greatest ultimate recovery of oil and gas from a common source of supply 
or portion thereof, all oil leases, oil and gas leases, and gas leases 
issued heretofore and hereafter under the provisions of the regulations 
in this part shall be subject to any unit development plan affecting the 
leased lands that may be required by the Superintendent with the consent 
of the Osage Tribal Council, and which plan shall adequately protect the 
rights of all parties in interest including the Osage Mineral Estate.
    (b) Assignments. Approved leases or any interest therein may be 
assigned or transferred only with the approval of the Superintendent. 
The assignee must be qualified to hold such lease under existing rules 
and regulations and shall furnish a satisfactory bond conditioned for 
the faithful performance of the covenants and conditions thereof. Lessee 
must assign either his entire interest in a lease or legal subdivision 
thereof, or an undivided interest in the whole lease: Provided, That 
when an assignment covers only a portion of a lease or covers interests 
in separate horizons such assignment shall be subject to both the 
consent of the Osage Tribal Council and approval of the Superintendent. 
If a lease is divided by the assignment of an entire interest in any 
part, each part shall be considered a separate lease and the assignee 
shall be bound to comply with all the terms and conditions of the 
original lease. A fully executed copy of the assignment shall be filed 
with the Superintendent within 30 days after the date of execution by 
all parties. If requested within the 30-day period, the Superintendent 
may grant an extension of 15 days. A filing fee of $10 shall accompany 
each assignment.
    (c) Overriding royalty. Agreements creating overriding royalties or 
payments out of production shall not be considered as an interest in a 
lease as such term is used in paragraph (b) of this section. Agreements 
creating overriding royalties or payments out of production are hereby 
authorized and the approval of the Department of the Interior or any 
agency thereof shall not be required with respect thereto, but such 
agreements shall be subject to the condition that nothing in any such 
agreement shall be construed as modifying any of the obligations of 
Lessee under his lease and the regulations in this part. All such 
obligations are to remain in full force and effect, the same as if free 
of any such royalties or payments. The existence of agreements creating 
overriding royalties or payments out of production, whether or not 
acutally paid, shall not be considered in justifying the shutdown or 
abandonment of any well. Agreements creating overriding royalties or 
payments out of production need not be filed with the Superintendent 
unless incorporated in assignments or instruments required to be filed 
pursuant to paragraph (b) of this section. An agreement creating 
overriding royalties or payment out of production shall be suspended 
when the working interest income per active producing well is equal to 
or less than the operational cost of the well, as determined by the 
Superintendent.
    (d) Drilling contracts. The Superintendent is authorized to approve 
drilling contracts with a stipulation that such approval does not in any 
way bind the Department to approve subsequent assignments that may be 
provided for in said contracts. Approval merely authorizes entry on the 
lease for the purpose of development work.
    (e) Combining leases. The lessee owning both an oil lease and gas 
lease covering the same acreage is authorized to convert such leases to 
a combination oil and gas lease.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]

                               Operations



Sec. 226.16  Commencement of operations.

    (a) No operations shall be permitted upon any tract of land until a 
lease covering such tract shall have been approved by the 
Superintendent: Provided, That the Superintendent may grant authority to 
any party under such rules, consistent with the regulations in this part 
that he deems proper, to conduct geophysical and geological exploration 
work.

[[Page 717]]

    (b) Lessee shall submit applications on forms to be furnished by the 
Superintendent and secure his approval before:
    (1) Well drilling, treating, or workover operations are started on 
the leased premises.
    (2) Removing casing from any well.
    (c) Lessee shall notify the Superintendent a reasonable time in 
advance of starting work, of intention to drill, redrill, deepen, plug, 
or abandon a well.



Sec. 226.17  How to acquire permission to begin operations on a 
restricted homestead allotment.

    (a) Lessee may conduct operations within or upon a restricted 
homestead selection only with the written consent of the Superintendent.
    (b) If the allottee is unwilling to permit operations on his 
homestead, the Superintendent will cause an examination of the premises 
to be made with the allottee and lessee or his representative. Upon 
finding that the interests of the Osage Tribe require that the tract be 
developed, the Superintendent will endeavor to have the parties agree 
upon the terms under which operations on the homestead may be conducted.
    (c) In the event the allottee and lessee cannot reach an agreement, 
the matter shall be presented by all parties before the Osage Tribal 
Council, and the Council shall make its recommendations. Such 
recommendations shall be considered as final and binding upon the 
allottee and lessee. A guardian may represent the allottee. Where no one 
is authorized or where no person is deemed by the Superintendent to be a 
proper party to speak for a person of unsound mind or feeble 
understanding, the Principal Chief of the Osage Tribe shall represent 
him.
    (d) If the allottee or his representative does not appear before the 
Osage Tribal Council when notified by the Superintendent, or if the 
Council fails to act within 10 days after the matter is referred to it, 
the Superintendent may authorize lessee to proceed with operations in 
conformity with the provisions of his lease and the regulations in this 
part.



Sec. 226.18  Information to be given surface owners prior to 
commencement of drilling operations.

    Except for the surveying and staking of a well, no operations of any 
kind shall commence until the lessee or his/her authorized 
representative shall meet with the surface owner or his/her 
representative, if a resident of and present in Osage County, Oklahoma. 
Unless waived by the Superintendent or otherwise agreed to between the 
lessee and surface owner, such meeting shall be held at least 10 days 
prior to the commencement or any operations, except for the surveying 
and staking of the well. At such meeting lessee or his/her authorized 
representative shall comply with the following requirements:
    (a) Indicate the location of the well or wells to be drilled.
    (b) Arrange for route of ingress and egress. Upon failure to agree 
on route ingress and egress, said route shall be set by the 
Superintendent.
    (c) Impart to said surface owners the name and address of the party 
or representative upon whom the surface owner shall serve any claim for 
damages which he may sustain from mineral development or operations, and 
as to the procedure for settlement thereof as provided in Sec. 226.21
    (d) Where the drilling is to be on restricted land, lessee or his 
authorized representative in the manner provided above shall meet with 
the Superintendent.
    (e) When the surface owner or his/her representative is not a 
resident of, or is not physically present in, Osage County, Oklahoma, or 
cannot be contacted at the last known address, the Superintendent may 
authorize lessee to proceed with operations.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50648, Nov. 17, 1976; 
43 FR 8136, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.19  Use of surface of land.

    (a) Lessee or his/her authorized representative shall have the right 
to use so much of the surface of the land within the Osage Mineral 
Estate as may be reasonable for operations and marketing. This includes 
but is not

[[Page 718]]

limited to the right to lay and maintain pipelines, electric lines, pull 
rods, other appliances necessary for operations and marketing, and the 
right-of-way for ingress and egress to any point of operations. If 
Lessee and surface owner are unable to agree as to the routing of 
pipelines, electric lines, etc., said routing shall be set by the 
Superintendent. The right to use water for lease operations is 
established by Sec. 226.24. Lessee shall conduct his/her operations in 
a workmanlike manner, commit no waste and allow none to be committed 
upon the land, nor permit any unavoidable nuisance to be maintained on 
the premises under his/her control.
    (b) Before commencing a drilling operation, Lessee shall pay or 
tender to the surface owner commencement money in the amount of $25 per 
seismic shot hole and commencement money in the amount of $300 for each 
well, after which Lessee shall be entitled to immediate possession of 
the drilling site. Commencement money will not be required for the 
redrilling of a well which was originally drilled under the currently 
lease. A drilling site shall be held to the minimum area essential for 
operations and shall not exceed one and one-half acres in area unless 
authorized by the Superintendent. Commencement money shall be a credit 
toward the settlement of the total damages. Acceptance of commencement 
money by the surface owner does not affect his/her right to compensation 
for damages as described in Sec. 226.20, occasioned by the drilling and 
completion of the well for which it was paid. Since actual damage to the 
surface from operations cannot necessarily be ascertained prior to the 
completion of a well as a serviceable well or dry hole, a damage 
settlement covering the drilling operation need not be made until after 
completion of drilling operations.
    (c) Where the surface is restricted land, commencement money shall 
be paid to the Superintendent for the landowner. All other surface 
owners shall be paid or tendered such commencement money direct. Where 
such surface owners are not residents of Osage County nor have a 
representative located therein, such payment shall be made or tendered 
to the last known address of the surface owner at least 5 days before 
commencing drilling operation on any well: Provided, That should lessee 
be unable to reach the owner of the surface of the land for the purpose 
of tendering the commencement money or if the owner of the surface of 
the land shall refuse to accept the same, lessee shall deposit such 
amount with the Superintendent by check payable to the Bureau of Indian 
Affairs. The superintendent shall thereupon advise the owner of the 
surface of the land by mail at his last known address that the 
commencement money is being held for payment to him upon his written 
request.
    (d) Lessee shall also pay fees for tank sites not exceeding 50 feet 
square at the rate of $100 per tank site or other vessel: Provided, That 
no payment shall be due for a tank temporarily set on a well location 
site for drilling, completing, or testing. The sum to be paid for a tank 
occupying more than 50 feet square shall be agreed upon between the 
surface owner and lessee or, on failure to agree, the same shall be 
determined by arbitration as provided by Sec. 226.21.

[39 FR 22254, June 22, 1974, as amended at 43 FR 8136, Feb. 28, 1978; 43 
FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as 
amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.20  Settlement of damages claimed.

    (a) Lessee or his authorized representative or geophysical permittee 
shall pay for all damages to growing crops, any improvements on the 
lands, and all other surface damages as may be occasioned by operations. 
Commencement money shall be a credit toward the settlement of the total 
damages occasioned by the drilling and completion of the well for which 
it was paid. Such damages shall be paid to the owner of the surface and 
by him apportioned among the parties interested in the surface, whether 
as owner, surface lessee, or otherwise, as the parties may mutually 
agree or as their interests may appear. If lessee or his authorized 
representative and surface owner are unable to agree concerning damages, 
the same shall be determined by arbitration. Nothing herein contained 
shall

[[Page 719]]

be construed to deny any party the right to file an action in a court of 
competent jurisdiction if he is dissatisfied with the amount of the 
award.
    (b) Surface owners shall notify their lessees or tenants of the 
regulations in this part and of the necessary procedure to follow in all 
cases of alleged damages. If so authorized in writing, surface lessees 
or tenants may represent the surface owners.
    (c) In settlement of damages on restricted land all sums due and 
payable shall be paid to the Superintendent for credit to the account of 
the Indian entitled thereto. The Superintendent will make the 
apportionment between the Indian landowner or owners and surface Lessee 
of record.
    (d) Any person claiming an interest in any leased tract or in 
damages thereto, must furnish to the Superintendent a statement in 
writing showing said claimed interest. Failure to furnish such statement 
shall constitute a waiver of notice and estop said person from claiming 
any part of such damages after the same shall have been disbursed.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50649, Nov. 17, 1976; 
43 FR 8137, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.21  Procedure for settlement of damages claimed.

    Where the surface owner or his lessee suffers damage due to the oil 
and gas operations and/or marketing of oil or gas by lessee or his 
authorized representative, the procedure for recovery shall be as 
follows:
    (a) The party or parties aggrieved shall, as soon as possible after 
the discovery of any damages, serve written notice to Lessee or his 
authorized representative as provided by Sec. 226.18. Written notice 
shall contain the nature and location of the alleged damages, the date 
of occurrence, the names of the party or parties causing said damages, 
and the amount of damages. It is not intended by this requirement to 
limit the time within which action may be brought in the courts to less 
than the 90-day period allowed by section 2 of the Act of March 2, 1929 
(45 Stat. 1478, 1479).
    (b) If the alleged damages are not adjusted at the time of such 
notice, Lessee or his authorized representative shall try to adjust the 
claim with the party or parties aggrieved within 20 days from receipt of 
the notice. If the claimant is the owner of restricted property and a 
settlement results, a copy of the settlement agreement shall be filed 
with the Superintendent. If the settlement agreement is approved by the 
Superintendent, payment shall be made to the Superintendent for the 
benefit of said claimant.
    (c) If the parties fail to adjust the claim within the 20 days 
specified, then within 10 days thereafter each of the interested parties 
shall appoint an arbitrator who immediately upon their appointment shall 
agree upon a third arbitrator. If the two arbitrators shall fail to 
agree upon a third arbitrator within 10 days, they shall immediately 
notify the parties in interest. If said parties cannot agree upon a 
third arbitrator within 5 days after receipt of such notice, the 
Superintendent shall appoint the third arbitrator.
    (d) As soon as the third arbitrator is appointed, the arbitrators 
shall meet; hear the evidence and arguments of the parties; and examine 
the lands, crops, improvements, or other property alleged to have been 
injured. Within 10 days they shall render their decision as to the 
amount of the damage due. The arbitrators shall be disinterested 
persons. The fees and expenses of the third arbitrator shall be borne 
equally by the claimant and Lessee or his authorized representative. 
Each Lessee or his authorized representative and claimant shall pay the 
fee and expenses for the arbitrator appointed by him.
    (e) When an act of an oil or gas lessee or his authorized 
representative results in injury to both the surface owner and his 
lessee, the parties aggrieved shall join in the appointment of an 
arbitrator. Where the injury complained of is chargeable to one or more 
oil or gas Lessee, or his authorized representative, such lessee or said 
representative shall join in the appointment of an arbitrator.
    (f) Any two of the arbitrators may make a decision as to the amount 
of damage due. The decision shall be in writing and shall be served 
forthwith

[[Page 720]]

upon the parties in interest. Each party shall have 90 days from the 
date the decision is served in which to file an action in a court of 
competent jurisdiction. If no such action is filed within said time and 
the award is against Lessee or his/her authorized representative, he/she 
shall pay the same, together with interest at an annual rate established 
for the Internal Revenue Service from date of award, within 10 days 
after the expiration of said period for filing an action.
    (g) Lessee or his authorized representative shall file with the 
Superintendent a report on each settlement agreement, setting out the 
nature and location of the damage, date, and amount of the settlement, 
and any other pertinent information.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50649, Nov. 17, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 55 FR 33115, 
Aug. 14, 1990; 64 FR 13896, Mar. 23, 1999]



Sec. 226.22  Prohibition of pollution.

    (a) All operators, contractors, drillers, service companies, pipe 
pulling and salvaging contractors, or other persons, shall at all times 
conduct their operations and drill, equip, operate, produce, plug and 
abandon all wells drilled for oil or gas, service wells or exploratory 
wells (including seismic, core and stratigraphic holes) in a manner that 
will prevent pollution and the migration of oil, gas, salt water or 
other substance from one stratum into another, including any fresh water 
bearing formation.
    (b) Pits for drilling mud or deleterious substance used in the 
drilling, completion, recompletion, or workover of any well shall be 
constructed and maintained to prevent pollution of surface and 
subsurface fresh water. These pits shall be enclosed with a fence of at 
least four strands of barbed wire, or an approved substitute, stretched 
taut to adequately braced corner posts, unless the surface owner, user, 
or the Superintendent gives consent to the contrary. Immediately after 
completion of operations, pits shall be emptied and leveled unless 
otherwise requested by surface owner or user.
    (c) Drilling pits shall be adequate to contain mud and other 
material extracted from wells and shall have adequate storage to 
maintain a supply of mud for use in emergencies.
    (d) No earthen pit, except those used in the drilling, completion, 
recompletion or workover of a well, shall be constructed, enlarged, 
reconstructed or used without approval of the Superintendent. Unlined 
earthen pits shall not be used for the continued storage of salt water 
or other deleterious substances.
    (e) Deleterious fluids other than fresh water drilling fluids used 
in drilling or workover operations, which are displaced or produced in 
well completion or stimulation procedures, including but not limited to 
fracturing, acidizing, swabbing, and drill stem tests, shall be 
collected into a pit lined with plastic of at least 30 mil or a metal 
tank and maintained separately from above-mentioned drilling fluids to 
allow for separate disposal.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.23  Easements for wells off leased premises.

    The Superintendent, with the consent of the Osage Tribal Council, 
may grant commercial and noncommercial easements for wells off the 
leased premises to be used for purposes associated with oil and gas 
production. Rental payable to the Osage Tribe for such easements shall 
be an amount agreed to by Grantee and the Osage Tribal Council subject 
to the approval of the Superintendent. Grantee shall be responsible for 
all damages resulting from the use of such wells and settlement therefor 
shall be made as provided in Sec. 226.21.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.24  Lessee's use of water.

    Lessee or his contractor may, with the approval of the 
Superintendent, use water from streams and natural water courses to the 
extent that same does not diminish the supply below the requirements of 
the surface owner from whose land the water is taken. Similarly, Lessee 
or his contractor may use water from reservoirs formed by the 
impoundment of water from such

[[Page 721]]

streams and natural water courses, provided such use does not exceed the 
quantity to which they originally would have been entitled had the 
reservoirs not been constructed. Lessee or his contractor may install 
necessary lines and other equipment within the Osage Mineral Estate to 
obtain such water. Any damage resulting from such installation shall be 
settled as provided in Sec. 226.21.



Sec. 226.25  Gas well drilled by oil lessees and vice versa.

    Prior to drilling, the oil or gas lessee shall notify the other 
lessees of his/her intent to drill. When an oil lessee in drilling a 
well encounters a formation or zone having indications of possible gas 
production, or the gas lessee in drilling a well encounters a formation 
or zone having indication of possible oil production, he/she shall 
immediately notify the other lessee and the Superintendent. Lessee 
drilling the well shall obtain all information which a prudent operator 
utilizes to evaluate the productive capability of such formation or 
zone.
    (a) Gas well to be turned over to gas lessee. If the oil lessee 
drills a gas well, he/she shall, without removing from the well any of 
the casing or other equipment, immediately shut the well in and notify 
the gas lessee and the Superintendent. If the gas lessee does not, 
within 45 days after receiving notice and cost of drilling, elect to 
take over such well and reimburse the oil lessee the cost of drilling, 
including all damages paid and the cost in-place of casing, tubing, and 
other equipment, the oil lessee shall immediately confine the gas to the 
original stratum. The disposition of such well and the production 
therefrom shall then be subject to the approval of the Superintendent. 
In the event the oil lessee and gas lessee cannot agree on the cost of 
the well, such cost shall be apportioned between the oil and gas lessee 
by the Superintendent. If such apportionment is not accepted, the well 
shall be plugged by the oil and gas lessee who drilled the well.
    (b) Oil well to be turned over to oil lessee. If the gas lessee 
drills an oil well, he/she must immediately, without removing from the 
well any of the casing or other equipment, notify the oil lessee and the 
superintendent.
    (1) If the oil lessee does not, within 45 days after receipt of 
notice and cost of drilling, elect to take over the well, he/she must 
immediately notify the gas lessee. From that point, the superintendent 
must approve the disposition of the well, and any gas produced from it.
    (2) If the oil lessee chooses to take over the well, he/she must pay 
to the gas lessee:
    (i) The cost of drilling the well, including all damages paid; and
    (ii) The cost in place of casing and other equipment.
    (3) If the oil lessee and the gas lessee cannot agree on the cost of 
the well, the superintendent will apportion the cost between the oil and 
gas lessees. If the lessees do not accept the apportionment, the oil or 
gas lessee who drilled the well must plug the well.
    (c) Lands not leased. If the gas lessee shall drill an oil well upon 
lands not leased for oil purposes or vice versa, the Superintendent may, 
until such time as said lands are leased, permit the lessee who drilled 
the well to operate and market the production therefrom. When said lands 
are leased, the lessee who drilled and completed the well shall be 
reimbursed by the oil or gas lessee, for the cost of drilling said well, 
including all damages paid and the cost in-place of casing, tubing, and 
other equipment. If the lessee does not elect to take over said well as 
provided above, the disposition of such well and the production 
therefrom shall be determined by the Superintendent. In the event the 
oil lessee and gas lessee cannot agree on the cost of the well, such 
cost shall be apportioned between the oil and gas lessee by the 
Superintendent. If such apportionment is not accepted, the well shall be 
plugged by the oil and gas lessee who drilled the well.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990; 64 FR 13896, Mar. 23, 1999]



Sec. 226.26  Determining cost of well.

    The term ``cost of drilling'' as applied where one lessee takes over 
a well drilled by another, shall include all

[[Page 722]]

reasonable, usual, necessary, and proper expenditures. A list of 
expenses mentioned in this section shall be presented to proposed 
purchasing lessee within 10 days after the completion of the well. In 
the event of a disagreement between the parties as to the charges 
assessed against the well that is to be taken over, such charges shall 
be determined by the Superintendent.



Sec. 226.27  Gas for operating purposes and tribal use.

    (a) Gas to be furnished oil lessee. Lessee of a producing gas lease 
shall furnish the oil lessee sufficient gas for operating purposes at a 
rate to be agreed upon, or on failure to agree the rate shall be 
determined by the Superintendent: Provided, That the oil lessee shall at 
his own expense and risk, furnish and install the necessary connections 
to the gas lessee's well or pipeline. All such connections shall be 
reported in writing to the Superintendent.
    (b) Use of gas by Osage Tribe. (1) Gas from any well or wells shall 
be furnished any Tribal-owned building or enterprise at a rate not to 
exceed the price less royalty being received or offered by a gas 
purchaser: Provided, That such requirement shall be subject to the 
determination by the Superintendent that gas in sufficient quantities is 
available above that needed for lease operation and that no waste would 
result. In the absence of a gas purchaser the rate to be paid by the 
Osage Tribe shall be determined by the Superintendent based on prices 
being paid by purchasers in the Osage Mineral Estate. The Osage Tribe is 
to furnish all necessary material and labor for such connection with 
Lessee's gas system. The use of such gas shall be at the risk of the 
Osage Tribe at all times.
    (2) Any member of the Osage Tribe residing in Osage County and 
outside a corporate city is entitled to the use at his own expense of 
not to exceed 400,000 cubic feet of gas per calendar year for his 
principal residence at a rate not to exceed the amount paid by a gas 
purchaser plus 10 percent: Provided, That such requirement shall be 
subject to the determination by the Superintendent that gas in 
sufficient quantities is available above that needed for lease operation 
and that no waste would result. In the absence of a gas purchaser the 
amount to be paid by the Tribal member shall be determined by the 
Superintendent. Gas to Tribal members is not royalty free. The Tribal 
member is to furnish all necessary material and labor for such 
connection to Lessee's gas system, and shall maintain his own lines. The 
use of such gas shall be at the risk of the Tribal member at all times.
    (3) Gas furnished by Lessee under paragraphs (b) (1) and (2) of this 
section may be terminated only with the approval of the Superintendent. 
Written application for termination must be made to the Superintendent 
showing justification.

                         Cessation of Operations



Sec. 226.28  Shutdown, abandonment, and plugging of wells.

    No productive well shall be abandoned until its lack for further 
profitable production of oil and/or gas has been demonstrated to the 
satisfaction of the Superintendent. Lessee shall not shut down, abandon, 
or otherwise discontinue the operation or use of any well for any 
purpose without the written approval of the Superintendent. All 
applications for such approval shall be submitted to the Superintendent 
on forms furnished by him/her.
    (a) Application for authority to permanently shut down or 
discontinue use or operation of a well shall set forth justification, 
probable duration the means by which the well bore is to be protected, 
and the contemplated eventual disposition of the well. The method of 
conditioning such well shall be subject to the approval of the 
Superintendent.
    (b) Prior to permanent abandonment of any well, the oil lessee or 
the gas lessee, as the case may be, shall offer the well to the other 
for his recompletion or use under such terms as may be mutually agreed 
upon but not in conflict with the regulations. Failure of the Lessee 
receiving the offer to reply within 10 days after receipt thereof shall 
be deemed as rejection of the offer. If, after indicating acceptance, 
the two parties cannot agree on the terms of the offer within 30 days, 
the

[[Page 723]]

disposition of such well shall be determined by the Superintendent.
    (c) The Superintendent is authorized to shut in a lease when the 
lessee fails to comply with the terms of the lease, the regulations, 
and/or orders of the Superintendent.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.29  Disposition of casings and other improvements.

    (a) Upon termination of lease, permanent improvements, unless 
otherwise provided by written agreement with the surface owner and filed 
with the Superintendent, shall remain a part of said land and become the 
property of the surface owner upon termination of the lease, other than 
by cancellation. Exceptions include personal property not limited to 
tools, tanks, pipelines, pumping and drilling equipment, derricks, 
engines, machinery, tubing, and the casings of all wells: Provided, That 
when any lease terminates, all such personal property shall be removed 
the word ``terminates''; and in the last sentence of the paragraph, 
within 90 days or such reasonable extension of time as may be granted by 
the Superintendent. Otherwise, the ownership of all casings shall revert 
to Lessor and all other personal property and permanent improvements to 
the surface owner. Nothing herein shall be construed to relieve lessee 
of responsibility for removing any such personal property or permanent 
improvements from the premises if required by the Superintendent and 
restoring the premises as nearly as practicable to the original state.
    (b) Upon cancellation of lease. When there has been a cancellation 
for cause, Lessor shall be entitled and authorized to take immediate 
possession of the lease premises and all permanent improvements and all 
other equipment necessary for the operation of the lease.
    (c) Wells to be abandoned shall be promptly plugged as prescribed by 
the Superintendent. Applications to plug shall include a statement 
affirming compliance with Sec. 226.28(b) and shall set forth reasons 
for plugging, a detailed statement of the proposed work including kind, 
location, and length of plugs (by depth), plans for mudding and 
cementing, testing, parting and removing casing, and any other pertinent 
information: Provided, That the Superintendent may give oral permission 
and instructions pending receipt of a written application to plug a 
newly drilled hole. Lessee shall remit a fee of $15 with each written 
application for authority to plug a well. This fee will be refunded if 
permission is not granted.
    (d) Lessee shall plug and fill all dry or abandoned wells in a 
manner to confine the fluid in each formation bearing fresh water, oil, 
gas, salt water, and other minerals, and to protect it against invasion 
of fluids from other sources. Mud-laden fluid, cement, and other plugs 
shall be used to fill the hole from bottom to top: Provided, That if a 
satisfactory agreement is reached between Lessee and the surface owner, 
subject to the approval of the Superintendent, Lessee may condition the 
well for use as a fresh water well and shall so indicate on the plugging 
record. The manner in which plugging material shall be introduced and 
the type of material so used shall be subject to the approval of the 
Superintendent. Within 10 days after plugging, Lessee shall file with 
the Superintendent a complete report of the plugging of each well. When 
any well is plugged and abandoned, Lessee shall, within 90 days, clean 
up the premises around such well to the satisfaction of the 
Superintendent.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]

                         Requirements of Lessees



Sec. 226.30  Lessees subject to Superintendent's orders; books and 
records open to inspection.

    Lessee shall comply with all orders or instructions issued by the 
Superintendent. The Superintendent or his representative may enter upon 
the leased premises for the purpose of inspection. Lessee shall keep a 
full and correct account of all operations, receipts, and disbursements 
and make reports thereof, as required. Lessee's books and records shall 
be available to the Superintendent for inspection.

[[Page 724]]



Sec. 226.31  Lessee's process agents.

    (a) Before actual drilling or development operations are commenced 
on leased lands, Lessee or Assignee, if not a resident of the State of 
Oklahoma, shall appoint a local or resident representative within the 
State of Oklahoma on whom the Superintendent may serve notice or 
otherwise communicate in securing compliance with the regulations in 
this part, and shall notify the Superintendent of the name and post 
office address of the representative appointed.
    (b) Where several parties own a lease jointly, one representative or 
agent shall be designated whose duties shall be to act for all parties 
concerned. Designation of such representative should be made by the 
party in charge of operations.
    (c) In the event of the incapacity or absence from the State of 
Oklahoma of such designated local or resident representative, Lessee 
shall appoint a substitute to serve in his stead. In the absence of such 
representative or appointed substitute, any employee of Lessee upon the 
leased premises or person in charge of drilling or related operations 
thereon shall be considered the representative of Lessee for the purpose 
of service of orders or notices as herein provided.



Sec. 226.32  Well records and reports.

    (a) Lessee shall keep accurate and complete records of the drilling, 
redrilling, deepening, repairing, treating, plugging, or abandonment of 
all wells. These records shall show all the formations penetrated, the 
content and character of oil, gas, or water in each formation, and the 
kind, weight, size, landed depth and cement record of casing used in 
drilling each well; the record of drill-stem and other bottom hole 
pressure or fluid sample surveys, temperature surveys, directional 
surveys, and the like; the materials and procedure used in the treating 
or plugging of wells or in preparing them for temporary abandonment; and 
any other information obtained in the course of well operation.
    (b) Lessee shall take such samples and make such tests and surveys 
as may be required by the Superintendent to determine conditions in the 
well or producing reservoir and to obtain information concerning 
formations drilled, and shall furnish reports thereof as required by the 
Superintendent.
    (c) Within 10 days after completion of operations on any well, 
Lessee shall transmit to the Superintendent the applicable information 
on forms furnished by the Superintendent; a copy of electrical, 
mechanical or radioactive log, or other types of survey of the well 
bore; and core analysis obtained from the well. Lessee shall also submit 
other reports and records of operations as may be required and in the 
manner and form prescribed by the Superintendent.
    (d) Lessee shall measure production of oil, gas, and water from 
individual wells at reasonably frequent intervals to the satisfaction of 
the Superintendent.
    (e) Upon request and in the manner and form prescribed by the 
Superintendent, Lessee shall furnish a plat showing the location, 
designation, and status of all wells on the leased lands, together with 
such other pertinent information as the Superintendent may require.



Sec. 226.33  Line drilling.

    Lessee shall not drill within 300 feet of boundary line of leased 
lands, nor locate any well or tank within 200 feet of any public 
highway, any established watering place, or any building used as a 
dwelling, granary, or barn, except with the written permission of the 
Superintendent. Failure to obtain advance written permission from the 
Superintendent shall subject lessee to cancellation of his/her lease 
and/or plugging of the well.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33116, Aug. 14, 1990]



Sec. 226.34  Wells and tank batteries to be marked.

    Lessee shall clearly and permanently mark all wells and tank 
batteries in a conspicuous place with number, legal description, 
operator, and telephone number, and shall take all necessary precautions 
to preserve these markings.

[55 FR 33116, Aug. 14, 1990]

[[Page 725]]



Sec. 226.35  Formations to be protected.

    Lessee shall, to the satisfaction of the Superintendent, take all 
proper precautions and measures to prevent damage or pollution of oil, 
gas, fresh water, or other mineral bearing formations.



Sec. 226.36  Control devices.

    In drilling operations in fields where high pressures, lost 
circulation, or other conditions exist which could result in blowouts, 
lessee shall install an approved gate valve or other controlling device 
which is in proper working condition for use until the well is 
completed. At all times preventative measures must be taken in all well 
operations to maintain proper control of subsurface strata.

[55 FR 33116, Aug. 14, 1990]



Sec. 226.37  Waste of oil and gas.

    Lessee shall conduct all operations in a manner that will prevent 
waste of oil and gas and shall not wastefully utilize oil or gas. The 
Superintendent shall have the authority to impose such requirements as 
he deems necessary to prevent waste of oil and gas and to promote the 
greatest ultimate recovery of oil and gas. Waste as applied herein 
includes, but is not limited to, the inefficient excessive or improper 
use or dissipation of reservoir energy which would reasonably reduce or 
diminish the quantity of oil or gas that might ultimately be produced, 
or the unnecessary or excessive surface loss or destruction, without 
beneficial use, of oil and/or gas.



Sec. 226.38  Measuring and storing oil.

    All production run from the lease shall be measured according to 
methods and devices approved by the Superintendent. Facilities suitable 
for containing and measuring accurately all crude oil produced from the 
wells shall be provided by Lessee and shall be located on the leasehold 
unless otherwise approved by the Superintendent. Lessee shall furnish to 
the Superintendent a copy of 100-percent capacity tank table for each 
tank. Meters and installations for measuring oil must be approved, and 
tests of their accuracy shall be made when directed by the 
Superintendent.



Sec. 226.39  Measurement of gas.

    All gas, required to be measured, shall be measured by meter 
(preferably of the orifice meter type) unless otherwise agreed to by the 
Superintendent. All gas meters must be approved by the Superintendent 
and installed at the expense of Lessee or purchaser at such places as 
may be agreed to by the Superintendent. For computing the volume of all 
gas produced, sold or subject to royalty, the standard of pressure shall 
be 14.65 pounds to the square inch, and the standard of temperature 
shall be 60 degrees F. All measurements of gas shall be adjusted by 
computation to these standards, regardless of the pressure and 
temperature at which the gas was acutally measured, unless otherwise 
authorized in writing by the Superintendent.



Sec. 226.40  Use of gas for lifting oil.

    Lessee shall not use natural gas from a distinct or separate stratum 
for the purpose of flowing or lifting the oil, except where said Lessee 
has an approved right to both the oil and the gas, and then only with 
the approval of the Superintendent of such use and of the manner of its 
use.



Sec. 226.41  Accidents to be reported.

    Lessee shall make a complete report to the Superintendent of all 
accidents, fires, or acts of theft and vandalism occurring on the leased 
premises.

                                Penalties



Sec. 226.42  Penalty for violation of lease terms.

    Violation of any of the terms or conditions of any lease or of the 
regulations in this part shall subject the lease to cancellation by the 
Superintendent, or Lessee to a fine of not more than $500 per day for 
each day of such violation or noncompliance with the orders of the 
Superintendent, or to both such fine and cancellation. Fines not 
received within 10 days after notice of the decision shall be subject to 
late charges at the rate of not less than 1\1/2\ percent per month for 
each month or fraction thereof until paid. The Osage

[[Page 726]]

Tribal Council, subject to the approval of the Superintendent, may waive 
the late charge.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33116, Aug. 14, 1990]



Sec. 226.43  Penalties for violation of certain operating regulations.

    In lieu of the penalties provided under Sec. 226.42, penalties may 
be imposed by the Superintendent for violation of certain sections of 
the regulations of this part as follows:
    (a) For failure to obtain permission to start operations required by 
Sec. 226.16(b), $50 per day until permission is obtained.
    (b) For failure to file records required by Sec. 226.32, $50 per 
day until compliance is met.
    (c) For failure to mark wells and tank batteries as required by 
Sec. 226.34, $50 for each well and tank battery.
    (d) For failure to construct and maintain pits as required by Sec. 
226.22, $50 for each day after operations are commenced on any well 
until compliance is met.
    (e) For failure to comply with Sec. 226.36 regarding valve or other 
approved controlling device, $100.
    (f) For failure to notify Superintendent before drilling, 
redrilling, deepening, plugging, or abandoning any well, as required by 
Sec. Sec. 226.16(c) and 226.25, $200.
    (g) For failure to properly care for and dispose of deleterious 
fluids as provided in Sec. 226.22, $500 per day until compliance is 
met.
    (h) For failure to file plugging reports as required by Sec. 226.29 
and for failure to file reports as required by Sec. 226.13, $50 per day 
for each violation until compliance is met.
    (i) For failure to perform or start an operation within 5 days after 
ordered by the Superintendent in writing under authority provided in 
this part, if said operation is thereafter performed by or through the 
Superintendent, the actual cost of performance thereof, plus 25 percent.
    (j) Lessee or his/her authorized representative is hereby notified 
that criminal procedures are provided by 18 U.S.C. 1001 for knowingly 
filing fraudulent reports and information.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33116, Aug. 14, 1990]

                           Appeals and Notices



Sec. 226.44  Appeals.

    Any person, firm or corporation aggrieved by any decision or order 
issued by or under the authority of the Superintendent, by virtue of the 
regulations in this part, may appeal pursuant to 25 CFR part 2.

[55 FR 33116, Aug. 14, 1990]



Sec. 226.45  Notices.

    Notices and orders issued by the Superintendent to the 
representative and/or operator shall be binding on the lessee. The 
Superintendent may in his/her discretion increase the time allowed in 
his/her orders and notices.

[55 FR 33116, Aug. 14, 1990]



Sec. 226.46  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in this part need not be 
submitted for clearance pursuant to 44 U.S.C. 3501 et seq.

[55 FR 33116, Aug. 14, 1990]



PART 227_LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN RESERVATION, 
WYOMING, FOR OIL AND GAS MINING--Table of Contents




Sec.
227.1 Definitions.

                          How To Acquire Leases

227.2 Applications for leases.
227.3 Leases to citizens of the United States except Government 
          employees.
227.4 Sale of oil and gas leases.
227.5 Terms of leases, procedure for renewal and execution.
227.6 Corporations and corporate information.
227.7 Additional information from applicant.
227.8 Bonds.
227.9 Acreage limitation: Leases on noncontiguous tracts.
227.10 Minerals other than oil and gas.

[[Page 727]]

227.11 Bureau of Land Management to be furnished copy of lease.
227.12 Mineral reserves in nonmineral entries.
227.13 Vested rights to be respected.
227.14 Government reserves right to purchase oil and gas.

                           Rents and Royalties

227.15 Manner of payment.
227.16 Crediting advance annual payments.
227.17 Rates of rents and royalties.
227.18 Free use of gas by lessor.
227.19 Division orders.

                               Operations

227.20 Permission to start operations.
227.21 Restrictions on operations.
227.22 Diligence and prevention of waste.
227.23 Wells.
227.24 Penalties.
227.25 Inspection of premises, books and accounts.
227.26 Assignments and overriding royalties.
227.27 Stipulations.
227.28 Cancellations.
227.29 Fees.
227.30 Forms.

    Authority: Sec. 1, 39 Stat. 519, unless otherwise noted.

    Source: 22 FR 10622, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 227.1  Definitions.

    (a) The term ``superintendent'' in this part refers to the 
superintendent or other officers of the Bureau of Indian Affairs or of 
the Government who may have jurisdiction over the Shoshone or Wind River 
Reservation.
    (b) The term ``supervisor'' in this part refers to a representative 
of the Secretary of the Interior, under direction of the Director of the 
U.S. Geological Survey, authorized and empowered to supervise and direct 
operations under oil and gas mining leases, to furnish scientific and 
technical information and advice, to ascertain and record the amount and 
value of production, and to determine and record rentals and royalties 
due and paid.

    Cross Reference: For rules and regulations of the Geological Survey, 
see 30 CFR chapter II.

                          How To Acquire Leases



Sec. 227.2  Applications for leases.

    Applications for leases should be made to the superintendent.



Sec. 227.3  Leases to citizens of the United States except Government 
employees.

    Leases will be made only to persons who are citizens of the United 
States or have declared their intention to become so, or corporations 
which are organized under the laws of the United States or one of the 
States or Territories: Provided, That no lease, assignment thereof, or 
interest therein will be approved to any employee or employees of the 
United States Government, whether connected with the Bureau or 
otherwise, and no employee of the Interior Department shall be permitted 
to acquire any interest in such leases by ownership of stock in 
corporations having leases or in any other manner.

(R.S. 2078; 25 U.S.C. 68)



Sec. 227.4  Sale of oil and gas leases.

    (a) At such times and in such manner as he may deem appropriate, 
after being authorized by the Joint Business Council of the Shoshone and 
Arapahoe Tribes or its authorized representative, the superintendent 
shall publish notices at least thirty days prior to the sale, unless a 
shorter period is authorized by the Secretary of the Interior or his 
authorized representative, that oil and gas leases on specific tracts, 
each of which shall be in a reasonably compact body, will be offered to 
the highest responsible bidder for a bonus consideration, in addition to 
stipulated rentals and royalties. Each bid must be accompanied by a 
cashier's check, certified check, or postal money order, payable to the 
payee designated in the invitation to bid, in an amount not less than 25 
percent of the bonus bid. Within 30 days after notification of being the 
successful bidder, said bidder must remit the balance of the bonus, the 
first year's rental, and his share of the advertising costs, and shall 
file with the superintendent the lease in completed form. The 
superintendent may for good and sufficient reasons, extend

[[Page 728]]

the time for completion and submission of the lease form, but no 
extension shall be granted for remitting the balance of monies due. If 
the successful bidder fails to pay the full consideration within said 
period, or fails to file the completed lease within said period or 
extension thereof, or if the lease is disapproved through no fault of 
the lessor or the Department of the Interior, 25 percent of the bonus 
bid will be forfeited for the use and benefit of the Shoshone and 
Arapahoe Tribes.
    (b) All notices or advertisements of sales of oil and gas leases 
shall reserve to the Secretary of the Interior the right to reject all 
bids when in his judgment the interests of the Indians will be best 
served by so doing, and that if no satisfactory bid is received, or if 
the accepted bidder fails to complete the lease, or if the Secretary of 
the Interior shall determine that it is unwise in the interests of the 
Indians to accept the highest bid, the Secretary may readvertise such 
lease for sale, or if deemed advisable, with the consent of the tribal 
council or other governing tribal authorities, a lease may be made by 
private negotiations. The successful bidder or bidders will be required 
to pay his or their share of the advertising costs. Amounts received 
from unsuccessful bidders will be returned; but when no bid is accepted 
on a tract, the costs of advertising will be assessed against the 
applicant who requested that said tract be advertised.

[22 FR 10622, Dec. 24, 1957, as amended at 25 FR 7185, July 29, 1960. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 227.5  Terms of leases, procedure for renewal and execution.

    (a) Leases shall be for a period of twenty years with the 
preferential right in the lessee to renew the same for successive 
periods of ten years each upon such reasonable terms and conditions as 
may be prescribed by the Secretary of the Interior or his authorized 
representative, unless otherwise provided by law at the expiration of 
any such period. Applications for renewal of leases shall be filed with 
the superintendent within ninety days prior to the date of expiration of 
the lease. One copy of the application for renewal shall be filed by the 
applicant with the Joint Business Council of the Shoshone and Arapahoe 
Tribes and no lease shall be renewed unless the Joint Business Council 
or its authorized representative is afforded an opportunity to present 
the Council's views to the Secretary of the Interior or his authorized 
representative.
    (b) The Secretary of the Interior or his authorized representative 
may execute oil and gas leases with the consent of the Joint Business 
Council or its authorized representative, and may execute renewals of 
leases after consultation with the Joint Business Council or its 
authorized representative.

[25 FR 7185, July 29, 1960. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 227.6  Corporations and corporate information.

    (a) If the applicant for a lease is a corporation, it shall file 
evidence of authority of its officers to execute papers; and with its 
first application it shall also file a certified copy of its articles of 
incorporation, and, if foreign to the state in which the lands are 
located, evidence showing compliance with the corporation laws thereof. 
Statements of changes in officers and stockholders shall be furnished by 
a corporation lessee to the superintendent January 1 of each year, and 
at such other times as may be requested.
    (b) Whenever deemed advisable in any case the superintendent may 
require a corporation applicant or lessee to file:
    (1) List of officers, principal stockholders, and directors, with 
post-office addresses and number of shares held by each.
    (2) A sworn statement of the proper officer showing:
    (i) The total number of shares of the capital stock actually issued 
and the amount of cash paid into the treasury on each share sold; or, if 
paid in property, the kind, quantity, and value of same paid per share.
    (ii) Of the stock sold, how much remains unpaid and subject to 
assessment.
    (iii) The amount of cash the company has in its treasury and 
elsewhere.
    (iv) The property, exclusive of cash owned by the company and its 
value.

[[Page 729]]

    (v) The total indebtedness of the company and the nature of its 
obligations.
    (vi) Whether the applicant or any person controlling, controlled by 
or under common control with the applicant has filed any registration 
statement, application for registration, prospectus or offering sheet 
with the Securities and Exchange Commission pursuant to the Securities 
Act of 1933 or the Securities Exchange Act of 1934 or said Commission's 
rules and regulations under said acts; if so, under what provision of 
said acts or rules and regulations; and what disposition of any such 
statement, application, prospectus or offering sheet has been made.
    (c) Affidavits of individual stockholders, setting forth in what 
corporations, or with what persons, firms, or associations such 
individual stockholders are interested in mining leases on restricted 
lands within the state, and whether they hold such interest for 
themselves or in trust.

    Cross Reference: For rules and regulations of the Securities and 
Exchange Commission, see 17 CFR chapter II.



Sec. 227.7  Additional information from applicant.

    The superintendent may, either before or after approval of a lease, 
call for any additional information desired to carry out the regulations 
in this part. If a lessee shall fail to furnish the papers necessary to 
put his lease and bond in proper form for consideration, the 
superintendent shall forward such lease for disapproval.



Sec. 227.8  Bonds.

    The provisions of Sec. 211.6 of this chapter, or as hereafter 
amended, are applicable to leases under this part.



Sec. 227.9  Acreage limitation: Leases on noncontiguous tracts.

    No person, firm, or corporation will be allowed to lease for oil and 
gas more than 10,240 acres in the aggregate. The land contained in the 
lease shall be described by legal subdivisions, and leases may be 
executed to cover only adjoining or contiguous subdivisions. In case a 
lessee is a successful bidder for two or more tracts of land which are 
not contiguous, separate leases shall be executed.



Sec. 227.10  Minerals other than oil and gas.

    Unreserved, unwithdrawn, and unallotted lands which have not been 
leased for oil and gas under the act of August 21, 1916 (39 Stat. 519) 
and which are not chiefly valuable therefor, are subject to mineral 
application or mineral entry, for minerals other than oil and gas, under 
the supervision of the Bureau of Land Management.



Sec. 227.11  Bureau of Land Management to be furnished copy of lease.

    The Bureau of Land Management shall be furnished with a copy of each 
lease signed by the Secretary of the Interior.



Sec. 227.12  Mineral reserves in nonmineral entries.

    Where lands have been leased under authority of said act of August 
21, 1916 (39 Stat. 519), and nonmineral entry is subsequently lawfully 
made for such lands with a view to obtaining a restricted patent 
therefor, all such subsequently allowed nonmineral entries shall be with 
the mineral reservation prescribed by the act of July 17, 1914 (38 Stat. 
509).



Sec. 227.13  Vested rights to be respected.

    All drilling and other oil and natural gas developments and mining 
operations, work, and improvements, and all other acts and things 
necessary to be done, in connection with the exploration for mining and 
production of oil and natural gas from the leased premises, under the 
terms and conditions of a lease shall be performed with due regard to 
the rights, statutory and otherwise, of others, if any, who may have or 
who may acquire a lawful claim or estate to the leased premises, 
separate and distinct from the oil and gas or other mineral therein 
contained. See act of July 17, 1914 (38 Stat. 509).



Sec. 227.14  Government reserves right to purchase oil and gas.

    In time of war or other public emergency any of the executive 
departments of the United States Government shall have the option to 
purchase

[[Page 730]]

at the posted market price on the date of sale all or any part of the 
minerals produced under any lease.

                           Rents and Royalties



Sec. 227.15  Manner of payment.

    All payments due the lessor shall be made to the superintendent for 
the benefit of the Shoshone Indian Tribe, in accordance with the act of 
August 21, 1916 (39 Stat. 519), and no credit will be given any lessee 
for payments made otherwise. Payments of rentals and royalties except 
the first year's rental, which shall be paid to the superintendent as 
prescribed in Sec. 227.4 shall be transmitted to the superintendent 
through the supervisor. All such payments shall be accompanied by a 
statement, in triplicate, by the lessee, showing the specific items of 
royalty or rental that the remittance is intended to cover, and payment 
of royalties on production shall be made not later than the last day of 
the calendar month following the production for which such payment is to 
be made.



Sec. 227.16  Crediting advance annual payments.

    In the event of discovery of minerals in paying quantities all 
advance rents and advance royalties shall be allowed as credit on 
stipulated royalties as they accrue for the year for which such advance 
payments have been made. No refund of any such advance payment made 
under any lease will be allowed in the event the royalty on production 
for the year is not sufficient to equal such advance payment; nor will 
any part of the moneys so paid be refunded to the lessee because of any 
subsequent surrender or cancellation of the lease.



Sec. 227.17  Rates of rents and royalties.

    (a) The lessee shall pay, beginning with the date of execution of 
leases by the Secretary of the Interior, a rental of $1.25 per acre per 
annum in advance during the continuance thereof, together with a royalty 
of 12\1/2\ percent of the value or amount of all oil, gas, and/or 
natural gasoline, and/or all other hydrocarbon substances produced and 
saved from the land leased, save and except oil and/or gas used by the 
lessee for development and operation purposes on the lease, which oil or 
gas shall be royalty free. A higher rate of royalty may be fixed by the 
Secretary of the Interior or his authorized representative, prior to the 
advertisement of land for oil and gas leases. During the period of 
supervision, ``value'' for the purposes of the lease may, in the 
discretion of the Secretary of the Interior, be calculated on the basis 
of the highest price paid or offered (whether calculated on the basis of 
short or actual volume) at the time of production for the major portion 
of the oil of the same gravity, and gas, and/or natural gasoline, and/or 
all other hydrocarbon substances produced and sold from the field where 
the leased lands are situated, and the actual volume of the marketable 
product less the content of foreign substances as determined by the 
supervisor. The actual amount realized by the lessee from the sale of 
said products may, in the discretion of the Secretary of the Interior, 
be deemed mere evidence of or conclusive evidence of such value. When 
paid in value, such royalties shall be due and payable monthly at such 
time as the lease provides; when royalty on oil produced is paid in 
kind, such royalty oil shall be delivered in tanks provided by the 
lessee on the premises where produced without cost to the lessor unless 
otherwise agreed to by the parties thereto, at such time as may be 
required by the lessor. The lessee shall not be required to hold such 
royalty oil in storage longer than 30 days after the end of the calendar 
month in which said oil is produced. The lessee shall be in no manner 
responsible or held liable for loss or destruction of such oil by causes 
beyond his control.
    (b) The proceeds from all leases shall be taken up in the accounts 
of the superintendent for appropriate deposit for the benefit of the 
Indians.



Sec. 227.18  Free use of gas by lessor.

    If the leased premises produce gas in excess of the lessee's 
requirements for the development and operation of said premises, then 
the lessor may use sufficient gas, free of charge, for any desired 
school or other buildings belonging to the tribe, by making his own 
connections to a regulator installed, connected to the well and 
maintained

[[Page 731]]

by the lessee, and the lessee shall not be required to pay royalty on 
gas so used. The use of such gas shall be at the lessor's risk at all 
times.



Sec. 227.19  Division orders.

    (a) Lessees may make arrangements with the purchasers of oil for the 
payment of the royalties on production to the superintendent by such 
purchasers, but such arrangements, if made, shall not operate to relieve 
a lessee from responsibility should the purchaser fail or refuse to pay 
such royalties when due. Where lessees avail themselves of this 
privilege, division orders permitting the pipeline companies or other 
purchasers of the oil to withhold the royalty interest shall be executed 
and forwarded to the supervisor for approval, as pipeline companies are 
not permitted to accept or run oil from leased Indian lands until after 
the approval of a division order showing that the lessee has a lease 
regularly approved and in effect. When the lessee company runs its own 
oil, it shall execute an intracompany division order and forward it to 
the supervisor for his consideration. The right is reserved for the 
supervisor to cancel a division order at any time or require the 
pipeline company to discontinue to run the oil of any lessee who fails 
to operate the lease properly or otherwise violates the provisions of 
the lease, of the regulations in this part, or of the operating 
regulations.
    (b) When oil is taken by authority of a division order, the lessee 
or his representatives shall be actually present when the oil is gaged 
and records are made of the temperature, gravity and impurities. The 
lessee will be held responsible for the correctness and the correct 
recording and reporting of all the foregoing measurements, which except 
lowest gage, shall be made at the time the oil is turned into the 
pipeline. Failure of the lessee to perform properly these duties will 
subject the division order to revocation.

    Cross Reference: For oil and gas operating regulations of the 
Geological Survey, see 30 CFR part 221.

                               Operations



Sec. 227.20  Permission to start operations.

    (a) No operations will be permitted on any lease before it is 
executed by the Secretary of the Interior.
    (b) Written permission must be secured from the supervisor or his 
representative before any operations are started on the leased premises. 
After such permission is secured the operations must be in accordance 
with the operating regulations promulgated by the Secretary of the 
Interior. Copies of the regulations in this part may be secured from 
either the supervisor or the superintendent, and no operations should be 
attempted without a study of the operating regulations.



Sec. 227.21  Restrictions on operations.

    (a) All leases issued under the provisions of the regulations in 
this part shall be subject to imposition by the Secretary of the 
Interior of such restrictions as to time or times for the drilling of 
wells and as to the production from any well or wells as in his judgment 
may be necessary or proper for the protection of the natural resources 
of the leased land and in the interest of the lessor. In the exercise of 
his judgment the Secretary of the Interior may take into consideration, 
among other things, the Federal laws, State laws, regulations by 
competent Federal or State authorities, lawful agreements among 
operators regulating either drilling or production, or both, and any 
regulatory action desired by tribal authorities.
    (b) All leases issued pursuant to the regulations in this part shall 
be subject to a co-operative or unit development plan affecting the 
leased lands if and when required by the Secretary of the Interior, but 
no lease shall participate in any cooperative or unit plan without prior 
approval of the Secretary of the Interior.



Sec. 227.22  Diligence and prevention of waste.

    The lessee shall exercise diligence in drilling and operating wells 
for oil and gas on the leased lands while such products can be secured 
in paying quantities; carry on all operations in a

[[Page 732]]

good and workmanlike manner in accordance with approved methods and 
practice, having due regard for the prevention of waste of oil or gas 
developed on the land, or the entrance of water through wells drilled by 
the lessee to the productive sands or oil or gas-bearing strata to the 
destruction or injury of the oil or gas deposits, the preservation and 
conservation of the property for future productive operations, and to 
the health and safety of workmen and employees; plug securely all wells 
before abandoning the same and to shut off effectually all water from 
the oil or gas-bearing strata; not drill any well within 200 feet of any 
house or barn on the premises without the lessor's written consent; 
carry out at his expense all reasonable orders and requirements of the 
supervisor relative to prevention of waste, and preservation of the 
property and the health and safety of workmen; bury all pipelines 
crossing tillable lands below plow depth unless other arrangements 
therefor are made with the superintendent; pay all damages to crops, 
buildings, and other improvements on the premises occasioned by the 
lessee's operations: Provided, That the lessee shall not be held 
responsible for delays or casualties occasioned by causes beyond his 
control.



Sec. 227.23  Wells.

    The lessee shall agree (a) to drill and produce all wells necessary 
to offset or protect the leased land from drainage by wells on adjoining 
lands not the property of the lessor, or in lieu thereof, compensate the 
lessor in full each month for the estimated loss of royalty through 
drainage: Provided, That during the period of supervision by the 
Secretary of the Interior, the necessity for offset wells shall be 
determined by the supervisor and payment in lieu of drilling and 
producing shall be with the consent of, and in an amount determined by 
the Secretary of the Interior; (b) at the election of the lessee to 
drill and produce other wells: Provided, That the right to drill and 
produce such other wells shall be subject to any system of well spacing 
or production allotments authorized and approved under the applicable 
law or regulations, approved by the Secretary of the Interior and 
affecting the field or area in which the leased lands are situated; and 
(c) if the lessee elects not to drill and produce such other wells for 
any period the Secretary of the Interior may, within 10 days after due 
notice in writing, either require the drilling and production of such 
wells to the number necessary, in his opinion, to insure reasonable 
diligence in the development and operation of the property, or may in 
lieu of such additional diligent drilling and production require the 
payment on and after the first anniversary date of the lease of not to 
exceed $1 per acre per annum, which sum shall be in addition to any 
rental or royalty herein specified.



Sec. 227.24  Penalties.

    Failure of the lessee to comply with any provisions of the lease, of 
the operating regulations, of the regulations in this part, orders of 
the superintendent or his representative, or of the orders of the 
supervisor or his representative, shall subject the lessee to a penalty 
of not more than $500 per day for each day the terms of the lease, the 
regulations, or such orders are violated: Provided, That the lessee 
shall be entitled to notice, and hearing within 30 days after such 
notice, with respect to the terms of the lease, regulations, or orders 
violated, which hearing shall be held by the supervisor, whose findings 
shall be conclusive unless an appeal be taken to the Secretary of the 
Interior within 30 days after notice of the supervisor's decision, and 
the decision of the Secretary of the Interior upon appeal shall be 
conclusive.



Sec. 227.25  Inspection of premises, books and accounts.

    Lessee shall agree to allow the lessor and his agents or any 
authorized representative of the Interior Department to enter, from time 
to time, upon and into all parts of the leased premises for the purposes 
of inspection and shall further agree to keep a full and correct account 
of all operations and make reports thereof, as required by the 
applicable regulations of the Department; and their books and records, 
showing manner of operations and persons interested, shall be open at 
all times for

[[Page 733]]

examination of such officers of the Department as shall be instructed in 
writing by the Secretary of the Interior or authorized by regulations, 
to make such examination.



Sec. 227.26  Assignments and overriding royalties.

    (a) Leases, or any interest therein, may be assigned or transferred 
only with the approval of the Secretary of the Interior, and to procure 
such approval the assignee must be qualified to hold such lease under 
existing rules and regulations, and shall furnish a satisfactory bond 
for the faithful performance of the covenants and conditions thereof. No 
lease or any interest therein, or the use of such lease, shall be 
assigned, sublet, or transferred directly or indirectly, by working or 
drilling contract, or otherwise without the consent of the Secretary of 
the Interior. Assignments of leases shall be filed with the 
superintendent within 20 days after the date of execution.
    (b) An agreement creating overriding royalties or payments out of 
production under this part shall be subject to the provisions of Sec. 
211.26(d) of this chapter, or as hereafter amended.

[22 FR 10622, Dec. 24, 1957, as amended at 23 FR 9759, Dec. 18, 1958. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 227.27  Stipulations.

    The lessee under any lease heretofore executed may be stipulation 
(Form 5-154i), with the consent of the lessor, make such lease subject 
to all the terms, conditions, and provisions contained in the lease form 
currently in use. Stipulations shall be filed with the superintendent 
within 20 days after the date of execution.



Sec. 227.28  Cancellations.

    Leases shall be irrevocable except for breach of the terms and 
conditions of the same and may be forfeited and cancelled by an 
appropriate proceeding in the U.S. District Court for the District of 
Wyoming whenever the lessee fails to comply with their terms and 
conditions; the lessee may, on approval of the Secretary of the 
Interior, surrender a lease or any part of it:
    (a) That he make application for cancellation to the superintendent 
having jurisdiction over the land.
    (b) That he pay a surrender fee of $1 at the time the application is 
made.
    (c) That he pay all royalties and rentals due to the date of such 
application.
    (d) That he make a satisfactory showing that full provision has been 
made for conservation and protection of the property and that all wells, 
drilled on the portion of the lease surrendered, have been properly 
abandoned.
    (e) If the lease has been recorded, that he file, with his 
application, a recorded release of the acreage covered by the 
application.
    (f) If the application is for the cancellation of the entire lease 
or the entire undivided portion, that he surrender the lease: Provided, 
That where the application is made by an assignee to whom no copy of the 
lease was delivered, he will be required to surrender only his copy of 
the assignment.
    (g) If the lease (or portion being surrendered or canceled) is owned 
in undivided interests by more than one party, then all parties shall 
join in the application for cancellation.
    (h) That all required fees and papers must be in the mail or 
received on or before the date upon which rents and royalties become 
due, in order for the lessee and his surety to be relieved from 
liability for the payment of such royalties and rentals.
    (i) In the event oil or gas is being drained from the leased 
premises by wells not covered by the lease; the lease, or any part of it 
may be surrendered, only on such terms and conditions as the Secretary 
of the Interior may determine to be reasonable and equitable.



Sec. 227.29  Fees.

    Unless otherwise authorized by the Secretary of the Interior or his 
authorized representative, each lease, sublease, or assignment shall be 
accompanied at the time of filing by a fee of $10.

(Sec. 1, 41 Stat. 415, as amended; 25 U.S.C. 413)

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 734]]



Sec. 227.30  Forms.

    The provisions of Sec. 211.30 of this chapter, or as hereafter 
amended are applicable to this part.

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 735]]



                     SUBCHAPTER J_FISH AND WILDLIFE





PART 241_INDIAN FISHING IN ALASKA--Table of Contents




Sec.
241.1 Purpose.
241.2 Annette Islands Reserve; definition; exclusive fishery; licenses.
241.3 Commercial fishing, Annette Islands Reserve.
241.4 Subsistence and sport fishing, Annette Islands Reserve.
241.5 Commercial fishing, Karluk Indian Reservation.
241.6 Enforcement; violation of regulations; corrective action; 
          penalties; closure of restrictions, Annette Islands Reserve.

    Authority: 25 U.S.C. 2, 9; 43 U.S.C. 1457; sec. 15, 26 Stat. 1101, 
48 U.S.C. 358; Presidential Proclamation, Apr. 28, 1916, 39 Stat. 1777; 
sec. 2, 49 Stat. 1250, 48 U.S.C. 358a; sec. 4, 72 Stat. 339, as amended 
73 Stat. 141.

    Source: 28 FR 7183, July 12, 1963, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 241.1  Purpose.

    The purpose of the regulations in this part is to regulate all 
fishing within the Annette Islands Reserve and to regulate Indian and 
other native commercial fishing in the Karluk Indian Reservation, but 
they shall not be construed to limit any rights of Indians or other 
natives of Alaska not specifically covered hereby.



Sec. 241.2  Annette Islands Reserve; definition; exclusive fishery; 
licenses.

    (a) Definition. The Annette Islands Reserve is defined as the 
Annette Islands in Alaska, as set apart as a reservation by section 15 
of the Act of March 3, 1891 (26 Stat. 1101, 48 U.S.C. sec. 358), and 
including the area identified in the Presidential Proclamation of April 
28, 1916 (39 Stat. 1777), as the waters within three thousand feet from 
the shore lines at mean low tide of Annette Island, Ham Island, Walker 
Island, Lewis Island, Spire Island, Hemlock Island, and adjacent rocks 
and islets, located within the broken line upon the diagram attached to 
and made a part of said Proclamation; and also the bays of said islands, 
rocks, and islets.
    (b) Exclusive fishery. The Annette Islands Reserve is declared to be 
exclusively reserved for fishing by the members of the Metlakatla Indian 
Community and such other Alaskan Natives as have joined or may join them 
in residence on the aforementioned islands, and any other person fishing 
therein without authority or permission of the Metlakatla Indian 
Community shall be subject to prosecution under the provisions of 
section 2 of the Act of July 2, 1960 (74 Stat. 469, 18 U.S.C. sec. 
1165).
    (c) Licenses. Members of the Metlakatla Indian Community, and such 
other Alaskan Natives as have joined them or may join them in residence 
on the aforementioned islands, shall not be required to obtain a license 
or permit from the State of Alaska to engage in fishing in the waters of 
the Annette Islands Reserve.



Sec. 241.3  Commercial fishing, Annette Islands Reserve.

    (a) Definition. Commercial fishing is the taking, fishing for, or 
possession of fish, shellfish, or other fishery resources with the 
intent of disposing of such fish, shellfish, or other fishery resources 
or parts thereof for profit, or by sale, barter, trade, or in commercial 
channels.
    (b) Trap fishing sites; number and location. During 1963, and until 
the Secretary of the Interior or his duly authorized representative 
determines otherwise, the Metlakatla Indian Community is permitted to 
operate not more than one trap per site for salmon fishing at any four 
of the following sites in the Annette Islands Reserve, Alaska:
    (1) Annette Island at 55 degrees 15 minutes 09 seconds north 
latitude, 131 degrees 36 minutes 00 seconds west longitude.
    (2) Annette Island at 55 degrees 12 minutes 52 seconds north 
latitude, 131 degrees 36 minutes 10 seconds west longitude.
    (3) Annette Island at 55 degrees 02 minutes 47 seconds north 
latitude, 131 degrees 38 minutes 53 seconds west longitude.

[[Page 736]]

    (4) Annette Island at 55 degrees 05 minutes 41 seconds north 
latitude, 131 degrees 36 minutes 39 seconds west longitude.
    (5) Annette Island at 55 degrees 01 minute 54 seconds north 
latitude, 131 degrees 38 minutes 36 seconds west longitude.
    (6) Annette Island at 55 degrees 00 minutes 45 seconds north 
latitude, 131 degrees 38 minutes 30 seconds west longitude.
    (7) Annette Island at 54 degrees 59 minutes 41 seconds north 
latitude, 131 degrees 36 minutes 48 seconds west longitude.
    (8) Ham Island at 55 degrees 10 minutes 13 seconds north latitude, 
131 degrees 19 minutes 31 seconds west longitude.
    (c) Trap fishing season. Fishing for salmon with traps operated by 
the Metlakatla Indian Community is permitted only at such times as 
commercial salmon fishing with purse seines is permitted by order or 
regulation of the Alaska Board of Fish and Game for Commercial Fishing 
in any part of the following area: from the point at which meridian 
132[deg]17[min]30[sec], thence due east along said parallel to longitude 
130[deg]49[min]15[sec], then due south along said meridian to the point 
at which it intersects with the United States-Canadian boundary, thence 
due west along said boundary to the point of beginning, provided, 
however, that the Secretary or his duly authorized representative may 
upon request by the Metlakatla Indian Community, authorize fishing for 
salmon with traps, at such other times as he shall prescribe, which 
authorization shall be based upon the following criteria:
    (1) Number of fish required for spawning escapement and any other 
requirements reasonable and necessary for conservation;
    (2) Fair and equitable sharing of the salmon resource with other 
user groups fishing in State waters under State law and within the State 
fisheries management system; and
    (3) The federal purpose in the establishment and maintenance of the 
Metlakatla Indian Reservation.
    (d) Size, construction and closure of fish traps--(1) Size. When any 
part of a trap is in a greater depth of water than 100 feet, the trap as 
measured from shore at mean high tide to the outer face of the pot shall 
not extend beyond 900 feet.
    (2) Construction. Poles shall be permanently secured to the webbing 
at each side of the mouth of the pot tunnel and shall extend from the 
tunnel floor to a height at least four feet above the water. A draw line 
shall be reeved through the lower end of both poles and the upper end of 
one.
    (3) Method of closing. The tunnel walls shall be overlapped as far 
as possible across the pot gap and the draw line shall be pulled tight 
and both secured so as to completely close the tunnel. In addition, 25 
feet of the webbing of the heart on each side next to the pot shall be 
lifted or lowered in such manner as to permit the free passage of fish.
    (e) Other forms of commercial fishing. All commercial fishing, other 
than with traps, shall be in accordance with the season and gear 
restrictions established by rule or regulation by the Alaska Board of 
Fish and Game for Commercial Fishing in any part of the previously 
defined area; provided, however, that the Secretary or his duly 
authorized representative may, upon request by the Metlakatla Indian 
Community authorize such other commercial fishing at such times as he 
shall prescribe, which authorization shall be based upon the following 
criteria:
    (1) Number of fish required for spawning escapement and any other 
requirements reasonable and necessary for conservation;
    (2) Fair and equitable sharing of the fishery resource with other 
user groups fishing in State waters under State law and within the State 
fisheries management system; and
    (3) The Federal purpose in the establishment and maintenance of the 
Metlakatla Indian Reservation.

[28 FR 7183, July 12, 1963; 28 FR 12273, Nov. 20, 1963, as amended at 40 
FR 24184, June 5, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 241.4  Subsistence and sport fishing, Annette Islands Reserve.

    (a) Definitions. (1) Subsistence fishing is the taking or attempting 
to take any species of fish or shellfish for purposes other than sale or 
barter, except

[[Page 737]]

as provided for in paragraph (a)(2) of this section.
    (2) Sport fishing is the taking or attempting to take for personal 
use, and not for sale or barter, any fresh water, marine, or anadromous 
fish by hook and line or by such means as defined by regulation or 
statute of the State of Alaska.
    (b) Restrictions. Subsistence fishing within the Annette Islands 
Reserve shall be in accordance with the season, gear and bag 
restrictions established by rule or regulation of the Alaska Board of 
Fish and Game for Commercial Fishing in Fishing District No. 1. Sport 
fishing within the Annette Islands Reserve shall be in accordance with 
the season, gear and bag restrictions established by rule or regulation 
for Southeastern Alaska by the Alaska Board of Fish and Game. Both 
subsistence and sport fishing shall also be in accordance with such 
ordinances as may be adopted by the Council of the Metlakatla Indian 
Community and approved by the Secretary of the Interior.



Sec. 241.5  Commercial fishing, Karluk Indian Reservation.

    (a) Definition. The Karluk Indian Reservation includes all waters 
extending 3,000 feet from the shore at mean low tide on Kodiak Island 
beginning at the end of a point of land on the shore of Shelikof Strait 
about 1\1/4\ miles east of Rocky Point and in approximate latitude 57 
degrees 39 minutes 40 seconds N., longitude 154 degrees 12 minutes 20 
seconds W.; thence south approximately 8 miles to latitude 57 degrees 32 
minutes 30 seconds N.; thence west approximately 12\1/2\ miles to the 
confluence of the north shore of Sturgeon River with the east shore of 
Shelikof Strait; thence northeasterly following the easterly shore of 
Shelikof Strait to the place of beginning, containing approximately 
35,200 acres.
    (b) Who may fish; licenses. The waters of the Karluk Indian 
Reservation shall be open to commercial fishing by bona fide native 
inhabitants of the native village of Karluk and vicinity, and to other 
persons insofar as the fishing activities of the latter do not restrict 
or interfere with fishing by such natives. Such natives shall not be 
required to obtain a license to engage in commercial fishing in the 
waters of the Karluk Indian Reservation.
    (c) Salmon fishing; restrictions. Commercial fishing for salmon by 
native inhabitants of the native village of Karluk and vicinity in the 
waters of the Karluk Indian Reservation shall be in accordance with the 
seasonal and gear restrictions of the rules and regulations of the 
Alaska Board of Fish and Game for Commercial Fishing in the fishing 
district embracing the Karluk Indian Reservation except that:
    (1) Beach seines up to 250 fathoms in length may be used northeast 
of Cape Karluk; and
    (2) Prior to July 1, fishing shall be permitted to within 100 yards 
of the Karluk River where it breaks through the Karluk Spit into 
Shelikof Strait.



Sec. 241.6  Enforcement; violation of regulations; corrective action; 
penalties; closure of restrictions, Annette Islands Reserve.

    (a) Enforcement. The regulations in this part shall be enforced by 
any duly authorized representative of the Secretary of the Interior. Any 
fish trap, vessel, gear, processing establishment or other operation or 
equipment subject to the regulations of this part shall be available for 
inspection at all times by such representative.
    (b) Violation of regulations. Whenever any duly authorized 
enforcement representative of the Secretary of the Interior has 
reasonable cause to believe any violation of the regulations of this 
part relating to fish traps has occurred, he shall direct immediate 
closure of the trap involved and shall affix an appropriate seal thereto 
to prevent further fishing. The matter shall be reported without delay 
to the Area Director, Bureau of Indian Affairs, who shall thereupon 
report and recommend to the Secretary of the Interior appropriate 
corrective action.
    (c) Corrective action. Any violation of the regulations of this part 
relating to fish traps shall be ground for the temporary or permanent 
closure, as the Secretary of the Interior may determine, of any or all 
traps authorized by Sec. 241.3(a), or the withdrawal and rescission of 
the right to fish for salmon with traps at any or all sites authorized 
thereby.

[[Page 738]]

    (d) Penalties. Any person who violates any of the regulations of 
this part shall be subject to prosecution under section 2 of the Act of 
July 12, 1960 (74 Stat. 469, 18 U.S.C. sec. 1165), which provides as 
follows:

    Whoever, without lawful authority or permission, willfully and 
knowingly goes upon any land that belongs to any Indian or Indian tribe, 
band, or group and either are held by the United States in trust or are 
subject to a restriction against alienation imposed by the United 
States, or upon any lands of the United States that are reserved for 
Indian use, for the purpose of hunting, trapping, or fishing thereon, or 
for the removal of game, peltries, or fish therefrom, shall be fined not 
more than $200 or imprisoned not more than ninety days, or both, and all 
game, fish, and peltries in his possession shall be forfeited.

    (e) Closure or restriction, Annette Islands Reserve. The 
Commissioner of Indian Affairs, after consultation with officials of the 
Metlakatla Indian Community, is authorized and directed, upon a 
determination of the necessity to promote sound conversation practices, 
to restrict or close to commercial, subsistence or sport fishing any 
portion of the Annette Islands Reserve by notice given appropriate local 
publicity.

[28 FR 7183, July 12, 1963, as amended at 30 FR 5742, Apr. 23, 1965. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 242_COMMERCIAL FISHING ON RED LAKE INDIAN RESERVATION--Table of 
Contents




Sec.
242.1 Definitions.
242.2 Authority to engage in commercial fishing.
242.3 Authority to operate.
242.4 Fishing.
242.5 Disposition of unmarketable fish.
242.6 Spawning season.
242.7 Suspension.
242.8 Penalty.
242.9 Quotas.
242.10 Fishing equipment limitations.
242.11 Royalty.
242.12 Authority to lease.

    Authority: 25 U.S.C. 2; 5 U.S.C. 301.

    Source: 25 FR 7784, Aug. 16, 1960, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 242.1  Definitions.

    As used in this part:
    (a) ``Secretary'' means the Secretary of the Interior or his 
authorized representative.
    (b) ``Council'' means the General Council of the Red Lake Band of 
the Chippewa Indians as recognized by the Secretary of the Interior.
    (c) ``Association'' means the Red Lake Fisheries Association, 
incorporated under the laws of the State of Minnesota, and whose 
articles of incorporation and bylaws and any amendments thereto have 
been approved by the Council and the Secretary of the Interior.
    (d) ``Member of Association'' means as defined in the Association 
by-laws.
    (e) ``Commercial fishing'' means the catching of any fish for sale 
directly or indirectly to others than Indians on the reservations or 
licensed traders on the reservation for resale to Indians.



Sec. 242.2  Authority to engage in commercial fishing.

    No person shall engage in commercial fishing in the waters of the 
Red Lakes on the Red Lake Indian Reservation in the State of Minnesota 
except the Red Lake Fisheries Association, a corporation organized and 
incorporated under the laws of Minnesota, and its members, and then only 
in accordance with the regulations in this part. The authority hereby 
granted to the Association and its members to engage in commercial 
fishing may, at any time, be canceled and withdrawn and these 
regulations may be modified and amended.



Sec. 242.3  Authority to operate.

    The association may conduct commercial fishing operations on the 
reservation under authority of its articles of incorporation and by-laws 
only in accordance with the regulations in this part.



Sec. 242.4  Fishing.

    (a) Enrolled members of the Red Lake Band of Chippewa Indians may 
take fish at any time except as prohibited by Sec. 242.6 from waters of 
the Red Lakes on the Red Lake Indian Reservation for their own use and 
for sale to:

[[Page 739]]

    (1) Other Indians on the reservation and
    (2) Licensed traders on the reservation for resale to Indians.
    (b) Fish may be taken for commercial purposes only by the 
Association through members of the Association in residence on the 
reservation during the fishing season which shall be May 15 to November 
15 inclusive. All fish taken for such purposes shall be marketed through 
the Association.
    (c) In connection with commercial fishing, Association members 
fishermen may be assisted only by Indians who are members of the Red 
Lake Band.



Sec. 242.5  Disposition of unmarketable fish.

    All unmarketable live fish taken under authority of these 
regulations must be returned to the water, and all unmarketable dead 
fish taken must be buried by the person taking the same.



Sec. 242.6  Spawning season.

    Walleye and northern pike (or pickerel) shall not be taken during 
their spawning season except for propagation purposes.



Sec. 242.7  Suspension.

    All commercial fishing operations may be suspended by order of the 
Secretary at any time.



Sec. 242.8  Penalty.

    Any Indian violating the provisions of Sec. Sec. 242.4 and 242.6 
shall forfeit his right to take fish for any purpose for a period of 
three months.



Sec. 242.9  Quotas.

    The Secretary may set such commercial quotas as he may find 
desirable, based on available biological and other information, on the 
amount of fish which may be taken under authority of the regulations in 
this part in any one season. Until otherwise determined by the 
Secretary, not more than 650,000 pounds of walleyes may be taken in any 
one fishing season.



Sec. 242.10  Fishing equipment limitations.

    (a) Any variety of fish may be taken by enrolled members of the Band 
from any waters on the reservation by hook and line, and from Upper and 
Lower Red Lakes by gill net or entrapment gear for noncommercial use 
only.
    (b) For commercial fishing each member of the Association shall be 
limited to eight gill nets of 300 feet in length and six feet in depth, 
of which not to exceed six of such nets may be of nylon and other 
synthetic material.
    (c) Gill nets for taking pike shall have a mesh of not less that 
3\1/2\ inches extension measure.
    (d) Gill nets for taking whitefish shall have a mesh of not less 
than 5\1/2\ inches extension measure.
    (e) Entrapment gear may only be used by members of the Association 
for taking fish of any variety for commercial purposes or propagation, 
in accordance with such specifications and directions as the manager of 
the Association may provide.
    (f) All nets used in Red Lake Reservation waters must be marked with 
appropriate tags to be furnished by the Association.



Sec. 242.11  Royalty.

    The Association shall pay five percent of the gross receipts from 
the sale of fish by the Association to the designated collection officer 
of the Bureau of Indian Affairs, which shall be deposited to the credit 
of the Band in the Treasury of the United States.



Sec. 242.12  Authority to lease.

    The Band, with the approval of the Secretary, may execute a lease or 
permit on its fisheries plant and hatchery at Redby, Minnesota, to the 
Association.



PART 243_REINDEER IN ALASKA--Table of Contents




Sec.
243.1 What is the purpose of this part?
243.2 What terms do I need to know?
243.3 Delegation of authority.
243.4 Who can own or possess Alaskan reindeer?
243.5 Who can own imported reindeer, and what limitations apply?
243.6 Which sales or transfers of Alaskan reindeer do not require a 
          permit?
243.7 How can a non-Native acquire live reindeer?
243.8 What penalties apply to violations of this part?
243.9 Who may inherit live Alaskan reindeer and by what means?

[[Page 740]]

243.10 How does the Paperwork Reduction Act affect this rule?
243.11 Are transfers of Alaskan reindeer that occurred before issuance 
          of this part valid?
243.12 Are Alaska reindeer trust assets maintained by the U.S. 
          Government for the benefit of Alaska Natives?
243.13 Who may appeal an action under this part?

    Authority: Sec. 12, 50 Stat. 902; 25 U.S.C. 500K.

    Source: 71 FR 2429, Jan. 13, 2006, unless otherwise noted.



Sec. 243.1  What is the purpose of this part?

    The Department's policy is to encourage and develop the activity and 
responsibility of Alaska Natives in all branches of the reindeer 
industry and business in Alaska, and to preserve the Native character of 
that industry and business. This part contains requirements governing 
acquisition and transferring reindeer and reindeer products in Alaska.



Sec. 243.2  What terms do I need to know?

    Act means the Reindeer Act of September 1, 1937 (50 Stat. 900; 25 
U.S.C. 500 et seq.), as amended.
    Alaska Native means Eskimos, Indians, and Aleuts inhabiting Alaska 
at the time of the Treaty of Cession of Alaska to the United States and 
their descendants currently living in Alaska.
    Alaskan reindeer means:
    (1) All reindeer descended from those present in Alaska at the time 
of passage of the Act; and
    (2) Any caribou introduced into animal husbandry or that has joined 
a reindeer herd.
    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior.
    Designee means the person assigned by the Alaska Regional Director 
to administer the reindeer program.
    Imported reindeer means reindeer brought into Alaska from any region 
outside of Alaska since passage of the Act.
    Native reindeer organization means any corporation, association, or 
other organization, whether incorporated or not, composed solely of 
Alaska Natives, for the purpose of engaging in or promoting the reindeer 
industry.
    Non-Native means a person who is not an Alaska Native.
    Regional Director means the officer in charge of the Alaska Regional 
Office of the Bureau of Indian Affairs.
    Reindeer products mean the meat, hide, antlers, or any other 
products derived from reindeer.
    Transfer means the conveyance of ownership of reindeer or reindeer 
products, or any interest in them or interest in an Alaska Native 
reindeer organization, by any method.
    We, us and our mean the Regional Director or the Director's 
designee.



Sec. 243.3  Delegation of authority.

    The Secretary of the Interior has delegated authority under the Act 
through the Assistant Secretary--Indian Affairs to the Alaska Regional 
Director of the Bureau of Indian Affairs. All claims of ownership of 
reindeer in Alaska, as required by the Act (section 500b), must be filed 
with the Regional Director or the Director's designee.



Sec. 243.4  Who can own or possess Alaskan reindeer?

    (a) Only Alaska Natives, organizations of Alaska Natives, or the 
United States for the benefit of these Natives, can own Alaskan reindeer 
in Alaska.
    (1) Any transfer not allowed by this part is not legal, and does not 
confer ownership or the right to keep Alaskan reindeer, reindeer 
products, or any interest in them.
    (2) Anyone violating this part will forfeit their reindeer or 
reindeer products to the Federal Government.
    (b) An Alaska Native or a Native reindeer organization may transfer 
reindeer that they own to other Alaska Natives or Native reindeer 
organizations without restriction, except as provided in this part.
    (c) We may maintain reindeer for research projects, so long as the 
purpose of the research benefits the Native reindeer industry. We retain 
title to these reindeer and will determine their eventual disposition.
    (d) A non-Native manager of Alaskan reindeer must, by the last day 
of September each year:
    (1) Provide us a copy of the contract with the Native reindeer 
owner; and

[[Page 741]]

    (2) Provide us a written report of all Alaskan reindeer kept, born, 
died or transferred.
    (e) We may permit possession of a limited number of Alaskan reindeer 
by a non-Native applicant under a Special Use Permit for Public Display.
    (1) We can revoke this permit for cause.
    (2) The permit will not allow the permit-holder to keep a breeding 
herd (i.e., a herd that is capable of reproduction).
    (3) The permit-holder must report to us in writing by the last day 
of September each year on all reindeer held under this permit.



Sec. 243.5  Who can own imported reindeer, and what limitations apply?

    (a) Anyone, including non-Natives, may own imported reindeer in 
Alaska for any legitimate purpose, subject to State and Federal animal 
health laws and regulations.
    (b) Imported reindeer must not be intermingled with, or be bred to, 
Alaskan reindeer without our written consent. Any offspring resulting 
from a mating with Alaskan reindeer are considered Alaskan reindeer and 
a non-Native owner may not maintain these reindeer alive in Alaska.
    (c) This paragraph applies if a non-Native owner of imported 
reindeer in Alaska contracts with a Native reindeer owner to keep and 
manage the imported reindeer. The non-Native owner must:
    (1) Distinguish the imported reindeer from the Alaskan reindeer by 
applying a distinctly different permanent earmark or tattoo on all 
imported reindeer; and
    (2) Register the earmark or tattoo with the State Division of 
Agriculture book of livestock brand marks.



Sec. 243.6  Which sales or transfers of Alaskan reindeer do not 
require a permit?

    The following transfers do not require a permit:
    (a) Sale or transfer by Alaska Natives of dead reindeer or reindeer 
products; and
    (b) Sale of transfer of live reindeer between Alaska Natives or 
Native reindeer organizations.



Sec. 243.7  How can a non-Native acquire live reindeer?

    If you are a non-Native who wants to acquire live Alaskan reindeer, 
you must apply to us in writing. We will either grant the request and 
issue a written permit valid for 90 days or reject the request and give 
our reasons in writing. Any transfer that we authorize is subject to the 
following conditions:
    (a) The transfer must meet the requirements of the Act and this 
part.
    (b) Within 30 days of transfer, you must either butcher the reindeer 
in Alaska or ship them out of Alaska. If you ship the reindeer out 
alive:
    (1) You must comply with all Federal and State animal health 
regulations governing transfers and shipments; and
    (2) The reindeer and their descendants must never be brought back to 
Alaska alive.
    (c) Within 30 days of the transfer, you must report to us the actual 
number of reindeer shipped out or slaughtered.



Sec. 243.8  What penalties apply to violations of this part?

    If you are a non-Native transferee of live Alaskan reindeer who 
violates the provisions of this part, you are subject to the penalties 
in this section.
    (a) Under 25 U.S.C. 500i, you can be fined up to $5000.00 if you:
    (1) Take possession of reindeer without a permit issued under Sec. 
243.7; or
    (2) Do not abide by the terms of a permit issued under Sec. 243.7 
(including the requirement that you slaughter or export the reindeer 
within 30 days and not bring them back alive into Alaska).
    (b) Under 25 U.S.C. 500b, you are barred from asserting your title 
to the reindeer if you:
    (1) Do not obtain a transfer permit from us and fully comply with 
its terms; or
    (2) Fail to file with us a claim of title to reindeer within 30 days 
of acquiring them.



Sec. 243.9  Who may inherit live Alaskan reindeer and by what means?

    (a) Privately-owned live Alaskan reindeer may pass to the deceased 
owner's Native heirs by descent or devise.
    (b) In the event of the death of an owner of Alaskan reindeer, any 
direct

[[Page 742]]

or indirect interest by descent or devise shall be determined by the 
Department of Interior in a proceeding conducted in accordance with the 
provisions of 43 CFR part 4, subpart D. During the pendency of such a 
proceeding, the authority to assume control over the affected Alaskan 
reindeer pursuant to 43 CFR 4.270 may be exercised by the Alaska 
Regional Director or his designee.
    (c) This paragraph applies if the final probate decree of the 
Department of the Interior, or the decision of any reviewing Federal 
court, identifies a non-Native as inheriting Alaskan reindeer. The non-
Native may inherit, but must be allowed no more than 30 days from 
receiving the final determination of heirship to:
    (1) Slaughter the reindeer;
    (2) Apply for a permit to transfer the reindeer to an out-of-state 
transferee; or
    (3) Transfer ownership of the reindeer to one or more Alaska Native 
family members or other Alaska Native(s).



Sec. 243.10  How does the Paperwork Reduction Act affect this rule?

    The actions in this rule that are covered by the Paperwork Reduction 
Act are cleared under OMB Control Number 1076-0047. The parts subject to 
this control number are 243.4(d), 243.4(e), 243.5(c), 243.7, and 
243.9(c). Please note, a Federal agency may not conduct or sponsor, and 
you are not required to respond to, a collection of information unless 
it displays a currently valid OMB control number.



Sec. 243.11  Are transfers of Alaskan reindeer that occurred before 
issuance of this part valid?

    All transfers of live Alaskan reindeer or reindeer products that 
were completed before the effective date of this part are hereby 
ratified and confirmed. This ratification does not extend to transfers 
that:
    (a) Were fraudulent;
    (b) Were made under duress;
    (c) Did not result in payment of fair compensation to the Native 
transferer; or
    (d) Would have been prohibited under Sec. Sec. 243.6 or 243.8 of 
this part.



Sec. 243.12  Are Alaska reindeer trust assets maintained by the U.S. 
Government for the benefit of Alaska Natives?

    Only the titles to Alaskan reindeer retained for research projects, 
or possessed by non-Natives under Special Use Permits for Public 
Display, or the titles to any Alaskan reindeer which may be acquired by 
the Government in the future for purposes of reestablishing a reindeer 
loan program, are held by the United States in trust for Alaska Natives. 
Other Alaskan reindeer are the private property of the Alaska Native 
owners. However, a trust responsibility continues to exist with respect 
to all Alaskan reindeer, insofar as the Government remains responsible 
for carrying out the provisions of the Reindeer Act and these 
regulations, including the provisions requiring approval of transfers to 
non-Natives, and providing for the determination of inheritance.



Sec. 243.13  Who may appeal an action under this part?

    Any interested party adversely affected by a decision under this 
part has the right of appeal as provided in 25 CFR part 2 and 43 CFR 
part 4, subpart D.



PART 247_USE OF COLUMBIA RIVER TREATY FISHING ACCESS SITES--Table of 
Contents




Sec.
247.1 What definitions apply to this part?
247.2 What lands are subject to these regulations?
247.3 Who is eligible to use the sites?
247.4 How can eligible users be identified?
247.5 What laws and regulations apply to the people who use these sites?
247.6 What will happen if I damage Government-owned property?
247.7 Can I build a structure?
247.8 What am I responsible for if I use the facilities?
247.9 What other rules apply while I am using the facilities?
247.10 What will happen if I abandon property?
247.11 What other restrictions apply to use of the sites?
247.12 Will I have to pay to use a site?
247.13 Are the facilities available year around?

[[Page 743]]

247.14 Can I hook up a campsite to on-site or off-site utilities?
247.15 May I reserve a campsite or drying shed?
247.16 What fire is permitted?
247.17 What are the restrictions on fires?
247.18 What are the sanitation prohibitions?
247.19 Can a site be used for commercial enterprises other than fishing 
          enterprises by the tribes?
247.20 What are the road and trail prohibitions?
247.21 Can I appeal an administrative action?

    Authority: 25 U.S.C. 2 and 9; Pub. L. 100-581, Title IV.

    Source: 62 FR 50868, Sept. 29, 1997, unless otherwise noted.



Sec. 247.1  What definitions apply to this part?

    Abandoned property means property left at a site while the owner of 
the property is not actively engaged in fishing or drying or processing 
fish. Abandoned property may include:
    (1) Vehicles;
    (2) Mobile trailers;
    (3) Campers;
    (4) Tents;
    (5) Tepees;
    (6) Boats, or;
    (7) Other personal property.
    Archaeological Resource means material remains of prehistoric or 
historic human life or activities that are of archaeological interest 
and are at least 50 years of age, and the physical site, location, or 
context in which they are found.
    Area Director means the position responsible for administration of 
the Portland Area of the Bureau of Indian Affairs.
    Campfire means fire, not within any building, motor home or trailer, 
which is used for cooking, personal warmth, lighting, ceremonial or 
aesthetic purposes.
    Damage means to injure, mutilate, deface, destroy, cut, chop, 
girdle, dig, excavate, kill or in any way harm or disturb.
    Secretary means the Secretary of the Interior or his designee.
    Sites means Treaty Fishing Access Sites.
    Treaty Fishing Access Sites means all Federal lands acquired by the 
Secretary of the Army and Transferred to the Secretary of the Interior 
pursuant to Public Law 100-581, Title IV, November 1, 1988, to be 
administered to provide access to usual and accustomed fishing areas and 
ancillary fishing facilities.
    Vehicle means any device in, upon, or by which any person or 
property is or may be transported, and including any motor, frame, 
chassis, or body of any motor vehicle, or camper shell, except devices 
used exclusively upon stationary rails or tracks.



Sec. 247.2  What lands are subject to these regulations?

    (a) Any treaty fishing access sites and ancillary fishing 
facilities.
    (b) These sites and facilities are managed for the exclusive use of 
members of the Nez Perce Tribe, the Confederated Tribes of the Umatilla 
Reservation, the Confederated Tribes of the Warm Springs Reservation of 
Oregon, and the Confederated Tribes and Bands of the Yakima Indian 
Reservation.
    (c) The Area Director may suspend or withdraw the privileges of use 
of any or all of the facilities at the sites for any violation of the 
regulations in this part or of any rules issued under the regulations in 
this part.



Sec. 247.3  Who is eligible to use the sites?

    (a) You may use the sites for access to usual and accustomed fishing 
areas and ancillary fishing facilities if you are a member of the 
Confederated Tribes and Bands of the Yakima Indian Nation (Yakima), the 
Confederated Tribes of the Warm Springs Reservation of Oregon (Warm 
Springs), the Confederated Tribes of the Umatilla Indian Reservation 
(Umatilla), and the Nez Perce Tribe (Nez Perce).
    (b) The general public or people fishing who do not belong to the 
tribes listed above cannot use these sites.
    (c) Families of such Indians may camp on the sites.
    (d) You may not deny access to these sites to any eligible user.



Sec. 247.4  How can eligible users be identified?

    (a) In order to use these sites you must posses an identification 
card issued by your tribe identifying you as a member of that tribe.

[[Page 744]]

    (b) You must exhibit the identification upon request of authorized 
Federal, State, local or tribal officials.



Sec. 247.5  What laws and regulations apply to the people who use these 
sites?

    You may use access sites only if you obey the following rules:
    (a) You may not use any of the sites for any activity that is 
contrary to the provisions of your tribe or contrary to Federal law or 
regulation, or in the absence of Federal law or regulation governing 
health, sanitation, and safety requirements, State or U.S. Public Health 
Service standards.
    (b) The Area Director may suspend or withdraw the privileges of use 
of any or all of the facilities at the sites for any violation of the 
regulations in this part or for any violation of any rules issued under 
the regulations in this part. You cannot dig in, destroy, or remove any 
portion of a prehistoric or historic archaeological site or artifact.
    (c) Nothing contained in the regulations in this part is intended or 
shall be construed as limiting or affecting any treaty rights of any 
tribe nor as subjecting any Indian properly exercising tribal treaty 
rights to State fishing laws or regulations that are not compatible with 
those rights.



Sec. 247.6  What will happen if I damage Government-owned property?

    If you commit any act of vandalism, depredation, destruction, theft, 
or misuse of the land, buildings, fences, signs, or other structures 
that are the property of the United States you will be subject to 
prosecution under applicable Federal or State law.



Sec. 247.7  Can I build a structure?

    (a) You may not build any structures at the sites except as allowed 
under paragraph (d) of this section .
    (b) You may use the camping facilities that have been constructed at 
the sites.
    (c) In addition to these structures, you may camp in tents, tepees, 
campers, and mobile trailers. You must remove any tents, tepees, 
campers, temporary drying sheds, and mobile trailers from the sites at 
any time you are not actively engaged in fishing, drying fish, or 
processing fish by other means, and during the time a site is closed for 
maintenance.
    (d) Where the Area Director has designated areas for the 
construction of temporary drying sheds, you may construct a temporary 
drying shed where space is available. You must remove any temporary 
drying shed you build.
    (e) If you erect or maintain a structure in violation of this 
section, the Area Director may order it removed at any time.
    (f) The Area Director:
    (1) Is not required to notify you before removing the structure; and
    (2) Will charge you the cost of disposing of the structure.



Sec. 247.8  What am I responsible for if I use the facilities?

    You are responsible for:
    (a) Campsites, drying sheds and other facilities during the time you 
occupy or use them; and
    (b) Any personal property that you erect, place, or maintain on the 
site during the time you occupy the site, including:
    (1) Tents;
    (2) Tepees;
    (3) Campers;
    (4) Mobile trailers;
    (5) Temporary drying sheds;
    (6) Fishing platforms;
    (7) Boats; and
    (8) Other fishing equipment.



Sec. 247.9  What other rules apply while I am using the facilities?

    (a) You cannot construct, take possession of, occupy or otherwise 
use any access site or structure for residential purposes at an access 
site.
    (b) Neither the United States nor any officer or employee thereof 
warrants, makes any representation, or is responsible for the safety or 
condition of any personal property.



Sec. 247.10  What will happen if I abandon property?

    If you abandon property at a site, it may be removed without your 
consent and disposed of at your expense, if the Area Director approves.

[[Page 745]]



Sec. 247.11  What other restrictions apply to use of the sites?

    The Area Director may prescribe and post at the sites regulations 
covering:
    (a) Camping;
    (b) Picnicking;
    (c) Use of alcoholic beverages;
    (d) Setting or use of fires;
    (e) Use of the sites for cleaning fish;
    (f) Deposit of garbage, paper, cans, bottles, or rubbish of any 
kind; or
    (g) Use of the sites for any commercial activity (including 
commercial purchase of fish).



Sec. 247.12  Will I have to pay to use a site?

    No. Neither you nor any member of your family will be charged for 
using a site in accordance with this part.



Sec. 247.13  Are the facilities available year around?

    (a) The Area Director may close facilities at the sites for 
necessary maintenance during the winter or at other times if necessary. 
Before closing the facilities, the Area Director will consult with 
delegated tribal representatives, if possible.
    (b) You will still be able to access your treaty fishing rights on 
the Columbia River through these sites while they are closed.
    (c) If any sites are closed or restricted, any affected tribe can 
contact the Area Director and ask that the sites be opened. The Area 
Director will work together with the tribes to consider these requests.



Sec. 247.14  Can I hook up a campsite to on-site or off-site utilities?

    (a) You must share access to all on-site facilities.
    (b) Because there are a limited number of faucets available, only 
short-term hose use is allowed to ensure that others have access to 
water.
    (c) You may not tap into electrical lines or outlets, or have 
electrical power brought in from an outside source for campsite use.



Sec. 247.15  May I reserve a campsite or drying shed?

    No. You may not reserve a campsite, drying shed, or other facility.
    (a) You must use campsites, drying sheds, and other facilities on a 
first-come, first-served basis.
    (b) You may not occupy one or more campsites solely for the purpose 
of reserving a site for another tribal member.



Sec. 247.16  What fire is permitted?

    (a) You may have a fire in designated fire places, and other areas 
designated for fires.
    (b) You may have a fire inside a drying shed in a manner that does 
not jeopardize the structure.



Sec. 247.17  What are the restrictions on fires?

    (a) You cannot burn timber, trees, slash, brush or grass unless you 
have a permit issued by the Area Director or his designee.
    (b) You cannot build a fire in an unsafe location or leave a fire 
without completely extinguishing it.
    (c) You must control all fire and not allow it to escape.



Sec. 247.18  What are the sanitation prohibitions?

    (a) You cannot deposit in any toilet, toilet vault, or plumbing 
fixture anything that could damage or interfere with the operation or 
maintenance of the fixture.
    (b) You must dispose of all garbage, including any paper, cans, 
bottle, sewage, waste water or material, either by removal from the 
site, or by depositing it into receptacles or at places provided for 
such purposes.
    (c) You may not bring refuse, debris, or toxic or hazardous 
materials to the sites for disposal.
    (d) All toxic or hazardous materials must be properly removed from 
the sites. You may not dispose of such materials in a sewer line, tank, 
drain, storm drain, or on the ground.
    (e) You must not place in or near the river or other water any 
substance that pollutes or may pollute the water.
    (f) If dumping stations are not available, you must transport sewage 
off site.

[[Page 746]]



Sec. 247.19  Can a site be used for commercial enterprises other than 
fishing enterprises by the tribes?

    (a) You may operate commercial activities during commercial fishing 
seasons, and subsistence activities, incidental to treaty fishing on the 
site.
    (b) You may not construct or operate other types of commercial 
enterprises, such as firework stands.



Sec. 247.20  What are the road and trail prohibitions?

    (a) You cannot damage or leave in a damaged condition any road, 
trail, or segment thereof.
    (b) You cannot block, restrict, or otherwise interfere with the use 
of a road, trail, or gate.



Sec. 247.21  Can I appeal an administrative action?

    You may appeal any decision made by the Area Director under this 
part to the Commissioner of Indian Affairs. You may appeal any decision 
of the Commissioner of Indian Affairs to the Secretary of the Interior 
in accordance with part 2 of this chapter.



PART 248_USE OF COLUMBIA RIVER INDIAN IN-LIEU FISHING SITES--Table of 
Contents




Sec.
248.1 Fishing sites subject to regulation.
248.2 Persons eligible to use sites.
248.3 Identification of eligible users.
248.4 Applicability of laws and regulations.
248.5 Damage to Government-owned property.
248.6 Structures.
248.7 Liability for condition and use of structures.
248.8 Abandoned property.
248.9 Camping and use restrictions.
248.10 Appeals from administrative actions.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.

    Source: 32 FR 3945, Mar. 10, 1967, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 248.1  Fishing sites subject to regulation.

    Use of any of the lands acquired by the Secretary of War and 
transferred to the Secretary of the Interior pursuant to the Act of 
March 2, 1945 (59 Stat. 22), as amended (hereinafter called ``in lieu 
fishing sites'' or ``sites'') to replace Indian fishing grounds 
submerged or destroyed as a result of the construction of the Bonneville 
Dam shall be subject to the following rules and regulations. The Area 
Director, Portland Area Office, Bureau of Indian Affairs (hereinafter 
called ``Area Director''), may suspend or withdraw the privileges of 
access to or use of any or all the sites for any violation of the 
regulations in this part or of any rules issued pursuant to the 
regulations in this part.



Sec. 248.2  Persons eligible to use sites.

    The in-lieu fishing sites are for the benefit of the Yakima, 
Umatilla, and Warm Springs Indian Tribes, and such other Columbia River 
Indians, if any, who had treaty fishing rights at locations inundated or 
destroyed by Bonneville Dam, to be used is accordance with treaty 
rights. The use of the sites is restricted to such Indians; however, 
this shall not preclude the use of camping areas on the sites by the 
families of such Indians.



Sec. 248.3  Identification of eligible users.

    For the purpose of identification of the persons entitled to use the 
sites, each eligible Indian shall, when using said sites, have in his 
possession an identification card issued by his tribe identifying him as 
a member of that tribe. The Area Director shall issue identification 
cards to such other Columbia River Indians, if any, as may be eligible 
to use the sites. Any individual using the sites shall exhibit the 
identification upon request of authorized Federal, State or local 
officials.



Sec. 248.4  Applicability of laws and regulations.

    No Indian shall use any of the sites for any activity that is 
contrary to the provisions of any applicable law or regulation of his 
tribe or contrary to any applicable State or Federal law or regulation. 
The Area Director may in his discretion suspend or withdraw privileges 
for future access to or use of the sites for violation of such laws and 
regulations: Provided, That, nothing contained in the regulations in 
this part is intended or shall be construed as limiting or affecting any 
treaty rights of any tribe nor as subjecting any Indian properly 
exercising tribal treaty rights

[[Page 747]]

to State fishing laws or regulations which are not compatible with such 
rights.



Sec. 248.5  Damage to Government-owned property.

    Anyone committing any act of depredation, destruction, theft, or 
misuse of the land, buildings, fences, signs, or other structures which 
are the property of the United States shall be subject to prosecution 
under applicable Federal or State law.



Sec. 248.6  Structures.

    Dwellings, camping facilities, and other structures such as fish 
drying facilities and fishing platforms may be erected, placed, or 
maintained on the sites for use in the conduct of treaty fishing and 
related activities. Sites must be used in a manner that conforms to the 
health, sanitation, and safety requirements of the State or local law, 
or, in the absence of appropriate State or local laws, to the health, 
sanitation, and safety recommendations of the U.S. Public Health 
Service. The privileges or right of access to or use of the sites of any 
individual may be suspended or withdrawn, in the discretion of the Area 
Director, when such individual having violated such health, sanitation, 
and safety requirements repeats such violation after having been given 
notice to cease and desist therefrom.

[59 FR 16757, Apr. 7, 1994]



Sec. 248.7  Liability for condition and use of structures.

    Any private structures including drying sheds, tents, tepees, or 
fishing platforms erected, placed, or maintained on the sites are the 
sole responsibility of their owners, and all use of such structures 
shall be at the user's or owner's sole responsibility and risk. Neither 
the United States nor any officer or employee thereof warrants, makes 
any representation, or is responsible for the safety or condition of any 
such structure.

[34 FR 2248, Feb. 15, 1969. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 248.8  Abandoned property.

    No vehicle, trailer, boat, or other personal property shall be 
abandoned on the sites. Property abandoned in violation of the 
regulations in this part may be removed without prior notice to the 
owner and may be disposed of at the owner's expense as determined by the 
Area Director.



Sec. 248.9  Camping and use restrictions.

    All camping, picnicking, use of alcoholic beverages, setting or use 
of fires, use of the sites for cleaning of fish, the deposit of any 
garbage, paper, cans, bottles, or rubbish of any kind, or use of the 
sites for any commercial activity (including commercial purchase of 
fish) shall be subject to such prohibitions, restrictions, or other 
regulations as the Area Director may prescribe and cause to be posted on 
the site or sites to which said regulations are applicable; provided 
that no fee may be charged to any Indian or member of his family for any 
such use.



Sec. 248.10  Appeals from administrative actions.

    Any decision made by the Area Director under this part 248 shall be 
subject to appeal to the Commissioner of Indian Affairs, and any 
decision on the Commissioner of Indian Affairs on such an appeal may be 
appealed to the Secretary of the Interior in accordance with part 2 of 
this chapter.



PART 249_OFF-RESERVATION TREATY FISHING--Table of Contents




                      Subpart A_General Provisions

Sec.
249.1 Purpose.
249.2 Area regulations.
249.3 Identification cards.
249.4 Identification of fishing equipment.
249.5 Use of unauthorized helpers or agents.
249.6 Enforcement and penalties.
249.7 Savings provisions.

    Authority: 25 U.S.C. 2 and 9; 5 U.S.C. 301, unless otherwise noted.

    Source: 32 FR 10434, July 15, 1967, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

[[Page 748]]



                      Subpart A_General Provisions



Sec. 249.1  Purpose.

    (a) The purposes of these regulations (part 249) are:
    (1) To assist in protecting the off-reservation nonexclusive fishing 
rights which are secured to certain Indian tribes by their treaties with 
the United States;
    (2) To promote the proper management, conservation and protection of 
fisheries resources which are subject to such treaties of the United 
States;
    (3) To provide for determination of restrictions on the manner of 
exercising nonexclusive fishing privileges under rights secured to 
Indian tribes by such treaties of the United States necessary for 
conservation of the fisheries resources;
    (4) To assist in the orderly administration of Indian Affairs;
    (5) To encourage consultation and cooperation between the states and 
Indian tribes in the management and improvement of fisheries resources 
affected by such treaties;
    (6) To assist the states in enforcing their laws and regulations for 
the management and conservation of fisheries resources in a manner 
compatible with the treaties of the United States which are applicable 
to such resources.
    (b) The conservation regulations of this part 249 are found to be 
necessary to assure that the nonexclusive rights secured to certain 
Indian tribes by treaties of the United States to fish at usual and 
accustomed places outside the boundaries of an Indian reservation shall 
be protected and preserved for the benefit of present and future members 
of such tribes in a manner consistent with the nonexclusive character of 
such rights. Any exercise of an Indian off-reservation treaty fishing 
right shall be in accordance with this part and any applicable area 
regulations issued hereunder.

[32 FR 10434, July 15, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 249.2  Area regulations.

    (a) The Secretary of the Interior may upon request of an Indian 
tribe, request of a State Governor, or upon his own motion, and upon 
finding that Federal regulation of Indian fishing in any waters in which 
Indians have a treaty-secured nonexclusive fishing right is necessary to 
assure the conservation and wise utilization of the fishery resources 
for the present and future use and enjoyment of the Indians and other 
persons entitled thereto, promulgate regulations to govern the exercise 
of such treaty-secured fishing right in such waters for the purpose of 
preventing, in conjunction with appropriate State conservation laws and 
regulations governing fishing by persons not fishing under treaty 
rights, the deterioration of the fishery resources.
    (b) In formulating such regulations the Secretary of the Interior 
may incorporate such State laws or regulations, or such tribal 
regulations as have been approved by the Commissioner of Indian Affairs, 
as he finds to be consistent with the Indians' rights under the Treaty 
and the conservation of the fishery resources.
    (c) Before promulgating such regulations the Secretary of the 
Interior will seek the views of the affected Indian tribes, of the fish 
or game management agency or agencies of any affected State, and of 
other interested persons. Except in emergencies where the Secretary 
finds that the exigencies require the promulgation of regulations to be 
effective immediately, a notice of proposed rule making will be 
published in the Federal Register in accordance with 5 U.S.C. 553 to 
afford an opportunity to submit comments and information, at such times 
and in such manner as may be specified in the notice. In the event of 
the emergency promulgation of regulations, interested persons will be 
afforded, as soon as possible, an opportunity to request amendment or 
revocation thereof.
    (d) Any regulations issued pursuant to this section shall contain 
provisions for invoking emergency closures or restrictions or the 
relaxation thereof at the field level when necessary or appropriate to 
meet conditions not foreseeable at the time the regulations were issued.
    (e) Regulations issued pursuant to this Sec. 249.2 may include such 
requirements for recording and reporting catch statistics as the 
appropriate state fish and game agencies or the

[[Page 749]]

Secretary of the Interior deem necessary for effective fishery 
management.



Sec. 249.3  Identification cards.

    (a) The Commissioner of Indian Affairs shall arrange for the 
issuance of an appropriate identification card to any Indian entitled 
thereto as prima facie evidence that the authorized holder thereof is 
entitled to exercise the fishing rights secured by the treaty designated 
thereon. The Commissioner may cause a federal card to be issued for this 
purpose or may authorize the issuance of cards by proper tribal 
authorities: Provided, That any such tribal cards shall be countersigned 
by an authorized officer of the Bureau of Indian Affairs certifying that 
the person named on the card is a member of the tribe issuing such card 
and that said tribe is recognized by the Bureau of Indian Affairs as 
having fishing rights under the treaty specified on such card. Copies of 
the form of any identification card authorized pursuant to this section 
and a list of the authorized Bureau of Indian Affairs issuing or 
countersigning officials shall be furnished to the fisheries management 
and enforcement agencies of any State in which such fishing rights may 
be exercised.
    (b) No such card shall be issued to any Indian who is not on the 
official membership roll of the tribe which has been approved by the 
Secretary of the Interior. Provided, That until further notice, a 
temporary card may be issued to any member of a tribe not having an 
approved current membership roll who submits evidence of his/her 
entitlement thereto satisfactory to the issuing officer and, in the case 
of a tribally issued card, to the countersigning officer. Any Indian 
claiming to have been wrongfully denied a card may appeal the decision 
in accordance with part 2 of this chapter.
    (c) No person shall be issued an identification card on the basis of 
membership in more than one tribe at any one time.
    (d) Each card shall state the name, address, tribal affiliation and 
enrollment number (if any) of the holder, identify the treaty under 
which the holder is entitled to fishing rights, contain such additional 
personal identification data as is required on fishing licenses issued 
under the law of the State or States within which it is used, and be 
signed by the issuing officer and by the holder.
    (e) No charge or fee of any kind shall be imposed by the 
Commissioner of Indian Affairs for the issuance of an identification 
card hereunder: Provided, That this shall not prevent any Indian tribe 
from imposing any fee or tax which it may otherwise be authorized to 
impose upon the exercise of any tribal fishing right.
    (f) All cards issued by the Commisssioner of Indian Affairs pursuant 
to this part 249 shall be and remain the property of the United States 
and may be retaken by any Federal, State, or tribal enforcement officer 
from any unauthorized holder. Any card so retaken shall be immediately 
forwarded to the officer who issued it.
    (g) The failure of any person who claims to be entitled to the 
benefits of a treaty fishing right to have such a card in his immediate 
personal possession while fishing or engaging in other activity in the 
claimed exercise of such right to display it upon request to any 
Federal, State, or tribal enforcement officer shall be prima facie 
evidence that the person is not entitled to exercise an Indian fishing 
right under a treaty of the United States.
    (h) No person shall allow any use of his identification card by any 
other person.

(5 U.S.C. 301; R.S. 463 and 465)

[32 FR 10434, July 15, 1967, as amended at 46 FR 4873, Jan. 19, 1981. 
Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 48 FR 1052, 
Jan. 10, 1983]



Sec. 249.4  Identification of fishing equipment.

    All fishing gear or other equipment used in the exercise of any off-
reservation treaty fishing right shall be marked in such manner as shall 
be prescribed in regulations issued pursuant to Sec. 249.2 hereof to 
disclose the identity of its owner or user. In the absence of proof to 
the contrary, any fishing gear which is not so marked or labeled shall 
be presumed not to be used in the exercise of an off-reservation treaty 
fishing

[[Page 750]]

right and shall be subject to control or seizure under State law.



Sec. 249.5  Use of unauthorized helpers or agents.

    No Indian shall, while exercising off-reservations treaty-secured 
fishing rights, permit any person 12 years of age or older other than 
the authorized holder of a currently valid identification card issued 
pursuant to this part 249 to fish for him, assist him in fishing, or use 
any gear of fishing location identified as his gear or location pursuant 
to this part 249.



Sec. 249.6  Enforcement and penalties.

    (a) Any Indian tribe with a tribal court may confer jurisdiction 
upon such court to punish violations by its members of this part 249 or 
of the area regulations issued pursuant thereto. Jurisdiction is hereby 
conferred upon each Court of Indian Offenses established pursuant to 
part 11 of this chapter to punish such violations by members of tribes 
whose reservations are under the jurisdiction of such court. Courts of 
Indian Fishing Offenses may be created pursuant to part 11 of this 
chapter to punish such violations by members of any tribe or group of 
tribes for which there is otherwise no Court of Indian Offenses or 
tribal court with jurisdiction to enforce this part 249. The provisions 
of part 11 of this chapter shall apply to any such court with respect to 
the exercise of its jurisdiction to enforce this part 249. All 
jurisdiction conferred by this section shall apply without regard to any 
territorial limitations otherwise applicable to the jurisdiction of such 
court.
    (b) Acceptance or use of an identification card issued pursuant to 
this part 249 or use of any fishing gear marked or identified pursuant 
thereto shall constitute an acknowledgment that the fishing done under 
such card or with such gear is in the claimed exercise of a tribal 
fishing right and is subject to the jurisdiction of the tribal court, 
Court of Indian Offenses, or Court of Indian Fishing Offenses. Except as 
may be otherwise provided by tribal regulations approved by or on behalf 
of the Secretary of the Interior, any person claiming to be exercising 
such tribal right and fishing in violation of the regulations contained 
in or issued under this part 249 may be punished by a fine of not to 
exceed $500, imprisonment of not to exceed 6 months, or both, and shall 
have his tribal fishing privileges suspended for not less than 5 days 
for any violation of this part 249 or of any area regulation issued 
pursuant thereto. The court shall impound the fishing rights 
identification card of any person for the period which the fishing 
privileges are suspended.



Sec. 249.7  Savings provisions.

    Nothing in this part 249 shall be deemed to:
    (a) Prohibit or restrict any persons from engaging in any fishing 
activity in any manner which is permitted under state law;
    (b) Deprive any Indian tribe, band, or group of any right which may 
be secured it by any treaty or other law of the United States;
    (c) Permit any Indian to exercise any tribal fishing right in any 
manner prohibited by any ordinance or regulation of his tribe;
    (d) Enlarge the right, privilege, or immunity of any person to 
engage in any fishing activity beyond that granted or reserved by treaty 
with the United States;
    (e) Exempt any person or any fishing gear, equipment, boat, vehicle, 
fish or fish products, or other property from the requirements of any 
law or regulation pertaining to safety, obstruction of navigable waters, 
national defense, security of public property, pollution, health and 
sanitation, or registration of boats or vehicles;
    (f) Abrogate or modify the effect of any agreement affecting fishing 
practices entered into between any Indian tribe and the United States or 
any State or agency of either.

[[Page 751]]



                          SUBCHAPTER K_HOUSING





PART 256_HOUSING IMPROVEMENT PROGRAM--Table of Contents




Sec.
256.1 Purpose.
256.2 Definitions.
256.3 Policy.
256.4 Information collection.
256.5 What is the Housing Improvement Program?
256.6 Am I eligible for the Housing Improvement Program?
256.7 What housing services are available under the Housing Improvement 
          Program?
256.8 When do I qualify for Category A assistance?
256.9 When do I qualify for Category B assistance?
256.10 When do I qualify for Category C assistance?
256.11 What are the occupancy and square footage standards for a 
          dwelling provided with Category C assistance?
256.12 Who administers the Housing Improvement Program?
256.13 How do I apply for the Housing Improvement Program?
256.14 What are the steps that must be taken to process my application 
          for the Housing Improvement Program?
256.15 How long will I have to wait for repair, renovation, or 
          replacement of my dwelling?
256.16 Who is responsible for identifying what work will be done on my 
          dwelling?
256.17 What will the servicing housing office do to identify what work 
          is to be done on my dwelling?
256.18 How will I be advised of what work is to be done?
256.19 Who performs the improvements, repairs, or replacement of my 
          dwelling?
256.20 How are these repairs or construction trades persons, home 
          building contractors, or construction companies selected and 
          paid?
256.21 Will I have to vacate my dwelling while repair work or 
          replacement of my dwelling is being done?
256.22 How can I be sure that the work that is being done on my dwelling 
          meets minimum construction standards?
256.23 How will I be advised that the repair, renovation or replacement 
          of my dwelling has been completed?
256.24 Will I need flood insurance?
256.25 Is my Federal government-assisted dwelling eligible for services 
          under the Housing Improvement Program?
256.26 Can I receive Housing Improvement Program services if I am living 
          in a mobile home?
256.27 Can Housing Improvement Program resources be supplemented with 
          other available resources?
256.28 What can I do if I disagree with actions taken under the Housing 
          Improvement Program?

    Authority: 25 U.S.C. 13.

    Source: 63 FR 10134, Mar. 2, 1998, unless otherwise noted.



Sec. 256.1  Purpose.

    The purpose of the part is to define the terms and conditions under 
which assistance is given to Indians under the Housing Improvement 
Program (HIP).



Sec. 256.2  Definitions.

    As used in this part 256:
    Agency means the current organizational unit of the Bureau that 
provides direct services to the governing body or bodies and members of 
one or more specified Indian tribes.
    Appeal means a written request for review of an action or the 
inaction of an official of the Bureau of Indian Affairs that is claimed 
to adversely affect the interested party making the request, as provided 
in part 2 of this chapter.
    Applicant means an individual or persons on whose behalf an 
application for services has been made under this part.
    BIA means the Bureau of Indian Affairs in the Department of the 
Interior.
    Child means a person under the age of 18 or such other age of 
majority as is established for purposes of parental support by tribal or 
state law (if any) applicable to the person at his or her residence, 
except that no other person who has been emancipated by marriage can be 
deemed a child.
    Cost effective means the cost of the project is within the cost 
limits for the category of assistance and adds sufficient years of 
service to the dwelling to satisfy the recipient's housing needs well 
into the future.
    Disabled means legally blind; legally deaf; lack of or inability to 
use one or

[[Page 752]]

more limbs; chair or bed bound; inability to walk without crutches or 
walker; mental disability in an adult of a severity that requires a 
companion to aid in basic needs, such as dressing, preparing food, etc.; 
or severe heart and/or respiratory problems preventing even minor 
exertion.
    Family means one or more persons maintaining a household.
    Household means persons living with the head of household who may be 
related or unrelated to the head of household and who function as 
members of a family.
    Independent trades person means any person possessing the ability to 
perform work in a particular vocation.
    Indian means any person who is a member of any of those tribes 
listed in the Federal Register pursuant to 25 CFR part 83, as recognized 
by and receiving services from the Bureau of Indian Affairs.
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village or community that the Secretary of the Interior 
acknowledges to exist as an Indian tribe pursuant to Pub. L. 103-454, 
108 Stat. 4791.
    Permanent members of household means adults living in the household 
that intend to live there continuously from now on and any children 
defined as a child in this part.
    Regional Director means the officer in charge of a Bureau of Indian 
Affairs regional office or his/her authorized delegate.
    Secretary means the Secretary of the Interior.
    Service area means the reservations (former reservations in 
Oklahoma), allotments, restricted lands, and Indian- owned lands 
(including lands owned by corporations established pursuant to the 
Alaska Native Claims Settlement Act) within a geographical area 
designated by the tribe and approved by the Area Director to which 
equitable services can be delivered.
    Servicing housing office means the tribal housing office or bureau 
housing assistance office administering the Housing Improvement Program 
in the service area in which the applicant resides.
    Standard Housing means a dwelling that is decent, safe, and 
sanitary.
    (1) Except as provided in paragraph (2) of this definition, standard 
housing must meet each of the following conditions:
    (i) General construction must conform to applicable tribal, county, 
State, or national codes and to appropriate building standards for the 
region;
    (ii) The heating system must have the capacity to maintain a minimum 
temperature of 70 degrees in the dwelling during the coldest weather in 
the area;
    (iii) The heating system must be safe to operate and maintain and 
deliver a uniform heat distribution;
    (iv) The plumbing system must include a properly installed system of 
piping and fixtures;
    (v) The electrical system must include wiring and equipment properly 
installed to safely supply electrical energy for lighting and appliance 
operation;
    (vi) Occupants per dwelling must not exceed these limits:
    (A) Two bedroom dwelling: Up to four persons;
    (B) Three-bedroom dwelling: Up to seven persons;
    (C) Four-bedroom dwelling: Adequate for all but the very largest 
families;
    (vii) The first bedroom must have at least 120 sq. ft. of floor 
space and additional bedrooms have at least 100 sq. ft. of floor space 
each;
    (viii) The house site must provide economical access to utilities 
and must be easy to enter and leave; and
    (ix) Aesthetics and access to school bus routes must be considered.
    (2) The following exceptions apply to the standards in paragraph (1) 
of this definition:
    (i) If access to a particular utility is not available and there is 
no prospect of access becoming available, then the standard relating to 
that utility does not apply; and
    (ii) In regions of severe climate, the size of the house may be 
reduced to meet the region's applicable building standards.
    Substandard housing means condition(s) exist that do not meet the 
definition of standard housing in this part of the rule.

[[Page 753]]

    Superintendent means the Bureau official in charge of an agency 
office.

[63 FR 10134, Mar. 2, 1998, as amended at 64 FR 13896, Mar. 23, 1999; 67 
FR 77920, Dec. 20, 2002]



Sec. 256.3  Policy.

    (a) The Bureau of Indian Affairs housing policy is that every 
American family should have the opportunity for a decent home and 
suitable living environment. The Housing Improvement Program will serve 
the neediest of the needy Indian families who have no other resource for 
standard housing.
    (b) Every Indian who meets the basic eligibility criteria defined in 
Sec. 256.6 is entitled to participate in the program. Participation is 
based on priority of need, regardless of tribal affiliation.
    (c) Tribal participation in and direct administration of the Housing 
Improvement Program is encouraged to the maximum extent possible. Tribal 
involvement is necessary to ensure that the services provided under the 
program are responsive to the needs of the tribes and the program 
participants.
    (d) Partnerships with complementary improvement programs are 
encouraged to increase basic benefits derived from the Housing 
Improvement Program fund. An example is the agreement with Indian Health 
Services to provide water and sanitation facilities for Housing 
Improvement Program houses.



Sec. 256.4  Information Collection.

    The information collection requirements contained in Sec. 256.9 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3507 et seq. and assigned clearance number 1076-0084. The 
information is collected to determine applicant eligibility for services 
and eligibility to participate in the program based on the criteria 
referenced in Sec. Sec. 256.9 and 256.10. Response is required to 
obtain a benefit. The public reporting burden for this form is estimated 
to average thirty minutes per response, including the time for reviewing 
the instructions, gathering and maintaining data, and completing and 
reviewing the form.



Sec. 256.5  What is the Housing Improvement Program?

    The Housing Improvement Program is a safety-net program that 
provides grants for the cost of services to repair, renovate, replace, 
or provide housing. The program provides grants to the neediest of the 
needy Indian families who:
    (a) Live in substandard housing or are without housing; and
    (b) Have no other resource for assistance.

[67 FR 77920, Dec. 20, 2002]



Sec. 256.6  Am I eligible for the Housing Improvement Program?

    You are eligible for the Housing Improvement Program if:
    (a) You are a member of a Federally recognized American Indian tribe 
or Alaska Native village;
    (b) You live in an approved tribal service area;
    (c) Your annual income does not exceed 125 percent of the Department 
of Health and Human Services poverty income guidelines. These guidelines 
are available from your servicing housing office;
    (d) Your present housing is substandard as defined in Sec. 256.2; 
and
    (e) You meet the ownership requirements for the assistance needed, 
as defined in Sec. 256.8, Sec. 256.9, or Sec. 256.10;
    (f) You have no other resource for housing assistance;
    (g) You have not received assistance after October 1, 1986, for 
repairs and renovation, replacement or housing, or down payment 
assistance; and
    (h) You did not acquire your present housing through participation 
in a Federal government-sponsored housing program that includes 
provision for the assistance referred to in paragraph (g) of this 
section.

[63 FR 10134, Mar. 2, 1998; 64 FR 13896, Mar. 23, 1999]

[[Page 754]]



Sec. 256.7  What housing services are available under the Housing 
Improvement Program?

    There are three categories of assistance available under the Housing 
Improvement Program, as outlined in the following table.

------------------------------------------------------------------------
                                                        Where to find
   Type of  assistance         What it provides          information
------------------------------------------------------------------------
Category A...............  Up to $2,500 in safety    Sec.  256.8
                            or sanitation repairs
                            to the dwelling in
                            which you live, which
                            will remain
                            substandard. Can be
                            provided more than
                            once, but for not more
                            than one dwelling and
                            the total assistance
                            cannot exceed $2,500.
Category B...............  Up to $35,000 in repairs  Sec.  256.9
                            and renovation, which
                            will bring your
                            dwelling to Standard
                            Housing condition, as
                            defined in Sec.
                            256.2. Can only be
                            provided once.
Category C...............  A modest dwelling that    Sec.  256.10 &
                            meets the criteria in     Sec.  256.11.
                            Sec.  256.11; and the
                            definition of Standard
                            Housing in Sec.
                            256.2; and whose costs
                            are determined by and
                            limited to the criteria
                            in 256.17(b). can only
                            be provided once.
------------------------------------------------------------------------


[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77920, Dec. 20, 2002]



Sec. 256.8  When do I qualify for Category A assistance?

    You qualify for interim improvement assistance under Category A if 
it is not cost effective to renovate the dwelling in which you live and 
if either of the following is true:
    (a) Other resources to meet your housing needs exist but are not 
immediately available; or
    (b) You qualify for replacement housing under Category C, but there 
are no Housing Improvement Program funds available to replace your 
dwelling.

[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77920, Dec. 20, 2002]



Sec. 256.9  When do I qualify for Category B assistance?

    You qualify for repairs and renovation assistance under Category B 
if you meet the requirements of this section.
    (a) Your servicing housing office must determine that it is cost 
effective to repair and renovate the dwelling.
    (b) You must occupy the dwelling and must either:
    (1) Own the dwelling; or
    (2) Lease the dwelling with:
    (i) An undivided leasehold (i.e., you are the only lessee); and
    (ii) A leasehold that will last at least 25 years from the date that 
you receive the assistance.
    (c) The servicing housing office must determine that the repairs and 
renovation will bring the dwelling to standard housing condition.
    (d) You must sign a written agreement stating that, if you sell the 
dwelling within 5 years of the completion of repairs and renovation:
    (1) The assistance grant under this part will be voided; and
    (2) At the time of settlement, you will repay BIA the full cost of 
all repairs and renovation made under this part.

[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77920, Dec. 20, 2002]



Sec. 256.10  When do I qualify for Category C assistance?

    (a) You qualify for replacement housing assistance under Category C 
if you meet one of the four sets of requirements in the following table.

------------------------------------------------------------------------
 You qualify for Category C
     assistance if * * *            And * * *             And * * *
------------------------------------------------------------------------
You own the dwelling in       The dwelling cannot   ....................
 which you are living.         be brought up to
                               applicable building
                               code standards and
                               to standard housing
                               condition for
                               $35,000 or less.
You lease the dwelling in     Your leasehold is     The dwelling cannot
 which you are living.         undivided and for     be brought up to
                               not less than 25      applicable building
                               years at the time     code standards and
                               that you receive      to standard housing
                               assitance.            condition for
                                                     $35,000 or less.

[[Page 755]]

 
You do not own a dwelling...  You own land that is  The land has
                               suitable for          adequate ingress
                               housing.              and egress rights
                                                     and economical
                                                     access to
                                                     utilities.
You do not own a dwelling...  You have a leasehold  The land has
                               on land that is       adequate ingress
                               suitable for          and egress rights
                               housing and the       and economical
                               leasehold is          access to
                               undivided and for     utilities.
                               not less than 25
                               years at the time
                               you receive
                               assistance.
------------------------------------------------------------------------

    (b) If you qualify for assistance under paragraph (a) of this 
section, you must sign a written grant agreement stating that, if you 
sell the dwelling within 10 years of assuming ownership:
    (1) The grant under this part will be voided; and
    (2) At the time of settlement, you will repay BIA the full cost of 
the dwelling.
    (c) If you sell the dwelling more than 10 years after you assume 
ownership, the following conditions apply:
    (1) You may retain 10 percent of the original cost of the dwelling 
per year, beginning with the eleventh year.
    (2) If you sell the dwelling after the first 20 years, you will not 
have to repay BIA.

[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77921, Dec. 20, 2002]



Sec. 256.11  What are the occupancy and square footage standards for 
a dwelling provided with Category C assistance?

    A modest dwelling provided with Category C assistance will meet the 
standards in the following table.

------------------------------------------------------------------------
                                                                Total
                                                               dwelling
              Number of occupants                Number of      square
                                                  bedrooms   footage \1\
                                                              (maximum)
------------------------------------------------------------------------
1-3...........................................        \2\ 2          900
4-6...........................................        \2\ 3         1050
7 or more.....................................        \2\ 4     \3\1350
------------------------------------------------------------------------
\1\ Total living space; does not include hallways or modest-sized
  bathrooms or closets.
\2\ Determined by the servicing housing office, based on composition of
  family.
\3\ Adequate for all but the very largest families.


[67 FR 77921, Dec. 20, 2002]



Sec. 256.12  Who administers the Housing Improvement Program?

    The Housing Improvement Program is administered by a servicing 
housing office operated by:
    (a) A Tribe, under a Pub. L. 93-638 contract or a self-governance 
annual funding agreement; or
    (b) The Bureau of Indian Affairs.



Sec. 256.13  How do I apply for the Housing Improvement Program?

    (a) First, you must obtain an application, BIA Form 6407, from your 
nearest servicing housing office.
    (b) Second, you must complete and sign BIA Form 6407.
    (c) Third, you must submit your completed and signed application to 
your servicing housing office. Submission to the nearest BIA housing 
office does not preclude tribal approval of the application.
    (d) Fourth, you must furnish documentation proving tribal 
membership. Examples of acceptable documentation include a copy of your 
Certificate of Degree of Indian Blood (CDIB) or a copy of your tribal 
membership card.
    (e) Fifth, you must provide proof of income from all permanent 
members of your household.
    (1) You must submit signed copies of current 1040 tax returns from 
all permanent members of the household, including W-2's and all other 
attachments.
    (2) You must provide proof of all other income from all permanent 
members of the household. This includes unearned income such as social 
security, general assistance, retirement, and unemployment benefits.
    (3) If you or other household members did not file a tax return, you 
must submit a signed notarized statement explaining why you did not.
    (f) Sixth, you must furnish a copy of your annual trust income 
statement from your Individual Indian Money (IIM) account, for royalty, 
lease, and other monies, from your home agency. If you do not have an 
account, you

[[Page 756]]

must furnish a statement from your home agency to that effect.
    (g) Seventh, you must provide proof of ownership of the residence 
and/or land:
    (1) For fee property, you must provide a copy of a fully executed 
Warranty Deed, which is available at your local county court house;
    (2) For trust property, you must provide certification from your 
home agency;
    (3) For tribally owned land, you must provide a copy of a properly 
executed tribal assignment, certified by the agency; or
    (4) For multi-owner property, you must provide a copy of a properly 
executed lease.

[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77921, Dec. 20, 2002]



Sec. 256.14  What are the steps that must be taken to process my 
application for the Housing Improvement Program?

    (a) The servicing housing office must review your application for 
completeness. If your application is incomplete, the office will notify 
you, in writing, what is needed to complete your application and the 
date it must be submitted. If you do not return your application by the 
deadline date, you will not be considered for assistance in that program 
year.
    (b) The servicing housing office will use your completed application 
to determine if you are eligible for the Housing Improvement Program.
    (1) If you are found ineligible for the Housing Improvement Program 
or otherwise do not qualify for the program, the servicing housing 
office will advise you in writing within 45 days of receipt of your 
completed application.
    (2) If you are found eligible for the Housing Improvement Program, 
the servicing housing office will assess your application for need, 
according to the factors and numeric values shown in the following 
table.

------------------------------------------------------------------------
               Ranking factor and       Randing
    Factor         definition         description      Point descriptors
------------------------------------------------------------------------
1............  Annual Household    Income/125% FPG    Points
                Income: Must        \1\                (maximum=40):
                include income of  (% of 125% FPC)
                all persons         \1\.
                counted in
                Factors 2, 3, 4.
                Income includes
                earned income,
                royalties, and
                one-time income.
                                   0-25               40
                                   26-50              30
                                   51-75              20
                                   76-100             10
                                   101-125            0
2............  Aged Persons: For   Years of Age:      Points:
                the benefit of
                persons age 55 or
                older, and Must
                be living in the
                dwelling.
                                   Less than 55.....  0
                                   55 and older.....  1 point per year
                                                       of age over 54
3............  Disabled            % of Disability--  Points
                Individual: Any     (A% + B%/2):.      (Maximum=20):
                one (1) disabled
                person living in
                the dwelling.
                (The percentage
                of disability
                must be based on
                the average
                (mean) of the
                percentage of
                disabilities
                identified from
                two sources (A+B)
                of statements of
                conditions which
                may include a
                physician's
                certification,
                Social Security
                or Veterans
                Affairs
                determination, or
                similar
                determination).
                                   100%.............  20
                                   or...............
                                   Less than 100%...  10
4............  Dependent           Dependent Child--  Points (Maximum =
                Children: Must be   (Number of         5):
                under the age of    Children):
                18 or such other
                age established
                for purposes of
                parental support
                by tribal or
                state law (if
                any). Must live
                in the dwelling
                and not be
                married.
                                   1................  0
                                   2................  1
                                   3................  2
                                   4................  3
                                   5................  4
                                   6 or more........  5
------------------------------------------------------------------------
\1\ FPG means Federal Poverty Guidelines.


[[Page 757]]

    (c) The servicing housing office will develop a list of the 
applications considered and/or received for the Housing Improvement 
Program for the current program year. The list will include, at a 
minimum, sufficient information to determine:
    (1) The current program year;
    (2) The number of applications considered and/or received;
    (3) The eligible applicants, ranked in order of need, from highest 
to lowest, based on the total numeric value assigned according to the 
factors shown in table B. (In the case of a tie, the family with the 
lower income will be listed first);
    (4) The estimated allowable costs of the improvements, repairs or 
replacement projects for the eligible applicants and the ``Priority 
List,'' identifying which applicants will be served based on the amount 
of available funding, starting with the most needy applicant and 
continuing until the amount of available funding is depleted; and
    (5) The applicants not ranked, with an explanation (such as reason 
for ineligibility or reason for incomplete application).
    (d) Your servicing housing office will inform you in writing within 
45 days of completion of the listing whether funding is available to 
provide Housing Improvement Program services to you in that program 
year.
    (1) If funding is available, you will be provided appropriate 
information concerning the availability of Housing Improvement Program 
services.
    (2) If funding is not available, you will be advised, in writing, 
and provided appropriate information concerning submission for the next 
available program year. At the option of your servicing housing office 
and when extenuating circumstances exist, your application can be 
carried forward, for one year, into the next program year. You will be 
advised that you must provide written confirmation that the information 
in your application is still accurate and that you must provide current 
income documentation for that application to be considered in the next 
program year.
    (e) Your servicing housing office will prepare an annual report 
identifying construction work undertaken during the fiscal year and 
related construction expenditures. The annual report is due to the 
servicing regional office on the fifteenth day after the end of the 
fiscal year. The report, at a minimum, will contain:
    (1) Number of Eligible Applicants;
    (2) Number of Applicants Provided Service;
    (3) Names of Applicants Provided Service;
    (4) For Each Applicant Provided Service:
    (i) Date of Construction Start;
    (ii) Date of Construction Completion, if applicable;
    (iii) Cost;
    (iv) HIP Category.

[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77921, Dec. 20, 2002]



Sec. 256.15  How long will I have to wait for repair, renovation, or 
replacement of my dwelling?

    The length of time that it takes to accomplish the work to be done 
on your dwelling is dependent on:
    (a) Whether funds are available;
    (b) The type of work to be done;
    (c) The climate and seasonal conditions where your dwelling is 
located;
    (d) The availability of a contractor;
    (e) Your position on the priority list; and
    (f) Other unforeseen factors.



Sec. 256.16  Who is responsible for identifying what work will be 
done on my dwelling?

    The servicing housing office is responsible for identifying what 
work is to be done on your dwelling or whether your dwelling will be 
replaced. This includes responsibility to communicate and coordinate, 
through provision of the current Priority List, with the Indian Health 
Service, when it is the organization responsible for verifying the 
availability/feasibility of water and wastewater facilities.



Sec. 256.17  What will the servicing housing office do to identify what 
work is to be done on my dwelling?

    (a) First, a trained and qualified representative of your servicing 
housing office must visit your dwelling to identify what repairs or 
renovation are to

[[Page 758]]

be done under the Housing Improvement Program. The representative must 
ensure that flood, National Environmental Protection Act (NEPA) and 
earthquake requirements are met.
    (b) Second, based on the list of repairs or renovation to be done, 
the representative must estimate the total cost of repairs or renovation 
to your dwelling. Cost estimates must be based on locally available 
services and product costs, or other regional-based, industry-recognized 
cost data, such as that provided by the MEANs or MARSHALL SWIFT. If the 
dwelling is located in Alaska, documented, reasonable, substantiated 
freight costs, in accordance with Federal Property Management 
Regulations (FPMR 101-40), not to exceed 100 percent of the cost of 
materials, can be added to the cost of the project.
    (c) Third, the representative must determine which Housing 
Improvement Program category the improvements to your dwelling meet, 
based on the estimated cost of repairs or renovation. If the estimated 
cost to repair your dwelling is more than $35,000, the representative 
must approve your dwelling for replacement or refer you to another 
source for housing. The other source does not have to be for a 
replacement dwelling; it may be for government-subsidized rental units 
or other sources for standard housing.
    (d) Fourth, the representative must develop a detailed, written 
report, also called ``bid specifications'' that identifies what and how 
the repairs, renovation, or construction work is to be accomplished at 
the dwelling.
    (1) When the work includes new construction, the ``bid 
specifications'' will be supplemented with a set of construction plans. 
The plans must not exceed the occupancy and square footage criteria 
identified in Sec. 256.11. The plans must be sufficiently detailed to 
provide complete instructions to the builder for the purpose of 
construction.
    (2) ``Bid Specifications'' are also used to inform potential bidders 
of what work is to be done.

[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77922, Dec. 20, 2002]



Sec. 256.18  How will I be advised of what work is to be done?

    You will receive written notice from the servicing housing office of 
what work is being scheduled under the Housing Improvement Program. You 
will be requested to concur with the scheduled work by signing a copy of 
the notice and returning it to the servicing housing office. No work 
will be started until the signed copy is returned to the servicing 
housing office.



Sec. 256.19  Who performs the improvements, repairs, or replacement 
of my dwelling?

    Independent or tribal repair or construction trades persons, home 
building contractors, or construction companies will perform the 
repairs, renovation, or replacement of your dwelling.

[63 FR 10134, Mar. 2, 1998, as amended at 67 FR 77922, Dec. 20, 2002]



Sec. 256.20  How are these repairs or construction trades persons, home 
building contractors, or construction companies selected and paid?

    The servicing housing office must follow Federal procurement or 
other Bureau-approved tribal procurement policy. Generally, your 
servicing housing office develops a ``bid specification'' or statement 
of work, which identifies the work to be performed. The appropriate 
contracting office uses the ``bid specification'' to provide information 
and invite bids on the project to interested parties. The contracting 
office selects the winning bidder after technical review of the bids by 
and written recommendation from the servicing housing office, and after 
determination that the bidder is qualified and capable of completing the 
project as advertised.
    (a) Payments to the winning bidder are negotiated in the contract 
and based on specified delivery of services.
    (1) Partial payments will not exceed 80 percent of the value of the 
completed work.
    (2) Final payment will be made after final inspection and after all 
provisions of the contract have been met, including punch list items.

[[Page 759]]



Sec. 256.21  Will I have to vacate my dwelling while repair work or 
replacement of my dwelling is being done?

    (a) You will be notified by the servicing housing office that you 
must vacate your dwelling only if:
    (1) It is scheduled for major repairs requiring that all occupants 
vacate the dwelling for safety reasons; or
    (2) It is scheduled for replacement which requires the demolition of 
your current dwelling.
    (b) If you are required to vacate the premises for the duration of 
the construction, you are responsible for:
    (1) Locating other lodging;
    (2) Paying all costs associated with vacating and living away from 
the dwelling; and
    (3) Removing all your belongings and furnishings before the 
scheduled beginning work date.



Sec. 256.22  How can I be sure that the work that is being done on my 
dwelling meets minimum construction standards?

    (a) At various stages of construction, a trained and qualified 
servicing housing office representative or building inspector will 
review the construction to ensure that it meets applicable minimum 
construction standards and building codes. Upon completion of each 
stage, further construction is prohibited until the inspection occurs 
and approval is granted.
    (b) Inspections are, at a minimum, made at the following stages of 
construction:
    (1) Footings;
    (2) Closed in, rough wiring and rough plumbing; and
    (3) At final completion.



Sec. 256.23  How will I be advised that the repair, renovation or 
replacement of my dwelling has been completed?

    The servicing housing office will advise you, in writing, that the 
work has been completed in compliance with the project contract. Also, 
you will have a final walk-through of the dwelling with your servicing 
housing office representative. You will be requested to verify that you 
received the notice of completion of the work by signing a copy of the 
notice and returning it to the servicing housing office representative.



Sec. 256.24  Will I need flood insurance?

    You will need flood insurance if your dwelling is located in an area 
identified as having special flood hazards under the Flood Disaster 
Protection Act of 1973 (Pub. L. 93-234, 87 Stat. 977). Your servicing 
housing office will advise you.

[63 FR 10134, Mar. 2, 1998. Redesignated at 67 FR 77922, Dec. 20, 2002]



Sec. 256.25  Is my Federal government-assisted dwelling eligible for 
services under the Housing Improvement Program?

    Yes. You may receive services under the Housing Improvement Program 
if your home was purchased through a Federal government sponsored home 
program that does not include provision for housing assistance.

[63 FR 10134, Mar. 2, 1998. Redesignated at 67 FR 77922, Dec. 20, 2002]



Sec. 256.26  Can I receive Housing Improvement Program services if I am 
living in a mobile home?

    Yes. If you meet the eligibility criteria in Sec. 256.6 and there 
is sufficient funding available, you can receive any of the Housing 
Improvement Program services identified in Sec. 256.7. If you require 
Category B services and your mobile home has exterior walls of less than 
three inches, you must be provided Category C services.

[63 FR 10134, Mar. 2, 1998. Redesignated at 67 FR 77922, Dec. 20, 2002]



Sec. 256.27  Can Housing Improvement Program resources be supplemented 
with other available resources?

    Yes. Housing Improvement Program resources may be supplemented 
through other available resources to increase the number of Housing 
Improvement Program recipients.

[63 FR 10134, Mar. 2, 1998. Redesignated at 67 FR 77922, Dec. 20, 2002]

[[Page 760]]



Sec. 256.28  What can I do if I disagree with actions taken under the 
Housing Improvement Program?

    You may appeal action or inaction by an official of the Bureau of 
Indian Affairs, in accordance with 25 CFR part 2. You may appeal action 
or inaction by tribal officials through the appeal process established 
by the servicing tribe.

[63 FR 10134, Mar. 2, 1998. Redesignated at 67 FR 77922, Dec. 20, 2002]

[[Page 761]]



                   SUBCHAPTER L_HERITAGE PRESERVATION





PART 262_PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents




Sec.
262.1 Purpose, scope and information collection.
262.2 Definitions.
262.3 Consultation to determine need for a permit.
262.4 Activities by Indian tribes or individuals that require a permit.
262.5 Application for permits.
262.6 Landowner consent by the Secretary.
262.7 Notice to Indian tribes of possible harm to cultural or religious 
          sites.
262.8 Custody of archaeological resources.

    Authority: 16 U.S.C. 470aa-11.

    Cross Reference: For uniform regulations issued by the Departments 
of Agriculture, Defense, and the Interior and the Tennessee Valley 
Authority pertaining to the protection of archaeological resources, and 
for supplemental regulations issued by the Department of the Interior 
pertaining to the same, see 43 CFR part 7, subparts A and B.

    Source: 58 FR 65249, Dec. 13, 1993, unless otherwise noted.



Sec. 262.1  Purpose, scope and information collection.

    (a) Purpose and scope. The purpose of this part is to implement 
certain provisions of the Archaeological Resources Protection Act (Act) 
of 1979 (16 U.S.C. 470aa-11), in accordance with section 10(b) and 
consistent with uniform regulations promulgated under section 10(a) by 
the Secretaries of the Interior, Agriculture, and Defense and the 
Chairman of the Board of the Tennessee Valley Authority (43 CFR part 7, 
36 CFR part 296, 32 CFR parts 229 and 1312) on February 6, 1984. This 
part shall provide guidance to officials of the Bureau of Indian Affairs 
(BIA) on the implementation of the Act as it pertains to this agency.
    (b) Information collection. The information collection requirements 
contained in Sec. 262.5 do not require approval by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq.



Sec. 262.2  Definitions.

    As used for purposes of this part:
    (a) Funerary objects means objects that, as a part of the death rite 
or ceremony of a culture, are reasonably believed to have been placed 
with human remains of Indians either at the time of death or later, or 
to have been made exclusively for burial purposes or to contain such 
remains.
    (b) Sacred objects means specific ceremonial objects that are needed 
by traditional Indian religious leaders for the practice of traditional 
Indian religions by their present day adherents.
    (c) Object of cultural patrimony means an object having ongoing 
historical, traditional, or cultural importance central to an Indian 
tribe itself and that shall have been considered inalienable by the 
tribe at the time the object was separated therefrom.
    (d) Indian individual means:
    (1) Any person who is an enrolled member of a Federally recognized 
Indian tribe;
    (2) Any person who is a descendent of such a member and was, on June 
1, 1934, physically residing within the present boundaries of any Indian 
reservation; or
    (3) Any other person of one-half or more Indian blood of tribes 
indigenous to the United States.
    (e) Lands of Indian tribes means land or any interest therein:
    (1) The title to which is held in trust by the United States for an 
Indian tribe; or
    (2) The title to which is held by an Indian tribe, but which cannot 
be alienated or encumbered by the owner without the approval of the 
Secretary because of limitations contained in the conveyance instrument 
pursuant to Federal law or because of a Federal law directly imposing 
such restrictions.
    (f) Lands of Indian individuals means land or any interest therein:
    (1) The title to which is held in trust by the United States for the 
benefit of Indian individuals; or
    (2) The title to which is held by Indian individuals, but which 
cannot be alienated or encumbered by the owner without the approval of 
the Secretary because of limitations contained in the conveyance 
instrument pursuant to Federal law or because of a Federal law directly 
imposing such restrictions.

[[Page 762]]



Sec. 262.3  Consultation to determine need for a permit.

    (a) Any person, except as provided in the uniform regulations at 43 
CFR 7.5(b) through (d), who proposes to excavate or remove 
archaeological resources on Indian lands or on properties owned or 
administered by the BIA must first apply for and secure a permit under 
the Act. Procedures relating thereto are set forth in Sec. 262.5 of 
this part.
    (b) No permit under the Act, nor any other Federally issued license 
or authorization, is required for archaeological investigations that do 
not involve the excavation or removal of archaeological resources on 
these lands, except for BIA consent on properties that it owns or 
administers. Notwithstanding, persons other than those covered under 43 
CFR 7.5(b) through (d) shall, before engaging in such investigations:
    (1) Write to the head of each tribal government having jurisdiction 
over the lands where investigations are to be conducted and request that 
he or she provide, within 30 days, written information on any permit, 
license or other form of authorization the tribe might require for the 
work proposed; and
    (2) Provide the BIA Area Director with a copy of the tribe's written 
response (or a copy of the request to the tribe if 30 days have elapsed 
without any response) plus a brief but clear written description of the 
proposed work and obtain his or her written determination as to whether 
or not a permit under the Act is required. Area Directors shall provide 
determinations within 10 working days after receiving such 
documentation.



Sec. 262.4  Activities by Indian tribes or individuals that require a 
permit.

    (a) No Indian tribe may, without a permit under the Act, excavate or 
remove archaeological resources on:
    (1) Lands of another Indian tribe; or
    (2) Lands of Indian individuals, except those on which the law of 
that tribe regulates such activity.
    (b) No individual Indian may, without a permit under the Act, 
excavate or remove archaeological resources on any Indian lands 
(including his or her own) other than those on which the law of the 
tribe of which he or she is a member regulates such activity.
    (c) No person, as an employee, consultant, advisor or in any other 
capacity as an agent for any Indian tribe, shall be exempt from the 
permit requirements of the Act, except in the cases listed below:
    (1) No permit shall be required if a person is a member of the tribe 
having jurisdiction over the resources in question and the law of that 
tribe regulates the excavation or removal of archaeological resources on 
its lands.
    (2) Tribal employees need not submit permit applications to the BIA 
if:
    (i) The proposed excavation or removal of archaeological resources 
is within the normal scope of their duties or otherwise carried out by 
direction of the tribal government;
    (ii) The work is on Indian lands of the tribe or on which the law of 
that tribe regulates the excavation or removal of archaeological 
resources;
    (iii) The tribe ensures that the provisions for permit issuance in 
this part and at 43 CFR part 7 have been met by other documented means; 
and
    (iv) Before beginning the work, the tribe notifies the Area Director 
about the nature and location of the proposed work and allows 10 working 
days after mailing a notification or 5 working days after an oral 
notification (provided this is documented) for the Area Director to 
respond. The Area Director need only respond when action is required 
under Sec. 262.7 of this part, and may do so either in writing or, if 
documented, orally.
    (3) Consultants, advisors, and others serving by contractual 
agreement as agents for Indian tribes may use the provisions in Sec. 
262.5(f) of this part to expedite the process of obtaining a permit.
    (4) Persons serving as agents for Indian tribes as employees or by 
contractual agreement may abbreviate the consultation required in Sec. 
262.3(b) of this part by disregarding the requirement to consult first 
with the tribe and, provided the communication is documented, by 
consulting with the Area Director orally. In these cases, the Area 
Director need only respond when a permit is deemed necessary and

[[Page 763]]

may do so either orally or in writing. If a response is not received 
within 3 working days after an oral description of the proposed work is 
made or within 7 working days after a written description is mailed to 
the Area Director, the work may proceed.



Sec. 262.5  Application for permits.

    (a) Permits from the BIA shall be issued when an applicant meets the 
requirements set out in 43 CFR 7.8, and may be conditioned, modified, 
suspended, or revoked by the Area Director. Area Directors may delegate 
this authority to Agency Superintendents, but only on a permit-by-permit 
basis and only to those who have adequate professional support 
available.
    (b) Prospective applicants may obtain details on how to apply for a 
permit by contacting the Area Director, at BIA Area Offices in: 
Aberdeen, SD; Albuquerque, NM; Anadarko, OK; Arlington, VA; Billings, 
MT; Gallup, NM; Juneau, AK; Minneapolis, MN; Muskogee, OK; Phoenix, AZ; 
Portland, OR; or Sacramento, CA; or by writing to the Deputy 
Commissioner of Indian Affairs, Department of the Interior, Washington, 
DC 20240.
    (c) Permit applications proposing the excavation or removal of 
archaeological resources on Indian lands shall include the following 
consent documents:
    (1) Written permission from the Indian landowner and from the tribe, 
if any, having jurisdiction over those lands. This must contain such 
terms and conditions as the landowner or tribe may request be included 
in the permit. Where the permission is from a tribe, it should either 
state that no religious or cultural site will be harmed or destroyed by 
the proposed work or specify terms and conditions that the permit must 
include in order to safeguard against such harm or destruction.
    (i) For lands of Indian tribes, permission must be granted by the 
tribe.
    (ii) For lands of Indian individuals not under tribal jurisdiction, 
permission must be granted by the owner(s), except as provided in Sec. 
262.6.
    (iii) For lands of Indian individuals under tribal jurisdiction, 
permission must be granted by both the owner(s), except as provided in 
Sec. 262.6, and the tribe having such jurisdiction. Where an applicant 
is the owner, consent must still be obtained from the tribe.
    (iv) Where the ownership of lands of Indian individuals is multiple, 
permission must be granted by the owners of a majority of interests, 
except as provided in Sec. 262.6. The same shall apply where the 
applicant is one of the owners.
    (v) Where the terms and conditions a tribe or landowner requests be 
included in a permit are in conflict with the provisions of this or any 
other Act, with Federal regulations, or with each other, the Area 
Director may negotiate with the requestor to eliminate the conflict. If 
the conflict remains, the permit may not be issued.
    (2) Copies of any permits required by tribal law for archaeological 
work on lands under tribal jurisdiction. This may serve as written 
consent from the tribe for the purposes of Sec. 262.5(c)(1).
    (3) Written agreement by the Indian landowner(s) to release 
archaeological resources for curation or study, as specified in Sec. 
262.8(b).
    (d) Permits issued by the BIA shall include the following or similar 
condition: ``Human remains of Indians, funerary objects, sacred objects, 
and objects of cultural patrimony may not be excavated or removed unless 
the permittee has obtained the written consent of the Area Director. In 
order to obtain consent, the permittee shall present to the Area 
Director written evidence of prior consultation with the appropriate 
Indian tribe. If the lands containing the remains or objects are tribal 
lands, the permittee shall first obtain the written consent of the tribe 
having jurisdiction over the lands.'' Determination as to which tribe is 
the appropriate tribe shall be made in accordance with Sec. 262.8(a). 
Area Director consent shall be based on the scientific appropriateness 
of the research objectives and provisions for recovery, recording, and 
analysis and may, if documented, be oral. This condition may be omitted 
from the permit when such excavation or removal is proposed, and the 
requirements of the condition are met, in the permit application.
    (e) Information and assistance in contacting Indian tribes and 
individual

[[Page 764]]

Indian landowners for the purpose of requesting the consent documents 
listed under paragraph (c) of this section or of seeking the 
consultation and consent required under paragraph (d) of this section 
may be obtained from the BIA office to which the permit application is 
submitted.
    (f) Contractual agreements with the BIA or Indian tribes and permits 
issued by Indian tribes may be accepted as support documents for permit 
applications. They may also double as permit documents, if they 
demonstrate that the provisions for permit issuance in this part and at 
43 CFR part 7 have been met and they are attached to a Department of the 
Interior permit form. This form must be signed by the Area Director, but 
need only contain the following or similar statement: ``This permit is 
issued to the person(s) named, and in accordance with the terms and 
conditions in the attached (contractual agreement/tribal permit).''
    (g) Area Directors shall respond to permit applications within 15 
working days of receipt.



Sec. 262.6  Landowner consent by the Secretary.

    The Secretary of the Interior, or delegate thereof, may, on behalf 
of the owner(s) of lands of Indian individuals, grant consent for the 
purposes in Sec. 262.5(c)(1) and (3) when the Secretary or his or her 
delegate finds that such consent will not result in any injury to the 
land or owner(s) and when one or more of the following conditions exist:
    (a) The owner is a minor or a person non compos mentis;
    (b) The heirs or devisees of a deceased owner have not been 
determined;
    (c) The whereabouts of the owner are unknown;
    (d) Multiple owners are so numerous that the Secretary or his or her 
delegate finds, after documenting his or her efforts to do so, that it 
would be impractical to obtain their consent, as prescribed in Sec. 
262.5(c)(1)(iv) and provided the Secretary or his or her delegate also 
notifies, in writing, the tribe, if any, having jurisdiction over the 
land and allows 15 working days from the date of mailing date for 
response; or
    (e) The owner has given the Secretary or his or her delegate written 
authority to grant such consent on his or her behalf.



Sec. 262.7  Notice to Indian tribes of possible harm to cultural or 
religious sites.

    When consent by an Indian tribe to proposed excavation or removal of 
archaeological resources from Indian lands it owns or over which it has 
jurisdiction contains all of the information written as prescribed and 
advised in Sec. 262.5(c)(1), it may be taken to mean that subject to 
such terms and conditions as the tribe might specify, issuance of a 
permit for the proposed work will not result in harm to, or destruction 
of, any site of religious or cultural importance. No further 
notification is necessary, unless the Area Director has reason to 
believe that the proposed work might harm or destroy a site of religious 
or cultural importance to another tribe or Native American group. He or 
she shall then follow the notification procedures at 43 CFR 7.7. Those 
procedures must also be followed when proposed work might affect lands 
of Indian individuals over which there is no tribal jurisdiction or 
public lands owned or administered by the BIA.



Sec. 262.8  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from Indian lands, 
except for human remains of Indians, funerary objects, sacred objects 
and objects of cultural patrimony, remain the property of the Indian 
tribe or individual(s) having rights of ownership over such lands. 
Ownership and right of control over the disposition of the excepted 
items shall be in accordance with the order of priority provided in the 
Native American Graves Protection and Repatriation Act (Pub. L. 101-
601), adapted for the purpose of this rule as follows:
    (1) In the case of human remains of Indians and funerary objects, in 
the lineal descendants of the Indian; or
    (2) In any case in which such lineal descendants cannot be 
ascertained, and in the case of sacred objects and objects of cultural 
patrimony:

[[Page 765]]

    (i) In the Indian tribe on whose tribal lands, or on the individual 
Indian lands of whose members, such remains or objects are discovered;
    (ii) In the Indian tribe recognized as aboriginally occupying the 
public lands owned or administered by the BIA on which such remains or 
objects are discovered, if upon notice, that tribe states a claim for 
those remains or objects; or
    (iii) Where it can be so demonstrated by a preponderance of 
evidence, in the tribe other than that in paragraph (a)(2)(i) or (ii) of 
this section having the strongest cultural relationship with such 
remains or objects, if, upon notice, that tribe states a claim for those 
remains or objects.
    (iv) The Area Director shall provide the required notice to any 
Indian tribe identified under paragraph (a)(2)(ii) or (iii) of this 
section, in writing, within 5 working days after such identification has 
been documented and confirmed, and shall at the same time submit a copy 
of the notice for publication in the Federal Register. This notice shall 
include a description of the remains or objects; of where, how, and why 
they were excavated or removed; and of the evidence used to identify the 
tribe being notified. The remains or objects in question shall be 
considered the property of the pertinent tribe under paragraph (a)(2)(i) 
of this section or, in the case of paragraph (a)(2)(ii) of this section, 
held and administered by the BIA until or unless a claim is stated.
    (b) No permit for the excavation or removal of archaeological 
resources on Indian lands may be issued without the written consent of 
the Indian landowner(s) either to grant custody of the resources 
recovered (other than human remains of Indians, funerary objects, sacred 
objects or objects of cultural patrimony) to a curatorial facility that 
meets the requirements of 36 CFR part 79 or to allow the permittee a 
reasonable period of time to hold or have ready access to them at an 
appropriate location for study. The excepted remains and objects are 
covered under Sec. 262.5(d) of this part which, in general, permits 
their excavation or removal only when the research objectives and 
provisions for recovery, recording, and analysis are scientifically 
appropriate. Written consent to custody by a curatorial facility may 
include terms and conditions regarding curation (e.g., cleaning, 
viewing, loaning, studying, etc.), provided these are consistent with 36 
CFR part 79.
    (1) On lands of Indian tribes, consent must be obtained from the 
tribe.
    (2) On lands of Indian individuals, consent must be obtained from 
the owner of the land or the owners of a majority of interests therein, 
except as provided in Sec. 262.6.
    (3) Where consent is by the owners of a majority of interests, it 
must, if the archaeological resources are to be retained by or returned 
after study to the interest holders, designate a representative to 
receive those resources. Whether and how these are subsequently 
distributed among themselves is a matter for the interest holders to 
decide.
    (c) The Area Director may, after notifying the tribe (if any) having 
jurisdiction over such lands and allowing 15 working days for response, 
decline to issue a permit for lands of Indian individuals if he or she 
has any verifiable reason to believe that archaeological resources 
retained by the landowner(s) after being studied will be sold or 
exchanged other than to the tribe having jurisdiction or to a curatorial 
facility that meets the requirements of 36 CFR part 79. The basis for 
decline shall be that excavation or removal of resources under such 
circumstances would not be in the public interest and would thus be 
contrary to the purposes of the Act.
    (d) The landowner(s) alone may grant custody of archaeological 
resources (except for human remains, funerary objects, sacred objects 
and objects of cultural patrimony, which are subject to the provisions 
of paragraph (a) of this section) excavated or removed from lands of 
Indian individuals that are under tribal jurisdiction to a curatorial 
facility that meets the requirements of 36 CFR part 79. When, however, 
such consignment constitutes the ultimate disposition of these 
resources, the tribe having jurisdiction must also grant its consent. 
Any subsequent exchange or disposition by the facility

[[Page 766]]

must have the consent of both the landowner(s) and the tribe.



PART 265_ESTABLISHMENT OF ROADLESS AND WILD AREAS ON INDIAN RESERVATIONS
--Table of Contents




Sec.
265.1 Definition of roadless area.
265.3 Roads prohibited.

    Cross Reference: For general regulations pertaining to the 
construction of roads, see part 170 of this chapter.



Sec. 265.1  Definition of roadless area.

    A roadless area has been defined as one which contains no provision 
for the passage of motorized transportation and which is at least 
100,000 acres in extent. Under this definition the Secretary of the 
Interior ordered (3 FR 609, Mar. 22, 1938) certain roadless areas 
established on Indian reservations. The following is the only presently 
existing roadless area:

Name of area--Wind River Reserve.
Reservation--Shoshone.
State--Wyoming.
Approximate acreage--180,387

    (a) The boundaries of the Wind River Reserve roadless area are as 
follows:

                        Wind River Meridian, Wyo.

    Starting at the SW corner of sec. 22, T. 2 S., R. 3 W., on the south 
boundary of the Wind River Indian Reservation, thence north six (6) 
miles to the NE corner of sec. 28, T. 1 S., R. 3 W., thence west three 
(3) miles to the SW corner of sec. 19, T. 1 S., R. 3 W., thence north 
four (4) miles along range line to the Wind River Base Line, thence west 
one (1) mile along Wind River Base Line to the SW corner of Sec. 36, T. 
1 N., R. 4 W., thence north six (6) miles to the NW corner of sec. 1, T. 
1 N., R. 4 W., thence west five (5) miles along township line to the NE 
corner of sec. 1, T. 1 N., R. 5 W., thence north four and one-half (4\1/
2\) miles along range line to the NE corner of the SE \1/4\ of sec. 12, 
T. 2 N., R. 5 W., thence west one and one-half (1\1/2\) miles to the 
center of sec. 11, T. 2 N., R. 5 W., thence on a straight line in a 
northwesterly direction to the top of Bold Mountain, thence on a 
straight line to the SE corner of sec. 35, T. 4 N., R. 6 W., thence west 
one (1) mile along township line to the SW corner of sec. 35, T. 4 N., 
R. 6 W., thence north two (2) miles to the NW corner of sec. 26, T. 4 
N., R. 6 W., thence on a straight line in a northwesterly direction to 
the point where the north line of sec. 15, T. 4 N., R. 6 W. intersects 
the west boundary of the reservation, thence south, southeasterly and 
east along the reservation boundary to point of beginning.

(5 U.S.C. 301)

[30 FR 9813, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 265.3  Roads prohibited.

    (a) Within the boundaries of this officially designated roadless 
area it will be the policy of the Interior Department to refuse consent 
to the construction or establishment of any routes passable to motor 
transportation, including in this restriction highways, roads, truck 
trails, work roads, and all other types of ways constructed to make 
possible the passage of motor vehicles either for transportation of 
people or for the hauling of supplies and equipment, unless the 
requirements of fire protection, commercial use for the Indians' benefit 
or actual needs of the Indians clearly demand otherwise.
    (b) Foot trails and horse trails are not barred. The Superintendent 
of the Wind River Reservation on which this roadless area has been 
established will be held strictly accountable for seeing that the area 
is maintained in a roadless condition. Elimination of this area or any 
part thereof from the restriction of this order will be made only upon a 
written showing of an actual and controlling need.

(5 U.S.C. 301)

[30 FR 9814, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]

    Cross Reference: For rights-of-way for highways over Indian lands, 
see part 169 of this chapter.

[[Page 767]]



  SUBCHAPTER M_INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT 
                                 PROGRAM





PART 273_EDUCATION CONTRACTS UNDER JOHNSON-O'MALLEY ACT--Table of Contents




                      Subpart A_General Provisions

Sec.
273.1 Purpose and scope.
273.2 Definitions.
273.3 Revision or amendment of regulations.
273.4 Policy of maximum Indian participation.

                      Subpart B_Application Process

273.11 Eligible applicants.
273.12 Eligible students.
273.13 Proposals eligible for contracts.
273.14 Preparing the education plan.
273.15 Establishment of Indian Education Committee.
273.16 Powers and duties of Indian Education Committee.
273.17 Programs approved by Indian Education Committee.
273.18 Additional requirements for education plan.
273.19 Obtaining application forms.
273.20 Content of application to contract.
273.21 Tribal request for contract.
273.22 Application approval officials.
273.23 Submitting application to Area Office.
273.24 Area Office review and decision.
273.25 Deadline for Area Office action.
273.26 Submitting application to Central Office.
273.27 Central Office review and decision.
273.28 Deadline for Central Office action.
273.29 Negotiating the contract.

                      Subpart C_Funding Provisions

273.31 Distribution formula.
273.32 Pro rata requirement.
273.33 Use of funds for operational support.
273.34 Use of other Federal, State and local funds.
273.35 Capital outlay or debt retirement.
273.36 Eligible subcontractors.
273.37 Use of funds outside of schools.
273.38 Equal quality and standard of education.

                 Subpart D_General Contract Requirements

273.41 Special program provisions to be included in contract.
273.42 Civil Rights Act violations.
273.43 Advance payments.
273.44 Use and transfer of Government property.
273.45 Indian preference.
273.46 Liability and motor vehicle insurance.
273.47 Recordkeeping.
273.48 Audit and inspection.
273.49 Freedom of information.
273.50 Annual reporting.
273.51 Penalties.
273.52 State school laws.
273.53 Applicable procurement regulations.
273.54 Privacy Act requirements.

               Subpart E_Contract Revision or Cancellation

273.61 Contract revision or amendment.
273.62 Cancelling a contract for cause.

                            Subpart F_Appeals

273.71 Contract appeal.
273.72 Appeal from decision to cancel contract for cause.
273.73 Other appeals.

    Authority: Secs. 201-203, Pub. L. 93-638, 88 Stat. 2203, 2213-2214 
(25 U.S.C. 455-457), unless otherwise noted.

    Source: 40 FR 51303, Nov. 4, 1975, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 273.1  Purpose and scope.

    (a) The purpose of the regulations in this part is to set forth the 
application and approval process for education contracts under the 
Johnson-O'Malley Act. Such contracts shall be for the purpose of 
financially assisting those efforts designed to meet the specialized and 
unique educational needs of eligible Indian students, including programs 
supplemental to the regular school program and school operational 
support, where such support is necessary to maintain established State 
educational standards.
    (b) The application and approval process in this part applies 
specifically to contracts with a State, school district, or Indian 
corporation.
    (c) Contracts with tribal organizations for supplemental and 
operational support will be entered into only upon the request of an 
Indian tribe(s), and

[[Page 768]]

shall be subject to the provisions of part 900 of this chapter and 41 
CFR part 14H-70, except as provided in Sec. 273.11.
    (d) Nothing in these regulations shall be construed as:
    (1) Affecting, modifying, diminishing, or otherwise impairing the 
sovereign immunity from suit enjoyed by an Indian tribe;
    (2) Authorizing or requiring the terminiation of any existing trust 
responsibility of the United States with respect to the Indian people; 
or,
    (3) Permitting significant reduction in services to Indian people as 
a result of this part.
    (e) Nothing in these regulations shall be construed to mandate an 
Indian tribe to request a contract or contracts. Such requests are 
strictly voluntary.

[40 FR 51303, Nov. 4, 1975, as amended at 64 FR 13896, Mar. 23, 1999]



Sec. 273.2  Definitions.

    As used in this part:
    (a) ``Area Director'' means the official in charge of a Bureau of 
Indian Affairs Area Office.
    (b) ``Bureau'' means the Bureau of Indian Affairs.
    (c) ``Commissioner'' means the Commissioner of Indian Affairs, under 
the direction and supervision of the Assistant Secretary--Indian 
Affairs, who is responsible for the direction of day-to-day operations 
of the Bureau of Indian Affairs.
    (d) ``Days'' means calendar days.
    (e) ``Economic enterprise'' means any commercial, industrial, 
agricultural, or business activity that is at least 51 percent Indian 
owned, established or organized for the purpose of profit.
    (f) ``Education plan'' means a comprehensive plan for the 
programmatic and fiscal services of and accountability by a contractor 
for the education of eligible Indian students under this part.
    (g) ``Indian tribe'' means any Indian tribe, band, nation, 
rancheria, pueblo, colony or community, including any Alaska Native 
village or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which 
is federally recognized as eligible by the U.S. Government through the 
Secretary for the special programs and services provided by the 
Secretary to Indians because of their status as Indians.
    (h) ``Indian corporation'' means a legally established organization 
of Indians chartered under State or Federal law and which is not 
included within the definition of ``tribal organization'' given in 
paragraph (v) of this section.
    (i) ``Indian Education Committee'' means one of the entities 
specified by Sec. 273.15.
    (j) ``Indian'' means a person who is a member of an Indian tribe.
    (k) ``Johnson-O'Malley Act'' means the Act of April 16, 1934 (48 
Stat. 596), as amended by the Act of June 4, 1936 (49 Stat. 1458, 25 
U.S.C. 452-456), and further amended by the Act of January 4, 1975 (88 
Stat. 2203).
    (l) ``Operational support'' means those expenditures for school 
operational costs in order to meet established State educational 
standards or State-wide requirements.
    (m) ``Pub. L. 93-638'' means the Indian Self-Determination and 
Education Assistance Act (Pub. L. 93-638; 88 Stat. 2203).
    (n) ``Previously private school'' means a school (other than a 
Federal school formerly operated by the Bureau) that is operated 
primarily for Indian students from age 3 years through grades 12; and, 
which at the time of application is controlled, sanctioned, or chartered 
by the government body(s) of an Indian tribe(s).
    (o) ``Reservation'' or ``Indian reservation'' means any Indian 
tribe's reservation, pueblo, colony, or rancheria, including former 
reservations in Oklahoma, Alaska Natives regions established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688), and Indian 
allotments.
    (p) ``School district'' or ``local education agency'' means that 
subdivision of the State which contains the public elementary and 
secondary educational institutions providing educational services and is 
controlled by a duly elected board, commission, or similarly constituted 
assembly.
    (q) ``Secretary'' means the Secretary of the Interior.

[[Page 769]]

    (r) ``State'' means a State of the United States of America or any 
political subdivision of a State.
    (s) ``Superintendent'' means the official in charge of a Bureau of 
Indian Affairs Agency Office.
    (t) ``Supplemental programs'' means those programs designed to meet 
the specialized and unique educational needs of eligible Indian students 
which may have resulted from socio-economic conditions of the parents, 
from cultural or language differences or other factors, and as provided 
by Sec. 273.34(b).
    (u) ``Tribal government,'' ``tribal governing body'' and ``tribal 
Council'' means the recognized governing body of an Indian tribe.
    (v) ``Tribal organization,'' means the recognized governing body of 
any Indian tribe or any legally established organization of Indians or 
tribes which is controlled, sanctioned, or chartered by such governing 
body or bodies, or which is democratically elected by the adult members 
of the Indian community to be served by such organization and which 
includes the maximum participation of Indians in all phases of its 
activities; Provided, That a request for a contract must be made by the 
Indian tribe that will receive services under the contract; Provided 
further, That in any case where a contract is let to an organization to 
perform services benefiting more than one Indian tribe, the approval of 
each such Indian tribe shall be a prerequisite to the letting of such 
contract.
    (w) ``Assistant Secretary--Indian Affairs'' means the Assistant 
Secretary--Indian Affairs who discharges the responsibility of the 
Secretary for activities pertaining to Indians and Indian Affairs.

[40 FR 51303, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976; 43 
FR 37445, Aug. 23, 1978; 45 FR 13451, Feb. 29, 1980]



Sec. 273.3  Revision or amendment of regulations.

    In order to make any substantive revision or amendments to 
regulations in this part, the Secretary shall take the following 
actions:
    (a) Consult with Indian tribes and national and regional Indian 
organizations to the extent practicable about the need for revision or 
amendment and consider their views in preparing the proposed revision or 
amendment.
    (b) Publish the proposed revisions or amendments in the Federal 
Register as proposed rulemaking to provide adequate notice to, and 
receive comments from, all interested parties.
    (c) After consideration of all comments received, publish the 
regulations in the Federal Register in final form not less than 30 days 
before the date they are made effective.
    (d) Annually consult with Indian tribes and national and regional 
Indian organizations about the need for revision or amendment, and 
consider their views in preparing the revision or amendment.
    (e) Nothing in this section shall preclude Indian tribes or national 
or regional Indian organizations from initiating request for revisions 
or amendments subject to paragraphs (a), (b), and (c) of this section.



Sec. 273.4  Policy of maximum Indian participation.

    The meaningful participation in all aspects of educational program 
development and implementation by those affected by such programs is an 
essential requisite for success. Such participation not only enhances 
program responsiveness to the needs of those served, but also provides 
them with the opportunity to determine and affect the desired level of 
educational achievement and satisfaction which education can and should 
provide. Consistent with this concept, maximum Indian participation in 
the development, approval and implementation of all programs contracted 
under this part shall be required.



                      Subpart B_Application Process



Sec. 273.11  Eligible applicants.

    (a) Any State, school district, tribal organization or Indian 
corporation is eligible to apply for contracts for supplemental or 
operational support programs. For the purposes of this part, previously 
private schools as defined in Sec. 273.2(n) are considered tribal 
organizations.
    (b) States, school districts, or Indian corporations shall apply for 
contracts

[[Page 770]]

for supplemental or operational support programs as required in this 
part.
    (c) Tribal organizations must comply with the following requirements 
to obtain contracts for supplemental programs or operational support:
    (1) The application submitted by the tribal organization shall meet 
the requirements in Sec. 273.20 in addition to those in Sec. 271.14 of 
this chapter.
    (2) The requirements in Sec. Sec. 271.1 through 271.27, 271.41 
through 271.52, 271.54, 271.61 through 271.66, and 271.81 through 271.84 
shall apply to such contracts with tribal organizations.
    (3) The provisions in Sec. Sec. 271.71 through 271.77 of this 
chapter concerning retrocession and reassumption of programs do not 
apply to a tribal organization retroceding a contract for supplemental 
programs or operational support as the Bureau does not operate education 
programs authorized to be contracted under the Johnson-O'Malley Act. 
However, the tribal organization may retrocede such a contract and the 
Bureau will then contract with a State, school district, or Indian 
corporation under this part for the supplemental programs or operational 
support.
    (4) The requirements in Sec. Sec. 273.12 through 273.18, 273.20, 
273.21, 273.31 through 273.38, 273.41, 273.51 and 273.52 shall apply to 
such contracts with tribal organizations.
    (5) The requirements in 41 CFR part 14H-70 shall apply to such 
contracts with tribal organizations.

[40 FR 51303, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976]



Sec. 273.12  Eligible students.

    Indian students, from age 3 years through grade(s) 12, except those 
who are enrolled in Bureau or sectarian operated schools, shall be 
eligible for benefits provided by a contract pursuant to this part if 
they are \1/4\ or more degree Indian blood and recognized by the 
Secretary as being eligible for Bureau services. Priority shall be given 
to contracts (a) which would serve Indian students on or near 
reservations and (b) where a majority of such Indian students will be 
members of the tribe(s) of such reservations (as defined in Sec. 
273.2(o)).



Sec. 273.13  Proposals eligible for contracts.

    (a) Any proposal to contract for funding a program which meets the 
definition of a supplemental program given in Sec. 273.2(t) will be 
considered an eligible proposal under this part.
    (b)(1) To contract for operational support, a public school district 
shall be required to establish as part of the proposal that:
    (i) It cannot meet the applicable minimum State standards or 
requirements without such funds.
    (ii) It has made a reasonable tax effort with a mill levy at least 
equal to the State average in support of educational programs.
    (iii) It has fully utilized all other sources of financial aid, 
including all forms of State aid and Pub. L. 874 payments. The State aid 
contribution per pupil must be at least equal to the State average.
    (iv) There is at least 70 percent eligible Indian enrollment within 
the school district.
    (v) It shall clearly identify the educational needs of the students 
intended to benefit from the contract.
    (vi) It has made a good faith effort in computing State and local 
contributions without regard to contract funds pursuant to this part.
    (vii) It shall not budget or project a deficit by using contract 
funds pursuant to this part.
    (2) The requirements given in paragraph (b)(1) of this section do 
not apply to previously private schools.
    (c) At his discretion, the Commissioner may consider as eligible a 
proposal to contract under which a school district will be reimbursed 
for the full per capita costs of educating Indian students who meet all 
of the following:
    (1) Are members of recognized Indian tribes.
    (2) Do not normally reside in the State in which the school district 
is located.
    (3) Are residing in Federal boarding facilities for the purpose of 
attending public schools within the school district.

[[Page 771]]



Sec. 273.14  Preparing the education plan.

    A prospective contractor in consultation with its Indian Education 
Committee(s) shall formulate an education plan and submit it to the 
appropriate Area Director as a part of the application to contract 
required by Sec. 273.20. Such plan shall become a part of any contract 
awarded. The education plan shall contain:
    (a) The education programs approved by the Indian Education 
Committee(s) as required in Sec. 273.17.
    (b) Other requirements for the education plan given in Sec. 273.18.



Sec. 273.15  Establishment of Indian Education Committee.

    (a) When a school district to be affected by a contract(s) for the 
education of Indians pursuant to this part has a local school board not 
composed of a majority of Indians, the tribal governing body(s) of the 
Indian tribe(s) affected by the contract(s) under this part shall 
specify one of the following entities to serve as the Indian Education 
Committee for the purpose of this part:
    (1) An Indian Education committee to be elected from among the 
parents (including persons acting in loco parentis except school 
administrators or officials) of eligible Indian students enrolled in the 
school(s) affected by a contract(s) under this part; or
    (2) A local Indian committee established pursuant to section 
305(b)(2)(B)(ii) of the Act of January 23, 1972 (86 Stat. 235) and 
existing prior to January 4, 1975; or
    (3) An Indian advisory school board or Indian Education Committee 
established pursuant to the Johnson-O'Malley Act and existing prior to 
January 4, 1975.
    (b) When the local school board is not composed of a majority of 
Indians and the tribal governing body(s) of the Indian tribe(s) affected 
by a contract(s) under this part determine which of the entities 
provided for in paragraph (a) of this section is to serve as the Indian 
Education Committee for the purpose of this part, it shall notify the 
Area Director of such determination by January 15 preceding the school 
year for which the contract will be let.
    (c) The Indian Education Committee established under paragraph (a) 
of this section and its members shall establish procedures under which 
the Committee shall serve. Such procedures shall be set forth in the 
Committee's organizational documents and by-laws. Each Committee shall 
file a copy of its organizational documents and by-laws with the 
appropriate Area Director, together with a list of its officers and 
members as soon as practicable after the Committee is organized.
    (d) The existence of an Indian Education Committee shall not limit 
the continuing participation of the rest of the Indian community in all 
aspects of programs contracted under this part.



Sec. 273.16  Powers and duties of Indian Education Committee.

    (a) Consistent with the purpose of the Indian Education Committee, 
each such Committee shall be vested with the authority to:
    (1) Participate fully in the planning, development, implementation, 
and evaluation of all programs, including both supplemental and 
operational support, conducted under a contract or contracts pursuant to 
this part. Such participation shall include further authority to:
    (i) Recommend curricula, including texts, materials, and teaching 
methods to be used in the contracted program or programs.
    (ii) Approve budget preparation and execution.
    (iii) Recommend criteria for employment in the program.
    (iv) Nominate a reasonable number of qualified prospective 
educational programmatic staff members from which the contractor would 
be required to select.
    (v) Evaluate staff performance and program results and recommend 
appropriate action to the contractor.
    (2) Approve and disapprove all programs to be contracted under this 
part. All programs contracted pursuant to this part shall require the 
prior approval of the appropriate Indian Education Committee.
    (3) Secure a copy of the negotiated contract(s) which include the 
program(s) approved by the Indian Education Committee.

[[Page 772]]

    (4) Recommend to the Commissioner through the appropriate Bureau 
contracting officer cancellation or suspension of a contract(s) which 
contains the program(s) approved by the Indian Education Committee if 
the contractor fails to permit such Committee to exercise its powers and 
duties as specified by this section.
    (b) The organizational papers and by-laws of the Indian Education 
Committee may include additional powers and duties which would permit 
the Committee to:
    (1) Participate in negotiations concerning all contracts under this 
part.
    (2) Make an annual assessment of the learning needs of Indian 
children in the community affected.
    (3) Have access to all reports, evaluations, surveys, and other 
program and budget related documents determined necessary by the 
Committee to carry out its responsibilities, subject only to the 
provisions of Sec. 273.49.
    (4) Request periodic reports and evaluations regarding the Indian 
education program.
    (5) Hear grievances related to programs in the education plan.
    (6) Meet regularly with the professional staff serving Indian 
children and with the local education agency.
    (7) Hold committee meetings on a regular basis which are open to the 
public.
    (8) Have such additional powers as are consistent with these 
regulations.



Sec. 273.17  Programs approved by Indian Education Committee.

    (a) All programs contracted under this part shall:
    (1) Be developed and approved in full compliance with the powers and 
duties of the Indian Education Committee as set out in Sec. 273.16 and 
as may be contained in the Committee's organizational documents and by-
laws.
    (2) Be included as a part of the education plan provided for in 
Sec. 273.14.
    (b) No program contracted pursuant to this part shall be changed 
from the time of its original approval by the Indian Education Committee 
to the end of the contract period without the prior approval, in 
writing, of the Committee.
    (c) Programs developed or approved by the Indian Education Committee 
pursuant to this part may, at the option of such Committee, include 
funds for the performance of Committee duties, including the following:
    (1) Members' attendance at regular and special meetings, workshops 
and training sessions, as the Committee deems appropriate.
    (2) Such other reasonable expenses incurred by the Committee in 
performing its primary duties, including the planning, development, 
implementation and evaluation of the program.



Sec. 273.18  Additional requirements for education plan.

    In addition to incorporating the programs approved by the Indian 
Education Committee(s) as required by Sec. 273.14(a), the education 
plan prepared by the prospective contractor shall:
    (a) Contain educational goals and objectives which adequately 
address the educational needs of the Indian students to be served by the 
contract.
    (b) Incorporate the program or programs developed and approved by 
the Indian Education Committee(s). As provided in Sec. 273.17(b), 
changes in such programs must have prior written approval of the Indian 
Education Committee(s).
    (c) Contain procedures for hearing grievances from Indian students, 
parents, community members, and tribal representatives relating to the 
program(s) contracted under this part. Such procedures shall provide for 
adequate advance notice of the hearing.
    (d) Identify established State standards and requirements which 
shall be maintained in operating programs and services contracted under 
this part.
    (e) Describe how the State standards and requirements will be 
maintained.
    (f) Provide that the contractor shall comply in full with the 
requirements concerning meaningful participation by the Indian Education 
Committee as required by Sec. 273.4.
    (g) Provide that education facilities receiving funds shall be open 
to visits

[[Page 773]]

and consultations by the Indian Education Committee(s), tribal 
representatives, Indian parents in the community, and by duly authorized 
representatives of the Federal and State Governments.
    (h) Outline procedures of administrative and fiscal management to be 
used by the contractor.
    (i) Contain justification for requesting funds for operational 
support. The public school district must establish in its justification 
that it meets the requirements given in Sec. 273.13(b). The information 
given should include records of receipt of local, State, and Federal 
funds.
    (j) Include budget estimates and financial information needed to 
determine program costs to contract for services. This includes, but is 
not limited to, the following:
    (1) State and district average operational cost per pupil.
    (2) Other sources of Federal funding the applicant is receiving, the 
amount received from each, the programs being funded, and the number of 
eligible Indian students served by such funding.
    (3) Administrative costs involved, total number of employees, and 
total number of Indian employees.
    (4) Costs which parents normally are expected to pay for each 
school.
    (5) Supplemental and operational funds outlined in a separate 
budget, by line item, to facilitate accountability.
    (6) Total number of employees for each special program and number of 
Indian employees for that program.
    (k) State the total enrollment of school or district, by age and 
grade level.
    (l) State the eligible Indian enrollment--total and classification 
by tribal affiliation(s) and by age and grade level.
    (m) State the total number of school board members and number of 
Indian school board members.
    (n) List Government equipment needed to carry out the contract.
    (o) State the period of contract term requested.
    (p) Include the signature of the authorized representative of 
applicant.
    (q) Provide written information regarding:
    (1) Program goals and objectives related to the learning needs of 
potential target students.
    (2) Procedures and methods to be used in achieving program 
objectives, including ways whereby parents, students and communities 
have been involved in determining needs and priorities.
    (3) Overall program implementation including staffing practices, 
parental and community involvement, evaluation of program results, and 
dissemination thereof.
    (4) Determination of staff and program effectiveness in meeting the 
stated needs of target students.



Sec. 273.19  Obtaining application forms.

    Application forms, instructions, and related application materials 
are available from Agency Superintendents, Area Directors and the 
Commissioner. Use of standard application forms will facilitate 
processing of applications. However, they are not required if the 
information required by Sec. 273.20 is given in the application to 
contract.



Sec. 273.20  Content of application to contract.

    An application for a contract under this part shall be in writing 
and shall contain the following:
    (a) Name, address, and telephone number of the proposed contractor.
    (b) Name, address, and telephone number of the tribe(s) to be served 
by the contract.
    (c) Descriptive narrative of the contract proposal.
    (d) The education plan required by Sec. 273.14.
    (e) A separate budget outlining the Johnson-O'Malley funds for 
operational support and/or supplemental programs, by line item, to 
facilitate accountability.
    (f) A clear identification of what educational needs the Johnson-
O'Malley funds requested for operational support will address.
    (g) Documentation of the requirements for operational support in 
Sec. 273.13(b)(1).



Sec. 273.21  Tribal request for contract.

    (a) An Indian tribal governing body(s) that desires that a contract 
be

[[Page 774]]

entered into with a tribal organization must so notify the Area Director 
no later than February 1 preceding the school year for which the 
contract will be let.
    (b) If the tribal governing body's notice is not received by the 
date given in paragraph (a) of this section, the Area Director may 
contract with the State, school district, or Indian corporation under 
this part.



Sec. 273.22  Application approval officials.

    (a) Each Area Director is authorized to approve the contract(s) 
submitted by the State, school district, or Indian corporation under 
this part which will provide services to Indian children within the 
jurisdiction of that Area Office.
    (b) When a proposed contract(s) will provide services to Indian 
children within the jurisdiction of more than one Area Office, the 
contract must be approved by the Commissioner.



Sec. 273.23  Submitting application to Area Office.

    When services under the proposed contract will be provided to Indian 
children within the jurisdiction of a single Area Office, the completed 
application shall be submitted to the Area Director of that Area Office.



Sec. 273.24  Area Office review and decision.

    Upon receiving a contract application, the Area Director shall:
    (a) Notify the applicant in writing that the application has been 
received. This notice shall be made within fourteen (14) days after the 
Area Office receives the application.
    (b) Review the application for completeness and request within 20 
days any additional information from the applicant which will be needed 
to reach a decision.
    (c) On receiving an application for operational support, make formal 
written determination and findings supporting the need for such funds. 
In arriving at such a determination, the Area Director must be assured 
that each local education agency has made a good faith effort in 
computing State and local contributions without regard to funds 
requested pursuant to this part.
    (d) Assess the completed application to determine if the contract 
proposal is feasible and if the proposal and the application comply with 
the appropriate requirements of the Johnson-O'Malley Act and of the 
regulations in this part.
    (e) Approve or disapprove the application after fully reviewing and 
assessing the application and any additional information submitted by 
the applicant.
    (f) Promptly notify the applicant in writing of the decision to 
approve or disapprove the application. If the application is 
disapproved, the notice will give the reasons for disapproval and the 
applicant's right to appeal pursuant to part 2 of this chapter.



Sec. 273.25  Deadline for Area Office action.

    (a) The Area Director shall approve or disapprove an application for 
a contract within sixty (60) days after the Area Office receives the 
application and any additional information requested in Sec. 273.24(b). 
The sixty (60) day deadline can be extended after obtaining the written 
consent of the applicant.
    (b) An application under this part cannot be approved before 
February 1 preceding the school year for which the contract will be let.



Sec. 273.26  Submitting application to Central Office.

    When services under the proposed contract will be provided to Indian 
children within the jurisdiction of two or more Area Offices, the 
completed application shall be submitted to the Commissioner through the 
respective Area Offices.



Sec. 273.27  Central Office review and decision.

    Upon receiving a contract application, the Commissioner shall:
    (a) Notify the applicant in writing that the application has been 
received. This notice shall be made within fourteen (14) days after the 
Central Office receives the application.
    (b) Review the application for completeness and request within 20 
days any additional information from the

[[Page 775]]

applicant which will be needed to reach a decision.
    (c) On receiving an application for operational support, make formal 
written determination and findings supporting the need for such funds. 
In arriving at such a determination, the Commissioner must be assured 
that each local education agency has made a good faith effort in 
computing State and local contributions without regard to funds 
requested pursuant to this part.
    (d) Assess the completed application to determine if the contract 
proposal is feasible and if the proposal and the application comply with 
the appropriate requirements of the Johnson-O'Malley Act and of the 
regulations in this part.
    (e) Approve or disapprove the application after fully reviewing and 
assessing the application and any additional information submitted by 
the applicant.
    (f) Promptly notify the applicant in writing of the decision to 
approve or disapprove the application. If the application is 
disapproved, the notice will give the reasons for disapproval and the 
applicant's right to appeal pursuant to part 2 of this chapter.



Sec. 273.28  Deadline for Central Office action.

    (a) The Commissioner shall approve or disapprove an application for 
a contract within sixty (60) days after the Central Office receives the 
application, and any additional Information requested in Sec. 
273.27(b). The sixty (60) day deadline can be extended after obtaining 
the written consent of the applicant.
    (b) An application under this part cannot be approved before 
February 1 preceding the school year for which the contract will be let.



Sec. 273.29  Negotiating the contract.

    After the proposal for a contract has been approved by the Area 
Director or Commissioner as provided in Sec. 273.22, the contract will 
be negotiated by a Bureau contracting officer assisted by Bureau 
education personnel.



                      Subpart C_Funding Provisions



Sec. 273.31  Distribution formula.

    (a) Funds shall be distributed to eligible contractors based upon 
the number of eligible Indian students to be served times twenty-five 
(25%) percent of the higher of the State or national average per pupil 
operating cost. Notwithstanding any other provisions of the law, Federal 
funds appropriated for the purpose shall be allotted pro rata in 
accordance with the distribution method outlined in this formula.
    (b) The Assistant Secretary may make exceptions to the provisions of 
paragraph (a) of this section based on the special cultural, linguistic, 
social or educational needs of the communities involved including the 
actual cost of education in the community only after consultation with 
all tribes who may be affected by such exceptions.

(25 U.S.C. 452-456; sec. 202, Pub. L. 93-638, 88 Stat. 2203, and Pub. L. 
95-561, sec. 1102 (a) and (b))

[45 FR 9241, Feb. 11, 1980]



Sec. 273.32  Pro rata requirement.

    All monies provided by a contract pursuant to this part, shall be 
expended only for the benefit of eligible Indian students. Where 
students other than eligible Indian students participate in programs 
contracted under this part, money expended under such contract shall be 
prorated to cover the participation of only the eligible Indian 
students, except where the participation of non-eligible students is so 
incidental as to be de minimus. Such de minimus participation must be 
approved by the Indian Education Committee.



Sec. 273.33  Use of funds for operational support.

    All funds for school operational support shall be used to meet 
established State educational standards or State-wide requirements.



Sec. 273.34  Use of other Federal, State and local funds.

    (a) Contract funds under this part shall supplement, and not 
supplant, Federal, State and local funds. Each

[[Page 776]]

contract shall require that the use of these contract funds will not 
result in a decrease in State, local, or Federal funds which would be 
made available for Indian students if there were no funds under this 
part.
    (b) State, local and other Federal funds must be used to provide 
comparable services to non-Indian and Indian students prior to the use 
of contract funds.
    (c) Except as hereinafter provided, the school lunch program of the 
United States Department of Agriculture (USDA) shall constitute the only 
federally-funded school lunch program for Indian students in public 
schools. Where Indian students do not qualify to receive free lunches 
under the National School Lunch Program of USDA because such students 
are non-needy and do not meet the family size and income guidelines for 
free USDA lunches, plans prepared pursuant to Sec. 273.18 may provide, 
to the extent of funding available for Johnson-O'Malley programs, for 
free school lunches for those students who do not qualify for free USDA 
lunches but who are eligible students under Sec. 273.12.

[47 FR 57275, Dec. 23, 1982]



Sec. 273.35  Capital outlay or debt retirement.

    In no instance shall contract funds provided under this part be used 
as payment for capital outlay or debt retirement expenses; except that, 
such costs are allowable if they are considered to be a part of the full 
per capita cost of educating eligible Indian students who reside in 
Federal boarding facilities for the purpose of attending public schools.



Sec. 273.36  Eligible subcontractors.

    No contract funds under the Johnson-O'Malley Act shall be made 
available by the Bureau directly to other than tribal organizations, 
States, school districts and Indian corporations. However, tribal 
organizations, States, school districts, and Indian corporations 
receiving funds under this part may use the funds to subcontract for 
necessary services with any appropriate individual, organization or 
corporation.



Sec. 273.37  Use of funds outside of schools.

    Nothing in these regulations shall prevent the Commissioner from 
contracting with Indian corporations who will expend all or part of the 
funds in places other than the public or private schools in the 
community affected.



Sec. 273.38  Equal quality and standard of education.

    Contracts with State education agencies or school districts 
receiving funds under the provisions of this part shall provide 
educational opportunities to all Indian children within that school 
district on the same terms and under the same conditions that apply to 
all other students provided that it will not affect the rights of 
eligible Indian children to receive benefits from the supplemental 
programs as provided for in this part. School districts receiving funds 
under this part must insure that Indian children receive all aid from 
the State, and other proper sources other than this contract, which 
other schools in the district and other school districts similarly 
situated in the State are entitled to receive. In no instance shall 
there be discrimination against Indians or schools enrolling such 
Indians.



                 Subpart D_General Contract Requirements



Sec. 273.41  Special program provisions to be included in contract.

    All contracts under this part shall contain the following:
    (a) The education plan required by Sec. Sec. 273.14 and 273.18 and, 
as part of the education plan, the education programs approved by the 
Indian Education Committee(s) under Sec. 273.17.
    (b) Any formal written determination and findings made by the Area 
Director or Commissioner supporting the need for operational support as 
required by Sec. Sec. 273.24(c) and 273.27(c).
    (c) The provision that State, local, and other Federal Funds shall 
be used to provide comparable services to non-Indian and Indian students 
prior to the use of Johnson-O'Malley funds for the provision of 
supplementary program services to Indian children, as required in Sec. 
273.34(b).

[[Page 777]]



Sec. 273.42  Civil Rights Act violations.

    In no instance shall there be discrimination against Indians or 
schools enrolling such Indians. When informed by a complainant or 
through its own discovery that possible violation of title VI of the 
Civil Rights Act of 1964 exists within a State school district receiving 
funds under this part, the Department of the Interior shall, in 
accordance with Federal requirements, notify the Department of Health, 
Education, and Welfare of the possible violation of title VI. The 
Department of Health, Education, and Welfare will conduct an 
investigation into the matters alleged, pursuant to a Memorandum of 
Understanding between the Department of the Interior and the Department 
of Health, Education, and Welfare. If the report of the investigation 
conducted by the Department of Health, Education, and Welfare discloses 
a failure or threatened failure to comply with this part, and if the 
non-compliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to contract or to continue financial assistance under the Johnson-
O'Malley Act or by any other means authorized by law. As delineated in 
43 CFR 17.1, 17.8, and 17.9, such other means may include reference to 
the Department of Justice with a recommendation that appropriate legal 
proceedings be brought by the United States to secure compliance or by 
formal hearing before the Commissioner or, at his discretion, before an 
administrative law judge designated in accordance with section 11 of the 
Administrative Procedure Act. The Secretary, may, by agreement with one 
or more other Federal departments, provide for the conduct of 
consolidated or joint hearings as prescribed in 43 CFR 17.8(e).



Sec. 273.43  Advance payments.

    Advance payments to States, school districts and Indian corporations 
will be made in accordance with the applicable provisions of 41 CFR part 
1 as supplemented by 41 CFR part 14 and 41 CFR part 14H except 41 CFR 
part 14H-70.



Sec. 273.44  Use and transfer of Government property.

    (a) The use of Government-owned facilities for school purposes may 
be authorized when not needed for Government activities. Transfer of 
title to such facilities (except land) may be arranged under the 
provisions of the Act of June 4, 1953 (67 Stat. 41) subject to the 
approval of the tribal government if such property is located on a 
reservation.
    (b) In carrying out a contract made under this part, the Area 
Director or Commissioner may, with the approval of the tribal 
government, permit a contractor to use existing buildings, facilities, 
and related equipment and other personal property owned by the Bureau 
within his jurisdiction under terms and conditions agreed upon for their 
use and maintenance. The property at the time of transfer must conform 
to the minimum standards established by the Occupational Safety and 
Health Act of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651). Use of 
Government property is subject to the following conditions:
    (1) When nonexpendable Government property is turned over to public 
school authorities or Indian corporations under a use permit, the 
permittee shall insure such property against damage by flood, fire, rain 
windstorm, vandalism, snow, and tornado in amounts and with companies 
satisfactory to the Federal officer in charge of the property. In case 
of damage or destruction of the property by flood, fire, rain, 
windstorm, vandalism, snow or tornado, the insurance money collected 
shall be expended only for repair or replacement of property. Otherwise, 
insurance proceeds shall be paid to the Bureau.
    (2) If the public school authority is self-insured and can present 
evidence of that fact to the Area Director or Commissioner, insurance 
for lost or damaged property will not be required. However, the public 
school authority will be responsible for replacement of such lost or 
damaged property at no cost to the Government or for paying the 
Government enough to replace the property.
    (3) The permittee shall maintain the property in a reasonable state 
of repair

[[Page 778]]

consistent with the intended use and educational purposes.
    (c) The contractor may have access to existing Bureau records needed 
to carry out a contract under this part, as follows:
    (1) The Bureau will make the records available subject to the 
provisions of the Freedom of Information Act (5 U.S.C. 552), as amended 
by the Act of November 21, 1974 (Pub. L. 93-502, 88 Stat. 1561).
    (2) The contractor may have access to needed Bureau records at the 
appropriate Bureau office for review and making copies of selected 
records.
    (3) If the contractor needs a small volume of identifiable Bureau 
records, the Bureau will furnish the copies to the contractor.



Sec. 273.45  Indian preference.

    (a) Any contract made by the Bureau with a State, school district or 
Indian corporation shall provide that the contractor shall, to the 
greatest extent feasible, give preference in and opportunities for 
employment and training to Indians.
    (b) Any contract made by the Bureau with a State, school district or 
Indian corporation shall provide that the contractor shall, to the 
greatest extent feasible, give preference in the award of subcontracts 
to Indian organizations and Indian-owned economic enterprises.
    (c) All subcontractors employed by the contractor shall, to the 
extent possible, give preference to Indians for employment and training 
and shall be required to include in their bid submission a plan to 
achieve maximum use of Indian personnel.
    (d) In the performance of contracts under this part 273 and subject 
to the provisions of part 14H of title 41, a tribal governing body may 
develop its own Indian preference requirements to the extent that such 
requirements are not inconsistent with the purpose and intent of 
paragraphs (a), (b) and (c) of this section.



Sec. 273.46  Liability and motor vehicle insurance.

    (a) States, school districts and Indian corporations shall obtain 
public liability insurance under contracts entered into with the Bureau 
under this part. However, where the Bureau contracting officer 
determines that the risk of death, personal injury or property damage 
under the contract is small and that the time and cost of procuring the 
insurance is great in relation to the risk, the contractor may be 
exempted from this requirement.
    (b) Notwithstanding paragraph (a) of this section, any contract 
which requires or authorizes, either expressly or by implication, the 
use of motor vehicles must contain a provision requiring the State, 
school district, or Indian corporation to provide liability insurance, 
regardless of now small the risk.
    (c) If the public school authority is self-insured and can present 
evidence of that fact to the Area Director or Commissioner, liability 
and motor vehicle insurance will not be required.



Sec. 273.47  Recordkeeping.

    A contractor will be required to maintain a recordkeeping system 
which will allow the Bureau to meet its legal records program 
requirements under the Federal Records Act (44 U.S.C. 3101 et seq.). 
Such a record system shall:
    (a) Fully reflect all financial transactions involving the receipt 
and expenditure of funds provided under the contract in a manner which 
will provide accurate, current and complete disclosure of finanical 
status; correlation with budget or allowable cost schedules; and clear 
audit facilitating data.
    (b) Reflect the amounts and sources of funds other than Bureau 
contract funds which may be included in the operation of the contract.
    (c) Provide for the creation, maintenance and safeguarding of 
records of lasting value, including those involving individual rights, 
such as permanent records and transcripts.
    (d) Provide for the orderly retirement of permanent records in 
accordance with General Records Schedules and the Bureau Records Control 
Schedule, when there is no established system set up by the State, 
school district, or Indian corporation.

[[Page 779]]



Sec. 273.48  Audit and inspection.

    (a) During the term of a contract under this part and for three 
years after the project or undertaking is completed, the Comptroller 
General and the Secretary, or any of their duly authorized 
representatives, shall have access, for audit and examination purposes, 
to any of the contractor's books, documents, papers, and records which, 
in their opinion, may be related or pertinent to the contract or any 
subcontract.
    (b) The contractor will be responsible for maintaining all documents 
such as invoices, purchase orders, canceled checks, balance sheets and 
all other records relating to financial transactions in a manner which 
will facilitate auditing. The contractor will be responsible for 
maintaining files of correspondence and other documents relating to the 
administration of the contract properly separated from general records 
or cross-referenced to general files.
    (c) The contractor receiving funds under this part shall be 
responsible for contract compliance.
    (d) The records involved in any claim or expenditure that has been 
questioned shall be further maintained until final determination has 
been made on the questioned expenditures.
    (e) All contracts, non-confidential records concerning all students 
served by the program, reports, budgets, budget estimates, plans, and 
other documents pertaining to preceding and current year administration 
of the contract program shall be made available by the contractor and 
local school officials to each member of the Indian Education Committee 
and to members of the public upon request. The contractor or local 
school official shall provide, free of charge, single copies of such 
documents upon request.



Sec. 273.49  Freedom of information.

    (a) Unless otherwise required by law, the Bureau shall not place 
restrictions on contractors which will limit public access to the 
contractor's records except when records must remain confidential.
    (b) A contractor under this part shall make all reports and 
information concerning the contract available to the Indian people which 
the contract affects. Reports and information may be withheld from 
disclosure only when both of the following conditions exist:
    (1) The reports and information fall within one of the following 
exempt categories:
    (i) Specifically required by statute or Executive Order to be kept 
secret.
    (ii) Commercial or financial information obtained from a person or 
firm on a privileged or confidential basis.
    (iii) Personnel, medical, social, psychological, academic 
achievement and similar files where disclosure would be a clearly 
unwarranted invasion of personal privacy.
    (2) Disclosure is prohibited by statue or Executive Order or sound 
grounds exist for using the exemption given in paragraph (b)(1) of this 
section.
    (c) A request to inspect or copy reports and information shall be in 
writing and must reasonably describe the reports and information 
requested. The request may be delivered or mailed to the contractor. 
Within ten (10) working days after receiving the request, the contractor 
shall determine whether to grant or deny the request. The requester 
shall be notified immediately of the determination.
    (d) The time limit for making a determination may be extended up to 
an additional ten (10) working days for good reason. The requester shall 
be notified in writing of the extension, reasons for the extension, and 
date on which the determination is expected to be made.



Sec. 273.50  Annual reporting.

    (a) A contractor under this part shall make a detailed annual report 
to the approving official before September 15 of each year and covering 
the previous school year. The report shall include, but not be limited 
to, an accounting of the amounts and purposes for which the contract 
funds were expended, information on the conduct of the program, a 
quantitative evaluation of the effectiveness of the contract program in 
meeting the stated objectives contained in the applicant's educational 
plans, and a complete accounting of actual receipts at the end of the 
contract period.

[[Page 780]]

    (b) In addition to the yearly reporting requirement given in 
paragraph (a) of this section, the contractor shall furnish other 
contracted-related reports when and as required by the Area Director or 
Commissioner.
    (c) A contractor under this part shall send copies of the reports 
required by paragraphs (a) and (b) of this section to the Indian 
Education Committee(s) and to the tribe(s) under the contract at the 
same time as the reports are sent to the Bureau.



Sec. 273.51  Penalties.

    If any officer, director, agent, or employee of, or connected with, 
any contractor or subcontractor under this part embezzles, willfully 
misapplies, steals, or obtains by fraud any of the funds or property 
connected with the contract or subcontract, he shall be subject to the 
following penalties:
    (a) If the amount involved does not exceed $100, he shall be fined 
not more than $1,000 or imprisoned not more than one year, or both.
    (b) If the amount involved exceeds $100, he shall be fined not more 
than $10,000 or imprisoned for not more than two years, or both.



Sec. 273.52  State school laws.

    In those States where Pub. L. 83-280, 18 U.S.C. 1162 and 28 U.S.C. 
1360 do not confer civil jurisdiction, State employees may be permitted 
to enter upon Indian tribal lands, reservations, or allotments if the 
duly-constituted governing body of the tribe adopts a resolution of 
consent for the following purposes:
    (a) Inspecting school conditions in the public schools located on 
Indian tribal lands, reservations, or allotments.
    (b) Enforcing State compulsory school attendance laws against Indian 
children, parents or persons standing in loco parentis.



Sec. 273.53  Applicable procurement regulations.

    States, school districts, or Indian corporations wanting to contract 
with the Bureau under this part must comply with the applicable 
requirements in the Federal Procurement Regulations (41 CFR part 1), as 
supplemented by the Interior Procurement Regulations (41 CFR part 14), 
and the Bureau of Indian Affairs Procurement Regulations (41 CFR part 
14H), except 41 CFR part 14H-70.



Sec. 273.54  Privacy Act requirements.

    (a) When a contractor operates a system of records to accomplish a 
Bureau function, the contractor shall comply with subpart D of 43 CFR 
part 2 which implements the Privacy Act (5 U.S.C. 552a). Examples of the 
contractor's responsibilities are:
    (1) To continue maintaining those systems of records declared by the 
Bureau to be subject to the Privacy Act as published in the Federal 
Register.
    (2) To make such records available to individuals involved.
    (3) To disclose an individual's record to third parties only after 
receiving permission from the individual to whom the record pertains. 43 
CFR 2.56 lists exceptions to this procedure.
    (4) To establish a procedure to account for access, disclosures, 
denials, and amendments to records.
    (5) To provide safeguards for the protection of the records.
    (b) The contractor may not:
    (1) Discontinue or alter any established systems of records without 
prior approval of the appropriate Bureau systems manager.
    (2) Deny requests for notification or access of records without 
prior approval of the appropriate Bureau systems manager.
    (3) Approve or deny requests for amendments of records without prior 
approval of the appropriate Bureau systems manager.
    (4) Establish a new system of records without prior approval of the 
Department of Interior and the Office of Management and Budget.
    (5) Collect information about an individual unless it is relevant or 
necessary to accomplish a purpose of the Bureau as required by statue or 
Executive Order.
    (c) The contractor is subject to the penalties provided in section 
(i) of 5 U.S.C. 552a.

[[Page 781]]



               Subpart E_Contract Revision or Cancellation



Sec. 273.61  Contract revision or amendment.

    Any contract made under this part may be revised or amended as 
deemed necessary to carry out the purposes of the program being 
contracted. A contractor may make a written request for a revision or 
amendment of a contract to the Bureau contracting officer. However, no 
program approved by the Indian Education Committee shall be altered from 
the time of its original approval to the end of the contract period 
without the written approval of the Committee.



Sec. 273.62  Cancelling a contract for cause.

    (a) Any contract entered into under this part may be cancelled for 
cause when the contractor fails to perform the work called for under the 
contract or fails to permit an Indian Education Committee to perform its 
duties pursuant to this part.
    (b) Before cancelling the contract, the Bureau will advise the 
contractor in writing of the following:
    (1) The reasons why the Bureau is considering cancelling the 
contract.
    (2) The contractor will be given an opportunity to bring its work up 
to an acceptable level.
    (c) If the contractor does not overcome the deficiencies in its 
contract performance, the Bureau shall cancel the contract for cause. 
The Bureau will notify the contractor, in writing, of the cancellation. 
The notice shall give the reasons for the cancellation and the right of 
the contractor to appeal under subpart C of 43 CFR part 4.
    (d) When a contract is cancelled for cause, the Bureau will attempt 
to perform the work by another contract.
    (e) Any contractor that has a contract cancelled for cause must 
demonstrate that the cause(s) which led to the cancellation have been 
remedied before it will be considered for another contract.



                            Subpart F_Appeals



Sec. 273.71  Contract appeal.

    A contractor may appeal an adverse decision or action of a Bureau 
contracting officer regarding a contract under this part as provided in 
subpart C of 43 CFR part 4.



Sec. 273.72  Appeal from decision to cancel contract for cause.

    A contractor may appeal the decision of a Bureau official to cancel 
a contract under this part for cause. The appeal shall be made as 
provided in subpart C of 43 CFR part 4.



Sec. 273.73  Other appeals.

    Any decision or action taken by a Bureau official under this part, 
other than those given in Sec. Sec. 273.71 and 273.72, may be appealed 
as provided in part 2 of this chapter.



PART 275_STAFFING--Table of Contents




Sec.
275.1 Purpose and scope.
275.2 Definitions.
275.3 Methods for staffing.
275.4 Implementing regulations.

    Authority: Sec. 502, Pub. L. 91-648, 84 Stat. 1909, 1925 (42 U.S.C. 
4762); Sec. 105, Pub. L. 93-638, 88 Stat. 2203, 2208-2210 (25 U.S.C. 
450i); 26 U.S.C. 48.

    Source: 40 FR 51316, Nov. 4, 1975, unless otherwise noted.



Sec. 275.1  Purpose and scope.

    The purpose of this part is to outline methods available to tribes 
for utilizing the services of Bureau employees. These regulations are 
not intended to prevent an Indian tribe or tribal organization from 
staffing their programs by other methods they feel appropriate. However, 
when an Indian tribe or tribal organization decides to provide Bureau 
employees certain Federal benefits, Civil Service Commission regulations 
must be adhered to.



Sec. 275.2  Definitions.

    As used in this part:
    (a) Act means the Indian Self-Determination and Education Assistance 
Act (Pub. L. 93-638, 88 Stat. 2203).

[[Page 782]]

    (b) Area Director means the official in charge of a Bureau of Indian 
Affairs Area Office.
    (c) Bureau means the Bureau of Indian Affairs.
    (d) Commissioner means the Commissioner of Indian Affairs, under the 
direction and supervision of the Assistant Secretary--Indian Affairs, 
who is responsible for the direction of the day-to-day operations of the 
Bureau of Indian Affairs.
    (e) Days means calendar days.
    (f) Indian tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony, or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688) which is 
federally recognized as eligible by the U.S. Government through the 
Secretary for the special programs and services provided by the 
Secretary to Indians because of their status as Indians.
    (g) Indian means a person who is a member of an Indian tribe.
    (h) Superintendent means the official in charge of a Bureau of 
Indian Affairs Agency Office.
    (i) Tribal Chairman means tribal chairman, governor, chief or other 
person recognized by the tribal government as its chief executive 
officer.
    (j) Tribal government, tribal governing body, and tribal council 
means the recognized governing body of any Indian tribe.
    (k) Tribal organization means the recognized governing body of any 
Indian tribe; or any legally established organization of Indians or 
tribes which is controlled, sanctioned, or chartered by such governing 
body or bodies or which is democratically elected by the adult members 
of the Indian community to be served by such organization and which 
includes the maximum participation of Indians in all phases of its 
activities.
    (l) Assistant Secretary--Indian Affairs means the Assistant 
Secretary--Indian Affairs who discharges the authority and 
responsibility of the Secretary for activities pertaining to Indians and 
Indian affairs.

[40 FR 51316, Nov. 4, 1975, as amended at 43 FR 37446, Aug. 23, 1978; 45 
FR 13452, Feb. 29, 1980]



Sec. 275.3  Methods for staffing.

    (a) An Indian tribal organization may use any of the following three 
methods to employ or obtain the services of Bureau employees:
    (1) Agreement in accordance with the Intergovernmental Personnel Act 
of 1970 (5 U.S.C. 3371-3376). The agreement may be arranged between the 
tribal organization, the employee, and the Area Director or 
Commissioner. Assistance will be provided by the Area Personnel Office 
in complying with Civil Service instructions (Federal Personnel Manual, 
chapter 334) for completing an agreement.
    (2) Employment of Bureau employees on or before December 31, 1985, 
when serving under an appointment not limited to one year or less. A 
mutual agreement will be made between a tribal organization and the 
employee before leaving Federal employment to retain coverage for any of 
the following Federal benefits:
    (i) Compensation for work injuries.
    (ii) Retirement.
    (iii) Health insurance.
    (iv) Life insurance.
    (3) An agreement by an Indian tribe in accordance with the 1834 Act 
(25 U.S.C. 48) may be made in connection with contracts under section 
102 of the Act.
    (i) The agreement may provide for the tribal government to direct 
the day-to-day activities of Bureau employees. Tribal government 
direction of Bureau employees means the tribal chairman or other tribal 
official, as designated by the tribal governing body, is responsible for 
the planning, coordination, and completion of the daily on-the-job 
assignments of Bureau employees. The daily assignments of each such 
Bureau employee are limited to those that fall within the general range 
of duties prescribed in the employee's Bureau position.
    (ii) The agreement to direct day-to-day activities of Bureau 
employees shall include all employees:

[[Page 783]]

    (A) Whose positions are in the program or portion of the program to 
be contracted; or
    (B) In a portion of the program to continue under Bureau operation 
in connection with a contract for other portions of the program.
    (iii) The proposed agreement will be worked out between the tribe, 
the Superintendent, and the Area Director and forwarded to the 
Commissioner for final approval.
    (b) When a contract application under part 900 of this chapter does 
not include a proposed agreement for direction of Bureau employees, the 
application must be submitted at least 120 days in advance of the 
proposed effective date of the contract to allow time for placement of 
affected employees.

[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976; 64 
FR 13896, Mar. 23, 1999]



Sec. 275.4  Implementing regulations.

    Regulations to implement section 105 of the Act will be issued by 
the Civil Service Commission. The regulations will cover the situations 
described in paragraphs (a)(1) and (a)(2) of Sec. 275.3.



PART 276_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS--Table of Contents




Sec.
276.1 Purpose and scope.
276.2 Definitions.
276.3 Cash depositories.
276.4 Bondings and insurance.
276.5 Recordkeeping.
276.6 Program income.
276.7 Standards for grantee financial management systems.
276.8 Financial reporting requirements.
276.9 Monitoring and reporting program performances.
276.10 Grant payment requirements.
276.11 Property management standards.
276.12 Procurement standards.
276.13 Indian preference in grant administration.
276.14 Budget revision.
276.15 Grant closeout.
276.16 Subgrants and subcontracts to nonprofit organizations.
276.17 Printing.

Appendix A to Part 276--Principles for Determining Costs Applicable to 
          Grants
Appendix B to Part 276--Financial Reporting Requirements

    Authority: 34 CFR 256; Sec. 104, Pub. L. 93-638, 88 Stat. 2203, 2207 
(25 U.S.C. 450h).

    Source: 40 FR 51316, Nov. 4, 1975, unless otherwise noted.



Sec. 276.1  Purpose and scope.

    (a) The purpose of the regulations in this part is to give the 
uniform administrative requirements for grants awarded by the Bureau of 
Indian Affairs.
    (b) The regulations in this part shall apply to all grants awarded 
by the Bureau of Indian Affairs unless the part which gives the 
application process and special requirements for the specific type of 
grant states otherwise.



Sec. 276.2  Definitions.

    As used in this part:
    (a) Advance by Treasury check means a payment made by a Treasury 
check to a grantee upon its request or through the use of predetermined 
payment schedules before payments are made by the grantee.
    (b) Date of completion means the date when all work under a grant is 
completed or the date in the grant award document, or any supplement or 
amendment thereto, on which Federal assistance ends.
    (c) Disallowed costs means those charges to a grant which the Bureau 
or its representative determines to be unallowable.
    (d) Economic enterprise means any commercial, industrial, 
agricultural or business activity that is at least 51 percent Indian 
owned, established or organized for the purpose of profit.
    (e) Excess property means property under the control of the Bureau 
which, as determined by the Commissioner, is no longer required for its 
needs.
    (f) Expendable personal property means all tangible personal 
property other than nonexpendable property.
    (g) Grant closeout means the process by which the Bureau determines 
that all applicable administrative actions and all required work of the 
grant have been completed by the grantee and the Bureau.
    (h) Grantee means the entity which is responsible for administration 
of the grant.
    (i) Indian tribe means any Indian tribe, band, nation, rancheria, 
pueblo,

[[Page 784]]

colony or community, including any Alaska Native village or regional or 
village corporation as defined in or established pursuant to the Alaska 
Native Claims Settlement Act (85 Stat. 688) which is federally 
recognized as eligible by the United States Government through the 
Secretary for the special programs and services provided by the 
Secretary to Indians because of their status as Indians.
    (j) Letter of credit means an instrument certified by an authorized 
official of the Bureau which authorizes a grantee to draw funds when 
needed from the Treasury, through a Regional Disbursing Office, in 
accordance with the provisions of Treasury Circular No. 1075 as modified 
and supplemented by a memorandum of understanding between the Bureau of 
Government Financial Operation, Department of the Treasury and the 
Department of the Interior.
    (k) Nonexpendable personal property means tangible personal property 
having useful life of more than one year and an acquisition cost of $300 
or more per unit. A grantee may use its own definition of nonexpendable 
personal property provided that such definition would at least include 
all tangible personal property as defined above.
    (l) Personal property means property of any kind except real 
property. It may be tangible--having physical existence, or intangible--
having no physical existence, such as patents, inventions, and 
copyrights.
    (m) Real property means land, land improvements, structures and 
appurtenances thereto, excluding removable personal property, machinery 
and equipment.
    (n) Reimbursement by Treasury check means a payment made to a 
grantee with a Treasury check upon request for reimbursement from the 
grantee.
    (o) Suspension of a grant means an action by the Bureau which 
temporarily suspends assistance under the grant pending corrective 
action by the grantee or pending decision to terminate the grant by the 
Bureau.
    (p) Termination of a grant means the cancellation of Federal 
assistance, in whole or in part, under a grant at any time prior to the 
date of completion.
    (q) Tribal government, tribal governing body, and tribal council 
means the recognized governing body of an Indian tribe.
    (r) Tribal organization means the recognized governing body of any 
Indian tribe or any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or bodies of 
which is democratically elected by the adult members of the Indian 
community to be served by such organization and which includes the 
maximum participation of Indians in all phases of its activities.



Sec. 276.3  Cash depositories.

    (a) Except for situations described in paragraphs (b) and (c) of 
this section, the Bureau will not:
    (1) Require physical segregation of cash depositories for Bureau 
grant funds provided to a grantee.
    (2) Establish any eligibility requirements for cash depositories in 
which Bureau grant funds are deposited by grantees or their subgrantees.
    (b) A separate bank account shall be used when payments under letter 
of credit are made on a ``check-paid'' basis in accordance with 
agreements entered into by a grantee, the Bureau, and the banking 
institutions involved. A check-paid basis letter of credit is one under 
which funds are not drawn from the Treasury until the grantee's checks 
have been presented to its bank for payment.
    (c) Consistent with the national goal of expanding the opportunities 
for minority business enterprises, grantees are encouraged to use 
minority banks.



Sec. 276.4  Bondings and insurance.

    In administering Bureau grants, grantees shall observe their regular 
requirements and practices with respect to bonding and insurance. The 
Bureau will not impose additional bonding and insurance requirements, 
including fidelity bonds, except as provided in paragraphs (a) and (b) 
of this section.
    (a) The recipient of a Bureau grant which requires contracting for 
construction or facility improvement (including any Bureau grant which 
provides for alterations or renovations of real property) shall follow 
its own requirements and practices relating to

[[Page 785]]

bid guarantees, performance bonds, and payment bonds except for 
contracts exceeding $100,000. For contracts exceeding $100,000, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The bid guarantee shall consist of a firm commitment such 
as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A performance bond is one executed in connection 
with a contract to secure fulfillment of all the contractor's 
obligations under the contract.
    (3) A payment bond on the part of the contractor for 100 per cent of 
the contract price. A payment bond is one executed in connection with a 
contract to assure payment as required by law of all persons supplying 
labor and material in the execution of the work provided for in the 
contract.
    (b) Where, in connection with a Bureau grant, the Bureau also 
guarantees the payment of money borrowed by the grantee, the Bureau may 
at its discretion require adequate bonding and insurance if the bonding 
and insurance requirements of the grantee are not deemed to be 
sufficient to protect adequately the interests of the Federal 
Government.



Sec. 276.5  Recordkeeping.

    (a) The Bureau shall not impose record retention requirements over 
and above those established by the grantee except that financial 
records, supporting documents, statistical records, and all other 
records pertinent to a Bureau grant, or to any subgrant (or negotiated 
contract exceeding $2500) under a grant, shall be retained for a period 
of three years, with the following qualifications:
    (1) The records shall be retained beyond the three-year period if 
audit findings have not been resolved.
    (2) Records for nonexpendable property which was acquired with 
Bureau grant funds shall be retained for three years after its final 
disposition.
    (3) When grant records are transferred to or maintained by the 
Bureau, the three-year retention requirement is not applicable to the 
grantee.
    (b) The retention period starts from the date of submission of the 
final expenditure report or, for grants which are renewed annually, from 
the date of the submission of the annual expenditure report.
    (c) Grantees are authorized, if they desire, to substitute microfilm 
copies in lieu of original records.
    (d) The Bureau shall request transfer of certain records to its 
custody from grantees when it determines that the records possess long-
term retention value. However, in order to avoid duplicate recordkeeping 
the Bureau may make arrangements with the grantee for the grantee to 
retain any records which are continuously needed for joint use.
    (e) The Secretary of the Interior and the Comptroller General of the 
United States, or any of their duly authorized representatives shall 
have access to any books, documents, papers, and records of the grantees 
and their subgrantees which are pertinent to a specific grant program 
for the purpose of making audit, examination, excerpts, transcripts and 
copies at government expense.
    (f) Unless otherwise required by law, the Bureau shall not place 
restrictions on grantees which will limit public access to the grantee's 
records created as part of the grant except when records must remain 
confidential. Following are some of the reasons for withholding records:
    (1) Prevent a clearly unwarranted invasion of personal privacy;
    (2) Specifically required by statute or Executive Order to be kept 
secret;
    (3) Commercial or financial information obtained from a person or 
firm on a privileged or confidential basis.



Sec. 276.6  Program income.

    (a) No grantee receiving a grant shall be held accountable for 
interest earned on grant funds, pending their disbursement for program 
purposes.
    (b) Proceeds from the sale of real or personal property, either 
provided by

[[Page 786]]

the Federal Government or purchased in whole or in part with Federal 
funds, shall be handled in accordance with Sec. 276.11.
    (c) Royalties received from copyrights and patents produced under 
the grant during the grant period shall be retained by the grantee and, 
in accordance with the grant agreement, be either added to the funds 
already committed to the program or deducted from total allowable 
project costs for the purpose of determining the net costs on which the 
Bureau share of costs will be based. After termination or completion of 
the grant, the Bureau share of royalties in excess of $200 received 
annually shall be returned to the Bureau in the absence of other 
specific agreements between the Bureau and the grantee. The Bureau share 
of royalties shall be computed on the same ratio basis as the Bureau 
share of the total project cost.
    (d) All other program income earned during the grant period shall be 
retained by the grantee and, in accordance with the grant agreement, 
shall be either:
    (1) Added to funds committed to the project by the Bureau and the 
grantee and be used to further eligible program objectives, or
    (2) Deducted from the total project costs for the purpose of 
determining the net costs on which the Bureau share of costs will be 
based.
    (e) Grantees shall record the receipt and expenditures of revenues 
(such as taxes, special assessments, levies, fines, etc.) as a part of 
grant project transactions when such revenues are specifically earmarked 
for a grant project in accordance with grant agreements.



Sec. 276.7  Standards for grantee financial management systems.

    (a) Grantee financial management systems for grants and subgrantee 
financial management systems for subgrants shall provide for:
    (1) Accurate, current, and complete disclosure of the financial 
results of each grant program in accordance with Federal reporting 
requirements and for each subgrant in accordance with the grantees' 
requirements. Except when specifically required by law, the Bureau wll 
not require financial reporting on the accrual basis from tribal 
organizations whose records are not maintained on that basis. However, 
when accrual reporting is required by law, tribal organizations whose 
records are not maintained on that basis will not be required to convert 
their accounting systems to the accrual basis; they may develop the 
accrual information through an analysis of the documentation on hand or 
on the basis of best estimates.
    (2) Records which identify adequately the source and application of 
funds for grant--or subgrant--supported activities. These records shall 
contain information pertaining to grant or subgrant awards and 
authorizations, obligations, unobligated balances, assets, liabilities, 
outlays, and income.
    (3) Effective control over and accountability for all grant or 
subgrant funds, and real and personal property acquired with grant or 
subgrant funds. Grantees and subgrantees shall adequately safeguard all 
such property and shall assure that it is used solely for authorized 
purposes.
    (4) Comparison of actual with budgeted amounts for each grant or 
subgrant, and, when specifically required by the performance reporting 
requirements of the grant or subgrant, relation of financial information 
with performance or productivity data, including the production of unit 
cost information.
    (5) Procedures to minimize the time elapsing between the transfer of 
funds from the U.S. Treasury and the disbursement by the grantee, 
whenever funds are advanced by the Federal Government. When advances are 
made by a letter-of-credit method, the grantees shall make drawdowns 
from the U.S. Treasury as close as possible to the time of making the 
disbursements. Subgrantees shall institute similar procedures when funds 
are advanced by the grantee.
    (6) Procedures for determining the allowability and allocability of 
costs shall be in accordance with the applicable cost principles 
prescribed in appendix A of this part.
    (7) Accounting records which are supported by source documentation.

[[Page 787]]

    (8) A systematic method to assure timely and appropriate resolution 
of audit findings and recommendations.
    (b) Grantees shall require subgrantees (recipients of grants which 
are passed through by the grantee) to adopt all of the standards in 
paragraph (a) of this section.



Sec. 276.8  Financial reporting requirements.

    Requirements for grantees to report financial information to the 
Bureau, and to request advances and reimbursment when a letter of credit 
method is not used, are prescribed in appendix B of this part.



Sec. 276.9  Monitoring and reporting program performances.

    (a) Grantees shall constantly monitor the performance under grant-
supported activities to assure that adequate progress is being made 
toward achieving the goals of the grant. This review shall be made for 
each program, function, or activity of each grant as set forth in the 
approved grant application.
    (b) Grantees shall submit a performance report for each grant which 
briefly presents the following for each program, function, or activity 
involved:
    (1) A comparison of actual accomplishments to the goals established 
for the period. Where the output of grant programs can be readily 
quantified, such quantitative data should be related to cost data for 
computation of unit costs.
    (2) Reasons for slippage in those cases were established goals were 
not met.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (c) Grantees shall submit the performance reports to the Bureau with 
the Financial Status Reports (prescribed in appendix B of this part) in 
the frequency established by appendix B. The Bureau shall prescribe the 
frequency with which the performance reports will be submitted with the 
Request for Advance or Reimbursement (prescribed in appendix B) when 
that form is used in lieu of the Financial Status Report. In no case 
shall the performance reports be required more frequently than quarterly 
or less frequently than annually.
    (d) Between the required performance reporting dates, events may 
occur which have significant impact upon the project or program. In such 
cases, the grantee shall inform the Bureau as soon as the following 
types of conditions become known:
    (1) Problems, delays, or adverse conditions which will materially 
affect the ability to attain program objectives, prevent the meeting of 
time schedules and goals, or preclude the attainment of project work 
units by established time periods. This disclosure shall be accomplished 
by a statement of the action taken, or contemplated, and any Bureau 
assistance needed to resolve the situation.
    (2) Favorable developments or events which enable meeting time 
schedules and goals sooner than anticipated or producing more work units 
than originally projected.
    (e) If any performance review conducted by the grantee discloses the 
need for change in the budget estimates in accordance with the criteria 
established in Sec. 276.14, the grantee shall submit a request for 
budget revision.
    (f) The bureau shall make site visits as frequently as practicable 
to:
    (1) Review program accomplishments and management control systems.
    (2) Provide such technical assistance as may be required, or 
requested.



Sec. 276.10  Grant payment requirements.

    (a) Except for construction grants for which the letter-of-credit 
method is optional, the letter-of-credit funding method shall be used by 
the Bureau where all of the following conditions exist:
    (1) When there is or will be a continuing relationship between a 
grantee and the Bureau for at least a 12-month period and the total 
amount of advances to be received within that period from the Bureau is 
$120,000, or more, as prescribed by Treasury Circular No. 1075.
    (2) When the grantee has established or demonstrated to the Bureau 
the willingness and ability to establish procedures that will minimize 
the time

[[Page 788]]

elapsing between the transfer of funds and their disbursement by the 
grantee.
    (3) When the grantee's financial management system meets the 
standards for fund control and accountability prescribed in Sec. 276.7.
    (b) The method of advancing funds by Treasury check shall be used, 
in accordance with the provisions of Treasury Circular No. 1075, when 
the grantee meets all of the requirements specified in paragraphs (a)(2) 
and (3) of this section.
    (c) The reimbursement by Treasury check method shall be the 
preferred method when the grantee does not meet the requirements 
specified in either paragraph (a)(2) or (a)(3), or both. This method may 
also be used when the major portion of the program is accomplished 
through private market financing or Federal loans, and when the Bureau 
grant assistance constitutes a minor portion of the program.
    (d) Unless otherwise required by law, the Bureau shall not withhold 
payments for proper charges made by grantees at any time during the 
grant period unless:
    (1) A grantee has failed to comply with the program objectives, 
grant award conditions, or Bureau reporting requirements; or
    (2) The grantee is indebted to the United States and collection of 
the indebtedness will not impair accomplishment of the objectives of any 
grant program sponsored by the United States. Under such conditions, the 
Bureau may, upon reasonable notice, inform the grantee that payments 
will not be made for obligations incurred after a specified date until 
the conditions are corrected or the indebtedness to the Federal 
Government is liquidated.
    (e) Appendix B of this part provides the procedures for requesting 
advances or reimbursements.

[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5099, Feb. 4, 1976]



Sec. 276.11  Property management standards.

    (a) Grantees may follow their own property management policies and 
procedures if they observe the requirements of this section. With 
respect to property covered by this section, the Bureau may not impose 
on grantees any requirements (including property reporting 
requirements)--not authorized by this part unless specifically required 
by Federal law.
    (b) Title to real property to be acquired in whole or in part from a 
Bureau grant under part 900 of this chapter shall vest in one of the 
following manners:
    (1) Title may be taken by the United States in trust for the Indian 
tribe upon the request of the tribe and when the real property to be 
acquired is within the reservation boundaries or adjoins on at least two 
sides other trust or restricted lands as prescribed in part 900 of this 
chapter.
    (2) Fee title to the acquired real property shall vest in the Indian 
tribe whenever the acquisition does not meet the criteria in paragraph 
(b)(1) of this section, unless for other reasons a tribe requests title 
to be taken in the name of the United States. In the absence of 
applicable statutory authority governing the disposition of real 
property acquired by a tribe, the tribe shall use the real property for 
the authorized purposes and in accordance with any other requirements 
imposed by the terms and conditions of the original grant. Changes in 
use compatible to other tribal programs may be authorized by the Bureau. 
When no longer needed for the authorized purposes, the real property 
shall be used in accordance with the standards set forth in Sec. 
276.11(d)(1) for non-expendable personal property. Accordingly, the 
following priority order for use of such property shall be:
    (i) Other grants from the Bureau.
    (ii) Grants from other Federal agencies.
    (iii) Tribal purposes consistent with those authorized for support 
by Bureau grants.
    (iv) Tribal official activities.
    (3) In those instances where the Indian tribe requests, title may be 
acquired by the United States. Use of these acquired real property 
interests will be subject to the authorized purposes and in accordance 
with the provisions of the original grant. Upon a determination that the 
real property is no longer needed for the authorized purposes, 
disposition may be made by

[[Page 789]]

declaring it excess under provisions of the Act of January 2, 1975 (88 
Stat. 1954) and title transferred to the Secretary to be held by the 
United States in trust for the tribe. Where real property does not meet 
the requirements under the Act of January 2, 1975 (88 Stat. 1954), the 
tribe may elect to acquire title under applicable enabling statutory 
authorities, or in the absence of statutory authority, request 
withholding disposition in aid of legislation, or authorize disposal 
under the General Services Administration procedures.
    (c) The provisions of paragraphs (b)(2) and (3) of this section 
shall also apply when real property is acquired in whole or in part by a 
Bureau grant other than that provided under part 900 of this chapter. 
However, when such property is acquired by a grantee other than an 
Indian tribe, or a tribal governing body, fee simple title to the 
property shall vest in the grantee upon acquisition. In the absence of 
applicable statutory provisions governing the use or disposition of such 
property, it shall be subject to the following requirments, in addition 
to any other requirements imposed by the terms and conditions of the 
grant:
    (1) The grantee shall use the real property for the authorized 
purpose of the original grant as long as needed.
    (2) The grantee shall obtain approval by the Bureau for the use of 
the real property in other projects when the grantee determines that the 
property is no longer needed for the original grant purposes. Use in 
other projects shall be limited to those under other Federal grant 
programs, or programs that have purposes consistent with those 
authorized for support by the grantor.
    (3) When the real property is no longer needed as provided in 
paragraphs (c)(1) and (2) of this section, the grantee shall return all 
real property furnished or purchased wholly with Bureau grant funds to 
the control of the Bureau. In the case of property purchased in part 
with Bureau grant funds, the grantee may be permitted to take title to 
the Federal interest therein upon compensating the Federal Government 
for its fair share of the property. The Federal share of the property 
shall be the amount computed by applying the percentage of the Federal 
participation in the total cost of the grant program for which the 
property was acquired to the current fair market value of the property.
    (d) Standards and procedures governing ownership, use, and 
disposition of nonexpendable personal property furnished by the Bureau 
or acquired with Bureau funds are set forth below:
    (1) Nonexpendable personal property acquired with Bureau funds. When 
nonexpendable personal property is acquired by a grantee wholly or in 
part with Bureau funds, title will not be taken by the Bureau except as 
provided in paragraph (d)(1)(iv) of this section but shall be vested in 
the grantee subject to the following restrictions on use and disposition 
of the property:
    (i) The grantee shall retain the property acquired with Bureau funds 
in the grant program as long as there is a need for the property to 
accomplish the purpose of the grant program whether or not the program 
continues to be supported by Bureau funds. When there is no longer a 
need for the property to accomplish the purpose of the grant program, 
the grantee shall use the property in connection with the other Federal 
grants it has received in the following order of priority:
    (A) Other grants from the Bureau needing the property.
    (B) Grants of other Federal agencies needing the property.
    (ii) When the grantee no longer has need for the property in any of 
its Federal grant programs, or programs that have purposes consistent 
with those authorized for support by the grantor, the property may be 
used for its own official activities in accordance with the following 
standards:
    (A) Nonexpendable property with an acquisition cost of less than 
$500 and used four years or more. The grantee may use the property for 
its own official activities without reimbursement to the Federal 
government or sell the property and retain the proceeds.
    (B) All other nonexpendable property. The grantee may retain the 
property for its own use if a fair compensation is made to the Bureau 
for the latter's share of the property. The amount of compensation shall 
be computed by applying the percentage of

[[Page 790]]

Bureau participation in the grant program to the current fair market 
value of the property.
    (iii) If the grantee has no need for the property, disposition of 
the property shall be made as follows:
    (A) Nonexpendable property with an acquisition cost of $1,000 or 
less. Except for that property which meets the criteria of paragraph 
(d)(1)(ii)(A) of this section, the grantee shall sell the property and 
reimburse the Bureau an amount which is computed in accordance with 
paragraph (d)(1)(iii) of this section.
    (B) Nonexpendable property with an acquisition cost of over $1,000. 
The grantee shall request disposition instructions from the Bureau. The 
Bureau shall determine whether the property can be used to meet the 
Bureau's requirement. If no requirement exists within the Bureau, the 
availability of the property shall be reported to the General Services 
Administration (GSA) by the Bureau to determine whether a requirement 
for the property exists in other Federal agencies. The Bureau shall 
issue instructions to the grantee within 120 days and the following 
procedures shall govern:
    (1) If the grantee is instructed to ship the property elsewhere, the 
grantee shall be reimbursed by the benefiting Federal agency with an 
amount which is computed by applying the percentage of the grantee's 
participation in the grant program to the current fair market value of 
the property, plus any shipping or interim storage costs incurred.
    (2) If the grantee is instructed to otherwise dispose of the 
property, he shall be reimbursed by the Bureau of such costs incurred in 
its disposition.
    (3) If disposition instructions are not issued within 120 days after 
reporting, the grantee shall sell the property and reimburse the Bureau 
and amount which is computed by applying the percentage of Bureau 
participation in the grant program to the sales proceeds. Further, the 
grantee shall be permitted to retain $100 or 10 percent of the proceeds, 
whichever is greater, for the grantee's selling and handling expenses.
    (iv) Where the Bureau determines that property with an acquisition 
cost of $1,000 or more and financed solely with Bureau funds is unique, 
different, or costly to replace, it may reserve title to such property, 
subject to the following provisions:
    (A) The property shall be appropriately identified in the grant 
agreement or otherwise made known to the grantee.
    (B) The Bureau shall issue disposition instructions within 120 days 
after the completion of the need for the property under the grant for 
which it was acquired. If the Bureau fails to issue disposition 
instructions within 120 days, the grantee shall apply the standards of 
paragraphs (d)(1)(i), (d)(1)(ii)(B), and (d)(1)(iii)(B) of this section.
    (2) Federally owned nonexpendable personal property. Unless 
statutory authority to transfer title has been granted to an agency, 
title to Federally owned property (property to which the Federal 
Government retains title including excess property made available by the 
Bureau to grantees) remains vested by law in the Federal Government. 
Upon termination of the grant or need for the property, such property 
shall be reported to the Bureau for further Bureau use or, if 
appropriate, for reporting to the General Services Administration for 
other Federal agency use. Appropriate disposition instructions will be 
issued to the grantee after completion of Bureau review.
    (e) The grantee's property management standards for nonexpendable 
personal property shall also include the following procedural 
requirements:
    (1) Property records shall be maintained accurately and provide for 
a description of the property; manufacturer's serial number or other 
identification number; acquisition date and cost; source of the 
property; percentage of Federal funds used in the purchase of property; 
location, use, and condition of the property; and ultimate disposition 
data including sales price or the method used to determine current fair 
market value if the grantee reimburses the bureau for its share.
    (2) A physical inventory of property shall be taken and the results 
reconciled with the property records at least once every two years to 
verify the

[[Page 791]]

existence, current use, and continued need for the property.
    (3) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft to the property. Any loss, 
damage, or theft of nonexpendable property shall be investigated and 
fully documented.
    (4) Adequate maintenance procedures shall be implemented to keep the 
property in good condition.
    (5) Proper sales procedures shall be established for unneeded 
property which would provide for competition to the extent practicable 
and result in the highest possible return.
    (f) When the total inventory value of any unused expendable personal 
property exceeds $500 at the expiration of need for any grant purposes, 
the grantee may retain the property or sell the property as long as he 
compensates the Bureau for its share in the cost. The amount of 
compensation shall be computed in accordance with paragraph 
(d)(1)(ii)(B) of this section.
    (g) Specific standards for control of intangible property are 
provided as follows:
    (1) If any program produces patentable items, patent rights, 
processes, or inventions, in the course of work aided by a Bureau grant, 
such fact shall be promptly and fully reported to the Bureau. Unless 
there is prior agreement between the grantee and Bureau on disposition 
of such items, the Bureau shall determine whether protection on such 
invention or discovery shall be sought and how the rights in the 
invention or discovery--including rights under any patent issued on it--
shall be allocated and administered in order to protect the public 
interest consistent with ``Government Patent Policy'' (President's 
memorandum for heads of executive departments and agencies), dated 
August 23, 1971, and Statement of Government Patent Policy as printed in 
36 FR 16889.
    (2) Where the grant results in a book or other copyrightable 
material, the author or grantee is eligible to copyright the work if it 
is found that (i) the retention of the copyright is not precluded by 
statute and (ii) equity or the public interest is best served by doing 
so, by reason of special circumstances. If it is found that the public 
interest is best served by limiting the term of any copyright to be 
obtained, such limits shall be set forth in the grant agreement. 
``Developmental'' copyrights may be requested during the development, 
testing, or evaluation of copyrightable materials in order to prevent 
them from prematurely falling into the public domain. The copyright will 
be in accordance with copyright laws. However, the Government shall 
receive a royalty-free, nonexclusive and irrevocable license to 
reproduce, publish, or otherwise use, and to authorize others to use the 
work for Government purposes. A copy of any copyright obtained by a 
grantee shall be provided to the Bureau. Program income received as 
royalties from copyrights on materials produced under grants is retained 
by the grantee during the grant period and is to be used according to 
the provisions of Sec. 276.6(c). Specific agreements between the Bureau 
and the grantee shall be entered into before the grant is awarded to 
determine the uses of the royalty income after the grant is completed or 
terminated.
    (h) The use of Bureau-owned facilities under the jurisdiction of the 
Commissioner by a grantee for purposes of carrying out a grant may be 
authorized when the facilities are not needed for Bureau purposes.

[40 FR 51316, Nov. 4, 1975, as amended at 43 FR 37446, Aug. 23, 1978; 64 
FR 13897, Mar. 23, 1999]



Sec. 276.12  Procurement standards.

    (a) The standards contained in this section do not relieve the 
grantee of the contractual responsibilities arising under its contracts. 
The grantee is the responsible authority, without recourse to the Bureau 
regarding the settlement and satisfaction of all contractual and 
administrative issues arising out of procurements entered into, in 
support of a grant. This includes but is not limited to: disputes, 
claims, protests of award, source evaluation or other matters of a 
contractual nature. Matters concerning violation of law are to be 
referred to the tribal, Federal or other authority which has proper 
jurisdiction.
    (b) Grantees may use their own procurement regulations provided that 
procurements made with Bureau grant

[[Page 792]]

funds adhere to the standards set forth as follows:
    (1) The grantee shall maintain a code or standards of conduct which 
shall govern the performance of its officers, employees, or agents in 
contracting with and expending Bureau grant funds. Grantee's officers, 
employees or agents, shall neither solicit nor accept gratuities, 
favors, or anything of monetary value from contractors or potential 
contractors. To the extent permissible by law, rules or regulations, 
such standards shall provide for penalties, sanctions, or other 
disciplinary actions to be applied for violations of such standards by 
either the grantee officers, employees, or agents, or by contractors or 
their agents.
    (2) All procurement transactions regardless of whether negotiated or 
advertised and without regard to dollar value shall be conducted in a 
manner so as to provide maximum open and free competition. The grantee 
should be alert to organizational conflicts of interest or non-
competitive practices among contractors which may restrict or eliminate 
competition or otherwise restrain trade. However, this provision will 
apply only after the Indian preference requirements prescribed in Sec. 
276.13 have been met.
    (3) The grantee shall establish procurement procedures which provide 
for, as a minimum, the following procedural requirements:
    (i) Proposed procurement actions shall be reviewed by grantee 
official to avoid purchasing unnecessary or duplicative items. Where 
appropriate, an analysis shall be made of lease and purchase 
alternatives to determine which would be the most economical, practical 
procurement.
    (ii) Invitations for bids or requests for proposals shall be based 
upon a clear and accurate description of the technical requirements for 
the material, product, or service to be procured. In competitive 
procurements, such description shall not contain features which unduly 
restrict competition. ``Brand name or equal'' description may be used as 
a means to define the performance or other salient requirements of a 
procurement. When so used, the specific features of the named brand 
which must be met by offerors should be clearly specified.
    (iii) Positive efforts shall be made by the grantees to use small 
business and minority-owned business sources of supplies and services. 
Such efforts should allow these sources the maximum feasible opportunity 
to compete for contracts to be performed using Bureau grant funds. 
However, this provision will apply only after the Indian preference 
requirements prescribed in Sec. 276.13 have been met.
    (iv) The type of procuring instruments used (i.e., fixed price 
contracts, cost reimbursable contracts, etc.) shall be appropriate for 
the particular procurement and for promoting the best interest of the 
grant program involved. The ``cost-plus-a-percentage-of-cost'' method of 
contracting shall not be used.
    (v) Formal advertising, with adequate purchase description, sealed 
bids, and public openings shall be the required method of procurement 
unless negotiation pursuant to paragraph (b)(3)(vi) of this section is 
necessary to accomplish sound procurement. However, procurement of 
$10,000 or less need not be so advertised. Where such advertised bids 
are obtained the awards shall be made to the responsible bidder whose 
bid is responsive to the invitation and is most advantageous to the 
grantee, price and other factors considered. (Factors such as discounts, 
transportation costs, taxes may be considered in determining the lowest 
bid.) Invitations for bids shall clearly set forth all requirements 
which the bidder must fulfill in order for his bid to be evaluated by 
the grantee. Any or all bids may be rejected when it is in the grantee's 
interest to do so.
    (vi) Procurements may be negotiated if it is impractical and 
unfeasible to use formal advertising. Generally, procurements may be 
negotiated by the grantee if:
    (A) The public exigency will not permit the delay incident to 
advertising;
    (B) The material or service to be procured is available from only 
one person or firm; (all contemplated sole source procurements where the 
aggregate expenditure is expected to exceed $5,000 shall be referred to 
the Bureau for prior approval).

[[Page 793]]

    (C) The total amount involved does not exceed $10,000;
    (D) The contract is for personal or professional services, or for 
any service to be rendered by a university, college, or other 
educational institutions;
    (E) No acceptable bids have been received after formal advertising;
    (F) The purchases are for highly perishable materials or medical 
supplies; for material or services where the prices are established by 
law; for technical items or equipment requiring standardization and 
interchangeability of parts with existing equipment; for experimental, 
developmental or research work; for supplies purchased for authorized 
resale; and for technical or specialized supplies requiring substantial 
initial investment for manufacture;
    (G) Otherwise authorized by law, rules or regulations. 
Notwithstanding the existence of circumstances justifying negotiation, 
competition shall be obtained to the maximum extent practicable.
    (vii) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of a proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources, or accessibility to other necessary 
resources.
    (viii) Procurement records or files for purchases in amounts over 
$10,000 shall provide at least the following pertinent information: 
Justification for the use of negotiation in lieu of advertising, 
contractor selection, and the basis for the cost or price negotiation.
    (ix) A system for contract administration shall be maintained to 
assure contractor conformance with terms, conditions, and specifications 
of the contract or order, and to assure adequate and timely followup of 
all purchases.
    (c) In addition to provisions to define a sound and complete 
agreement, the grantee shall include the following provisions in all 
contracts and subgrants:
    (1) Contracts shall contain such contractual provisions or 
conditions which will allow for administrative, contractual, or legal 
remedies in instances where contractors violate or breach contract 
terms, and provide for such sanctions and penalties as may be 
appropriate.
    (2) All contracts, amounts for which are over $10,000 shall contain 
suitable provisions for termination by the grantee including the manner 
by which it will be effected and the basis for settlement. In addition, 
such contracts shall describe conditions where the contract may be 
terminated for default as well as conditions where the contract may be 
terminated because of circumstances beyond the control of the 
contractor.
    (3) In all contracts for construction or facility improvement 
awarded over $100,000, grantees shall observe the bonding requirements 
provided in Sec. 276.4.
    (4) All construction contracts awarded by recipients and their 
contractors or subgrantees having a value of more than $10,000, shall 
contain a provision requiring compliance with Executive Order 11246, 
entitled ``Equal Employment Opportunity,'' as amended by Labor 
Regulations (41 CFR part 87). However, this Equal Employment Opportunity 
provision will apply only after the Indian preference requirements 
prescribed in Sec. 276.13 have been met.
    (5) All contracts and subgrants for construction or repair shall 
include a provision for compliance with the Copeland ``Anti-Kick Back'' 
Act (18 U.S.C. 874) as supplemented in Department of Labor regulations 
(29 CFR part 3). This Act provides that each contractor or subgrantee 
shall be prohibited from inducing, by any means, any person employed in 
the construction, completion, or repair of public work, to give up any 
part of the compensation to which he is otherwise entitled. The grantee 
shall report all suspected or reported violations to the Bureau.
    (6) When required by the Federal grant program legislation, all 
construction contracts awarded by grantees and subgrantees over $2,000 
shall include a provision for compliance with the Davis-Bacon Act (40 
U.S.C. 276a to a-7) and as supplemented by Department of Labor 
regulations (29 CFR part 5). Under this Act, contractors shall be 
required to pay wages to laborers and

[[Page 794]]

mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less often than once a week. The 
grantee shall place a copy of the current prevailing wage determination 
issued by the Department of Labor in each solicitation and the award of 
a contract shall be conditioned upon the acceptance of the wage 
determination. The grantee shall report all suspected or reported 
violations to the Bureau.
    (7) Where applicable, all contracts awarded by grantees and 
subgrantees over $2,000 for construction contracts and over $2,500 for 
other contracts which involve the employment of mechanics or laborers 
shall include a provision for compliance with sections 103 and 107 of 
the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
section 103 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work day 
of 8 hours and a standard work week of 40 hours. Work in excess of the 
standard workday or workweek is permissible if the worker is compensated 
at a rate of not less than 1\1/2\ times the basic rate of pay for all 
hours worked over 8 hours in any calendar day or 40 hours in the work 
week. Section 107 of the Act applies to construction work and provides 
that no laborer or mechanic shall be required to work in surroundings or 
under working conditions which are unsanitary, hazardous, or dangerous 
to his health and safety as determined under construction, safety, and 
health standards promulgated by the Secretary of Labor. These 
requirements do not apply to the purchases of supplies or materials or 
articles ordinarily available on the open market, or contracts for 
transportation or transmission of intelligence.
    (8) Contracts or agreements, the principal purpose of which is to 
create, develop, or improve products, processes or methods; or for 
exploration into fields which directly concern public health, safety, or 
welfare; or constraints in the field of science or technology in which 
there has been little significant experience outside of work funded by 
Federal assistance, shall contain a notice to the effect that matters 
regarding rights to inventions, and materials generated under the 
contract or agreement are subject to the regulations issued by the 
Bureau. The contractor shall be advised as to the source of additional 
information regarding these matters.
    (9) All negotiated contracts (except those of $10,000 or less) 
awarded by grantees shall include a provision to the effect that the 
grantee, the Bureau, the Comptroller General of the United States, or 
any of their duly authorized representatives, shall have access to any 
books, documents, papers, and records of the contractor which are 
directly pertinent to a specific grant program for the purpose of making 
audit, examination, excerpts, and transcriptions.
    (10) Contracts and subgrants of amounts over $100,000 shall contain 
a provision which requires the recipient to agree to comply with all 
applicable standards, orders, or regulations issued pursuant to the 
Clean Air Act of 1970 (42 U.S.C. 1251 et seq.) as amended. Violations 
shall be reported to the Bureau and the Regional Office of the 
Environmental Protection Agency.



Sec. 276.13  Indian preference in grant administration.

    Any grant or subgrant shall require that to the greatest extent 
feasible:
    (a) Preferences and opportunities for training and employment in 
connection with the administration of such a grant or subgrant shall be 
given to Indians.
    (b) Preference in the award of a subgrant, contract or subcontract 
in connection with administration of a grant shall be given to Indian 
organizations and economic enterprises.
    (c) A tribal governing body may develop its own Indian preference 
requirements to the extent that such requirements are not inconsistent 
with the purpose and intent of paragraphs (a) and (b) of this section 
for grants executed under this part.

[[Page 795]]



Sec. 276.14  Budget revision.

    Criteria and procedures to be followed by grantees in reporting 
deviations from grant budgets and requesting approval for budget 
revisions are as follows:
    (a) For nonconstruction grants, grantees shall request prior 
approvals promptly from the Bureau for budget revisions whenever:
    (1) The revision results from changes in the scope or the objective 
of the grant-supported program.
    (2) The revision indicates the need for additional Bureau funding.
    (3) The grant budget is over $100,000 and the cumulative amount of 
transfers among direct cost object class budget categories exceeds or is 
expected to exceed $10,000, or five percent of the grant budget, 
whichever is greater. The same criteria apply to cumulative amount of 
transfers among programs, functions, and activities when budgeted 
separately for a grant, except that the Bureau shall permit no transfer 
which would cause any Federal appropriation, or part thereof, to be used 
for purposes other than those intended.
    (4) The grant budget is $100,000, or less, and the cumulative amount 
of transfers among direct cost object class budget categories exceeds or 
is expected to exceed five percent of the grant budget. The same 
criteria apply to the cumulative amount of transfers among programs, 
functions, and activities when budgeted separately for a grant, except 
that the Bureau shall permit no transfer which would cause any Federal 
appropriation, or part thereof, to be used for purposes other than those 
intended.
    (5) The revisions involve the transfer of amounts budgeted for 
indirect costs to absorb increases in direct costs.
    (6) The revisions pertain to the addition of items requiring 
approval in accordance with the provisions of appendix A of this part.
    (b) All other changes to nonconstruction grant budgets, except for 
the changes described in paragraph (d) of this section do not require 
approval. These changes include:
    (1) The use of grantee funds in furtherance of program objectives 
over and above the grantee minimum share included in the approved grant 
budget and
    (2) The transfer of amounts budgeted for direct costs to absorb 
authorized increases in indirect costs.
    (c) For construction grants, grantees shall request prior approval 
promptly from the Bureau for budget revisions whenever:
    (1) The revision results from changes in the scope or the objective 
of the grant-supported programs.
    (2) The revision increases the budgeted amounts of Bureau funds 
needed to complete the project.
    (d) When the Bureau awards a grant which provides support for both 
construction and nonconstruction work, the Bureau may require, in the 
grant agreement, the grantee to request prior approval before making any 
fund or budget transfers between the two types of work supported.
    (e) For both construction and nonconstruction grants, the Bureau 
shall require tribal grantees to notify the Bureau promptly whenever the 
amount of Bureau authorized funds is expected to exceed the needs of the 
grantee by more than $5,000 or 5 percent of the Bureau grant, whichever 
is greater. This notification will not be required when applications for 
additional funding are submitted for continuing grants.
    (f) When requesting approval for budget revisions, grantees shall 
use the budget forms which were used in the grant application. However, 
grantees may request by letter the approvals required by the provisions 
of appendix A of this part.
    (g) Within 30 days from the date of receipt of the request for 
budget revisions, the Bureau shall review the request and notify the 
grantee whether or not the budget revisions have been approved. If the 
Bureau does not reach a decision prior to the end of the 30-day period 
or should the grantee not be notified of the Bureau's decision by the 
end of the 30-day period the grantee may appeal directly to the 
Commissioner.



Sec. 276.15  Grant closeout.

    (a) In closing out Bureau grants, the following shall be observed:
    (1) Upon request, the Bureau shall make prompt payments to a grantee

[[Page 796]]

for allowable reimbursable costs under the grant being closed out.
    (2) The grantee shall immediately refund to the Bureau any 
unencumbered balance of cash advanced to the grantee.
    (3) The Bureau shall obtain from the grantee within 90 days after 
the date of completion of the grant all financial, peformance, and other 
reports required as a condition of the grant. The Bureau may grant 
extensions when requested by the grantee.
    (4) The Bureau shall make a settlement for any upward or downward 
adjustments to the Federal share of costs after these reports are 
received.
    (5) The grantee shall account for any property acquired with grant 
funds, or received from the Government in accordance with the provisions 
of Sec. 276.11.
    (6) If a final audit has not been performed before the closeout of 
the grant, the Bureau shall retain the right to recover an appropriate 
amount after fully considering the recommendations on disallowed costs 
resulting from the final audit.
    (b) Suspension. When a grantee has materially failed to comply with 
the terms and conditions of a grant, the Bureau may after reasonable 
notice to the grantee, suspend the grant. The notice preceding 
suspension shall include the effective date of the suspension, the 
reasons for the suspension, the corrective measures necessary for 
reinstatement of the grant, and, if there is no immediate threat to 
safety, a reasonable time frame for corrective action prior to actual 
suspension. No obligations incurred by the grantee during the period of 
suspension shall be allowable under the suspended grant, except that the 
Bureau may at its discretion allow necessary and proper costs which the 
grantee could not reasonably avoid during the period of suspensions if 
such costs would otherwise be allowable under the applicable cost 
principles specified in appendix A of this part. Appropriate adjustments 
to the payments under the suspended grant will be made, either by 
withholding the payments or by not allowing the grantee credit for 
disbursements which he may make in liquidation of unauthorized 
obligations he incurs during the period of suspension. Suspensions shall 
remain in effect until the grantee has taken corrective action to the 
satisfaction of the Bureau or given assurances satisfactory to the 
Bureau that corrective action will be taken, or until the Bureau cancels 
the grant.
    (c)(1) Cancellation for cause. The Bureau may cancel any grant in 
whole, or in part, at any time before the date of completion, whenever 
it is determined that the grantee has:
    (i) Materially failed to comply with the terms and conditions of the 
grant;
    (ii) Violated the rights or endangered the health, safety, or 
welfare of any persons;
    (iii) Been grossly negligent in or has mismanaged the handling or 
use of funds provided under the grant.
    (2) When it appears that cancellation of a grant shall become 
necessary, the Bureau shall promptly notify the grantee in writing of 
this possibility. This written notice shall advise the grantee of the 
reason for the possible cancellation and the corrective action necessary 
to avoid cancellation. The Bureau shall also offer, and provide if 
requested by the grantee, any technical assistance which may be required 
to effect the corrective action. The grantee shall have 60 days in which 
to effect this corrective action before the Bureau provides notice of 
intent to cancel the grant as provided in paragraph (c)(3) of this 
section.
    (3) Upon deciding to cancel for cause, the Bureau shall promptly 
notify the grantee in writing of that decision, the reasons for the 
cancellation, and the effective date. The Bureau shall also provide a 
hearing for the grantee before cancellation, as provided in Sec. 
272.51. However, the Bureau may immediately cancel the grant, upon 
notice to the grantee, if the Bureau determines that continuance of the 
grant poses an immediate threat to safety. In this event, the Bureau 
shall provide a hearing for the grantee within ten (10) days of 
cancellation.
    (4) Payments made to grantees or recoveries by the Bureau under 
grants cancelled for cause shall be in accordance with the legal rights 
and obligations of the parties.
    (d)(1) Cancellation on other grounds. Except as provided in 
paragraph (c) of

[[Page 797]]

this section, grants may be cancelled in whole or in part only as 
follows:
    (i) By the Bureau with the consent of the grantee, in which case the 
two parties shall agree upon the cancellation conditions, including the 
effective date, and in the case of partial cancellation, the portion to 
be cancelled; or
    (ii) By the grantee, upon written notice to the Bureau, setting 
forth the reasons for the cancellation, the effective date, and, in the 
case of partial cancellation, the portion to be cancelled.
    (2) When a grant is cancelled in accordance with paragraph (d) of 
this section, the grantee shall not incur new obligations for the 
cancelled portion after the effective date, and shall cancel as many 
outstanding obligations as possible. The Bureau shall allow full credit 
to the grantee for the Bureau share of the noncancellable obligations 
properly incurred by the grantee before cancellation.

[40 FR 51316, Nov. 4, 1975, as amended at 45 FR 13452, Feb. 29, 1980]



Sec. 276.16  Subgrants and subcontracts to non-profit organizations.

    The uniform administrative requirements in this part, including the 
cost principles in appendix A, to this part, are applicable to all 
subgrants or subcontracts made by a grantee in accordance with the 
provisions of this chapter. However, these requirements and cost 
principles are applicable as minimum standards for subgrants or 
subcontracts made to nonprofit organizations. Accordingly, the grantee 
may prescribe additional or more stringent requirements with regard to 
subgrants or subcontracts made to non-profit organizations.



Sec. 276.17  Printing.

    As permitted by paragraph 36-2(c) in the Government Printing and 
Binding Regulations (October 1974, No. 23), published by the Joint 
Committee on Printing (JCP), printing required by a grantee in 
performing work under a grant is considered ``incidental printing'' 
(e.g., material which the grantee needs to use to respond to the terms 
of the grant). Whenever the incidental printing is likely to exceed the 
exclusions in paragraphs 36-3 and 36-4 of the Joint Committee on 
Printing (JCP) Printing and Binding Regulations, specific provisions on 
printing as may be required shall be included in the grant agreement. 
Grantees shall be given the option of using sources other than the 
Government Printing Office for incidental printing.

[43 FR 37446, Aug. 23, 1978]

 Appendix A to Part 276--Principles for Determining Costs Applicable to 
                                 Grants

                             part i--general

    A. Purpose and scope. 1. Objectives. This attachment sets forth 
principles for determining the allowable costs of programs administered 
by grantees under grants from the Bureau. The principles are for the 
purpose of cost determination and are not intended to identify the 
circumstances or dictate the extent of Bureau and tribal participation 
in the financing of a particular grant. They are designed to provide 
that Bureau assisted programs bear their fair share of costs recognized 
under these principles, except where restricted or prohibited by law. No 
provision for profit or other increment above cost is intended.
    2. Policy guides. The application of these principles is based on 
the fundamental premises that:
    a. Grantees are responsible for the efficient and effective 
administration of grant programs through the application of sound 
management practices.
    b. The grantee assumes the responsibility for seeing that Bureau 
assisted program funds have been expended and accounted for consistent 
with underlying agreements and program objectives.
    c. Each grantee organization, in recognition of its own unique 
combination of staff facilities and experience, will have the primary 
responsibility for employing whatever form of organization and 
management techniques may be necessary to assure proper and efficient 
administration.
    3. Application. These principles will be applied by the Bureau in 
determining costs incurred by grantees under Bureau grants (including 
subgrants, contracts by grantees and subcontracts).
    B. Definitions. 1. Approval or authorization of the Bureau means 
documentation evidencing consent prior to incurring specific cost.
    2. Cost allocation plan means the documentation identifying, 
accumulating, and distrtibuting allowable costs under grants and 
contracts together with the allocation methods used.

[[Page 798]]

    3. Cost, as used herein, means cost as determined on a cash, 
accrual, or other basis acceptable to the Bureau as a discharge of the 
grantee's accountability for Bureau funds.
    4. Cost objective means a pool, center, or area established for the 
accumulation of cost. Such areas include organizational units, 
functions, objects or items of expense as well as ultimate cost 
objectives including specific grants, projects, contracts, and other 
activities.
    5. Federal agency means any department, agency, commission, or 
instrumentality in the executive branch of the Federal Government which 
makes grants to grantees.
    6. Grant means an agreement between the Bureau and a grantee whereby 
the Bureau provides funds or aid in kind to carry out specified 
programs, services, or activities. The principles and policies stated in 
this appendix as applicable to grants in general also apply to any 
Federally sponsored cost reimbursement type of agreement performed by a 
grantee, including contracts, subcontracts and subgrants.
    7. Grant program means those activities and operations of the 
grantee which are necessary to carry out the purposes of the grant, 
including any portion of the program financed by the grantee.
    8. Grantee means the entity which is responsible for administration 
of the grant.
    9. Services, as used herein, means goods and facilities, as well as 
services.
    10. Supporting services means auxiliary functions necessary to 
sustain the direct effort involved in administering a grant program or 
an activity providing service to the grant program. These services may 
be centralized in the grantee department or in some other agency, and 
include procurement, payroll, personnel functions, maintenance and 
operation of space, data processing, accounting, budgeting, auditing, 
mail and messenger service, and the like.
    C. Basic guidelines. 1. Factors affecting allowability of costs. To 
be allowable under a grant program, costs must meet the following 
general criteria:
    a. Be necessary and reasonable for proper and efficient 
administration of the grant program, be allocable thereto under these 
principles, and, except as specifically provided herein, not be a 
general expense required to carry out the overall responsibilities of a 
grantee.
    b. Be authorized or not prohibited under applicable laws or 
regulations.
    c. Conform to any limitations or exclusions set forth in these 
principles, Federal laws, or other governing limitations as to types or 
amounts of cost items.
    d. Be consistent with policies, regulations, and procedures that 
apply uniformly to both Federally assisted and other activities of which 
the grantee is a part.
    e. Be accorded consistent treatment through application of generally 
accepted accounting principles appropriate to the circumstances.
    f. Not be allocable to or included as a cost of any other Federally 
financed program in either the current or a prior period.
    g. Be net of all applicable credits.
    2. Allocable costs. a. A cost is allocable to a particular cost 
objective to the extent of benefits received by such objective.
    b. Any cost allocable to a particular grant or cost objective under 
the principles provided for in this appendix may not be shifted to other 
Federal grant programs to overcome funds deficiencies, avoid 
restrictions imposed by law or grant agreements, or for other reasons.
    c. Where an allocation of joint cost will ultimately result in 
charges to a grant program, an allocation plan will be required as 
prescribed in section I.
    3. Applicable credits. a. Applicable credits refer to those receipts 
or reduction of expenditure-type transactions which offset or reduce 
expense items allocable to grants as direct or indirect costs. Examples 
of such transactions are: purchase discounts; rebates or allowances; 
recoveries or indemnities on losses; sale of publications, equipment, 
and scrap; income from personal or incidental services; and adjustments 
of overpayments or erroneous charges.
    b. Applicable credits may also arise when Bureau funds are received 
or are available from sources other than the grant program involved to 
finance operations or capital items of the grantee. This includes costs 
arising from the use of depreciation of items donated or financed by the 
Bureau to fulfill matching requirements under another grant program. 
These types of credits should likewise be used to reduce related 
expenditures in determining the rates or amounts applicable to a given 
grant.
    D. Composition of cost. 1. Total cost. The total cost of a grant 
program is comprised of allowable direct cost incident to its 
performance, plus its allocable portion of allowable indirect costs, 
less applicable credits.
    2. Classification of costs. There is no universal rule for 
classifying certain costs as either direct or indirect under every 
accounting system. A cost may be direct with respect to some specific 
service or function, but indirect with respect to the grant or other 
ultimate cost objective. It is essential, therefore, that each item of 
cost be treated consistently either as a direct or an indirect cost. 
Specific guides for determining direct and indirect costs allocable 
under grant programs are provided in the sections which follow.
    E. Direct costs. 1. General. Direct costs are those that can be 
identified specifically with a particular cost objective. These costs 
may be charged directly to grants, contracts, or

[[Page 799]]

to other programs against which costs are finally lodged. Direct costs 
may also be charged to cost objectives used for the other ultimate cost 
objective.
    2. Application. Typical direct costs chargeable to grant programs 
are:
    a. Compensation of employees for the time and effort devoted 
specifically to the execution of grant programs.
    b. Cost of materials acquired, consumed, or expended specifically 
for the purpose of the grant.
    c. Equipment and other approved capital expenditures.
    d. Other items of expense incurred specifically to carry out the 
grant agreement.
    e. Services furnished specifically for the grant program by other 
agencies, provided such charges are consistent with criteria outlined in 
section G of these principles.
    F. Indirect costs. 1. General. Indirect costs are those (a) incurred 
for a common or joint purpose benefiting more than one cost objective, 
and (b) not readily assignable to the cost objectives specifically 
benefited, without effort disproportionate to the results achieved. The 
term ``indirect costs,'' as used herein, applies to costs of this type 
originating in the grantee department, as well as those incurred by 
other departments in supplying goods, services, and facilities, to the 
grantee department. To facilitate equitable distribution of indirect 
expenses to the cost objectives served, it may be necessary to establish 
a number of pools of indirect cost within a grantee department or in 
other agencies providing services to a grantee department. Indirect cost 
pools should be distributed to benefiting cost objectives on bases which 
will produce an equitable result in consideration or relative benefits 
derived.
    2. Grantee departmental indirect costs. All grantee departmental 
indirect costs, including the various levels of supervision, are 
eligible for allocation to grant programs provided they meet the 
conditions set forth in this part. In lieu of determining the actual 
amount of grantee departmental indirect cost allocable to a grant 
program, the following methods may be used:
    a. Predetermined fixed rates for indirect costs. A predetermined 
fixed rate for computing indirect costs applicable to a grant may be 
negotiated annually in situations where the cost experience and other 
pertinent facts available are deemed sufficient to enable the 
contracting parties to reach an informed judgment (1) as to the probable 
level of indirect costs in the grantee department during the period to 
be covered by the negotiated rate, and (2) that the amount allowable 
under the predetermined rate would not exceed actual indirect cost.
    b. Negotiated lump sum for overhead. A negotiated fixed amount in 
lieu of indirect costs may be appropriate under circumstances where the 
benefits derived from a grantee department's indirect services cannot be 
readily determined as in the case of small, self-contained or isolated 
activity. When this method is used, a determination should be made that 
the amount negotiated will be approximately the same as the actual 
indirect cost that may be incurred. Such amounts negotiated in lieu of 
indirect costs will be treated as an offset to total indirect expenses 
of the grantee department before allocation to remaining activities. The 
base on which such remaining expenses are allocated should be 
appropriately adjusted.
    3. Limitation on indirect costs. a. Bureau grants may be subject to 
laws that limit the amount of indirect costs that may be allowed. In 
this event, the Bureau will establish procedures which will assure that 
the amount actually allowed for indirect costs under each such grant 
does not exceed the maximum allowable under the statutory limitation or 
the amount otherwise allowable under this appendix, whichever is the 
smaller.
    b. When the amount allowable under a statutory limitation is less 
than the amount otherwise allocable as indirect costs under this 
appendix the amount not recoverable as indirect costs under a grant may 
not be shifted to another Federally sponsored grant program or contract.
    G. Cost incurred by organizations other than the grantee. 1. 
General. The cost of service provided by other organizations may only 
include allowable direct costs of the service plus a prorata share of 
allowable supporting costs and supervision directly required in 
performing the service, but not supervision of a general nature such as 
that provided by the head of an organization and his staff assistants 
not directly involved in operations. However, supervision by the head of 
an organization whose sole function is providing the service furnished 
would be an eligible cost. Supporting costs include those furnished by 
other units of the supplying organizations.
    2. Alternative methods of determining indirect cost. In lieu of 
determining actual indirect cost related to a particular service 
furnished by another organization, either of the following alternative 
methods may be used provided only one method is used for a specific 
service during the fiscal year involved.
    a. Standard indirect rate. An amount equal to ten percent of direct 
labor cost in providing the service performed by another organization 
(excluding overtime, shift, or holiday premiums and fringe benefits) may 
be allowed in lieu of actual allowable indirect cost for that service.
    b. Predetermined fixed rate. A predetermined fixed rate for indirect 
cost of the unit or activity providing service may be negotiated as set 
forth in section F.2.a.
    H. Cost incurred by grantee for others. 1. General. The principles 
provided in section G will

[[Page 800]]

also be used in determining the cost of services provided by the grantee 
to another agency.
    I. Cost allocation plan. 1. General. A plan for allocation of costs 
will be required to support the distribution of any joint costs related 
to the grant program. All costs included in the plan will be supported 
by formal accounting records which will substantiate the propriety of 
eventual charges.
    2. Requirements. The allocation plan of the grantee should cover all 
joint costs of the grantees as well as costs to be allocated under plans 
of other agencies or organizational units which are to be included in 
the costs of federally sponsored programs. The cost allocation plans of 
all the agencies rendering services to the grantee, to the extent 
feasible, should be presented in a single document. The allocation plan 
should contain, but not neessarily be limited to, the following:
    a. The nature and extent of services provided and their relevance to 
the federally sponsored programs.
    b. The items of expense to be included.
    c. The methods to be used in distributing cost.
    3. Instructions for preparation of cost allocation plans. The 
Bureau, in consultation with the other Federal agencies concerned, will 
be responsible for developing and issuing the instructions for use by 
grantees in preparation of cost allocation plans.
    4. Submission of indirect cost proposal and negotiation of indirect 
cost rates.
    a. A grantee should submit its indirect cost proposal to the Federal 
agency which provides the largest dollar volume of contracts and grants. 
However, once a Federal agency has handled an indirect cost proposal, 
that same Federal agency should continue to act upon the proposal even 
though the preponderance of financial interest may have shifted to 
another Federal agency, and grantee shall not resubmit its indirect cost 
proposal to a second Federal agency.
    b. Where the grantee submits its proposal to the Department of 
Interior, the proposal should be sent by the Bureau of Indian Affairs to 
the cognizant Regional Office of the Department's Office of Audit and 
Investigation. The Office of Audit and Investigation is responsible for 
the audit and review of the proposals and negotiation of the indirect 
cost rates.
    c. Grant administrators officers will usually, but are not required 
to, accept indirect cost rates negotiated by other Federal agencies.
    d. The Bureau of Indian Affairs will provide technical assistance in 
developing indirect cost proposals, if needed.

              Part II--Standards for Selected Items of Cost

    A. Purpose and applicability. 1. Objective. This attachment provides 
standards for determining the allowability of selected items of cost.
    2. Application. These standards will apply irrespective of whether a 
particular item of cost is treated as direct or indirect cost. Failure 
to mention a particular item of cost in the standards is not intended to 
imply that it is either allowable or unallowable, rather determination 
of allowability in each case should be based on the treatment of 
standards provided for similar or related items of cost. The 
allowability of the selected items of cost is subject to the general 
policies and principles stated in part I of this appendix.
    B. Allowable costs. 1. Accounting. The cost of establishing and 
maintaining accounting and other information systems required for the 
management of grant programs is allowable. This includes cost incurred 
by central service agencies for these purposes. The cost of maintaining 
central accounting records required for overall tribal government 
purposes, such as appropriation and fund accounts by the Treasurer, 
Comptroller, or similar officials, is considered to be a general expense 
of government and is not allowable.
    2. Advertising. Advertising media includes newspapers, magazines, 
radio and television programs, direct mail, trade papers, and the like. 
The advertising costs allowable are those which are solely for:
    a. Recruitment of personnel required for the grant program.
    b. Solicitation of bids for the procurement of goods and services 
required.
    c. Disposal of scrap or surplus materials acquired in the 
performance of the grant agreement.
    d. Other purposes specifically provided for in the grant agreement.
    3. Advisory councils. Costs incurred by grantee advisory councils or 
committees established pursuant to Bureau requirements to carry out 
grant programs are allowable. The cost of like organizations is 
allowable when provided for in the grant agreement.
    4. Audit service. The cost of audits necessary for the 
administration and management of functions related to grant programs is 
allowable.
    5. Bonding. Costs of premiums on bonds covering employees who handle 
grantee funds are allowable.
    6. Budgeting. Costs incurred for the development, preparation, 
presentation, and execution of budgets are allowable. Costs for services 
of a central budget office are generally not allowable since these are 
costs of general government. However, where employees of the central 
budget office activity

[[Page 801]]

participate in the grantee budget process, the cost of identifiable 
services is allowable.
    7. Building lease management. The administrative cost for lease 
management which includes review of lease proposals, maintenance of a 
list of available property for lease, and related activities is 
allowable.
    8. Central stores. The cost of maintaining and operating a central 
store's organization for supplies, equipment, and materials used either 
directly or indirectly for grant programs is allowable.
    9. Communications. Communication costs incurred for telephone calls 
or service, telegraph, teletype service, wide area telephone service 
(WATS), centrex, telpak (tie lines), postage, messenger service and 
similar expenses are allowable.
    10. Compensation for personal services. a. General. Compensation for 
personal services includes all remuneration, paid currently or accrued, 
for services rendered during the period of performance under the grant 
agreement, including but not necessarily limited to wages, salaries, and 
supplementary compensation and benefits. The costs of such compensation 
are allowable to the extent that total compensation for individual 
employees: (1) Is responsible for the services rendered, (2) follows an 
appointment made in accordance with tribal government ordinances and 
rules and which meets Federal merit system or other requirements, where 
applicable; and (3) is determined and supported as provided in b., 
below. Compensation for employees engaged in federally assisted 
actvities will be considered reasonable to the extent that it is 
consistent with that paid for similar work in other activities of the 
tribal government. In cases where the kinds of employees required for 
the federally assisted activities are not found in the other activities 
of the tribal government, compensation will be considered reasonable to 
the extent that it is comparable to that paid for similar work in the 
labor market in which the employing government competes for the kind of 
employees involved. Compensation surveys providing data representative 
of the labor market involved will be an acceptable basis for evaluating 
reasonableness.
    b. Payroll and distribution of time. Amounts charged to grant 
programs for personal services, regardless of whether treated as direct 
or indirect costs, will be based on payrolls documented and approved in 
accordance with generally accepted practice of the tribal government. 
Payrolls must be supported by time and attendance or equivalent records 
for individual employees. Salaries and wages of employees chargeable to 
more than one grant program or other cost objective will be supported by 
appropriate time distribution records. The method used should produce an 
equitable distribution of time and effort.
    11. Depreciation and use allowance. a. Grantees may be compensated 
for the use of their own buildings, capital improvements, and equipment 
through use allowances or depreciation. Use allowances are the means of 
providing compensation in lieu of depreciation or other equivalent 
costs. However, a combination of the two methods may not be used in 
connection with a single class of fixed assets.
    b. The computation of depreciation or use allowance will be based on 
acquisition cost. Where actual cost records have not been maintained, a 
reasonable estimate of the original acquisition cost may be used in the 
computation. The computation will exclude the cost or any portion of the 
cost of buildings and equipment donated or borne directly or indirectly 
by the Federal Government through charges to Federal grant programs or 
otherwise, irrespective of whether title was originally vested or where 
it presently resides. In addition, the computation will also exclude the 
cost of land. Depreciation or a use allowance on idle or excess 
facilities is not allowable, except when specifically authorized by the 
grantor Federal agency.
    c. Where the depreciation method is followed, adequate property 
records must be maintained, and any generally accepted method of 
computing depreciation must be consistently applied for any specific 
asset or class of assets for all affected Federally sponsored programs 
and must result in equitable charges considering the extent of the use 
of the assets for benefit of such programs.
    d. In lieu of depreciation, a use allowance for buildings and 
improvements may be computed at an annual rate not exceeding two percent 
of acquisition cost. The use allowance for equipment (excluding items 
properly capitalized as building cost) will be computed at an annual 
rate not exceeding six and two-thirds percent of acquisition cost of 
usable equipment.
    e. No depreciation or use charge may be allowed on any assets that 
would be considered as fully depreciated, provided, however, that 
reasonable use charges may be negotitated for any such assets if 
warranted after taking into consideration the cost of the facility or 
item involved, the estimated useful life remaining at time of 
negotiation, the effect of any increased maintenance charges or 
decreased efficiency due to age, and any other factors pertinent to 
utilization of the facility or item for the purpose contemplated.
    12. Disbursing service. The cost of disbursing grant program funds 
by the Treasurer or other designated officer is allowable. Disbursing 
services cover the processing of checks or warrants, from preparation to 
redemption, including the necessary records of accountability and 
reconciliation of such records with related cash accounts.

[[Page 802]]

    13. Employee fringe benefits. Costs identified under a. and b. below 
are allowable to the extent that total compensation for employees is 
reasonable as defined in section B.10.
    a. Employee benefits in the form of regular compensation paid to 
employees during periods of authorized absences from the job, such as 
for annual leave, sick leave, court leave, military leave, and the like, 
if they are: (1) Provided pursuant to an approved leave system, and (2) 
the cost thereof is equitably allocated to all related activities, 
including grant programs.
    b. Employee benefits in the form of employers' contribution or 
expenses for social security, employees' life and health insurance 
plans, unemployment insurance coverage, workmen's compensation 
insurance, pension plans, severance pay, and the like, provided such 
benefits are granted under approved plans and are distributed equitably 
to grant programs and in other activities.
    14. Employee morale, health and welfare costs. The costs of health 
or first-aid clinics and/or infirmaries, recreational facilities, 
employees' counseling services, employee information publications, and 
any related expenses incurred, are allowable. Income generated from any 
of these activities will be offset against expenses.
    15. Exhibits. Costs of exhibits relating specifically to the grant 
programs are allowable.
    16. Legal expenses. The cost of legal expenses required in the 
administration of grant programs is allowable. Legal services furnished 
by the chief legal officer of a tribal government or his staff solely 
for the purpose of discharging his general responsibilities as legal 
officer are unallowable. Legal expenses for the prosecution of claims 
against the Federal Government are unallowable.
    17. Maintenance and repair. Costs incurred for necessary 
maintenance, repair, or upkeep of property which neither add to the 
permanent value of the property nor appreciably prolong its intended 
life, but keep it in an efficient operating condition, are allowable.
    18. Materials and supplies. The cost of materials and supplies 
necessary to carry out the grant programs is allowable. Purchases made 
specifically for the grant program should be charged thereto at their 
actual prices after deducting all cash discounts, trade discounts, 
rebates, and allowances received by the grantee. Withdrawals from 
general stores or stockrooms should be charged at cost under any 
recognized method of pricing consistently applied. Incoming 
transportation charges are a proper part of material cost.
    19. Memberships, subscriptions and professional activities. a. 
Memberships. The cost of membership in civic, business, technical and 
professional organizations is allowable provided: (1) The benefit from 
the membership is related to the grant program, (2) the expenditure is 
for agency membership, (3) the cost of the membership is reasonably 
related to the value of the services or benefits received, and (4) the 
expenditure is not for membership in an organization which devotes a 
substantial part of its activities to influencing legislation.
    b. Reference material. The cost of books, and subscriptions to 
civic, business, professional, and technical periodicals is allowable 
when related to the grant program.
    c. Meetings and conferences. Costs are allowable when the purpose of 
the meeting is the dissemination of technical information relating to 
the grant program and they are consistent with regular practices 
followed for other activities of the grantee.
    20. Motor pools. The costs of a service organization which provides 
automobiles to grantees at a mileage or fixed rate and/or provides 
vehicle maintenance, inspection and repair services are allowable.
    21. Payroll preparation. The cost of preparing payrolls and 
maintaining necessary related wage records is allowable.
    22. Personnel administration. Costs for the recruitment, 
examination, certification, classification, training, establishment of 
pay standards, and related activities for grant programs, are allowable.
    23. Printing and reproduction. Cost for printing and reproduction 
services necessary for grant administration, including but not limited 
to forms, reports, manuals, and informational literature, are allowable. 
Publication costs of reports or other media relating to grant program 
accomplishments or results are allowable when provided for in the grant 
agreement.
    24. Procurement service. The cost of procurement service, including 
solicitation of bids, preparation and award of contracts, and all phases 
of contract administration in providing goods, facilities and services 
for grant programs, is allowable.
    25. Taxes. In general, taxes or payments in lieu of taxes which the 
grantee is legally required to pay are allowable.
    26. Training and education. The cost of in-service training, 
customarily provided for employee development which directly or 
indirectly benefits grant programs is allowable. Out-of-service training 
involving extended periods of time is allowable only when specifically 
authorized by the Bureau.
    27. Transportation. Costs incurred for freight, cartage, express, 
postage and other transportation costs relating either to goods 
purchased, delivered, or moved from one location to another are 
allowable.
    28. Travel. Travel costs are allowable for expenses for 
transportation, lodging, subsistence, and related items incurred by 
employees who are in travel status on official business incident to a 
grant program. Such costs may be charged on an actual basis, on a per 
diem or mileage basis in lieu of actual costs

[[Page 803]]

incurred, or on a combination of the two, provided the method used is 
applied to an entire trip, and results in charges consistent with those 
normally allowed in like circumstances in non-Federally sponsored 
activities. The difference in cost between first-class air 
accommodations and less-than-first-class air accommodations is 
unallowable except when less-than-first-class air accommodations are not 
reasonably available.
    C. Costs allowable with approval of the Bureau. 1. Automatic data 
processing. The cost of data processing services to grant programs is 
allowable. This cost may include rental of equipment or depreciation on 
grantee-owned equipment. The acquisition of equipment, whether by 
outright purchase, rental-purchase agreement or other method of 
purchase, is allowable only upon specific prior approval of the Bureau 
as provided under the selected item for capital expenditures. The Bureau 
must obtain required Departmental clearances before such approval can be 
given.
    2. Building space and related facilities. The cost of space in 
privately or publicly owned buildings used for the benefit of the grant 
program is allowable subject to the conditions stated below. The total 
cost of space, whether in a privately or publicly owned building, may 
not exceed the rental cost of comparable space and facilities in a 
privately owned building in the same locality. The cost of space 
procured for grant program usage may not be charged to the program for 
periods of nonoccupancy, without authorization of the Bureau.
    a. Rental cost. The rental cost of space in a privately owned 
building is allowable.
    b. Maintenance and operation. The cost of utilities, insurance, 
security, janitorial services, elevator service, upkeep of grounds, 
normal repairs and alterations and the like, are allowable to the extent 
they are not otherwise included in rental or other charges for space.
    c. Rearrangements and alterations. Cost incurred for rearrangement 
and alteration of facilities required specifically for the grant program 
or those that materially increase the value or useful life of the 
facilities (section C.3.) are allowable when specifically approved by 
the Bureau.
    d. Depreciation and use allowances on publicly owned buildings. 
These costs are allowable as provided in section B.11.
    e. Occupancy of space under rental-purchase or a lease with option-
to-purchase agreement. The cost of space procured under such 
arrangements is allowable when specifically approved by the Bureau.
    3. Capital expenditures. The cost of facilities, equipment, other 
capital assets, and repairs which materially increase the value or 
useful life of capital assets is allowable when such procurement is 
specifically approved by the Bureau. When assets acquired with Bureau 
grant funds are (a) sold, (b) no longer available for use in a Federally 
sponsored program or (c) used for purposes not authorized by the Bureau, 
the Bureau's equity in the asset will be refunded in the same proportion 
as Bureau participation in its cost. In case any assets are traded on 
new items, only the net cost of the newly acquired assets is allowable.
    4. Insurance and indemnification. a. Costs of insurance required, or 
approved and maintained pursuant to the grant agreement, is allowable.
    b. Costs of other insurance in connection with the general conduct 
of activities is allowable subject to the following limitations:
    (1) Types and extent and cost of coverage will be in accordance with 
sound business practice.
    (2) Costs of insurance or of contributions to any reserve covering 
the risk of loss of, or damage to, Federal Government property is 
unallowable except to the extent that the Bureau has specifically 
required or approved such costs.
    c. Contributions to a reserve for a self-insurance program approved 
by the Bureau are allowable to the extent that the type of coverage, 
extent of coverage, and the rates and premiums would have been allowed 
had insurance been purchased to cover the risks.
    d. Actual losses which could have been covered by permissible 
insurance (through an approved self-insurance program or otherwise) are 
unallowable unless expressly provided for in the grant agreement. 
However, costs incurred because of losses not covered under nominal 
deductible insurance coverage provided in keeping with sound management 
practice, and minor losses not covered by insurance, such as spoilage, 
breakage and disappearance of small hand tools which occur in the 
ordinary course of operations, are available.
    e. Indemnification includes securing the grantee against liabilities 
to third persons and other losses not compensated by insurance or 
otherwise. The Bureau is obligated to indemnify the grantee only to the 
extent expressly provided for in the grant agreement, except as provided 
in d. above.
    5. Management studies. The cost of management studies to improve the 
effectiveness and efficiency of grant management for ongoing programs is 
allowable except that the cost of studies performed by agencies other 
than the grantee or outside consultants is allowable only when 
authorized by the Bureau.
    6. Preagreement costs. Costs incurred prior to the effective date of 
the grant, whether or not they would have been allowable thereunder if 
incurred after such date, are allowable when specifically provided for 
in the grant agreement.
    7. Professional services. Cost of professional services rendered by 
individuals or organizations not a part of the grantee is allowable

[[Page 804]]

subject to such prior authorization as may be required by the Bureau.
    8. Proposal costs. Costs of preparing proposals on potential Federal 
Government grant agreements are allowable when specifically provided for 
in the grant agreement.
    9. Tribal government officer salaries and expenses. Identifiable 
salary and expense costs incurred as a direct result of a tribal 
government officer's service to a grant program provided under this 
chapter are allowable subject to advance agreement with an approval by 
the Bureau. A general limitation in this regard is prescribed in section 
D.6.
    D. Unallowable costs. 1. Bad debts. Any losses arising from 
uncollectible accounts and other claims, and related costs, are 
unallowable.
    2. Contingencies. Contributions to a contingency reserve or any 
similar provision for unforeseen events are unallowable.
    3. Contributions and donations. Unallowable.
    4. Entertainments. Costs of amusements, social activities, and 
incidental costs relating thereto, such as meals, beverages, lodgings, 
rentals, transportation, and gratuities, are unallowable.
    5. Fines and penalties. Costs resulting from violations of, or 
failure to comply with Federal, State and local laws and regulations are 
unallowable.
    6. Tribal officer salaries and expenses. The salaries and expenses 
of tribal government officers are considered a cost of general tribal 
government and are unallowable except as prescribed in section C.9.
    7. Interest and other financial costs. Interest on borrowing 
(however requested), bond discounts, cost of financing and refinancing 
operations, and legal and professional fees paid in connection 
therewith, are unallowable except when authorized by Federal 
legislation.
    8. Underrecovery of costs under grant agreements. Any excess of cost 
over the Federal contribution under one grant agreement is unallowable 
under other grant agreements.

        Appendix B to Part 276--Financial Reporting Requirements

    A. Purpose and scope. This appendix prescribes requirements for 
grantee to report financial information to the Bureau and to request 
advances and reimbursement when a letter-of-credit method is not used.
    B. Definitions. 1. Accrued expenditures. Accrued expenditures are 
the charges incurred by the grantee during a given period requiring the 
provision of funds for: (1) Goods and other tangible property received; 
(2) services performed by employes, contractors, subgrantees, and other 
payees; and (3) amounts becoming owed under programs for which no 
current services or performed are required.
    2. Accrued income. Accrued income is the earnings during a given 
period which is a source of funds resulting from: (1) Services performed 
by the grantee; (2) goods and other tangible property delivered to 
purchasers; and (3) amounts becoming owed to the grantee for which no 
current services or performance are required by the grantee.
    3. Disbursements. Disbursements are payments in cash or by check.
    4. Bureau funds authorized. Funds authorized represent the total 
amount of the Bureau funds authorized for obligations and establish the 
ceilings for obligation of Bureau funds. This amount may include any 
authorized carryover of unobligated funds from prior fiscal years.
    5. Obligations. Obligations are the amounts of orders placed, 
contracts and grants awarded, services received, and similar 
transactions during a given period, which will require payment during 
the same or a future period.
    6. Outlays. Outlays represent charges made to the grant project or 
program. Outlays can be reported on a cash or accrued expenditure basis.
    7. Program income. Program income represents earnings by the grantee 
realized from the grant-supported activities. Such earnings exclude 
interest income and may include, but will not be limited to, income from 
service fees, sale of commodities, usage or rental fees, sale of assets 
purchased with grant funds, and royalties on patents and copy-rights. 
Program income can be reported on a cash or accrued income basis.
    8. Unobligated balance. The unobligated balance is the portion of 
the funds authorized by the Bureau which has not been obligated by the 
grantee and is determined by deducting the cumulative obligations from 
the funds authorized.
    9. Unpaid obligations. Unpaid obligations represent the amout of 
obligations incurred by the grantee which have not been paid.
    C. Standard forms. 1. Only the following forms will be authorized 
for obtaining financial information from grantees for grant programs:
    a. Financial Status Report. (1) The Bureau shall require grantees to 
use a standard Financial Status Report to report the status of funds for 
all nonconstruction grant programs. The Bureau may, however, have the 
option of not requiring a Federal Status Report when a request for 
advance or reimbursement (paragraph 2a) is determined to provide 
adequate information to meet their needs, except that a final Financial 
Status Report shall be required at the completion of the grant when the 
Request for Advance or Reimbursement form is used only for advances.
    (2) The Bureau shall prescribe whether the report shall be on a cash 
or accrual basis. If the Bureau requires accrual information and the 
grantee's accouting records are not normally kept on the accrual basis, 
the grantee should develop such information through an

[[Page 805]]

analysis of the documentation on hand or on the basis of best estimates.
    (3) The grant agreement shall determine the frequency of the 
Financial Status Report for each grant program considering the size and 
complexity of the particular program. However, the report shall not be 
required more frequently than quarterly or less frequently than 
annually. Also, a final report shall be required at the completion of 
the grant.
    (4) The original and two copies of the Financial Status Report shall 
be submitted 30 days after the end of each specified reporting period. 
In addition, final reports shall be submitted 90 days after the end of 
the grant period or the completion of the project or program. Extensions 
to reporting due dates may be approved when requested by the grantee.
    b. Report of federal cash transactions. (1) When funds are advanced 
to grantees through letters of credit or with Treasury checks, each 
grantee shall submit a report of Federal Cash Transactions. The Bureau 
shall use this report to monitor cash advanced to grantees and to obtain 
disbursement or outlay information for each grant or project from the 
grantees.
    (2) The grant agreement may require forecasts of Federal cash 
requirement in the Remarks section of the report.
    (3) When practical and deemed necessary, the Bureau may require 
grantees to report in the Remarks section the amount of cash in excess 
of three days' requirements in the hands of subgrantees or other 
secondary recipients and to provide short narrative explanations of 
actions taken by the grantees to reduce the excess balances.
    (4) The Bureau shall accept the identical information from the 
grantees in a machine-usable format in lieu of the Report of Federal 
Cash Transactions.
    (5) Grantees shall submit the original and two copies of the Report 
of Federal Cash Transactions no later than 15 working days following the 
end of each quarter. For those grantees receiving annual grants 
totalling one million dollars or more, the Bureau shall require a 
monthly report.
    (6) The Bureau shall waive the requirement for submission of a 
Report of Federal Cash Transactions when monthly advances do not exceed 
$10,000 per grantee provided that such advances are monitored through 
other forms contained in this appendix or the grantee's accounting 
controls are adequate to minimize excessive Federal advances.
    2. Except as noted below, only the following forms will be 
authorized for the grantees in requesting advances and reimbursements.
    a. Request for advance or reimbursement. (1) The ``Request for 
Advance or Reimbursement'' form is the standard form for all 
nonconstruction grant programs when letters of credit or predetermined 
automatic advance methods are not used. The Bureau, however, has the 
option of using this form for construction programs in lieu of an 
``Outlay Report and Request for Reimbursement for Construction 
Programs'' (paragraph 2b) and shall specify in the grant agreement.
    (2) Grantees shall be authorized to submit requests for advances or 
reimbursement at least monthly when letters of credit are not used. 
Grantees shall submit the original and two copies of a Request for 
Advance or Reimbursement.
    b. Outlay Report and Request for Reimbursement for Construction 
Program. (1) The ``Outlay Report and Request for Reimbursement for 
Construction Programs'' form is the standard format to be used for 
requesting reimbursement for construction programs. The Bureau may, 
however, have the option of substituting a ``Request for Advance or 
Reimbursement'' form (paragraph 2a) in lieu of this form when the Bureau 
determines that the former provides adequate information to meet its 
needs as stated in the grant agreement.
    (2) Grantees shall be authorized to submit requests for 
reimbursement at least monthly when letters of credit are not used. 
Grantees shall submit the original and two copies of an ``Outlay Report 
and Request for Reimbursement for Construction Programs'' form.
    3. When the Bureau needs additional information in using these 
forms, the following shall be observed:
    a. When necessary to comply with future legislative requirements, 
the Bureau shall issue instructions to require grantees to submit such 
information under the Remarks section of the reports.
    b. When necessary to meet specific program needs, the Bureau shall 
submit the proposed reporting requirements to the General Services 
Administration for approval under the exception provision of this 
appendix.
    c. The Bureau, in obtaining information as in paragraphs a and b 
above, must also comply with report clearance requirements of the Office 
of Management and Budget Circular No. A-40, as revised.

[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5099, Feb. 4, 1976; 43 
FR 37447, Aug. 23, 1978]

[[Page 806]]



                    SUBCHAPTER N_ECONOMIC ENTERPRISES





PART 286_INDIAN BUSINESS DEVELOPMENT PROGRAM--Table of Contents




Sec.
286.1 Definitions.
286.2 Purpose.
286.3 Eligible applicants.
286.4 Eligible economic enterprises.
286.5 Information collection.
286.6 [Reserved]
286.7 Location of enterprise.
286.8 Priority criteria.
286.9 Environmental and flood disaster protection.
286.10 Preservation of historical and archeological data.
286.11 Management and technical assistance.
286.12 Content of application.
286.13-286.14 [Reserved]
286.15 Application procedures.
286.16 Grant approval authority.
286.17 Grant limitations and requirements.
286.18 Written notice.
286.19 [Reserved]
286.20 Disbursement of grant funds.
286.21 Return of unused funds.
286.22 Reports.

    Authority: 25 U.S.C. 1524.

    Source: 39 FR 44748, Dec. 27, 1974, unless otherwise noted. 
Redesignated at 47 FR 13328, Mar. 30, 1982.



Sec. 286.1  Definitions.

    As used in this part 286:
    Area Director means the Bureau of Indian Affairs official in charge 
of an area office or his authorized representative.
    Assistant Secretary means the Assistant Secretary--Indian Affairs of 
the United States Department of the Interior or the official in the 
Bureau of Indian Affairs to whom the Assistant Secretary has delegated 
authority to act on behalf of the Assistant Secretary.
    Cooperative Association means an association of individuals 
organized pursuant to state, Federal, or tribal law, for the purpose of 
owning and operating an economic enterprise for profit with profits 
distributed or allocated to patrons who are members of the organization.
    Corporation means an entity organized pursuant to state, Federal, or 
tribal law, with or without stock, for the purpose of owning and 
operating an economic enterprise.
    Economic enterprise means any Indian-owned, commercial, industrial, 
agricultural, or business activity established or organized for the 
purpose of profit, provided that eligible Indian ownership constitutes 
not less than 51 per centum of the enterprise.
    Grantee(s) means the recipient(s) of a nonreimburseable grant under 
this part.
    Indian means a person who is a member of an Indian tribe or a person 
of Alaska Native descent who is a shareholder in a corporation organized 
under the Alaska Native Claims Settlement Act (85 Stat. 688), as 
amended.
    Partnership means a form of business organization in which two or 
more legal persons are associated as co-owners for the purposes of 
business or professional activities for private pecuniary gain.
    Profits means the net income earned after deducting operating 
expenses from operating revenues.
    Reservation means Indian reservation, California rancheria, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held by Alaska Native groups incorporated under the provisions of the 
Alaska Native Claims Settlement Act (85 Stat. 688), as amended.
    Secretary means the Secretary of the Interior.
    Superintendent means the Bureau official in charge of a Bureau 
agency office or other local office reporting to an Area Director.
    Tribe means any Indian tribe, band, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or any 
regional, village, urban or group corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688) as amended, which is recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs.

[55 FR 36273, Sept. 5, 1990]

[[Page 807]]



Sec. 286.2  Purpose.

    The purpose of this part 286 is to prescribe the regulations and 
procedures under which non-reimbursable grants may be made to eligible 
applicants to stimulate and increase Indian entrepreneurship and 
employment through establishment, acquisition or expansion of profit-
making Indian-owned economic enterprises which will contribute to the 
economy of a reservation.



Sec. 286.3  Eligible applicants.

    Applications for grants may be accepted only from individual 
Indians, Indian tribes, Indian partnerships, corporations or cooperative 
associations authorized to do business under State, Federal, or Tribal 
law. These applicants must have a form of organization acceptable to the 
Assistant Secretary and unable to meet their total financing needs from 
their own resources and by loans from other sources such as banks, 
Farmers Home Administration, Small Business Administration, Production 
Credit Associations, and Federal Land Banks. Associations, corporations 
or partnerships shall be at least fifty-one percent owned by eligible 
Indians or an eligible Indian tribe. This Indian ownership must actively 
participate in the management and operation of the economic enterprise 
by representation on the board of directors of a corporation or 
cooperative association proportionate to the Indian ownership which will 
enable the Indian owner(s) to control management decisions. The legal 
organization documents will provide for the number of Indians which are 
to be on the board of directors, how they along with other directors 
will be elected or appointed and qualifications required as a condition 
for becoming a member of the board of directors. The legal organization 
documents shall provide safeguards which will prevent Indian ownership 
and control from decreasing below fifty-one percent. Evidence of Indian 
ownership in a cooperative association or corporation will be evidenced 
by stock ownership, if stock is or has been issued, or by other evidence 
satisfactory to the Assistant Secretary. Partnerships will be evidenced 
by written partnership agreements which show the percentage of Indian 
ownership, role and authority in making management decisions in 
controlling the operation of the economic enterprise.



Sec. 286.4  Eligible economic enterprises.

    An economic enterprise as defined in Sec. 286.1(k) is eligible to 
receive equity capital through non-reimbursable grants if it is or will 
be self-sustaining and profit-oriented and will create employment for 
Indians. In the case of Indian-owned cooperative associations, they must 
distribute or allocate profits for later distribution, to members who 
are patrons, unless prohibited from doing so by law.



Sec. 286.5  Information collection.

    (a) The collections of information contained in Sec. Sec. 286.12 
and 286.22 have been approved by the Office of Management and Budget 
under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0093. 
The information will be used to rate applicants in accordance with the 
priority criteria listed at 25 CFR 286.8. Response to this request is 
required to obtain a benefit in accordance with 25 U.S.C. 1521.
    (b) Public reporting for this information is estimated to average 45 
minutes per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding this burden estimate or any other aspect of this 
collection of information, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer, Bureau of 
Indian Affairs, Mailstop 337-SIB, 18th and C Streets, NW., Washington, 
DC 20240; and the Office of Management and Budget, Paperwork Reduction 
Project (1076-0093), Washington, DC 20503.

[55 FR 36273, Sept. 5, 1990]



Sec. 286.6  [Reserved]



Sec. 286.7  Location of enterprise.

    To be eligible for a grant an economic enterprise must be located on 
an Indian reservation or located where it makes or will make an economic 
contribution to a nearby reservation by

[[Page 808]]

providing employment to tribal members residing thereon or by expending 
a portion of its income for materials or services on the reservation. 
Economic enterprises which are or will be operated on a reservation must 
comply with the requirements of applicable rules, resolutions or 
ordinances adopted by the governing body of the tribe, if applicable.



Sec. 286.8  Priority criteria.

    The following priority will be used in selecting economic 
enterprises for grant funding:
    (a) First priority. First priority will be given to economic 
enterprises located on a reservation that will:
    (1) Utilize Indian resources, both natural and human.
    (2) Create the highest ratio of Indian jobs to the total amount of 
dollars to be invested, including market value of materials and 
equipment contributed to the project.
    (3) Create the highest ratio of income to a tribe or its members in 
relation to the total amount of dollars to be invested, including market 
value of materials or equipment contributed to the project.
    (4) Generate the most non-Bureau financing.
    (b) Second priority. Second priority will be given to projects 
located in the immediate vicinity of a reservation that will:
    (1) Utilize Indian resources, both natural and human.
    (2) Create the highest ratio of Indian jobs to the total amount of 
dollars to be invested, including market value of materials and 
equipment contributed to the project.
    (3) Generate the most non-Bureau financing.



Sec. 286.9  Environmental and flood disaster protection.

    Grant funds will not be advanced until there is assurance of 
compliance with any applicable provisions of the Flood Disaster 
Protection Act of 1973 (Pub. L. 93-234), the National Environmental 
Policy Act (Pub. L. 91-190), 42 U.S.C. 4321 and Executive Order 11514.



Sec. 286.10  Preservation of historical and archeological data.

    The Assistant Secretary before approving a grant where the grant 
funds and/or the loan funds will be used to finance activities involving 
excavations, road construction, and land development or involving the 
disturbance of land on known or reported historical or archeological 
sites, will take appropriate action to assure compliance with applicable 
provisions of the Act of June 27, 1960 (74 Stat. 220 (16 U.S.C. 469)), 
as amended by the Act of May 24, 1974 (Pub. L. 93-291, 88 Stat. 174), 
relating to the preservation of historical and archeological data.



Sec. 286.11  Management and technical assistance.

    (a) Prior to and concurrent with the making of a grant to finance an 
Indian economic enterprise, the Assistant Secretary--Indian Affairs will 
insure that competent management and technical assistance is available 
to the grantee in the preparation of the application for a grant and/or 
administration of the funds granted, consistent with the grantee's 
knowledge and experience and the nature and complexity of the economic 
enterprise being financed. The competence of the management and 
technical assistance provided will be determined by the local agency 
superintendent after consultation with the applicant concerning his 
business needs.
    (b) The lender providing the loan funds under Sec. 286.17(b) to 
finance an economic enterprise will include with the grantee's 
application the need for equity capital, the lender's evaluation of the 
applicant's need for management and technical assistance, specific areas 
of need and whether the lender will provide such assistance to the 
applicant.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982, 
as amended at 55 FR 36274, Sept. 5, 1990]



Sec. 286.12  Content of application.

    Applications shall be on a form prescribed by the Assistant 
Secretary which shall at the minimum include:
    (a) Total capital requirement, including operating capital required 
until such time as the cash generated from

[[Page 809]]

operations will be sufficient to make the enterprise self-sustaining.
    (b) Amount of total financing required as well as what is obtainable 
from other sources, including the applicant's personal resources, and a 
statement of terms and conditions under which any borrowed portion is 
obtainable.
    (c) Capital deficiency, which will be the basis for the amount of 
grant requested.
    (d) Pro forma balance sheets and operating statements showing 
estimated expenses, income and net profit from operations for three 
years following receipt of the requested grant.
    (e) Annual operating statements and balance sheets, audited if 
available, for the prior two years or applicable years for enterprises 
already in operation.
    (f) Current financial statements, consisting of a balance sheet and 
operating statement.
    (g) A plan of operation which shall be acceptable to the lender 
making the loan and the Assistant Secretary.



Sec. Sec. 286.13-286.14  [Reserved]



Sec. 286.15  Application procedures.

    Applications are to be submitted to the Superintendent having 
administrative jurisdiction over the reservation on which an enterprise 
will be or is located. If the enterprise site is near two or more 
reservations, application is to be made to the Superintendent having 
administrative jurisdiction over the reservation nearest to the location 
of the enterprise which the enterprise will benefit economically.



Sec. 286.16  Grant approval authority.

    Applications for grants require approval by the Assistant Secretary.



Sec. 286.17  Grant limitations and requirements.

    (a) Grants will be made to assist in establishing new economic 
enterprises, or in purchasing or expanding established ones. However, a 
grant may be made only when in the opinion of the Assistant Secretary 
the applicant is unable to obtain adequate financing from other sources. 
Prior to making any grant, the Assistant Secretary shall assure that, to 
the extent practical, the applicant's own resources have been invested 
in the proposed project. The applicant shall not be required to invest 
own resources to the extent that they are already committed to endeavors 
deemed by the Assistant Secretary to be essential to the welfare of the 
applicant. If the information in an application, which must include 
personal financial statements, indicates that it may be possible for the 
applicant to obtain financing without a grant, the Assistant Secretary 
will require the applicant to furnish letters from two customary lenders 
in the area, if available, who are making loans for similar purpose, 
showing whether or not they will make a loan to the applicant for the 
total financing needed without a grant.
    (b) A grant may be made only to an applicant who is able to obtain 
at least 75 percent of the necessary financing from other sources.
    (c) No grant in excess of $250,000 may be made to an Indian tribe or 
in excess of $100,000 to an Indian individual, partnership, corporation, 
or cooperative association.
    (d) Revolving loan funds as prescribed in title I of the Indian 
Financing Act of 1974 and guaranteed or insured loans as prescribed in 
title II of said Act may not be used as the sources of the loan portion 
of the total financing requirement if financing from other governmental 
or institutional lenders is available on reasonable terms and 
conditions. If a loan is not available from other sources, guaranteed or 
insured loans under the provisions of title II of said Act may then be 
considered. If a guaranteed or insured loan is not available loans under 
the provisions of title I of said Act may then be considered. Applicants 
for a loan from either source must meet the eligibility requirements for 
such loans.
    (e) A grant will not be approved unless there is assurance the 
applicant can and will be provided with needed competent technical and 
management assistance commensurate with the nature of the enterprise to 
be funded and the knowledge and management skills of the applicant.
    (f) Grant funds may not be used for refinancing or debt 
consolidation unless approval is justified and required

[[Page 810]]

due to the applicant's financial position and is clearly to the 
advantage of the grant applicant.
    (g) Ordinarily, not more than one grant will be made for a project. 
Nevertheless, in certain circumstances a second grant may be made to 
applicants for a new project or expansion of the original project. An 
additional grant will not be approved for an economic enterprise 
previously funded under the provisions of title IV of the Indian 
Financing Act of 1974 except for expanding a successful enterprise, 
provided the total of grants made shall not exceed $250,000 to an Indian 
tribe and $100,000 to an Indian individual, partnership, corporation, or 
cooperative association.
    (h) An application for a second grant will not be approved if the 
applicant:
    (1) Has not complied with the reporting requirements in connection 
with the first grant, or
    (2) Has not followed the plan of operation, if any, developed for 
the management and operation of the economic enterprise, or
    (3) Did not follow and use the management and technical assistance 
furnished, or
    (4) Is in violation of one or more provisions of the loan agreement 
entered into between the applicant and the lender who furnished the loan 
portion of the financing in connection with the first grant.
    (i) An applicant for an expansion grant must meet the same 
eligibility requirements as an original applicant.
    (j) A grantee will be required to return all or a portion of the 
grant if the business or enterprise for which the grant was utilized is 
sold within three years of the date on which the grant was disbursed to 
the grantee, unless the proceeds from the sale are re-invested in a new 
business or business expansion which will benefit the Indian reservation 
economy. Such sale and re-investment must have the prior approval of the 
local agency superintendent. The grantee shall refund the lessor of the 
grant amount or a pro rata portion of sales proceeds. The pro rata 
portion of sales proceeds shall be based on the ratio of grant amount to 
its corresponding matching financing. The new business or business 
expansion utilizing such sale proceeds must meet the same criteria for 
eligibility as an original grant.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982, 
as amended at 55 FR 36274, Sept. 5, 1990; 56 FR 12436, Mar. 25, 1991]



Sec. 286.18  Written notice.

    The applicant for a grant which is disapproved will be notified by 
letter, stating the reasons for disapproval and the right of appeal 
pursuant to 25 CFR 2. A copy of the letter will be sent to the 
prospective lender.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 286.19  [Reserved]



Sec. 286.20  Disbursement of grant funds.

    Unless otherwise provided by an agreement between a lender and the 
grantee, the Assistant Secretary may in his discretion advance grant 
funds directly to a grantee. He may require the funds to be deposited in 
a special account at the appropriate Agency headquarters office or 
deposited in a joint account in a bank and disbursed as needed by the 
grantee. The terms of a lender's loan agreement may require the lender's 
approval before disbursement of the funds. Grant funds will not be 
disbursed to a grantee until the Assistant Secretary has been informed 
by the lender that a loan has been approved for the grantee in the 
amount of the loan financing needed.



Sec. 286.21  Return of unused funds.

    Grantees will be required to return unused grant funds to the 
Assistant Secretary if the economic enterprise for which the grant was 
approved is not initiated, i.e., lease obtained, if needed, construction 
started, equipment purchased or other, within the time stated in the 
grant agreement. The Assistant Secretary may, if warranted by 
circumstances beyond the control of the grantee, extend the time to 
allow for initiation of the enterprise, provided there is assurance the 
enterprise will be initiated forthwith within the extended time period. 
The Assistant Secretary will notify the lender in writing

[[Page 811]]

of a proposed action to require the return of grant funds or of a 
proposal to extend the time.



Sec. 286.22  Reports.

    (a) Grantees are required to furnish the Assistant Secretary 
comparative balance sheets and profit and loss statements semi-annually 
for the first two years of operation following receipt of the grant, and 
annually thereafter for the succeeding three years. These may be copied 
of financial statements required by and furnished to the lender which 
provided the loan portion of the total financing required. If the lender 
does not require financial statements, the grantee must prepare and 
furnish copies of comparative balance sheets and profit and loss 
statements to the Assistant Secretary.
    (b) The Assistant Secretary will establish accounting and reporting 
systems which will appropriately show the status of the Indian Business 
Development Program at all times.



PART 290_TRIBAL REVENUE ALLOCATION PLANS--Table of Contents




Sec.
290.1 Purpose.
290.2 Definitions.
290.3 Information collection.
290.4 What is a tribal revenue allocation plan?
290.5 Who approves tribal revenue allocation plans?
290.6 Who must submit a tribal revenue allocation plan?
290.7 Must an Indian tribe have a tribal revenue allocation plan if it 
          is not making per capita payments?
290.8 Do Indian tribes have to make per capita payments from net gaming 
          revenues to tribal members?
290.9 How may an Indian tribe use net gaming revenues if it does not 
          have an approved tribal revenue allocation plan?
290.10 Is an Indian tribe in violation of IGRA if it makes per capita 
          payments to its members from net gaming revenues without an 
          approved tribal revenue allocation plan?
290.11 May an Indian tribe distribute per capita payments from net 
          gaming revenues derived from either Class II or Class III 
          gaming without a tribal revenue allocation plan?
290.12 What information must the tribal revenue allocation plan contain?
290.13 Under what conditions may an Indian tribe distribute per capita 
          payments?
290.14 Who can share in a per capita payment?
290.15 Must the Indian tribe establish trust accounts with financial 
          institutions for minors and legal incompetents?
290.16 Can the per capita payments of minors and legal incompetents be 
          deposited into accounts held by BIA or OTFM?
290.17 What documents must the Indian tribe include with the tribal 
          revenue allocation plan?
290.18 Where should the Indian tribe submit the tribal revenue 
          allocation plan?
290.19 How long will the ABO take to review and approve the tribal 
          revenue allocation plan?
290.20 When will the ABO disapprove a tribal revenue allocation plan?
290.21 May an Indian tribe appeal the ABO's decision?
290.22 How does the Indian tribe and its members ensure compliance with 
          its tribal revenue allocation plan?
290.23 How does the Indian tribe resolve disputes arising from per 
          capita payments to individual members or identified groups of 
          members?
290.24 Do revisions/amendments to a tribal revenue allocation plan 
          require approval?
290.25 What is the liability of the United States under this part?
290.26 Are previously approved tribal revenue allocation plans, 
          revisions or amendments subject to review in accordance with 
          25 CFR part 290?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, and 2710.

    Source: 65 FR 14467, Mar. 17, 2000, unless otherwise noted.



Sec. 290.1  Purpose.

    This part contains procedures for submitting, reviewing, and 
approving tribal revenue allocation plans for distributing net gaming 
revenues from tribal gaming activities. It applies to review of tribal 
revenue allocation plans adopted under IGRA.



Sec. 290.2  Definitions.

    Appropriate Bureau official (ABO) means the Bureau official with 
delegated authority to approve tribal revenue allocation plans.
    IGRA means the Indian Gaming Regulatory Act of 1988 (Public Law 100-
497) 102 Stat. 2467 dated October 17, 1988, (Codified at 25 U.S.C. 2701-
2721(1988)) and any amendments.

[[Page 812]]

    Indian Tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians that the Secretary recognizes 
as:
    (1) Eligible for the speci al programs and services provided by the 
United States to Indians because of their status as Indians; and
    (2) Having powers of self-government.
    Legal incompetent means an individual who is eligible to participate 
in a per capita payment and who has been declared to be under a legal 
disability, other than being a minor, by a court of competent 
jurisdiction, including tribal justice systems or as established by the 
tribe.
    Member of an Indian tribe means an individual who meets the 
requirements established by applicable tribal law for enrollment in the 
tribe and--
    (1) Is listed on the tribal rolls of that tribe if such rolls are 
kept or
    (2) Is recognized as a member by the tribal governing body if tribal 
rolls are not kept.
    Minor means an individual who is eligible to participate in a per 
capita payment and who has not reached the age of 18 years.
    Per capita payment means the distribution of money or other thing of 
value to all members of the tribe, or to identified groups of members, 
which is paid directly from the net revenues of any tribal gaming 
activity. This definition does not apply to payments which have been set 
aside by the tribe for special purposes or programs, such as payments 
made for social welfare, medical assistance, education, housing or other 
similar, specifically identified needs.
    Resolution means the formal document in which the tribal governing 
body expresses its legislative will in accordance with applicable tribal 
law.
    Secretary means the Secretary of the Interior or his/her authorized 
representative.
    Superintendent means the official or other designated representative 
of the BIA in charge of the field office which has immediate 
administrative responsibility for the affairs of the tribe for which a 
tribal revenue allocation plan is prepared.
    Tribal governing body means the governing body of an Indian tribe 
recognized by the Secretary.
    Tribal revenue allocation plan or allocation plan means the document 
submitted by an Indian tribe that provides for distributing net gaming 
revenues.
    You or your means the Indian tribe.



Sec. 290.3  Information collection.

    The information collection requirements contained in Sec. Sec. 
290.12, 290.17, 290.24 and 290.26 have been approved by the OMB under 
the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned 
clearance number 1076-0152.



Sec. 290.4  What is a tribal revenue allocation plan?

    It is the document you must submit that describes how you will 
allocate net gaming revenues.



Sec. 290.5  Who approves tribal revenue allocation plans?

    The ABO will review and approve tribal revenue allocation plans for 
compliance with IGRA.



Sec. 290.6  Who must submit a tribal revenue allocation plan?

    Any Indian tribe that intends to make a per capita payment from net 
gaming revenues must submit one.



Sec. 290.7  Must an Indian tribe have a tribal revenue allocation plan 
if it is not making per capita payments?

    No, if you do not make per capita payments, you do not need to 
submit a tribal revenue allocation plan.



Sec. 290.8  Do Indian tribes have to make per capita payments from 
net gaming revenues to tribal members?

    No. You do not have to make per capita payments.



Sec. 290.9  How may an Indian tribe use net gaming revenues if it does 
not have an approved tribal revenue allocation plan?

    Without an approved tribal revenue allocation plan, you may use net 
gaming revenues to fund tribal government operations or programs; to 
provide for the general welfare of your tribe and its members; to 
promote tribal economic development; to donate to charitable 
organizations; or to help fund operations of local government agencies.

[[Page 813]]



Sec. 290.10  Is an Indian tribe in violation of IGRA if it makes per 
capita payments to its members from net gaming revenues without an 
approved tribal revenue allocation plan?

    Yes, you are in violation of IGRA if you make per capita payments to 
your tribal members from net gaming revenues without an approved tribal 
revenue allocation plan. If you refuse to comply, the DOJ or NIGC may 
enforce the per capita requirements of IGRA.



Sec. 290.11  May an Indian tribe distribute per capita payments from 
net gaming revenues derived from either Class II or Class III gaming 
without a tribal revenue allocation plan?

    No, IGRA requires that you have an approved tribal revenue 
allocation plan.



Sec. 290.12  What information must the tribal revenue allocation plan 
contain?

    (a) You must prepare a tribal revenue allocation plan that includes 
a percentage breakdown of the uses for which you will allocate net 
gaming revenues. The percentage breakdown must total 100 percent.
    (b) The tribal revenue allocation plan must meet the following 
criteria:
    (1) It must reserve an adequate portion of net gaming revenues from 
the tribal gaming activity for one or more of the following purposes:
    (i) To fund tribal government operations or programs;
    (ii) To provide for the general welfare of the tribe or its members;
    (iii) To promote tribal economic development;
    (iv) To donate to charitable organizations; or
    (v) To help fund operations of local government.
    (2) It must contain detailed information to allow the ABO to 
determine that it complies with this section and IGRA particularly 
regarding funding for tribal governmental operations or programs and for 
promoting tribal economic development.
    (3) It must protect and preserve the interests of minors and other 
legally incompetent persons who are entitled to receive per capita 
payments by:
    (i) Ensuring that tribes make per capita payments for eligible 
minors or incompetents to the parents or legal guardians of these minors 
or incompetents at times and in such amounts as necessary for the 
health, education, or welfare of the minor or incompetent;
    (ii) Establishing criteria for withdrawal of the funds, acceptable 
proof and/or receipts for accountability of the expenditure of the funds 
and the circumstances for denial of the withdrawal of the minors' and 
legal incompetents' per capita payments by the parent or legal guardian; 
and
    (iii) Establishing a process, system, or forum for dispute 
resolution.
    (4) It must describe how you will notify members of the tax 
liability for per capita payments and how you will withhold taxes for 
all recipients in accordance with IRS regulations in 26 CFR part 31.
    (5) It must authorize the distribution of per capita payments to 
members according to specific eligibility requirements and must utilize 
or establish a tribal court system, forum or administrative process for 
resolution of disputes concerning the allocation of net gaming revenues 
and the distribution of per capita payments.



Sec. 290.13  Under what conditions may an Indian tribe distribute per 
capita payments?

    You may make per capita payments only after the ABO approves your 
tribal revenue allocation plan.



Sec. 290.14  Who can share in a per capita payment?

    (a) You must establish your own criteria for determining whether all 
members or identified groups of members are eligible for per capita 
payments.
    (b) If the tribal revenue allocation plan calls for distributing per 
capita payments to an identified group of members rather than to all 
members, you must justify limiting this payment to the identified group 
of members. You must make sure that:
    (1) The distinction between members eligible to receive payments and 
members ineligible to receive payments is reasonable and not arbitrary;
    (2) The distinction does not discriminate or otherwise violate the 
Indian Civil Rights Act; and

[[Page 814]]

    (3) The justification complies with applicable tribal law.



Sec. 290.15  Must the Indian tribe establish trust accounts with 
financial institutions for minors and legal incompetents?

    No. The tribe may establish trust accounts with financial 
institutions but should explore investment options to structure the 
accounts to the benefit of their members while ensuring compliance with 
IGRA and this part.



Sec. 290.16  Can the per capita payments of minors and legal 
incompetents be deposited into accounts held by BIA or OTFM?

    No. The Secretary will not accept any deposits of payments or funds 
derived from net gaming revenues to any account held by BIA or OTFM.



Sec. 290.17  What documents must the Indian tribe include with the 
tribal revenue allocation plan?

    You must include:
    (a) A written request for approval of the tribal revenue allocation 
plan; and
    (b) A tribal resolution or other document, including the date and 
place of adoption and the result of any vote taken, that certifies you 
have adopted the tribal revenue allocation plan in accordance with 
applicable tribal law.



Sec. 290.18  Where should the Indian tribe submit the tribal revenue 
allocation plan?

    You must submit your tribal revenue allocation plan to your 
respective Superintendent. The Superintendent will review the tribal 
revenue allocation plan to make sure it has been properly adopted in 
accordance with applicable tribal law. The Superintendent will then 
transmit the tribal revenue allocation plan promptly to the ABO.



Sec. 290.19  How long will the ABO take to review and approve the 
tribal revenue allocation plan?

    The ABO must review and act on your tribal revenue allocation plan 
within 60 days of receiving it. A tribal revenue allocation plan is not 
effective without the ABO's written approval.
    (a) If the tribal revenue allocation plan conforms with this part 
and the IGRA, the ABO must approve it.
    (b) If the tribal revenue allocation plan does not conform with this 
part and the IGRA, the ABO will send you a written notice that:
    (1) Explains why the plan doesn't conform to this part of the IGRA; 
and
    (2) Tells you how to bring the plan into conformance.
    (c) If the ABO doesn't act within 60 days, you can appeal the 
inaction under 25 CFR part 2. A tribal revenue allocation plan is not 
effective without the express written approval of the ABO.



Sec. 290.20  When will the ABO disapprove a tribal revenue allocation 
plan?

    The ABO will not approve any tribal revenue allocation plan for 
distribution of net gaming revenues from a tribal gaming activity if:
    (a) The tribal revenue allocation plan is inadequate, particularly 
with respect to the requirements in Sec. 290.12 and IGRA, and you fail 
to bring it into compliance;
    (b) The tribal revenue allocation plan is not adopted in accordance 
with applicable tribal law;
    (c) The tribal revenue allocation plan does not include a reasonable 
justification for limiting per capita payments to certain groups of 
members; or
    (d) The tribal revenue allocation plan violates the Indian Civil 
Rights Act of 1968, any other provision of Federal law, or the United 
States' trust obligations.



Sec. 290.21  May an Indian tribe appeal the ABO's decision?

    Yes, you may appeal the ABO's decision in accordance with the 
regulations at 25 CFR part 2.



Sec. 290.22  How does the Indian tribe ensure compliance with its tribal 
revenue allocation plan?

    You must utilize or establish a tribal court system, forum or 
administrative process in the tribal revenue allocation plan for 
reviewing expenditures of net gaming revenues and explain how you will 
correct deficiencies.

[[Page 815]]



Sec. 290.23  How does the Indian tribe resolve disputes arising from 
per capita payments to individual members or identified groups of members?

    You must utilize or establish a tribal court system, forum or 
administrative process for resolving disputes arising from the 
allocation of net gaming revenue and the distribution of per capita 
payments.



Sec. 290.24  Do revisions/amendments to a tribal revenue allocation 
plan require approval?

    Yes, revisions/amendments to a tribal revenue allocation plan must 
be submitted to the ABO for approval to ensure that they comply with 
Sec. 290.12 and IGRA.



Sec. 290.25  What is the liability of the United States under this part?

    The United States is not liable for the manner in which a tribe 
distributes funds from net gaming revenues.



Sec. 290.26  Are previously approved tribal revenue allocation plans, 
revisions, or amendments subject to review in accordance with this part?

    No. This part applies only to tribal revenue allocation plans, 
revisions, or amendments submitted for approval after April 17, 2000.
    (a) If the ABO approved your tribal revenue allocation plan, 
revisions, or amendments before April 17, 2000, you need not resubmit it 
for approval.
    (b) If you are amending or revising a previously approved allocation 
plan, you must submit the amended or revised plan to the ABO for review 
and approval under this part.



PART 291_CLASS III GAMING PROCEDURES--Table of Contents




Sec.
291.1 Purpose and scope.
291.2 Definitions.
291.3 When may an Indian tribe ask the Secretary to issue Class III 
          gaming procedures?
291.4 What must a proposal requesting Class III gaming procedures 
          contain?
291.5 Where must the proposal requesting Class III gaming procedures be 
          filed?
291.6 What must the Secretary do upon receiving a proposal?
291.7 What must the Secretary do if it has been determined that the 
          Indian tribe is eligible to request Class III gaming 
          procedures?
291.8 What must the Secretary do at the expiration of the 60-day comment 
          period if the State has not submitted an alternative proposal?
291.9 What must the Secretary do at the end of the 60-day comment period 
          if the State offers an alternative proposal for Class III 
          gaming procedures?
291.10 What is the role of the mediator appointed by the Secretary?
291.11 What must the Secretary do upon receiving the proposal selected 
          by the mediator?
291.12 Who will monitor and enforce tribal compliance with the Class III 
          gaming procedures?
291.13 When do Class III gaming procedures for an Indian tribe become 
          effective?
291.14 How can Class III gaming procedures issued by the Secretary be 
          amended?
291.15 How long do Class III gaming procedures remain in effect?

    Authority: 5 U.S.C. 301; 25 U.S.C. sections 2,9 and 2710.

    Source: 64 FR 17543, Apr. 12, 1999, unless otherwise noted.



Sec. 291.1  Purpose and scope.

    The regulations in this part establish procedures that the Secretary 
will use to promulgate rules for the conduct of Class III Indian gaming 
when:
    (a) A State and an Indian tribe are unable to voluntarily agree to a 
compact and;
    (b) The State has asserted its immunity from suit brought by an 
Indian tribe under 25 U.S.C. 2710(d)(7)(B).



Sec. 291.2  Definitions

    (a) All terms have the same meaning as set forth in the definitional 
section of IGRA, 25 U.S.C. section 2703(1)-(10).
    (b) The term ``compact'' includes renewal of an existing compact.



Sec. 291.3  When may an Indian tribe ask the Secretary to issue Class 
III gaming procedures?

    An Indian tribe may ask the Secretary to issue Class III gaming 
procedures when the following steps have taken place:
    (a) The Indian tribe submitted a written request to the State to 
enter into negotiations to establish a Tribal-State compact governing 
the conduct of Class III gaming activities;

[[Page 816]]

    (b) The State and the Indian tribe failed to negotiate a compact 180 
days after the State received the Indian tribe's request;
    (c) The Indian tribe initiated a cause of action in Federal district 
court against the State alleging that the State did not respond, or did 
not respond in good faith, to the request of the Indian tribe to 
negotiate such a compact;
    (d) The State raised an Eleventh Amendment defense to the tribal 
action; and
    (e) The Federal district court dismissed the action due to the 
State's sovereign immunity under the Eleventh Amendment.



Sec. 291.4  What must a proposal requesting Class III gaming procedures 
contain?

    A proposal requesting Class III gaming procedures must include the 
following information:
    (a) The full name, address, and telephone number of the Indian tribe 
submitting the proposal;
    (b) A copy of the authorizing resolution from the Indian tribe 
submitting the proposal;
    (c) A copy of the Indian tribe's gaming ordinance or resolution 
approved by the NIGC in accordance with 25 U.S.C. 2710, if any;
    (d) A copy of the Indian tribe's organic documents, if any;
    (e) A copy of the Indian tribe's written request to the State to 
enter into compact negotiations, along with the Indian tribe's proposed 
compact, if any;
    (f) A copy of the State's response to the tribal request and/or 
proposed compact, if any;
    (g) A copy of the tribe's Complaint (with attached exhibits, if 
any); the State's Motion to Dismiss; any Response by the tribe to the 
State's Motion to Dismiss; any Opinion or other written documents from 
the court regarding the State's Motion to Dismiss; and the Court's Order 
of dismissal;
    (h) The Indian tribe's factual and legal authority for the scope of 
gaming specified in paragraph (j)(13) of this section;
    (i) Regulatory scheme for the State's oversight role, if any, in 
monitoring and enforcing compliance; and
    (j) Proposed procedures under which the Indian tribe will conduct 
Class III gaming activities, including:
    (1) A certification that the tribe's accounting procedures are 
maintained in accordance with American Institute of Certified Public 
Accountants Standards for Audits of Casinos, including maintenance of 
books and records in accordance with Generally Accepted Accounting 
Principles and applicable NIGC regulations;
    (2) A reporting system for the payment of taxes and fees in a timely 
manner and in compliance with Internal Revenue Code and Bank Secrecy Act 
requirements;
    (3) Preparation of financial statements covering all financial 
activities of the Indian tribe's gaming operations;
    (4) Internal control standards designed to ensure fiscal integrity 
of gaming operations as set forth in 25 CFR Part 542;
    (5) Provisions for records retention, maintenance, and 
accessibility;
    (6) Conduct of games, including patron requirements, posting of game 
rules, and hours of operation;
    (7) Procedures to protect the integrity of the rules for playing 
games;
    (8) Rules governing employees of the gaming operation, including 
code of conduct, age requirements, conflict of interest provisions, 
licensing requirements, and such background investigations of all 
management officials and key employees as are required by IGRA, NIGC 
regulations, and applicable tribal gaming laws;
    (9) Policies and procedures that protect the health and safety of 
patrons and employees and that address insurance and liability issues, 
as well as safety systems for fire and emergency services at all gaming 
locations;
    (10) Surveillance procedures and security personnel and systems 
capable of monitoring movement of cash and chips, entrances and exits of 
gaming facilities, and other critical areas of any gaming facility;
    (11) An administrative and/or tribal judicial process to resolve 
disputes between gaming establishment, employees and patrons, including 
a process to protect the rights of individuals injured on gaming 
premises by reason of

[[Page 817]]

negligence in the operation of the facility;
    (12) Hearing procedures for licensing purposes;
    (13) A list of gaming activities proposed to be offered by the 
Indian tribe at its gaming facilities;
    (14) A description of the location of proposed gaming facilities;
    (15) A copy of the Indian tribe's liquor ordinance approved by the 
Secretary if intoxicants, as used in 18 U.S.C. 1154, will be served in 
the gaming facility;
    (16) Provisions for a tribal regulatory gaming entity, independent 
of gaming management;
    (17) Provisions for tribal enforcement and investigatory mechanisms, 
including the imposition of sanctions, monetary penalties, closure, and 
an administrative appeal process relating to enforcement and 
investigatory actions;
    (18) The length of time the procedures will remain in effect; and
    (19) Any other provisions deemed necessary by the Indian tribe.



Sec. 291.5  Where must the proposal requesting Class III gaming 
procedures be filed?

    Any proposal requesting Class III gaming procedures must be filed 
with the Director, Indian Gaming Management Staff, Bureau of Indian 
Affairs, U.S. Department of the Interior, MS 2070-MIB, 1849 C Street NW, 
Washington, DC 20240.



Sec. 291.6  What must the Secretary do upon receiving a proposal?

    Upon receipt of a proposal requesting Class III gaming procedures, 
the Secretary must:
    (a) Within 15 days, notify the Indian tribe in writing that the 
proposal has been received, and whether any information required under 
Sec. 291.4 is missing;
    (b) Within 30 days of receiving a complete proposal, notify the 
Indian tribe in writing whether the Indian tribe meets the eligibility 
requirements in Sec. 291.3. The Secretary's eligibility determination 
is final for the Department.



Sec. 291.7  What must the Secretary do if it has been determined that 
the Indian tribe is eligible to request Class III gaming procedures?

    (a) If the Secretary determines that the Indian tribe is eligible to 
request Class III gaming procedures and that the Indian tribe's proposal 
is complete, the Secretary must submit the Indian tribe's proposal to 
the Governor and the Attorney General of the State where the gaming is 
proposed.
    (b) The Governor and Attorney General will have 60 days to comment 
on:
    (1) Whether the State is in agreement with the Indian tribe's 
proposal;
    (2) Whether the proposal is consistent with relevant provisions of 
the laws of the State;
    (3) Whether contemplated gaming activities are permitted in the 
State for any purposes, by any person, organization, or entity.
    (c) The Secretary will also invite the State's Governor and Attorney 
General to submit an alternative proposal to the Indian tribe's proposed 
Class III gaming procedures.



Sec. 291.8  What must the Secretary do at the expiration of the 
60-day comment period if the State has not submitted an alternative 
proposal?

    (a) Upon expiration of the 60-day comment period specified in Sec. 
291.7, if the State has not submitted an alternative proposal, the 
Secretary must review the Indian tribe's proposal to determine:
    (1) Whether all requirements of Sec. 291.4 are adequately 
addressed;
    (2) Whether Class III gaming activities will be conducted on Indian 
lands over which the Indian tribe has jurisdiction;
    (3) Whether contemplated gaming activities are permitted in the 
State for any purposes by any person, organization, or entity;
    (4) Whether the proposal is consistent with relevant provisions of 
the laws of the State;
    (5) Whether the proposal is consistent with the trust obligations of 
the United States to the Indian tribe;
    (6) Whether the proposal is consistent with all applicable 
provisions of IGRA; and

[[Page 818]]

    (7) Whether the proposal is consistent with provisions of other 
applicable Federal laws.
    (b) Within 60 days of the expiration of the 60-day comment period in 
Sec. 291.7, the Secretary must notify the Indian tribe, the Governor, 
and the Attorney General of the State in writing that he/she has:
    (1) Approved the proposal if the Secretary determines that there are 
no objections to the Indian tribe's proposal; or
    (2) Identified unresolved issues and areas of disagreements in the 
proposal, and invite the Indian tribe, the Governor and the Attorney 
General to participate in an informal conference, within 30 days of 
notification unless the parties agree otherwise, to resolve identified 
unresolved issues and areas of disagreement.
    (c) Within 30 days of the informal conference, the Secretary must 
prepare and mail to the Indian tribe, the Governor and the Attorney 
General:
    (1) A written report that summarizes the results of the informal 
conference; and
    (2) A final decision either setting forth the Secretary's proposed 
Class III gaming procedures for the Indian tribe, or disapproving the 
proposal for any of the reasons in paragraph (a) of this section.



Sec. 291.9  What must the Secretary do at the end of the 60-day comment 
period if the State offers an alternative proposal for Class III gaming 
procedures?

    Within 30 days of receiving the State's alternative proposal, the 
Secretary must appoint a mediator who:
    (a) Has no official, financial, or personal conflict of interest 
with respect to the issues in controversy; and
    (b) Must convene a process to resolve differences between the two 
proposals.



Sec. 291.10  What is the role of the mediator appointed by the Secretary?

    (a) The mediator must ask the Indian tribe and the State to submit 
their last best proposal for Class III gaming procedures.
    (b) After giving the Indian tribe and the State an opportunity to be 
heard and present information supporting their respective positions, the 
mediator must select from the two proposals the one that best comports 
with the terms of IGRA and any other applicable Federal law. The 
mediator must submit the proposal selected to the Indian tribe, the 
State, and the Secretary.



Sec. 291.11  What must the Secretary do upon receiving the proposal 
selected by the mediator?

    Within 60 days of receiving the proposal selected by the mediator, 
the Secretary must do one of the following:
    (a) Notify the Indian tribe, the Governor and the Attorney General 
in writing of his/her decision to approve the proposal for Class III 
gaming procedures selected by the mediator; or
    (b) Notify the Indian tribe, the Governor and the Attorney General 
in writing of his/her decision to disapprove the proposal selected by 
the mediator for any of the following reasons:
    (1) The requirements of Sec. 291.4 are not adequately addressed;
    (2) Gaming activities would not be conducted on Indian lands over 
which the Indian tribe has jurisdiction;
    (3) Contemplated gaming activities are not permitted in the State 
for any purpose by any person, organization, or entity;
    (4) The proposal is not consistent with relevant provisions of the 
laws of the State;
    (5) The proposal is not consistent with the trust obligations of the 
United States to the Indian tribe;
    (6) The proposal is not consistent with applicable provisions of 
IGRA; or
    (7) The proposal is not consistent with provisions of other 
applicable Federal laws.
    (c) If the Secretary rejects the mediator's proposal under paragraph 
(b) of this section, he/she must prescribe appropriate procedures within 
60 days under which Class III gaming may take place that comport with 
the mediator's selected proposal as much as possible, the provisions of 
IGRA, and the relevant provisions of the laws of the State.

[[Page 819]]



Sec. 291.12  Who will monitor and enforce tribal compliance with the 
Class III gaming procedures?

    The Indian tribe and the State may have an agreement regarding 
monitoring and enforcement of tribal compliance with the Indian tribe's 
Class III gaming procedures. In addition, under existing law, the NIGC 
will monitor and enforce tribal compliance with the Indian tribe's Class 
III gaming procedures.



Sec. 291.13  When do Class III gaming procedures for an Indian tribe 
become effective?

    Upon approval of Class III gaming procedures for the Indian tribe 
under either Sec. 291.8(b), Sec. 291.8(c), or Sec. 291.11(a), the 
Indian tribe shall have 90 days in which to approve and execute the 
Secretarial procedures and forward its approval and execution to the 
Secretary, who shall publish notice of their approval in the Federal 
Register. The procedures take effect upon their publication in the 
Federal Register.



Sec. 291.14  How can Class III gaming procedures approved by the 
Secretary be amended?

    An Indian tribe may ask the Secretary to amend approved Class III 
gaming procedures by submitting an amendment proposal to the Secretary. 
The Secretary must review the proposal by following the approval process 
for initial tribal proposals, except that the requirements of Sec. 
291.3 are not applicable and he/she may waive the requirements of Sec. 
291.4 to the extent they do not apply to the amendment request.



Sec. 291.15  How long do Class III gaming procedures remain in effect?

    Class III gaming procedures remain in effect for the duration 
specified in the procedures or until amended pursuant to Sec. 291.14.



                  SUBCHAPTER O_MISCELLANEOUS [RESERVED]



 Appendix to Chapter I--Extension of the Trust or Restricted Status of 
                          Certain Indian Lands

    This appendix contains citations of Executive orders and acts of 
Congress continuing the trust or restricted period of Indian land, which 
would have expired otherwise, within the several Indian reservations in 
the States named. The asterisk to the left of the name of a reservation 
indicates that the reservation is subject to the benefits of the Indian 
Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), 
as amended, and as therein provided the trust or restricted period of 
the land is extended indefinitely. Where the name of a reservation is 
not preceded by an asterisk, such reservation is not subject to the 
Reorganization Act and is not subject to the benefits of such indefinite 
trust or restricted period extension, but such reservation is dependent 
upon acts of Congress or Executive orders for extension of the trust or 
restricted period of the land.
    For the purpose of insuring the continuation of the trust or 
restricted status of Indian allotments within Indian reservations not 
subject to the Reorganization Act, Congress by the act of June 15, 1935 
(49 Stat. 378) reimposed such restrictions as may have been expired 
between the dates of June 18, 1934, and December 31, 1936.

----------------------------------------------------------------------------------------------------------------
                                                             E. O.
               State                     Reservation          No.             Date           Period of extension
----------------------------------------------------------------------------------------------------------------
Arizona...........................  *Papago..............      2066  Oct. 27, 1914........  10 years.
 Do...............................  ......do.............      4464  June 28, 1926........   Do.
California........................  Agua Caliente........      3446  Apr. 30, 1921........   Do.
 Do...............................  ......do.............      5580  Mar. 16, 1931........   Do.
 Do...............................  Cabazon and Twenty-        3302  July 7, 1920.........  5 years.
                                     nine Palms.
 Do...............................  ......do.............      4159  Feb. 19, 1925........  10 years.
 Do...............................  *Capitan Grande......      3048  Feb. 27, 1919........  5 years.
 Do...............................  ......do.............  ........  Act of Feb. 8, 1927    10 years.
                                                                      (44 Stat. 1061).
 Do...............................  Hoopa Valley (Klamath      2943  Aug. 23, 1918........  1 year.
                                     River).
 Do...............................  ......do.............  ........  Sept. 23, 1919.......   Do.
 Do...............................  ......do.............      3304  July 10, 1920........  10 years.
 Do...............................  ......do.............      3980  Mar. 26, 1924........  15 years.
 Do...............................  ......do.............      5416  Aug. 4, 1930.........  10 years.

[[Page 820]]

 
                                    Mission Bands:.......
 Do...............................   Augustine...........      2795  Jan. 26, 1918........   Do.
 Do...............................   Campo...............      2795  ......do.............   Do.
 Do...............................   *Cuyapipe...........      2795  ......do.............   Do.
 Do...............................   Inaja...............      2795  ......do.............   Do.
 Do...............................   *Laguna.............      2795  ......do.............   Do.
 Do...............................   *La Posta...........      2795  ......do.............   Do.
 Do...............................   *Manzanita..........      2795  ......do.............   Do.
 Do...............................   Mesa Grande.........      2795  ......do.............   Do.
 Do...............................   Pala................      2795  ......do.............   Do.
 Do...............................   Ramona..............      2795  ......do.............   Do.
 Do...............................   Santa Ysabel........      2795  ......do.............   Do.
 Do...............................   Sycuan..............      2795  ......do.............   Do.
 Do...............................  ......do.............      3383  Jan. 7, 1921.........  25 years.
 Do...............................   San Manuel..........      2795  Jan. 26, 1918........  10 years.
 Do...............................   Temecula............      2795  ............do.......   Do.
 Do...............................  All of above Mission       4765  Nov. 23, 1927........   Do.
                                     Bands.
 Do...............................  Morongo..............      6341  Oct. 17, 1933........   Do.
 Do...............................  Pala.................      3383  Jan. 7, 1921.........  25 years.
 Do...............................  ......do.............  ........  Act of Feb. 11, 1936   10 years.
                                                                      (49 Stat. 1106).
 Do...............................  Potrero and Rincon...      2684  Aug. 16, 1917........   Do.
 Do...............................  ......do.............      4687  July 11, 1927........   Do.
 Do...............................  *Round Valley........      3223  Feb. 5, 1920.........  3 years.
 Do...............................  ......do.............      3805  Mar. 5, 1923.........  10 years.
 Do...............................  ......do.............      3995  Apr. 19, 1924........   Do.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
 Do...............................  Temecula.............      3699  June 27, 1922........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  Torres-Martinez......      7009  Apr. 10, 1935........   Do.
Idaho.............................  Nez Perce............      3250  Mar. 24, 1920........   Do.
Idaho.............................  Nez Perce............      4694  July 22, 1927........  10 years.
 Do...............................  ......do.............      5305  Mar. 18, 1930........   Do.
Kansas and Nebraska...............  *Iowa................      2966  Sept. 23, 1918.......   Do.
 Do...............................  ......do.............      5023  Jan. 10, 1929........   Do.
 Do...............................  *Sac and Fox.........      2607  May 4, 1917..........   Do.
 Do...............................  ......do.............      4571  Jan. 24, 1927........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  Kickapoo.............      3301  July 3, 1920.........  1 year.
 Do...............................  ......do.............      3447  May 2, 1921..........  10 years.
 Do...............................  ......do.............      5415  Aug. 4, 1930.........   Do.
 Do...............................  ......do.............      5626  May 18, 1931.........   Do.
 Do...............................  *Potawatomi..........      2747  Nov. 2, 1917.........   Do.
 Do...............................  ......do.............      2927  July 30, 1918........   Do.
 Do...............................  ......do.............      3312  July 21, 1920........   Do.
 Do...............................  ......do.............      4688  July 11, 1927........   Do.
 Do...............................  ......do.............      4858  Apr. 16, 1928........   Do.
 Do...............................  ......do.............      5299  Mar. 10, 1930........   Do.
 Do...............................  ......do.............      5356  May 28, 1930.........   Do.
 Do...............................  ......do.............      5556  Feb. 11, 1931........   Do.
Minnesota.........................  *Fond du Lac.........      3445  Apr. 30, 1921........   Do.
 Do...............................  ......do.............      5575  Mar. 12, 1931........   Do.
 Do...............................  *Grand Portage.......      3613  Jan. 12, 1922........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  *Winnibigoshish......      3614  Jan. 12, 1922........   Do.
 Do...............................  ......do.............      5466  Oct. 22, 1930........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  *Deer Creek..........      4154  Feb. 10, 1925........   Do.
 Do...............................  *Bois Fort...........      4233  May 26, 1925.........   Do.
 Do...............................  *Leech Lake, Cass          4298  Aug. 29, 1925........   Do.
                                     Lake, and White Oak
                                     Point.
 Do...............................  ......do.............      5466  Oct. 22, 1930........   Do.
 Do...............................  *White Earth.........      4642  May 5, 1927..........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
 Do...............................  *Red Lake............      5383  June 26, 1930........   Do.
Montana...........................  Crow.................      5301  Mar. 12, 1930........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  ......do.............      7001  Apr. 5, 1935.........   Do.
 Do...............................  ......do.............  ........  Act of April 1940 (54  To May 23, 1940.
                                                                      Stat. 106).
 Do...............................  *Flathead............      5953  Nov. 23, 1932........   Do.
Nebraska..........................  *Omaha...............  ........  July 3, 1909.........   Do.

[[Page 821]]

 
 Do...............................  ......do.............      3111  July 10, 1919........   Do.
 Do...............................  ......do.............      4145  Jan. 28, 1925........   Do.
 Do...............................  ......do.............      4548  Dec. 4, 1926.........   Do.
 Do...............................  ......do.............      5148  July 3, 1929.........   Do.
 Do...............................  ......do.............      5253  Dec. 31, 1929........   Do.
 Do...............................  *Ponca...............      2374  Apr. 29, 1916........   Do.
 Do...............................  ......do.............      4407  Mar. 30, 1926........   Do.
 Do...............................  *Santee..............  ........  Dec. 12, 1910........   Do.
 Do...............................  ......do.............      3348  Nov. 5, 1920.........   Do.
 Do...............................  ......do.............      3722  Aug. 12, 1922........   Do.
 Do...............................  *Santee Sarah Jones        4075  Sept. 17, 1924.......   Do.
                                     allotment.
 Do...............................  *Santee..............      5474  Oct. 31, 1930........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
 Do...............................  *Winnebago...........      2965  Sept. 20, 1918.......   Do.
 Do...............................  ......do.............      4548  Dec. 4, 1926.........   Do.
 Do...............................  ......do.............      4979  Oct. 16, 1928........   Do.
 Do...............................  ......do.............      4994  Nov. 14, 1928........   Do.
 Do...............................  *Sac and Fox, William      3878  July 27, 1923........  1 year.
                                     Banks allotment.
Nevada............................  *Walker River........      5730  Oct. 8, 1931.........  10 years.
North Dakota......................  Devils Lake..........      2804  Feb. 11, 1918........   Do.
 Do...............................  ......do.............      3853  May 23, 1923.........   Do.
 Do...............................  ......do.............      4775  Nov. 30, 1927........   Do.
 Do...............................  ......do.............      5303  Mar. 12, 1930........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
 Do...............................  *Fort Berthold.......      4293  Aug. 25, 1925........   Do.
 Do...............................  *Standing Rock.......      5768  Dec. 30, 1931........   Do.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
Oklahoma..........................  Absentee Shawnee and       2494  Nov. 24, 1916........   Do.
                                     Citizen Potawatomi.
 Do...............................  ......do.............      2512  Jan. 15, 1917........   Do.
 Do...............................  ......do.............      4557  Dec. 23, 1926........   Do.
 Do...............................  Cheyenne and Arapaho.      2580  Apr. 4, 1917.........   Do.
 Do...............................  ......do.............      4587  Feb. 17, 1927........   Do.
 Do...............................  Eastern Shawnee......      2317  Feb. 15, 1916........   Do.
 Do...............................  ......do.............      4384  Feb. 20, 1926........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  Mexican Kickapoo.....      3047  Feb. 27, 1919........  5 years.
 Do...............................  ......do.............      4029  June 19, 1924........  10 years.
 Do...............................  ......do.............  ........  Act of Feb. 17, 1933    Do.
                                                                      (47 Stat. 819).
 Do...............................  Modoc................      2453  Sept. 14, 1916.......   Do.
 Do...............................  ......do.............      4470  July 1, 1926.........   Do.
 Do...............................  Ottawa, Seneca and         2591  Apr. 11, 1917........   Do.
                                     Wyandotte.
 Do...............................  ......do.............      4588  Feb. 17, 1927........   Do.
 Do...............................  Pawnee...............      2816  Mar. 2, 1918.........   Do.
 Do...............................  ......do.............      4898  May 29, 1928.........   Do.
 Do...............................  Ponca................      3327  Sept. 19, 1920.......  1 year.
 Do...............................  ......do.............      3363  Dec. 1, 1920.........  25 years.
 Do...............................  ......do.............      5539  Jan. 23, 1931........  10 years.
 Do...............................  Sac and Fox, and Iowa  ........  Mar. 27, 1896........   Do.
 Do...............................  ......do.............  ........  July 23, 1906........   Do.
 Do...............................  ......do.............  ........  Aug. 28, 1906........   Do.
 Do...............................  ......do.............      2432  Aug. 1, 1916.........   Do.
 Do...............................  ......do.............      4435  Apr. 29, 1926........   Do.
 Do...............................  Tonkawa..............      2866  May 25, 1918.........   Do.
 Do...............................  Tonkawa (Oakland)....      4816  Feb. 25, 1928........   Do.
 Do...............................  Kaw..................  ........  Act of March 1923 (42  25 years.
                                                                      Stat. 1561).
 Do...............................  ......do.............  ........  Act of May 27, 1924    20 years.
                                                                      (43 Stat. 176).
 Do...............................  Otoe and Missouri....      4281  Aug. 11, 1925........  10 years.
 Do...............................  ......do.............      5728  Sept. 29, 1931.......   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  Kiowa, Comanche,           4398  Mar. 18, 1926........   Do.
                                     Apache, and Wichita.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
 Do...............................  ......do.............      5955  Nov. 30, 1932           Do.
                                                                      (Gertrude Lamb).

[[Page 822]]

 
 Do...............................  Seneca...............      5306  Mar. 18, 1930........   Do.
 Do...............................  Quapaw...............  ........  Act of Mar. 3, 1921    25 years.
                                                                      (41 Stat. 1248) as
                                                                      amended Nov. 18,
                                                                      1921 (42 Stat. 1570).
 Do...............................  ......do.............  ........  As supplemented or      Do.
                                                                      amended by the act
                                                                      of July 27, 1939 (53
                                                                      Stat. 1127).
Oregon............................  *Grande Ronde........      2376  Apr. 29, 1916........  10 years.
 Do...............................  ......do.............      4408  Mar. 30, 1926........   Do.
 Do...............................  Siletz...............      3110  July 10, 1919........   Do.
 Do...............................  Siletz (cont.).......      5087  Apr. 1, 1929.........   Do.
 Do...............................  *Warm Springs........      3586  Dec. 7, 1921.........   Do.
 Do...............................  ......do.............      5734  Oct. 17, 1931........   Do.
 Do...............................  Umatilla.............      4024  June 10, 1924........   Do.
 Do...............................  ......do.............      5516  Dec. 17, 1930........   Do.
 Do...............................  Klamath..............      6961  Feb. 4, 1935.........   Do.
 Do...............................  ......do.............  ........  Act of Dec. 24, 1942   25 years.
                                                                      (56 Stat. 1081).
South Dakota......................  Crow Creek...........      3362  Nov. 30, 1920........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........  10 years.
 Do...............................  ......do.............      6968  Feb. 9, 1935.........   Do.
 Do...............................  *Rosebud.............      4417  Apr. 14, 1926........   Do.
 Do...............................  ......do.............      5028  Jan. 16, 1929........   Do.
 Do...............................  ......do.............      5302  Mar. 12, 1930........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  Sisseton and Wahpeton      1916  Apr. 16, 1914........   Do.
 Do...............................  ......do.............      3994  Apr. 19, 1924........  15 years.
 Do...............................  *Yankton Sioux.......      2363  Apr. 20, 1916........  10 years.
 Do...............................  ......do.............      4406  Mar. 30, 1926........   Do.
South Dakota......................  Crow Creek...........      5173  Aug. 9, 1929.........  10 years.
 Do...............................  *Lower Brule.........      4981  Oct. 20, 1923........   Do.
 Do...............................  *Pine Ridge..........      5557  Feb. 13, 1931........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
 Do...............................  *Cheyenne River......      5546  Jan. 31, 1931........   Do.
 Do...............................  ......do.............      5768  Dec. 30, 1931........   Do.
Utah..............................  *Uncompahgre, Uintah       5357  May 29, 1930.........   Do.
                                     and White River
                                     Bands of Utes.
Washington........................  Chief Moses Band.....      2109  Dec. 23, 1914........   Do.
 Do...............................  ......do.............      4382  Feb. 10, 1926........  10 years from Mar.
                                                                                             8, 1926.
 Do...............................  Colville.............      4157  Feb. 17, 1925........  10 years.
 Do...............................  ......do.............      6962  Feb. 4, 1935.........   Do.
 Do...............................  *Quinaielt...........      5768  Dec. 30, 1931........   Do.
 Do...............................  Spokane..............      6939  Jan. 7, 1935.........  10 years.
 Do...............................  Yakima...............      3630  Feb. 3, 1922.........   Do.
 Do...............................  ......do.............      4168  Mar. 11, 1925........   Do.
 Do...............................  ......do.............      5746  Nov. 10, 1931........   Do.
 Do...............................  ......do.............      7036  May 8, 1935..........   Do.
 Do...............................  ......do.............  ........  Act of May 27, 1937    To July 9, 1942.
                                                                      (50 Stat. 210).
Wisconsin.........................  *Oneida..............      2623  May 19, 1917.........  1 year.
 Do...............................  ......do.............      2856  May 4, 1918..........  9 years.
 Do...............................  ......do.............      4600  Mar. 1, 1927.........  10 years.
Wyoming...........................  Wind River...........      5768  Dec. 30, 1931........   Do.
 Do...............................  ......do.............      5953  Nov. 23, 1932........   Do.
----------------------------------------------------------------------------------------------------------------

    Pursuant to act of June 21, 1906 (34 Stat. 325) extending trust or 
other period of restriction contained in patents issued to Indians for 
land on the public domain, the following orders have been promulgated:

------------------------------------------------------------------------
 E. O.
  No.                 Date                      Period of extension
------------------------------------------------------------------------
  2133  Feb. 3, 1915....................  1 year.
  2326  Feb. 23, 1916...................   Do.
  2505  Jan. 3, 1917....................   Do.
  2778  Dec. 31, 1917...................   Do.
  3024  Jan. 11, 1919...................   Do.
  3204  Dec. 23, 1919...................   Do.
  3365  Dec. 7, 1920....................  25 years.
------------------------------------------------------------------------

    No further separate orders covering extension of trust periods on 
public domain allotments were issued subsequent to Executive Order 3365 
of December 7, 1920. The trust or

[[Page 823]]

other periods of restriction contained in patents issued to Indians for 
land on the public domain have thereafter been extended by the terms of 
the general Executive orders.

                             General Orders
------------------------------------------------------------------------
 E. O.
  No.                 Date                      Period of extension
------------------------------------------------------------------------
  6498  Dec. 15, 1933...................  10 years.
  6926  Dec. 20, 1934 (Oklahoma only)...   Do.
  7206  Oct. 14, 1935 (Oklahoma only)...   Do.
  7464  Sept. 30, 1936..................  25 years.
  7716  Sept. 29, 1937..................   Do.
  7984  Oct. 7, 1938....................  25 years.
  8276  Oct. 28, 1939...................   Do.
  8580  Oct. 29, 1940...................   Do.
  8965  Dec. 10, 1941...................   Do.
  9272  Nov. 17, 1942...................   Do.
  9398  Nov. 25, 1943...................   Do.
  9500  Nov. 14, 1944...................   Do.
  9659  Nov. 21, 1945...................   Do.
  9811  Dec. 17, 1946...................   Do.
  9920  Jan. 8, 1948, effective Jan. 1,    Do.
         1948.
 10027  Jan. 6, 1949....................   Do.
 10091  Dec. 11, 1949...................   Do.
 10191  Dec. 13, 1950...................   Do.
------------------------------------------------------------------------

    Beginning with Executive Order 6498, issued December 15, 1933, 
regardless of the location of the allotments, all trust or restrictive 
periods on allotments expiring on a given date have been extended by one 
general Executive order issued annually.

                             General Orders
------------------------------------------------------------------------
     Order               Date         Per. of exten.      FR citation
------------------------------------------------------------------------
Sec. Int.......  Dec. 29, 1951......  1 year........  17 FR 799.
 Do............  Dec. 29, 1952......  ...do.........  18 FR 106.
 Do............  Dec. 28, 1953......  ...do.........  18 FR 8897.
 Do............  Dec. 17, 1954......  ...do.........  19 FR 8658.
 Do............  Nov. 17, 1955......  ...do.........  20 FR 8519.
 Do............  Dec. 6, 1956.......  ...do.........  21 FR 9644.
 Do............  Jan. 7, 1958.......  ...do.........  23 FR 112.
 Do............  Jan. 7, 1959.......  5 yrs.........  24 FR 127.
 Do............  Dec. 8, 1959.......  ...do.........  24 FR 9847.
 Do............  Dec. 24, 1960......  ...do.........  25 FR 13688.
 Do............  Dec. 28, 1961......  ...do.........  26 FR 12569.
Sec. Int.......  Jan. 4, 1963.......  ...do.........  28 FR 122.
 Do............  Oct. 31, 1963......  ...do.........  28 FR 11630.
 Do............  Oct. 9, 1968.......  ...do.........  33 FR 15067.
Dep. Ass.......  Dec. 14, 1973......  ...do.........  38 FR 33463.
Sec. Int.......  Dec. 14, 1978......  ...do.........  43 FR 58369.
 Do............  July 27, 1983......  ...do.........  48 FR 34026
Sec. Int.......  Aug. 15, 1988......  5 yrs.........  53 FR 30674.
------------------------------------------------------------------------

    Note: Executive orders and orders of the Secretary of the Interior 
(17 FR 799, Jan. 26, 1952; 18 FR 106, Jan. 6, 1953; 18 FR 8897, Dec. 31, 
1953; 19 FR 8658, Dec. 17, 1954; 20 FR 8519, Nov. 11, 1955; 21 FR 9644, 
Dec. 6, 1956; 23 FR 112, Jan. 7, 1958; 24 FR 127, Jan. 7, 1959; 24 FR 
9847, Dec. 8, 1959; 25 FR 13688, Dec. 24, 1960; 26 FR 12569, Dec. 28, 
1961; 28 FR 122, Jan. 4, 1963; 28 FR 11630, Oct. 31, 1963; 33 FR 15067, 
Oct. 9, 1968; 38 FR 34463, Dec. 14, 1973; 43 FR 58369, Dec. 14, 1978; 48 
FR 34026, July 27, 1983); 53 FR 30674, Aug. 15, 1988, extended the trust 
periods on Indian lands expiring during the calendar years of 1949, 
1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, 1961, 
1962, 1963, 1964-1968, 1969-1973, 1974-1978, 1979-1983, 1984-1988, 1989-
1993 respectively.

[[Page 825]]



  CHAPTER II--INDIAN ARTS AND CRAFTS BOARD, DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
301             Navajo, Pueblo, and Hopi silver and 
                    turquoise products; standards...........         827
304             Navajo, Pueblo, and Hopi silver, use of 
                    Government mark.........................         827
307             Navajo all-wool woven fabrics; use of 
                    Government certificate of genuineness...         828
308             Regulations for use of certificates of the 
                    Indian Arts and Crafts Board to be 
                    attached to their trade-marks by Indian 
                    enterprises concerned with the 
                    production and sale of genuine 
                    handicrafts.............................         830
309             Protection of Indian arts and crafts 
                    products................................         831
310             Use of Government marks of genuineness for 
                    Alaskan Indian and Alaskan Eskimo hand-
                    made products...........................         837

[[Page 827]]



PART 301_NAVAJO, PUEBLO, AND HOPI SILVER AND TURQUOISE PRODUCTS; STANDARDS
--Table of Contents




Sec.
301.1 Eligibility for use of Government stamp.
301.2 Specifications of material.
301.3 Specifications of dies.
301.4 Application of dies.
301.5 Applique elements in design.
301.6 Stone for ornamentation.
301.7 Stonecutting.
301.8 Finish.

    Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply 
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.

    Source: The provisions of this part 301 contained in standards for 
Navajo, Pueblo, and Hopi silver and turquoise products, Mar. 9, 1937, 
unless otherwise noted.



Sec. 301.1  Eligibility for use of Government stamp.

    Subject to the detailed requirements that follow, the Government 
stamp shall be affixed only to work individually produced and to work 
entirely hand-made. No object produced under conditions resembling a 
bench work system, and no object in whose manufacture any power-driven 
machinery has been used, shall be eligible for the use of the Government 
stamp.



Sec. 301.2  Specifications of material.

    Silver slugs of 1 ounce weight or other silver objects may be used, 
provided their fineness is at least 900, and provided further that no 
silver sheet shall be used. Unless cast, the slug or other object is to 
be hand hammered to thickness and shape desired. The only exceptions 
here are pins on brooches or similar objects; ear screws for earrings; 
backs for tie clasps and chains which may be of silver of different 
fineness and mechanically made.



Sec. 301.3  Specifications of dies.

    Dies used are to be entirely hand-made, with no tools more 
mechanical than hand tools and vise. Dies shall contain only a single 
element of the design.



Sec. 301.4  Application of dies.

    Dies are to be applied to the object with the aid of nothing except 
hand tools.



Sec. 301.5  Applique elements in design.

    All such parts of the ornament are to be hand-made. If wire is used, 
it is to be hand-made with no tool other than a hand-made draw plate. 
These requirements apply to the boxes for stone used in the design.



Sec. 301.6  Stone for ornamentation.

    In addition to turquoise, the use of other local stone is permitted. 
Turquoise, if used, must be genuine stone, uncolored by any artificial 
means.



Sec. 301.7  Stonecutting.

    All stone used, including turquoise, is to be hand-cut and polished. 
This permits the use of hand- or foot-driven wheels.



Sec. 301.8  Finish.

    All silver is to be hand polished.



PART 304_NAVAJO, PUEBLO, AND HOPI SILVER, USE OF GOVERNMENT MARK--Table 
of Contents




Sec.
304.1 Penalties for imitation or unauthorized use.
304.2 Marking and ownership of dies.
304.3 Classifying and marking of silver.
304.4 Standards and additional requirements.
304.5 Dies to identify tribe.
304.6 Responsibility of dealer.
304.7 Eligibility of silver meeting standards.
304.8 Use of label by dealer.
304.9 Placards; display of regulations.

    Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply 
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.

    Source: The provisions of this part 304 contained in regulations 
governing use of Government mark on Navajo, Pueblo, and Hopi silver, 
April 2, 1937, unless otherwise noted.



Sec. 304.1  Penalties for imitation or unauthorized use.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is

[[Page 828]]

subject to the criminal penalties imposed by section 5 of the said act 
(49 Stat. 892; 25 U.S.C. 305d).



Sec. 304.2  Marking and ownership of dies.

    All dies used to mark silver will be provided by and owned by the 
Indian Arts and Crafts Board.



Sec. 304.3  Classifying and marking of silver.

    For the present the Indian Arts and Crafts Board reserves to itself 
the sole right to judge what silver complying with its standards shall 
bear the Government mark. All such marking of silver shall, for the 
present, be done by an agent of the Indian Arts and Crafts Board.



Sec. 304.4  Standards and additional requirements.

    No piece of silver, though made in compliance with the standards set 
forth by the Indian Arts and Crafts Board, shall bear the Government 
mark unless:
    (a) Its weight is substantially in accord with Indian usage and 
custom.
    (b) Its design elements are substantially in accord with Indian 
usage and tradition.
    (c) Its workmanship is substantially that expected in good hand 
craftsmanship.



Sec. 304.5  Dies to identify tribe.

    Dies are marked with name of tribe. A Navajo stamp will be used 
where the marker is a Navajo Indian; similarly, for Zuni, Hopi, and Rio 
Grande Pueblo.



Sec. 304.6  Responsibility of dealer.

    All dies will be numbered, and each wholesaler or dealer will be 
held responsible for any violation of standards in silver that bears his 
mark. Until such time as the Board relinquishes its sole right to mark 
silver, the responsibility of the dealer for whom silver is marked will 
be confined to misrepresentations as to quality of silver and of stones 
used for ornament and to methods of production.



Sec. 304.7  Eligibility of silver meeting standards.

    In addition to silver currently made in compliance with the 
standards of the Indian Arts and Crafts Board, other silver products 
made prior to the promulgation of the regulations in this part may be 
stamped, provided the maker thereof is known to be an Indian, and the 
product satisfies the requirements in Sec. 304.4.



Sec. 304.8  Use of label by dealer.

    Any dealer offering for sale silver bearing the Government mark may, 
if he wishes, attach to silver so marked a label or ticket calling 
attention to the Government mark.



Sec. 304.9  Placards; display of regulations.

    Every dealer offering for sale silver bearing the Government mark 
may display in a prominent place a placard setting forth the standards 
and the regulations in this part, such placard to be furnished by the 
Indian Arts and Crafts Board.

[Regs., Apr. 2, 1937, as amended Feb. 21, 1938]



PART 307_NAVAJO ALL-WOOL WOVEN FABRICS; USE OF GOVERNMENT CERTIFICATE 
OF GENUINENESS--Table of Contents




Sec.
307.1 Penalties.
307.2 Certificates of genuineness; by whom affixed.
307.3 Granting of licenses, contract, and bond requirements.
307.4 Standards for fabrics.
307.5 Hand seal press and certificates to be furnished.
307.6 Fees.
307.7 Suspension of license.
307.8 Revocation of license.
307.9 Surrender of license.
307.10 Period of license.
307.11 Certificates fastened to fabrics.
307.12 Certificates, dating, and signing thereof.
307.13 Licensee's responsibility.

    Authority: Sec. 3, 49 Stat. 892 (25 U.S.C. 305b). Interpret or apply 
sec. 2, 49 Stat. 891, as amended (25 U.S.C. 305a).

    Source: The provisions of this part 307 contained in regulations 
governing the use of Government certificate of genuineness for Navajo 
all-wool woven fabrics, Oct. 20, 1937, unless otherwise noted.

[[Page 829]]



Sec. 307.1  Penalties.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is subject to the criminal penalties 
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C. 305d), 
which provides:

    Any person who shall counterfeit or colorably imitate any Government 
trade-mark used or devised by the Board as provided in section 305a of 
this chapter, or shall, except as authorized by the Board, affix any 
such Government trade-mark, or shall knowingly, willfully, and corruptly 
affix any reproduction, counterfeit, copy, or colorable imitation 
thereof upon any products, Indian or otherwise, or to any labels, signs, 
prints, packages, wrappers, or receptacles intended to be used upon or 
in connection with the sale of such products, or any person who shall 
knowingly make any false statement for the purpose of obtaining the use 
of any such Government trade-mark shall be guilty of a misdemeanor, and 
upon conviction thereof shall be enjoined from further carrying on the 
act or acts complained of and shall be subject to a fine not exceeding 
$20,000, or imprisonment not exceeding six months, or both such fine and 
imprisonment.



Sec. 307.2  Certificates of genuineness; by whom affixed.

    Government certificates of genuineness for Navajo all-wool woven 
fabrics may be affixed to fabrics meeting the conditions specified in 
Sec. 307.4 by persons duly authorized to affix such certificates, under 
license issued by the Indian Arts and Crafts Board.



Sec. 307.3  Granting of licenses, contract, and bond requirements.

    A license may be granted to any person desiring to use the 
Government certificate of genuineness for Navajo all-wool woven fabrics 
who shall make application therefor and shall execute a contract 
acceptable to the Indian Arts and Crafts Board providing for the use of 
such certificates in conformity with the regulations in this part, which 
contract shall be accompanied by an indemnity bond acceptable to the 
Indian Arts and Crafts Board, in the amount of $500, conditioned upon 
faithful performance of such contract.



Sec. 307.4  Standards for fabrics.

    No fabric may carry the Government certificate of genuineness for 
Navajo all-wool woven fabric unless all of the following conditions are 
met:
    (a) The fabric is made entirely of local wool that is locally hand-
spun and is entirely woven on a native Navajo loom;
    (b) The fabric is made by a member of the Navajo Tribe working under 
conditions not resembling a workshop or factory system;
    (c) The size of the fabric is indicated in the certificate;
    (d) The licensee signs the certificate.

[Regs., Oct. 20, 1937, as amended at 4 FR 2436, June 17, 1939]



Sec. 307.5  Hand seal press and certificates to be furnished.

    Each licensee will be furnished, upon payment of the registration 
and license fees specified in Sec. 307.6 one hand seal press and a 
supply of blank Government certificates, which shall be used only in 
accordance with this license, and shall remain at all times the property 
of the Board.



Sec. 307.6  Fees.

    Each licensee shall pay a registration fee of $2, together with a 
license fee which shall be determined on the basis of $1 for each 40 
Government certificates ordered by the licensee from the Board.



Sec. 307.7  Suspension of license.

    In the event that complaint is made to the Board that any provision 
of any license or of the regulations in this part has been violated by 
any licensee, the Board may suspend the license and all authority 
conferred thereby, in its discretion, for a period of 30 days, by 
notifying the licensee of such suspension, by mail, by telegraph, or in 
any other manner.



Sec. 307.8  Revocation of license.

    In the event that the Board, after giving a licensee written notice 
of charges and affording an opportunity to reply to such charges, orally 
or in writing, is satisfied that any provision of any license or of the 
regulations in this part has been violated by any licensee, the Board 
may revoke the license by notifying the licensee of such revocation, by 
mail, by telegraph, or in any other manner. Upon notice of such

[[Page 830]]

revocation all authority conferred by the license so revoked shall 
forthwith terminate, but the validity of actions taken while the license 
was in force shall not be affected.



Sec. 307.9  Surrender of license.

    Any license may be surrendered by the licensee at any time by 
surrendering to the Board the Government hand seal press and unused 
certificates of genuineness entrusted to the licensee, accompanied by a 
copy of the license marked ``surrendered'' and signed by the licensee. 
Such surrender shall take effect as of the time that such property and 
document have been received by the Board.



Sec. 307.10  Period of license.

    Each license shall be in effect from the date of execution thereof 
and until 1 year thereafter, unless sooner surrendered or canceled in 
accordance with the foregoing provisions.



Sec. 307.11  Certificates fastened to fabrics.

    Certificates shall be fastened to the woven fabric by wire caught in 
a lead seal disc that shall be impressed and made fast with the hand 
seal press furnished by the Indian Arts and Crafts Board.



Sec. 307.12  Certificates, dating, and signing thereof.

    When the certificate is first affixed the lower of the two spaces 
provided for the purpose shall be signed by the licensee. In the event 
the ultimate retailer of any fabric so marked is not the person who 
originally attached the certificate, that ultimate retailer may sign the 
upper of the two spaces provided for the purpose and detach the original 
signature.

[4 FR 2436, June 17, 1939]



Sec. 307.13  Licensee's responsibility.

    Certificates may be attached only to products which are in the 
ownership or possession of the licensee. Certificates will be 
consecutively numbered and records of the allocation of such 
certificates will be maintained by the Indian Arts and Crafts Board. 
Each licensee will be held responsible for the proper use of such 
certificates and of the Government hand seal press furnished to such 
licensee.



PART 308_REGULATIONS FOR USE OF CERTIFICATES OF THE INDIAN ARTS AND CRAFTS 
BOARD TO BE ATTACHED TO THEIR TRADE-MARKS BY INDIAN ENTERPRISES CONCERNED 
WITH THE PRODUCTION AND SALE OF GENUINE HANDICRAFTS--Table of Contents




Sec.
308.1 Penalties.
308.2 Certificates of genuineness to be attached to trade-marks.
308.3 Conditions of eligibility to attach certificates.
308.4 Revocation of privilege of attaching certificates.

    Authority: Sec. 3, 49 Stat. 892 (25 U.S.C. 305b). Interpret or apply 
sec. 2, 49 Stat. 891, as amended (25 U.S.C. 305a).

    Source: 8 FR 8736, June 26, 1943, unless otherwise noted.



Sec. 308.1  Penalties.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is subject to the criminal penalties 
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C. 305d), 
which provides:

    Any person who shall counterfeit or colorably imitate any Government 
trade-mark used or devised by the Board as provided in section 305a of 
this chapter, or shall, except as authorized by the Board, affix any 
such Government trade-mark, or shall knowingly, willfully, and corruptly 
affix any reproduction, counterfeit, copy, or colorable imitation 
thereof upon any products Indian or otherwise, or to any labels, signs, 
prints, packages, wrappers, or receptacles intended to be used upon or 
in connection with the sale of such products, or any person who shall 
knowingly make any false statement for the purpose of obtaining the use 
of any such Government trade-mark, shall be guilty of a misdemeanor, and 
upon conviction thereof shall be enjoined from further carrying on the 
act or acts complained of and shall be subject to a fine not exceeding 
$2,000, or imprisonment not exceeding six months, or both such fine and 
imprisonment.

[[Page 831]]



Sec. 308.2  Certificates of genuineness to be attached to trade-marks.

    (a) To insure the widest distribution of genuine Indian handicraft 
products, and to protect the various enterprises organized by individual 
Indian craftsmen, or by groups of Indian craftsmen, for the purpose of 
the production and sale of such handicraft products, the Indian Arts and 
Crafts Board offers each such enterprise the privilege of attaching to 
its trademark a certificate declaring that it is recognized by the 
Indian Arts and Crafts Board as an Indian enterprise dealing in genuine 
Indian-made handicraft products, and that its trade-mark has the 
approval of the Board.
    (b) The certificate shall consist of a border around the trade-mark 
bearing the words ``Certified Indian Enterprise Genuine Handicrafts, 
U.S. Indian Arts and Crafts Board, Department of the Interior,'' and 
these words may be used wherever the trade-mark appears.



Sec. 308.3  Conditions of eligibility to attach certificates.

    To be eligible to attach the certificate, an enterprise must meet 
the following conditions:
    (a) It must offer for sale only Indian-made genuine handicraft 
products, i.e., objects produced by Indian craftsmen with the help of 
only such devices as allow the manual skill of the maker to condition 
the shape and design of each individual product.
    (b) It must be entirely Indian owned and organized either by 
individual Indians or by groups of Indians.
    (c) It must agree to apply certificates of genuineness only to such 
products as meet the standards of quality prescribed by the Indian Arts 
and Crafts Board at the time of the application of the enterprise for 
the privilege of attaching the certificate.
    (d) It must agree to obtain the approval of the Indian Arts and 
Crafts Board as to the manner of production of the certificates.



Sec. 308.4  Revocation of privilege of attaching certificates.

    If an enterprise, after securing the privilege of attaching the 
certificates, should fail to meet the above-named conditions, the Board 
reserves the right to revoke the privilege.



PART 309_PROTECTION OF INDIAN ARTS AND CRAFTS PRODUCTS--Table of Contents




Sec.
309.1 How do the regulations in this part carry out the Indian Arts and 
          Crafts Act of 1990?
309.2 What are the key definitions for purposes of the Act?
309.6 When does a commercial product become an Indian product?
309.7 How should a seller disclose the nature and degree of Indian labor 
          when selling, offering, or displaying art and craft work for 
          sale?
309.8 For marketing purposes, what is the recommended method of 
          identifying authentic Indian products?
309.9 When can non-Indians make and sell products in the style of Indian 
          arts and crafts?
309.10 What are some sample categories and examples of Indian products?
309.11 What are examples of jewelry that are Indian products?
309.12 What are examples of basketry that are Indian products?
309.13 What are examples of other weaving and textiles that are Indian 
          products?
309.14 What are examples of beadwork, quillwork, and moose hair tufting 
          that are Indian products?
309.15 What are examples of apparel that are Indian products?
309.16 What are examples of regalia that are Indian products?
309.17 What are examples of woodwork that are Indian products?
309.18 What are examples of hide, leatherwork, and fur that are Indian 
          products?
309.19 What are examples of pottery and ceramics that are Indian 
          products?
309.20 What are examples of sculpture, carving, and pipes that are 
          Indian products?
309.21 What are examples of dolls and toys that are Indian products?
309.22 What are examples of painting and other fine art forms that are 
          Indian products?
309.23 Does this part apply to products made before 1935?
309.24 How will statements about Indian origin of art or craft products 
          be interpreted?
309.25 How can an individual be certified as an Indian artisan?
309.26 What penalties apply?
309.27 How are complaints filed?

    Authority: 18 U.S.C. 1159, 25 U.S.C. 305 et seq.

    Source: 61 FR 54555, Oct. 21, 1996, unless otherwise noted.

[[Page 832]]



Sec. 309.1  How do the regulations in this part carry out the Indian 
Arts and Crafts Act of 1990?

    These regulations define the nature and Indian origin of products 
protected by the Indian Arts and Crafts Act of 1990 (18 U.S.C. 1159, 25 
U.S.C. 305 et seq.) from false representations, and specify how the 
Indian Arts and Crafts Board will interpret certain conduct for 
enforcement purposes. The Act makes it unlawful to offer or display for 
sale or sell any good in a manner that falsely suggests it is Indian 
produced, an Indian product, or the product of a particular Indian, or 
Indian tribe, or Indian arts and crafts organization resident within the 
United States.



Sec. 309.2  What are the key definitions for purposes of the Act?

    (a) Indian as applied to an individual means a person who is a 
member of an Indian tribe or for purposes of this part is certified by 
an Indian tribe as a non-member Indian artisan (in accordance with the 
provisions of Sec. 309.4).
    (b) Indian artisan means an individual who is certified by an Indian 
tribe as a non-member Indian artisan.
    (c) Indian arts and crafts organization means any legally 
established arts and crafts marketing organization composed of members 
of Indian tribes.
    (d) Indian product--(1) In general. The term ``Indian product'' 
means any art or craft product made by an Indian. For this purpose, the 
term ``made by an Indian'' means that an Indian has provided the 
artistic or craft work labor necessary to implement an artistic design 
through a substantial transformation of materials to produce the art or 
craft work. This may include more than one Indian working together. The 
labor component of the product, however, must be entirely Indian for the 
Indian art or craft object to be an ``Indian product.''
    (2) Illustrations. The term ``Indian product'' includes, but is not 
limited to:
    (i) Art made by an Indian that is in a traditional or non-
traditional style or medium;
    (ii) Craft work made by an Indian that is in a traditional or non-
traditional style or medium;
    (iii) Handcraft made by an Indian, i.e. an object created with the 
help of only such devices as allow the manual skill of the maker to 
condition the shape and design of each individual product.
    (3) Examples of non-qualifying products. An ``Indian product'' under 
the Act does not include any of the following, for example:
    (i) A product in the style of an Indian art or craft product made by 
non-Indian labor;
    (ii) A product in the style of an Indian art or craft product that 
is designed by an Indian but produced by non-Indian labor;
    (iii) A product in the style of an Indian art or craft product that 
is assembled from a kit;
    (iv) A product in the style of an Indian art or craft product 
originating from a commercial product, without substantial 
transformation provided by Indian artistic or craft work labor;
    (v) Industrial products, which for this purpose are defined as goods 
that have an exclusively functional purpose, do not serve as a 
traditional artistic medium, and that do not lend themselves to Indian 
embellishment, such as appliances and vehicles. An industrial product 
may not become an Indian product.
    (vi) A product in the style of an Indian art or craft product that 
is produced in an assembly line or related production line process using 
multiple workers not all whom are Indians. For example, if twenty people 
make up the labor to create the product(s), and one person is not 
Indian, the product is not an ``Indian product.''
    (e) Indian tribe means--
    (1) Any Indian tribe, band, nation, Alaska Native village, or any 
organized group or community which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; or
    (2) Any Indian group that has been formally recognized as an Indian 
tribe by a State legislature or by a State commission or similar 
organization legislatively vested with State tribal recognition 
authority.
    (f) Product of a particular Indian tribe or Indian arts and crafts 
organization means that the origin of a product is identified as a named 
Indian tribe or

[[Page 833]]

named Indian arts and crafts organization.

[61 FR 54555, Oct. 21, 1996; 61 FR 57002, Nov. 5, 1996, as amended at 68 
FR 35169, June 12, 2003]



Sec. 309.6  When does a commercial product become an Indian product?

    In addressing Indian embellishments to originally commercial 
products, the Indian labor expended to add art or craft work to those 
objects must be sufficient to substantially transform the qualities and 
appearance of the original commercial item. ``Commercial products,'' 
under this part, are consumer goods designed for profit and mass 
distribution that lend themselves to Indian embellishment, for example 
clothing and accessories. Through substantial transformation due to 
Indian labor, a product changes from a commercial product to an Indian 
product. Examples of formerly commercial products that become Indian 
products include tennis shoes to which an Indian applies beadwork and 
denim jackets to which an Indian applies ribbon appliqu[eacute]s.

[68 FR 35170, June 12, 2003]



Sec. 309.7  How should a seller disclose the nature and degree of Indian 
labor when selling, offering, or displaying art and craft work for sale?

    The Indian Arts and Crafts Act is a truth-in-marketing law. Those 
who produce and market art and craft work should honestly represent and 
clarify the degree of Indian involvement in the production of the art 
and craft work when it is sold, displayed or offered for sale. The 
following guidelines illustrate the way in which art and craft work may 
be characterized for marketing purposes and gives examples of products 
that may be marketed as Indian products.

------------------------------------------------------------------------
                 If . . .                            then . . .
------------------------------------------------------------------------
(a) An Indian conceives, designs, and       it is an ``Indian product.''
 makes the art or craft work.
(b) An Indian produces a product that is    it can be marketed as such
 ``handcrafted,'' as explained in            and it meets the definition
 309.3(d)(iii).                              of ``Indian product.''
(c) An Indian makes an art or craft work    it is ``Indian made'' and
 using some machine made parts.              meets the definition of
                                             ``Indian product.''
(d) An Indian designs a product, such as a  it does not meet the
 bracelet, which is then produced by non-    definition of ``Indian
 Indians.                                    product'' under the Act.
(e) A product, such as jewelry, is made     it does not meet the
 with non-artistic Indian labor, from        definition of ``Indian
 assembled or ``fit together parts''.        product'' under the Act.\1\
(f) A product in the style of an Indian     it does not meet the
 product is assembled by non-Indian labor    definition of ``Indian
 from a kit.                                 product'' under the Act.
(g) A product is in the style of an Indian  it does not meet the
 art or craft product, but not made by an    definition of ``Indian
 Indian.                                     product'' under the Act.
(h) An Indian and a non-Indian jointly      less than all of the labor
 undertake the art or craft work to          is Indian and hence it does
 produce an art or craft product, for        not meet the definition of
 example a concho belt.                      ``Indian product'' under
                                             the Act.\2\
------------------------------------------------------------------------
\1\ For example, a necklace strung with overseas manufactured fetishes
  or heshi. If an Indian assembled the necklace, in keeping with the
  truth-in-marketing focus of the Act, it can be marketed as ``Indian
  assembled.'' It does not meet the definition of ``Indian product''
  under the Act. Similarly, if a product, such as a dream catcher is
  assembled by an Indian from a kit, it can be marketed as ``Indian
  assembled.'' It does not meet the definition of ``Indian product''
  under the Act.
\2\ In order to be an ``Indian product,'' the labor component of the
  product must be entirely Indian. In keeping with this truth-in-
  marketing law, a collaborative work should be marketed as such.
  Therefore, it should be marketed as produced by ``X'' (name of artist
  or artisan), ``Y'' (Tribe of individual's enrollment) or (name of
  Tribe providing official written certification the individual is a non-
  member Indian artisan and date upon which such certification was
  issued by the Tribe), and ``Z'' (name of artist or artisan with no
  Tribe listed) to avoid providing false suggestions to consumers.


[68 FR 35170, June 12, 2003]



Sec. 309.8  For marketing purposes, what is the recommended method of 
identifying authentic Indian products?

    (a) The recommended method of marketing authentic Indian products is 
to include the name of the artist or artisan, the name of the Tribe in 
which the artist or artisan is enrolled, and the individual's Tribal 
enrollment number. If the individual is a certified non-member Indian 
artisan, rather than an enrolled Tribal member, the product 
identification should include the name of the Tribe providing official 
written certification that the individual is a non-member Indian artisan 
and the date upon which such certification was issued by the Tribe. In 
order for an individual to be certified by an Indian Tribe as a non-
member Indian artisan, the individual must be of Indian lineage of one 
or more members of such Indian Tribe and the certification must be 
issued in writing by the governing

[[Page 834]]

body of an Indian Tribe or by a certifying body delegated this function 
by the governing body of the Indian Tribe.
    (b) For example, the Indian product should include a label, hangtag, 
provenance card, or similar identification that includes W (name of the 
artist or artisan), and X (name of the Tribe in which the individual is 
enrolled) and Y (individual's Tribal enrollment number), or a statement 
that the individual is a certified non-member Indian artisan of Z (name 
of the Tribe providing certification and the date upon which the 
certification was issued by the Tribe).

[68 FR 35170, June 12, 2003]



Sec. 309.9  When can non-Indians make and sell products in the style 
of Indian arts and crafts?

    A non-Indian can make and sell products in the style of Indian art 
or craft products only if the non-Indian or other seller does not 
falsely suggest to consumers that the products have been made by an 
Indian.

[68 FR 35170, June 12, 2003]



Sec. 309.10  What are some sample categories and examples of Indian 
products?

    What constitutes an Indian product is potentially very broad. 
However, to provide guidance to persons who produce, market, or purchase 
items marketed as Indian products, Sec. Sec. 309.11 through 309.22 
contain a sample listing of ``specific examples'' of objects that meet 
the definition of Indian products. There is some repetition, due to the 
interrelated nature of many Indian products when made by Indian artistic 
labor. The lists in these sections contain examples and are not intended 
to be all-inclusive. Additionally, although the Indian Arts and Crafts 
Act of 1990 and the Indian Arts and Crafts Enforcement Act of 2000 do 
not address materials used in Indian products, some materials are 
included for their descriptive nature only. This is not intended to 
restrict materials used or to exclude materials not listed.

[68 FR 35170, June 12, 2003]



Sec. 309.11  What are examples of jewelry that are Indian products?

    (a) Jewelry and related accessories made by an Indian using a wide 
variety of media, including, but not limited to, silver, gold, 
turquoise, coral, lapis, jet, nickel silver, glass bead, copper, wood, 
shell, walrus ivory, whale baleen, bone, horn, horsehair, quill, seed, 
and berry, are Indian products.
    (b) Specific examples include, but are not limited to: ivory and 
baleen scrimshaw bracelets, abalone shell necklaces, nickel silver 
scissortail pendants, silver sand cast bracelets, silver overlay bolos, 
turquoise channel inlay gold rings, cut glass bead rosette earrings, 
wooden horse stick pins, and medicine wheel quilled medallions.

[68 FR 35170, June 12, 2003]



Sec. 309.12  What are examples of basketry that are Indian products?

    (a) Basketry and related weavings made by an Indian using a wide 
variety of media, including, but not limited to, birchbark, black ash, 
brown ash, red cedar, yellow cedar, alder, vine maple, willow, palmetto, 
honeysuckle, river cane, oak, buck brush, sumac, dogwood, cattail, reed, 
raffia, horsehair, pine needle, spruce root, rye grass, sweet grass, 
yucca, bear grass, beach grass, rabbit brush, fiber, maidenhair fern, 
whale baleen, seal gut, feathers, shell, devil's claw, and porcupine 
quill, are Indian products.
    (b) Specific examples include, but are not limited to: double weave 
river cane baskets, yucca winnowing trays, willow burden baskets, 
honeysuckle sewing baskets, black ash picnic baskets, cedar capes and 
dresses, pine needle/raffia effigy baskets, oak splint and braided sweet 
grass fancy baskets, birchbark containers, baleen baskets, rye grass 
dance fans, brown ash strawberry baskets, sumac wedding baskets, cedar 
hats, fiber basket hats, yucca wicker basketry plaques, and spruce root 
tobacco pouches.

[68 FR 35170, June 12, 2003]



Sec. 309.13  What are examples of other weaving and textiles that are 
Indian products?

    (a) Weavings and textiles made by an Indian using a wide variety of 
media,

[[Page 835]]

including, but not limited to, cornhusk, raffia, tule, horsehair, 
cotton, wool, fiber, linen, rabbit skin, feather, bison fur, and qiviut 
(musk ox) wool, are Indian products.
    (b) Specific examples include, but are not limited to: corn husk 
bags, twined yarn bags, cotton mantas, willow cradle boards, horsehair 
hatbands, Chiefs Blankets, Two Grey Hills rugs, horse blankets, finger 
woven sashes, brocade table runners, star quilts, pictorial 
appliqu[eacute] wall hangings, fiber woven bags, embroidered dance 
shawls, rabbit skin blankets, and feather blankets.

[68 FR 35170, June 12, 2003]



Sec. 309.14  What are examples of beadwork, quillwork, and moose hair 
tufting that are Indian products?

    (a) Beadwork, quillwork, and moose hair tufting made by an Indian to 
decorate a wide variety of materials, including, but not limited to, 
bottles, baskets, bags, pouches, and other containers; belts, buckles, 
jewelry, hatbands, hair clips, barrettes, bolos, and other accessories; 
moccasins, vests, jackets, and other articles of clothing; and dolls and 
other toys and collectibles, are Indian products.
    (b) Specific examples include, but are not limited to: quilled pipe 
stems, loom beaded belts, pictorial bags adorned with cut glass beads, 
deer skin moccasins decorated with moose hair tufting, beaded miniature 
dolls, and quilled and beaded amulets.

[68 FR 35170, June 12, 2003]



Sec. 309.15  What are examples of apparel that are Indian products?

    (a) Apparel made or substantially decorated by an Indian, including, 
but not limited to, parkas, jackets, coats, moccasins, boots, slippers, 
mukluks, mittens, gloves, gauntlets, dresses, and shirts, are Indian 
products.
    (b) Specific examples include, but are not limited to: seal skin 
parkas, ribbon appliqu[eacute] dance shawls, smoked moose hide slippers, 
deer skin boots, patchwork jackets, calico ribbon shirts, wing dresses, 
and buckskin shirts.

[68 FR 35170, June 12, 2003]



Sec. 309.16  What are examples of regalia that are Indian products?

    (a) Regalia are ceremonial clothing, modern items with a traditional 
theme, and accessories with historical significance made or 
significantly decorated by an Indian, including, but not limited to, 
that worn to perform traditional dances, participate in traditional 
socials, used for dance competitions, and worn on special occasions of 
tribal significance. If these items are made or significantly decorated 
by an Indian, they are Indian products.
    (b) Specific examples include, but are not limited to: hide 
leggings, buckskin dresses, breech cloths, dance shawls, frontlets, 
shell dresses, button blankets, feather bustles, porcupine roaches, 
beaded pipe bags, nickel silver stamped armbands, quilled breast plates, 
coup sticks, horse sticks, shields, headdresses, dance fans, and 
rattles.

[68 FR 35170, June 12, 2003]



Sec. 309.17  What are examples of woodwork that are Indian products?

    (a) Woodwork items made by an Indian, including, but not limited to, 
sculpture, drums, furniture, containers, hats, and masks, are Indian 
products.
    (b) Specific examples include, but are not limited to: hand drums, 
totem poles, animal figurines, folk carvings, kachinas, embellished long 
house posts, clan house carved doors, chairs, relief panels, bentwood 
boxes, snow goggles, red and yellow cedar seagoing canoe paddles, 
hunting hats, spirit masks, bows and arrows, atlatls, redwood dug out 
canoes, war clubs, flutes, dance sticks, talking sticks, shaman staffs, 
cradles, decoys, spiral pipe stems, violins, Native American Church 
boxes, and maple ladles, spoons, and soup bowls.

[68 FR 35170, June 12, 2003]



Sec. 309.18  What are examples of hide, leatherwork, and fur that are 
Indian products?

    (a) Hide, leatherwork, and fur made or significantly decorated by an 
Indian, including, but not limited to, parfleches, tipis, horse 
trappings and

[[Page 836]]

tack, pouches, bags, and hide paintings, are Indian products.
    (b) Specific examples include, but are not limited to: narrative 
painted hides, martingales, saddles, bonnet cases, drapes, quirts, 
forelocks, rosettes, horse masks, bridles, head stalls, cinches, saddle 
bags, side drops, harnesses, arm bands, belts, and other hand crafted 
items with studs and tooling.

[68 FR 35170, June 12, 2003]



Sec. 309.19  What are examples of pottery and ceramics that are Indian 
products?

    (a) Pottery, ceramics, and related arts and crafts items made or 
significantly decorated by an Indian, including, but not limited to, a 
broad spectrum of clays and ceramic material, are Indian products.
    (b) Specific examples include, but are not limited to: ollas, pitch 
vessels, pipes, raku bowls, pitchers, canteens, effigy pots, wedding 
vases, micaceous bean pots, seed pots, masks, incised bowls, blackware 
plates, redware bowls, polychrome vases, and storytellers and other 
figures.

[68 FR 35170, June 12, 2003]



Sec. 309.20  What are examples of sculpture, carving, and pipes that 
are Indian products?

    (a) Sculpture, carving, and pipes made by an Indian, including, but 
not limited to, wood, soapstone, alabaster, pipestone, argillite, 
turquoise, ivory, baleen, bone, antler, and shell, are Indian products.
    (b) Specific examples include, but are not limited to: kachina 
dolls, fetishes, animal figurines, pipestone pipes, moose antler combs, 
argillite bowls, ivory cribbage boards, whalebone masks, elk horn 
purses, and clamshell gorgets.

[68 FR 35170, June 12, 2003]



Sec. 309.21  What are examples of dolls and toys that are Indian 
products?

    Dolls, toys, and related items made by an Indian, including, but not 
limited to, no face dolls, corn husk dolls, patchwork and palmetto 
dolls, reindeer horn dolls, lacrosse sticks, stick game articles, 
gambling sticks, gaming dice, miniature cradle boards, and yo-yos, are 
Indian products.

[68 FR 35170, June 12, 2003]



Sec. 309.22  What are examples of painting and other fine art forms 
that are Indian products?

    Painting and other fine art forms made by an Indian including but, 
not limited to, works on canvas, photography, sand painting, mural, 
computer generated art, graphic art, video art work, printmaking, 
drawing, bronze casting, glasswork, and art forms to be developed in the 
future, are Indian products.

[68 FR 35170, June 12, 2003]



Sec. 309.23  Does this part apply to products made before 1935?

    The provisions of this part do not apply to any art or craft 
products made before 1935.

[68 FR 35170, June 12, 2003]



Sec. 309.24  How will statements about Indian origin of art or craft 
products be interpreted?

    (a) In general. The unqualified use of the term ``Indian'' or of the 
term ``Native American'' or the unqualified use of the name of an Indian 
tribe, in connection with an art or craft product, is interpreted to 
mean for purposes of this part that--
    (1) The maker is a member of an Indian tribe, is certified by an 
Indian tribe as a non-member Indian artisan, or is a member of the 
particular Indian tribe named; and
    (2) The art or craft product is an Indian product.
    (b) Products of Indians of foreign tribes--(1) In general. The 
unqualified use of the term ``Indian'' or of the term ``Native 
American'' or the unqualified use of the name of a foreign tribe, in 
connection with an art or craft product, regardless of where it is 
produced and regardless of any country-of-origin marking on the product, 
is interpreted to mean for purposes of this part that--
    (i) The maker is a member of an Indian tribe, is certified by an 
Indian tribe as a non-member Indian artisan, or is a member of the 
particular Indian tribe named;

[[Page 837]]

    (ii) The tribe is resident in the United States; and
    (iii) The art or craft product is an Indian product.
    (2) Exception where country of origin is disclosed. Paragraph (b) of 
this section does not apply to any art or craft for which the name of 
the foreign country of tribal ancestry is clearly disclosed in 
conjunction with marketing of the product.
    Example. X is a lineal descendant of a member of Indian Tribe A. 
However, X is not a member of Indian Tribe A, nor is X certified by 
Indian Tribe A as a non-member Indian artisan. X may not be described in 
connection with the marketing of an art or craft product made by X as an 
Indian, a Native American, a member of an Indian tribe, a member of 
Tribe A, or as a non-member Indian artisan of an Indian tribe. However, 
the true statement may be used that X is of Indian descent, Native 
American descent, or Tribe A descent.

[61 FR 54555, Oct. 21, 1996; 61 FR 57002, Nov. 5, 1996. Redesignated at 
68 FR 35170, June 12, 2003]



Sec. 309.25  How can an individual be certified as an Indian artisan?

    (a) In order for an individual to be certified by an Indian tribe as 
a non-member Indian artisan for purposes of this part--
    (1) The individual must be of Indian lineage of one or more members 
of such Indian tribe; and
    (2) The certification must be documented in writing by the governing 
body of an Indian tribe or by a certifying body delegated this function 
by the governing body of the Indian tribe.
    (b) As provided in section 107 of the Indian Arts and Crafts Act of 
1990, Public Law 101-644, a tribe may not impose a fee for certifying an 
Indian artisan.

[61 FR 54555, Oct. 21, 1996. Redesignated at 68 FR 35170, June 12, 2003]



Sec. 309.26  What penalties apply?

    A person who offers or displays for sale or sells a good, with or 
without a Government trademark, in a manner that falsely suggests it is 
Indian produced, an Indian product, or the product of a particular 
Indian or Indian tribe or Indian arts and crafts organization, resident 
within the United States:
    (a) Is subject to the criminal penalties specified in section 1159, 
title 18, United States Code; and
    (b) Is subject to the civil penalties specified in section 305e, 
title 25, United States Code.

[61 FR 54555, Oct. 21, 1996. Redesignated at 68 FR 35170, June 12, 2003]



Sec. 309.27  How are complaints filed?

    Complaints about protected products alleged to be offered or 
displayed for sale or sold in a manner that falsely suggests they are 
Indian products should be made in writing and addressed to the Director, 
Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department of the 
Interior, 1849 C Street, NW, Washington, DC 20240.

[61 FR 54555, Oct. 21, 1996. Redesignated at 68 FR 35170, June 12, 2003]



PART 310_USE OF GOVERNMENT MARKS OF GENUINENESS FOR ALASKAN INDIAN AND 
ALASKAN ESKIMO HAND-MADE PRODUCTS--Table of Contents




Sec.
310.1 Penalties.

                             Alaskan Indian

310.2 Certificates of genuineness, authority to affix.
310.3 Conditions.
310.4 Application of mark.

                             Alaskan Eskimo

310.5 Certificates of genuineness, authority to affix.
310.6 Conditions.
310.7 Application of mark.

    Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply 
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.

    Source: 4 FR 515, Feb. 4, 1939, unless otherwise noted.



Sec. 310.1  Penalties.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is subject to the criminal penalties 
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C., 305d), 
which provides:

    Any person who shall counterfeit or colorably imitate any Government 
trade-

[[Page 838]]

mark used or devised by the Board as provided in section 305a of this 
chapter, or shall, except as authorized by the Board, affix any such 
Government trade-mark, or shall knowingly, willfully, and corruptly 
affix any reproduction, counterfeit, copy, or colorable imitation 
thereof upon any products, Indian or otherwise, or to any labels, signs, 
prints, packages, wrappers, or receptacles intended to be used upon or 
in connection with the sale of such products, or any person who shall 
knowingly make any false statement for the purpose of obtaining the use 
of any such Government trade-mark, shall be guilty of a misdemeanor, and 
upon conviction thereof shall be enjoined from further carrying on the 
act or acts complained of and shall be subject to a fine not exceeding 
$2,000 or imprisonment not exceeding six months or both such fine and 
imprisonment.

                             Alaskan Indian



Sec. 310.2  Certificates of genuineness, authority to affix.

    Government marks of genuineness for Alaskan Indian hand-made 
products may be affixed to articles meeting the conditions specified in 
Sec. 310.3 by persons duly authorized by the Indian Arts and Crafts 
Board to affix such marks.



Sec. 310.3  Conditions.

    No article may carry the Government mark of genuineness for Alaskan 
Indian hand-made products unless all of the following conditions are 
met:
    (a) The article is hand-made by an Alaskan Indian.
    (b) The article is hand-made under conditions not resembling a 
workshop or factory system.
    (c) All raw materials used in carving, basketry and mat making, and 
all furs and hides used in the manufacture of hand-made artifacts, must 
be of native origin.



Sec. 310.4  Application of mark.

    All marks shall be applied to the article with a rubber stamp to be 
furnished by the Indian Arts and Crafts Board. Each stamp shall bear a 
distinctive letter and may be used only by the person to whom it has 
been issued. With the addition of the distinctive letter, each stamp 
shall read:

                                   ( )

                                Hand-Made

                             Alaskan Indian

                                   U S

                       Indian Arts & Crafts Board

                                   I D

or, in the case of articles too small to carry this stamp:

                                   ( )

                                 U S I D

                             Alaskan Indian

    On baskets and fabrics which offer no surface for the application of 
such a rubber stamp, the stamp shall be placed on a paper tag attached 
to the article by a wire caught in a lead seal disc that shall be 
impressed and made fast with a hand seal press furnished by the Indian 
Arts and Crafts Board.

                             Alaskan Eskimo



Sec. 310.5  Certificates of genuineness, authority to affix.

    Government marks of genuineness for Alaskan Eskimo hand-made 
products may be affixed to articles meeting the conditions specified in 
Sec. 310.6 by persons duly authorized by the Indian Arts and Crafts 
Board to affix such marks.



Sec. 310.6  Conditions.

    No article may carry the Government mark of genuineness for Alaskan 
Eskimo hand-made products unless all of the following conditions are 
met:
    (a) The article is hand-made by an Alaskan Eskimo.
    (b) The article is hand-made under conditions not resembling a 
workshop or factory system.
    (c) All raw materials used in the making of the articles are of 
native origin except:
    (1) Commercial fasteners.
    (2) Calfskin trimmings for decorative borders on parkas and mukluks.
    (3) Tops for mukluks made of commercial fabric.
    (4) Commercially made draw-cords for mukluks.

[[Page 839]]

    (5) Commercial fabrics for parka linings.
    (6) Sewing thread and glass beads.



Sec. 310.7  Application of mark.

    All marks shall be applied to the article with a rubber stamp to be 
furnished by the Indian Arts and Crafts Board. Each stamp shall bear a 
distinctive letter and may be used only by the person to whom it has 
been issued. With the addition of the distinctive letter, each stamp 
shall read:

                                   ( )

                                Hand-Made

                             Alaskan Eskimo

                                   U S

                       Indian Arts & Crafts Board

                                   I D

or, in the case of articles too small to carry this stamp:

                                   ( )

                                 U S I D

                             Alaskan Eskimo

    On baskets and fabrics which offer no surface for the application of 
such a rubber stamp, the stamp shall be placed on a paper tag attached 
to the article by a wire caught in a lead seal disc that shall be 
impressed and made fast with a hand seal press furnished by the Indian 
Arts and Crafts Board.

[[Page 841]]



   CHAPTER III--NATIONAL INDIAN GAMING COMMISSION, DEPARTMENT OF THE 
                                INTERIOR




  --------------------------------------------------------------------

                    SUBCHAPTER A--GENERAL PROVISIONS
Part                                                                Page
501             Purpose and scope of this chapter...........         843
502             Definitions of this chapter.................         843
503             Commission information collection 
                    requirements under the Paperwork 
                    Reduction Act: OMB control numbers and 
                    expiration dates........................         846
504-512         [Reserved]
513             Debt Collection.............................         847
514             Fees........................................         854
515             Privacy Act procedures......................         857
516             Testimony of commissioners and employees and 
                    former commissioners and former 
                    employees respecting official duties; 
                    response to subpoena....................         860
517             Freedom of Information Act procedures.......         862
518             Self regulation of class II gaming..........         868
519             Service.....................................         874
    SUBCHAPTER B--APPROVAL OF CLASS II AND CLASS III ORDINANCES AND 
                               RESOLUTIONS
520-521         [Reserved]
522             Submission of gaming ordinance or resolution         876
523             Review and approval of existing ordinances 
                    or resolutions..........................         878
524             Appeals.....................................         879
525-529         [Reserved]

              SUBCHAPTER C--MANAGEMENT CONTRACT PROVISIONS
530             [Reserved]
531             Content of management contracts.............         881
532             [Reserved]
533             Approval of management contracts............         882
534             [Reserved]
535             Post-approval procedures....................         885
536             [Reserved]

[[Page 842]]

537             Background investigations for persons or 
                    entities with a financial interest in, 
                    or having management responsibility for, 
                    a management contract...................         886
538             [Reserved]
539             Appeals.....................................         889
                      SUBCHAPTER D--HUMAN SERVICES
540-541         [Reserved]
542             Minimum internal control standards..........         890
543-549         [Reserved]

  SUBCHAPTER E--GAMING LICENSES AND BACKGROUND INVESTIGATIONS FOR KEY 
               EMPLOYEES AND PRIMARY MANAGEMENT OFFICIALS
550-555         [Reserved]
556             Background investigations for primary 
                    management officials and key employees..         978
557             [Reserved]
558             Gaming licenses for key employees and 
                    primary management officials............         980
559             [Reserved]

                         SUBCHAPTER F [RESERVED]
560-569         [Reserved]

           SUBCHAPTER G--COMPLIANCE AND ENFORCEMENT PROVISIONS
570             [Reserved]
571             Monitoring and investigations...............         982
572             [Reserved]
573             Enforcement.................................         984
574             [Reserved]
575             Civil fines.................................         986
576             [Reserved]
577             Appeals before the Commission...............         987
578-579         [Reserved]

                         SUBCHAPTER H [RESERVED]
580-589         [Reserved]

                         SUBCHAPTER I [RESERVED]
590-599         [Reserved]

[[Page 843]]



                     SUBCHAPTER A_GENERAL PROVISIONS





PART 501_PURPOSE AND SCOPE OF THIS CHAPTER--Table of Contents




Sec.
501.1 Purpose.
501.2 Scope.

    Authority: 25 U.S.C. 2706, 2710.

    Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.



Sec. 501.1  Purpose.

    This chapter implements the Indian Gaming Regulatory Act (Pub. L. 
100-497, 102 Stat. 2467).



Sec. 501.2  Scope.

    (a) Tribes and other operators of class II and class III gaming 
operations on Indian lands shall conduct gaming operations according to 
the requirements of the Indian Gaming Regulatory Act, the regulations of 
this chapter, tribal law and, where applicable, the requirements of a 
compact or procedures prescribed by the Secretary under 25 U.S.C. 
2710(d).
    (b) Class I gaming on Indian lands is within the exclusive 
jurisdiction of the Indian tribes and shall not be subject to the 
provisions of the Indian Gaming Regulatory Act or this chapter.
    (c) Class II gaming on Indian lands shall continue to be within the 
jurisdiction of an Indian tribe, but shall be subject to the provisions 
of the Indian Gaming Regulatory Act and this chapter.
    (d) Nothing in the Indian Gaming Regulatory Act or this chapter 
shall impair the right of an Indian tribe to regulate class III gaming 
on its Indian lands concurrently with a State, except to the extent that 
such regulation is inconsistent with, or less stringent than, the State 
laws and regulations made applicable by a Tribal-State compact that is 
entered into by an Indian tribe under the Indian Gaming Regulatory Act 
and that is in effect.



PART 502_DEFINITIONS OF THIS CHAPTER--Table of Contents




Sec.
502.1 Chairman.
502.2 Class I gaming.
502.3 Class II gaming.
502.4 Class III gaming.
502.5 Collateral agreement.
502.6 Commission.
502.7 Electronic, computer or other technologic aid.
502.8 Electronic or electromechanical facsimile.
502.9 Other games similar to bingo.
502.10 Gaming operation.
502.11 House banking game.
502.12 Indian lands.
502.13 Indian tribe.
502.14 Key employee.
502.15 Management contract.
502.16 Net revenues.
502.17 Person having a direct or indirect financial interest in a 
          management contract.
502.18 Person having management responsibility for a management 
          contract.
502.19 Primary management official.
502.20 Secretary.
502.21 Tribal-State compact.

    Authority: 25 U.S.C. 2701 et seq.

    Source: 57 FR 12392, Apr. 9, 1992, unless otherwise noted.



Sec. 502.1  Chairman.

    Chairman means the Chairman of the National Indian Gaming Commission 
or his or her designee.



Sec. 502.2  Class I gaming.

    Class I gaming means:
    (a) Social games played solely for prizes of minimal value; or
    (b) Traditional forms of Indian gaming when played by individuals in 
connection with tribal ceremonies or celebrations.



Sec. 502.3  Class II gaming.

    Class II gaming means:
    (a) Bingo or lotto (whether or not electronic, computer, or other 
technologic aids are used) when players:
    (1) Play for prizes with cards bearing numbers or other 
designations;
    (2) Cover numbers or designations when object, similarly numbered or 
designated, are drawn or electronically determined; and
    (3) Win the game by being the first person to cover a designated 
pattern on such cards;

[[Page 844]]

    (b) If played in the same location as bingo or lotto, pull-tabs, 
punch boards, tip jars, instant bingo, and other games similar to bingo;
    (c) Nonbanking card games that:
    (1) State law explicitly authorizes, or does not explicitly 
prohibit, and are played legally anywhere in the state; and
    (2) Players play in conformity with state laws and regulations 
concerning hours, periods of operation, and limitations on wagers and 
pot sizes;
    (d) Card games played in the states of Michigan, North Dakota, South 
Dakota, or Washington if:
    (1) An Indian tribe actually operates the same card games as played 
on or before May 1, 1988, as determined by the Chairman; and
    (2) The pot and wager limits remain the same as on or before May 1, 
1988, as determined by the Chariman;
    (e) Individually owned class II gaming operations--
    (1) That were operating on September 1, 1986;
    (2) That meet the requirements of 25 U.S.C. 2710(b)(4)(B);
    (3) Where the nature and scope of the game remains as it was on 
October 17, 1988; and
    (4) Where the ownership interest or interests are the same as on 
October 17, 1988.



Sec. 502.4  Class III gaming.

    Class III gaming means all forms of gaming that are not class I 
gaming or class II gaming, including but not limited to:
    (a) Any house banking game, including but not limited to--
    (1) Card games such as baccarat, chemin de fer, blackjack (21), and 
pai gow (if played as house banking games);
    (2) Casino games such as roulette, craps, and keno;
    (b) Any slot machines as defined in 15 U.S.C. 1171(a)(1) and 
electronic or electromechanical facsimiles of any game of chance;
    (c) Any sports betting and parimutuel wagering including but not 
limited to wagering on horse racing, dog racing or jai alai; or
    (d) Lotteries.



Sec. 502.5  Collateral agreement.

    Collateral agreement means any contract, whether or not in writing, 
that is related, either directly or indirectly, to a management 
contract, or to any rights, duties or obligations created between a 
tribe (or any of its members, entities, or organizations) and a 
management contractor or subcontractor (or any person or entity related 
to a management contractor or subcontractor).



Sec. 502.6  Commission.

    Commission means the National Indian Gaming Commission.



Sec. 502.7  Electronic, computer or other technologic aid.

    (a) Electronic, computer or other technologic aid means any machine 
or device that:
    (1) Assists a player or the playing of a game;
    (2) Is not an electronic or electromechanical facsimile; and
    (3) Is operated in accordance with applicable Federal communications 
law.
    (b) Electronic, computer or other technologic aids include, but are 
not limited to, machines or devices that:
    (1) Broaden the participation levels in a common game;
    (2) Facilitate communication between and among gaming sites; or
    (3) Allow a player to play a game with or against other players 
rather than with or against a machine.
    (c) Examples of electronic, computer or other technologic aids 
include pull tab dispensers and/or readers, telephones, cables, 
televisions, screens, satellites, bingo blowers, electronic player 
stations, or electronic cards for participants in bingo games.

[67 FR 41172, June 17, 2002]



Sec. 502.8  Electronic or electromechanical facsimile.

    Electronic or electromechanical facsimile means a game played in an 
electronic or electromechanical format that replicates a game of chance 
by incorporating all of the characteristics of the game, except when, 
for bingo, lotto, and other games similar to bingo, the electronic or 
electromechanical format broadens

[[Page 845]]

participation by allowing multiple players to play with or against each 
other rather than with or against a machine.

[67 FR 41172, June 17, 2002]



Sec. 502.9  Other games similar to bingo.

    Other games similar to bingo means any game played in the same 
location as bingo (as defined in 25 USC 2703(7)(A)(i)) constituting a 
variant on the game of bingo, provided that such game is not house 
banked and permits players to compete against each other for a common 
prize or prizes.

[67 FR 41172, June 17, 2002]



Sec. 502.10  Gaming operation.

    Gaming operation means each economic entity that is licensed by a 
tribe, operates the games, receives the revenues, issues the prizes, and 
pays the expenses. A gaming operation may be operated by a tribe 
directly; by a management contractor; or, under certain conditions, by 
another person or other entity.



Sec. 502.11  House banking game.

    House banking game means any game of chance that is played with the 
house as a participant in the game, where the house takes on all 
players, collects from all losers, and pays all winners, and the house 
can win.



Sec. 502.12  Indian lands.

    Indian lands means:
    (a) Land within the limits of an Indian reservation; or
    (b) Land over which an Indian tribe exercises governmental power and 
that is either--
    (1) Held in trust by the United States for the benefit of any Indian 
tribe or individual; or
    (2) Held by an Indian tribe or individual subject to restriction by 
the United States against alienation.



Sec. 502.13  Indian tribe.

    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians that the Secretary recognizes 
as--
    (a) Eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians; and
    (b) Having powers of self-government.



Sec. 502.14  Key employee.

    Key employee means:
    (a) A person who performs one or more of the following functions:
    (1) Bingo caller;
    (2) Counting room supervisor;
    (3) Chief of security;
    (4) Custodian of gaming supplies or cash;
    (5) Floor manager;
    (6) Pit boss;
    (7) Dealer;
    (8) Croupier;
    (9) Approver of credit; or
    (10) Custodian of gambling devices including persons with access to 
cash and accounting records within such devices;
    (b) If not otherwise included, any other person whose total cash 
compensation is in excess of $50,000 per year; or,
    (c) If not otherwise included, the four most highly compensated 
persons in the gaming operation.



Sec. 502.15  Management contract.

    Management contract means any contract, subcontract, or collateral 
agreement between an Indian tribe and a contractor or between a 
contractor and a subcontractor if such contract or agreement provides 
for the management of all or part of a gaming operation.



Sec. 502.16  Net revenues.

    Net revenues means gross gaming revenues of an Indian gaming 
operation less--
    (a) Amounts paid out as, or paid for, prizes; and
    (b) Total gaming-related operating expenses, excluding management 
fees.



Sec. 502.17  Person having a direct or indirect financial interest 
in a management contract.

    Person having a direct or indirect financial interest in a 
management contract means:
    (a) When a person is a party to a management contract, any person 
having a direct financial interest in such management contract;

[[Page 846]]

    (b) When a trust is a party to a management contract, any 
beneficiary or trustee;
    (c) When a partnership is a party to a management contract, any 
partner;
    (d) When a corporation is a party to a management contract, any 
person who is a director or who holds at least 10% of the issued and 
outstanding stock alone or in combination with another stockholder who 
is a spouse, parent, child or sibling; or
    (e) When an entity other than a natural person has an interest in a 
trust, partnership or corporation that has an interest in a management 
contract, all parties of that entity are deemed to be persons having a 
direct financial interest in a management contract.



Sec. 502.18  Person having management responsibility for a management 
contract.

    Person having management responsibility for a management contract 
means the person designated by the management contract as having 
management responsibility for the gaming operation, or a portion 
thereof.



Sec. 502.19  Primary management official.

    Primary management official means:
    (a) The person having management responsibility for a management 
contract;
    (b) Any person who has authority:
    (1) To hire and fire employees; or
    (2) To set up working policy for the gaming operation; or
    (c) The chief financial officer or other person who has financial 
management responsibility.



Sec. 502.20  Secretary.

    Secretary means the Secretary of the Interior.



Sec. 502.21  Tribal-State compact.

    Tribal-State compact means an agreement between a tribe and a state 
about class III gaming under 25 U.S.C. 2710(d).



PART 503_COMMISSION INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS AND EXPIRATION DATES
--Table of Contents




Sec.
503.1 Purpose of this part.
503.2 Display of control numbers and expiration dates.

    Authority: 44 U.S.C. 3501 et seq.

    Source: 58 FR 16495, Mar. 29, 1993, unless otherwise noted.



Sec. 503.1  Purpose of this part.

    This part displays the control numbers and expiration dates assigned 
to information collection requirements of the National Indian Gaming 
Commission (NIGC, or the Commission) assigned by the Director of the 
Office of Management and Budget (OMB) pursuant to the Paperwork 
Reduction Act of 1980, 44 U.S.C. 3501 et seq.



Sec. 503.2  Display of control numbers and expiration dates.

------------------------------------------------------------------------
                                             Currently
                                           assigned OMB     Expiration
 Part or section number of title 25 CFR       control          date
                                              numbers
------------------------------------------------------------------------
Sec.  514.1 (submission of fee reports)       3141-0007         6/30/94
Sec.  515.3 (request for access to            3141-0002        10/31/95
 records)...............................
Sec.  515.5 (request for amendment to         3141-0002        10/31/95
 records)...............................
Sec.  515.7 (appeals)..................       3141-0002        10/31/95
Part 519 (designation of agent for             3141-0003        10/31/95
 service)...............................
Sec.  522.2 (submission and approval of       3141-0003        10/31/95
 new ordinances)........................
Sec.  522.3 (amendment)................       3141-0003        10/31/95
Sec.  522.12 (revocation of class III         3141-0003        10/31/95
 gaming)................................
Sec.  523.2 (submission and approval of       3141-0003        10/31/95
 existing ordinances)...................
Sec.  523.4 (amendment)................       3141-0003        10/31/95
Part 524 (appeals)......................       3141-0003        10/31/95
Sec.  533.3 (approval of management           3141-0004        10/31/95
 contracts).............................
Sec.  533.5 (modifications)............       3141-0004        10/31/95

[[Page 847]]

 
Sec.  535.1 (post-approval procedures).       3141-0004        10/31/95
Part 537 (background investigations)....       3141-0004        10/31/95
Part 539 (appeals)......................       3141-0004        10/31/95
Sec.  556.4 (background investigations        3141-0003        10/31/95
 for class II gaming)...................
Sec.  556.5 (background investigations)       3141-0003        10/31/95
Part 558 (gaming licenses)..............       3141-0003        10/31/95
Sec.  571.7 (maintenance of records)...       3141-0001         7/31/95
Sec.  571.12 (audits)..................       3141-0001         7/31/95
Sec.  571.13 (audits)..................       3141-0001         7/31/95
Sec.  571.14 (audit reconciliation)....       3141-0001         7/31/95
Sec.  575.5 (information to Chairman)..       3141-0001         7/31/95
Sec.  575.6 (penalty reduction)........       3141-0001         7/31/95
Sec.  577.3 (notice of appeal).........       3141-0001         7/31/95
Sec.  577.8 (confidentiality)..........       3141-0001         7/31/95
Sec.  577.12 (intervention)............       3141-0001         7/31/95
Sec.  577.14 (objections)..............       3141-0001         7/31/95
------------------------------------------------------------------------

                        PARTS 504-512 [RESERVED]



PART 513_DEBT COLLECTION--Table of Contents




                      Subpart A_General Provisions

Sec.
513.1 What definitions apply to the regulations in this part?
513.2 What is the Commission's authority to issue these regulations?
513.3 What happens to delinquent debts owed to the Commission?
513.4 What notice will the Commission give to a debtor of the 
          Commission's intent to collect debts?
513.5 What is the Commission's policy on interest, penalty charges, and 
          administrative costs?
513.6 What are the requirements for offset review?
513.7 What is the Commission's policy on revoking a debtor's ability to 
          engage in Indian gaming for failure to pay a debt?

             Subpart B_Administrative and Tax Refund Offset

513.20 What debts can the Commission refer to Treasury for collection by 
          administrative and tax refund offset?
513.21 What notice will a debtor be given of the Commission's intent to 
          collect a debt through administrative and tax refund offset?

                         Subpart C_Salary Offset

513.30 When may the Commission use salary offset to collect debts?
513.31 What notice will the Commission, as the creditor agency, give a 
          debtor that salary offset will occur?
513.32 What are the hearing procedures when the Commission is the 
          creditor agency?
513.33 Will the Commission issue a certification when the Commission is 
          the creditor agency?
513.34 What opportunity is there for a voluntary repayment agreement 
          when the Commission is the creditor agency?
513.35 What special review is available when the Commission is the 
          creditor agency?
513.36 Under what conditions will the Commission refund amounts 
          collected by salary offset?
513.37 What will the Commission do as the paying agency?

                Subpart D_Administrative Wage Garnishment

513.40 How will the Commission handle debt collection through 
          administrative wage garnishment?

    Authority: 31 U.S.C. 3711, 3716-3718, 3720A, 3720D; 5 U.S.C. 5514; 
25 U.S.C. 2713(a)(1).

    Source: 66 FR 58057, Nov. 20, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 513.1  What definitions apply to the regulations in this part?

    As used in this part:
    (a) Administrative offset means the withholding of funds payable by 
the United States (including funds payable by the United States on 
behalf of a

[[Page 848]]

State government) to any person, or the withholding of funds held by the 
United States for any person, in order to satisfy a debt owed to the 
United States.
    (b) Agency means a department, agency, court, court administrative 
office, or instrumentality in the executive, judicial, or legislative 
branch of government, including a government corporation.
    (c) Chairman means the Chairman of the Commission, or his or her 
designee.
    (d) Commission means the National Indian Gaming Commission.
    (e) Creditor agency means a Federal agency that is owed a debt.
    (f) Day means calendar day. To count days, include the last day of 
the period unless it is a Saturday, Sunday, or Federal legal holiday.
    (g) Debt and claim are synonymous and interchangeable. They refer 
to, among other things, fines, fees, and penalties that a Federal agency 
has determined are due the United States from any person, organization, 
or entity, except another Federal agency. For the purposes of 
administrative offset under 31 U.S.C. 3716 and subpart B of this part, 
the terms ``debt'' and ``claims'' include money, funds, or property owed 
to a State, the District of Columbia, American Samoa, Guam, the U.S. 
Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the 
Commonwealth of Puerto Rico.
    (h) Debtor means a person, contractor, Tribe, or other entity that 
owes a debt to the Commission.
    (i) Delinquent debt means a debt that has not been paid within the 
time limit prescribed by the applicable Act, law, or contract.
    (j) Disposable pay means the part of an employee's pay that remains 
after deductions that must be withheld by law have been made (other than 
deductions to execute garnishment orders for child support and/or 
alimony, in accordance with 5 CFR part 581, and for commercial 
garnishment of federal employees' pay, in accordance with 5 CFR part 
582). ``Pay'' includes current basic pay, special pay, incentive pay, 
retired pay, and retainer pay.
    (k) Employee means a current employee of an agency, including a 
current member of the Armed Forces or Reserve of the Armed Forces of the 
United States.
    (l) DOJ means the U.S. Department of Justice.
    (m) FCCS means the Federal Claims Collection Standards, which are 
published at 31 CFR parts 900-904.
    (n) FMS means the Federal Management Service, a bureau of the U.S. 
Department of the Treasury.
    (o) Paying agency means the agency that makes payment to an 
individual who owes a debt to the United States.
    (p) Payroll office means the office in an agency that is primarily 
responsible for payroll records and the coordination of pay matters with 
the appropriate personnel office.
    (q) Person includes a natural person or persons, profit or non-
profit corporation, partnership, association, trust, estate, consortium, 
tribe, or other entity that owes a debt to the United States, excluding 
the United States.
    (r) Salary offset means a payroll procedure to collect debt under 5 
U.S.C. 5514 and 31 U.S.C. 3716 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee, 
without the employee's consent.
    (s) Tax refund offset means the reduction of a tax refund by the 
amount of a past-due legally enforceable debt.



Sec. 513.2  What is the Commission's authority to issue these 
regulations?

    (a) The Commission has authority to issue these regulations under 25 
U.S.C. 2713(a)(1) of the Indian Gaming Regulatory Act. The Commission is 
issuing the regulations in this part under the authority of: The FCCS, 
the Debt Collection Act of 1982 and the Debt Collection Improvement Act 
of 1996, 31 U.S.C. 3711, 3716-3718, and 3720A. In addition, the salary 
offset provisions are issued in conformity with 5 U.S.C. 5514 and its 
implementing regulations published at 5 CFR part 550, subpart K.
    (b) The Commission hereby adopts the provisions of the FCCS (31 CFR 
parts 900-904). The Commission's regulations supplement the FCCS as 
necessary.

[[Page 849]]



Sec. 513.3  What happens to delinquent debts owed to the Commission?

    (a) The Commission will collect debts in accordance with these 
regulations in this part.
    (b) The Commission will transfer to the Department of the Treasury 
any past due, legally enforceable nontax debt that has been delinquent 
for 180 days or more so that Treasury may take appropriate action to 
collect the debt or terminate collection action in accordance with 5 
U.S.C. 5514, 26 U.S.C. 6402, 31 U.S.C. 3711 and 3716, the FCCS, 5 CFR 
550.1108, and 31 CFR part 285.
    (c) The Commission may transfer any past due, legally enforceable 
nontax debt that has been delinquent for fewer than 180 days to the 
Department of Treasury for collection in accordance with 5 U.S.C. 5514, 
26 U.S.C. 6402, 31 U.S.C. 3711 and 3716, the FFCS, 5 CFR 550.1108, and 
31 CFR part 285.



Sec. 513.4  What notice will the Commission give to a debtor of the 
Commission's intent to collect debts?

    (a) When the Chairman determines that a debt is owed to the 
Commission, the Chairman will send a written notice (Notice), also known 
as a demand letter. The Notice will be sent by facsimile or mail to the 
most current address known to the Commission. The Notice will inform the 
debtor of the following:
    (1) The amount, nature, and basis of the debt;
    (2) The methods of offset that may be employed;
    (3) The debtor's opportunity to inspect and copy agency records 
related to the debt;
    (4) The debtor's opportunity to enter into a written agreement with 
the Commission to repay the debt;
    (5) The Commission's policy concerning interest, penalty charges, 
and administrative costs, as set out in Sec. 513.5, including a 
statement that such assessments must be made against the debtor unless 
excused in accordance with the FCCS and this part;
    (6) The date by which payment should be made to avoid late charges 
and enforced collection;
    (7) The name, address, and telephone number of a contact person or 
office at the Commission that is available to discuss the debt; and
    (8) The debtor's opportunity for review.
    (b) A debtor whose debt arises from a notice of violation and/or 
civil fine assessment that has become a final order and that was subject 
to the Commission's appeal procedures at 25 CFR part 577 may not re-
litigate matters that were the subject of the final order.



Sec. 513.5  What is the Commission's policy on interest, penalty 
charges, and administrative costs?

    (a) Interest.
    (1) The Commission will assess interest on all delinquent debts 
unless prohibited by statute, regulation, or contract.
    (2) Interest begins to accrue on all debts from the date that the 
debt becomes delinquent. The Commission will assess interest at the rate 
established annually by the Secretary of the Treasury under 31 U.S.C. 
3717.
    (b) Penalties. The Commission will assess a penalty charge of 6 
percent a year on any portion of a delinquent debt.
    (c) Administrative costs. The Commission will assess charges to 
cover administrative costs incurred as a result of the debtor's failure 
to pay a debt before it becomes delinquent. Administrative costs include 
the cost of providing a copy of the file to the debtor and costs 
incurred in processing and handling the debt because it became 
delinquent, such as costs incurred in obtaining a credit report or in 
using a private collection contractor, or service fees charged by a 
Federal agency for collection activities undertaken on behalf of the 
Commission.
    (d) Interest, penalties, and administrative costs will continue to 
accrue throughout any appeal process.
    (e) Allocation of payments. A partial or installment payment by a 
debtor will be applied first to outstanding penalty assessments, second 
to administrative costs, third to accrued interest, and fourth to the 
outstanding debt principal.
    (f) Additional authority. The Commission may assess interest, 
penalty charges, and administrative costs on debts that are not subject 
to 31 U.S.C.

[[Page 850]]

3717 to the extent authorized under common law or other applicable 
statutory authority.
    (g) Waiver. (1) Regardless of the amount of the debt, the Chairman 
may decide to waive collection of all or part of the accrued interest, 
penalty charges, or administrative costs if collection of these charges 
would be against equity and good conscience or not in the Commission's 
best interest.
    (2) A decision to waive interest, penalty charges, or administrative 
costs may be made at any time before a debt is paid. However, when 
charges have been collected before the waiver decision, they will not be 
refunded. The Chairman's decision whether to waive collection of these 
charges is final and not subject to further review.



Sec. 513.6  What are the requirements for offset review?

    (a) The Commission will provide the debtor with a reasonable 
opportunity for an oral hearing when the debtor requests reconsideration 
of the debt and the Commission determines that the question of 
indebtedness cannot be resolved by review of the documentary evidence.
    (b) Unless otherwise required by law, an oral hearing is not 
required to be a formal evidentiary hearing, although the Commission 
will carefully document all significant matters discussed at the 
hearing.
    (c) When an oral hearing is not required, the Commission will review 
the request for reconsideration based on the written record.



Sec. 513.7  What is the Commission's policy on revoking a debtor's 
ability to engage in Indian gaming for failure to pay a debt?

    The Chairman of the Commission may revoke a debtor's ability to 
operate, manage, or otherwise participate in the operation of an Indian 
gaming facility if the debtor inexcusably or willfully fails to pay a 
debt. The revocation of ability to engage in gaming may last only as 
long as the debtor's indebtedness.



             Subpart B_Administrative and Tax Refund Offset



Sec. 513.20  What debts can the Commission refer to Treasury for 
collection by administrative and tax refund offset?

    (a) The Commission may refer any past due, legally enforceable 
nonjudgment debt of a person to the Treasury for administrative and tax 
refund offset if the debt:
    (1) Has been delinquent for at least three months and will not have 
been delinquent more than 10 years at the time the offset is made;
    (2) Is at least $25.00 or another amount established by Treasury.
    (b) Debts reduced to judgment may be referred to Treasury for tax 
refund offset at any time.



Sec. 513.21  What notice will a debtor be given of the Commission's 
intent to collect a debt through administrative and tax refund offset?

    (a) The Commission will give the debtor written notice of its intent 
to offset before initiating the offset. Notice will be mailed to the 
debtor at the debtor's last known address as determined by the 
Commission.
    (b) The notice will state the amount of the debt and notify the 
debtor that:
    (1) The debt is past due and, unless repaid within 60 days after the 
date of the notice, the Commission will refer the debt to Treasury for 
administrative and tax refund offset;
    (2) The debtor has 60 calendar days to present evidence that all or 
part of the debt is not past-due or legally enforceable; and
    (3) The debtor has an opportunity to make a written agreement to 
repay the debt.



                         Subpart C_Salary Offset



Sec. 513.30  When may the Commission use salary offset to collect debts?

    (a) The Commission collects debts owed by employees to the Federal 
Government by means of salary offset under the authority of: 5 U.S.C. 
5514; 31 U.S.C. 3716; 5 CFR part 550, subpart K; 31 CFR 285.7; and this 
subpart. Salary offset is applicable when the Commission is attempting 
to collect a debt

[[Page 851]]

owed by an individual employed by the Commission or another agency.
    (b) Nothing in the regulations in this subpart precludes the 
compromise, suspension, or termination of collection actions under the 
Federal Claims Collection Act of 1966, as amended, or the Federal Claims 
Collection Standards.
    (c) A levy pursuant to the Internal Revenue Code takes precedence 
over a salary offset under this subpart, as provided in 5 U.S.C. 5514(d) 
and 31 U.S.C. 3716.
    (d) The regulations in this subpart do not apply to any case where 
collection of a debt by salary offset is explicitly prohibited by 
another statute.
    (e) This subpart's regulations covering notice, hearing, written 
responses, and final decisions do not apply to:
    (1) Any routine intra-agency adjustment in pay that is attributable 
to clerical or administrative error or delay in processing pay documents 
that have occurred within the four pay periods preceding the adjustment, 
or any adjustment to collect a debt amounting to $50 or less. However, 
at the time of any adjustment, or as soon thereafter as possible, the 
Commission's payroll agency will provide the employee with a written 
notice of the nature and amount of the adjustment and a contact point 
for appealing the adjustment.
    (2) Any negative adjustment to pay that arises from the debtor's 
election of coverage or a change in coverage under a Federal benefits 
program requiring periodic deductions from pay, if the amount to be 
recovered was accumulated over four or fewer pay periods. However, at 
the time of the adjustment, the Commission's payroll agent will provide 
in the debtor's earnings statement a clear statement informing the 
debtor of the previous overpayment.
    (f) An employee's involuntary payment of all or any of the debt 
through salary offset will not be construed as a waiver of any rights 
that the employee may have under the law, unless there are statutory or 
contractual provisions to the contrary.



Sec. 513.31  What notice will the Commission, as the creditor agency, 
give a debtor that salary offset will occur?

    (a) Deductions from a debtor's salary will not be made unless the 
Commission sends the debtor a written Notice of Intent at least 30 
calendar days before the salary offset is initiated.
    (b) The Notice of Intent will include the following:
    (1) Notice that the Commission has reviewed the records relating to 
the debt and has determined that the employee owes the debt;
    (2) Notice that, after a 30-day period, the Commission will begin to 
collect the debt by deductions from the employee's current disposable 
pay account and the date on which deductions from salary will start;
    (3) The amount of the debt and the facts giving rise to it;
    (4) The frequency and the amount of the intended deduction stated as 
a fixed dollar amount or as a percentage of pay not to exceed 15 percent 
of the disposable pay, and the intention to continue the deductions 
until the debt and all accumulated interest are paid in full or 
resolved;
    (5) The name, address, and telephone number of the person to whom 
the debtor may propose a written alternative schedule for voluntary 
repayment in lieu of salary offset. The debtor must include a 
justification for the alternative schedule in the proposal;
    (6) The Commission's policy concerning interest, penalties, and 
administrative costs, set out at Sec. 513.5, and a statement that 
assessments will be made unless excused in accordance with the FCCS;
    (7) Notice of the employee's right to inspect and copy all 
Commission records pertaining to the debt and the name, address, and 
telephone number of the Commission employee to whom requests for access 
must be made;
    (8) Notice of the employee's opportunity to a hearing conducted by 
an individual who does not work for the Commission on the Commission's 
determination of the existence or amount of the debt and the terms of 
the repayment schedule;
    (9) Notice that filing a request for a hearing on or before the 15th 
calendar day following the debtor's receiving

[[Page 852]]

the Notice of Intent will stay collection proceedings and that a final 
decision will be issued at the earliest practical date, but not later 
than 60 days after the filing of the petition for hearing, unless the 
employee requests, and a hearing official grants, a delay in 
proceedings;
    (10) An explanation of the effect of submitting knowingly false or 
frivolous statements; and
    (11) Notice that amounts paid on or deducted from debts that are 
later waived or found not to be owed will be promptly refunded to the 
employee.



Sec. 513.32  What are the hearing procedures when the Commission is 
the creditor agency?

    (a) To request a hearing, the debtor must file, within 15 days of 
receiving the Commission's notice of intent to offset, a written 
petition signed by the debtor and addressed to the Commission stating 
why the debtor believes the Commission's determination of the existence 
or amount of the debt is in error. The Commission may waive the 15-day 
time limit for filing a request for hearing if the employee shows that 
the delay was due to circumstances beyond his or her control or because 
the employee did not receive notice of the 15-day time limit. A debtor 
who has previously obtained a hearing to contest a debt that arose from 
a notice of violation or proposed civil fine assessment matters under 25 
CFR part 577 may not re-litigate matters that were at issue in that 
hearing.
    (b) Regardless of whether the debtor is a Commission employee, the 
Commission will provide a prompt and appropriate hearing before a 
hearing official who is not from the Commission.
    (c) The hearing will be conducted according to the FCCS review 
requirements at 31 CFR 901.3(e).
    (d) Unless the employee requests, and a hearing official grants, a 
delay in proceedings, within 60 days after the petition for hearing the 
hearing official will issue a written decision on:
    (1) The determination of the creditor agency concerning the 
existence or amount of the debt; and
    (2) The repayment schedule, if a schedule was not established by 
written agreement between the employee and the creditor agency.
    (e) If the hearing official determines that a debt may not be 
collected by salary offset but the Commission has determined that the 
debt is valid, the Commission may seek collection of the debt through 
other means in accordance with applicable law and regulations.
    (f) The form of hearings, written responses, and final decisions 
will be according to the Commission's review requirements at Sec. 
513.7. Written decisions regarding salary offset that are provided after 
a request for hearing must state: The facts purported to evidence the 
nature and origin of the alleged debt; the hearing official's analysis, 
findings, and conclusions as to the employee's or creditor agency's 
grounds; the amount and validity of the alleged debt; and, where 
applicable, the repayment schedule.



Sec. 513.33  Will the Commission issue a certification when the 
Commission is the creditor agency?

    Yes. Upon completion of the procedures established in this subpart 
and pursuant to 5 U.S.C. 5514, the Commission will submit a 
certification to Treasury or to a paying agency in the form prescribed 
by the paying agency.



Sec. 513.34  What opportunity is there for a voluntary repayment 
agreement when the Commission is the creditor agency?

    (a) In response to a Notice of Intent, an employee may propose to 
repay the debt voluntarily in lieu of salary offset by submitting a 
written proposed repayment schedule to the Commission. A proposal must 
be received by the Commission within 15 calendar days after the employee 
is sent the Notice of Intent.
    (b) The Commission will notify the employee whether, within the 
Commission's discretion, the proposed repayment schedule is acceptable.
    (c) If the proposed repayment schedule is unacceptable, the employee 
will have 15 calendar days from the date the notice of the decision is 
received in which to file a request for a hearing.
    (d) If the proposed repayment schedule is acceptable or the employee 
agrees to a modification proposed by

[[Page 853]]

the Commission, the agreement will be put in writing and signed by the 
employee and the Commission.



Sec. 513.35  What special review is available when the Commission is 
the creditor agency?

    (a)(1) An employee subject to salary offset or a voluntary repayment 
agreement may, at any time, request a special review by the Commission 
of the amount of the salary offset or voluntary repayment, based on 
materially changed circumstances, including, but not limited to, 
catastrophic illness, divorce, death, or disability.
    (2) The request for special review must include an alternative 
proposed offset or payment schedule and a detailed statement, with 
supporting documents, that shows why the current salary offset or 
payment results in extreme financial hardship to the employee, spouse, 
or dependents. The statement must indicate:
    (i) Income from all sources;
    (ii) Assets;
    (iii) Liabilities;
    (iv) Number of dependents;
    (v) Expenses for food, housing, clothing, and transportation;
    (vi) Medical expenses; and
    (vii) Exceptional expenses, if any.
    (b) The Commission will evaluate the statement and documentation and 
determine whether the current offset or repayment schedule imposes 
extreme financial hardship on the employee. The Commission will notify 
the employee in writing within 30 calendar days of its determination, 
including, if appropriate, a revised offset or payment schedule. If the 
special review results in a revised offset or repayment schedule, the 
Commission will provide a new certification to the paying agency.



Sec. 513.36  Under what conditions will the Commission refund amounts 
collected by salary offset?

    (a) As the creditor agency, the Commission will promptly refund any 
amount deducted under the authority of 5 U.S.C. 5514, when:
    (1) The Commission determines that the debt is not owed; or
    (2) An administrative or judicial order directs the Commission to 
make a refund.
    (b) Unless required or permitted by law or contract, refunds under 
this section will not bear interest.



Sec. 513.37  What will the Commission do as the paying agency?

    (a) When the Commission receives a certification from a creditor 
agency that has complied with the Office of Personnel Management's 
requirements set out at 5 CFR 550.1109, the Commission will send the 
employee a written notice of salary offset.
    (b) If the Commission receives an incomplete certification from a 
creditor agency, the Commission will return the certification with 
notice that the procedures under 5 U.S.C. 5514 and 5 CFR 550.1104 must 
be followed and a properly certified claim submitted before the 
Commission will take action to collect the debt from the employee's 
current pay account.
    (c) Notice to a debtor will include:
    (1) The Commission's receipt of a certification from a creditor 
agency;
    (2) The amount of the debt and the deductions to be made, which may 
be stated as a percentage of disposable pay; and
    (3) The date and pay period when the salary offset will begin.
    (d) The Commission will provide a copy of the notice of salary 
offset to a creditor agency.
    (e) The Commission will coordinate salary deductions under this 
subpart as appropriate.
    (f) The Commission's payroll officer will determine the amount of 
the debtor's disposable pay and will implement the salary offset.
    (g) The Commission may use the following types of salary debt 
collection:
    (1) Lump sum offset. If the amount of the debt is equal to or less 
than 15 percent of disposable pay, the debt generally will be collected 
through one lump sum offset.
    (2) Installment deductions. The amount deducted from any period will 
not exceed 15 percent of the disposable pay from which the deduction is 
made unless the debtor has agreed in writing to the deduction of a 
greater amount. If possible, installment payments will liquidate the 
debt in three years or less.

[[Page 854]]

    (3) Deductions from final check. A deduction exceeding the 15 
percent of disposable pay limitation may be made from any final salary 
payment under 31 U.S.C. 3716 and the Federal Claims Collection 
Standards, in order to liquidate the debt, whether the employee is 
leaving voluntarily or involuntarily.
    (4) Deductions from other sources. If an employee subject to salary 
offset is leaving the Commission and the balance of the debt cannot be 
liquidated by offset of the final salary check, then the Commission may 
offset later payments of any kind against the balance of the debt, as 
allowed by 31 U.S.C. 3716 and the Federal Claims Collection Standards.
    (h) When two or more creditor agencies are seeking salary offsets, 
the Commission's payroll office may, in its discretion, determine 
whether one or more debts should be offset simultaneously within the 15 
percent limitation.
    (i) The Commission is not authorized to review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt certified by the creditor agency.



                Subpart D_Administrative Wage Garnishment



Sec. 513.40  How will the Commission handle debt collection through 
administrative wage garnishment?

    This part adopts all the provisions of the administrative wage 
garnishment regulations contained in 31 CFR 285.11, promulgated by 
Treasury, which allow Federal agencies to collect debts from a debtor's 
non-Federal pay by means of administrative wage garnishment authorized 
by 31 U.S.C. 3720D, and in 5 CFR parts 581 and 582, promulgated by the 
Office of Personnel Management, which provides for garnishment orders 
for child support and/or alimony and commercial garnishment of federal 
employees' pay.



PART 514_FEES--Table of Contents




    Authority: 25 U.S.C. 2706, 2708, 2710, 2717, 2717a.



Sec. 514.1  Annual fees.

    (a) Each gaming operation under the jurisdiction of the Commission 
shall pay to the Commission annual fees as established by the 
Commission. The Commission, by a vote of not less than two of its 
members, shall adopt the rates of fees to be paid.
    (1) The Commission shall adopt preliminary rates for each calendar 
year during the first quarter of that year (or as soon thereafter as 
possible), and, if considered necessary, shall modify those rates during 
the second and third quarters of the calendar year.
    (2) The Commission shall adopt final rates of fees for each calendar 
year during the fourth quarter of that year.
    (3) The Commission shall publish the rates of fees in a notice in 
the Federal Register.
    (4) The rates of fees imposed shall be--
    (i) No more than 2.5 percent of the first $1,500,000 (1st tier), and
    (ii) No more than 5 percent of amounts in excess of the first 
$1,500,000 (2nd tier) of the assessable gross revenues from each gaming 
operation subject to the jurisdiction of the Commission.
    (5) If a tribe has a certificate of self-regulation, the rate of 
fees imposed shall be no more than .25 percent of assessable gross 
revenues from self-regulated class II gaming operations.
    (6) If a tribe is determined to be self-regulated pursuant to the 
provisions of 25 U.S.C. 2717(a)(2)(C), no fees shall be imposed.
    (b) For purposes of computing fees, assessable gross revenues for 
each gaming operation are the annual total amount of money wagered on 
class II and III games, admission fees (including table or card fees), 
less any amounts paid out as prizes or paid for prizes awarded, and less 
an allowance for amortization of capital expenditures for structures.
    (1) Unless otherwise provided by the regulations, generally accepted 
accounting principles shall be used.
    (2) The allowance for amortization of capital expenditures for 
structures shall not exceed 5% of the cost of structures in use 
throughout the year and 2\1/2\% of the cost of structures in use during 
only a part of the year.

[[Page 855]]

    (3) Example:

Gross gaming revenues:
  Money wagered.................................  .........   $1,000,000
  Admission fees................................      5,000
                                                 -----------------------
                                                  .........    1,005,000
Less:
  Prizes paid in cash...........................   $500,000
  Cost of other prizes awarded..................     10,000      510,000
                                                 -----------------------
    Gross gaming profit.........................  .........      495,000
  Less allowance for amortization of............
    capital expenditures for structures:........
  Capital expenditures for structures made in--
    Prior years.................................    750,000
    Current year................................     50,000
                                                 -----------
                                                    800,000
                                                 -----------
  Maximum allowance:
    $750,000x.05 =..............................     37,500
    50,000x.025=................................      1,250       38,750
                                                 -----------------------
Assessable gross revenues.......................  .........     $456,250
                                                            ------------
 

    (4) All class II and III revenues from gaming operations are to be 
included.
    (c) Each gaming operation subject to the jurisdiction of the 
Commission and not exempt from paying fees pursuant to the self-
regulation provisions shall file with the Commission quarterly a 
statement showing its assessable gross revenues for the previous 
calendar year.
    (1) These quarterly statements shall show the amounts derived from 
each type of game, the amounts deducted for prizes, and the amounts 
deducted for the amortization of structures;
    (2) These quarterly statements shall be filed no later than--March 
31, June 30, September 30, and December 31, of each calendar year the 
gaming operation is subject to the jurisdiction of the Commission, 
beginning in September 1991. For calendar year 1998, the quarterly 
statement for the first quarter shall be filed no later than April 13, 
1998. Any changes or adjustments to the previous year's assessable gross 
revenue amounts from one quarter to the next shall be explained.
    (3) The quarterly statements shall identify an individual or 
individuals to be contacted should the Commission need to communicate 
further with the gaming operation. The telephone numbers of the 
individual(s) shall be included.
    (4) The quarterly statements shall be transmitted to the Commission 
to arrive no later than the due date.
    (5) Each gaming operation shall determine the amount of fees to be 
paid and remit them with the statement required in paragraph (c) of this 
section. The fees payable shall be computed using--
    (i) The most recent rates of fees adopted by the Commission pursuant 
to paragraph (a)(1) or (a)(2) of this section,
    (ii) The assessable gross revenues for the previous calendar year as 
reported pursuant to this paragraph, and
    (iii) The amounts paid and credits received during previous 
quarters.
    (6) Each quarterly statement shall include the computation of the 
fees payable, showing all amounts used in the calculations. The required 
calculations are as follows:
    (i) Multiply the previous calendar year's 1st tier assessable gross 
revenues by the rate for those revenues adopted by the Commission.
    (ii) Multiply the previous calendar year's 2nd tier assessable gross 
revenues by the rate for those revenues adopted by the Commission.
    (iii) Add (total) the results (products) obtained in paragraphs 
(c)(6) (i) and (ii) of this section.
    (iv) Multiply the total obtained in paragraph (c)(6)(iii) of this 
section by the fraction representing the quarter for which the 
computation is being made: 1st quarter--\1/4\; 2nd quarter--\1/2\ (\2/
4\); 3rd quarter--\3/4\; and 4th quarter--1 (\4/4\). For the purpose of 
making these computations in 1991 only, the third calendar quarter is 
the first quarter and the fourth calendar quarter is the second quarter. 
There will be no third or fourth quarter in 1991.
    (v) Subtract the amounts already remitted by the operation for the 
current year and credits, if any, which are due for any previous year's 
overpayment from the amount determined in paragraph (c)(6)(iv) of this 
section.
    (vi) The amount computed in paragraph (c)(6)(v) of this section is 
the amount to be remitted.

[[Page 856]]

    (7) Examples of fee computations follow:
    (i) Example 1: Where a filing is made for the first quarter of the 
calendar year, the previous year's assessable gross revenues are 
$2,000,000, the fee rates adopted by the Commission are 2% on the first 
$1,500,000 and 4% on the remainder, and a credit of $2,000 is due from 
the previous year, the amounts to be used and the computations to be 
made are as follows:

1st tier revenues--$1,500,000x2%=.............................   $30,000
2nd tier revenues--500,000x4%=................................    20,000
                                                               ---------
  Annual fees.................................................    50,000
Multiply for fraction of year--\1/4\ or.......................       .25
                                                               ---------
  Fees for first quarter......................................    12,500
Deduct credit due.............................................     2,000
                                                               ---------
  Amount to be remitted.......................................   $10,500
                                                               ---------
 

    (ii) Example 2: Where a filing is being made for the third quarter, 
the previous year's assessable gross revenues are $5,000,000, the fee 
rates adopted by the Commission are 1% on the first $1,500,000 and 1.5% 
on the remainder, and $35,000 has already been remitted, the amounts to 
be used and the computations to be made are as follows:

1st tier revenues--$1,500,000x1%=.............................   $15,000
2nd tier revenues--3,500,000x1.5%=............................    52,500
  Annual fees.................................................    67,500
Multiply for fraction of year--\3/4\ or.......................       .75
                                                               ---------
  Fees for first three quarters...............................    50,625
Deduct amounts already remitted...............................       \1\
                                                                  35.000
                                                               ---------
  Amount to be remitted.......................................   $15,625
                                                               ---------
 
\1\ This amount may be other than $33,750 ($67,500x.50) because the
  assessable gross revenues may have been adjusted, the fee rate may
  have changed, a credit for the previous year's overpayment may have
  been received, or a clerical error may have been discovered.

    (iii) Example 3: Where a filing is being made for the third quarter 
of 1991, the previous year's assessable gross revenues are $5,000,000, 
the fee rates adopted by the Commission are 1% on the first $1,500,000 
and 1% on the remainder, and nothing has already been remitted, the 
amounts to be used and the computations to be made are as follows:

1st tier revenues--$1,500,000x1%=.............................   $15,000
2nd tier revenues--3,500,000x1%=..............................    35,000
                                                               ---------
      Annual fees.............................................    50,000
Multiply for fraction of year--1/4 or.........................       .25
                                                               ---------
      Fees for first quarter..................................    12,500
Deduct amounts already remitted...............................       -0-
                                                               ---------
      Amount to be remitted...................................   $12,500
 

    (8) Quarterly statements, remittances and communications about fees 
shall be transmitted to the Commission at the following address: Office 
of Finance, National Indian Gaming Commission, 1441 L Street, N.W., 
Suite 9100, Washington, DC 20005. Checks should be made payable to the 
National Indian Gaming Commission (do not remit cash).
    (9) The Commission may assess a penalty for failure to file timely a 
quarterly statement.
    (10) Interest shall be assessed at rates established from time to 
time by the Secretary of the Treasury on amounts remaining unpaid after 
their due date (31 U.S.C. 3717).
    (d) The total amount of all fees imposed during any fiscal year 
shall not exceed the statutory maximum imposed by Congress. The 
Commission shall credit pro-rata any fees collected in excess of this 
amount against amounts otherwise due at the end of the quarter following 
the quarter during which the Commission makes such determination.
    (1) The Commission will notify each gaming operation as to the 
amount of overpayment, if any, and therefore the amount of credit to be 
taken against the next quarterly payment otherwise due.
    (2) The notification required in paragraph (d)(1) of this section 
shall be made in writing addressed to the gaming operation.
    (e) Failure to pay fees, any applicable penalties, and interest 
related thereto may be grounds for:
    (1) Closure, or
    (2) Disapproving or revoking the approval of the Chairman of any 
license, ordinance, or resolution required under this Act for the 
operation of gaming.
    (f) To the extent that revenue derived from fees imposed under the 
schedule established under this paragraph are not expended or committed 
at the close of any fiscal year, such funds shall remain available until 
expended (Pub. L. 101-121; 103 Stat. 718; 25 U.S.C. 2717a) to

[[Page 857]]

defray the costs of operations of the Commission.

[56 FR 40709, Aug. 15, 1991; 56 FR 57373, Nov. 8, 1991, as amended at 63 
FR 12316, Mar. 12, 1998; 69 FR 2505, Jan. 16, 2004]



PART 515_PRIVACY ACT PROCEDURES--Table of Contents




Sec.
515.1 Purpose and scope.
515.2 Definitions.
515.3 Identification of individuals making requests.
515.4 Procedures for requests and disclosures.
515.5 Request for amendment to record.
515.6 Review of request for amendment of record by the Records Manager.
515.7 Appeal to the Commission of initial adverse agency determination 
          on access or amendment to records.
515.8 Disclosure of record to a person other than the individual to whom 
          it pertains.
515.9 Fees.
515.10 Penalties.
515.11 General exemptions. [Reserved]
515.12 Specific exemptions.

    Authority: 5 U.S.C. 552a.

    Source: 58 FR 5815, Jan. 22, 1993, unless otherwise noted.



Sec. 515.1  Purpose and scope.

    (a) The purpose of this part is to inform the public of records 
maintained by the Commission about identifiable individuals and to 
inform those individuals how they may gain access to and amend records 
concerning themselves.
    (b) This part carries out the requirements of the Privacy Act of 
1974 (Pub. L. 93-579) codified at 5 U.S.C. 552a.
    (c) The regulation applies only to records disclosed or requested 
under the Privacy Act of 1974, and not to requests for information made 
pursuant to 5 U.S.C. 552, the Freedom of Information Act.



Sec. 515.2  Definitions.

    As defined in the Privacy Act of 1974 and for the purposes of this 
part, unless otherwise required by the context, the following terms 
shall have these meanings:
    (a) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (b) Maintain means maintain, collect, use, or disseminate.
    (c) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Commission, including 
education, financial transactions, medical history, and criminal or 
employment history, and that contains the individual's name, or the 
identifying number, symbol, or other identifier assigned to the 
individual, such as social security number, finger or voice print, or a 
photograph.
    (d) System of records means a group of any records under the control 
of the Commission from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifier 
assigned to the individual.
    (e) Routine use means, with respect to the disclosure of a record, 
the use of such record for a purpose that is compatible with the purpose 
for which it was collected.



Sec. 515.3  Identification of individuals making requests.

    (a) Any individual may request that the Commission inform him or her 
whether a particular record system named by the individual contains a 
record pertaining to him or her and the contents of such record. Such 
requests shall conform to the requirements of Sec. 515.4 of this part. 
The request may be made in person or in writing at the NIGC, suite 250, 
1850 M Street, NW., Washington, DC 20036-5803 during the hours of 9 a.m. 
to 12 noon and 2 p.m. to 5 p.m. Monday through Friday.
    (b)(1) Requests made in writing shall include a statement, signed by 
the individual and either notarized or witnessed by two persons 
(including witnesses' addresses). If the individual appears before a 
notary, the individual shall submit adequate proof of identity in the 
form of a driver's license, birth certificate, passport, or other 
identification acceptable to the notary. If the statement is witnessed, 
it shall include a statement above the witnesses' signatures that they 
personally know the individual or that the individual has submitted 
proof of his or her identity to their satisfaction. In any case

[[Page 858]]

in which, because of the extreme sensitivity of the record sought to be 
seen or copied, the Commission determines that the identification is not 
adequate, it may request the individual to submit additional proof of 
identity.
    (2) If the request is made in person, the requester shall submit 
proof of identity similar to that described in paragraph (b)(1) of this 
section, and that is acceptable to the Commission. The individual may 
have a person of his or her own choosing accompany him or her when the 
record is disclosed.
    (c) Requests made by an agent, parent, or guardian shall be in 
accordance with the procedures described in paragraph (b) of this 
section.



Sec. 515.4  Procedures for requests and disclosures.

    (a) Requests for a determination under Sec. 515.3(a) of this part 
shall be acknowledged by the Commission within ten (10) days (excluding 
Saturdays, Sundays and Federal holidays) after the date on which the 
Commission receives the request. If the Commission is unable to locate 
the information requested, it shall so notify the individual within ten 
(10) days (excluding Saturdays, Sundays and Federal holidays) after 
receipt of the request, Such acknowledgement may request additional 
information to assist the Commission in locating the record, or it may 
advise the individual that no record exists about that individual.
    (b)(1) Upon submission of proof of identity as required by Sec. 
515.3(b)(1) or (2) of this part, the Commission shall respond within ten 
(10) days (excluding Saturdays, Sundays and Federal holidays). The 
Commission shall decide whether to make a record available to the record 
subject and shall immediately convey its determination to the requester. 
If the individual asks to see the record, the Commission may make the 
record available at the location where the record is maintained.
    (2) The Commission shall furnish each record requested by an 
individual under this section in a form intelligible to that individual.
    (3) If the Commission denies access to a record to an individual, 
that person shall be advised of the reason for the denial and of the 
appeal procedures provided in Sec. 515.7 of this part.
    (4) Upon request, an individual shall be provided access to the 
accounting of disclosures from his or her record under the same 
procedures as provided above and in Sec. 515.3 of this part.



Sec. 515.5  Request for amendment to record.

    (a) Any individual who has reviewed a record pertaining to him or 
her that was furnished under this part, may request that the Commission 
amend all or any part of that record.
    (b) Each individual requesting an amendment shall send the request 
to the Records Manager.
    (c) Each request for an amendment of a record shall contain the 
following information:
    (1) The name of the individual requesting the amendment;
    (2) The name of the system of records in which the record sought to 
be amended is maintained;
    (3) The location of the system of records from which the individual 
record was obtained;
    (4) A copy of the record sought to be amended or a sufficiently 
detailed description of that record:
    (5) A statement of the material in the record that the individual 
desires to amend;
    (6) A statement of the basis for the requested amendment, including 
any material that the individual can furnish to substantiate the reasons 
for the amendment sought.



Sec. 515.6  Review of request for amendment of record by the Records 
Manager.

    (a) The Records Manager shall, not later than ten (10) days 
(excluding Saturdays, Sundays and Federal holidays) after the receipt of 
a request for an amendment of a record under Sec. 515.5 of this part, 
acknowledge receipt of the request and inform the individual whether 
more information is required before the amendment can be considered.
    (b) If more information is not required, within ten (10) days after 
receipt of the request (excluding Saturdays, Sundays and Federal 
holidays), the Records Manager shall either make

[[Page 859]]

the requested amendment or notify the individual of the Commission's 
refusal to do so, including in the notification the reasons for the 
refusal, and the appeal procedures provided in Sec. 515.7 of this part.
    (c) The Records Manager shall make each requested amendment to a 
record if such amendment will tend to negate inaccurate, irrelevant, 
untimely, or incomplete material in the record.
    (d) The Records Manager shall inform prior recipients of any 
amendment or notation of dispute of such individual's record. The 
individual may request a list of prior recipients if there exists an 
accounting of the disclosures.



Sec. 515.7  Appeal to the Commission of initial adverse agency 
determination on access or amendment to records.

    (a) Any individual whose request for access or an amendment has been 
denied in whole or in part, may appeal the decision to the Commission no 
later than one hundred eighty (180) days after the adverse decision is 
rendered.
    (b) The appeal shall be in writing and shall contain all of the 
following information:
    (1) The name of the individual making the appeal;
    (2) Identification of the record sought to be amended;
    (3) The record system in which such record is contained;
    (4) A short statement describing the amendment sought; and
    (5) The name and location of the agency official who initially 
denied the amendment.
    (c) Not later than thirty (30) days (excluding Saturdays, Sundays 
and Federal holidays) after the date on which the Commission receives 
the appeal, the Commission shall complete its review of the appeal and 
make a final decision thereon. For good cause shown, however, the 
Commission may extend such thirty (30) day period. If the Commission 
extends the period, the individual requesting the review shall be 
promptly notified of the extension and the anticipated date of a 
decision.
    (d) After review of an appeal, the Commission shall send a written 
notice to the requester containing the following information:
    (1) The decision and, if the denial is upheld, the reasons for the 
decision;
    (2) The right of the requester to file with the Commission a concise 
statement setting forth the reasons for his or her disagreement with the 
Commission's denial of access or amendment. The Commission shall make 
this statement available to any person to whom the record is later 
disclosed, together with a brief statement, if appropriate, of the 
Commission's reasons for denying requested access or amendment. The 
Commission shall also send a copy of the statement to prior recipients 
of the individual's record; and
    (3) The right of the requester to institute a civil action in a 
Federal district court for judicial review of the decision.



Sec. 515.8  Disclosure of record to a person other than the individual 
to whom it pertains.

    (a) Any individual who desires to have a record covered by this part 
disclosed to or mailed to another person may designate such person and 
authorize such person to act as his or her agent for that specific 
purpose. The authorization shall be in writing, signed by the 
individual, and notarized or witnessed as provided in Sec. 515.3 of 
this part.
    (b) The parent of any minor individual or the legal guardian of any 
individual who has been declared by a court of competent jurisdiction to 
be incompetent, due to physical or mental incapacity or age, may act on 
behalf of that individual in any matter covered by this section. A 
parent or guardian who desires to act on behalf of such an individual 
shall present suitable evidence of parentage or guardianship, by birth 
certificate, certified copy of court order, or similar documents, and 
proof of the individual's identity in a form that complies with Sec. 
515.3(b) of this part.
    (c) An individual to whom a record is to be disclosed in person, 
pursuant to this section, may have a person of his or her own choosing 
accompany him or her when the record is disclosed.



Sec. 515.9  Fees.

    The Commission shall not charge an individual for the costs of 
making a

[[Page 860]]

search for a record or the costs of reviewing the record. When the 
Commission makes a copy of a record as a necessary part of reviewing the 
record, the Commission shall not charge the individual for the cost of 
making that copy. Otherwise, the Commission may charge a fee sufficient 
to cover the cost of duplication.



Sec. 515.10  Penalties.

    Any person who makes a false statement in connection with any 
request for a record, or an amendment thereto, under this part, is 
subject to the penalties prescribed in 18 U.S.C. 494 and 495.



Sec. 515.11  General exemptions. [Reserved]



Sec. 515.12  Specific exemptions.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d), (e)(1) and (f):

                Indian Gaming Individuals Records System

    (b) The exemptions under paragraph (a) of this section apply only to 
the extent that information in this system is subject to exemption under 
5 U.S.C. 552a(k)(2). When compliance would not appear to interfere with 
or adversely affect the overall responsibilities of the Commission with 
respect to licensing of key employees and primary management officials 
for employment in an Indian gaming operation, the applicable exemption 
may be waived by the Commission.
    (c) Exemptions from the particular sections are justified for the 
following reasons:
    (1) From 5 U.S.C. 552a(c)(3), because making available the 
accounting of disclosures to an individual who is the subject of a 
record could reveal investigative interest. This would permit the 
individual to take measures to destroy evidence, intimidate potential 
witnesses, or flee the area to avoid the investigation.
    (2) From 5 U.S.C. 552a(d), (e)(1), and (f) concerning individual 
access to records, when such access could compromise classified 
information related to national security, interfere with a pending 
investigation or internal inquiry, constitute an unwarranted invasion of 
privacy, reveal a sensitive investigative technique, or pose a potential 
threat to the Commission or its employees or to law enforcement 
personnel. Additionally, access could reveal the identity of a source 
who provided information under an express promise of confidentiality.
    (3) From 5 U.S.C. 552a(d)(2), because to require the Commission to 
amend information thought to be incorrect, irrelevant, or untimely, 
because of the nature of the information collected and the length of 
time it is maintained, would create an impossible administrative and 
investigative burden by continually forcing the Commission to resolve 
questions of accuracy, relevance, timeliness, and completeness.
    (4) From 5 U.S.C. 552a(e)(1) because:
    (i) It is not always possible to determine relevance or necessity of 
specific information in the early stages of an investigation.
    (ii) Relevance and necessity are matters of judgment and timing in 
that what appears relevant and necessary when collected may be deemed 
unnecessary later. Only after information is assessed can its relevance 
and necessity be established.
    (iii) In any investigation the Commission may receive information 
concerning violations of law under the jurisdiction of another agency. 
In the interest of effective law enforcement and under 25 U.S.C. 
2716(b), the information could be relevant to an investigation by the 
Commission.
    (iv) In the interviewing of individuals or obtaining evidence in 
other ways during an investigation, the Commission could obtain 
information that may or may not appear relevant at any given time; 
however, the information could be relevant to another investigation by 
the Commission.



PART 516_TESTIMONY OF COMMISSIONERS AND EMPLOYEES AND FORMER 
COMMISSIONERS AND FORMER EMPLOYEES RESPECTING OFFICIAL DUTIES; 
RESPONSE TO SUBPOENA--Table of Contents




Sec.
516.1 What is the purpose of this part and to whom does it apply?

[[Page 861]]

516.2 When may a person to whom this part applies give testimony, make a 
          statement or submit to interview?
516.3 When may a person to whom this part applies produce records?
516.4 How are records certified or authenticated?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2706; 25 U.S.C. 2716(a); 18 
U.S.C. 1905.

    Source: 64 FR 54542, Oct. 7, 1999, unless otherwise noted.



Sec. 516.1  What is the purpose of this part and to whom does it apply?

    (a) The purpose of this part is to promulgate regulations regarding 
the release of official National Indian Gaming Commission information 
and provision of testimony by National Indian Gaming Commission 
personnel with respect to litigation or potential litigation and to 
prescribe conduct on the part of National Indian Gaming Commission 
personnel in response to a litigation-related request or demand.
    (b) This part applies to requests or demands that are litigation-
related or otherwise arise out of judicial, administrative or other 
legal proceedings (including subpoena, order or other demand) for 
interview, testimony (including by deposition) or other statement, or 
for production of documents relating to the business of the National 
Indian Gaming Commission, whether or not the National Indian Gaming 
Commission or the United States is a party to the litigation. It does 
not, however, apply to document requests covered by 25 CFR parts 515 and 
517.
    (c) To the extent the request or demand seeks official information 
or documents, the provisions of this part are applicable to 
Commissioners, employees, and former Commissioners and former employees, 
of the National Indian Gaming Commission.



Sec. 516.2  When may a person to whom this part applies give testimony, 
make a statement or submit to interview?

    (a) No person to whom this part applies, except as authorized by the 
Chairman or the General Counsel pursuant to this regulation, shall 
provide testimony, make a statement or submit to interview.
    (b) Whenever a subpoena commanding the giving of any testimony has 
been lawfully served upon a person to whom this part applies, such 
individual shall, unless otherwise authorized by the Chairman or the 
General Counsel, appear in response thereto and respectfully decline to 
testify on the grounds that it is prohibited by this regulation.
    (c) A person who desires testimony or other statement from any 
person to whom this part applies may make written request therefor, 
verified by oath, directed to the Chairman setting forth his or her 
interest in the matter to be disclosed and designating the use to which 
such statement or testimony will be put in the event of compliance with 
such request: provided, that a written request therefor by an official 
of any federal, state or tribal entity, acting in his or her official 
capacity need not be verified by oath. If it is determined by the 
Chairman or the General Counsel that such statement or testimony will be 
in the public interest, the request may be granted. Where a request for 
a statement or testimony is granted, one or more persons to whom this 
part applies may be authorized or designated to appear and testify or 
give a statement with respect thereto.



Sec. 516.3  When may a person to whom this part applies produce records?

    (a) Any request for records of the National Indian Gaming Commission 
shall be handled pursuant to the procedures established in 25 CFR parts 
515 and 517 and shall comply with the rules governing public disclosure 
as provided in 25 CFR parts 515 and 517.
    (b) Whenever a subpoena duces tecum commanding the production of any 
record has been lawfully served upon a person to whom this part applies, 
such person shall forward the subpoena to the General Counsel. If 
commanded to appear in response to any such subpoena, a person to whom 
this part applies shall respectfully decline to produce the record on 
the ground that production is prohibited by this part and state that the 
production of the record(s) of the National Indian Gaming Commission is 
a matter to be determined by the Chairman or the General Counsel.

[[Page 862]]



Sec. 516.4  How are records certified or authenticated?

    (a) Upon request, the person having custody and responsibility for 
maintenance of records which are to be released under this part or 25 
CFR parts 515 or 517 may certify the authenticity of copies of records 
that are requested to be provided in such format.
    (b) A request for certified copies of records or for authentication 
of copies of records shall be sent to the National Indian Gaming 
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005, 
Attention: Freedom of Information Act Officer.



PART 517_FREEDOM OF INFORMATION ACT PROCEDURES--Table of Contents




Sec.
517.1 Purpose and scope.
517.2 Definitions.
517.3 Requests for records.
517.4 Disclosure of requested records.
517.5 Confidential commercial information.
517.6 Response to requests for records.
517.7 Appeals.
517.8 Fees.

    Authority: 5 U.S.C. 552.

    Source: 58 FR 44448, Aug. 23, 1993, unless otherwise noted.



Sec. 517.1  Purpose and scope.

    This part contains the regulations of the National Indian Gaming 
Commission implementing the Freedom of Information Act (FOIA). These 
regulations provide procedures by which members of the public may obtain 
access to records compiled, created, and maintained by the Commission, 
along with procedures the Commission must follow in response to such 
requests for records.



Sec. 517.2  Definitions.

    (a) Commercial-use requester means requesters seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made. In determining whether a requester properly belongs in this 
category, the Commission shall determine the use to which a requester 
will put the documents requested. Where the Commission has reasonable 
cause to doubt the use to which a requester will put the records sought, 
or where that use is not clear from the request itself, the Commission 
shall seek additional clarification before assigning the request to a 
specific category.
    (b) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt from 
disclosure under Exemption 4 of the FOIA, because disclosure could 
reasonably be expected to cause substantial competitive harm.
    (c) Direct costs means those expenditures by the Commission actually 
incurred in searching for and duplicating records to respond to a FOIA 
request. Direct costs include the salary of the employee or employees 
performing the work (the basic rate of pay for the employee plus a 
percentage of that rate to cover benefits) and the cost of operating 
duplicating machinery. Direct costs do not include overhead expenses, 
such as the cost of and heating or lighting of the facility in which the 
records are stored.
    (d) Duplication refers to the process of making a copy of a document 
necessary to fulfill a FOIA request. Such copies can take the form of, 
among other things, paper copy, microform, audio-visual materials, or 
machine-readable documentation. The copies provided shall be in a form 
that is reasonably usable by requesters.
    (e) Educational institution refers to a preschool, a public or 
private elementary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, and an institution of vocational education, 
which operates a program of scholarly research.
    (f) Freedom of Information Act Officer means the person designated 
by the Chairman to administer the FOIA.
    (g) Non-commercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis as that term is used in 
Sec. 517.2(a), commercial-use requester, and which is operated solely 
for the purpose of conducting scientific research the results of which 
are not intended to promote any particular product or industry.
    (h) Representative of the news media refers to any person actively 
gathering

[[Page 863]]

news for an entity that is organized and operated to publish or 
broadcast news to the public. The term ``news'' means information that 
is about current events or that would be of current interest to the 
public.
    (i) Requester means any person, including an individual, Indian 
tribe, partnership, corporation, association, or public or private 
organization other than a Federal agency, that requests access to 
records in the possession of the Commission.
    (j) Review refers to the process of examining a record, in response 
to a FOIA request, to determine whether any portion of that record may 
be withheld under one or more of the FOIA Exemptions. It also includes 
processing of any record for disclosure, for example, redacting 
information that is exempt from disclosure under the FOIA. Review does 
not include time spent resolving general legal or policy issues 
regarding the use of FOIA Exemptions.
    (k) Search refers to the time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within a document. The Commission shall 
ensure that searches are conducted in the most efficient and least 
expensive manner reasonably possible.
    (l) Submitter means any person or entity who provides information 
directly or indirectly to the Commission. The term includes, but is not 
limited to, corporations, Indian tribal governments, state governments 
and foreign governments.
    (m) Working day means a federal workday that does not include 
Saturdays, Sundays or federal holidays.



Sec. 517.3  Requests for records.

    (a) Form of requests. Requests for records made pursuant to the FOIA 
may be in writing, specifically invoke the Act, and be addressed to the 
FOIA Officer, Suite 250, 1850 M St., NW., Washington, DC 20036-5803. 
Requests may also be made in person at the same address, where records 
will be available for inspection on the premises. Requests for records 
shall describe the records requested with enough specificity to enable 
Commission employees to locate the information requested with a 
reasonable amount of effort. Requests shall also include a statement of 
the maximum amount of fees the requester is willing to pay to obtain the 
requested information, or if a waiver or reduction of fees seems 
appropriate, the reasons for such waiver or reduction.
    (b) Types of records not available. The FOIA does not require the 
Commission to:
    (1) Compile or create records solely for the purpose of satisfying a 
request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requester that the requested records 
have been destroyed or disposed of.



Sec. 517.4  Disclosure of requested records.

    (a) The FOIA Officer shall make requested records available to the 
public to the greatest extent possible in keeping with the FOIA, except 
that the following records are exempt from the disclosure requirements:
    (1) Records specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and which are, in fact, properly classified pursuant to 
such Executive order;
    (2) Records related solely to the internal personnel rules and 
practices of the Commission;
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. Sec. 552(b)) provided that such statute requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue or that the statute establishes particular 
criteria for withholding information or refers to particular types of 
matters to be withheld;
    (4) Records containing trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other

[[Page 864]]

than an agency in litigation with the Commission;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and in the case of a recorded or information 
compiled by criminal law enforcement authority in the course of a 
criminal investigation or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Records contained in or related to examination, operating, or 
condition reports prepared by, or on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions;
    (9) Geological or geophysical information and data, including maps, 
concerning wells.
    (b) If a requested record contains exempted material along with 
nonexempted material, all reasonable segregable nonexempt material shall 
be disclosed.
    (c) The FOIA Officer may disclose requested information falling 
within the exemptions of paragraphs (a)(1)-(a)(3), (a)(5), (a)(6), 
(a)(8) and (a)(9) of this section, if to do so would further the 
purposes and policies of the FOIA and the IGRA. The FOIA Officer shall 
not disclose requested information falling within the exemptions of 
paragraphs (a)(4) and (a)(7) of this section.



Sec. 517.5  Confidential commercial information.

    (a) Notice to submitters. The Commission shall, to the extent 
permitted by law, provide a submitter who provides confidential 
commercial information to the Commission, with prompt notice of a FOIA 
request or administrative appeal encompassing the confidential 
commercial information if the Commission may be required to disclose the 
information under the FOIA. Such notice shall either describe the exact 
nature of the information requested or provide copies of the records or 
portions thereof containing the confidential commercial information. The 
Commission shall also notify the requester that notice and an 
opportunity to object has been given to the submitter.
    (b) When notice is required. Notice shall be given to a submitter 
when:
    (1) The information has been designated by the submitter as 
confidential commercial information protected from disclosure. 
Submitters of confidential commercial information shall use good faith 
efforts to designate, either at the time of submission or a reasonable 
time thereafter, those portions of their submissions they deem protected 
from disclosure under Exemption 4 of the FOIA because disclosure could 
reasonably be expected to cause substantial competitive harm. Such 
designation shall be deemed to have expired ten years after the date of 
submission, unless the requester provides reasonable justification for a 
designation period of greater duration; or
    (2) The FOIA Officer has reason to believe that the information may 
be protected from disclosure under Exemption 4 of the FOIA.
    (c) Opportunity to object to disclosure. The Commission shall afford 
a submitter a reasonable period of time to

[[Page 865]]

provide the Commission with a detailed written statement of any 
objection to disclosure. The statement shall specify all grounds for 
withholding any of the information under any exemption of the FOIA, and 
if Exemption 4 applies, shall demonstrate the reasons the submitter 
believes the information to be confidential commercial information that 
is exempt from disclosure. Whenever possible, the submitters claim of 
confidentiality shall be supported by a statement or certification by an 
officer or authorized representative of the submitter. Information 
provided by a submitter pursuant to this paragraph may itself be subject 
to disclosure under the FOIA.
    (d) Notice of intent to disclose. The FOIA Officer shall carefully 
consider a submitter's objections and specific grounds for nondisclosure 
prior to determining whether to disclose the information requested. 
Whenever the FOIA Officer determines that disclosure is appropriate, the 
FOIA Officer shall, within a reasonable number of days prior to 
disclosure, provide the submitter with written notice of the intent to 
disclose which shall include a statement of the reasons for which the 
submitter's objections were overruled, a description of the information 
to be disclosed, and a specified disclosure date. The FOIA Officer shall 
also notify the requester that the requested records will be made 
available.
    (e) Notice of lawsuit. When a requester brings suit seeking to 
compel disclosure of confidential commercial information, the FOIA 
Officer shall promptly notify the submitter of this action.
    (f) Exceptions to the notice requirements under this section. The 
notice requirements under paragraphs (a) and (b) of this section shall 
not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than the 
FOIA);
    (4) The information requested is not designated by the submitter as 
exempt from disclosure in accordance with this part, when the submitter 
had the opportunity to do so at the time of submission of the 
information or within a reasonable time thereafter, unless the agency 
has substantial reason to believe that disclosure of the information 
would result in competitive harm; or
    (5) The designation made by the submitter in accordance with this 
part appears obviously frivolous. When the FOIA Officer determines that 
a submitter was frivolous in designating information as confidential, 
the FOIA Officer must provide the submitter with written notice of any 
final administrative disclosure determination within a reasonable number 
of days prior to the specified disclosure date, but no opportunity to 
object to disclosure will be offered.



Sec. 517.6  Response to requests for records.

    (a) Initial determinations. (1) The FOIA Officer shall make an 
initial determination regarding access to the requested information and 
shall so notify the requester within ten (10) working days after receipt 
of the request. This 10-day period may be extended ten (10) additional 
working days if unusual circumstances arise. If an extension is 
necessary, the FOIA Officer shall promptly notify the requester of the 
extension, briefly stating the reasons for the extension, and estimating 
when the FOIA Officer will respond. Unusual circumstances warranting 
extension are:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of records which are demanded in a single request; or
    (iii) The need for consultation with another agency having a 
substantial interest in the determination of the request, which 
consultation shall be conducted with all practicable speed.
    (2) If the FOIA Officer decides that an initial determination cannot 
be reached within the time limits specified in paragraph (a)(1) of this 
section, he or she shall notify the requester of the reasons for the 
delay and include an estimate of when a determination will be made.

[[Page 866]]

    (3) If no initial determination has been made at the end of the 10-
day period provided in paragraph (a)(1) of this section, including any 
extension, the requester may appeal the action to the FOIA Appeals 
Officer.
    (4) If the FOIA Officer determines that another agency is 
responsible for responding to a request or part thereof, the FOIA 
Officer shall refer such request to the appropriate agency. The FOIA 
Officer shall inform the requester of the referral and of the name and 
address of the agency or agencies to which the request has been 
referred.
    (b) Granting of requests. When the FOIA Officer determines that the 
requested records shall be made available, he or she shall:
    (1) Provide copies of the requested records; or
    (2) Notify the requester of his or her decision, including a brief 
statement of when and how the records will be provided. Requested 
records shall then be promptly made available.
    (c) Denial of requests. When the FOIA Officer determines that access 
to requested records should be denied, he or she shall notify the 
requester of the denial, the grounds for withholding the records, and 
the procedures for appeal of the denial.



Sec. 517.7  Appeals.

    (a) Right of appeal. A requester may appeal to the FOIA Appeals 
Officer any adverse determination.
    (b) Notice of appeal--(1) Time for appeal. An appeal must be 
received no later than thirty (30) working days after notification of 
denial of access or after the time limit for response by the FOIA 
Officer has expired.
    (2) Form of appeal. An appeal shall be initiated by filing a written 
notice of appeal. The notice shall be accompanied by copies of the 
original request and the initial denial. To expedite the appellate 
process and give the requester an opportunity to present his or her 
arguments, the notice should contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error. The 
appeal shall be addressed to the Freedom of Information Act Appeals 
Officer, National Indian Gaming Commission, 1850 M St., NW., suite 250, 
Washington, DC 20036.
    (c) Final agency determinations. The FOIA Appeals Officer shall 
issue a final written determination, stating the basis for its decision, 
within twenty (20) working days after receipt of a notice of appeal. If 
the determination is to provide access to the requested records, the 
FOIA Officer shall make those records immediately available to the 
requester. If the determination upholds the denial of access to the 
requested records, the FOIA Appeals Officer shall notify the requester 
of the determination and the right of the requester to obtain judicial 
review in the appropriate federal district court.



Sec. 517.8  Fees.

    (a) In general. Fees pursuant to the FOIA shall be assessed 
according to the schedule contained in paragraph (b) of this section for 
services rendered by the Commission in response to requests for records 
under this part. All fees shall be charged to the requester, except 
where the charging of fees is limited under paragraph (d) of this 
section or where a waiver or reduction of fees is granted under 
paragraph (c) of this section. Requesters shall pay fees by check or 
money order made payable to the Treasury of the United States.
    (b) Charges for responding to FOIA requests. The following fees 
shall be assessed in responding to requests for records submitted under 
this part, unless a waiver or reduction of fees has been granted 
pursuant to paragraph (c) of this section:
    (1) Copies. The Commission shall charge $0.10 per page for copies of 
documents up to 8\1/2\x14. For copies prepared by 
computer, the Commission will charge actual costs of production of the 
computer printouts, including operator time. For other methods of 
reproduction, the Commission shall charge the actual costs of producing 
the documents.
    (2) Searches. (i) Manual searches. Whenever feasible, the Commission 
will charge at the salary rate (basic pay plus a percent for benefits) 
of the employee or employees performing the search. However, where a 
homogenous class of personnel is used exclusively in

[[Page 867]]

a search (e.g. all administrative/clerical or all professional/
executive), the Commission shall charge $12.50 per hour for clerical 
time and $30.00 per hour for professional time. Charges for search time 
less than a full hour will be in increments of quarter hours.
    (ii) Computer searches. The Commission will charge the actual direct 
costs of conducting computer searches. These direct costs shall include 
the cost of operating the central processing unit for that portion of 
operating time that is directly attributable to searching for requested 
records, as well as the costs of operator/programmer salary 
apportionable to the search. The Commission is not required to alter or 
develop programming to conduct searches.
    (3) Review fees. Review fees shall be assessed only with respect to 
those requesters who seek records for a commercial use under paragraph 
(d)(1) of this section. Review fees shall be assessed at the same rates 
as those listed under paragraph (b)(2)(i) of this section. Review fees 
shall be assessed only for the initial record review, for example, 
review undertaken when the Commission analyzes the applicability of a 
particular exemption to a particular record or portion thereof at the 
initial request level. No charge shall be assessed at the administrative 
appeal level of an exemption already applied.
    (c) Statutory waiver. Documents shall be furnished without charge or 
at a charge below that listed in paragraphs (b) of this section where it 
is determined, based upon information provided by a requester or 
otherwise made known to the FOIA Officer, that disclosure of the 
requested information is in the public interest. Disclosure is in the 
public interest if it is likely to contribute significantly to public 
understanding of government operations and is not primarily for 
commercial purposes. Requests for a waiver or reduction of fees shall be 
considered on a case by case basis. In order to determine whether the 
fee waiver requirement is met, the FOIA Officer shall consider the 
following six factors:
    (1) The subject of the request. Whether the subject of the requested 
records concerns the operations or activities of the government;
    (2) The informative value of the information to be disclosed. 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (3) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to public understanding;
    (4) The significance of the contribution to public understanding. 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities;
    (5) The existence and magnitude of commercial interest. Whether the 
requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (6) The primary interest in disclosure. Whether the magnitude of the 
identified commercial interest of the requester is sufficiently large, 
in comparison with the public interest in disclosure, that disclosure is 
primarily in the commercial interest of the requester.
    (d) Types of requesters. There are four categories of FOIA 
requesters: commercial use requesters, educational and non-commercial 
scientific institutional requesters, representatives of the news media, 
and all other requesters. These terms are defined in Sec. 517.2. 
Specific levels of fees are prescribed below for each of these 
categories.
    (1) Commercial-use requesters. The FOIA Officer shall charge 
commercial use requesters the full direct costs of searching for, 
reviewing, and duplicating requested records.
    (2) Educational and non-commercial scientific institution 
requesters. The FOIA Officer shall charge educational and non-commercial 
scientific institution requesters for document duplication only, except 
that the first 100 pages of copies shall be provided without charge.
    (3) News media requesters. The FOIA Officer shall charge news media 
requesters for document duplication costs only, except that the first 
100 pages of paper copies shall be provided without charge.
    (4) All other requesters. The FOIA Officer shall charge requesters 
who do not

[[Page 868]]

fall into any of the above categories fees which recover the full 
reasonable direct costs incurred for searching for and reproducing 
records if that total cost exceeds $15.00, except that the first 100 
pages and the first two hours of manual search time shall not be 
charged. To apply this term to computer searches, the FOIA Officer will 
determine the total hourly cost of operating the central processing unit 
and the operator's salary (plus 16 percent for benefits). When the cost 
of the search equals the equivalent dollar amount of two hours of the 
salary of the person performing the search, the FOIA Officer will begin 
assessing charges for the computer search.
    (e) Charges for unsuccessful searches. Ordinarily, no charge will be 
assessed when requested records are not found or when the records 
located are withheld as exempt. However, if the requester has been 
notified of the estimated cost of the search time and has been advised 
specifically that the requested records may not exist or may be withheld 
as exempt, fees may be charged.
    (f) Charges for interest. The FOIA Officer may assess interest 
charges on an unpaid bill, accrued under previous FOIA request(s), 
starting on the 31st day following the day on which the bill was sent to 
the requester. A fee received by the FOIA Officer, even if not 
processed, will result in a stay of the accrual of interest. The 
Commission shall follow the provisions of the Debt Collection Act of 
1982 and the implementing procedures to recover any indebtedness owed to 
the Commission.
    (g) Aggregating requests. A requester or a group of requesters may 
not submit multiple requests at the same time, each seeking portions of 
a document or documents solely in order to avoid payment of fees. When 
the Commission reasonably believes that a requester is attempting to 
divide a request into a series of requests to evade an assessment of 
fees, the Commission may aggregate such request and charge accordingly.
    (h) Advance payment of fees. Fees may be paid upon provision of the 
requested records, except that payment may be required prior to that 
time if the requester has previously failed to pay fees or if the FOIA 
Officer determines the total fee will exceed $250. When payment is 
required in advance of the processing of a request, the time limits 
prescribed in Sec. 517.6 shall not be deemed to begin until the FOIA 
Officer has received payment of the assessed fee.
    (i) Payment of fees. Where it is anticipated that the cost of 
providing the requested record will exceed $25.00 after the free 
duplication and search time has been calculated, and the requester has 
not indicated in advance a willingness to pay a fee greater than $25.00, 
the FOIA Officer shall promptly notify the requester of the amount of 
the anticipated fee or a portion thereof, which can readily be 
estimated. The notification shall offer the requesting party an 
opportunity to confer with agency representatives for the purpose of 
reformulating the request so as to meet the requester's needs at a 
reduced cost.



PART 518_SELF REGULATION OF CLASS II GAMING--Table of Contents




Sec.
518.1 What does this part cover?
518.2 Who may petition for a certificate of self-regulation?
518.3 What must a tribe submit to the Commission as part of its 
          petition?
518.4 What criteria must a tribe meet to receive a certificate of self-
          regulation?
518.5 What process will the Commission use to review petitions?
518.6 When will a certificate of self-regulation become effective?
518.7 If a tribe holds a certificate of self-regulation, is it required 
          to report information to the Commission to maintain its self-
          regulatory status?
518.8 Does a tribe that holds a certificate of self-regulation have a 
          continuous duty to advise the Commission of any information?
518.9 Are any of the investigative or enforcement powers of the 
          Commission limited by the issuance of a certificate of self-
          regulation?
518.10 Under what circumstances may the Commission remove a certificate 
          of self-regulation?
518.11 May a tribe request a hearing on the Commission's proposal to 
          remove its certificate?
518.12 May a tribe request reconsideration by the Commission of a denial 
          of a petition or a removal of a certificate of self-
          regulation?


[[Page 869]]


    Authority: 25 U.S.C. 2706(b)(10), 2710(c)(3)-(6).

    Source: 63 FR 41969, Aug. 6, 1998, unless otherwise noted.



Sec. 518.1  What does this part cover?

    This part sets forth requirements for obtaining, and procedures 
governing, the Commission's issuance of certificates of self-regulation 
of class II gaming operations under 25 U.S.C. 2710(c). When the 
Commission issues a certificate of self-regulation, the certificate is 
issued to the tribe, not to a particular gaming operation; the 
certificate will apply to all class II gaming operations operated by the 
tribe that holds the certificate.



Sec. 518.2  Who may petition for a certificate of self-regulation?

    A tribe may submit to the Commission a petition for self-regulation 
of class II gaming if, for the three (3) year period immediately 
preceding the date of its petition:
    (a) The tribe has continuously conducted the gaming activity for 
which it seeks self-regulation;
    (b) All gaming that the tribe has engaged in, or licensed and 
regulated, on Indian lands within the tribe's jurisdiction, is located 
within a State that permits such gaming for any purpose by any person, 
organization or entity (and such gaming is not otherwise specifically 
prohibited on Indian lands by federal law), in accordance with 25 U.S.C. 
2710(b)(1)(A);
    (c) The governing body of the tribe has adopted an ordinance or 
resolution that the Chairman has approved, in accordance with 25 U.S.C. 
2710(b)(1)(B);
    (d) The tribe has otherwise complied with the provisions of 25 
U.S.C. 2710; and
    (e) The gaming operation and the tribal regulatory body have, for 
the three years immediately preceding the date of the petition, 
maintained all records required to support the petition for self-
regulation.



Sec. 518.3  What must a tribe submit to the Commission as part of its 
petition?

    (a) A petition for a certificate of self-regulation under this part 
shall contain:
    (1) Two copies on 8-1/2x11 paper of a petition 
for self-regulation approved by the governing body of the tribe and 
certified as authentic by an authorized tribal official, which includes:
    (i) A brief history of each gaming operation(s), including the 
opening dates and periods of voluntary or involuntary closure;
    (ii) An organizational chart of the independent tribal regulatory 
body;
    (iii) A description of the process by which all employee and 
regulator positions at the independent tribal regulatory body are 
filled, including qualifying and disqualifying criteria;
    (iv) A description of the process by which the independent tribal 
regulatory body is funded and the funding level for the three years 
immediately preceding the date of the petition;
    (v) A list of the current regulators and employees of the 
independent tribal regulatory body, their titles, the dates they began 
employment, and, if serving limited terms, the expiration date of such 
terms;
    (vi) A list of the current gaming operation division heads; and
    (vii) A report, with supporting documentation, including a sworn 
statement signed by an authorized tribal official, which explains how 
tribal net gaming revenues were used in accordance with the requirements 
of 25 U.S.C. 2710(b)(2)(B);
    (2) A descriptive list of the documents maintained by the tribe, 
together with an assurance that the listed documents or records are 
available for the Commission's review for use in determining whether the 
tribe meets the eligibility criteria of Sec. 518.2 and the approval 
criteria of Sec. 518.4, which shall include but is not limited to:
    (i) The tribe's constitution or other governing documents;
    (ii) If applicable, the tribe's revenue allocation plan pursuant to 
25 U.S.C. 2710(b)(3);
    (iii) A description of the accounting system(s) at both the gaming 
operation and the tribe that account for the flow of the gaming revenues 
from receipt to their ultimate use, consistent with IGRA;
    (iv) Manual(s) of the internal control systems of the gaming 
operation(s);

[[Page 870]]

    (v) A description of the record keeping system for all allegations 
of criminal or dishonest activity for the three (3)-year period 
immediately preceding the date of the petition, and measures taken to 
resolve the allegations;
    (vi) A description of the record keeping system for all 
investigations, enforcement actions, and prosecutions of violations of 
the tribal gaming ordinance or regulations, for the three (3)-year 
period immediately preceding the date of the petition, including 
dispositions thereof;
    (vii) A description of the personnel record keeping system of all 
current employees of the gaming operation(s);
    (viii) The dates of issuance, and criteria for the issuance of 
tribal gaming licenses issued for each place, facility or location at 
which gaming is conducted; and
    (ix) The tribe's current set of gaming regulations; and
    (3) A copy of the public notice required under 25 CFR 518.5(d) and a 
certification, signed by a tribal official, that it has been posted. 
Upon publication of the notice in a local newspaper, the tribe shall 
forward an affidavit of publication to the Commission.



Sec. 518.4  What criteria must a tribe meet to receive a certificate 
of self-regulation?

    (a) The Commission shall issue a certificate of self-regulation if 
it determines that the tribe has, for the three years immediately 
preceding the petition:
    (1) Conducted its gaming activity in a manner that:
    (i) Has resulted in an effective and honest accounting of all 
revenues;
    (ii) Has resulted in a reputation for safe, fair, and honest 
operation of the activity; and
    (iii) Has been generally free of evidence of criminal or dishonest 
activity;
    (2) Adopted and is implementing adequate systems for:
    (i) Accounting of all revenues from the activity;
    (ii) Investigation, licensing and monitoring of all employees of the 
gaming activity; and
    (iii) Investigation, enforcement and prosecution of violations of 
its gaming ordinance and regulations;
    (3) Conducted the operation on a fiscally and economically sound 
basis; and
    (4) The gaming activity has been conducted in compliance with the 
IGRA, NIGC regulations in this chapter, and the tribe's gaming ordinance 
and gaming regulations.
    (b) Indicators that a tribe has met the criteria set forth in 
paragraph (a) of this section may include, but are not limited to:
    (1) Adoption and implementation of minimum internal control 
standards which are at least as stringent as those promulgated by the 
Commission, or until such standards are promulgated by the Commission, 
minimum internal control standards at least as stringent as those 
required by the State of Nevada or the State of New Jersey;
    (2) Evidence that suitability determinations are made with respect 
to tribal gaming regulators which are at least as stringent as those 
required for key employees and primary management officials of the 
gaming operation(s);
    (3) Evidence of an established independent regulatory body within 
the tribal government which:
    (i) Monitors gaming activities to ensure compliance with federal and 
tribal laws and regulations;
    (ii) Promulgates tribal gaming regulations pursuant to tribal law;
    (iii) Ensures that there is an adequate system for accounting of all 
revenues from the activity and monitors such system for continued 
effectiveness;
    (iv) Performs routine operational or other audits of the gaming 
operation(s);
    (v) Routinely receives and reviews accounting information from the 
gaming operation(s);
    (vi) Has access to and may inspect, examine, photocopy and audit all 
papers, books, and records of the gaming operation(s);
    (vii) Provides ongoing information to the tribe on the status of the 
tribe's gaming operation(s);
    (viii) Monitors compliance with minimum internal control standards 
for the gaming operation;

[[Page 871]]

    (ix) Adopts and implements an adequate system for investigation, 
licensing, and monitoring of all employees of the gaming activity;
    (x) Maintains records on licensees and on persons denied licenses 
including persons otherwise prohibited from engaging in gaming 
activities within the tribe's jurisdiction;
    (xi) Inspects and examines all premises where gaming is conducted;
    (xii) Establishes standards for and issues vendor licenses or 
permits to persons or entities who deal with the gaming operation, such 
as manufacturers and suppliers of services, equipment and supplies;
    (xiii) Establishes or approves, and requires the posting of, rules 
of games;
    (xiv) Inspects games, tables, equipment, cards, and chips or tokens 
used in the gaming operation(s);
    (xv) Establishes standards for technological aids and tests such for 
compliance with standards;
    (xvi) Establishes or approves video surveillance standards;
    (xvii) Adopts and implements an adequate system for the 
investigation of possible violations of the tribal gaming ordinance and 
regulations and takes appropriate enforcement actions;
    (xviii) Determines that there are adequate dispute resolution 
procedures for gaming operation employees and customers, and ensures 
that such system is adequately implemented; and
    (xix) Takes testimony and conducts hearings on regulatory matters, 
including matters related to the revocation of primary management 
officials and key employee licenses;
    (4) Documentation of a sufficient source of permanent and stable 
funding for the independent tribal regulatory body which is allocated 
and appropriated by the tribal governing body;
    (5) Adoption of a conflict of interest policy for the regulators/
regulatory body and their staff;
    (6) Evidence that the operation is financially stable;
    (7) Adoption and implementation of a system for adequate prosecution 
of violations of the tribal gaming ordinance and regulations, which may 
include the existence of a tribal court system authorized to hear and 
decide gaming related cases;
    (8) Evidence that the operation is being conducted in a safe manner, 
which may include, but not be limited to:
    (i) The availability of medical, fire, and emergency services;
    (ii) The existence of an evacuation plan; and
    (iii) Proof of compliance with applicable building, health, and 
safety codes; and
    (9) Evidence that reports are produced or received by the tribe, the 
tribal regulatory body, or the gaming operation based on an evaluation 
of the internal controls of the gaming operation during the three (3) 
year period immediately preceding the date of the petition.
    (c) The burden of establishing self-regulation is upon the tribe 
filing the petition.
    (d) During the review of the petition, the Commission shall have 
complete access to all areas of and all papers, books, and records of 
the tribal regulatory body, the gaming operation, and any other entity 
involved in the regulation or oversight of the gaming operation. The 
Commission shall be allowed to inspect and photocopy any relevant 
materials. The tribe shall take no action to prohibit the Commission 
from soliciting information from any current or former employees of the 
tribe, the tribal regulatory body, or the gaming operation. Failure to 
adhere to this paragraph may be grounds for denial of a petition for 
self-regulation.



Sec. 518.5  What process will the Commission use to review petitions?

    (a) The Chairman shall appoint one Commissioner to administer the 
Office of Self Regulation. The Office of Self Regulation shall undertake 
an initial review of the petition to determine whether the tribe meets 
all of the eligibility criteria of Sec. 518.2. If the tribe fails to 
meet any of the eligibility criteria, the Office of Self Regulation 
shall deny the petition and so notify the tribe. If the tribe meets all 
of the eligibility criteria, the Office of Self Regulation shall review 
the petition and accompanying documents for completeness. If the Office 
of Self Regulation finds the petition incomplete, it shall immediately 
notify the tribe by

[[Page 872]]

letter, certified mail, return receipt requested, of any obvious 
deficiencies or significant omissions apparent in the petition and 
provide the tribe with an opportunity to submit additional information 
and/or clarification.
    (b) The Office of Self Regulation shall notify a tribe, by letter, 
when it considers a petition to be complete.
    (c) Upon receipt of a complete petition, the Office of Self 
Regulation shall conduct a review and investigation to determine whether 
the tribe meets the approval criteria under Sec. 518.4. During the 
course of this review, the Office of Self Regulation may request from 
the tribe any additional material it deems necessary to assess whether 
the tribe has met the requirements for self-regulation. The tribe shall 
provide all information requested by the Office of Self Regulation in a 
timely manner. The Office of Self Regulation may consider any evidence 
which may be submitted by interested or informed parties. The Office of 
Self Regulation shall make all such information on which it relies in 
making its determination available to the Tribe and shall afford the 
Tribe an opportunity to respond.
    (d) The tribe shall post a notice, contemporaneous with the filing 
of the petition, advising the public that it has petitioned the 
Commission for a certificate of self regulation. Such notice shall be 
posted in conspicuous places in the gaming operation and the tribal 
government offices. Such notice shall remain posted until the Commission 
either issues a certificate or declines to do so. The tribe shall also 
publish such notice, once a week for four weeks, in a local newspaper 
with a broad based circulation. Both notices shall state that one of the 
criteria for the issuance of a certificate is that the tribe has a 
reputation for safe, fair, and honest operation of the gaming activity, 
and shall solicit comments in this regard. The notices shall instruct 
commentors to submit their comments directly to the Office of Self 
Regulation, shall provide the mailing address of the Commission and 
shall request that commentors include their name, address and day time 
telephone number.
    (e) After making an initial determination on the petition, the 
Office of Self Regulation shall issue a report of its findings to the 
tribe.
    (1) If the Office of Self Regulation determines that the tribe has 
satisfied the criteria for a certificate of self regulation, it shall so 
indicate in its report and shall issue a certificate in accordance with 
25 CFR 518.6.
    (2) If the Office of Self Regulation's initial determination is that 
a tribe has not met the criteria for a certificate of self regulation, 
it shall so advise the tribe in its report and the tribe shall have 60 
days from the date of service of the report to submit to the Office of 
Self Regulation a written response to the report. This response may 
include additional materials which:
    (i) The tribe deems necessary to adequately respond to the findings; 
and
    (ii) The tribe believes supports its petition.
    (f) At the time of the submission of its response the tribe may 
request a hearing before the Office of Self Regulation. This request 
shall specify the issues to be addressed by the tribe at such hearing, 
and any proposed oral or written testimony the tribe wishes to present. 
The Office of Self Regulation may limit testimony.
    (g) The Office of Self Regulation shall notify the tribe, within 10 
days of receipt of such request, of the date and place of the hearing. 
The Office of Self Regulation shall also set forth the schedule for the 
conduct of the hearing, including the specification of all issues to be 
addressed at the hearing, the identification of any witnesses, the time 
allotted for testimony and oral argument, and the order of the 
presentation.
    (h) Following review of the tribe's response and the conduct of the 
hearing, the Office of Self Regulation shall issue a decision on the 
petition. The decision shall set forth with particularity the findings 
with respect to the tribe's compliance with standards for self-
regulation set forth in this part. If the Office of Self Regulation 
determines that a certificate will issue, it will do so in accordance 
with 25 CFR 518.6.
    (i) The decision to deny a petition shall be appealable to the full 
Commission. Such appeal shall be received by the Commission within 
thirty (30) days

[[Page 873]]

of service of the decision and shall include a supplemental statement 
that states with particularity the relief desired and the grounds 
therefor. The full Commission shall decide the appeal based only on a 
review of the record before it. The decision on appeal shall require a 
majority vote of the Commissioners.
    (j) The decision of the Commission to approve or deny a petition 
shall be a final agency action. A denial shall be appealable under 25 
U.S.C. 2714, subject to the provisions of Sec. 518.12. The Commission 
decision shall be effective when the time for the filing of a request 
for reconsideration pursuant to Sec. 518.12 has expired and no request 
has been filed.



Sec. 518.6  When will a certificate of self-regulation become effective?

    A certificate of self-regulation shall become effective on January 1 
of the year following the year in which the Commission determines that a 
certificate will issue. Complete petitions are due no later than June 
30. No petitions will be considered for the following January 1 
effective date that have not been received by June 30 of the previous 
year. Petitions will be reviewed and investigated in chronological order 
based on the date of receipt of a complete petition. The Commission will 
announce its determinations on December 1 for all those reviews and 
investigations it completes.



Sec. 518.7  If a tribe holds a certificate of self-regulation, is it 
required to report information to the Commission to maintain its 
self-regulatory status?

    Yes. Each tribe that holds a certificate of self-regulation shall be 
required to submit a self-regulation report annually to the Commission 
in order to maintain its self-regulatory status. Such report shall set 
forth information to establish that the tribe has continuously met the 
eligibility requirements of Sec. 518.2 and the approval requirements of 
Sec. 518.4 and shall include a report, with supporting documentation, 
including a sworn statement signed by an authorized tribal official, 
which explains how tribal net gaming revenues were used in accordance 
with the requirements of 25 U.S.C. 2710(b)(2)(B)''. The annual report 
shall be filed with the Commission on April 15th of each year following 
the first year of self-regulation. Failure to file such report shall be 
grounds for the removal of a certificate under Sec. 518.8.



Sec. 518.8  Does a tribe that holds a certificate of self-regulation 
have a continuing duty to advise the Commission of any information?

    Yes. A tribe that holds a certificate of self-regulation has a 
continuing duty to advise immediately the Commission of any 
circumstances that may reasonably cause the Commission to review the 
tribe's certificate of self-regulation. Failure to do so is grounds for 
removal of a certificate of self-regulation. Such circumstances may 
include, but are not limited to: a change in management contractor; 
financial instability; or any other factors that are material to the 
decision to grant a certificate of self regulation.



Sec. 518.9  Are any of the investigative or enforcement powers of the 
Commission limited by the issuance of a certificate of self-regulation?

    No. Subject to the provisions of 25 U.S.C. 2710(c)(5)(A) the 
Commission retains its investigative and enforcement powers over all 
class II gaming tribes notwithstanding the issuance of a certificate of 
self-regulation. The Commission shall retain its powers to investigate 
and bring enforcement actions for violations of the Indian Gaming 
Regulatory Act, accompanying regulations, and violations of tribal 
gaming ordinances.



Sec. 518.10  Under what circumstances may the Commission remove a 
certificate of self-regulation?

    The Commission may, after an opportunity for a hearing, remove a 
certificate of self-regulation by a majority vote of its members if it 
determines that the tribe no longer meets the eligiblity criteria of 
Sec. 518.2, the approval criteria of Sec. 518.4, the requirements of 
Sec. 518.7 or the requirements of Sec. 518.8. The Commission shall 
provide the tribe with prompt notice of the Commission's intent to 
remove a certificate of self-regulation under this Part. Such notice 
shall state the reasons for the Commission's action and

[[Page 874]]

shall advise the tribe of its right to a hearing under Sec. 518. 11. 
The decision to remove a certificate is appealable to Federal District 
Court pursuant to 25 U.S.C. 2714.



Sec. 518.11  May a tribe request a hearing on the Commission's proposal 
to remove its certificate?

    Yes. A tribe may request a hearing regarding the Commission's 
proposal to remove a certificate of self regulation under Sec. 518.10. 
Such a request shall be filed with the Commission within thirty (30) 
days after the tribe receives notice of the Commission's action. Failure 
to request a hearing within the time provided by this section shall 
constitute a waiver of the right to a hearing.



Sec. 518.12  May a tribe request reconsideration by the Commission of a 
denial of a petition or a removal of a certificate of self-regulation?

    Yes. A tribe may file a request for reconsideration of a denial of a 
petition or a removal of a certificate of self-regulation within 30 days 
of receipt of the denial or removal. Such request shall set forth the 
basis for the request, specifically identifying those Commission 
findings which the tribe believes to be erroneous. The Commission shall 
issue a final decision within 30 days of receipt of the request. If the 
Commission fails to issue a decision within 30 days, the request shall 
be considered to be disapproved.



PART 519_SERVICE--Table of Contents




Sec.
519.1 Designation of an agent by a tribe.
519.2 Designation of an agent by a management contractor or a tribal 
          operator.
519.3 Methods of service.
519.4 Copy of any official determination, order, or notice of violation.

    Authority: 25 U.S.C. 2706(b)(10).

    Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.



Sec. 519.1  Designation of an agent by a tribe.

    By written notification to the Commission, a tribe shall designate 
an agent for service of any official determination, order, or notice of 
violation.



Sec. 519.2  Designation of an agent by a management contractor or a 
tribal operator.

    By written notification to the Commission, a management contractor 
or a tribal operator shall designate an agent for service of any 
official determination, order, or notice of violation.



Sec. 519.3  Methods of service.

    (a) The Chairman shall serve any official determination, order, or 
notice of violation by:
    (1) Delivering a copy to a designated agent;
    (2) Delivering a copy to the person who is the subject of the 
official determination, order, or notice of violation;
    (3) Delivering a copy to the individual who, after reasonable 
inquiry, appears to be in charge of the gaming operation that is the 
subject of the official determination, order, or notice of violation;
    (4) Mailing to the person who is the subject of the official 
determination, order, or notice of violation or to his or her designated 
agent at the last known address. Service by mail is complete upon 
mailing; or
    (5) Transmitting a facsimile to the person who is the subject of the 
official determination, order, or notice of violation or to his or her 
designated agent at the last known facsimile number. Service by 
facsimile is complete upon transmission.
    (b) Delivery of a copy means: Handing it to the person or designated 
agent (or attorney for either); leaving a copy at the person's, agent's 
or attorney's office with a clerk or other person in charge thereof; if 
there is no one in charge, leaving it in a conspicuous place therein; 
or, if the office is closed or the person to be served has no office, 
leaving it at the person's dwelling house or usual place of abode with 
some person of suitable age and discretion then residing therein.
    (c) Service shall not be deemed incomplete because of refusal to 
accept.



Sec. 519.4  Copy of any official determination, order, or notice of 
violation.

    The Commission shall transmit a copy of any official determination, 
order, or notice of violation to the tribal chairman, the designated 
tribal

[[Page 875]]

agent under Sec. 519.1, and to the relevant tribal gaming authority. 
The Commission shall transmit such copy as expeditiously as possible. 
Service under Sec. 519.3 shall not depend on a copy being sent to the 
appropriate tribal chairman, the designated tribal agent or to the 
relevant tribal gaming authority.

[[Page 876]]



     SUBCHAPTER B_APPROVAL OF CLASS II AND CLASS III ORDINANCES AND 
                               RESOLUTIONS



                        PARTS 520-521 [RESERVED]



PART 522_SUBMISSION OF GAMING ORDINANCE OR RESOLUTION--Table of Contents




Sec.
522.1 Scope of this part.
522.2 Submission requirements.
522.3 Amendment.
522.4 Approval requirements for class II ordinances.
522.5 Disapproval of a class II ordinance.
522.6 Approval requirements for class III ordinances.
522.7 Disapproval of a class III ordinance.
522.8 Publication of class III ordinance and approval.
522.9 Substitute approval.
522.10 Individually owned class II and class III gaming operations other 
          than those operating on September 1, 1986.
522.11 Individually owned class II gaming operations operating on 
          September 1, 1986.
522.12 Revocation of class III gaming.

    Authority: 25 U.S.C. 2706, 2710, 2712

    Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.



Sec. 522.1  Scope of this part.

    This part applies to any gaming ordinance or resolution adopted by a 
tribe after February 22, 1993. Part 523 of this chapter applies to all 
existing gaming ordinances or resolutions.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 522.2  Submission requirements.

    A tribe shall submit to the Chairman all of the following 
information with a request for approval of a class II or class III 
ordinance or resolution:
    (a) One copy on 8\1/2\x11 paper of an 
ordinance or resolution certified as authentic by an authorized tribal 
official and that meets the approval requirements in Sec. 522.4(b) or 
522.6 of this part;
    (b) A description of procedures to conduct or cause to be conducted 
background investigations on key employees and primary management 
officials and to ensure that key employees and primary management 
officials are notified of their rights under the Privacy Act as 
specified in Sec. 556.2 of this chapter;
    (c) A description of procedures to issue tribal licenses to primary 
management officials and key employees;
    (d) Copies of all tribal gaming regulations;
    (e) When an ordinance or resolution concerns class III gaming, a 
copy of the tribal-state compact or procedures as prescribed by the 
Secretary;
    (f) A description of procedures for resolving disputes between the 
gaming public and the tribe or the management contractor;
    (g) Designation of an agent for service under Sec. 519.1 of this 
chapter; and
    (h) Identification of a law enforcement agency that will take 
fingerprints and a description of procedures for conducting a criminal 
history check by a law enforcement agency. Such a criminal history check 
shall include a check of criminal history records information maintained 
by the Federal Bureau of Investigation.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 522.3  Amendment.

    (a) Within 15 days after adoption, a tribe shall submit for the 
Chairman's approval any amendment to an ordinance or resolution.
    (b) A tribe shall submit for the Chairman's approval any amendment 
to the submissions made under Sec. Sec. 522.2(b) through (h) of this 
part within 15 days after adoption of such amendment.



Sec. 522.4  Approval requirements for class II ordinances.

    No later than 90 days after the submission to the Chairman under 
Sec. 522.2 of this part, the Chairman shall approve the class II 
ordinance or resolution if the Chairman finds that--
    (a) A tribe meets the submission requirements contained in Sec. 
522.2 of this part; and
    (b) The class II ordinance or resolution provides that--

[[Page 877]]

    (1) The tribe shall have the sole proprietary interest in and 
responsibility for the conduct of any gaming operation unless it elects 
to allow individually owned gaming under either Sec. 522.10 or Sec. 
522.11 of this part;
    (2) A tribe shall use net revenues from any tribal gaming or from 
any individually owned games only for one or more of the following 
purposes:
    (i) To fund tribal government operations or programs;
    (ii) To provide for the general welfare of the tribe and its members 
(if a tribe elects to make per capita distributions, the plan must be 
approved by the Secretary of the Interior under 25 U.S.C. 2710(b)(3));
    (iii) To promote tribal economic development;
    (iv) To donate to charitable organizations; or
    (v) To help fund operations of local government agencies;
    (3) A tribe shall cause to be conducted independent audits of gaming 
operations annually and shall submit the results of those audits to the 
Commission;
    (4) All gaming related contracts that result in purchases of 
supplies, services, or concessions for more than $25,000 in any year 
(except contracts for professional legal or accounting services) shall 
be specifically included within the scope of the audit conducted under 
paragraph (b)(3) of this section;
    (5) A tribe shall perform background investigations and issue 
licenses for key employees and primary management officials according to 
requirements that are at least as stringent as those in parts 556 and 
558 of this chapter;
    (6) A tribe shall issue a separate license to each place, facility, 
or location on Indian lands where a tribe elects to allow class II 
gaming; and
    (7) A tribe shall construct, maintain and operate a gaming facility 
in a manner that adequately protects the environment and the public 
health and safety.



Sec. 522.5  Disapproval of a class II ordinance.

    No later than 90 days after a tribe submits an ordinance for 
approval under Sec. 522.2 of this part, the Chairman may disapprove an 
ordinance if he or she determines that a tribe failed to comply with the 
requirements of Sec. 522.2 or Sec. 522.4(b) of this part. The Chairman 
shall notify a tribe of its right to appeal under part 524 of this 
chapter. A disapproval shall be effective immediately unless appealed 
under part 524 of this chapter.



Sec. 522.6  Approval requirements for class III ordinances.

    No later than 90 days after the submission to the Chairman under 
Sec. 522.2 of this part, the Chairman shall approve the class III 
ordinance or resolution if--
    (a) A tribe follows the submission requirements contained in Sec. 
522.2 of this part;
    (b) The ordinance or resolution meets the requirements contained in 
Sec. 522.4(b) (2), (3), (4), (5), (6), and (7) of this part; and
    (c) The tribe shall have the sole proprietary interest in and 
responsibility for the conduct of any gaming operation unless it elects 
to allow individually owned gaming under Sec. 522.10 of this part.



Sec. 522.7  Disapproval of a class III ordinance.

    (a) Notwithstanding compliance with the requirements of Sec. 522.6 
of this part and no later than 90 days after a submission under Sec. 
522.2 of this part, the Chairman shall disapprove an ordinance or 
resolution and notify a tribe of its right of appeal under part 524 of 
this chapter if the Chairman determines that--
    (1) A tribal governing body did not adopt the ordinance or 
resolution in compliance with the governing documents of a tribe; or
    (2) A tribal governing body was significantly and unduly influenced 
in the adoption of the ordinance or resolution by a person having a 
direct or indirect financial interest in a management contract, a person 
having management responsibility for a management contract, or their 
agents.
    (b) A disapproval shall be effective immediately unless appealed 
under part 524 of this chapter.

[[Page 878]]



Sec. 522.8  Publication of class III ordinance and approval.

    The Chairman shall publish a class III tribal gaming ordinance or 
resolution in the Federal Register along with the Chairman's approval 
thereof.



Sec. 522.9  Substitute approval.

    If the Chairman fails to approve or disapprove an ordinance or 
resolution submitted under Sec. 522.2 of this part within 90 days after 
the date of submission to the Chairman, a tribal ordinance or resolution 
shall be considered to have been approved by the Chairman but only to 
the extent that such ordinance or resolution is consistent with the 
provisions of the Act and this chapter.



Sec. 522.10  Individually owned class II and class III gaming operations 
other than those operating on September 1, 1986.

    For licensing of individually owned gaming operations other than 
those operating on September 1, 1986 (addressed under Sec. 522.11 of 
this part), a tribal ordinance shall require:
    (a) That the gaming operation be licensed and regulated under an 
ordinance or resolution approved by the Chairman;
    (b) That income to the tribe from an individually owned gaming 
operation be used only for the purposes listed in Sec. 522.4(b)(2) of 
this part;
    (c) That not less than 60 percent of the net revenues be income to 
the Tribe;
    (d) That the owner pay an assessment to the Commission under Sec. 
514.1 of this chapter;
    (e) Licensing standards that are at least as restrictive as those 
established by State law governing similar gaming within the 
jurisdiction of the surrounding State; and
    (f) Denial of a license for any person or entity that would not be 
eligible to receive a State license to conduct the same activity within 
the jurisdiction of the surrounding State. State law standards shall 
apply with respect to purpose, entity, pot limits and hours of 
operation.



Sec. 522.11  Individually owned class II gaming operations operating 
on September 1, 1986.

    For licensing of individually owned gaming operations operating on 
September 1, 1986, under Sec. 502.3(e) of this chapter, a tribal 
ordinance shall contain the same requirements as those in Sec. 
522.10(a)-(d) of this part.



Sec. 522.12  Revocation of class III gaming.

    A governing body of a tribe, in its sole discretion and without the 
approval of the Chairman, may adopt an ordinance or resolution revoking 
any prior ordinance or resolution that authorizes class III gaming.
    (a) A tribe shall submit to the Chairman on 8\1/
2\x11 paper one copy of any revocation ordinance 
or resolution certified as authentic by an authorized tribal official.
    (b) The Chairman shall publish such ordinance or resolution in the 
Federal Register and the revocation provided by such ordinance or 
resolution shall take effect on the date of such publication.
    (c) Notwithstanding any other provision of this section, any person 
or entity operating a class III gaming operation on the date of 
publication in the Federal Register under paragraph (b) of this section 
may, during a one-year period beginning on the date of publication, 
continue to operate such operation in conformance with a tribal-state 
compact.
    (d) A revocation shall not affect--
    (1) Any civil action that arises during the one-year period 
following publication of the revocation; or
    (2) Any crime that is committed during the one-year period following 
publication of the revocation.



PART 523_REVIEW AND APPROVAL OF EXISTING ORDINANCES OR RESOLUTIONS
--Table of Contents




Sec.
523.1 Scope of this part.
523.2 Submission requirements.
523.3 Review of an ordinance or resolution.
523.4 Review of an amendment.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5812, Jan. 22, 1993, unless otherwise noted.

[[Page 879]]



Sec. 523.1  Scope of this part.

    This part applies to a class II or a class III gaming ordinance or 
resolution enacted by a tribe prior to February 22, 1993, and that has 
not been submitted to the Chairman.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 523.2  Submission requirements.

    (a) Within 60 days after a request by the Chairman, a tribe shall:
    (1) Submit for review and approval all items required under Sec. 
522.2 of this chapter; and
    (2) For each gaming operation submit the financial statements for 
the previous fiscal year and the most recent audit report and management 
letter.
    (b) If a tribe fails to submit all items under Sec. 522.2 of this 
chapter within 60 days, the Chairman shall deem the ordinance or 
resolution disapproved and shall notify the tribe of its right to appeal 
under part 524.



Sec. 523.3  Review of an ordinance or resolution.

    Within 90 days after receipt of a submission under Sec. 523.2 of 
this part, the Chairman shall subject the ordinance or resolution to the 
standards in part 522 of this chapter.
    (a) For class II and class III gaming, if the Chairman determines 
that an ordinance or resolution submitted under this part meets the 
approval and submission requirements of part 522 of this chapter and the 
Chairman finds the annual financial statements are included in the 
submission, the Chairman shall approve the ordinance or resolution.
    (b) If an ordinance or resolution fails to meet the requirements for 
review under part 522 of this chapter or if a tribe fails to submit the 
annual financial statement, the Chairman shall notify a tribe in writing 
of the specific areas of noncompliance.
    (c) The Chairman shall allow a tribe 120 days from receipt of such 
notice to bring the ordinance or resolution into compliance with the 
requirements of part 522 of this chapter or to submit an annual 
financial statement, or both.
    (d) At the end of the 120-day period provided under paragraph (c) of 
this section, or earlier if the tribe notifies the Chairman that it 
intends not to comply, the Chairman shall disapprove any ordinance or 
resolution if a tribe fails to amend according to the notification made 
under paragraph (b) of this section.



Sec. 523.4  Review of an amendment.

    Within 90 days after receipt of an amendment, the Chairman shall 
subject the amendment to the standards in part 522 of this chapter.
    (a) If the Chairman determines that an amendment meets the approval 
and submission requirements of part 522 of this chapter, the Chairman 
will approve the amendment.
    (b) If an amendment fails to meet the requirements for review under 
part 522 of this chapter, the Chairman shall notify the tribe in writing 
of the specific areas of noncompliance.
    (c) If the Chairman fails to disapprove a submission under paragraph 
(a) or (b) of this section within 90 days after the date of submission 
to the Chairman, a tribal amendment shall be considered to have been 
approved by the Chairman but only to the extent that such amendment is 
consistent with the provisions of the Act and this chapter.



PART 524_APPEALS--Table of Contents




Sec.
524.1 Appeals by a tribe.
524.2 Limited participation by an entity other than a tribe.
524.3 Decisions on appeals.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5812, Jan. 22, 1993, unless otherwise noted.



Sec. 524.1  Appeal by a tribe.

    A tribe may appeal disapproval of a gaming ordinance, resolution or 
amendment under part 522 or 523 of this chapter. An appeal shall be 
filed with the Commission within 30 days after the Chairman serves his 
or her determination under part 519 of this chapter. Such an appeal 
shall state succinctly why the tribe believes the Chairman's 
determination to be erroneous, and shall include supporting 
documentation, if any. Failure to file an appeal within the time 
provided by

[[Page 880]]

this section shall result in a waiver of the opportunity for an appeal.



Sec. 524.2  Limited participation by an entity other than a tribe.

    (a) An entity other than a tribe may request to participate in an 
appeal of a disapproval under part 522 or part 523 of this chapter by 
filing a written submission. Such written submission shall:
    (1) State the property, financial, or other interest of the party in 
the appeal; and
    (2) The reasons why the action of the Chairman in disapproving an 
ordinance, resolution or amendment may be in error or the reasons why 
the Chairman's disapproval should be upheld by the Commission. The 
reasons shall address the approval requirements under Sec. Sec. 522.4, 
522.5, 522.6, 522.7, 523.2 of this chapter.
    (b) The Commission shall forward a copy of a request under paragraph 
(a) of this section to the party of record under Sec. 524.1 of this 
part.
    (c) The Commission shall review a request under this section and 
timely notify the requester of its determination. Such notification 
shall supply the reasons for the determination. The Commission shall 
also notify the party of record on appeal under Sec. 524.1 of its 
determination.
    (d) The Commission shall limit the extent of participation by an 
entity other than a tribe to one written submission as described under 
paragraph (a) of this section, unless the Commission determines further 
participation would substantially contribute to the record.



Sec. 524.3  Decisions on appeals.

    (a) Within 90 days after it receives the appeal, the Commission 
shall render its decision on the appeal.
    (b) The Commission shall notify the party of record under Sec. 
524.1 of this part and any limited participant under Sec. 524.2 of this 
part of its final decision and the reasons supporting it.

                        PARTS 525-529 [RESERVED]

[[Page 881]]



               SUBCHAPTER C_MANAGEMENT CONTRACT PROVISIONS



                           PART 530 [RESERVED]



PART 531_CONTENT OF MANAGEMENT CONTRACTS--Table of Contents




Sec.
531.1 Required provisions.
531.2 Prohibited provisions.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5828, Jan. 22, 1993, unless otherwise noted.



Sec. 531.1  Required provisions.

    A management contract previously approved by the Secretary of the 
Interior shall conform to the requirements contained in paragraphs (c), 
(d), (e), (f), (g), (h), (i), and (j) of this section and a management 
contract not previously approved by the Secretary shall conform to all 
of the requirements contained in this section in the manner indicated.
    (a) Governmental authority. Provide that all gaming covered by the 
contract will be conducted in accordance with the Indian Gaming 
Regulatory Act (IGRA, or the Act) and governing tribal ordinance(s).
    (b) Assignment of responsibilities. Enumerate the responsibilities 
of each of the parties for each identifiable function, including:
    (1) Maintaining and improving the gaming facility;
    (2) Providing operating capital;
    (3) Establishing operating days and hours;
    (4) Hiring, firing, training and promoting employees;
    (5) Maintaining the gaming operation's books and records;
    (6) Preparing the operation's financial statements and reports;
    (7) Paying for the services of the independent auditor engaged 
pursuant to Sec. 571.12 of this chapter;
    (8) Hiring and supervising security personnel;
    (9) Providing fire protection services;
    (10) Setting advertising budget and placing advertising;
    (11) Paying bills and expenses;
    (12) Establishing and administering employment practices;
    (13) Obtaining and maintaining insurance coverage, including 
coverage of public liability and property loss or damage;
    (14) Complying with all applicable provisions of the Internal 
Revenue Code;
    (15) Paying the cost of any increased public safety services; and
    (16) If applicable, supplying the National Indian Gaming Commission 
(NIGC, or the Commission) with all information necessary for the 
Commission to comply with the regulations of the Commission issued 
pursuant to the National Environmental Policy Act (NEPA).
    (c) Accounting. Provide for the establishment and maintenance of 
satisfactory accounting systems and procedures that shall, at a minimum:
    (1) Include an adequate system of internal accounting controls;
    (2) Permit the preparation of financial statements in accordance 
with generally accepted accounting principles;
    (3) Be susceptible to audit;
    (4) Allow a class II gaming operation, the tribe, and the Commission 
to calculate the annual fee under Sec. 514.1 of this chapter;
    (5) Permit the calculation and payment of the manager's fee; and
    (6) Provide for the allocation of operating expenses or overhead 
expenses among the tribe, the tribal gaming operation, the contractor, 
and any other user of shared facilities and services.
    (d) Reporting. Require the management contractor to provide the 
tribal governing body not less frequently than monthly with verifiable 
financial reports or all information necessary to prepare such reports.
    (e) Access. Require the management contractor to provide immediate 
access to the gaming operation, including its books and records, by 
appropriate tribal officials, who shall have:
    (1) The right to verify the daily gross revenues and income from the 
gaming operation; and

[[Page 882]]

    (2) Access to any other gaming-related information the tribe deems 
appropriate.
    (f) Guaranteed payment to tribe. Provide for a minimum guaranteed 
monthly payment to the tribe in a sum certain that has preference over 
the retirement of development and construction costs.
    (g) Development and construction costs. Provide an agreed upon 
maximum dollar amount for the recoupment of development and construction 
costs.
    (h) Term limits. Be for a term not to exceed five (5) years, except 
that upon the request of a tribe, the Chairman may authorize a contract 
term that does not exceed seven (7) years if the Chairman is satisfied 
that the capital investment required, and the income projections, for 
the particular gaming operation require the additional time. The time 
period shall begin running no later than the date when the gaming 
activities authorized by an approved management contract begin.
    (i) Compensation. Detail the method of compensating and reimbursing 
the management contractor. If a management contract provides for a 
percentage fee, such fee shall be either:
    (1) Not more than thirty (30) percent of the net revenues of the 
gaming operation if the Chairman determines that such percentage is 
reasonable considering the circumstances; or
    (2) Not more than forty (40) percent of the net revenues if the 
Chairman is satisfied that the capital investment required and income 
projections for the gaming operation require the additional fee.
    (j) Termination provisions. Provide the grounds and mechanisms for 
modifying or terminating the contract (termination of the contract shall 
not require the approval of the Chairman).
    (k) Dispute provisions. Contain a mechanism to resolve disputes 
between:
    (1) The management contractor and customers, consistent with the 
procedures in a tribal ordinance;
    (2) The management contractor and the tribe; and
    (3) The management contractor and the gaming operation employees.
    (l) Assignments and subcontracting. Indicate whether and to what 
extent contract assignments and subcontracting are permissible.
    (m) Ownership interests. Indicate whether and to what extent changes 
in the ownership interest in the management contract require advance 
approval by the tribe.
    (n) Effective date. State that the contract shall not be effective 
unless and until it is approved by the Chairman, date of signature of 
the parties notwithstanding.



Sec. 531.2  Prohibited provisions.

    A management contract shall not transfer or, in any other manner, 
convey any interest in land or other real property, unless specific 
statutory authority exists and unless clearly specified in writing in 
the contract.

                           PART 532 [RESERVED]



PART 533_APPROVAL OF MANAGEMENT CONTRACTS--Table of Contents




Sec.
533.1 Requirement for review and approval.
533.2 Time for submitting management contracts.
533.3 Submission of management contract for approval.
533.4 Action by the Chairman.
533.5 Notice of noncompliance.
533.6 Approval.
533.7 Void agreements.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5829, Jan. 22, 1993, unless otherwise noted.



Sec. 533.1  Requirement for review and approval.

    Subject to the Chairman's approval, an Indian tribe may enter into a 
management contract for the operation of a class II or class III gaming 
activity.
    (a) Such contract shall become effective upon approval by the 
Chairman.
    (b) Contract approval shall be evidenced by a Commission document 
dated and signed by the Chairman. No other means of approval shall be 
valid.
    (c) Contracts approved by the Secretary remain effective until 
approved or disapproved by the Chairman.

[[Page 883]]



Sec. 533.2  Time for submitting management contracts.

    A tribe or a management contractor shall submit a management 
contract to the Chairman for review as follows:
    (a) Contracts approved by the Secretary, within sixty (60) days 
after a request by the Chairman. If a tribe or a management contractor 
fail to submit all items under Sec. 533.3 of this part within 60 days, 
the Chairman may deem the contract disapproved and shall notify the 
parties of their rights to appeal under part 539 of this chapter.
    (b) All other contracts, upon execution.



Sec. 533.3  Submission of management contract for approval.

    A tribe shall include in any request for approval of a management 
contract under this part:
    (a) A contract containing:
    (1) Original signatures of an authorized official of the tribe and 
the management contractor;
    (2) A representation that the contract as submitted to the Chairman 
is the entirety of the agreement among the parties; and
    (3)(i) If the contract has been approved by the Secretary, terms 
that meet the requirements of Sec. Sec. 531.1(c), (d), (e), (f), (g), 
(h), (i), and (j) and Sec. 531.2 of this chapter; or
    (ii) Terms that meet the requirements of part 531 of this chapter.
    (b) A letter, signed by the tribal chairman, setting out the 
authority of an authorized tribal official to act for the tribe 
concerning the management contract.
    (c) Copies of documents evidencing the authority under paragraph (b) 
of this section.
    (d) A list of all persons and entities identified in Sec. Sec. 
537.1(a) and 537.1(c)(1) of this chapter, and either:
    (1) The information required under Sec. 537.1(b)(1) of this chapter 
for Class II gaming contracts and Sec. 537.1(b)(1)(i) of this chapter 
for class III gaming contracts; or
    (2) The dates on which the information was previously submitted.
    (e)(1) For new contracts and new operations, a three (3)-year 
business plan which sets forth the parties' goals, objectives, budgets, 
financial plans, and related matters; or
    (2) For existing contracts, income statements and sources and uses 
of funds statements for the previous three (3) years; or
    (3) For new contracts for existing operations, a three (3) year 
business plan which sets forth the parties goals, objectives, budgets, 
financial plans, and related matters, and income statements and sources 
and uses of funds statements for the previous three (3) years.
    (f) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(h) of this chapter, for a term limit in excess of five 
(5) years, but not exceeding seven (7) years.
    (g) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(i) of this chapter, for a fee in excess of thirty (30) 
percent, but not exceeding forty (40) percent.



Sec. 533.4  Action by the Chairman.

    (a) The Chairman shall provide notice of noncompliance under Sec. 
533.5 of this part, or shall approve or disapprove a management contract 
applying the standards contained in Sec. 533.6 of this part, within 180 
days of the date on which the Chairman receives a complete submission 
under Sec. 533.3 of this part, unless the Chairman notifies the tribe 
and management contractor in writing of the need for an extension of up 
to ninety (90) days.
    (b) A tribe may bring an action in a U.S. district court to compel 
action by the Chairman:
    (1) After 180 days following the date on which the Chairman receives 
a complete submission if the Chairman does not provide notice of 
noncompliance or approve or disapprove the contract under this part; or
    (2) After 270 days following the Chairman's receipt of a complete 
submission if the Chairman has told the tribe and management contractor 
in writing of the need for an extension and has not provided notice of 
noncompliance or approved or disapproved the contract under this part.



Sec. 533.5  Notice of noncompliance.

    (a) If a management contract previously approved by the Secretary 
fails

[[Page 884]]

to meet the requirements of this part, the Chairman shall notify the 
tribe and management contractor, in writing, of the specific areas of 
noncompliance.
    (1) The Chairman shall allow the tribe and the management contractor 
120 days from receipt of such notice to modify the contract.
    (2) If the Secretary approved a management contract before October 
17, 1988, the Chairman shall allow the tribe and the management 
contractor 180 days from receipt of such notification to modify the 
contract.
    (b) If a tribe and a management contractor fail to modify a 
management contract within the time provided, the Chairman may:
    (1) Disapprove the management contract, or
    (2) Approve the management contract subject to the required 
modifications if:
    (i) All modifications benefit the tribe;
    (ii) The modifications are required to bring the contract into 
statutory compliance; and
    (iii) The modifications are all agreed to by the management 
contractor.



Sec. 533.6  Approval.

    (a) The Chairman may approve a management contract if it meets the 
standards of part 531 of this chapter and Sec. 533.3 of this part;
    (b) The Chairman shall disapprove a management contract for class II 
gaming if he or she determines that--
    (1) Any person with a direct or indirect financial interest in, or 
having management responsibility for, a management contract:
    (i) Is an elected member of the governing body of the tribe that is 
party to the management contract;
    (ii) Has been convicted of any felony or any misdemeanor gaming 
offense;
    (iii) Has knowingly and willfully provided materially false 
statements or information to the Commission or to a tribe;
    (iv) Has refused to respond to questions asked by the Chairman in 
accordance with his responsibilities under this part; or
    (v) Is determined by the Chairman to be a person whose prior 
activities, criminal record, if any, or reputation, habits, and 
associations pose a threat to the public interest or to the effective 
regulation and control of gaming, or create or enhance the dangers of 
unsuitable, unfair, or illegal practices, methods, and activities in the 
conduct of gaming or the carrying on of related business and financial 
arrangements;
    (2) The management contractor or its agents have unduly interfered 
with or influenced for advantage, or have tried to unduly interfere with 
or influence for advantage, any decision or process of tribal government 
relating to the gaming operation;
    (3) The management contractor or its agents has deliberately or 
substantially failed to follow the terms of the management contract or 
the tribal gaming ordinance or resolution adopted and approved pursuant 
to this Act; or
    (4) A trustee, exercising the skill and diligence to which a trustee 
is commonly held, would not approve the contract.
    (c) The Chairman may disapprove a management contract for class III 
gaming if he or she determines that a person with a financial interest 
in, or management responsibility for, a management contract is a person 
whose prior activities, criminal record, if any, or reputation, habits, 
and associations pose a threat to the public interest or to the 
effective regulation and control of gaming, or create or enhance the 
dangers of unsuitable, unfair, or illegal practices, methods, and 
activities in the conduct of gaming or the carrying on of related 
business and financial arrangements.



Sec. 533.7  Void agreements.

    Management contracts and changes in persons with a financial 
interest in or management responsibility for a management contract, that 
have not been approved by the Secretary of the Interior or the Chairman 
in accordance with the requirements of this part, are void.

                           PART 534 [RESERVED]

[[Page 885]]



PART 535_POST-APPROVAL PROCEDURES--Table of Contents




Sec.
535.1 Modifications.
535.2 Assignments.
535.3 Post-approval noncompliance.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5830, Jan. 22, 1993, unless otherwise noted.



Sec. 535.1  Modifications.

    (a) Subject to the Chairman's approval, a tribe may enter into a 
modification of a management contract for the operation of a class II or 
class III gaming activity.
    (b) A tribe shall submit a modification to the Chairman upon its 
execution.
    (c) A tribe shall include in any request for approval of a 
modification under this part:
    (1) A modification containing original signatures of an authorized 
official of the tribe and the management contractor and terms that meet 
the applicable requirements of part 531 of this chapter;
    (2) A letter, signed by the tribal chairman, setting out the 
authority of an authorized tribal official to act for the tribe 
concerning the modification;
    (3) Copies of documents evidencing the authority under paragraph 
(c)(2) of this section;
    (4) If the modification involves a change in person(s) having a 
direct or indirect financial interest in the management contract or 
having management responsibility for the management contract, a list of 
such person(s) and either:
    (i) The information required under Sec. 537.1(b)(1) of this chapter 
for class II gaming contracts or Sec. 537.1(b)(1)(i) of this chapter 
for class III gaming contracts; or
    (ii) The dates on which the information was previously submitted;
    (5) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(h) of this chapter, for a term limit in excess of five 
(5) years, but not exceeding seven (7) years; and
    (6) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(i) of this chapter, for a management fee in excess of 
thirty (30) percent, but not exceeding forty (40) percent.
    (d) For modifications which do not require a background 
investigation under part 537 of this chapter, the Chairman shall have 
thirty (30) days from receipt to approve or disapprove a modification, 
or to notify the parties that an additional thirty (30) days is required 
to reach a decision.
    (1) When a modification requires a background investigation under 
part 537 of this chapter, the Chairman shall approve or disapprove such 
modification as soon as practicable but in no event later than 180 days 
after the Chairman receives it;
    (2) If the Chairman does not approve or disapprove, he shall respond 
in accordance with the service provisions of part 519 of this chapter 
noting that no action has been taken on the proposed modification. The 
request shall therefore be deemed disapproved and the parties shall have 
thirty (30) days to appeal the decision under part 539 of this chapter.
    (e) (1) The Chairman may approve a modification to a management 
contract if the modification meets the submission requirements of 
paragraph (c) of this section.
    (2) The Chairman shall disapprove a modification of a management 
contract for class II gaming if he or she determines that the conditions 
contained in Sec. 533.6(b) of this chapter apply.
    (3) The Chairman may disapprove a modification of a management 
contract for class III gaming if he or she determines that the 
conditions contained in Sec. 533.6(c) of this chapter apply.
    (f) Modifications that have not been approved by the Chairman in 
accordance with the requirements of this part are void.



Sec. 535.2  Assignments.

    Subject to the approval of the Chairman, a management contractor may 
assign its rights under a management contract to the extent permitted by 
the contract. A tribe or a management contractor shall submit such 
assignment to the Chairman upon execution. The Chairman shall approve or 
disapprove an assignment applying the

[[Page 886]]

standards of, and within the time provided by Sec. Sec. 535.1(d) and 
535.1(e) of this part.



Sec. 535.3  Post-approval noncompliance.

    If the Chairman learns of any action or condition that violates the 
standards contained in parts 531, 533, 535, and 537 of this chapter, the 
Chairman may require modifications of, or may void, a management 
contract approved by the Chairman under such sections, after providing 
the parties an opportunity for a hearing before the Chairman and a 
subsequent appeal to the Commission as set forth in part 577 of this 
chapter. The Chairman will initiate modification proceedings by serving 
the parties, specifying the grounds for modification. The parties will 
have thirty (30) days to request a hearing or respond with objections. 
Within thirty (30) days of receiving a request for a hearing, the 
Chairman will hold a hearing and receive oral presentations and written 
submissions. The Chairman will make his decision on the basis of the 
developed record and notify the parties of his/her decision and of their 
right to appeal.

                           PART 536 [RESERVED]



PART 537_BACKGROUND INVESTIGATIONS FOR PERSONS OR ENTITIES WITH A 
FINANCIAL INTEREST IN, OR HAVING MANAGEMENT RESPONSIBILITY FOR, A 
MANAGEMENT CONTRACT--Table of Contents




Sec.
537.1 Applications for approval.
537.2 Submission of background information.
537.3 Fees for background investigations.
537.4 Determinations.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5831, Jan. 22, 1993, unless otherwise noted.



Sec. 537.1  Applications for approval.

    (a) For each management contract for class II gaming, the Chairman 
shall conduct or cause to be conducted a background investigation of:
    (1) Each person with management responsibility for a management 
contract;
    (2) Each person who is a director of a corporation that is a party 
to a management contract;
    (3) The ten (10) persons who have the greatest direct or indirect 
financial interest in a management contract;
    (4) Any entity with a financial interest in a management contract 
(in the case of institutional investors, the Chairman may exercise 
discretion and reduce the scope of the information to be furnished and 
the background investigation to be conducted); and
    (5) Any other person with a direct or indirect financial interest in 
a management contract otherwise designated by the Commission.
    (b) For each natural person identified in paragraph (a) of this 
section, the management contractor shall provide to the Commission the 
following information:
    (1) Required information. (i) Full name, other names used (oral or 
written), social security number(s), birth date, place of birth, 
citizenship, and gender;
    (ii) A current photograph, driver's license number, and a list of 
all languages spoken or written;
    (iii) Business and employment positions held, and business and 
residence addresses currently and for the previous ten (10) years; the 
city, state and country of residence from age eighteen (18) to the 
present;
    (iv) The names and current addresses of at least three (3) personal 
references, including one personal reference who was acquainted with the 
person at each different residence location for the past five (5) years;
    (v) Current business and residence telephone numbers;
    (vi) A description of any existing and previous business 
relationships with Indian tribes, including ownership interests in those 
businesses;
    (vii) A description of any existing and previous business 
relationships with the gaming industry generally, including ownership 
interests in those businesses;
    (viii) The name and address of any licensing or regulatory agency 
with

[[Page 887]]

which the person has filed an application for a license or permit 
relating to gaming, whether or not such license or permit was granted;
    (ix) For each gaming offense and for each felony for which there is 
an ongoing prosecution or a conviction, the name and address of the 
court involved, the charge, and the dates of the charge and of the 
disposition;
    (x) For each misdemeanor conviction or ongoing misdemeanor 
prosecution (excluding minor traffic violations) within ten (10) years 
of the date of the application, the name and address of the court 
involved, and the dates of the prosecution and the disposition;
    (xi) A complete financial statement showing all sources of income 
for the previous three (3) years, and assets, liabilities, and net worth 
as of the date of the submission; and
    (xii) For each criminal charge (excluding minor traffic charges) 
regardless of whether or not it resulted in a conviction, if such 
criminal charge is within 10 years of the date of the application and is 
not otherwise listed pursuant to paragraphs (b)(1)(ix) or (b)(1)(x) of 
this section, the name and address of the court involved, the criminal 
charge, and the dates of the charge and the disposition.
    (2) Fingerprints. The management contractor shall arrange with an 
appropriate federal, state, or tribal law enforcement authority to 
supply the Commission with a completed form FD-258, Applicant 
Fingerprint Card, (provided by the Commission), for each person for whom 
background information is provided under this section.
    (3) Responses to questions. Each person with a direct or indirect 
financial interest in a management contract or management responsibility 
for a management contract shall respond within thirty (30) days to 
written or oral questions propounded by the Chairman.
    (4) Privacy notice. In compliance with the Privacy Act of 1974, each 
person required to submit information under this section shall sign and 
submit the following statement:

    Solicitation of the information in this section is authorized by 25 
U.S.C. 2701 et seq. The purpose of the requested information is to 
determine the suitability of individuals with a financial interest in, 
or having management responsibility for, a management contract. The 
information will be used by the National Indian Gaming Commission 
members and staff and Indian tribal officials who have need for the 
information in the performance of their official duties. The information 
may be disclosed to appropriate federal, tribal, state, or foreign law 
enforcement and regulatory agencies in connection with a background 
investigation or when relevant to civil, criminal or regulatory 
investigations or prosecutions or investigations of activities while 
associated with a gaming operation. Failure to consent to the 
disclosures indicated in this statement will mean that the Chairman of 
the National Indian Gaming Commission will be unable to approve the 
contract in which the person has a financial interest or management 
responsibility.
    The disclosure of a person's Social Security Number (SSN) is 
voluntary. However, failure to supply a SSN may result in errors in 
processing the information provided.

    (5) Notice regarding false statements. Each person required to 
submit information under this section shall sign and submit the 
following statement:

    A false statement knowingly and willfully provided in any of the 
information pursuant to this section may be grounds for not approving 
the contract in which I have a financial interest or management 
responsibility, or for disapproving or voiding such contract after it is 
approved by the Chairman of the National Indian Gaming Commission. Also, 
I may be punished by fine or imprisonment (U.S. Code, title 18, section 
1001).

    (c) For each entity identified in paragraph (a)(4) of this section, 
the management contractor shall provide to the Commission the following 
information:
    (1) List of individuals. (i) Each of the ten (10) largest 
beneficiaries and the trustees when the entity is a trust;
    (ii) Each of the ten (10) largest partners when the entity is a 
partnership; and
    (iii) Each person who is a director or who is one of the ten (10) 
largest holders of the issued and outstanding stock alone or in 
combination with another stockholder who is a spouse, parent, child or 
sibling when the entity is a corporation.
    (2) Required information. (i) The information required in paragraph 
(b)(1)(i) of this section for each individual identified in paragraph 
(c)(1) of this section;
    (ii) Copies of documents establishing the existence of the entity, 
such as the

[[Page 888]]

partnership agreement, the trust agreement, or the articles of 
incorporation;
    (iii) Copies of documents designating the person who is charged with 
acting on behalf of the entity;
    (iv) Copies of bylaws or other documents that provide the day-to-day 
operating rules for the organization;
    (v) A description of any existing and previous business 
relationships with Indian tribes, including ownership interests in those 
businesses;
    (vi) A description of any existing and previous business 
relationships with the gaming industry generally, including ownership 
interest in those businesses;
    (vii) The name and address of any licensing or regulatory agency 
with which the entity has filed an application for a license or permit 
relating to gaming, whether or not such license or permit was granted;
    (viii) For each gaming offense and for each felony for which there 
is an ongoing prosecution or a conviction, the name and address of the 
court involved, the charge, and the dates of the charge and disposition;
    (ix) For each misdemeanor conviction or ongoing misdemeanor 
prosecution within ten (10) years of the date of the application, the 
name and address of the court involved, and the dates of the prosecution 
and disposition;
    (x) Complete financial statements for the previous three (3) fiscal 
years; and
    (xi) For each criminal charge (excluding minor traffic charges) 
whether or not there is a conviction, if such criminal charge is within 
10 years of the date of the application and is not otherwise listed 
pursuant to paragraph (c)(1)(viii) or (c)(1)(ix) of this section, the 
criminal charge, the name and address of the court involved and the 
dates of the charge and disposition.
    (3) Responses to questions. Each entity with a direct or indirect 
financial interest in a management contract shall respond within thirty 
(30) days to written or oral questions propounded by the Chairman.
    (4) Notice regarding false statements. Each entity required to 
submit information under this section shall sign and submit the 
following statement:

    A false statement knowingly and willfully provided in any of the 
information pursuant to this section may be grounds for not approving 
the contract in which we have a financial interest, or for disapproving 
or voiding such contract after it is approved by the Chairman of the 
National Indian Gaming Commission. Also, we may be punished by fine or 
imprisonment (U.S. Code, title 18, section 1001).

[58 FR 5831, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 537.2  Submission of background information.

    A management contractor shall submit the background information 
required in Sec. 537.1 of this part:
    (a) In sufficient time to permit the Commission to complete its 
background investigation by the time the individual is to assume 
management responsibility for, or the management contractor is to begin 
managing, the gaming operation; and
    (b) Within ten (10) days of any proposed change in financial 
interest.



Sec. 537.3  Fees for background investigations.

    (a) A management contractor shall pay to the Commission or the 
contractor(s) designated by the Commission the cost of all background 
investigations conducted under this part.
    (b) The management contractor shall post a bond, letter of credit, 
or deposit with the Commission to cover the cost of the background 
investigations as follows:
    (1) Management contractor (party to the contract)--$10,000
    (2) Each individual and entity with a financial interest in the 
contract--$5,000
    (c) The management contractor shall be billed for the costs of the 
investigation as it proceeds; the investigation shall be suspended if 
the unpaid costs exceed the amount of the bond, letter of credit, or 
deposit available.
    (1) An investigation will be terminated if any bills remain unpaid 
for more than thirty (30) days.
    (2) A terminated investigation will preclude the Chairman from 
making the necessary determinations and result in a disapproval of a 
management contract.

[[Page 889]]

    (d) The bond, letter of credit or deposit will be returned to the 
management contractor when all bills have been paid and the 
investigations have been completed or terminated.



Sec. 537.4  Determinations.

    The Chairman shall determine whether the results of a background 
investigation preclude the Chairman from approving a management contract 
because of the individual disqualifying factors contained in Sec. 
533.6(b)(1) of this chapter. The Chairman shall promptly notify the 
tribe and management contractor if any findings preclude the Chairman 
from approving a management contract or a change in financial interest.

                           PART 538 [RESERVED]



PART 539_APPEALS--Table of Contents




Sec.
539.1 Scope of this part.
539.2 Appeals.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5832, Jan. 22, 1993, unless otherwise noted.



Sec. 539.1  Scope of this part.

    This part applies to appeals from the Chairman's decision to approve 
or disapprove a management contract under this subchapter, except that 
appeals from the Chairman's decision to require modification of or to 
void a management contract subsequent to his or her initial approval are 
addressed in part 577 of this chapter.

[58 FR 16494, Mar. 29, 1993]



Sec. 539.2  Appeals.

    A party may appeal the Chairman's disapproval of a management 
contract or modification under parts 533 or 535 of this chapter to the 
Commission. Such an appeal shall be filed with the Commission within 
thirty (30) days after the Chairman serves his or her determination 
pursuant to part 519 of this chapter. Failure to file an appeal within 
the time provided by this section shall result in a waiver of the 
opportunity for an appeal. An appeal under this section shall specify 
the reasons why the person believes the Chairman's determination to be 
erroneous, and shall include supporting documentation, if any. Within 
thirty (30) days after receipt of the appeal, the Commission shall 
render a decision unless the appellant elects to provide the Commission 
additional time, not to exceed an additional thirty (30) days, to render 
a decision. In the absence of a decision within the time provided, the 
Chairman's decision shall constitute the final decision of the 
Commission.

[[Page 890]]



                       SUBCHAPTER D_HUMAN SERVICES



                        PARTS 540-541 [RESERVED]



PART 542_MINIMUM INTERNAL CONTROL STANDARDS--Table of Contents




Sec.
542.1 What does this part cover?
542.2 What are the definitions for this part?
542.3 How do I comply with this part?
542.4 How do these regulations affect minimum internal control standards 
          establish in a Tribal-State compact?
542.5 How do these regulations affect state jurisdiction?
542.6 Does this part apply to small and charitable gaming operations?
542.7 What are the minimum internal control standards for bingo?
542.8 What are the minimum internal control standards for pull tabs?
542.9 What are the minimum internal control standards for card games?
542.10 What are the minimum internal control standards for keno?
542.11 What are the minimum internal control standards for pari-mutuel 
          wagering?
542.12 What are the minimum internal control standards for table games?
542.13 What are the minimum internal control standards for gaming 
          machines?
542.14 What are the minimum internal control standards for the cage?
542.15 What are the minimum internal control standards for credit?
542.16 What are the minimum internal control standards for information 
          technology?
542.17 What are the minimum internal control standards for complimentary 
          services or items?
542.18 How does a gaming operation apply for a variance from the 
          standards of the part?
542.20 What is a Tier A gaming operation?
542.21 What are the minimum internal control standards for drop and 
          count for Tier A gaming operations?
542.22 What are the minimum internal control standards for internal 
          audit for Tier A gaming operations?
542.23 What are the minimum internal control standards for surveillance 
          for Tier A gaming operations?
542.30 What is a Tier B gaming operation?
542.31 What are the minimum internal control standards for drop and 
          count for Tier B gaming operations?
542.32 What are the minimum internal control standards for internal 
          audit for Tier B gaming operations?
542.33 What are the minimum internal control standards for surveillance 
          for Tier B gaming operations?
542.40 What is a Tier C gaming operation?
542.41 What are the minimum internal control standards for drop and 
          count for Tier C gaming operations?
542.42 What are the minimum internal control standards for internal 
          audit for Tier C gaming operations?
542.43 What are the minimum internal control standards for surveillance 
          for a Tier C gaming operation?

    Authority: 25 U.S.C. 2702(c), 2706(b)(10).

    Source: 67 FR 43400, June 27, 2002, unless otherwise noted.



Sec. 542.1  What does this part cover?

    This part establishes the minimum internal control standards for 
gaming operations on Indian land.



Sec. 542.2  What are the definitions for this part?

    The definitions in this section shall apply to all sections of this 
part unless otherwise noted.
    Account access card means an instrument used to access customer 
accounts for wagering at a gaming machine. Account access cards are used 
in connection with a computerized account database.
    Accountability means all items of cash, chips, coins, tokens, 
plaques, receivables, and customer deposits constituting the total 
amount for which the bankroll custodian is responsible at a given time.
    Accumulated credit payout means credit earned in a gaming machine 
that is paid to a customer manually in lieu of a machine payout.
    Actual hold percentage means the percentage calculated by dividing 
the win by the drop or coin-in (number of credits wagered). Can be 
calculated for individual tables or gaming machines, type of table 
games, or gaming machines on a per day or cumulative basis.
    Ante means a player's initial wager or predetermined contribution to 
the pot before the dealing of the first hand.
    Betting station means the area designated in a pari-mutuel area that 
accepts wagers and pays winning bets.

[[Page 891]]

    Betting ticket means a printed, serially numbered form used to 
record the event upon which a wager is made, the amount and date of the 
wager, and sometimes the line or spread (odds).
    Bill acceptor means the device that accepts and reads cash by 
denomination in order to accurately register customer credits.
    Bill acceptor canister means the box attached to the bill acceptor 
used to contain cash received by bill acceptors.
    Bill acceptor canister release key means the key used to release the 
bill acceptor canister from the bill acceptor device.
    Bill acceptor canister storage rack key means the key used to access 
the storage rack where bill acceptor canisters are secured.
    Bill acceptor drop means cash contained in bill acceptor canisters.
    Bill-in meter means a meter included on a gaming machine accepting 
cash that tracks the number of bills put in the machine.
    Boxperson means the first-level supervisor who is responsible for 
directly participating in and supervising the operation and conduct of a 
craps game.
    Breakage means the difference between actual bet amounts paid out by 
a racetrack to bettors and amounts won due to bet payments being rounded 
up or down. For example, a winning bet that should pay $4.25 may be 
actually paid at $4.20 due to rounding.
    Cage means a secure work area within the gaming operation for 
cashiers and a storage area for the gaming operation bankroll.
    Cage accountability form means an itemized list of the components 
that make up the cage accountability.
    Cage credit means advances in the form of cash or gaming chips made 
to customers at the cage. Documented by the players signing an IOU or a 
marker similar to a counter check.
    Cage marker form means a document, signed by the customer, 
evidencing an extension of credit at the cage to the customer by the 
gaming operation.
    Calibration module means the section of a weigh scale used to set 
the scale to a specific amount or number of coins to be counted.
    Call bets means a wager made without cash or chips, reserved for a 
known customer and includes marked bets (which are supplemental bets 
made during a hand of play). For the purpose of settling a call bet, a 
hand of play in craps is defined as a natural winner (e.g., seven or 
eleven on the come-out roll), a natural loser (e.g., a two, three or 
twelve on the come-out roll), a seven-out, or the player making his 
point, whichever comes first.
    Card game means a game in which the gaming operation is not party to 
wagers and from which the gaming operation receives compensation in the 
form of a rake, a time buy-in, or other fee or payment from a player for 
the privilege of playing.
    Card room bank means the operating fund assigned to the card room or 
main card room bank.
    Cash-out ticket means an instrument of value generated by a gaming 
machine representing a cash amount owed to a customer at a specific 
gaming machine. This instrument may be wagered at other machines by 
depositing the cash-out ticket in the machine bill acceptor.
    Chips means cash substitutes, in various denominations, issued by a 
gaming operation and used for wagering.
    Coin-in meter means the meter that displays the total amount wagered 
in a gaming machine that includes coins-in and credits played.
    Coin meter count machine means a device used in a coin room to count 
coin.
    Coin room means an area where coins and tokens are stored.
    Coin room inventory means coins and tokens stored in the coin room 
that are generally used for gaming machine department operation.
    Commission means the National Indian Gaming Commission.
    Complimentary means a service or item provided at no cost, or at a 
reduced cost, to a customer.
    Count means the total funds counted for a particular game, gaming 
machine, shift, or other period.
    Count room means a room where the coin and cash drop from gaming 
machines, table games, or other games are transported to and counted.
    Count team means personnel that perform either the count of the 
gaming machine drop and/or the table game drop.

[[Page 892]]

    Counter check means a form provided by the gaming operation for the 
customer to use in lieu of a personal check.
    Credit means the right granted by a gaming operation to a customer 
to defer payment of debt or to incur debt and defer its payment.
    Credit limit means the maximum dollar amount of credit assigned to a 
customer by the gaming operation.
    Credit slip means a form used to record either:
    (1) The return of chips from a gaming table to the cage; or
    (2) The transfer of IOUs, markers, or negotiable checks from a 
gaming table to a cage or bankroll.
    Customer deposits means the amounts placed with a cage cashier by 
customers for the customers' use at a future time.
    Deal means a specific pull tab game that has a specific serial 
number associated with each game.
    Dealer means an employee who operates a game, individually or as a 
part of a crew, administering house rules and making payoffs.
    Dedicated camera means a video camera required to continuously 
record a specific activity.
    Deskman means a person who authorizes payment of winning tickets and 
verifies payouts for keno games.
    Draw ticket means a blank keno ticket whose numbers are punched out 
when balls are drawn for the game. Used to verify winning tickets.
    Drop (for gaming machines) means the total amount of cash, cash-out 
tickets, coupons, coins, and tokens removed from drop buckets and/or 
bill acceptor canisters.
    Drop (for table games) means the total amount of cash, chips, and 
tokens removed from drop boxes, plus the amount of credit issued at the 
tables.
    Drop box means a locked container affixed to the gaming table into 
which the drop is placed. The game type, table number, and shift are 
indicated on the box.
    Drop box contents keys means the key used to open drop boxes.
    Drop box release keys means the key used to release drop boxes from 
tables.
    Drop box storage rack keys means the key used to access the storage 
rack where drop boxes are secured.
    Drop bucket means a container located in the drop cabinet (or in a 
secured portion of the gaming machine in coinless/cashless 
configurations) for the purpose of collecting coins, tokens, cash-out 
tickets, and coupons from the gaming machine.
    Drop cabinet means the wooden or metal base of the gaming machine 
that contains the gaming machine drop bucket.
    Drop period means the period of time that occurs between sequential 
drops.
    Earned and unearned take means race bets taken on present and future 
race events. Earned take means bets received on current or present 
events. Unearned take means bets taken on future race events.
    EPROM means erasable programmable read-only memory or other 
equivalent game software media.
    Fill means a transaction whereby a supply of chips, coins, or tokens 
is transferred from a bankroll to a table game or gaming machine.
    Fill slip means a document evidencing a fill.
    Flare means the information sheet provided by the manufacturer that 
sets forth the rules of a particular pull tab game and that is 
associated with a specific deal of pull tabs. The flare shall contain 
the following information:
    (1) Name of the game;
    (2) Manufacturer name or manufacturer's logo;
    (3) Ticket count; and
    (4) Prize structure, which shall include the number of winning pull 
tabs by denomination, with their respective winning symbols, numbers, or 
both.
    Future wagers means bets on races to be run in the future (e.g., 
Kentucky Derby).
    Game server means an electronic selection device, utilizing a random 
number generator.
    Gaming machine means an electronic or electromechanical machine that 
allows a player to play games of chance, some of which may be affected 
by skill, which contains a microprocessor with random number generator 
capability for outcome selection or computer terminal that accesses an 
outcome that is

[[Page 893]]

subsequently and randomly selected in drawings that are electronically 
conducted by central computer or other such methods of chance selection, 
whether mechanical or electronic. The machine is activated by the 
insertion of cash or cash equivalents and which awards cash, cash 
equivalents, merchandise, or a written statement of the player's 
accumulated credits, which written statements may be redeemable for 
cash.
    Gaming machine analysis report means a report prepared that compares 
theoretical to actual hold by a gaming machine on a monthly or other 
periodic basis.
    Gaming machine booths and change banks means a booth or small cage 
in the gaming machine area used to provide change to players, store 
change aprons and extra coin, and account for jackpot and other payouts.
    Gaming machine count means the total amount of coins, tokens, and 
cash removed from a gaming machine. The amount counted is entered on the 
Gaming Machine Count Sheet and is considered the drop. Also, the 
procedure of counting the coins, tokens, and cash or the process of 
verifying gaming machine coin and token inventory.
    Gaming machine pay table means the reel strip combinations 
illustrated on the face of the gaming machine that can identify payouts 
of designated coin amounts.
    Gaming operation accounts receivable (for gaming operation credit) 
means credit extended to gaming operation customers in the form of 
markers, returned checks, or other credit instruments that have not been 
repaid.
    Gross gaming revenue means annual total amount of cash wagered on 
class II and class III games and admission fees (including table or card 
fees), less any amounts paid out as prizes or paid for prizes awarded.
    Hold means the relationship of win to coin-in for gaming machines 
and win to drop for table games.
    Hub means the person or entity that is licensed to provide the 
operator of a pari-mutuel wagering operation information related to 
horse racing that is used to determine winners of races or payoffs on 
wagers accepted by the pari-mutuel wagering operation.
    Internal audit means persons who perform an audit function of a 
gaming operation that are independent of the department subject to 
audit. Independence is obtained through the organizational reporting 
relationship, as the internal audit department shall not report to 
management of the gaming operation. Internal audit activities should be 
conducted in a manner that permits objective evaluation of areas 
examined. Internal audit personnel may provide audit coverage to more 
than one operation within a Tribe's gaming operation holdings.
    Issue slip means a copy of a credit instrument that is retained for 
numerical sequence control purposes.
    Jackpot payout means the portion of a jackpot paid by gaming machine 
personnel. The amount is usually determined as the difference between 
the total posted jackpot amount and the coins paid out by the machine. 
May also be the total amount of the jackpot.
    Lammer button means a type of chip that is placed on a gaming table 
to indicate that the amount of chips designated thereon has been given 
to the customer for wagering on credit before completion of the credit 
instrument. Lammer button may also mean a type of chip used to evidence 
transfers between table banks and card room banks.
    Linked electronic game means any game linked to two (2) or more 
gaming operations that are physically separate and not regulated by the 
same Tribal gaming regulatory authority.
    Main card room bank means a fund of cash, coin, and chips used 
primarily for poker and pan card game areas. Used to make even cash 
transfers between various games as needed. May be used similarly in 
other areas of the gaming operation.
    Marker means a document, signed by the customer, evidencing an 
extension of credit to him by the gaming operation.
    Marker credit play means that players are allowed to purchase chips 
using credit in the form of a marker.
    Marker inventory form means a form maintained at table games or in 
the gaming operation pit that are used to

[[Page 894]]

track marker inventories at the individual table or pit.
    Marker transfer form means a form used to document transfers of 
markers from the pit to the cage.
    Master credit record means a form to record the date, time, shift, 
game, table, amount of credit given, and the signatures or initials of 
the persons extending the credit.
    Master game program number means the game program number listed on a 
gaming machine EPROM.
    Master game sheet means a form used to record, by shift and day, 
each table game's winnings and losses. This form reflects the opening 
and closing table inventories, the fills and credits, and the drop and 
win.
    Mechanical coin counter means a device used to count coins that may 
be used in addition to or in lieu of a coin weigh scale.
    Meter means an electronic (soft) or mechanical (hard) apparatus in a 
gaming machine. May record the number of coins wagered, the number of 
coins dropped, the number of times the handle was pulled, or the number 
of coins paid out to winning players.
    MICS means minimum internal control standards in this part 542.
    Motion activated dedicated camera means a video camera that, upon 
its detection of activity or motion in a specific area, begins to record 
the activity or area.
    Multi-game machine means a gaming machine that includes more than 
one type of game option.
    Multi-race ticket means a keno ticket that is played in multiple 
games.
    On-line gaming machine monitoring system means a system used by a 
gaming operation to monitor gaming machine meter readings and/or other 
activities on an on-line basis.
    Order for credit means a form that is used to request the transfer 
of chips or markers from a table to the cage. The order precedes the 
actual transfer transaction that is documented on a credit slip.
    Outstation means areas other than the main keno area where bets may 
be placed and tickets paid.
    Par percentage means the percentage of each dollar wagered that the 
house wins (i.e., gaming operation advantage).
    Par sheet means a specification sheet for a gaming machine that 
provides machine hold percentage, model number, hit frequency, reel 
combination, number of reels, number of coins that can be accepted, and 
reel strip listing.
    Pari-mutuel wagering means a system of wagering on horse races, jai-
alai, greyhound, and harness racing, where the winners divide the total 
amount wagered, net of commissions and operating expenses, proportionate 
to the individual amount wagered.
    Payment slip means that part of a marker form on which customer 
payments are recorded.
    Payout means a transaction associated with a winning event.
    PIN means the personal identification number used to access a 
player's account.
    Pit podium means a stand located in the middle of the tables used by 
gaming operation supervisory personnel as a workspace and a record 
storage area.
    Pit supervisor means the employee who supervises all games in a pit.
    Player tracking system means a system typically used in gaming 
machine departments that can record the gaming machine play of 
individual customers.
    Post time means the time when a pari-mutuel track stops accepting 
bets in accordance with rules and regulations of the applicable 
jurisdiction.
    Primary and secondary jackpots means promotional pools offered at 
certain card games that can be won in addition to the primary pot.
    Progressive gaming machine means a gaming machine, with a payoff 
indicator, in which the payoff increases as it is played (i.e., deferred 
payout). The payoff amount is accumulated, displayed on a machine, and 
will remain until a player lines up the jackpot symbols that result in 
the progressive amount being paid.
    Progressive jackpot means deferred payout from a progressive gaming 
machine.
    Progressive table game means table games that offer progressive 
jackpots.
    Promotional payout means merchandise or awards given to players by 
the gaming operation based on a wagering activity.

[[Page 895]]

    Promotional progressive pots and/or pools means funds contributed to 
a table game or card game by and for the benefit of players. Funds are 
distributed to players based on a predetermined event.
    Rabbit ears means a device, generally V-shaped, that holds the 
numbered balls selected during a keno or bingo game so that the numbers 
are visible to players and employees.
    Rake means a commission charged by the house for maintaining or 
dealing a game such as poker.
    Rake circle means the area of a table where rake is placed.
    Random number generator means a device that generates numbers in the 
absence of a pattern. May be used to determine numbers selected in 
various games such as keno and bingo. Also commonly used in gaming 
machines to generate game outcome.
    Reel symbols means symbols listed on reel strips of gaming machines.
    Rim credit means extensions of credit that are not evidenced by the 
immediate preparation of a marker and does not include call bets.
    Runner means a gaming employee who transports chips/cash to or from 
a gaming table and a cashier.
    SAM means a screen-automated machine used to accept pari-mutuel 
wagers. SAM's also pay winning tickets in the form of a voucher, which 
is redeemable for cash.
    Series number means the unique identifying number printed on each 
sheet of bingo paper that identifies the bingo paper as a series or 
packet. The series number is not the free space or center space number 
located on the bingo paper.
    Shift means an eight-hour period, unless otherwise approved by the 
Tribal gaming regulatory authority, not to exceed twenty-four (24) 
hours.
    Shill means an employee financed by the house and acting as a player 
for the purpose of starting or maintaining a sufficient number of 
players in a game.
    Short pay means a payoff from a gaming machine that is less than the 
listed amount.
    Soft count means the count of the contents in a drop box or a bill 
acceptor canister.
    Sufficient clarity means use of monitoring and recording at a 
minimum of twenty (20) frames per second. Multiplexer tape recordings 
are insufficient to satisfy the requirement of sufficient clarity.
    Surveillance room means a secure location(s) in a gaming operation 
used primarily for casino surveillance.
    Surveillance system means a system of video cameras, monitors, 
recorders, video printers, switches, selectors, and other ancillary 
equipment used for casino surveillance.
    Table games means games that are banked by the house or a pool 
whereby the house or the pool pays all winning bets and collects from 
all losing bets.
    Table inventory means the total coins, chips, and markers at a 
table.
    Table inventory form means the form used by gaming operation 
supervisory personnel to document the inventory of chips, coins, and 
tokens on a table at the beginning and ending of a shift.
    Table tray means the container located on gaming tables where chips, 
coins, or cash are stored that are used in the game.
    Take means the same as earned and unearned take.
    Theoretical hold means the intended hold percentage or win of an 
individual gaming machine as computed by reference to its payout 
schedule and reel strip settings or EPROM.
    Theoretical hold worksheet means a worksheet provided by the 
manufacturer for all gaming machines that indicate the theoretical 
percentages that the gaming machine should hold based on adequate levels 
of coin-in. The worksheet also indicates the reel strip settings, number 
of credits that may be played, the payout schedule, the number of reels 
and other information descriptive of the particular type of gaming 
machine.
    Tier A means gaming operations with annual gross gaming revenues of 
more than $1 million but not more than $5 million.
    Tier B means gaming operations with annual gross gaming revenues of 
more than $5 million but not more than $15 million.
    Tier C means gaming operations with annual gross gaming revenues of 
more than $15 million.

[[Page 896]]

    Tokens means a coin-like cash substitute, in various denominations, 
used for gambling transactions.
    Tribal gaming regulatory authority means the tribally designated 
entity responsible for gaming regulation.
    Vault means a secure area within the gaming operation where tokens, 
checks, cash, coins, and chips are stored.
    Weigh/count means the value of coins and tokens counted by a weigh 
machine.
    Weigh scale calibration module means the device used to adjust a 
coin weigh scale.
    Weigh scale interface means a communication device between the weigh 
scale used to calculate the amount of funds included in drop buckets and 
the computer system used to record the weigh data.
    Weigh tape means the tape where weighed coin is recorded.
    Wide area progressive gaming machine means a progressive gaming 
machine that is linked to machines in other operations and play on the 
machines affect the progressive amount. As wagers are placed, the 
progressive meters on all of the linked machines increase.
    Win means the net win resulting from all gaming activities. Net win 
results from deducting all gaming losses from all wins prior to 
considering associated operating expenses.
    Win-to-write hold percentage means win divided by write to determine 
hold percentage.
    Wrap means the method of storing coins after the count process has 
been completed, including, but not limited to, wrapping, racking, or 
bagging. May also refer to the total amount or value of the counted and 
stored coins.
    Write means the total amount wagered in keno, bingo, pull tabs, and 
pari-mutuel operations.
    Writer means an employee who writes keno, bingo, pull tabs, or pari-
mutuel tickets. A keno writer usually also makes payouts.

[67 FR 43400, June 27, 2002, as amended at 70 FR 23021, May 4, 2005]



Sec. 542.3  How do I comply with this part?

    (a) Compliance based upon tier. (1) Tier A gaming operations must 
comply with Sec. Sec. 542.1 through 542.18, and Sec. Sec. 542.20 
through 542.23.
    (2) Tier B gaming operations must comply with Sec. Sec. 542.1 
through 542.18, and Sec. Sec. 542.30 through 542.33.
    (3) Tier C gaming operations must comply with Sec. Sec. 542.1 
through 542.18, and Sec. Sec. 542.40 through 542.43.
    (b) Determination of tier. (1) The determination of tier level shall 
be made based upon the annual gross gaming revenues indicated within the 
gaming operation's audited financial statements. Gaming operations 
moving from one tier to another shall have nine (9) months from the date 
of the independent certified public accountant's audit report to achieve 
compliance with the requirements of the new tier.
    (2) The Tribal gaming regulatory authority may extend the deadline 
by an additional six (6) months if written notice is provided to the 
Commission no later than two weeks before the expiration of the nine (9) 
month period.
    (c) Tribal internal control standards. Within six (6) months of June 
27, 2002, each Tribal gaming regulatory authority shall, in accordance 
with the Tribal gaming ordinance, establish and implement tribal 
internal control standards that shall:
    (1) Provide a level of control that equals or exceeds those set 
forth in this part;
    (2) Contain standards for currency transaction reporting that comply 
with 31 CFR part 103;
    (3) Establish standards for games that are not addressed in this 
part; and
    (4) Establish a deadline, which shall not exceed nine (9) months 
from June 27, 2002, by which a gaming operation must come into 
compliance with the tribal internal control standards. However, the 
Tribal gaming regulatory authority may extend the deadline by an 
additional six (6) months if written notice is provided to the 
Commission no later than two weeks before the expiration of the nine (9) 
month period.
    (d) Gaming operations. Each gaming operation shall develop and 
implement an internal control system that, at a minimum, complies with 
the tribal internal control standards.
    (1) Existing gaming operations. All gaming operations that are 
operating

[[Page 897]]

on or before June 27, 2002, shall comply with this part within the time 
requirements established in paragraph (c) of this section. In the 
interim, such operations shall continue to comply with existing tribal 
internal control standards.
    (2) New gaming operations. All gaming operations that commence 
operations after August 26, 2002, shall comply with this part before 
commencement of operations.
    (e) Submission to Commission. Tribal regulations promulgated 
pursuant to this part shall not be required to be submitted to the 
Commission pursuant to 25 CFR 522.3(b).
    (f) CPA testing. (1) An independent certified public accountant 
(CPA) shall be engaged to perform ``Agreed-Upon Procedures'' to verify 
that the gaming operation is in compliance with the minimum internal 
control standards (MICS) set forth in this part or a Tribally approved 
variance thereto that has received Commission concurrence. The CPA shall 
report each event and procedure discovered by or brought to the CPA's 
attention that the CPA believes does not satisfy the minimum standards 
or Tribally approved variance that has received Commission concurrence. 
The ``Agreed-Upon Procedures'' may be performed in conjunction with the 
annual audit. The CPA shall report its findings to the Tribe, Tribal 
gaming regulatory authority, and management. The Tribe shall submit two 
copies of the report to the Commission within 120 days of the gaming 
operation's fiscal year end. This regulation is intended to communicate 
the Commission's position on the minimum agreed-upon procedures to be 
performed by the CPA. Throughout these regulations, the CPA's engagement 
and reporting are based on Statements on Standards for Attestation 
Engagements (SSAEs) in effect as of December 31, 2003, specifically SSAE 
10 (``Revision and Recodification Agreed-Upon Procedures 
Engagements.''). If future revisions are made to the SSAEs or new SSAEs 
are adopted that are applicable to this type of engagement, the CPA is 
to comply with any new or revised professional standards in conducting 
engagements pursuant to these regulations and the issuance of the 
agreed-upon procedures report. The CPA shall perform the ``Agreed-Upon 
Procedures'' in accordance with the following:
    (i) As a prerequisite to the evaluation of the gaming operation's 
internal control systems, it is recommended that the CPA obtain and 
review an organization chart depicting segregation of functions and 
responsibilities, a description of the duties and responsibilities of 
each position shown on the organization chart, and an accurate, detailed 
narrative description of the gaming operation's procedures in effect 
that demonstrate compliance.
    (ii) Complete the CPA NIGC MICS Compliance checklists or other 
comparable testing procedures. The checklists should measure compliance 
on a sampling basis by performing walk-throughs, observations and 
substantive testing. The CPA shall complete separate checklists for each 
gaming revenue center, cage and credit, internal audit, surveillance, 
information technology and complimentary services or items. All 
questions on each applicable checklist should be completed. Work-paper 
references are suggested for all ``no'' responses for the results 
obtained during testing (unless a note in the ``W/P Ref'' can explain 
the exception).
    (iii) The CPA shall perform, at a minimum, the following procedures 
in conjunction with the completion of the checklists:
    (A) At least one unannounced observation of each of the following: 
Gaming machine coin drop, gaming machine currency acceptor drop, table 
games drop, gaming machine coin count, gaming machine currency acceptor 
count, and table games count. The AICPA's ``Audits of Casinos'' Audit 
and Accounting Guide states that ``observations of operations in the 
casino cage and count room should not be announced in advance * * *'' 
For purposes of these procedures, ``unannounced'' means that no 
officers, directors, or employees are given advance information 
regarding the dates or times of such observations. The independent 
accountant should make arrangements with the gaming operation and Tribal 
gaming regulatory authority to ensure

[[Page 898]]

proper identification of the CPA's personnel and to provide for their 
prompt access to the count rooms.
    (1) The gaming machine coin count observation would include a weigh 
scale test of all denominations using pre-counted coin. The count would 
be in process when these tests are performed, and would be conducted 
prior to the commencement of any other walk-through procedures. For 
computerized weigh scales, the test can be conducted at the conclusion 
of the count, but before the final totals are generated.
    (2) The checklists should provide for drop/count observations, 
inclusive of hard drop/count, soft drop/count and currency acceptor 
drop/count. The count room would not be entered until the count is in 
process and the CPA would not leave the room until the monies have been 
counted and verified to the count sheet by the CPA and accepted into 
accountability. If the drop teams are unaware of the drop observations 
and the count observations would be unexpected, the hard count and soft 
count rooms may be entered simultaneously. Additionally, if the gaming 
machine currency acceptor count begins immediately after the table games 
count in the same location, by the same count team, and using the same 
equipment, the currency acceptor count observation can be conducted on 
the same day as the table games count observation, provided the CPA 
remains until monies are transferred to the vault/cashier.
    (B) Observations of the gaming operation's employees as they perform 
their duties.
    (C) Interviews with the gaming operation's employees who perform the 
relevant procedures.
    (D) Compliance testing of various documents relevant to the 
procedures. The scope of such testing should be indicated on the 
checklist where applicable.
    (E) For new gaming operations that have been in operation for three 
months or less at the end of their business year, performance of this 
regulation, section 542.3(f), is not required for the partial period.
    (2) Alternatively, at the discretion of the Tribe, the Tribe may 
engage an independent certified public accountant (CPA) to perform the 
testing, observations and procedures reflected in paragraphs (f)(1)(i), 
(ii), and (iii) of this section utilizing the Tribal internal control 
standards adopted by the Tribal gaming regulatory authority or Tribally 
approved variance that has received Commission concurrence. Accordingly, 
the CPA will verify compliance by the gaming operation with the Tribal 
internal control standards. Should the Tribe elect this alternative, as 
a prerequisite, the CPA will perform the following:
    (i) The CPA shall compare the Tribal internal control standards to 
the MICS to ascertain whether the criteria set forth in the MICS or 
Commission approved variances are adequately addressed.
    (ii) The CPA may utilize personnel of the Tribal gaming regulatory 
authority to cross-reference the Tribal internal control standards to 
the MICS, provided the CPA performs a review of the Tribal gaming 
regulatory authority personnel's work and assumes complete 
responsibility for the proper completion of the work product.
    (iii) The CPA shall report each procedure discovered by or brought 
to the CPA's attention that the CPA believes does not satisfy paragraph 
(f)(2)(i) of this section.
    (3) Reliance on Internal Auditors. (i) The CPA may rely on the work 
of an internal auditor, to the extent allowed by the professional 
standards, for the performance of the recommended procedures specified 
in paragraphs (f)(1)(iii)(B), (C), and (D) of this section, and for the 
completion of the checklists as they relate to the procedures covered 
therein provided that the internal audit department can demonstrate to 
the satisfaction of the CPA that the requirements contained within Sec. 
542.22, 542.32, or 542.42, as applicable, have been satisfied.
    (ii) Agreed-upon procedures are to be performed by the CPA to 
determine that the internal audit procedures performed for a past 12-
month period (includes two 6-month periods) encompassing a portion or 
all of the most recent business year has been properly

[[Page 899]]

completed. The CPA will apply the following Agreed-Upon Procedures to 
the gaming operation's written assertion:
    (A) Obtain internal audit department work-papers completed for a 12-
month period (includes two 6-month periods) encompassing a portion or 
all of the most recent business year and determine whether the CPA NIGC 
MICS Compliance Checklists or other comparable testing procedures were 
included in the internal audit work-papers and all steps described in 
the checklists were initialed or signed by an internal audit 
representative.
    (B) For the internal audit work-papers obtained in paragraph 
(f)(3)(ii)(A) of this section, on a sample basis, reperform the 
procedures included in CPA NIGC MICS Compliance Checklists or other 
comparable testing procedures prepared by internal audit and determine 
if all instances of noncompliance noted in the sample were documented as 
such by internal audit. The CPA NIGC MICS Compliance Checklists or other 
comparable testing procedures for the applicable Drop and Count 
procedures are not included in the sample reperformance of procedures 
because the CPA is required to perform the drop and count observations 
as required under paragraph (f)(1)(iii)(A) of this section of the 
Agreed-Upon Procedures. The CPA's sample should comprise a minimum of 3 
percent of the procedures required in each CPA NIGC MICS Compliance 
Checklist or other comparable testing procedures for the gaming machine 
and table game departments and 5 percent for the other departments 
completed by internal audit in compliance with the internal audit MICS. 
The reperformance of procedures is performed as follows:
    (1) For inquiries, the CPA should either speak with the same 
individual or an individual of the same job position as the internal 
auditor did for the procedure indicated in their checklist.
    (2) For observations, the CPA should observe the same process as the 
internal auditor did for the procedure as indicated in their checklist.
    (3) For document testing, the CPA should look at the same original 
document as tested by the internal auditor for the procedure as 
indicated in their checklist. The CPA need only retest the minimum 
sample size required in the checklist.
    (C) The CPA is to investigate and resolve any differences between 
their reperformance results and the internal audit results.
    (D) Documentation is maintained for 5 years by the CPA indicating 
the procedures reperformed along with the results.
    (E) When performing the procedures for paragraph (f)(3)(ii)(B) of 
this section in subsequent years, the CPA must select a different sample 
so that the CPA will reperform substantially all of the procedures after 
several years.
    (F) Any additional procedures performed at the request of the 
Commission, the Tribal gaming regulatory authority or management should 
be included in the Agreed-Upon Procedures report transmitted to the 
Commission.
    (4) Report Format. (i) The NIGC has concluded that the performance 
of these procedures is an attestation engagement in which the CPA 
applies such Agreed-Upon Procedures to the gaming operation's assertion 
that it is in compliance with the MICS and, if applicable under 
paragraph (f)(2) of this section, the Tribal internal control standards 
and approved variances, provide a level of control that equals or 
exceeds that of the MICS. Accordingly, the Statements on Standards for 
Attestation Engagements (SSAE's), specifically SSAE 10, issued by the 
Auditing Standards Board is currently applicable. SSAE 10 provides 
current, pertinent guidance regarding agreed-upon procedure engagements, 
and the sample report formats included within those standards should be 
used, as appropriate, in the preparation of the CPA's agreed-upon 
procedures report. If future revisions are made to this standard or new 
SSAEs are adopted that are applicable to this type of engagement, the 
CPA is to comply with any revised professional standards in issuing 
their agreed upon procedures report. The Commission will provide an 
Example Report and Letter Formats upon request that may be used and 
contain all of the information discussed below:
    (A) The report must describe all instances of procedural 
noncompliance

[[Page 900]]

regardless of materiality) with the MICS or approved variations, and all 
instances where the Tribal gaming regulatory authority's regulations do 
not comply with the MICS. When describing the agreed-upon procedures 
performed, the CPA should also indicate whether procedures performed by 
other individuals were utilized to substitute for the procedures 
required to be performed by the CPA. For each instance of noncompliance 
noted in the CPA's agreed-upon procedures report, the following 
information must be included:
    (1) The citation of the applicable MICS for which the instance of 
noncompliance was noted.
    (2) A narrative description of the noncompliance, including the 
number of exceptions and sample size tested.
    (5) Report Submission Requirements. (i) The CPA shall prepare a 
report of the findings for the Tribe and management. The Tribe shall 
submit 2 copies of the report to the Commission no later than 120 days 
after the gaming operation's business year. This report should be 
provided in addition to any other reports required to be submitted to 
the Commission.
    (ii) The CPA should maintain the work-papers supporting the report 
for a minimum of five years. Digital storage is acceptable. The 
Commission may request access to these work-papers, through the Tribe.
    (6) CPA NIGC MICS Compliance Checklists. In connection with the CPA 
testing pursuant to this section and as referenced therein, the 
Commission will provide CPA MICS Compliance Checklists upon request.
    (g) Enforcement of Commission Minimum Internal Control Standards. 
(1) Each Tribal gaming regulatory authority is required to establish and 
implement internal control standards pursuant to paragraph (c) of this 
section. Each gaming operation is then required, pursuant to paragraph 
(d) of this section, to develop and implement an internal control system 
that complies with the Tribal internal control standards. Failure to do 
so may subject the Tribal operator of the gaming operation, and/or the 
management contractor, to penalties under 25 U.S.C. 2713.
    (2) Recognizing that Tribes are the primary regulator of their 
gaming operation(s), enforcement action by the Commission will not be 
initiated under this part without first informing the Tribe and Tribal 
gaming regulatory authority of deficiencies in the internal controls of 
its gaming operation and allowing a reasonable period of time to address 
such deficiencies. Such prior notice and opportunity for corrective 
action is not required where the threat to the integrity of the gaming 
operation is immediate and severe.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47104, Aug. 12, 2005]



Sec. 542.4  How do these regulations affect minimum internal control 
standards established in a Tribal-State compact?

    (a) If there is a direct conflict between an internal control 
standard established in a Tribal-State compact and a standard or 
requirement set forth in this part, then the internal control standard 
established in a Tribal-State compact shall prevail.
    (b) If an internal control standard in a Tribal-State compact 
provides a level of control that equals or exceeds the level of control 
under an internal control standard or requirement set forth in this 
part, then the Tribal-State compact standard shall prevail.
    (c) If an internal control standard or a requirement set forth in 
this part provides a level of control that exceeds the level of control 
under an internal control standard established in a Tribal-State 
compact, then the internal control standard or requirement set forth in 
this part shall prevail.



Sec. 542.5  How do these regulations affect state jurisdiction?

    Nothing in this part shall be construed to grant to a state 
jurisdiction in class II gaming or extend a state's jurisdiction in 
class III gaming.



Sec. 542.6  Does this part apply to small and charitable gaming 
operations?

    (a) Small gaming operations. This part shall not apply to small 
gaming operations provided that:
    (1) The Tribal gaming regulatory authority permits the operation to 
be exempt from this part;

[[Page 901]]

    (2) The annual gross gaming revenue of the operation does not exceed 
$1 million; and
    (3) The Tribal gaming regulatory authority develops and the 
operation complies with alternate procedures that:
    (i) Protect the integrity of games offered; and
    (ii) Safeguard the assets used in connection with the operation.
    (b) Charitable gaming operations. This part shall not apply to 
charitable gaming operations provided that:
    (1) All proceeds are for the benefit of a charitable organization;
    (2) The Tribal gaming regulatory authority permits the charitable 
organization to be exempt from this part;
    (3) The charitable gaming operation is operated wholly by the 
charitable organization's employees or volunteers;
    (4) The annual gross gaming revenue of the charitable gaming 
operation does not exceed $100,000;
    (i) Where the annual gross gaming revenues of the charitable gaming 
operation exceed $100,000, but are less than $1 million, paragraph (a) 
of this section shall also apply; and
    (ii) [Reserved]
    (5) The Tribal gaming regulatory authority develops and the 
charitable gaming operation complies with alternate procedures that:
    (i) Protect the integrity of the games offered; and
    (ii) Safeguard the assets used in connection with the gaming 
operation.
    (c) Independent operators. Nothing in this section shall exempt 
gaming operations conducted by independent operators for the benefit of 
a charitable organization.



Sec. 542.7  What are the minimum internal control standards for bingo?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Game play standards. (1) The functions of seller and payout 
verifier shall be segregated. Employees who sell cards on the floor 
shall not verify payouts with cards in their possession. Floor clerks 
who sell cards on the floor are permitted to announce the serial numbers 
of winning cards.
    (2) All sales of bingo cards shall be documented by recording at 
least the following:
    (i) Date;
    (ii) Shift (if applicable);
    (iii) Session (if applicable);
    (iv) Dollar amount;
    (v) Signature, initials, or identification number of at least one 
seller (if manually documented); and
    (vi) Signature, initials, or identification number of a person 
independent of the seller who has randomly verified the card sales (this 
requirement is not applicable to locations with $1 million or less in 
annual write).
    (3) The total win and write shall be computed and recorded by shift 
(or session, if applicable).
    (4) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures that ensure the 
correct calling of numbers selected in the bingo game.
    (5) Each ball shall be shown to a camera immediately before it is 
called so that it is individually displayed to all customers. For speed 
bingo games not verified by camera equipment, each ball drawn shall be 
verified by a person independent of the bingo caller responsible for 
calling the speed bingo game.
    (6) For all coverall games and other games offering a payout of 
$1,200 or more, as the balls are called the numbers shall be immediately 
recorded by the caller and maintained for a minimum of twenty-four (24) 
hours.
    (7) Controls shall be present to assure that the numbered balls are 
placed back into the selection device prior to calling the next game.
    (8) The authenticity of each payout shall be verified by at least 
two persons. A computerized card verifying system may function as the 
second person verifying the payout if the card with the winning numbers 
is displayed on a reader board.
    (9) Payouts in excess of $1,200 shall require written approval, by 
personnel independent of the transaction, that

[[Page 902]]

the bingo card has been examined and verified with the bingo card record 
to ensure that the ticket has not been altered.
    (10) Total payout shall be computed and recorded by shift or 
session, if applicable.
    (c) Promotional payouts or awards. (1) If the gaming operation 
offers promotional payouts or awards, the payout form/documentation 
shall include the following information:
    (i) Date and time;
    (ii) Dollar amount of payout or description of personal property 
(e.g., jacket, toaster, car, etc.), including fair market value;
    (iii) Type of promotion; and
    (iv) Signature of at least one employee authorizing and completing 
the transaction.
    (2) [Reserved]
    (d) Accountability form. (1) All funds used to operate the bingo 
department shall be recorded on an accountability form.
    (2) All funds used to operate the bingo department shall be counted 
independently by at least two persons and reconciled to the recorded 
amounts at the end of each shift or session. Unverified transfers of 
cash and/or cash equivalents are prohibited.
    (e) Bingo equipment. (1) Access to controlled bingo equipment (e.g., 
blower, balls in play, and back-up balls) shall be restricted to 
authorized persons.
    (2) The procedures established by the Tribal gaming regulatory 
authority, or the gaming operation as approved by the Tribal gaming 
regulatory authority, shall include standards relating to the inspection 
of new bingo balls put into play as well as for those in use.
    (3) Bingo equipment shall be maintained and checked for accuracy on 
a periodic basis.
    (4) The bingo card inventory shall be controlled so as to assure the 
integrity of the cards being used as follows:
    (i) Purchased paper shall be inventoried and secured by a person or 
persons independent of the bingo sales;
    (ii) The issue of paper to the cashiers shall be documented and 
signed for by the person responsible for inventory control and a 
cashier. The document log shall include the series number of the bingo 
paper;
    (iii) A copy of the bingo paper control log shall be given to the 
bingo ball caller for purposes of determining if the winner purchased 
the paper that was issued for sale that day (electronic verification 
satisfies this standard);
    (iv) At the end of each month, a person or persons independent of 
bingo sales and inventory control shall verify the accuracy of the 
ending balance in the bingo paper control by reconciling the paper on-
hand;
    (v) A monthly comparison for reasonableness shall be made of the 
amount of paper sold from the bingo paper control log to the amount of 
revenue recognized.
    (f) Standards for statistical reports. (1) Records shall be 
maintained, which include win, write (card sales), and a win-to-write 
hold percentage, for:
    (i) Each shift or each session;
    (ii) Each day;
    (iii) Month-to-date; and
    (iv) Year-to-date or fiscal year-to-date.
    (2) A manager independent of the bingo department shall review bingo 
statistical information on at least a monthly basis and investigate any 
large or unusual statistical fluctuations.
    (3) Investigations shall be documented, maintained for inspection, 
and provided to the Tribal gaming regulatory authority upon request.
    (g) Electronic equipment. (1) If the gaming operation utilizes 
electronic equipment in connection with the play of bingo, then the 
following standards shall also apply.
    (i) If the electronic equipment contains a bill acceptor, then Sec. 
542.21(e) and (f), Sec. 542.31(e) and (f), or Sec. 542.41(e) and (f) 
(as applicable) shall apply.
    (ii) If the electronic equipment uses a bar code or microchip 
reader, the reader shall be tested periodically by a person or persons 
independent of the bingo department to determine that it is correctly 
reading the bar code or the microchip.
    (iii) If the electronic equipment returns a voucher or a payment 
slip to the player, then Sec. 542.13(n) (as applicable) shall apply.
    (2) [Reserved]
    (h) Standards for linked electronic games. Management shall ensure 
that

[[Page 903]]

all agreements/contracts entered into after June 27, 2002 to provide 
linked electronic games shall contain language requiring the vendor to 
comply with the standards in this section applicable to the goods or 
services the vendor is providing.
    (i) Host requirements/game information (for linked electronic 
games). (1) Providers of any linked electronic game(s) shall maintain 
complete records of game data for a period of one (1) year from the date 
the games are played (or a time frame established by the Tribal gaming 
regulatory authority). This data may be kept in an archived manner, 
provided the information can be produced within twenty-four (24) hours 
upon request. In any event, game data for the preceding seventy-two (72) 
hours shall be immediately accessible.
    (2) Data required to be maintained for each game played includes:
    (i) Date and time game start and game end;
    (ii) Sales information by location;
    (iii) Cash distribution by location;
    (iv) Refund totals by location;
    (v) Cards-in-play count by location;
    (vi) Identification number of winning card(s);
    (vii) Ordered list of bingo balls drawn; and
    (viii) Prize amounts at start and end of game.
    (j) Host requirements/sales information (for linked electronic 
games). (1) Providers of any linked electronic game(s) shall maintain 
complete records of sales data for a period of one (1) year from the 
date the games are played (or a time frame established by the Tribal 
gaming regulatory authority). This data may be kept in an archived 
manner, provided the information can be produced within twenty-four (24) 
hours upon request. In any event, sales data for the preceding ten (10) 
days shall be immediately accessible. Summary information must be 
accessible for at least 120 days.
    (2) Sales information required shall include:
    (i) Daily sales totals by location;
    (ii) Commissions distribution summary by location;
    (iii) Game-by-game sales, prizes, refunds, by location; and
    (iv) Daily network summary, by game by location.
    (k) Remote host requirements (for linked electronic games). (1) 
Linked electronic game providers shall maintain on-line records at the 
remote host site for any game played. These records shall remain on-line 
until the conclusion of the session of which the game is a part. 
Following the conclusion of the session, records may be archived, but in 
any event, must be retrievable in a timely manner for at least seventy-
two (72) hours following the close of the session. Records shall be 
accessible through some archived media for at least ninety (90) days 
from the date of the game.
    (2) Game information required includes date and time of game start 
and game end, sales totals, cash distribution (prizes) totals, and 
refund totals.
    (3) Sales information required includes cash register 
reconciliations, detail and summary records for purchases, prizes, 
refunds, credits, and game/sales balance for each session.
    (l) Standards for player accounts (for proxy play and linked 
electronic games). (1) Prior to participating in any game, players shall 
be issued a unique player account number. The player account number can 
be issued through the following means:
    (i) Through the use of a point-of-sale (cash register device);
    (ii) By assignment through an individual play station; or
    (iii) Through the incorporation of a ``player tracking'' media.
    (2) Printed receipts issued in conjunction with any player account 
should include a time/date stamp.
    (3) All player transactions shall be maintained, chronologically by 
account number, through electronic means on a data storage device. These 
transaction records shall be maintained on-line throughout the active 
game and for at least twenty-four (24) hours before they can be stored 
on an ``off-line'' data storage media.
    (4) The game software shall provide the ability to, upon request, 
produce a printed account history, including all transactions, and a 
printed game summary (total purchases, deposits, wins, debits, for any 
account that has been

[[Page 904]]

active in the game during the preceding twenty-four (24) hours).
    (5) The game software shall provide a ``player account summary'' at 
the end of every game. This summary shall list all accounts for which 
there were any transactions during that game day and include total 
purchases, total deposits, total credits (wins), total debits (cash-
outs) and an ending balance.

[67 FR 43400, June 27, 2002, as amended at 70 FR 23021, May 4, 2005; 70 
FR 47106, Aug. 12, 2005]



Sec. 542.8  What are the minimum internal control standards for pull 
tabs?

    (a) Computer applications. For any computer application utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Pull tab inventory. (1) Pull tab inventory (including unused 
tickets) shall be controlled to assure the integrity of the pull tabs.
    (2) Purchased pull tabs shall be inventoried and secured by a person 
or persons independent of the pull tab sales.
    (3) The issue of pull tabs to the cashier or sales location shall be 
documented and signed for by the person responsible for inventory 
control and the cashier. The document log shall include the serial 
number of the pull tabs issued.
    (4) Appropriate documentation shall be given to the redemption booth 
for purposes of determining if the winner purchased the pull tab from 
the pull tabs issued by the gaming operation. Electronic verification 
satisfies this requirement.
    (5) At the end of each month, a person or persons independent of 
pull tab sales and inventory control shall verify the accuracy of the 
ending balance in the pull tab control by reconciling the pull tabs on 
hand.
    (6) A monthly comparison for reasonableness shall be made of the 
amount of pull tabs sold from the pull tab control log to the amount of 
revenue recognized.
    (c) Access. Access to pull tabs shall be restricted to authorized 
persons.
    (d) Transfers. Transfers of pull tabs from storage to the sale 
location shall be secured and independently controlled.
    (e) Winning pull tabs. (1) Winning pull tabs shall be verified and 
paid as follows:
    (i) Payouts in excess of a dollar amount determined by the gaming 
operation, as approved by the Tribal gaming regulatory authority, shall 
be verified by at least two employees.
    (ii) Total payout shall be computed and recorded by shift.
    (iii) The winning pull tabs shall be voided so that they cannot be 
presented for payment again.
    (2) Personnel independent of pull tab operations shall verify the 
amount of winning pull tabs redeemed each day.
    (f) Accountability form. (1) All funds used to operate the pull tab 
game shall be recorded on an accountability form.
    (2) All funds used to operate the pull tab game shall be counted 
independently by at least two persons and reconciled to the recorded 
amounts at the end of each shift or session. Unverified transfers of 
cash and/or cash equivalents are prohibited.
    (g) Standards for statistical reports. (1) Records shall be 
maintained, which include win, write (sales), and a win-to-write hold 
percentage as compared to the theoretical hold percentage derived from 
the flare, for each deal or type of game, for:
    (i) Each shift;
    (ii) Each day;
    (iii) Month-to-date; and
    (iv) Year-to-date or fiscal year-to-date as applicable.
    (2) A manager independent of the pull tab operations shall review 
statistical information at least on a monthly basis and shall 
investigate any large or unusual statistical fluctuations. These 
investigations shall be documented, maintained for inspection, and 
provided to the Tribal gaming regulatory authority upon request.
    (3) Each month, the actual hold percentage shall be compared to the 
theoretical hold percentage. Any significant variations (3%) shall be 
investigated.
    (h) Electronic equipment. (1) If the gaming operation utilizes 
electronic equipment in connection with the play

[[Page 905]]

of pull tabs, then the following standards shall also apply.
    (i) If the electronic equipment contains a bill acceptor, then Sec. 
542.21(e) and (f), Sec. 542.31(e) and (f), or Sec. 542.41(e) and (f) 
(as applicable) shall apply.
    (ii) If the electronic equipment uses a bar code or microchip 
reader, the reader shall be tested periodically to determine that it is 
correctly reading the bar code or microchip.
    (iii) If the electronic equipment returns a voucher or a payment 
slip to the player, then Sec. 542.13(n)(as applicable) shall apply.
    (2) [Reserved]

[67 FR 43400, June 27, 2002, as amended at 70 FR 23021, May 4, 2005; 70 
FR 47106, Aug. 12, 2005]



Sec. 542.9  What are the minimum internal control standards for card 
games?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Standards for drop and count. The procedures for the collection 
of the card game drop and the count thereof shall comply with Sec. 
542.21, Sec. 542.31, or Sec. 542.41 (as applicable).
    (c) Standards for supervision. (1) Supervision shall be provided at 
all times the card room is in operation by personnel with authority 
equal to or greater than those being supervised.
    (2) Exchanges between table banks and the main card room bank (or 
cage, if a main card room bank is not used) in excess of $100.00 shall 
be authorized by a supervisor. All exchanges shall be evidenced by the 
use of a lammer unless the exchange of chips, tokens, and/or cash takes 
place at the table.
    (3) Exchanges from the main card room bank (or cage, if a main card 
room bank is not used) to the table banks shall be verified by the card 
room dealer and the runner.
    (4) If applicable, transfers between the main card room bank and the 
cage shall be properly authorized and documented.
    (5) A rake collected or ante placed shall be done in accordance with 
the posted rules.
    (d) Standards for playing cards. (1) Playing cards shall be 
maintained in a secure location to prevent unauthorized access and to 
reduce the possibility of tampering.
    (2) Used cards shall be maintained in a secure location until 
marked, scored, or destroyed, in a manner approved by the Tribal gaming 
regulatory authority, to prevent unauthorized access and reduce the 
possibility of tampering.
    (3) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with a reasonable time period, 
which shall not exceed seven (7) days, within which to mark, cancel, or 
destroy cards from play.
    (i) This standard shall not apply where playing cards are retained 
for an investigation.
    (ii) [Reserved]
    (4) A card control log shall be maintained that documents when cards 
and dice are received on site, distributed to and returned from tables 
and removed from play by the gaming operation.
    (e) Plastic cards. Notwithstanding paragraph (d) of this section, if 
a gaming operation uses plastic cards (not plastic-coated cards), the 
cards may be used for up to three (3) months if the plastic cards are 
routinely inspected, and washed or cleaned in a manner and time frame 
approved by the Tribal gaming regulatory authority.
    (f) Standards for shills. (1) Issuance of shill funds shall have the 
written approval of the supervisor.
    (2) Shill returns shall be recorded and verified on the shill sign-
out form.
    (3) The replenishment of shill funds shall be documented.
    (g) Standards for reconciliation of card room bank. (1) The amount 
of the main card room bank shall be counted, recorded, and reconciled on 
at least a per shift basis.
    (2) At least once per shift, the table banks that were opened during 
that shift shall be counted, recorded, and reconciled by a dealer or 
other person, and a supervisor, and shall be attested

[[Page 906]]

to by their signatures on the check-out form.
    (h) Standards for promotional progressive pots and pools. (1) All 
funds contributed by players into the pools shall be returned when won 
in accordance with the posted rules with no commission or administrative 
fee withheld.
    (2) Rules governing promotional pools shall be conspicuously posted 
and designate:
    (i) The amount of funds to be contributed from each pot;
    (ii) What type of hand it takes to win the pool (e.g., what 
constitutes a ``bad beat'');
    (iii) How the promotional funds will be paid out;
    (iv) How/when the contributed funds are added to the jackpots; and
    (v) Amount/percentage of funds allocated to primary and secondary 
jackpots, if applicable.
    (3) Promotional pool contributions shall not be placed in or near 
the rake circle, in the drop box, or commingled with gaming revenue from 
card games or any other gambling game.
    (4) The amount of the jackpot shall be conspicuously displayed in 
the card room.
    (5) At least once a day, the posted pool amount shall be updated to 
reflect the current pool amount.
    (6) At least once a day, increases to the posted pool amount shall 
be reconciled to the cash previously counted or received by the cage by 
personnel independent of the card room.
    (7) All decreases to the pool must be properly documented, including 
a reason for the decrease.
    (i) Promotional progressive pots and pools where funds are displayed 
in the card room. (1) Promotional funds displayed in the card room shall 
be placed in a locked container in plain view of the public.
    (2) Persons authorized to transport the locked container shall be 
precluded from having access to the contents keys.
    (3) The contents key shall be maintained by personnel independent of 
the card room.
    (4) At least once a day, the locked container shall be removed by 
two persons, one of whom is independent of the card games department, 
and transported directly to the cage or other secure room to be counted, 
recorded, and verified.
    (5) The locked container shall then be returned to the card room 
where the posted pool amount shall be updated to reflect the current 
pool amount.
    (j) Promotional progressive pots and pools where funds are 
maintained in the cage. (1) Promotional funds removed from the card game 
shall be placed in a locked container.
    (2) Persons authorized to transport the locked container shall be 
precluded from having access to the contents keys.
    (3) The contents key shall be maintained by personnel independent of 
the card room.
    (4) At least once a day, the locked container shall be removed by 
two persons, one of whom is independent of the card games department, 
and transported directly to the cage or other secure room to be counted, 
recorded, and verified, prior to accepting the funds into cage 
accountability.
    (5) The posted pool amount shall then be updated to reflect the 
current pool amount.



Sec. 542.10  What are the minimum internal control standards for keno?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Game play standards. (1) The computerized customer ticket shall 
include the date, game number, ticket sequence number, station number, 
and conditioning (including multi-race if applicable).
    (2) The information on the ticket shall be recorded on a restricted 
transaction log or computer storage media concurrently with the 
generation of the ticket.
    (3) Keno personnel shall be precluded from having access to the 
restricted transaction log or computer storage media.
    (4) When it is necessary to void a ticket, the void information 
shall be

[[Page 907]]

inputted in the computer and the computer shall document the appropriate 
information pertaining to the voided wager (e.g., void slip is issued or 
equivalent documentation is generated).
    (5) Controls shall exist to prevent the writing and voiding of 
tickets after a game has been closed and after the number selection 
process for that game has begun.
    (6) The controls in effect for tickets prepared in outstations (if 
applicable) shall be identical to those in effect for the primary keno 
game.
    (c) Rabbit ear or wheel system. (1) The following standards shall 
apply if a rabbit ear or wheel system is utilized:
    (i) A dedicated camera shall be utilized to monitor the following 
both prior to, and subsequent to, the calling of a game:
    (A) Empty rabbit ears or wheel;
    (B) Date and time;
    (C) Game number; and
    (D) Full rabbit ears or wheel.
    (ii) The film of the rabbit ears or wheel shall provide a legible 
identification of the numbers on the balls drawn.
    (iii) Keno personnel shall immediately input the selected numbers in 
the computer and the computer shall document the date, the game number, 
the time the game was closed, and the numbers drawn.
    (iv) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures that prevent 
unauthorized access to keno balls in play.
    (v) Back-up keno ball inventories shall be secured in a manner to 
prevent unauthorized access.
    (vi) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures for inspecting new 
keno balls put into play as well as for those in use.
    (2) [Reserved]
    (d) Random number generator. (1) The following standards shall apply 
if a random number generator is utilized:
    (i) The random number generator shall be linked to the computer 
system and shall directly relay the numbers selected into the computer 
without manual input.
    (ii) Keno personnel shall be precluded from access to the random 
number generator.
    (2) [Reserved]
    (e) Winning tickets. Winning tickets shall be verified and paid as 
follows:
    (1) The sequence number of tickets presented for payment shall be 
inputted into the computer, and the payment amount generated by the 
computer shall be given to the customer.
    (2) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures that preclude 
payment on tickets previously presented for payment, unclaimed winning 
tickets (sleepers) after a specified period of time, voided tickets, and 
tickets that have not been issued yet.
    (3) All payouts shall be supported by the customer (computer-
generated) copy of the winning ticket (payout amount is indicated on the 
customer ticket or a payment slip is issued).
    (4) A manual report or other documentation shall be produced and 
maintained documenting any payments made on tickets that are not 
authorized by the computer.
    (5) Winning tickets over a specified dollar amount (not to exceed 
$10,000 for locations with more than $5 million annual keno write and 
$3,000 for all other locations) shall also require the following:
    (i) Approval of management personnel independent of the keno 
department, evidenced by their signature;
    (ii) Review of the video recording and/or digital record of the 
rabbit ears or wheel to verify the legitimacy of the draw and the 
accuracy of the draw ticket (for rabbit ear or wheel systems only);
    (iii) Comparison of the winning customer copy to the computer 
reports;
    (iv) Regrading of the customer copy using the payout schedule and 
draw information; and
    (v) Documentation and maintenance of the procedures in this 
paragraph.
    (6) When the keno game is operated by one person, all winning 
tickets in

[[Page 908]]

excess of an amount to be determined by management (not to exceed 
$1,500) shall be reviewed and authorized by a person independent of the 
keno department.
    (f) Check out standards at the end of each keno shift. (1) For each 
writer station, a cash summary report (count sheet) shall be prepared 
that includes:
    (i) Computation of net cash proceeds for the shift and the cash 
turned in; and
    (ii) Signatures of two employees who have verified the net cash 
proceeds for the shift and the cash turned in. Unverified transfers of 
cash and/or cash equivalents are prohibited.
    (2) [Reserved]
    (g) Promotional payouts or awards. (1) If a gaming operation offers 
promotional payouts or awards, the payout form/documentation shall 
include the following information:
    (i) Date and time;
    (ii) Dollar amount of payout or description of personal property 
(e.g., jacket, toaster, car, etc.), including fair market value;
    (iii) Type of promotion; and
    (iv) Signature of at least one employee authorizing and completing 
the transaction.
    (2) [Reserved]
    (h) Standards for statistical reports. (1) Records shall be 
maintained that include win and write by individual writer for each day.
    (2) Records shall be maintained that include win, write, and win-to-
write hold percentage for:
    (i) Each shift;
    (ii) Each day;
    (iii) Month-to-date; and
    (iv) Year-to-date or fiscal year-to-date as applicable.
    (3) A manager independent of the keno department shall review keno 
statistical data at least on a monthly basis and investigate any large 
or unusual statistical variances.
    (4) At a minimum, investigations shall be performed for statistical 
percentage fluctuations from the base level for a month in excess of 
3%. The base level shall be defined as the gaming 
operation's win percentage for the previous business year or the 
previous twelve (12) months.
    (5) Such investigations shall be documented, maintained for 
inspection, and provided to the Tribal gaming regulatory authority upon 
request.
    (i) System security standards. (1) All keys (including duplicates) 
to sensitive computer hardware in the keno area shall be maintained by a 
department independent of the keno function.
    (2) Personnel independent of the keno department shall be required 
to accompany such keys to the keno area and shall observe changes or 
repairs each time the sensitive areas are accessed.
    (j) Documentation standards. (1) Adequate documentation of all 
pertinent keno information shall be generated by the computer system.
    (2) This documentation shall be restricted to authorized personnel.
    (3) The documentation shall include, at a minimum:
    (i) Ticket information (as described in paragraph (b)(1) of this 
section);
    (ii) Payout information (date, time, ticket number, amount, etc.);
    (iii) Game information (number, ball draw, time, etc.);
    (iv) Daily recap information, including:
    (A) Write;
    (B) Payouts; and
    (C) Gross revenue (win);
    (v) System exception information, including:
    (A) Voids;
    (B) Late pays; and
    (C) Appropriate system parameter information (e.g., changes in pay 
tables, ball draws, payouts over a predetermined amount, etc.); and
    (vi) Personnel access listing, including:
    (A) Employee name or employee identification number; and
    (B) Listing of functions employee can perform or equivalent means of 
identifying same.
    (k) Keno audit standards. (1) The keno audit function shall be 
independent of the keno department.
    (2) At least annually, keno audit shall foot the write on the 
restricted copy of the keno transaction report for a minimum of one 
shift and compare the total to the total as documented by the computer.

[[Page 909]]

    (3) For at least one shift every other month, keno audit shall 
perform the following:
    (i) Foot the customer copy of the payouts and trace the total to the 
payout report; and
    (ii) Regrade at least 1% of the winning tickets using the payout 
schedule and draw ticket.
    (4) Keno audit shall perform the following:
    (i) For a minimum of five games per week, compare the video 
recording and/or digital record of the rabbit ears or wheel to the 
computer transaction summary;
    (ii) Compare net cash proceeds to the audited win/loss by shift and 
investigate any large cash overages or shortages (i.e., in excess of 
$25.00);
    (iii) Review and regrade all winning tickets greater than or equal 
to $1,500, including all forms that document that proper authorizations 
and verifications were obtained and performed;
    (iv) Review the documentation for payout adjustments made outside 
the computer and investigate large and frequent payments;
    (v) Review personnel access listing for inappropriate functions an 
employee can perform;
    (vi) Review system exception information on a daily basis for 
propriety of transactions and unusual occurrences including changes to 
the personnel access listing;
    (vii) If a random number generator is used, then at least weekly 
review the numerical frequency distribution for potential patterns; and
    (viii) Investigate and document results of all noted improper 
transactions or unusual occurrences.
    (5) When the keno game is operated by one person:
    (i) The customer copies of all winning tickets in excess of $100 and 
at least 5% of all other winning tickets shall be regraded and traced to 
the computer payout report;
    (ii) The video recording and/or digital record of rabbit ears or 
wheel shall be randomly compared to the computer game information report 
for at least 10% of the games during the shift; and
    (iii) Keno audit personnel shall review winning tickets for proper 
authorization pursuant to paragraph (e)(6) of this section.
    (6) In the event any person performs the writer and deskman 
functions on the same shift, the procedures described in paragraphs 
(k)(5)(i) and (ii) of this section (using the sample sizes indicated) 
shall be performed on tickets written by that person.
    (7) Documentation (e.g., a log, checklist, etc.) that evidences the 
performance of all keno audit procedures shall be maintained.
    (8) A manager independent of the keno department shall review keno 
audit exceptions, and perform and document investigations into 
unresolved exceptions. These investigations shall be documented, 
maintained for inspection, and provided to the Tribal gaming regulatory 
authority upon request.
    (9) When a multi-game ticket is part of the sample in paragraphs 
(k)(3)(ii), (k)(5)(i) and (k)(6) of this section, the procedures may be 
performed for ten (10) games or ten percent (10%) of the games won, 
whichever is greater.
    (l) Access. Access to the computer system shall be adequately 
restricted (i.e., passwords are changed at least quarterly, access to 
computer hardware is physically restricted, etc.).
    (m) Equipment standards. (1) There shall be effective maintenance 
planned to service keno equipment, including computer program updates, 
hardware servicing, and keno ball selection equipment (e.g., service 
contract with lessor).
    (2) Keno equipment maintenance (excluding keno balls) shall be 
independent of the operation of the keno game.
    (3) Keno maintenance personnel shall report irregularities to 
management personnel independent of the keno department.
    (4) If the gaming operation utilizes a barcode or microchip reader 
in connection with the play of keno, the reader shall be tested at least 
annually by personnel independent of the keno department to determine 
that it is correctly reading the barcode or microchip.
    (n) Document retention. (1) All documents (including computer 
storage media) discussed in this section shall be retained for five (5) 
years, except for

[[Page 910]]

the following, which shall be retained for at least seven (7) days:
    (i) Video recordings and/or digital records of rabbit ears or wheel;
    (ii) All copies of winning keno tickets of less than $1,500.00.
    (2) [Reserved]
    (o) Multi-race tickets. (1) Procedures shall be established to 
notify keno personnel immediately of large multi-race winners to ensure 
compliance with standards in paragraph (e)(5) of this section.
    (2) Procedures shall be established to ensure that keno personnel 
are aware of multi-race tickets still in process at the end of a shift.
    (p) Manual keno. For gaming operations that conduct manual keno 
games, alternate procedures that provide at least the level of control 
described by the standards in this section shall be developed and 
implemented.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47106, Aug. 12, 2005]



Sec. 542.11  What are the minimum internal control standards for 
pari-mutuel wagering?

    (a) Exemptions. (1) The requirements of this section shall not apply 
to gaming operations who house pari-mutuel wagering operations conducted 
entirely by a state licensed simulcast service provider pursuant to an 
approved tribal-state compact if:
    (i) The simulcast service provider utilizes its own employees for 
all aspects of the pari-mutuel wagering operation;
    (ii) The gaming operation posts, in a location visible to the 
public, that the simulcast service provider and its employees are wholly 
responsible for the conduct of pari-mutuel wagering offered at that 
location;
    (iii) The gaming operation receives a predetermined fee from the 
simulcast service provider; and
    (iv) In addition, the Tribal gaming regulatory authority, or the 
gaming operation as approved by the Tribal gaming regulatory authority, 
shall establish and the gaming operation shall comply with standards 
that ensure that the gaming operation receives, from the racetrack, its 
contractually guaranteed percentage of the handle.
    (2) Gaming operations that contract directly with a state regulated 
racetrack as a simulcast service provider, but whose on-site pari-mutuel 
operations are conducted wholly or in part by tribal gaming operation 
employees, shall not be required to comply with paragraphs (h)(5) thru 
(h)(9) of this section.
    (i) If any standard contained within this section conflicts with 
state law, a tribal-state compact, or a contract, then the gaming 
operation shall document the basis for noncompliance and shall maintain 
such documentation for inspection by the Tribal gaming regulatory 
authority and the Commission.
    (ii) In addition, the Tribal gaming regulatory authority, or the 
gaming operation as approved by the Tribal gaming regulatory authority, 
shall establish and the gaming operation shall comply with standards 
that ensure that the gaming operation receives, from the racetrack, its 
contractually guaranteed percentage of the handle.
    (b) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (c) Betting ticket and equipment standards. (1) All pari-mutuel 
wagers shall be transacted through the pari-mutuel satellite system. In 
case of computer failure between the pari-mutuel book and the hub, no 
tickets shall be manually written.
    (2) Whenever a betting station is opened for wagering or turned over 
to a new writer/cashier, the writer/cashier shall sign on and the 
computer shall document gaming operation name (or identification 
number), station number, the writer/cashier identifier, and the date and 
time.
    (3) A betting ticket shall consist of at least two parts:
    (i) An original, which shall be transacted and issued through a 
printer and given to the customer; and
    (ii) A copy that shall be recorded concurrently with the generation 
of the original ticket either on paper or other storage media (e.g., 
tape or diskette).

[[Page 911]]

    (4) Upon accepting a wager, the betting ticket that is created shall 
contain the following:
    (i) A unique transaction identifier;
    (ii) Gaming operation name (or identification number) and station 
number;
    (iii) Race track, race number, horse identification or event 
identification, as applicable;
    (iv) Type of bet(s), each bet amount, total number of bets, and 
total take; and
    (v) Date and time.
    (5) All tickets shall be considered final at post time.
    (6) If a gaming operation voids a betting ticket written prior to 
post time, it shall be immediately entered into the system.
    (7) Future wagers shall be accepted and processed in the same manner 
as regular wagers.
    (d) Payout standards. (1) Prior to making payment on a ticket, the 
writer/cashier shall input the ticket for verification and payment 
authorization.
    (2) The computer shall be incapable of authorizing payment on a 
ticket that has been previously paid, a voided ticket, a losing ticket, 
or an unissued ticket.
    (e) Checkout standards. (1) Whenever the betting station is closed 
or the writer/cashier is replaced, the writer/cashier shall sign off and 
the computer shall document the gaming operation name (or identification 
number), station number, the writer/cashier identifier, the date and 
time, and cash balance.
    (2) For each writer/cashier station a summary report shall be 
completed at the conclusion of each shift including:
    (i) Computation of cash turned in for the shift; and
    (ii) Signature of two employees who have verified the cash turned in 
for the shift. Unverified transfers of cash and/or cash equivalents are 
prohibited.
    (f) Employee wagering. Pari-mutuel employees shall be prohibited 
from wagering on race events while on duty, including during break 
periods.
    (g) Computer reports standards. (1) Adequate documentation of all 
pertinent pari-mutuel information shall be generated by the computer 
system.
    (2) This documentation shall be restricted to authorized personnel.
    (3) The documentation shall be created for each day's operation and 
shall include, but is not limited to:
    (i) Unique transaction identifier;
    (ii) Date/time of transaction;
    (iii) Type of wager;
    (iv) Animal identification or event identification;
    (v) Amount of wagers (by ticket, writer/SAM, track/event, and 
total);
    (vi) Amount of payouts (by ticket, writer/SAM, track/event, and 
total);
    (vii) Tickets refunded (by ticket, writer, track/event, and total);
    (viii) Unpaid winners/vouchers (``outs'') (by ticket/voucher, track/
event, and total);
    (ix) Voucher sales/payments (by ticket, writer/SAM, and track/
event);
    (x) Voids (by ticket, writer, and total);
    (xi) Future wagers (by ticket, date of event, total by day, and 
total at the time of revenue recognition);
    (xii) Results (winners and payout data);
    (xiii) Breakage data (by race and track/event);
    (xiv) Commission data (by race and track/event); and
    (xv) Purged data (by ticket and total).
    (4) The system shall generate the following reports:
    (i) A reconciliation report that summarizes totals by track/event, 
including write, the day's winning ticket total, total commission and 
breakage due the gaming operation, and net funds transferred to or from 
the gaming operation's bank account;
    (ii) An exception report that contains a listing of all system 
functions and overrides not involved in the actual writing or cashing of 
tickets, including sign-on/off, voids, and manually input paid tickets; 
and
    (iii) A purged ticket report that contains a listing of the unique 
transaction identifier(s), description, ticket cost and value, and date 
purged.
    (h) Accounting and auditing functions. A gaming operation shall 
perform the following accounting and auditing functions:

[[Page 912]]

    (1) The parimutuel audit shall be conducted by personnel independent 
of the parimutuel operation.
    (2) Documentation shall be maintained evidencing the performance of 
all parimutuel accounting and auditing procedures.
    (3) An accounting employee shall review handle, commission, and 
breakage for each day's play and recalculate the net amount due to or 
from the systems operator on a weekly basis.
    (4) The accounting employee shall verify actual cash/cash 
equivalents turned in to the system's summary report for each cashier's 
drawer (Beginning balance, (+) fills (draws), (+) net write (sold less 
voids), (-) payouts (net of IRS withholding), (-) cashbacks (paids), (=) 
cash turn-in).
    (5) An accounting employee shall produce a gross revenue recap 
report to calculate gross revenue for each day's play and for a month-
to-date basis, including the following totals:
    (i) Commission;
    (ii) Positive breakage;
    (iii) Negative breakage;
    (iv) Track/event fees;
    (v) Track/event fee rebates; and
    (vi) Purged tickets.
    (6) All winning tickets and vouchers shall be physically removed 
from the SAM's for each day's play.
    (7) In the event a SAM does not balance for a day's play, the 
auditor shall perform the following procedures:
    (i) Foot the winning tickets and vouchers deposited and trace to the 
totals of SAM activity produced by the system;
    (ii) Foot the listing of cashed vouchers and trace to the totals 
produced by the system;
    (iii) Review all exceptions for propriety of transactions and 
unusual occurrences;
    (iv) Review all voids for propriety;
    (v) Verify the results as produced by the system to the results 
provided by an independent source;
    (vi) Regrade 1% of paid (cashed) tickets to ensure accuracy and 
propriety; and
    (vii) When applicable, reconcile the totals of future tickets 
written to the totals produced by the system for both earned and 
unearned take, and review the reports to ascertain that future wagers 
are properly included on the day of the event.
    (8) At least annually, the auditor shall foot the wagers for one day 
and trace to the total produced by the system.
    (9) At least one day per quarter, the auditor shall recalculate and 
verify the change in the unpaid winners to the total purged tickets.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47106, Aug. 12, 2005]



Sec. 542.12  What are the minimum internal control standards for table 
games?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Standards for drop and count. The procedures for the collection 
of the table game drop and the count thereof shall comply with Sec. 
542.21, Sec. 542.31, or Sec. 542.41 (as applicable).
    (c) Fill and credit standards. (1) Fill slips and credit slips shall 
be in at least triplicate form, and in a continuous, prenumbered series. 
Such slips shall be concurrently numbered in a form utilizing the 
alphabet and only in one series at a time. The alphabet need not be used 
if the numerical series is not repeated during the business year.
    (2) Unissued and issued fill/credit slips shall be safeguarded and 
adequate procedures shall be employed in their distribution, use, and 
control. Personnel from the cashier or pit departments shall have no 
access to the secured (control) copies of the fill/credit slips.
    (3) When a fill/credit slip is voided, the cashier shall clearly 
mark ``void'' across the face of the original and first copy, the 
cashier and one other person independent of the transactions shall sign 
both the original and first copy, and shall submit them to the 
accounting department for retention and accountability.
    (4) Fill transactions shall be authorized by pit supervisory 
personnel before the issuance of fill slips and transfer of chips, 
tokens, or cash equivalents. The

[[Page 913]]

fill request shall be communicated to the cage where the fill slip is 
prepared.
    (5) At least three parts of each fill slip shall be utilized as 
follows:
    (i) One part shall be transported to the pit with the fill and, 
after the appropriate signatures are obtained, deposited in the table 
game drop box;
    (ii) One part shall be retained in the cage for reconciliation of 
the cashier bank; and
    (iii) For computer systems, one part shall be retained in a secure 
manner to insure that only authorized persons may gain access to it. For 
manual systems, one part shall be retained in a secure manner in a 
continuous unbroken form.
    (6) For Tier C gaming operations, the part of the fill slip that is 
placed in the table game drop box shall be of a different color for 
fills than for credits, unless the type of transaction is clearly 
distinguishable in another manner (the checking of a box on the form 
shall not be a clearly distinguishable indicator).
    (7) The table number, shift, and amount of fill by denomination and 
in total shall be noted on all copies of the fill slip. The correct date 
and time shall be indicated on at least two copies.
    (8) All fills shall be carried from the cashier's cage by a person 
who is independent of the cage or pit.
    (9) The fill slip shall be signed by at least the following persons 
(as an indication that each has counted the amount of the fill and the 
amount agrees with the fill slip):
    (i) Cashier who prepared the fill slip and issued the chips, tokens, 
or cash equivalent;
    (ii) Runner who carried the chips, tokens, or cash equivalents from 
the cage to the pit;
    (iii) Dealer or boxperson who received the chips, tokens, or cash 
equivalents at the gaming table; and
    (iv) Pit supervisory personnel who supervised the fill transaction.
    (10) Fills shall be broken down and verified by the dealer or 
boxperson in public view before the dealer or boxperson places the fill 
in the table tray.
    (11) A copy of the fill slip shall then be deposited into the drop 
box on the table by the dealer, where it shall appear in the soft count 
room with the cash receipts for the shift.
    (12) Table credit transactions shall be authorized by a pit 
supervisor before the issuance of credit slips and transfer of chips, 
tokens, or other cash equivalent. The credit request shall be 
communicated to the cage where the credit slip is prepared.
    (13) At least three parts of each credit slip shall be utilized as 
follows:
    (i) Two parts of the credit slip shall be transported by the runner 
to the pit. After signatures of the runner, dealer, and pit supervisor 
are obtained, one copy shall be deposited in the table game drop box and 
the original shall accompany transport of the chips, tokens, markers, or 
cash equivalents from the pit to the cage for verification and signature 
of the cashier.
    (ii) For computer systems, one part shall be retained in a secure 
manner to insure that only authorized persons may gain access to it. For 
manual systems, one part shall be retained in a secure manner in a 
continuous unbroken form.
    (14) The table number, shift, and the amount of credit by 
denomination and in total shall be noted on all copies of the credit 
slip. The correct date and time shall be indicated on at least two 
copies.
    (15) Chips, tokens, and/or cash equivalents shall be removed from 
the table tray by the dealer or boxperson and shall be broken down and 
verified by the dealer or boxperson in public view prior to placing them 
in racks for transfer to the cage.
    (16) All chips, tokens, and cash equivalents removed from the tables 
and markers removed from the pit shall be carried to the cashier's cage 
by a person who is independent of the cage or pit.
    (17) The credit slip shall be signed by at least the following 
persons (as an indication that each has counted or, in the case of 
markers, reviewed the items transferred):
    (i) Cashier who received the items transferred from the pit and 
prepared the credit slip;
    (ii) Runner who carried the items transferred from the pit to the 
cage;

[[Page 914]]

    (iii) Dealer who had custody of the items prior to transfer to the 
cage; and
    (iv) Pit supervisory personnel who supervised the credit 
transaction.
    (18) The credit slip shall be inserted in the drop box by the 
dealer.
    (19) Chips, tokens, or other cash equivalents shall be deposited on 
or removed from gaming tables only when accompanied by the appropriate 
fill/credit or marker transfer forms.
    (20) Cross fills (the transfer of chips between table games) and 
even cash exchanges are prohibited in the pit.
    (d) Table inventory forms. (1) At the close of each shift, for those 
table banks that were opened during that shift:
    (i) The table's chip, token, coin, and marker inventory shall be 
counted and recorded on a table inventory form; or
    (ii) If the table banks are maintained on an imprest basis, a final 
fill or credit shall be made to bring the bank back to par.
    (2) If final fills are not made, beginning and ending inventories 
shall be recorded on the master game sheet for shift win calculation 
purposes.
    (3) The accuracy of inventory forms prepared at shift end shall be 
verified by the outgoing pit supervisor and the dealer. Alternatively, 
if the dealer is not available, such verification may be provided by 
another pit supervisor or another supervisor from another gaming 
department. Verifications shall be evidenced by signature on the 
inventory form.
    (4) If inventory forms are placed in the drop box, such action shall 
be performed by a person other than a pit supervisor.
    (e) Table games computer generated documentation standards. (1) The 
computer system shall be capable of generating adequate documentation of 
all information recorded on the source documents and transaction detail 
(e.g., fill/credit slips, markers, etc.).
    (2) This documentation shall be restricted to authorized personnel.
    (3) The documentation shall include, at a minimum:
    (i) System exception information (e.g., appropriate system parameter 
information, corrections, voids, etc.); and
    (ii) Personnel access listing, which includes, at a minimum:
    (A) Employee name or employee identification number (if applicable); 
and
    (B) Listing of functions employees can perform or equivalent means 
of identifying the same.
    (f) Standards for playing cards and dice. (1) Playing cards and dice 
shall be maintained in a secure location to prevent unauthorized access 
and to reduce the possibility of tampering.
    (2) Used cards and dice shall be maintained in a secure location 
until marked, scored, or destroyed, in a manner as approved by the 
Tribal gaming regulatory authority, to prevent unauthorized access and 
reduce the possibility of tampering.
    (3) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with a reasonable time period, 
which shall not exceed seven (7) days, within which to mark, cancel, or 
destroy cards and dice from play.
    (i) This standard shall not apply where playing cards or dice are 
retained for an investigation.
    (ii) [Reserved]
    (4) A card control log shall be maintained that documents when cards 
and dice are received on site, distributed to and returned from tables 
and removed from play by the gaming operation.
    (g) Plastic cards. Notwithstanding paragraph (f) of this section, if 
a gaming operation uses plastic cards (not plastic-coated cards), the 
cards may be used for up to three (3) months if the plastic cards are 
routinely inspected, and washed or cleaned in a manner and time frame 
approved by the Tribal gaming regulatory authority.
    (h) Standards for supervision. Pit supervisory personnel (with 
authority equal to or greater than those being supervised) shall provide 
supervision of all table games.
    (i) Analysis of table game performance standards. (1) Records shall 
be maintained by day and shift indicating any single-deck blackjack 
games that were dealt for an entire shift.
    (2) Records reflecting hold percentage by table and type of game 
shall be

[[Page 915]]

maintained by shift, by day, cumulative month-to-date, and cumulative 
year-to-date.
    (3) This information shall be presented to and reviewed by 
management independent of the pit department on at least a monthly 
basis.
    (4) The management in paragraph (i)(3) of this section shall 
investigate any unusual fluctuations in hold percentage with pit 
supervisory personnel.
    (5) The results of such investigations shall be documented, 
maintained for inspection, and provided to the Tribal gaming regulatory 
authority upon request.
    (j) Accounting/auditing standards. (1) The accounting and auditing 
procedures shall be performed by personnel who are independent of the 
transactions being audited/accounted for.
    (2) If a table game has the capability to determine drop (e.g., 
bill-in/coin-drop meters, bill acceptor, computerized record, etc.) the 
dollar amount of the drop shall be reconciled to the actual drop by 
shift.
    (3) Accounting/auditing employees shall review exception reports for 
all computerized table games systems at least monthly for propriety of 
transactions and unusual occurrences.
    (4) All noted improper transactions or unusual occurrences shall be 
investigated with the results documented.
    (5) Evidence of table games auditing procedures and any follow-up 
performed shall be documented, maintained for inspection, and provided 
to the Tribal gaming regulatory authority upon request.
    (6) A daily recap shall be prepared for the day and month-to-date, 
which shall include the following information:
    (i) Drop;
    (ii) Win; and
    (iii) Gross revenue.
    (k) Marker credit play. (1) If a gaming operation allows marker 
credit play (exclusive of rim credit and call bets), the following 
standards shall apply:
    (i) A marker system shall allow for credit to be both issued and 
repaid in the pit.
    (ii) Prior to the issuance of gaming credit to a player, the 
employee extending the credit shall contact the cashier or other 
independent source to determine if the player's credit limit has been 
properly established and there is sufficient remaining credit available 
for the advance.
    (iii) Proper authorization of credit extension in excess of the 
previously established limit shall be documented.
    (iv) The amount of credit extended shall be communicated to the cage 
or another independent source and the amount documented within a 
reasonable time subsequent to each issuance.
    (v) The marker form shall be prepared in at least triplicate form 
(triplicate form being defined as three parts performing the functions 
delineated in the standard in paragraph (k)(1)(vi) of this section), 
with a preprinted or concurrently printed marker number, and utilized in 
numerical sequence. (This requirement shall not preclude the 
distribution of batches of markers to various pits.)
    (vi) At least three parts of each separately numbered marker form 
shall be utilized as follows:
    (A) Original shall be maintained in the pit until settled or 
transferred to the cage;
    (B) Payment slip shall be maintained in the pit until the marker is 
settled or transferred to the cage. If paid in the pit, the slip shall 
be inserted in the table game drop box. If not paid in the pit, the slip 
shall be transferred to the cage with the original;
    (C) Issue slip shall be inserted into the appropriate table game 
drop box when credit is extended or when the player has signed the 
original.
    (vii) When marker documentation (e.g., issue slip and payment slip) 
is inserted in the drop box, such action shall be performed by the 
dealer or boxperson at the table.
    (viii) A record shall be maintained that details the following 
(e.g., master credit record retained at the pit podium):
    (A) The signature or initials of the person(s) approving the 
extension of credit (unless such information is contained elsewhere for 
each issuance);
    (B) The legible name of the person receiving the credit;
    (C) The date and shift of granting the credit;
    (D) The table on which the credit was extended;
    (E) The amount of credit issued;

[[Page 916]]

    (F) The marker number;
    (G) The amount of credit remaining after each issuance or the total 
credit available for all issuances;
    (H) The amount of payment received and nature of settlement (e.g., 
credit slip number, cash, chips, etc.); and
    (I) The signature or initials of the person receiving payment/
settlement.
    (ix) The forms required in paragraphs (k)(1)(v), (vi), and (viii) of 
this section shall be safeguarded, and adequate procedures shall be 
employed to control the distribution, use, and access to these forms.
    (x) All credit extensions shall be initially evidenced by lammer 
buttons, which shall be displayed on the table in public view and placed 
there by supervisory personnel.
    (xi) Marker preparation shall be initiated and other records updated 
within approximately one hand of play following the initial issuance of 
credit to the player.
    (xii) Lammer buttons shall be removed only by the dealer or 
boxperson employed at the table upon completion of a marker transaction.
    (xiii) The original marker shall contain at least the following 
information:
    (A) Marker number;
    (B) Player's name and signature;
    (C) Date; and
    (D) Amount of credit issued.
    (xiv) The issue slip or stub shall include the same marker number as 
the original, the table number, date and time of issuance, and amount of 
credit issued. The issue slip or stub shall also include the signature 
of the person extending the credit, and the signature or initials of the 
dealer or boxperson at the applicable table, unless this information is 
included on another document verifying the issued marker.
    (xv) The payment slip shall include the same marker number as the 
original. When the marker is paid in full in the pit, it shall also 
include the table number where paid, date and time of payment, nature of 
settlement (cash, chips, etc.), and amount of payment. The payment slip 
shall also include the signature of pit supervisory personnel 
acknowledging payment, and the signature or initials of the dealer or 
boxperson receiving payment, unless this information is included on 
another document verifying the payment of the marker.
    (xvi) When partial payments are made in the pit, a new marker shall 
be completed reflecting the remaining balance and the marker number of 
the marker originally issued.
    (xvii) When partial payments are made in the pit, the payment slip 
of the marker that was originally issued shall be properly cross-
referenced to the new marker number, completed with all information 
required by paragraph (k)(1)(xv) of this section, and inserted into the 
drop box.
    (xviii) The cashier's cage or another independent source shall be 
notified when payments (full or partial) are made in the pit so that 
cage records can be updated for such transactions. Notification shall be 
made no later than when the customer's play is completed or at shift 
end, whichever is earlier.
    (xix) All portions of markers, both issued and unissued, shall be 
safeguarded and procedures shall be employed to control the 
distribution, use and access to the forms.
    (xx) An investigation shall be performed to determine the cause and 
responsibility for loss whenever marker forms, or any part thereof, are 
missing. These investigations shall be documented, maintained for 
inspection, and provided to the Tribal gaming regulatory authority upon 
request.
    (xxi) When markers are transferred to the cage, marker transfer 
forms or marker credit slips (or similar documentation) shall be 
utilized and such documents shall include, at a minimum, the date, time, 
shift, marker number(s), table number(s), amount of each marker, the 
total amount transferred, signature of pit supervisory personnel 
releasing instruments from the pit, and the signature of cashier 
verifying receipt of instruments at the cage.
    (xxii) All markers shall be transferred to the cage within twenty-
four (24) hours of issuance.
    (xxiii) Markers shall be transported to the cashier's cage by a 
person who is independent of the marker issuance and payment functions 
(pit clerks may perform this function).
    (2) [Reserved]

[[Page 917]]

    (l) Name credit instruments accepted in the pit. (1) For the 
purposes of this paragraph, name credit instruments means personal 
checks, payroll checks, counter checks, hold checks, traveler's checks, 
or other similar instruments that are accepted in the pit as a form of 
credit issuance to a player with an approved credit limit.
    (2) The following standards shall apply if name credit instruments 
are accepted in the pit:
    (i) A name credit system shall allow for the issuance of credit 
without using markers;
    (ii) Prior to accepting a name credit instrument, the employee 
extending the credit shall contact the cashier or another independent 
source to determine if the player's credit limit has been properly 
established and the remaining credit available is sufficient for the 
advance;
    (iii) All name credit instruments shall be transferred to the 
cashier's cage (utilizing a two-part order for credit) immediately 
following the acceptance of the instrument and issuance of chips (if 
name credit instruments are transported accompanied by a credit slip, an 
order for credit is not required);
    (iv) The order for credit (if applicable) and the credit slip shall 
include the customer's name, amount of the credit instrument, the date, 
time, shift, table number, signature of pit supervisory personnel 
releasing instrument from pit, and the signature of the cashier 
verifying receipt of instrument at the cage;
    (v) The procedures for transacting table credits at standards in 
paragraphs (c)(12) through (19) of this section shall be strictly 
adhered to; and
    (vi) The acceptance of payments in the pit for name credit 
instruments shall be prohibited.
    (m) Call bets. (1) The following standards shall apply if call bets 
are accepted in the pit:
    (i) A call bet shall be evidenced by the placement of a lammer 
button, chips, or other identifiable designation in an amount equal to 
that of the wager in a specific location on the table;
    (ii) The placement of the lammer button, chips, or other 
identifiable designation shall be performed by supervisory/boxperson 
personnel. The placement may be performed by a dealer only if the 
supervisor physically observes and gives specific authorization;
    (iii) The call bet shall be settled at the end of each hand of play 
by the preparation of a marker, repayment of the credit extended, or the 
payoff of the winning wager. Call bets extending beyond one hand of play 
shall be prohibited; and
    (iv) The removal of the lammer button, chips, or other identifiable 
designation shall be performed by the dealer/ boxperson upon completion 
of the call bet transaction.
    (2) [Reserved]
    (n) Rim credit. (1) The following standards shall apply if rim 
credit is extended in the pit:
    (i) Rim credit shall be evidenced by the issuance of chips to be 
placed in a neutral zone on the table and then extended to the customer 
for the customer to wager, or to the dealer to wager for the customer, 
and by the placement of a lammer button or other identifiable 
designation in an amount equal to that of the chips extended; and
    (ii) Rim credit shall be recorded on player cards, or similarly used 
documents, which shall be:
    (A) Prenumbered or concurrently numbered and accounted for by a 
department independent of the pit;
    (B) For all extensions and subsequent repayments, evidenced by the 
initials or signatures of a supervisor and the dealer attesting to the 
validity of each credit extension and repayment;
    (C) An indication of the settlement method (e.g., serial number of 
marker issued, chips, cash);
    (D) Settled no later than when the customer leaves the table at 
which the card is prepared;
    (E) Transferred to the accounting department on a daily basis; and
    (F) Reconciled with other forms utilized to control the issuance of 
pit credit (e.g., master credit records, table cards).
    (2) [Reserved]
    (o) Foreign currency. (l) The following standards shall apply if 
foreign currency is accepted in the pit:
    (i) Foreign currency transactions shall be authorized by a pit 
supervisor/

[[Page 918]]

boxperson who completes a foreign currency exchange form before the 
exchange for chips or tokens;
    (ii) Foreign currency exchange forms include the country of origin, 
total face value, amount of chips/token extended (i.e., conversion 
amount), signature of supervisor/boxperson, and the dealer completing 
the transaction;
    (iii) Foreign currency exchange forms and the foreign currency shall 
be inserted in the drop box by the dealer; and
    (iv) Alternate procedures specific to the use of foreign valued 
gaming chips shall be developed by the Tribal gaming regulatory 
authority, or the gaming operation as approved by the Tribal gaming 
regulatory authority.
    (2) [Reserved]

[67 FR 43400, June 27, 2002, as amended at 70 FR 23021, May 4, 2005]



Sec. 542.13  What are the minimum internal control standards for gaming 
machines?

    (a) Standards for gaming machines. (1) For this section only, credit 
or customer credit means a unit of value equivalent to cash or cash 
equivalents deposited, wagered, won, lost, or redeemed by a customer.
    (2) Coins shall include tokens.
    (3) For all computerized gaming machine systems, a personnel access 
listing shall be maintained, which includes at a minimum:
    (i) Employee name or employee identification number (or equivalent); 
and
    (ii) Listing of functions employee can perform or equivalent means 
of identifying same.
    (b) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (c) Standards for drop and count. The procedures for the collection 
of the gaming machine drop and the count thereof shall comply with Sec. 
542.21, Sec. 542.31, or Sec. 542.41 (as applicable).
    (d) Jackpot payouts, gaming machines fills, short pays and 
accumulated credit payouts standards. (1) For jackpot payouts and gaming 
machine fills, documentation shall include the following information:
    (i) Date and time;
    (ii) Machine number;
    (iii) Dollar amount of cash payout or gaming machine fill (both 
alpha and numeric) or description of personal property awarded, 
including fair market value. Alpha is optional if another unalterable 
method is used for evidencing the amount of the payout;
    (iv) Game outcome (including reel symbols, card values, suits, etc.) 
for jackpot payouts. Game outcome is not required if a computerized 
jackpot/fill system is used;
    (v) Preprinted or concurrently printed sequential number; and
    (vi) Signatures of at least two employees verifying and witnessing 
the payout or gaming machine fill (except as otherwise provided in 
paragraphs (d)(1)(vi)(A), (B), and (C) of this section).
    (A) Jackpot payouts over a predetermined amount shall require the 
signature and verification of a supervisory or management employee 
independent of the gaming machine department (in addition to the two 
signatures required in paragraph (d)(1)(vi) of this section). 
Alternatively, if an on-line accounting system is utilized, only two 
signatures are required: one employee and one supervisory or management 
employee independent of the gaming machine department. This 
predetermined amount shall be authorized by management (as approved by 
the Tribal gaming regulatory authority), documented, and maintained.
    (B) With regard to jackpot payouts and hopper fills, the signature 
of one employee is sufficient if an on-line accounting system is 
utilized and the jackpot or fill is less than $1,200.
    (C) On graveyard shifts (eight-hour maximum) payouts/fills less than 
$100 can be made without the payout/fill being witnessed by a second 
person.
    (2) For short pays of $10.00 or more, and payouts required for 
accumulated credits, the payout form shall include the following 
information:
    (i) Date and time;
    (ii) Machine number;
    (iii) Dollar amount of payout (both alpha and numeric); and

[[Page 919]]

    (iv) The signature of at least one (1) employee verifying and 
witnessing the payout.
    (A) Where the payout amount is $50 or more, signatures of at least 
two (2) employees verifying and witnessing the payout. Alternatively, 
the signature of one (1) employee is sufficient if an on-line accounting 
system is utilized and the payout amount is less than $3,000.
    (B) [Reserved]
    (3) Computerized jackpot/fill systems shall be restricted so as to 
prevent unauthorized access and fraudulent payouts by one person as 
required by Sec. 542.16(a).
    (4) Payout forms shall be controlled and routed in a manner that 
precludes any one person from producing a fraudulent payout by forging 
signatures or by altering the amount paid out subsequent to the payout 
and misappropriating the funds.
    (e) Promotional payouts or awards. (1) If a gaming operation offers 
promotional payouts or awards that are not reflected on the gaming 
machine pay table, then the payout form/documentation shall include:
    (i) Date and time;
    (ii) Machine number and denomination;
    (iii) Dollar amount of payout or description of personal property 
(e.g., jacket, toaster, car, etc.), including fair market value;
    (iv) Type of promotion (e.g., double jackpots, four-of-a-kind bonus, 
etc.); and
    (v) Signature of at least one employee authorizing and completing 
the transaction.
    (2) [Reserved]
    (f) Gaming machine department funds standards. (1) The gaming 
machine booths and change banks that are active during the shift shall 
be counted down and reconciled each shift by two employees utilizing 
appropriate accountability documentation. Unverified transfers of cash 
and/or cash equivalents are prohibited.
    (2) The wrapping of loose gaming machine booth and cage cashier coin 
shall be performed at a time or location that does not interfere with 
the hard count/wrap process or the accountability of that process.
    (3) A record shall be maintained evidencing the transfers of wrapped 
and unwrapped coins and retained for seven (7) days.
    (g) EPROM control standards. (1) At least annually, procedures shall 
be performed to insure the integrity of a sample of gaming machine game 
program EPROMs, or other equivalent game software media, by personnel 
independent of the gaming machine department or the machines being 
tested.
    (2) The Tribal gaming regulatory authority, or the gaming operation 
subject to the approval of the Tribal gaming regulatory authority, shall 
develop and implement procedures for the following:
    (i) Removal of EPROMs, or other equivalent game software media, from 
devices, the verification of the existence of errors as applicable, and 
the correction via duplication from the master game program EPROM, or 
other equivalent game software media;
    (ii) Copying one gaming device program to another approved program;
    (iii) Verification of duplicated EPROMs before being offered for 
play;
    (iv) Receipt and destruction of EPROMs, or other equivalent game 
software media; and
    (v) Securing the EPROM, or other equivalent game software media, 
duplicator, and master game EPROMs, or other equivalent game software 
media, from unrestricted access.
    (3) The master game program number, par percentage, and the pay 
table shall be verified to the par sheet when initially received from 
the manufacturer.
    (4) Gaming machines with potential jackpots in excess of $100,000 
shall have the game software circuit boards locked or physically sealed. 
The lock or seal shall necessitate the presence of a person independent 
of the gaming machine department to access the device game program 
EPROM, or other equivalent game software media. If a seal is used to 
secure the board to the frame of the gaming device, it shall be pre-
numbered.
    (5) Records that document the procedures in paragraph (g)(2)(i) of 
this section shall include the following information:
    (i) Date;

[[Page 920]]

    (ii) Machine number (source and destination);
    (iii) Manufacturer;
    (iv) Program number;
    (v) Personnel involved;
    (vi) Reason for duplication;
    (vii) Disposition of any permanently removed EPROM, or other 
equivalent game software media;
    (viii) Seal numbers, if applicable; and
    (ix) Approved testing lab approval numbers, if available.
    (6) EPROMS, or other equivalent game software media, returned to 
gaming devices shall be labeled with the program number. Supporting 
documentation shall include the date, program number, information 
identical to that shown on the manufacturer's label, and initials of the 
person replacing the EPROM, or other equivalent game software media.
    (h) Standards for evaluating theoretical and actual hold 
percentages.
    (1) Accurate and current theoretical hold worksheets shall be 
maintained for each gaming machine.
    (2) For multi-game/multi-denominational machines, an employee or 
department independent of the gaming machine department shall:
    (i) Weekly, record the total coin-in meter;
    (ii) Quarterly, record the coin-in meters for each paytable 
contained in the machine; and
    (iii) On an annual basis, adjust the theoretical hold percentage in 
the gaming machine statistical report to a weighted average based upon 
the ratio of coin-in for each game paytable.
    (3) For those gaming operations that are unable to perform the 
weighted average calculation as required by paragraph (h)(2) of this 
section, the following procedures shall apply:
    (i) On at least an annual basis, calculate the actual hold 
percentage for each gaming machine;
    (ii) On at least an annual basis, adjust the theoretical hold 
percentage in the gaming machine statistical report for each gaming 
machine to the previously calculated actual hold percentage; and
    (iii) The adjusted theoretical hold percentage shall be within the 
spread between the minimum and maximum theoretical payback percentages.
    (4) The adjusted theoretical hold percentage for multi-game/multi-
denominational machines may be combined for machines with exactly the 
same game mix throughout the year.
    (5) The theoretical hold percentages used in the gaming machine 
analysis reports should be within the performance standards set by the 
manufacturer.
    (6) Records shall be maintained for each machine indicating the 
dates and type of changes made and the recalculation of theoretical hold 
as a result of the changes.
    (7) Records shall be maintained for each machine that indicate the 
date the machine was placed into service, the date the machine was 
removed from operation, the date the machine was placed back into 
operation, and any changes in machine numbers and designations.
    (8) All of the gaming machines shall contain functioning meters that 
shall record coin-in or credit-in, or on-line gaming machine monitoring 
system that captures similar data.
    (9) All gaming machines with bill acceptors shall contain 
functioning billing meters that record the dollar amounts or number of 
bills accepted by denomination.
    (10) Gaming machine in-meter readings shall be recorded at least 
weekly (monthly for Tier A and Tier B gaming operations) immediately 
prior to or subsequent to a gaming machine drop. On-line gaming machine 
monitoring systems can satisfy this requirement. However, the time 
between readings may extend beyond one week in order for a reading to 
coincide with the end of an accounting period only if such extension is 
for no longer than six (6) days.
    (11) The employee who records the in-meter reading shall either be 
independent of the hard count team or shall be assigned on a rotating 
basis, unless the in-meter readings are randomly verified quarterly for 
all gaming machines and bill acceptors by a person other than the 
regular in-meter reader.
    (12) Upon receipt of the meter reading summary, the accounting 
department shall review all meter readings

[[Page 921]]

for reasonableness using pre-established parameters.
    (13) Prior to final preparation of statistical reports, meter 
readings that do not appear reasonable shall be reviewed with gaming 
machine department employees or other appropriate designees, and 
exceptions documented, so that meters can be repaired or clerical errors 
in the recording of meter readings can be corrected.
    (14) A report shall be produced at least monthly showing month-to-
date, year-to-date (previous twelve (12) months data preferred), and if 
practicable, life-to-date actual hold percentage computations for 
individual machines and a comparison to each machine's theoretical hold 
percentage previously discussed.
    (15) Each change to a gaming machine's theoretical hold percentage, 
including progressive percentage contributions, shall result in that 
machine being treated as a new machine in the statistical reports (i.e., 
not commingling various hold percentages), except for adjustments made 
in accordance with paragraph (h)(2) of this section.
    (16) If promotional payouts or awards are included on the gaming 
machine statistical reports, it shall be in a manner that prevents 
distorting the actual hold percentages of the affected machines.
    (17) The statistical reports shall be reviewed by both gaming 
machine department management and management employees independent of 
the gaming machine department on at least a monthly basis.
    (18) For those machines that have experienced at least 100,000 
wagering transactions, large variances (three percent (3%) recommended) 
between theoretical hold and actual hold shall be investigated and 
resolved by a department independent of the gaming machine department 
with the findings documented and provided to the Tribal gaming 
regulatory authority upon request in a timely manner.
    (19) Maintenance of the on-line gaming machine monitoring system 
data files shall be performed by a department independent of the gaming 
machine department. Alternatively, maintenance may be performed by 
gaming machine supervisory employees if sufficient documentation is 
generated and it is randomly verified on a monthly basis by employees 
independent of the gaming machine department.
    (20) Updates to the on-line gaming machine monitoring system to 
reflect additions, deletions, or movements of gaming machines shall be 
made at least weekly prior to in-meter readings and the weigh process.
    (i) Gaming machine hopper contents standards. (1) When machines are 
temporarily removed from the floor, gaming machine drop and hopper 
contents shall be protected to preclude the misappropriation of stored 
funds.
    (2) When machines are permanently removed from the floor, the gaming 
machine drop and hopper contents shall be counted and recorded by at 
least two employees with appropriate documentation being routed to the 
accounting department for proper recording and accounting for initial 
hopper loads.
    (j) Player tracking system. (1) The following standards apply if a 
player tracking system is utilized:
    (i) The player tracking system shall be secured so as to prevent 
unauthorized access (e.g., changing passwords at least quarterly and 
physical access to computer hardware, etc.).
    (ii) The addition of points to members' accounts other than through 
actual gaming machine play shall be sufficiently documented (including 
substantiation of reasons for increases) and shall be authorized by a 
department independent of the player tracking and gaming machines. 
Alternatively, addition of points to members' accounts may be authorized 
by gaming machine supervisory employees if sufficient documentation is 
generated and it is randomly verified by employees independent of the 
gaming machine department on a quarterly basis.
    (iii) Booth employees who redeem points for members shall be allowed 
to receive lost players club cards, provided that they are immediately 
deposited into a secured container for retrieval by independent 
personnel.
    (iv) Changes to the player tracking system parameters, such as point 
structures and employee access, shall be performed by supervisory 
employees

[[Page 922]]

independent of the gaming machine department. Alternatively, changes to 
player tracking system parameters may be performed by gaming machine 
supervisory employees if sufficient documentation is generated and it is 
randomly verified by supervisory employees independent of the gaming 
machine department on a monthly basis.
    (v) All other changes to the player tracking system shall be 
appropriately documented.
    (2) [Reserved]
    (k) In-house progressive gaming machine standards. (1) A meter that 
shows the amount of the progressive jackpot shall be conspicuously 
displayed at or near the machines to which the jackpot applies.
    (2) At least once each day, each gaming operation shall record the 
amount shown on each progressive jackpot meter at the gaming operation 
except for those jackpots that can be paid directly from the machine's 
hopper;
    (3) Explanations for meter reading decreases shall be maintained 
with the progressive meter reading sheets, and where the payment of a 
jackpot is the explanation for a decrease, the gaming operation shall 
record the jackpot payout number on the sheet or have the number 
reasonably available; and
    (4) Each gaming operation shall record the base amount of each 
progressive jackpot the gaming operation offers.
    (5) The Tribal gaming regulatory authority shall approve procedures 
specific to the transfer of progressive amounts in excess of the base 
amount to other gaming machines. Such procedures may also include other 
methods of distribution that accrue to the benefit of the gaming public 
via an award or prize.
    (l) Wide area progressive gaming machine standards. (1) A meter that 
shows the amount of the progressive jackpot shall be conspicuously 
displayed at or near the machines to which the jackpot applies.
    (2) As applicable to participating gaming operations, the wide area 
progressive gaming machine system shall be adequately restricted to 
prevent unauthorized access (e.g., changing passwords at least 
quarterly, restrict access to EPROMs or other equivalent game software 
media, and restrict physical access to computer hardware, etc.).
    (3) The Tribal gaming regulatory authority shall approve procedures 
for the wide area progressive system that:
    (i) Reconcile meters and jackpot payouts;
    (ii) Collect/drop gaming machine funds;
    (iii) Verify jackpot, payment, and billing to gaming operations on 
pro-rata basis;
    (iv) System maintenance;
    (v) System accuracy; and
    (vi) System security.
    (4) Reports, where applicable, adequately documenting the procedures 
required in paragraph (l)(3) of this section shall be generated and 
retained.
    (m) Accounting/auditing standards. (1) Gaming machine accounting/
auditing procedures shall be performed by employees who are independent 
of the transactions being reviewed.
    (2) For on-line gaming machine monitoring systems, procedures shall 
be performed at least monthly to verify that the system is transmitting 
and receiving data from the gaming machines properly and to verify the 
continuing accuracy of the coin-in meter readings as recorded in the 
gaming machine statistical report.
    (3) For weigh scale and currency interface systems, for at least one 
drop period per month accounting/auditing employees shall make such 
comparisons as necessary to the system generated count as recorded in 
the gaming machine statistical report. Discrepancies shall be resolved 
prior to generation/distribution of gaming machine reports.
    (4) For each drop period, accounting/auditing personnel shall 
compare the coin-to-drop meter reading to the actual drop amount. 
Discrepancies should be resolved prior to generation/distribution of on-
line gaming machine monitoring system statistical reports.
    (5) Follow-up shall be performed for any one machine having an 
unresolved variance between actual coin drop and coin-to-drop meter 
reading in excess of three percent (3%) and over $25.00. The follow-up 
performed and results of the investigation shall be documented,

[[Page 923]]

maintained for inspection, and provided to the Tribal gaming regulatory 
authority upon request.
    (6) For each drop period, accounting/auditing employees shall 
compare the bill-in meter reading to the total bill acceptor drop amount 
for the period. Discrepancies shall be resolved before the generation/
distribution of gaming machine statistical reports.
    (7) Follow-up shall be performed for any one machine having an 
unresolved variance between actual currency drop and bill-in meter 
reading in excess of an amount that is both more than $25 and at least 
three percent (3%) of the actual currency drop. The follow-up performed 
and results of the investigation shall be documented, maintained for 
inspection, and provided to the Tribal gaming regulatory authority upon 
request.
    (8) At least annually, accounting/auditing personnel shall randomly 
verify that EPROM or other equivalent game software media changes are 
properly reflected in the gaming machine analysis reports.
    (9) Accounting/auditing employees shall review exception reports for 
all computerized gaming machine systems on a daily basis for propriety 
of transactions and unusual occurrences.
    (10) All gaming machine auditing procedures and any follow-up 
performed shall be documented, maintained for inspection, and provided 
to the Tribal gaming regulatory authority upon request.
    (n) Cash-out tickets. For gaming machines that utilize cash-out 
tickets, the following standards apply. This standard is not applicable 
to Tiers A and B. Tier A and B gaming operations shall develop adequate 
standards governing the security over the issuance of the cash-out paper 
to the gaming machines and the redemption of cash-out slips.
    (1) In addition to the applicable auditing and accounting standards 
in paragraph (m) of this section, on a quarterly basis, the gaming 
operation shall foot all jackpot cash-out tickets equal to or greater 
than $1,200 and trace totals to those produced by the host validation 
computer system.
    (2) The customer may request a cash-out ticket from the gaming 
machine that reflects all remaining credits. The cash-out ticket shall 
be printed at the gaming machine by an internal document printer. The 
cash-out ticket shall be valid for a time period specified by the Tribal 
gaming regulatory authority, or the gaming operation as approved by the 
Tribal gaming regulatory authority. Cash-out tickets may be redeemed for 
payment or inserted in another gaming machine and wagered, if 
applicable, during the specified time period.
    (3) The customer shall redeem the cash-out ticket at a change booth 
or cashiers' cage. Alternatively, if a gaming operation utilizes a 
remote computer validation system, the Tribal gaming regulatory 
authority, or the gaming operation as approved by the Tribal gaming 
regulatory authority, shall develop alternate standards for the maximum 
amount that can be redeemed, which shall not exceed $2,999.99 per cash-
out transaction.
    (4) Upon presentation of the cash-out ticket(s) for redemption, the 
following shall occur:
    (i) Scan the bar code via an optical reader or its equivalent; or
    (ii) Input the cash-out ticket validation number into the computer.
    (5) The information contained in paragraph (n)(4) of this section 
shall be communicated to the host computer. The host computer shall 
verify the authenticity of the cash-out ticket and communicate directly 
to the redeemer of the cash-out ticket.
    (6) If valid, the cashier (redeemer of the cash-out ticket) pays the 
customer the appropriate amount and the cash-out ticket is 
electronically noted ``paid'' in the system. The ``paid'' cash-out 
ticket shall remain in the cashiers'' bank for reconciliation purposes. 
The host validation computer system shall electronically reconcile the 
cashier's banks for the paid cashed-out tickets.
    (7) If invalid, the host computer shall notify the cashier (redeemer 
of the cash-out ticket). The cashier (redeemer of the cash-out ticket) 
shall refuse payment to the customer and notify a supervisor of the 
invalid condition. The supervisor shall resolve the dispute.

[[Page 924]]

    (8) If the host validation computer system temporarily goes down, 
cashiers may redeem cash-out tickets at a change booth or cashier's cage 
after recording the following:
    (i) Serial number of the cash-out ticket;
    (ii) Date and time;
    (iii) Dollar amount;
    (iv) Issuing gaming machine number;
    (v) Marking ticket ``paid''; and
    (vi) Ticket shall remain in cashier's bank for reconciliation 
purposes.
    (9) Cash-out tickets shall be validated as expeditiously as possible 
when the host validation computer system is restored.
    (10) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures to control cash-
out ticket paper, which shall include procedures that:
    (i) Mitigate the risk of counterfeiting of cash-out ticket paper;
    (ii) Adequately control the inventory of the cash-out ticket paper; 
and
    (iii) Provide for the destruction of all unused cash-out ticket 
paper.
    (iv) Alternatively, if the gaming operation utilizes a computer 
validation system, this standard shall not apply.
    (11) If the host validation computer system is down for more than 
four (4) hours, the gaming operation shall promptly notify the Tribal 
gaming regulatory authority or its designated representative.
    (12) These gaming machine systems shall comply with all other 
standards (as applicable) in this part including:
    (i) Standards for bill acceptor drop and count;
    (ii) Standards for coin drop and count; and
    (iii) Standards concerning EPROMS or other equivalent game software 
media.
    (o) Account access cards. For gaming machines that utilize account 
access cards to activate play of the machine, the following standards 
shall apply:
    (1) Equipment. (i) A central computer, with supporting hardware and 
software, to coordinate network activities, provide system interface, 
and store and manage a player/account database;
    (ii) A network of contiguous player terminals with touch-screen or 
button-controlled video monitors connected to an electronic selection 
device and the central computer via a communications network;
    (iii) One or more electronic selection devices, utilizing random 
number generators, each of which selects any combination or combinations 
of numbers, colors, and/or symbols for a network of player terminals.
    (2) Player terminals standards. (i) The player terminals are 
connected to a game server;
    (ii) The game server shall generate and transmit to the bank of 
player terminals a set of random numbers, colors, and/or symbols at 
regular intervals. The subsequent game results are determined at the 
player terminal and the resulting information is transmitted to the 
account server;
    (iii) The game server shall be housed in a game server room or a 
secure locked cabinet.
    (3) Customer account maintenance standards. (i) A central computer 
acting as an account server shall provide customer account maintenance 
and the deposit/withdrawal function of those account balances;
    (ii) Customers may access their accounts on the computer system by 
means of an account access card at the player terminal. Each player 
terminal may be equipped with a card reader and personal identification 
number (PIN) pad or touch screen array for this purpose;
    (iii) All communications between the player terminal, or bank of 
player terminals, and the account server shall be encrypted for security 
reasons.
    (4) Customer account generation standards. (i) A computer file for 
each customer shall be prepared by a clerk, with no incompatible 
functions, prior to the customer being issued an account access card to 
be utilized for machine play. The customer may select his/her PIN to be 
used in conjunction with the account access card.
    (ii) The clerk shall sign-on with a unique password to a terminal 
equipped with peripherals required to establish a customer account. 
Passwords are issued and can only be changed by information technology

[[Page 925]]

personnel at the discretion of the department director.
    (iii) After entering a specified number of incorrect PIN entries at 
the cage or player terminal, the customer shall be directed to proceed 
to the Gaming Machine Information Center to obtain a new PIN. If a 
customer forgets, misplaces or requests a change to their PIN, the 
customer shall proceed to the Gaming Machine Information Center.
    (5) Deposit of credits standards. (i) The cashier shall sign-on with 
a unique password to a cashier terminal equipped with peripherals 
required to complete the credit transactions. Passwords are issued and 
can only be changed by information technology personnel at the 
discretion of the department director.
    (ii) The customer shall present cash, chips, coin or coupons along 
with their account access card to a cashier to deposit credits.
    (iii) The cashier shall complete the transaction by utilizing a card 
scanner that the cashier shall slide the customer's account access card 
through.
    (iv) The cashier shall accept the funds from the customer and enter 
the appropriate amount on the cashier terminal.
    (v) A multi-part deposit slip shall be generated by the point of 
sale receipt printer. The cashier shall direct the customer to sign the 
deposit slip receipt. One copy of the deposit slip shall be given to the 
customer. The other copy of the deposit slip shall be secured in the 
cashier's cash drawer.
    (vi) The cashier shall verify the customer's balance before 
completing the transaction. The cashier shall secure the funds in their 
cash drawer and return the account access card to the customer.
    (vii) Alternatively, if a kiosk is utilized to accept a deposit of 
credits, the Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures that safeguard the 
integrity of the kiosk system.
    (6) Prize standards. (i) Winners at the gaming machines may receive 
cash, prizes redeemable for cash or merchandise.
    (ii) If merchandise prizes are to be awarded, the specific type of 
prize or prizes that may be won shall be disclosed to the player before 
the game begins.
    (iii) The redemption period of account access cards, as approved by 
the Tribal gaming regulatory authority, shall be conspicuously posted in 
the gaming operation.
    (7) Credit withdrawal. The customer shall present their account 
access card to a cashier to withdraw their credits. The cashier shall 
perform the following:
    (i) Scan the account access card;
    (ii) Request the customer to enter their PIN, if the PIN was 
selected by the customer;
    (iii) The cashier shall ascertain the amount the customer wishes to 
withdraw and enter the amount into the computer;
    (iv) A multi-part withdrawal slip shall be generated by the point of 
sale receipt printer. The cashier shall direct the customer to sign the 
withdrawal slip;
    (v) The cashier shall verify that the account access card and the 
customer match by:
    (A) Comparing the customer to image on the computer screen;
    (B) Comparing the customer to image on customer's picture ID; or
    (C) Comparing the customer signature on the withdrawal slip to 
signature on the computer screen.
    (vi) The cashier shall verify the customer's balance before 
completing the transaction. The cashier shall pay the customer the 
appropriate amount, issue the customer the original withdrawal slip and 
return the account access card to the customer;
    (vii) The copy of the withdrawal slip shall be placed in the cash 
drawer. All account transactions shall be accurately tracked by the 
account server computer system. The copy of the withdrawal slip shall be 
forwarded to the accounting department at the end of the gaming day; and
    (viii) In the event the imaging function is temporarily disabled, 
customers shall be required to provide positive ID for cash withdrawal 
transactions at the cashier stations.

[[Page 926]]

    (p) Smart cards. All smart cards (i.e., cards that possess the means 
to electronically store and retrieve data) that maintain the only source 
of account data are prohibited.

[67 FR 43400, June 27, 2002, as amended at 70 FR 23021, May 4, 2005; 70 
FR 47106, Aug. 12, 2005]



Sec. 542.14  What are the minimum internal control standards for the 
cage?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Personal checks, cashier's checks, payroll checks, and counter 
checks. (1) If personal checks, cashier's checks, payroll checks, or 
counter checks are cashed at the cage, the Tribal gaming regulatory 
authority, or the gaming operation as approved by the Tribal gaming 
regulatory authority, shall establish and the gaming operation shall 
comply with appropriate controls for purposes of security and integrity.
    (2) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures for the acceptance 
of personal checks, collecting and recording checks returned to the 
gaming operation after deposit, re-deposit, and write-off authorization.
    (3) When counter checks are issued, the following shall be included 
on the check:
    (i) The customer's name and signature;
    (ii) The dollar amount of the counter check (both alpha and 
numeric);
    (iii) Customer's bank name and bank account number;
    (iv) Date of issuance; and
    (v) Signature or initials of the person approving the counter check 
transaction.
    (4) When traveler's checks or other guaranteed drafts such as 
cashier's checks are presented, the cashier shall comply with the 
examination and documentation procedures as required by the issuer.
    (c) Customer deposited funds. If a gaming operation permits a 
customer to deposit funds with the gaming operation at the cage, the 
following standards shall apply.
    (1) The receipt or withdrawal of a customer deposit shall be 
evidenced by at least a two-part document with one copy going to the 
customer and one copy remaining in the cage file.
    (2) The multi-part receipt shall contain the following information:
    (i) Same receipt number on all copies;
    (ii) Customer's name and signature;
    (iii) Date of receipt and withdrawal;
    (iv) Dollar amount of deposit/withdrawal; and
    (v) Nature of deposit (cash, check, chips); however,
    (vi) Provided all of the information in paragraph (c)(2)(i) through 
(v) is available, the only required information for all copies of the 
receipt is the receipt number.
    (3) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures that:
    (i) Maintain a detailed record by customer name and date of all 
funds on deposit;
    (ii) Maintain a current balance of all customer cash deposits that 
are in the cage/vault inventory or accountability; and
    (iii) Reconcile this current balance with the deposits and 
withdrawals at least daily.
    (4) The gaming operation, as approved by the Tribal gaming 
regulatory authority, shall describe the sequence of the required 
signatures attesting to the accuracy of the information contained on the 
customer deposit or withdrawal form ensuring that the form is signed by 
the cashier.
    (5) All customer deposits and withdrawal transactions at the cage 
shall be recorded on a cage accountability form on a per-shift basis.
    (6) Only cash, cash equivalents, chips, and tokens shall be accepted 
from customers for the purpose of a customer deposit.

[[Page 927]]

    (7) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with procedures that verify the 
customer's identity, including photo identification.
    (8) A file for customers shall be prepared prior to acceptance of a 
deposit.
    (d) Cage and vault accountability standards. (1) All transactions 
that flow through the cage shall be summarized on a cage accountability 
form on a per shift basis and shall be supported by documentation.
    (2) The cage and vault (including coin room) inventories shall be 
counted by the oncoming and outgoing cashiers. These employees shall 
make individual counts for comparison for accuracy and maintenance of 
individual accountability. Such counts shall be recorded at the end of 
each shift during which activity took place. All discrepancies shall be 
noted and investigated. Unverified transfers of cash and/or cash 
equivalents are prohibited.
    (3) The Tribal gaming regulatory authority, or the gaming operation 
as approved by the Tribal gaming regulatory authority, shall establish 
and the gaming operation shall comply with a minimum bankroll formula to 
ensure the gaming operation maintains cash or cash equivalents (on hand 
and in the bank, if readily accessible) in an amount sufficient to 
satisfy obligations to the gaming operation's customers as they are 
incurred. A suggested bankroll formula will be provided by the 
Commission upon request.
    (e) Chip and token standards. The Tribal gaming regulatory 
authority, or the gaming operation as approved by the Tribal gaming 
regulatory authority, shall establish and the gaming operation shall 
comply with procedures for the receipt, inventory, storage, and 
destruction of gaming chips and tokens.
    (f) Coupon standards. Any program for the exchange of coupons for 
chips, tokens, and/or another coupon program shall be approved by the 
Tribal gaming regulatory authority prior to implementation. If approved, 
the gaming operation shall establish and comply with procedures that 
account for and control such programs.
    (g) Accounting/auditing standards. (1) The cage accountability shall 
be reconciled to the general ledger at least monthly.
    (2) A trial balance of gaming operation accounts receivable, 
including the name of the customer and current balance, shall be 
prepared at least monthly for active, inactive, settled or written-off 
accounts.
    (3) The trial balance of gaming operation accounts receivable shall 
be reconciled to the general ledger each month. The reconciliation and 
any follow-up performed shall be documented, maintained for inspection, 
and provided to the Tribal gaming regulatory authority upon request.
    (4) On a monthly basis an evaluation of the collection percentage of 
credit issued to identify unusual trends shall be performed.
    (5) All cage and credit accounting procedures and any follow-up 
performed shall be documented, maintained for inspection, and provided 
to the Tribal gaming regulatory authority upon request.
    (h) Extraneous items. The Tribal gaming regulatory authority, or the 
gaming operation as approved by the Tribal gaming regulatory authority, 
shall establish and the gaming operation shall comply with procedures to 
address the transporting of extraneous items, such as coats, purses, 
and/or boxes, into and out of the cage, coin room, count room, and/or 
vault.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47107, Aug. 12, 2005]



Sec. 542.15  What are the minimum internal control standards for credit?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Credit standards. The following standards shall apply if the 
gaming operation authorizes and extends credit to customers:
    (1) At least the following information shall be recorded for 
customers that

[[Page 928]]

have credit limits or are issued credit (excluding personal checks, 
payroll checks, cashier's checks, and traveler's checks):
    (i) Customer's name, current address, and signature;
    (ii) Identification verifications;
    (iii) Authorized credit limit;
    (iv) Documentation of authorization by a person designated by 
management to approve credit limits; and
    (v) Credit issuances and payments.
    (2) Prior to extending credit, the customer's gaming operation 
credit record and/or other documentation shall be examined to determine 
the following:
    (i) Properly authorized credit limit;
    (ii) Whether remaining credit is sufficient to cover the credit 
issuance; and
    (iii) Identity of the customer (except for known customers).
    (3) Credit extensions over a specified dollar amount shall be 
approved by personnel designated by management.
    (4) Proper approval of credit extensions over ten percent (10%) of 
the previously established limit shall be documented.
    (5) The job functions of credit approval (i.e., establishing the 
customer's credit worthiness) and credit extension (i.e., advancing 
customer's credit) shall be segregated for credit extensions to a single 
customer of $10,000 or more per day (applies whether the credit is 
extended in the pit or the cage).
    (6) If cage credit is extended to a single customer in an amount 
exceeding $2,500, appropriate gaming personnel shall be notified on a 
timely basis of the customers playing on cage credit, the applicable 
amount of credit issued, and the available balance.
    (7) Cage marker forms shall be at least two parts (the original 
marker and a payment slip), prenumbered by the printer or concurrently 
numbered by the computerized system, and utilized in numerical sequence.
    (8) The completed original cage marker shall contain at least the 
following information:
    (i) Marker number;
    (ii) Player's name and signature; and
    (iii) Amount of credit issued (both alpha and numeric).
    (9) The completed payment slip shall include the same marker number 
as the original, date and time of payment, amount of payment, nature of 
settlement (cash, chips, etc.), and signature of cashier receiving the 
payment.
    (c) Payment standards. (1) All payments received on outstanding 
credit instruments shall be recorded in ink or other permanent form of 
recordation in the gaming operation's records.
    (2) When partial payments are made on credit instruments, they shall 
be evidenced by a multi-part receipt (or another equivalent document) 
that contains:
    (i) The same preprinted number on all copies;
    (ii) Customer's name;
    (iii) Date of payment;
    (iv) Dollar amount of payment (or remaining balance if a new marker 
is issued), and nature of settlement (cash, chips, etc.);
    (v) Signature of employee receiving payment; and
    (vi) Number of credit instrument on which partial payment is being 
made.
    (3) Unless account balances are routinely confirmed on a random 
basis by the accounting or internal audit departments, or statements are 
mailed by a person independent of the credit transactions and 
collections thereon, and the department receiving payments cannot access 
cash, then the following standards shall apply:
    (i) The routing procedures for payments by mail require that they be 
received by a department independent of credit instrument custody and 
collection;
    (ii) Such receipts by mail shall be documented on a listing 
indicating the customer's name, amount of payment, nature of payment (if 
other than a check), and date payment received; and
    (iii) The total amount of the listing of mail receipts shall be 
reconciled with the total mail receipts recorded on the appropriate 
accountability form by the accounting department on a random basis (for 
at least three (3) days per month).
    (d) Access to credit documentation. (1) Access to credit 
documentation shall be restricted as follows:
    (i) The credit information shall be restricted to those positions 
that require access and are so authorized by management;

[[Page 929]]

    (ii) Outstanding credit instruments shall be restricted to persons 
authorized by management; and
    (iii) Written-off credit instruments shall be further restricted to 
persons specified by management.
    (2) [Reserved]
    (e) Maintenance of credit documentation. (1) All extensions of cage 
credit, pit credit transferred to the cage, and subsequent payments 
shall be documented on a credit instrument control form.
    (2) Records of all correspondence, transfers to and from outside 
agencies, and other documents related to issued credit instruments shall 
be maintained.
    (f) Write-off and settlement standards. (1) Written-off or settled 
credit instruments shall be authorized in writing.
    (2) Such authorizations shall be made by at least two management 
officials who are from departments independent of the credit 
transaction.
    (g) Collection agency standards. (1) If credit instruments are 
transferred to collection agencies or other collection representatives, 
a copy of the credit instrument and a receipt from the collection 
representative shall be obtained and maintained until the original 
credit instrument is returned or payment is received.
    (2) A person independent of credit transactions and collections 
shall periodically review the documents in paragraph (g)(1) of this 
section.
    (h) Accounting/auditing standards. (1) A person independent of the 
cage, credit, and collection functions shall perform all of the 
following at least three (3) times per year:
    (i) Ascertain compliance with credit limits and other established 
credit issuance procedures;
    (ii) Randomly reconcile outstanding balances of both active and 
inactive accounts on the accounts receivable listing to individual 
credit records and physical instruments;
    (iii) Examine credit records to determine that appropriate 
collection efforts are being made and payments are being properly 
recorded; and
    (iv) For a minimum of five (5) days per month, partial payment 
receipts shall be subsequently reconciled to the total payments recorded 
by the cage for the day and shall be numerically accounted for.
    (2) [Reserved]



Sec. 542.16  What are the minimum internal control standards for 
information technology?

    (a) General controls for gaming hardware and software. (1) 
Management shall take an active role in making sure that physical and 
logical security measures are implemented, maintained, and adhered to by 
personnel to prevent unauthorized access that could cause errors or 
compromise data or processing integrity.
    (i) Management shall ensure that all new gaming vendor hardware and 
software agreements/contracts contain language requiring the vendor to 
adhere to tribal internal control standards applicable to the goods and 
services the vendor is providing.
    (ii) Physical security measures shall exist over computer, computer 
terminals, and storage media to prevent unauthorized access and loss of 
integrity of data and processing.
    (iii) Access to systems software and application programs shall be 
limited to authorized personnel.
    (iv) Access to computer data shall be limited to authorized 
personnel.
    (v) Access to computer communications facilities, or the computer 
system, and information transmissions shall be limited to authorized 
personnel.
    (vi) Standards in paragraph (a)(1) of this section shall apply to 
each applicable department within the gaming operation.
    (2) The main computers (i.e., hardware, software, and data files) 
for each gaming application (e.g., keno, race and sports, gaming 
machines, etc.) shall be in a secured area with access restricted to 
authorized persons, including vendors.
    (3) Access to computer operations shall be restricted to authorized 
personnel to reduce the risk of loss of integrity of data or processing.
    (4) Incompatible duties shall be adequately segregated and monitored 
to prevent error in general information technology procedures to go 
undetected or fraud to be concealed.

[[Page 930]]

    (5) Non-information technology personnel shall be precluded from 
having unrestricted access to the secured computer areas.
    (6) The computer systems, including application software, shall be 
secured through the use of passwords or other approved means where 
applicable. Management personnel or persons independent of the 
department being controlled shall assign and control access to system 
functions.
    (7) Passwords shall be controlled as follows unless otherwise 
addressed in the standards in this section.
    (i) Each user shall have their own individual password;
    (ii) Passwords shall be changed at least quarterly with changes 
documented; and
    (iii) For computer systems that automatically force a password 
change on a quarterly basis, documentation shall be maintained listing 
the systems and the date the user was given access.
    (8) Adequate backup and recovery procedures shall be in place that 
include:
    (i) Frequent backup of data files;
    (ii) Backup of all programs;
    (iii) Secured off-site storage of all backup data files and 
programs, or other adequate protection; and
    (iv) Recovery procedures, which are tested on a sample basis at 
least annually with documentation of results.
    (9) Adequate information technology system documentation shall be 
maintained, including descriptions of hardware and software, operator 
manuals, etc.
    (b) Independence of information technology personnel. (1) The 
information technology personnel shall be independent of the gaming 
areas (e.g., cage, pit, count rooms, etc.). Information technology 
personnel procedures and controls should be documented and 
responsibilities communicated.
    (2) Information technology personnel shall be precluded from 
unauthorized access to:
    (i) Computers and terminals located in gaming areas;
    (ii) Source documents; and
    (iii) Live data files (not test data).
    (3) Information technology personnel shall be restricted from:
    (i) Having unauthorized access to cash or other liquid assets; and
    (ii) Initiating general or subsidiary ledger entries.
    (c) Gaming program changes. (1) Program changes for in-house 
developed systems should be documented as follows:
    (i) Requests for new programs or program changes shall be reviewed 
by the information technology supervisor. Approvals to begin work on the 
program shall be documented;
    (ii) A written plan of implementation for new and modified programs 
shall be maintained, and shall include, at a minimum, the date the 
program is to be placed into service, the nature of the change, a 
description of procedures required in order to bring the new or modified 
program into service (conversion or input of data, installation 
procedures, etc.), and an indication of who is to perform all such 
procedures;
    (iii) Testing of new and modified programs shall be performed and 
documented prior to implementation; and
    (iv) A record of the final program or program changes, including 
evidence of user acceptance, date in service, programmer, and reason for 
changes, shall be documented and maintained.
    (2) [Reserved]
    (d) Security logs. (1) If computer security logs are generated by 
the system, they shall be reviewed by information technology supervisory 
personnel for evidence of:
    (i) Multiple attempts to log-on, or alternatively, the system shall 
deny user access after three attempts to log-on;
    (ii) Unauthorized changes to live data files; and
    (iii) Any other unusual transactions.
    (2) This paragraph shall not apply to personal computers.
    (e) Remote dial-up. (1) If remote dial-up to any associated 
equipment is allowed for software support, the gaming operation shall 
maintain an access log that includes:
    (i) Name of employee authorizing modem access;
    (ii) Name of authorized programmer or manufacturer representative;
    (iii) Reason for modem access;
    (iv) Description of work performed; and

[[Page 931]]

    (v) Date, time, and duration of access.
    (2) [Reserved]
    (f) Document storage. (1) Documents may be scanned or directly 
stored to an unalterable storage medium under the following conditions.
    (i) The storage medium shall contain the exact duplicate of the 
original document.
    (ii) All documents stored on the storage medium shall be maintained 
with a detailed index containing the gaming operation department and 
date. This index shall be available upon request by the Commission.
    (iii) Upon request and adequate notice by the Commission, hardware 
(terminal, printer, etc.) shall be made available in order to perform 
auditing procedures.
    (iv) Controls shall exist to ensure the accurate reproduction of 
records up to and including the printing of stored documents used for 
auditing purposes.
    (v) The storage medium shall be retained for a minimum of five 
years.
    (vi) Original documents must be retained until the books and records 
have been audited by an independent certified public accountant.
    (2) [Reserved]



Sec. 542.17  What are the minimum internal control standards for 
complimentary services or items?

    (a) Each Tribal gaming regulatory authority or gaming operation 
shall establish and the gaming operation shall comply with procedures 
for the authorization, issuance, and tracking of complimentary services 
and items, including cash and non-cash gifts. Such procedures must be 
approved by the Tribal gaming regulatory authority and shall include, 
but shall not be limited to, the procedures by which the gaming 
operation delegates to its employees the authority to approve the 
issuance of complimentary services and items, and the procedures by 
which conditions or limits, if any, which may apply to such authority 
are established and modified (including limits based on relationships 
between the authorizer and recipient), and shall further include 
effective provisions for audit purposes.
    (b) At least monthly, accounting, information technology, or audit 
personnel that cannot grant or receive complimentary privileges shall 
prepare reports that include the following information for all 
complimentary items and services equal to or exceeding $100 or an amount 
established by the Tribal gaming regulatory authority, which shall not 
be greater than $100:
    (1) Name of customer who received the complimentary service or item;
    (2) Name(s) of authorized issuer of the complimentary service or 
item;
    (3) The actual cash value of the complimentary service or item;
    (4) The type of complimentary service or item (i.e., food, beverage, 
etc.); and
    (5) Date the complimentary service or item was issued.
    (c) The internal audit or accounting departments shall review the 
reports required in paragraph (b) of this section at least monthly. 
These reports shall be made available to the Tribe, Tribal gaming 
regulatory authority, audit committee, other entity designated by the 
Tribe, and the Commission upon request.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47107, Aug. 12, 2005]



Sec. 542.18  How does a gaming operation apply for a variance from the 
standards of the part?

    (a) Tribal gaming regulatory authority approval. (1) A Tribal gaming 
regulatory authority may approve a variance for a gaming operation if it 
has determined that the variance will achieve a level of control 
sufficient to accomplish the purpose of the standard it is to replace.
    (2) For each enumerated standard for which the Tribal gaming 
regulatory authority approves a variance, it shall submit to the 
Chairman of the NIGC, within thirty (30) days, a detailed report, which 
shall include the following:
    (i) A detailed description of the variance;
    (ii) An explanation of how the variance achieves a level of control 
sufficient to accomplish the purpose of the standard it is to replace; 
and
    (iii) Evidence that the Tribal gaming regulatory authority has 
approved the variance.
    (3) In the event that the Tribal gaming regulatory authority or the 
Tribe

[[Page 932]]

chooses to submit a variance request directly to the Chairman, it may do 
so without the approval requirement set forth in paragraph (a)(2)(iii) 
of this section and such request shall be deemed as having been approved 
by the Tribal gaming regulatory authority.
    (b) Review by the Chairman. (1) Following receipt of the variance 
approval, the Chairman or his or her designee shall have sixty (60) days 
to concur with or object to the approval of the variance.
    (2) Any objection raised by the Chairman shall be in the form of a 
written explanation based upon the following criteria:
    (i) There is no valid explanation of why the gaming operation should 
have received a variance approval from the Tribal gaming regulatory 
authority on the enumerated standard; or
    (ii) The variance as approved by the Tribal gaming regulatory 
authority does not provide a level of control sufficient to accomplish 
the purpose of the standard it is to replace.
    (3) If the Chairman fails to object in writing within sixty (60) 
days after the date of receipt of a complete submission, the variance 
shall be considered concurred with by the Chairman.
    (4) The 60-day deadline may be extended, provided such extension is 
mutually agreed upon by the Tribal gaming regulatory authority and the 
Chairman.
    (c) Curing Chairman's objections. (1) Following an objection by the 
Chairman to the issuance of a variance, the Tribal gaming regulatory 
authority shall have the opportunity to cure any objections noted by the 
Chairman.
    (2) A Tribal gaming regulatory authority may cure the objections 
raised by the Chairman by:
    (i) Rescinding its initial approval of the variance; or
    (ii) Rescinding its initial approval, revising the variance, 
approving it, and re-submitting it to the Chairman.
    (3) Upon any re-submission of a variance approval, the Chairman 
shall have thirty (30) days to concur with or object to the re-submitted 
variance.
    (4) If the Chairman fails to object in writing within thirty (30) 
days after the date of receipt of the re-submitted variance, the re-
submitted variance shall be considered concurred with by the Chairman.
    (5) The thirty (30) day deadline may be extended, provided such 
extension is mutually agreed upon by the Tribal gaming regulatory 
authority and the Chairman.
    (d) Appeals. (1) Upon receipt of objections to a re-submission of a 
variance, the Tribal gaming regulatory authority shall be entitled to an 
appeal to the full Commission in accordance with the following process:
    (i) Within thirty (30) days of receiving an objection to a re-
submission, the Tribal gaming regulatory authority shall file its notice 
of appeal.
    (ii) Failure to file an appeal within the time provided by this 
section shall result in a waiver of the opportunity for an appeal.
    (iii) An appeal under this section shall specify the reasons why the 
Tribal gaming regulatory authority believes the Chairman's objections 
should be reviewed, and shall include supporting documentation, if any.
    (iv) The Tribal gaming regulatory authority shall be provided with 
any comments offered by the Chairman to the Commission on the substance 
of the appeal by the Tribal gaming regulatory authority and shall be 
offered the opportunity to respond to any such comments.
    (v) Within thirty (30) days after receipt of the appeal, the 
Commission shall render a decision based upon the criteria contained 
within paragraph (b)(2) of this section unless the Tribal gaming 
regulatory authority elects to wave the thirty (30) day requirement and 
to provide the Commission additional time, not to exceed an additional 
thirty (30) days, to render a decision.
    (vi) In the absence of a decision within the time provided, the 
Tribal gaming regulatory authority's resubmission shall be considered 
concurred with by the Commission and become effective.
    (2) The Tribal gaming regulatory authority may appeal the Chairman's 
objection to the approval of a variance to the full Commission without 
resubmitting the variance by filling a notice of appeal with the full 
Commission within

[[Page 933]]

thirty (30) days of the Chairman's objection and complying with the 
procedures described in paragraph (d)(1) of this section.
    (e) Effective date of variance. The gaming operation shall comply 
with standards that achieve a level of control sufficient to accomplish 
the purpose of the standard it is to replace until such time as the 
Commission objects to the Tribal gaming regulatory authority's approval 
of a variance as provided in paragraph (b) of this section. Concurrence 
in a variance by the Chairman or Commission is discretionary and 
variances will not be granted routinely. The gaming operation shall 
comply with standards at least as stringent as those set forth in this 
part until such time as the Chairman or Commission concurs with the 
Tribal gaming regulatory authority's approval of a variance.

[70 FR 23022, May 4, 2005]



Sec. 542.20  What is a Tier A gaming operation?

    A Tier A gaming operation is one with annual gross gaming revenues 
of more than $1 million but not more than $5 million.



Sec. 542.21  What are the minimum internal control standards for drop 
and count for Tier A gaming operations?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Table game drop standards. (1) The setting out of empty table 
game drop boxes and the drop shall be a continuous process.
    (2) At the end of each shift:
    (i) All locked table game drop boxes shall be removed from the 
tables by a person independent of the pit shift being dropped;
    (ii) A separate drop box shall be placed on each table opened at any 
time during each shift or a gaming operation may utilize a single drop 
box with separate openings and compartments for each shift; and
    (iii) Upon removal from the tables, table game drop boxes shall be 
transported directly to the count room or other equivalently secure area 
with comparable controls and locked in a secure manner until the count 
takes place.
    (3) If drop boxes are not placed on all tables, then the pit 
department shall document which tables were open during the shift.
    (4) The transporting of table game drop boxes shall be performed by 
a minimum of two persons, at least one of whom is independent of the pit 
shift being dropped.
    (5) All table game drop boxes shall be posted with a number 
corresponding to a permanent number on the gaming table and marked to 
indicate game, table number, and shift.
    (c) Soft count room personnel. (1) The table game soft count and the 
gaming machine bill acceptor count shall be performed by a minimum of 
two employees.
    (2) Count room personnel shall not be allowed to exit or enter the 
count room during the count except for emergencies or scheduled breaks. 
At no time during the count, shall there be fewer than two employees in 
the count room until the drop proceeds have been accepted into cage/
vault accountability.
    (3) Count team members shall be rotated on a routine basis such that 
the count team is not consistently the same two persons more than four 
(4) days per week. This standard shall not apply to gaming operations 
that utilize a count team of more than two persons.
    (4) The count team shall be independent of transactions being 
reviewed and counted. The count team shall be independent of the cage/
vault departments, however, a dealer or a cage cashier may be used if 
this person is not allowed to perform the recording function. An 
accounting representative may be used if there is an independent audit 
of all soft count documentation.
    (d) Table game soft count standards. (1) The table game soft count 
shall be performed in a soft count room or other equivalently secure 
area with comparable controls.

[[Page 934]]

    (2) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (3) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (4) The table game drop boxes shall be individually emptied and 
counted in such a manner to prevent the commingling of funds between 
boxes until the count of the box has been recorded.
    (i) The count of each box shall be recorded in ink or other 
permanent form of recordation.
    (ii) A second count shall be performed by an employee on the count 
team who did not perform the initial count.
    (iii) Corrections to information originally recorded by the count 
team on soft count documentation shall be made by drawing a single line 
through the error, writing the correct figure above the original figure, 
and then obtaining the initials of at least two count team members who 
verified the change, unless the count team only has two (2) members in 
which case the initials of only one (1) verifying member is required.
    (5) If cash counters are utilized and the count room table is used 
only to empty boxes and sort/stack contents, a count team member shall 
be able to observe the loading and unloading of all cash at the cash 
counter, including rejected cash.
    (6) Table game drop boxes, when empty, shall be shown to another 
member of the count team, or to another person who is observing the 
count, or to surveillance.
    (7) Orders for fill/credit (if applicable) shall be matched to the 
fill/credit slips. Fills and credits shall be traced to or recorded on 
the count sheet.
    (8) Pit marker issue and payment slips (if applicable) removed from 
the table game drop boxes shall either be:
    (i) Traced to or recorded on the count sheet by the count team; or
    (ii) Totaled by shift and traced to the totals documented by the 
computerized system. Accounting personnel shall verify the issue/payment 
slip for each table is accurate.
    (9) Foreign currency exchange forms (if applicable) removed from the 
table game drop boxes shall be reviewed for the proper daily exchange 
rate and the conversion amount shall be recomputed by the count team. 
Alternatively, this may be performed by accounting/auditing employees.
    (10) The opening/closing table and marker inventory forms (if 
applicable) shall either be:
    (i) Examined and traced to or recorded on the count sheet; or
    (ii) If a computerized system is used, accounting personnel can 
trace the opening/closing table and marker inventory forms to the count 
sheet. Discrepancies shall be investigated with the findings documented 
and maintained for inspection.
    (11) The count sheet shall be reconciled to the total drop by a 
count team member who shall not function as the sole recorder.
    (12) All members of the count team shall sign the count document or 
a summary report to attest to their participation in the count.
    (13) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (14) The count sheet, with all supporting documents, shall be 
delivered to the accounting department by a count team member or a 
person independent of the cashiers department. Alternatively, it may be 
adequately secured (e.g., locked container to which only accounting 
personnel can gain access) until retrieved by the accounting department.
    (15) Access to stored, full table game drop boxes shall be 
restricted to authorized members of the drop and count teams.
    (e) Gaming machine bill acceptor drop standards. (1) A minimum of 
two employees shall be involved in the removal of the gaming machine 
drop, at

[[Page 935]]

least one of whom is independent of the gaming machine department.
    (2) All bill acceptor canisters shall be removed only at the time 
previously designated by the gaming operation and reported to the Tribal 
gaming regulatory authority, except for emergency drops.
    (3) The bill acceptor canisters shall be removed by a person 
independent of the gaming machine department then transported directly 
to the count room or other equivalently secure area with comparable 
controls and locked in a secure manner until the count takes place.
    (i) Security shall be provided over the bill acceptor canisters 
removed from the gaming machines and awaiting transport to the count 
room.
    (ii) The transporting of bill acceptor canisters shall be performed 
by a minimum of two persons, at least one of whom is independent of the 
gaming machine department.
    (4) All bill acceptor canisters shall be posted with a number 
corresponding to a permanent number on the gaming machine.
    (f) Gaming machine bill acceptor count standards. (1) The gaming 
machine bill acceptor count shall be performed in a soft count room or 
other equivalently secure area with comparable controls.
    (2) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (3) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (4) The bill acceptor canisters shall be individually emptied and 
counted in such a manner to prevent the commingling of funds between 
canisters until the count of the canister has been recorded.
    (i) The count of each canister shall be recorded in ink or other 
permanent form of recordation.
    (ii) Corrections to information originally recorded by the count 
team on soft count documentation shall be made by drawing a single line 
through the error, writing the correct figure above the original figure, 
and then obtaining the initials of at least two count team members who 
verified the change.
    (5) If cash counters are utilized and the count room table is used 
only to empty canisters and sort/stack contents, a count team member 
shall be able to observe the loading and unloading of all cash at the 
cash counter, including rejected cash.
    (6) Canisters, when empty, shall be shown to another member of the 
count team, or to another person who is observing the count, or to 
surveillance.
    (7) The count sheet shall be reconciled to the total drop by a count 
team member who shall not function as the sole recorder.
    (8) All members of the count team shall sign the count document or a 
summary report to attest to their participation in the count.
    (9) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (10) The count sheet, with all supporting documents, shall be 
delivered to the accounting department by a count team member or a 
person independent of the cashiers department. Alternatively, it may be 
adequately secured (e.g., locked container to which only accounting 
personnel can gain access) until retrieved by the accounting department.
    (11) Access to stored bill acceptor canisters, full or empty, shall 
be restricted to:
    (i) Authorized members of the drop and count teams; and
    (ii) Authorized personnel in an emergency for resolution of a 
problem.
    (g) Gaming machine coin drop standards. (1) A minimum of two 
employees shall be involved in the removal of the gaming machine drop, 
at least one of whom is independent of the gaming machine department.
    (2) All drop buckets shall be removed only at the time previously 
designated by the gaming operation and reported

[[Page 936]]

to the Tribal gaming regulatory authority, except for emergency drops.
    (3) Security shall be provided over the buckets removed from the 
gaming machine drop cabinets and awaiting transport to the count room.
    (4) As each machine is opened, the contents shall be tagged with its 
respective machine number if the bucket is not permanently marked with 
the machine number. The contents shall be transported directly to the 
area designated for the counting of such drop proceeds. If more than one 
trip is required to remove the contents of the machines, the filled 
carts of coins shall be securely locked in the room designed for 
counting or in another equivalently secure area with comparable 
controls. There shall be a locked covering on any carts in which the 
drop route includes passage out of doors.
    (i) Alternatively, a smart bucket system that electronically 
identifies and tracks the gaming machine number, and facilitates the 
proper recognition of gaming revenue, shall satisfy the requirements of 
this paragraph.
    (ii) [Reserved]
    (5) Each drop bucket in use shall be:
    (i) Housed in a locked compartment separate from any other 
compartment of the gaming machine and keyed differently than other 
gaming machine compartments; and
    (ii) Identifiable to the gaming machine from which it is removed. If 
the gaming machine is identified with a removable tag that is placed in 
the bucket, the tag shall be placed on top of the bucket when it is 
collected.
    (6) Each gaming machine shall have drop buckets into which coins or 
tokens that are retained by the gaming machine are collected. Drop 
bucket contents shall not be used to make change or pay hand-paid 
payouts.
    (7) The collection procedures may include procedures for dropping 
gaming machines that have trays instead of drop buckets.
    (h) Hard count room personnel. (1) The weigh/count shall be 
performed by a minimum of two employees.
    (2) At no time during the weigh/count shall there be fewer than two 
employees in the count room until the drop proceeds have been accepted 
into cage/vault accountability.
    (i) If the gaming machine count is conducted with a continuous 
mechanical count meter that is not reset during the count and is 
verified in writing by at least two employees at the start and end of 
each denomination count, then one employee may perform the wrap.
    (ii) [Reserved]
    (3) Count team members shall be rotated on a routine basis such that 
the count team is not consistently the same two persons more than four 
(4) days per week. This standard shall not apply to gaming operations 
that utilize a count team of more than two persons.
    (4) The count team shall be independent of transactions being 
reviewed and counted. The count team shall be independent of the cage/
vault departments, unless they are non-supervisory gaming machine 
employees and perform the laborer function only (A non-supervisory 
gaming machine employee is defined as a person below the level of gaming 
machine shift supervisor). A cage cashier may be used if this person is 
not allowed to perform the recording function. An accounting 
representative may be used if there is an independent audit of all count 
documentation.
    (i) Gaming machine coin count and wrap standards. (1) Coins shall 
include tokens.
    (2) The gaming machine coin count and wrap shall be performed in a 
count room or other equivalently secure area with comparable controls.
    (i) Alternatively, an on-the-floor drop system utilizing a mobile 
scale shall satisfy the requirements of this paragraph, subject to the 
following conditions:
    (A) The gaming operation shall utilize and maintain an effective on-
line gaming machine monitoring system, as described in Sec. 
542.13(m)(3);
    (B) Components of the on-the-floor drop system shall include, but 
not be limited to, a weigh scale, a laptop computer through which weigh/
count applications are operated, a security camera available for the 
mobile scale system, and a VCR to be housed within the video compartment 
of the mobile scale. The system may include a mule cart

[[Page 937]]

used for mobile weigh scale system locomotion.
    (C) The gaming operation must obtain the security camera available 
with the system, and this camera must be added in such a way as to 
eliminate tampering.
    (D) Prior to the drop, the drop/count team shall ensure the scale 
batteries are charged;
    (E) Prior to the drop, a videotape shall be inserted into the VCR 
used to record the drop in conjunction with the security camera system 
and the VCR shall be activated;
    (F) The weigh scale test shall be performed prior to removing the 
unit from the hard count room for the start of the weigh/drop/count;
    (G) Surveillance shall be notified when the weigh/drop/count begins 
and shall be capable of monitoring the entire process;
    (H) An observer independent of the weigh/drop/count teams 
(independent observer) shall remain by the weigh scale at all times and 
shall observe the entire weigh/drop/count process;
    (I) Physical custody of the key(s) needed to access the laptop and 
video compartment shall require the involvement of two persons, one of 
whom is independent of the drop and count team;
    (J) The mule key (if applicable), the laptop and video compartment 
keys, and the remote control for the VCR shall be maintained by a 
department independent of the gaming machine department. The appropriate 
personnel shall sign out these keys;
    (K) A person independent of the weigh/drop/count teams shall be 
required to accompany these keys while they are checked out, and observe 
each time the laptop compartment is opened;
    (L) The laptop access panel shall not be opened outside the hard 
count room, except in instances when the laptop must be rebooted as a 
result of a crash, lock up, or other situation requiring immediate 
corrective action;
    (M) User access to the system shall be limited to those employees 
required to have full or limited access to complete the weigh/drop/
count; and
    (N) When the weigh/drop/count is completed, the independent observer 
shall access the laptop compartment, end the recording session, eject 
the videotape, and deliver the videotape to surveillance.
    (ii) [Reserved]
    (3) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (4) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (5) The following functions shall be performed in the counting of 
the gaming machine drop:
    (i) Recorder function, which involves the recording of the gaming 
machine count; and
    (ii) Count team supervisor function, which involves the control of 
the gaming machine weigh and wrap process. The supervisor shall not 
perform the initial recording of the weigh/count unless a weigh scale 
with a printer is used.
    (6) The gaming machine drop shall be counted, wrapped, and 
reconciled in such a manner to prevent the commingling of gaming machine 
drop coin with coin (for each denomination) from the next gaming machine 
drop until the count of the gaming machine drop has been recorded. If 
the coins are not wrapped immediately after being weighed or counted, 
they shall be secured and not commingled with other coins.
    (i) The amount of the gaming machine drop from each machine shall be 
recorded in ink or other permanent form of recordation on a gaming 
machine count document by the recorder or mechanically printed by the 
weigh scale.
    (ii) Corrections to information originally recorded by the count 
team on gaming machine count documentation shall be made by drawing a 
single line through the error, writing the correct figure above the 
original figure, and then obtaining the initials of at least two count 
team members who verified the change.
    (A) If a weigh scale interface is used, corrections to gaming 
machine count

[[Page 938]]

data shall be made using either of the following:
    (1) Drawing a single line through the error on the gaming machine 
document, writing the correct figure above the original figure, and then 
obtaining the initials of at least two count team employees. If this 
procedure is used, an employee independent of the gaming machine 
department and count team shall enter the correct figure into the 
computer system prior to the generation of related gaming machine 
reports; or
    (2) During the count process, correct the error in the computer 
system and enter the passwords of at least two count team employees. If 
this procedure is used, an exception report shall be generated by the 
computer system identifying the gaming machine number, the error, the 
correction, and the count team employees attesting to the correction.
    (B) [Reserved]
    (7) If applicable, the weight shall be converted to dollar amounts 
prior to the reconciliation of the weigh to the wrap.
    (8) If a coin meter is used, a count team member shall convert the 
coin count for each denomination into dollars and shall enter the 
results on a summary sheet.
    (9) The recorder and at least one other count team member shall sign 
the weigh tape and the gaming machine count document attesting to the 
accuracy of the weigh/count.
    (10) All members of the count team shall sign the count document or 
a summary report to attest to their participation in the count.
    (11) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (12) All gaming machine count and wrap documentation, including any 
applicable computer storage media, shall be delivered to the accounting 
department by a count team member or a person independent of the 
cashier's department. Alternatively, it may be adequately secured (e.g., 
locked container to which only accounting personnel can gain access) 
until retrieved by the accounting department.
    (13) If the coins are transported off the property, a second 
(alternative) count procedure shall be performed before the coins leave 
the property. Any variances shall be documented.
    (14) Variances. Large (by denomination, either $1,000 or 2% of the 
drop, whichever is less) or unusual (e.g., zero for weigh/count or 
patterned for all counts) variances between the weigh/count and wrap 
shall be investigated by management personnel independent of the gaming 
machine department, count team, and the cage/vault functions on a timely 
basis. The results of such investigation shall be documented, maintained 
for inspection, and provided to the Tribal gaming regulatory authority 
upon request.
    (j) Security of the coin room inventory during the gaming machine 
coin count and wrap. (1) If the count room serves as a coin room and 
coin room inventory is not secured so as to preclude access by the count 
team, then the following standards shall apply:
    (i) At the commencement of the gaming machine count the following 
requirements shall be met:
    (A) The coin room inventory shall be counted by at least two 
employees, one of whom is a member of the count team and the other is 
independent of the weigh/count and wrap procedures;
    (B) The count in paragraph (j)(1)(i)(A) of this section shall be 
recorded on an appropriate inventory form;
    (ii) Upon completion of the wrap of the gaming machine drop:
    (A) At least two members of the count team (wrap team), 
independently from each other, shall count the ending coin room 
inventory;
    (B) The counts in paragraph (j)(1)(ii)(A) of this section shall be 
recorded on a summary report(s) that evidences the calculation of the 
final wrap by subtracting the beginning inventory from the sum of the 
ending inventory and transfers in and out of the coin room;
    (C) The same count team members shall compare the calculated wrap to

[[Page 939]]

the weigh/count, recording the comparison and noting any variances on 
the summary report;
    (D) A member of the cage/vault department shall count the ending 
coin room inventory by denomination and shall reconcile it to the 
beginning inventory, wrap, transfers, and weigh/count; and
    (E) At the conclusion of the reconciliation, at least two count/wrap 
team members and the verifying employee shall sign the summary report(s) 
attesting to its accuracy.
    (iii) The functions described in paragraph (j)(1)(ii)(A) and (C) of 
this section may be performed by only one count team member. That count 
team member must then sign the summary report, along with the verifying 
employee, as required under paragraph (j)(1)(ii)(E).
    (2) If the count room is segregated from the coin room, or if the 
coin room is used as a count room and the coin room inventory is secured 
to preclude access by the count team, all of the following requirements 
shall be completed, at the conclusion of the count:
    (i) At least two members of the count/wrap team shall count the 
final wrapped gaming machine drop independently from each other;
    (ii) The counts shall be recorded on a summary report;
    (iii) The same count team members (or the accounting department) 
shall compare the final wrap to the weigh/count, recording the 
comparison, and noting any variances on the summary report;
    (iv) A member of the cage/vault department shall count the wrapped 
gaming machine drop by denomination and reconcile it to the weigh/count;
    (v) At the conclusion of the reconciliation, at least two count team 
members and the cage/vault employee shall sign the summary report 
attesting to its accuracy; and
    (vi) The wrapped coins (exclusive of proper transfers) shall be 
transported to the cage, vault or coin vault after the reconciliation of 
the weigh/count to the wrap.
    (k) Transfers during the gaming machine coin count and wrap. (1) 
Transfers may be permitted during the count and wrap only if permitted 
under the internal control standards approved by the Tribal gaming 
regulatory authority.
    (2) Each transfer shall be recorded on a separate multi-part form 
with a preprinted or concurrently-printed form number (used solely for 
gaming machine count transfers) that shall be subsequently reconciled by 
the accounting department to ensure the accuracy of the reconciled 
gaming machine drop.
    (3) Each transfer must be counted and signed for by at least two 
members of the count team and by a person independent of the count team 
who is responsible for authorizing the transfer.
    (l) Gaming machine drop key control standards. (1) Gaming machine 
coin drop cabinet keys, including duplicates, shall be maintained by a 
department independent of the gaming machine department.
    (2) The physical custody of the keys needed to access gaming machine 
coin drop cabinets, including duplicates, shall require the involvement 
of two persons, one of whom is independent of the gaming machine 
department.
    (3) Two employees (separate from key custodian) shall be required to 
accompany such keys while checked out and observe each time gaming 
machine drop cabinets are accessed.
    (m) Table game drop box key control standards. (1) Tier A gaming 
operations shall be exempt from compliance with this paragraph if the 
Tribal gaming regulatory authority, or the gaming operation as approved 
by the Tribal gaming regulatory authority, establishes and the gaming 
operation complies with procedures that maintain adequate key control 
and restricts access to the keys.
    (2) Procedures shall be developed and implemented to insure that 
unauthorized access to empty table game drop boxes shall not occur from 
the time the boxes leave the storage racks until they are placed on the 
tables.
    (3) The involvement of at least two persons independent of the cage 
department shall be required to access stored empty table game drop 
boxes.
    (4) The release keys shall be separately keyed from the contents 
keys.
    (5) At least two count team members are required to be present at 
the time

[[Page 940]]

count room and other count keys are issued for the count.
    (6) All duplicate keys shall be maintained in a manner that provides 
the same degree of control as is required for the original keys. Records 
shall be maintained for each key duplicated that indicate the number of 
keys made and destroyed.
    (7) Logs shall be maintained by the custodian of sensitive keys to 
document authorization of personnel accessing keys.
    (n) Table game drop box release keys. (1) Tier A gaming operations 
shall be exempt from compliance with this paragraph if the Tribal gaming 
regulatory authority, or the gaming operation as approved by the Tribal 
gaming regulatory authority, establishes and the gaming operation 
complies with procedures that maintain adequate key control and 
restricts access to the keys.
    (2) The table game drop box release keys shall be maintained by a 
department independent of the pit department.
    (3) Only the person(s) authorized to remove table game drop boxes 
from the tables shall be allowed access to the table game drop box 
release keys; however, the count team members may have access to the 
release keys during the soft count in order to reset the table game drop 
boxes.
    (4) Persons authorized to remove the table game drop boxes shall be 
precluded from having simultaneous access to the table game drop box 
contents keys and release keys.
    (5) For situations requiring access to a table game drop box at a 
time other than the scheduled drop, the date, time, and signature of 
employee signing out/in the release key must be documented.
    (o) Bill acceptor canister release keys. (1) Tier A gaming 
operations shall be exempt from compliance with this paragraph if the 
Tribal gaming regulatory authority, or the gaming operation as approved 
by the Tribal gaming regulatory authority, establishes and the gaming 
operation complies with procedures that maintain adequate key control 
and restricts access to the keys.
    (2) The bill acceptor canister release keys shall be maintained by a 
department independent of the gaming machine department.
    (3) Only the person(s) authorized to remove bill acceptor canisters 
from the gaming machines shall be allowed access to the release keys.
    (4) Persons authorized to remove the bill acceptor canisters shall 
be precluded from having simultaneous access to the bill acceptor 
canister contents keys and release keys.
    (5) For situations requiring access to a bill acceptor canister at a 
time other than the scheduled drop, the date, time, and signature of 
employee signing out/in the release key must be documented.
    (p) Table game drop box storage rack keys. (1) Tier A gaming 
operations shall be exempt from compliance with this paragraph if the 
Tribal gaming regulatory authority, or the gaming operation as approved 
by the Tribal gaming regulatory authority, establishes and the gaming 
operation complies with procedures that maintain adequate key control 
and restricts access to the keys.
    (2) Persons authorized to obtain table game drop box storage rack 
keys shall be precluded from having simultaneous access to table game 
drop box contents keys, with the exception of the count team.
    (q) Bill acceptor canister storage rack keys. (1) Tier A gaming 
operations shall be exempt from compliance with this paragraph if the 
Tribal gaming regulatory authority, or the gaming operation as approved 
by the Tribal gaming regulatory authority, establishes and the gaming 
operation complies with procedures that maintain adequate key control 
and restricts access to the keys.
    (2) Persons authorized to obtain bill acceptor canister storage rack 
keys shall be precluded from having simultaneous access to bill acceptor 
canister contents keys, with the exception of the count team.
    (r) Table game drop box contents keys. (1) Tier A gaming operations 
shall be exempt from compliance with this paragraph if the Tribal gaming 
regulatory authority, or the gaming operation as approved by the Tribal 
gaming

[[Page 941]]

regulatory authority, establishes and the gaming operation complies with 
procedures that maintain adequate key control and restricts access to 
the keys.
    (2) The physical custody of the keys needed for accessing stored, 
full table game drop box contents shall require the involvement of 
persons from at least two separate departments, with the exception of 
the count team.
    (3) Access to the table game drop box contents key at other than 
scheduled count times shall require the involvement of at least two 
persons from separate departments, including management. The reason for 
access shall be documented with the signatures of all participants and 
observers.
    (4) Only count team members shall be allowed access to table game 
drop box contents keys during the count process.
    (s) Bill acceptor canister contents keys. (1) Tier A gaming 
operations shall be exempt from compliance with this paragraph if the 
Tribal gaming regulatory authority, or the gaming operation as approved 
by the Tribal gaming regulatory authority, establishes and the gaming 
operation complies with procedures that maintain adequate key control 
and restricts access to the keys.
    (2) The physical custody of the keys needed for accessing stored, 
full bill acceptor canister contents shall require involvement of 
persons from two separate departments, with the exception of the count 
team.
    (3) Access to the bill acceptor canister contents key at other than 
scheduled count times shall require the involvement of at least two 
persons from separate departments, one of whom must be a supervisor. The 
reason for access shall be documented with the signatures of all 
participants and observers.
    (4) Only the count team members shall be allowed access to bill 
acceptor canister contents keys during the count process.
    (t) Gaming machine computerized key security systems. (1) 
Computerized key security systems which restrict access to the gaming 
machine drop and count keys through the use of passwords, keys or other 
means, other than a key custodian, must provide the same degree of 
control as indicated in the aforementioned key control standards; refer 
to paragraphs (l), (o), (q) and (s) of this section. Note: This standard 
does not apply to the system administrator. The system administrator is 
defined in paragraph (t)(2)(i) of this section.
    (2) For computerized key security systems, the following additional 
gaming machine key control procedures apply:
    (i) Management personnel independent of the gaming machine 
department assign and control user access to keys in the computerized 
key security system (i.e., system administrator) to ensure that gaming 
machine drop and count keys are restricted to authorized employees.
    (ii) In the event of an emergency or the key box is inoperable, 
access to the emergency manual key(s) (a.k.a. override key), used to 
access the box containing the gaming machine drop and count keys, 
requires the physical involvement of at least three persons from 
separate departments, including management. The date, time, and reason 
for access, must be documented with the signatures of all participating 
employees signing out/in the emergency manual key(s).
    (iii) The custody of the keys issued pursuant to paragraph 
(t)(2)(ii) of this section requires the presence of two persons from 
separate departments from the time of their issuance until the time of 
their return.
    (iv) Routine physical maintenance that requires accessing the 
emergency manual key(s) (override key) and does not involve the 
accessing of the gaming machine drop and count keys, only requires the 
presence of two persons from separate departments. The date, time and 
reason for access must be documented with the signatures of all 
participating employees signing out/in the emergency manual key(s).
    (3) For computerized key security systems controlling access to 
gaming machine drop and count keys, accounting/audit personnel, 
independent of the system administrator, will perform the following 
procedures:

[[Page 942]]

    (i) Daily, review the report generated by the computerized key 
security system indicating the transactions performed by the 
individual(s) that adds, deletes, and changes user's access within the 
system (i.e., system administrator). Determine whether the transactions 
completed by the system administrator provide an adequate control over 
the access to the gaming machine drop and count keys. Also, determine 
whether any gaming machine drop and count key(s) removed or returned to 
the key cabinet by the system administrator was properly authorized.
    (ii) For at least one day each month, review the report generated by 
the computerized key security system indicating all transactions 
performed to determine whether any unusual gaming machine drop and count 
key removals or key returns occurred.
    (iii) At least quarterly, review a sample of users that are assigned 
access to the gaming machine drop and count keys to determine that their 
access to the assigned keys is adequate relative to their job position.
    (iv) All noted improper transactions or unusual occurrences are 
investigated with the results documented.
    (4) Quarterly, an inventory of all count room, drop box release, 
storage rack and contents keys is performed, and reconciled to records 
of keys made, issued, and destroyed. Investigations are performed for 
all keys unaccounted for, with the investigation being documented.
    (u) Table games computerized key security systems. (1) Computerized 
key security systems which restrict access to the table game drop and 
count keys through the use of passwords, keys or other means, other than 
a key custodian, must provide the same degree of control as indicated in 
the aforementioned key control standards; refer to paragraphs (m), (n), 
(p) and (r) of this section. Note: This standard does not apply to the 
system administrator. The system administrator is defined in paragraph 
(u)(2)(ii) of this section.
    (2) For computerized key security systems, the following additional 
table game key control procedures apply:
    (i) Management personnel independent of the table game department 
assign and control user access to keys in the computerized key security 
system (i.e., system administrator) to ensure that table game drop and 
count keys are restricted to authorized employees.
    (ii) In the event of an emergency or the key box is inoperable, 
access to the emergency manual key(s) (a.k.a. override key), used to 
access the box containing the table game drop and count keys, requires 
the physical involvement of at least three persons from separate 
departments, including management. The date, time, and reason for 
access, must be documented with the signatures of all participating 
employees signing out/in the emergency manual key(s).
    (iii) The custody of the keys issued pursuant to paragraph 
(u)(2)(ii) of this section requires the presence of two persons from 
separate departments from the time of their issuance until the time of 
their return.
    (iv) Routine physical maintenance that requires accessing the 
emergency manual key(s) (override key) and does not involve the 
accessing of the table games drop and count keys, only requires the 
presence of two persons from separate departments. The date, time and 
reason for access must be documented with the signatures of all 
participating employees signing out/in the emergency manual key(s).
    (3) For computerized key security systems controlling access to 
table games drop and count keys, accounting/audit personnel, independent 
of the system administrator, will perform the following procedures:
    (i) Daily, review the report generated by the computerized key 
security system indicating the transactions performed by the 
individual(s) that adds, deletes, and changes user's access within the 
system (i.e., system administrator). Determine whether the transactions 
completed by the system administrator provide an adequate control over 
the access to the table games drop and count keys. Also, determine 
whether any table games drop and count key(s) removed or returned to the 
key cabinet by the system administrator was properly authorized.
    (ii) For at least one day each month, review the report generated by 
the

[[Page 943]]

computerized key security system indicating all transactions performed 
to determine whether any unusual table games drop and count key removals 
or key returns occurred.
    (iii) At least quarterly, review a sample of users that are assigned 
access to the table games drop and count keys to determine that their 
access to the assigned keys is adequate relative to their job position.
    (iv) All noted improper transactions or unusual occurrences are 
investigated with the results documented.
    (4) Quarterly, an inventory of all count room, table game drop box 
release, storage rack and contents keys is performed, and reconciled to 
records of keys made, issued, and destroyed. Investigations are 
performed for all keys unaccounted for, with the investigations being 
documented.
    (v) Emergency drop procedures. Emergency drop procedures shall be 
developed by the Tribal gaming regulatory authority, or the gaming 
operation as approved by the Tribal gaming regulatory authority.
    (w) Equipment standards for gaming machine count. (1) A weigh scale 
calibration module shall be secured so as to prevent unauthorized access 
(e.g., prenumbered seal, lock and key, etc.).
    (2) A person independent of the cage, vault, gaming machine, and 
count team functions shall be required to be present whenever the 
calibration module is accessed. Such access shall be documented and 
maintained.
    (3) If a weigh scale interface is used, it shall be adequately 
restricted so as to prevent unauthorized access (passwords, keys, etc.).
    (4) If the weigh scale has a zero adjustment mechanism, it shall be 
physically limited to minor adjustments (e.g., weight of a bucket) or 
physically situated such that any unnecessary adjustments to it during 
the weigh process would be observed by other count team members.
    (5) The weigh scale and weigh scale interface (if applicable) shall 
be tested by a person or persons independent of the cage, vault, and 
gaming machine departments and count team at least quarterly. At least 
annually, this test shall be performed by internal audit in accordance 
with the internal audit standards. The result of these tests shall be 
documented and signed by the person or persons performing the test.
    (6) Prior to the gaming machine count, at least two employees shall 
verify the accuracy of the weigh scale with varying weights or with 
varying amounts of previously counted coin for each denomination to 
ensure the scale is properly calibrated (varying weights/coin from drop 
to drop is acceptable).
    (7) If a mechanical coin counter is used (instead of a weigh scale), 
the Tribal gaming regulatory authority, or the gaming operation as 
approved by the Tribal gaming regulatory authority, shall establish and 
the gaming operation shall comply, with procedures that are equivalent 
to those described in paragraphs (u)(4), (u)(5), and (u)(6) of this 
section.
    (8) If a coin meter count machine is used, the count team member 
shall record the machine number denomination and number of coins in ink 
on a source document, unless the meter machine automatically records 
such information.
    (i) A count team member shall test the coin meter count machine 
prior to the actual count to ascertain if the metering device is 
functioning properly with a predetermined number of coins for each 
denomination.
    (ii) [Reserved]

[67 FR 43400, June 27, 2002, as amended at 70 FR 23021, May 4, 2005; 70 
FR 47107, Aug. 12, 2005]



Sec. 542.22  What are the minimum internal control standards for 
internal audit for Tier A gaming operations?

    (a) Internal audit personnel. (1) For Tier A gaming operations, a 
separate internal audit department must be maintained. Alternatively, 
designating personnel (who are independent with respect to the 
departments/procedures being examined) to perform internal audit work 
satisfies the requirements of this paragraph.
    (2) The internal audit personnel shall report directly to the Tribe, 
Tribal gaming regulatory authority, audit committee, or other entity 
designated by the Tribe in accordance with the definition of internal 
audit in Sec. 542.2.
    (b) Audits. (1) Internal audit personnel shall perform audits of all 
major

[[Page 944]]

gaming areas of the gaming operation. The following shall be reviewed at 
least annually:
    (i) Bingo, including but not limited to, bingo card control, payout 
procedures, and cash reconciliation process;
    (ii) Pull tabs, including but not limited to, statistical records, 
winner verification, perpetual inventory, and accountability of sales 
versus inventory;
    (iii) Card games, including but not limited to, card games 
operation, cash exchange procedures, shill transactions, and count 
procedures;
    (iv) Keno, including but not limited to, game write and payout 
procedures, sensitive key location and control, and a review of keno 
auditing procedures;
    (v) Pari-mutual wagering, including write and payout procedures, and 
pari-mutual auditing procedures;
    (vi) Table games, including but not limited to, fill and credit 
procedures, pit credit play procedures, rim credit procedures, soft 
drop/count procedures and the subsequent transfer of funds, unannounced 
testing of count room currency counters and/or currency interface, 
location and control over sensitive keys, the tracing of source 
documents to summarized documentation and accounting records, and 
reconciliation to restricted copies;
    (vii) Gaming machines, including but not limited to, jackpot payout 
and gaming machine fill procedures, gaming machine drop/count and bill 
acceptor drop/count and subsequent transfer of funds, unannounced 
testing of weigh scale and weigh scale interface, unannounced testing of 
count room currency counters and/or currency interface, gaming machine 
drop cabinet access, tracing of source documents to summarized 
documentation and accounting records, reconciliation to restricted 
copies, location and control over sensitive keys, compliance with EPROM 
duplication procedures, and compliance with MICS procedures for gaming 
machines that accept currency or coin(s) and issue cash-out tickets or 
gaming machines that do not accept currency or coin(s) and do not return 
currency or coin(s);
    (viii) Cage and credit procedures including all cage, credit, and 
collection procedures, and the reconciliation of trial balances to 
physical instruments on a sample basis. Cage accountability shall be 
reconciled to the general ledger;
    (ix) Information technology functions, including review for 
compliance with information technology standards;
    (x) Complimentary service or item, including but not limited to, 
procedures whereby complimentary service items are issued, authorized, 
and redeemed; and
    (xi) Any other internal audits as required by the Tribe, Tribal 
gaming regulatory authority, audit committee, or other entity designated 
by the Tribe.
    (2) In addition to the observation and examinations performed under 
paragraph (b)(1) of this section, follow-up observations and 
examinations shall be performed to verify that corrective action has 
been taken regarding all instances of noncompliance cited by internal 
audit, the independent accountant, and/or the Commission. The 
verification shall be performed within six (6) months following the date 
of notification.
    (3) Whenever possible, internal audit observations shall be 
performed on an unannounced basis (i.e., without the employees being 
forewarned that their activities will be observed). Additionally, if the 
independent accountant also performs the internal audit function, the 
accountant shall perform separate observations of the table games/gaming 
machine drops and counts to satisfy the internal audit observation 
requirements and independent accountant tests of controls as required by 
the American Institute of Certified Public Accountants guide.
    (c) Documentation. (1) Documentation (e.g., checklists, programs, 
reports, etc.) shall be prepared to evidence all internal audit work 
performed as it relates to the requirements in this section, including 
all instances of noncompliance.
    (2) The internal audit department shall operate with audit programs, 
which, at a minimum, address the MICS. Additionally, the department 
shall properly document the work performed, the conclusions reached, and

[[Page 945]]

the resolution of all exceptions. Institute of Internal Auditors 
standards are recommended but not required.
    (d) Reports. (1) Reports documenting audits performed shall be 
maintained and made available to the Commission upon request.
    (2) Such audit reports shall include the following information:
    (i) Audit objectives;
    (ii) Audit procedures and scope;
    (iii) Findings and conclusions;
    (iv) Recommendations, if applicable; and
    (v) Management's response.
    (e) Material exceptions. All material exceptions resulting from 
internal audit work shall be investigated and resolved with the results 
of such being documented and retained for five years.
    (f) Role of management. (1) Internal audit findings shall be 
reported to management.
    (2) Management shall be required to respond to internal audit 
findings stating corrective measures to be taken to avoid recurrence of 
the audit exception.
    (3) Such management responses shall be included in the internal 
audit report that will be delivered to management, the Tribe, Tribal 
gaming regulatory authority, audit committee, or other entity designated 
by the Tribe.
    (g) Internal Audit Guidelines. In connection with the internal audit 
testing pursuant to paragraph (b)(1) of this section, the Commission 
shall develop recommended Internal Audit Guidelines, which shall be 
available upon request.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47107, Aug. 12, 2005]



Sec. 542.23  What are the minimum internal control standards for 
surveillance for Tier A gaming operations?

    (a) Tier A gaming operations must, at a minimum, maintain and 
operate an unstaffed surveillance system in a secured location whereby 
the areas under surveillance are continually recorded.
    (b) The entrance to the secured location shall be located so that it 
is not readily accessible by either gaming operation employees who work 
primarily on the casino floor, or the general public.
    (c) Access to the secured location shall be limited to surveillance 
personnel, designated employees, and other persons authorized in 
accordance with the surveillance department policy. Such policy shall be 
approved by the Tribal gaming regulatory authority.
    (d) The surveillance system shall include date and time generators 
that possess the capability to display the date and time of recorded 
events on video and/or digital recordings. The displayed date and time 
shall not significantly obstruct the recorded view.
    (e) The surveillance department shall strive to ensure staff is 
trained in the use of the equipment, knowledge of the games, and house 
rules.
    (f) Each camera required by the standards in this section shall be 
installed in a manner that will prevent it from being readily 
obstructed, tampered with, or disabled by customers or employees.
    (g) Each camera required by the standards in this section shall 
possess the capability of having its picture recorded. The surveillance 
system shall include sufficient numbers of recorders to simultaneously 
record multiple gaming and count room activities, and record the views 
of all dedicated cameras and motion activated dedicated cameras.
    (h) Reasonable effort shall be made to repair each malfunction of 
surveillance system equipment required by the standards in this section 
within seventy-two (72) hours after the malfunction is discovered. The 
Tribal gaming regulatory authority shall be notified of any camera(s) 
that has malfunctioned for more than twenty-four (24) hours.
    (1) In the event of a dedicated camera malfunction, the gaming 
operation and/or the surveillance department shall, upon identification 
of the malfunction, provide alternative camera coverage or other 
security measures, such as additional supervisory or security personnel, 
to protect the subject activity.
    (2) [Reserved]
    (i) Bingo. The surveillance system shall record the bingo ball 
drawing device, the game board, and the activities

[[Page 946]]

of the employees responsible for drawing, calling, and entering the 
balls drawn or numbers selected.
    (j) Card games. The surveillance system shall record the general 
activities in each card room and be capable of identifying the employees 
performing the different functions.
    (k) Keno. The surveillance system shall record the keno ball-drawing 
device, the general activities in each keno game area, and be capable of 
identifying the employees performing the different functions.
    (l) Table games--(1) Operations with four (4) or more table games. 
Except as otherwise provided in paragraphs (l)(3), (l)(4), and (l)(5) of 
this section, the surveillance system of gaming operations operating 
four (4) or more table games shall provide at a minimum one (1) pan-
tilt-zoom camera per two (2) tables and surveillance must be capable of 
taping:
    (i) With sufficient clarity to identify customers and dealers; and
    (ii) With sufficient coverage and clarity to simultaneously view the 
table bank and determine the configuration of wagers, card values, and 
game outcome.
    (iii) One (1) dedicated camera per table and one (1) pan-tilt-zoom 
camera per four (4) tables may be an acceptable alternative procedure to 
satisfy the requirements of this paragraph.
    (2) Operations with three (3) or fewer table games. The surveillance 
system of gaming operations operating three (3) or fewer table games 
shall:
    (i) Comply with the requirements of paragraph (l)(1) of this 
section; or
    (ii) Have one (1) overhead camera at each table.
    (3) Craps. All craps tables shall have two (2) dedicated cross view 
cameras covering both ends of the table.
    (4) Roulette. All roulette areas shall have one (1) overhead 
dedicated camera covering the roulette wheel and shall also have one (1) 
dedicated camera covering the play of the table.
    (5) Big wheel. All big wheel games shall have one (1) dedicated 
camera viewing the wheel.
    (m) Progressive table games. (1) Progressive table games with a 
progressive jackpot of $25,000 or more shall be recorded by dedicated 
cameras that provide coverage of:
    (i) The table surface, sufficient that the card values and card 
suits can be clearly identified;
    (ii) An overall view of the entire table with sufficient clarity to 
identify customers and dealer; and
    (iii) A view of the progressive meter jackpot amount. If several 
tables are linked to the same progressive jackpot meter, only one meter 
need be recorded.
    (2) [Reserved]
    (n) Gaming machines. (1) Except as otherwise provided in paragraphs 
(n)(2) and (n)(3) of this section, gaming machines offering a payout of 
more than $250,000 shall be recorded by a dedicated camera(s) to provide 
coverage of:
    (i) All customers and employees at the gaming machine; and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (2) In-house progressive machine. In-house progressive gaming 
machines offering a base payout amount (jackpot reset amount) of more 
than $100,000 shall be recorded by a dedicated camera(s) to provide 
coverage of:
    (i) All customers and employees at the gaming machine; and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (3) Wide-area progressive machine. Wide-area progressive gaming 
machines offering a base payout amount of $1 million or more and 
monitored by an independent vendor utilizing an on-line progressive 
computer system shall be recorded by a dedicated camera(s) to provide 
coverage of:
    (i) All customers and employees at the gaming machine; and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (4) Notwithstanding paragraph (n)(1) of this section, if the gaming 
machine is a multi-game machine, the Tribal gaming regulatory authority, 
or the gaming operation subject to the approval of the Tribal gaming 
regulatory authority, may develop and implement alternative procedures 
to verify payouts.

[[Page 947]]

    (o) Currency and coin. The surveillance system shall record a 
general overview of all areas where currency or coin may be stored or 
counted.
    (p) Video recording and/or digital record retention. (1) All video 
recordings and/or digital records of coverage provided by the dedicated 
cameras or motion-activated dedicated cameras required by the standards 
in this section shall be retained for a minimum of seven (7) days.
    (2) Recordings involving suspected or confirmed gaming crimes, 
unlawful activity, or detentions by security personnel, must be retained 
for a minimum of thirty (30) days.
    (3) Duly authenticated copies of video recordings and/or digital 
records shall be provided to the Commission upon request.
    (q) Video library log. A video library log, or comparable 
alternative procedure approved by the Tribal gaming regulatory 
authority, shall be maintained to demonstrate compliance with the 
storage, identification, and retention standards required in this 
section.
    (r) Malfunction and repair log. (1) Surveillance personnel shall 
maintain a log or alternative procedure approved by the Tribal gaming 
regulatory authority that documents each malfunction and repair of the 
surveillance system as defined in this section.
    (2) The log shall state the time, date, and nature of each 
malfunction, the efforts expended to repair the malfunction, and the 
date of each effort, the reasons for any delays in repairing the 
malfunction, the date the malfunction is repaired, and where applicable, 
any alternative security measures that were taken.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47107, Aug. 12, 2005]



Sec. 542.30  What is a Tier B gaming operation?

    A Tier B gaming operation is one with gross gaming revenues of more 
than $5 million but not more than $15 million.



Sec. 542.31  What are the minimum internal control standards for drop 
and count for Tier B gaming operations?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Table game drop standards. (1) The setting out of empty table 
game drop boxes and the drop shall be a continuous process.
    (2) At the end of each shift:
    (i) All locked table game drop boxes shall be removed from the 
tables by a person independent of the pit shift being dropped;
    (ii) A separate drop box shall be placed on each table opened at any 
time during each shift or a gaming operation may utilize a single drop 
box with separate openings and compartments for each shift; and
    (iii) Upon removal from the tables, table game drop boxes shall be 
transported directly to the count room or other equivalently secure area 
with comparable controls and locked in a secure manner until the count 
takes place.
    (3) If drop boxes are not placed on all tables, then the pit 
department shall document which tables were open during the shift.
    (4) The transporting of table game drop boxes shall be performed by 
a minimum of two persons, at least one of whom is independent of the pit 
shift being dropped.
    (5) All table game drop boxes shall be posted with a number 
corresponding to a permanent number on the gaming table and marked to 
indicate game, table number, and shift.
    (6) Surveillance shall be notified when the drop is to begin so that 
surveillance may monitor the activities.
    (c) Soft count room personnel. (1) The table game soft count and the 
gaming machine bill acceptor count shall be performed by a minimum of 
two employees.
    (i) The count shall be viewed live, or on video recording and/or 
digital

[[Page 948]]

record, within seven (7) days by an employee independent of the count.
    (ii) [Reserved]
    (2) Count room personnel shall not be allowed to exit or enter the 
count room during the count except for emergencies or scheduled breaks. 
At no time during the count, shall there be fewer than two employees in 
the count room until the drop proceeds have been accepted into cage/
vault accountability. Surveillance shall be notified whenever count room 
personnel exit or enter the count room during the count.
    (3) Count team members shall be rotated on a routine basis such that 
the count team is not consistently the same two persons more than four 
(4) days per week. This standard shall not apply to gaming operations 
that utilize a count team of more than two persons.
    (4) The count team shall be independent of transactions being 
reviewed and counted. The count team shall be independent of the cage/
vault departments, however, a dealer or a cage cashier may be used if 
this person is not allowed to perform the recording function. An 
accounting representative may be used if there is an independent audit 
of all soft count documentation.
    (d) Table game soft count standards. (1) The table game soft count 
shall be performed in a soft count room or other equivalently secure 
area with comparable controls.
    (2) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (3) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (4) The table game drop boxes shall be individually emptied and 
counted in such a manner to prevent the commingling of funds between 
boxes until the count of the box has been recorded.
    (i) The count of each box shall be recorded in ink or other 
permanent form of recordation.
    (ii) A second count shall be performed by an employee on the count 
team who did not perform the initial count.
    (iii) Corrections to information originally recorded by the count 
team on soft count documentation shall be made by drawing a single line 
through the error, writing the correct figure above the original figure, 
and then obtaining the initials of at least two count team members who 
verified the change, unless the count team only has two (2) members in 
which case the initials of only one (1) verifying count team member is 
required.
    (5) If currency counters are utilized and the count room table is 
used only to empty boxes and sort/stack contents, a count team member 
shall be able to observe the loading and unloading of all currency at 
the currency counter, including rejected currency.
    (6) Table game drop boxes, when empty, shall be shown to another 
member of the count team, or to another person who is observing the 
count, or to surveillance, provided the count is monitored in its 
entirety by a person independent of the count.
    (7) Orders for fill/credit (if applicable) shall be matched to the 
fill/credit slips. Fills and credits shall be traced to or recorded on 
the count sheet.
    (8) Pit marker issue and payment slips (if applicable) removed from 
the table game drop boxes shall either be:
    (i) Traced to or recorded on the count sheet by the count team; or
    (ii) Totaled by shift and traced to the totals documented by the 
computerized system. Accounting personnel shall verify the issue/payment 
slip for each table is accurate.
    (9) Foreign currency exchange forms (if applicable) removed from the 
table game drop boxes shall be reviewed for the proper daily exchange 
rate and the conversion amount shall be recomputed by the count team. 
Alternatively, this may be performed by accounting/auditing employees.
    (10) The opening/closing table and marker inventory forms (if 
applicable) shall either be:
    (i) Examined and traced to or recorded on the count sheet; or
    (ii) If a computerized system is used, accounting personnel can 
trace the

[[Page 949]]

opening/closing table and marker inventory forms to the count sheet. 
Discrepancies shall be investigated with the findings documented and 
maintained for inspection.
    (11) The count sheet shall be reconciled to the total drop by a 
count team member who shall not function as the sole recorder.
    (12) All members of the count team shall sign the count document or 
a summary report to attest to their participation in the count.
    (13) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (14) The count sheet, with all supporting documents, shall be 
delivered to the accounting department by a count team member or a 
person independent of the cashiers department. Alternatively, it may be 
adequately secured (e.g., locked container to which only accounting 
personnel can gain access) until retrieved by the accounting department.
    (15) Access to stored, full table game drop boxes shall be 
restricted to authorized members of the drop and count teams.
    (e) Gaming machine bill acceptor drop standards. (1) A minimum of 
two employees shall be involved in the removal of the gaming machine 
drop, at least one of who is independent of the gaming machine 
department.
    (2) All bill acceptor canisters shall be removed only at the time 
previously designated by the gaming operation and reported to the Tribal 
gaming regulatory authority, except for emergency drops.
    (3) Surveillance shall be notified when the drop is to begin so that 
surveillance may monitor the activities.
    (4) The bill acceptor canisters shall be removed by a person 
independent of the gaming machine department then transported directly 
to the count room or other equivalently secure area with comparable 
controls and locked in a secure manner until the count takes place.
    (i) Security shall be provided over the bill acceptor canisters 
removed from the gaming machines and awaiting transport to the count 
room.
    (ii) The transporting of bill acceptor canisters shall be performed 
by a minimum of two persons, at least one of who is independent of the 
gaming machine department.
    (5) All bill acceptor canisters shall be posted with a number 
corresponding to a permanent number on the gaming machine.
    (f) Gaming machine bill acceptor count standards. (1) The gaming 
machine bill acceptor count shall be performed in a soft count room or 
other equivalently secure area with comparable controls.
    (2) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (3) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (4) The bill acceptor canisters shall be individually emptied and 
counted in such a manner to prevent the commingling of funds between 
canisters until the count of the canister has been recorded.
    (i) The count of each canister shall be recorded in ink or other 
permanent form of recordation.
    (ii) Corrections to information originally recorded by the count 
team on soft count documentation shall be made by drawing a single line 
through the error, writing the correct figure above the original figure, 
and then obtaining the initials of at least two count team members who 
verified the change.
    (5) If currency counters are utilized and the count room table is 
used only to empty canisters and sort/stack contents, a count team 
member shall be able to observe the loading and unloading of all 
currency at the currency counter, including rejected currency.
    (6) Canisters, when empty, shall be shown to another member of the 
count

[[Page 950]]

team, to another person who is observing the count, or to surveillance, 
provided that the count is monitored in its entirety by a person 
independent of the count.
    (7) The count sheet shall be reconciled to the total drop by a count 
team member who shall not function as the sole recorder.
    (8) All members of the count team shall sign the count document or a 
summary report to attest to their participation in the count.
    (9) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (10) The count sheet, with all supporting documents, shall be 
delivered to the accounting department by a count team member or a 
person independent of the cashiers department. Alternatively, it may be 
adequately secured (e.g., locked container to which only accounting 
personnel can gain access) until retrieved by the accounting department.
    (11) Access to stored bill acceptor canisters, full or empty, shall 
be restricted to:
    (i) Authorized members of the drop and count teams; and
    (ii) Authorized personnel in an emergency for the resolution of a 
problem.
    (g) Gaming machine coin drop standards. (1) A minimum of two 
employees shall be involved in the removal of the gaming machine drop, 
at least one of who is independent of the gaming machine department.
    (2) All drop buckets shall be removed only at the time previously 
designated by the gaming operation and reported to the Tribal gaming 
regulatory authority, except for emergency drops.
    (3) Surveillance shall be notified when the drop is to begin in 
order that surveillance may monitor the activities.
    (4) Security shall be provided over the buckets removed from the 
gaming machine drop cabinets and awaiting transport to the count room.
    (5) As each machine is opened, the contents shall be tagged with its 
respective machine number if the bucket is not permanently marked with 
the machine number. The contents shall be transported directly to the 
area designated for the counting of such drop proceeds. If more than one 
trip is required to remove the contents of the machines, the filled 
carts of coins shall be securely locked in the room designed for 
counting or in another equivalently secure area with comparable 
controls. There shall be a locked covering on any carts in which the 
drop route includes passage out of doors.
    (i) Alternatively, a smart bucket system that electronically 
identifies and tracks the gaming machine number, and facilitates the 
proper recognition of gaming revenue, shall satisfy the requirements of 
this paragraph.
    (ii) [Reserved]
    (6) Each drop bucket in use shall be:
    (i) Housed in a locked compartment separate from any other 
compartment of the gaming machine and keyed differently than other 
gaming machine compartments; and
    (ii) Identifiable to the gaming machine from which it is removed. If 
the gaming machine is identified with a removable tag that is placed in 
the bucket, the tag shall be placed on top of the bucket when it is 
collected.
    (7) Each gaming machine shall have drop buckets into which coins or 
tokens that are retained by the gaming machine are collected. Drop 
bucket contents shall not be used to make change or pay hand-paid 
payouts.
    (8) The collection procedures may include procedures for dropping 
gaming machines that have trays instead of drop buckets.
    (h) Hard count room personnel. (1) The weigh/count shall be 
performed by a minimum of two employees.
    (i) The count shall be viewed either live, or on video recording 
and/or digital record within seven (7) days by an employee independent 
of the count.
    (ii) [Reserved]
    (2) At no time during the weigh/count shall there be fewer than two 
employees in the count room until the drop proceeds have been accepted 
into cage/vault accountability. Surveillance

[[Page 951]]

shall be notified whenever count room personnel exit or enter the count 
room during the count.
    (i) If the gaming machine count is conducted with a continuous 
mechanical count meter that is not reset during the count and is 
verified in writing by at least two employees at the start and end of 
each denomination count, then one employee may perform the wrap.
    (ii) [Reserved]
    (3) Count team members shall be rotated on a routine basis such that 
the count team is not consistently the same two persons more than four 
(4) days per week. This standard shall not apply to gaming operations 
that utilize a count team of more than two persons.
    (4) The count team shall be independent of transactions being 
reviewed and counted. The count team shall be independent of the cage/
vault departments, unless they are non-supervisory gaming machine 
employees and perform the laborer function only (A non-supervisory 
gaming machine employee is defined as a person below the level of gaming 
machine shift supervisor). A cage cashier may be used if this person is 
not allowed to perform the recording function. An accounting 
representative may be used if there is an independent audit of all count 
documentation.
    (i) Gaming machine coin count and wrap standards. (1) Coins shall 
include tokens.
    (2) The gaming machine coin count and wrap shall be performed in a 
count room or other equivalently secure area with comparable controls.
    (i) Alternatively, an on-the-floor drop system utilizing a mobile 
scale shall satisfy the requirements of this paragraph, subject to the 
following conditions:
    (A) The gaming operation shall utilize and maintain an effective on-
line gaming machine monitoring system, as described in Sec. 
542.13(m)(3);
    (B) Components of the on-the-floor drop system shall include, but 
not be limited to, a weigh scale, a laptop computer through which weigh/
count applications are operated, a security camera available for the 
mobile scale system, and a VCR to be housed within the video compartment 
of the mobile scale. The system may include a mule cart used for mobile 
weigh scale system locomotion.
    (C) The gaming operation must obtain the security camera available 
with the system, and this camera must be added in such a way as to 
eliminate tampering.
    (D) Prior to the drop, the drop/count team shall ensure the scale 
batteries are charged;
    (E) Prior to the drop, a videotape shall be inserted into the VCR 
used to record the drop in conjunction with the security camera system 
and the VCR shall be activated;
    (F) The weigh scale test shall be performed prior to removing the 
unit from the hard count room for the start of the weigh/drop/count;
    (G) Surveillance shall be notified when the weigh/drop/count begins 
and shall be capable of monitoring the entire process;
    (H) An observer independent of the weigh/drop/count teams 
(independent observer) shall remain by the weigh scale at all times and 
shall observe the entire weigh/drop/count process;
    (I) Physical custody of the key(s) needed to access the laptop and 
video compartment shall require the involvement of two persons, one of 
whom is independent of the drop and count team;
    (J) The mule key (if applicable), the laptop and video compartment 
keys, and the remote control for the VCR shall be maintained by a 
department independent of the gaming machine department. The appropriate 
personnel shall sign out these keys;
    (K) A person independent of the weigh/drop/count teams shall be 
required to accompany these keys while they are checked out, and observe 
each time the laptop compartment is opened;
    (L) The laptop access panel shall not be opened outside the hard 
count room, except in instances when the laptop must be rebooted as a 
result of a crash, lock up, or other situation requiring immediate 
corrective action;
    (M) User access to the system shall be limited to those employees 
required to have full or limited access to complete the weigh/drop/
count; and

[[Page 952]]

    (N) When the weigh/drop/count is completed, the independent observer 
shall access the laptop compartment, end the recording session, eject 
the videotape, and deliver the videotape to surveillance.
    (ii) [Reserved]
    (3) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (4) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (5) The following functions shall be performed in the counting of 
the gaming machine drop:
    (i) Recorder function, which involves the recording of the gaming 
machine count; and
    (ii) Count team supervisor function, which involves the control of 
the gaming machine weigh and wrap process. The supervisor shall not 
perform the initial recording of the weigh/count unless a weigh scale 
with a printer is used.
    (6) The gaming machine drop shall be counted, wrapped, and 
reconciled in such a manner to prevent the commingling of gaming machine 
drop coin with coin (for each denomination) from the next gaming machine 
drop until the count of the gaming machine drop has been recorded. If 
the coins are not wrapped immediately after being weighed or counted, 
they shall be secured and not commingled with other coin.
    (i) The amount of the gaming machine drop from each machine shall be 
recorded in ink or other permanent form of recordation on a gaming 
machine count document by the recorder or mechanically printed by the 
weigh scale.
    (ii) Corrections to information originally recorded by the count 
team on gaming machine count documentation shall be made by drawing a 
single line through the error, writing the correct figure above the 
original figure, and then obtaining the initials of at least two count 
team members who verified the change.
    (A) If a weigh scale interface is used, corrections to gaming 
machine count data shall be made using either of the following:
    (1) Drawing a single line through the error on the gaming machine 
document, writing the correct figure above the original figure, and then 
obtaining the initials of at least two count team employees. If this 
procedure is used, an employee independent of the gaming machine 
department and count team shall enter the correct figure into the 
computer system prior to the generation of related gaming machine 
reports; or
    (2) During the count process, correct the error in the computer 
system and enter the passwords of at least two count team employees. If 
this procedure is used, an exception report shall be generated by the 
computer system identifying the gaming machine number, the error, the 
correction, and the count team employees attesting to the correction.
    (B) [Reserved]
    (7) If applicable, the weight shall be converted to dollar amounts 
before the reconciliation of the weigh to the wrap.
    (8) If a coin meter is used, a count team member shall convert the 
coin count for each denomination into dollars and shall enter the 
results on a summary sheet.
    (9) The recorder and at least one other count team member shall sign 
the weigh tape and the gaming machine count document attesting to the 
accuracy of the weigh/count.
    (10) All members of the count team shall sign the count document or 
a summary report to attest to their participation in the count.
    (11) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (12) All gaming machine count and wrap documentation, including any 
applicable computer storage media, shall be delivered to the accounting 
department by a count team member or a

[[Page 953]]

person independent of the cashier's department. Alternatively, it may be 
adequately secured (e.g., locked container to which only accounting 
personnel can gain access) until retrieved by the accounting department.
    (13) If the coins are transported off the property, a second 
(alternative) count procedure shall be performed before the coins leave 
the property. Any variances shall be documented.
    (14) Variances. Large (by denomination, either $1,000 or 2% of the 
drop, whichever is less) or unusual (e.g., zero for weigh/count or 
patterned for all counts) variances between the weigh/count and wrap 
shall be investigated by management personnel independent of the gaming 
machine department, count team, and the cage/vault functions on a timely 
basis. The results of such investigation shall be documented, maintained 
for inspection, and provided to the Tribal gaming regulatory authority 
upon request.
    (j) Security of the coin room inventory during the gaming machine 
coin count and wrap. (1) If the count room serves as a coin room and 
coin room inventory is not secured so as to preclude access by the count 
team, then the following standards shall apply:
    (i) At the commencement of the gaming machine count the following 
requirements shall be met:
    (A) The coin room inventory shall be counted by at least two 
employees, one of whom is a member of the count team and the other is 
independent of the weigh/count and wrap procedures;
    (B) The count in paragraph (j)(1)(i)(A) of this section shall be 
recorded on an appropriate inventory form;
    (ii) Upon completion of the wrap of the gaming machine drop:
    (A) At least two members of the count team (wrap team), 
independently from each other, shall count the ending coin room 
inventory;
    (B) The counts in paragraph (j)(1)(ii)(A) of this section shall be 
recorded on a summary report(s) that evidences the calculation of the 
final wrap by subtracting the beginning inventory from the sum of the 
ending inventory and transfers in and out of the coin room;
    (C) The same count team members shall compare the calculated wrap to 
the weigh/count, recording the comparison and noting any variances on 
the summary report;
    (D) A member of the cage/vault department shall count the ending 
coin room inventory by denomination and shall reconcile it to the 
beginning inventory, wrap, transfers and weigh/count; and
    (E) At the conclusion of the reconciliation, at least two count/wrap 
team members and the verifying employee shall sign the summary report(s) 
attesting to its accuracy.
    (iii) The functions described in paragraph (j)(1)(ii)(A) and (C) of 
this section may be performed by only one count team member. That count 
team member must then sign the summary report, along with the verifying 
employee, as required under paragraph (j)(1)(ii)(E).
    (2) If the count room is segregated from the coin room, or if the 
coin room is used as a count room and the coin room inventory is secured 
to preclude access by the count team, all of the following requirements 
shall be completed, at the conclusion of the count:
    (i) At least two members of the count/wrap team shall count the 
final wrapped gaming machine drop independently from each other;
    (ii) The counts shall be recorded on a summary report;
    (iii) The same count team members (or the accounting department) 
shall compare the final wrap to the weigh/count, recording the 
comparison, and noting any variances on the summary report;
    (iv) A member of the cage/vault department shall count the wrapped 
gaming machine drop by denomination and reconcile it to the weigh/count;
    (v) At the conclusion of the reconciliation, at least two count team 
members and the cage/vault employee shall sign the summary report 
attesting to its accuracy; and
    (vi) The wrapped coins (exclusive of proper transfers) shall be 
transported to the cage, vault or coin vault after the reconciliation of 
the weigh/count to the wrap.
    (k) Transfers during the gaming machine coin count and wrap. (1) 
Transfers may be permitted during the count and

[[Page 954]]

wrap only if permitted under the internal control standards approved by 
the Tribal gaming regulatory authority.
    (2) Each transfer shall be recorded on a separate multi-part form 
with a preprinted or concurrently-printed form number (used solely for 
gaming machine count transfers) that shall be subsequently reconciled by 
the accounting department to ensure the accuracy of the reconciled 
gaming machine drop.
    (3) Each transfer must be counted and signed for by at least two 
members of the count team and by a person independent of the count team 
who is responsible for authorizing the transfer.
    (l) Gaming machine drop key control standards. (1) Gaming machine 
coin drop cabinet keys, including duplicates, shall be maintained by a 
department independent of the gaming machine department.
    (2) The physical custody of the keys needed to access gaming machine 
coin drop cabinets, including duplicates, shall require the involvement 
of two persons, one of whom is independent of the gaming machine 
department.
    (3) Two employees (separate from key custodian) shall be required to 
accompany such keys while checked out and observe each time gaming 
machine drop cabinets are accessed, unless surveillance is notified each 
time keys are checked out and surveillance observes the person 
throughout the period the keys are checked out.
    (m) Table game drop box key control standards. (1) Procedures shall 
be developed and implemented to insure that unauthorized access to empty 
table game drop boxes shall not occur from the time the boxes leave the 
storage racks until they are placed on the tables.
    (2) The involvement of at least two persons independent of the cage 
department shall be required to access stored empty table game drop 
boxes.
    (3) The release keys shall be separately keyed from the contents 
keys.
    (4) At least two count team members are required to be present at 
the time count room and other count keys are issued for the count.
    (5) All duplicate keys shall be maintained in a manner that provides 
the same degree of control as is required for the original keys. Records 
shall be maintained for each key duplicated that indicate the number of 
keys made and destroyed.
    (6) Logs shall be maintained by the custodian of sensitive keys to 
document authorization of personnel accessing keys.
    (n) Table game drop box release keys. (1) The table game drop box 
release keys shall be maintained by a department independent of the pit 
department.
    (2) Only the person(s) authorized to remove table game drop boxes 
from the tables shall be allowed access to the table game drop box 
release keys; however, the count team members may have access to the 
release keys during the soft count in order to reset the table game drop 
boxes.
    (3) Persons authorized to remove the table game drop boxes shall be 
precluded from having simultaneous access to the table game drop box 
contents keys and release keys.
    (4) For situations requiring access to a table game drop box at a 
time other than the scheduled drop, the date, time, and signature of 
employee signing out/in the release key must be documented.
    (o) Bill acceptor canister release keys. (1) The bill acceptor 
canister release keys shall be maintained by a department independent of 
the gaming machine department.
    (2) Only the person(s) authorized to remove bill acceptor canisters 
from the gaming machines shall be allowed access to the release keys.
    (3) Persons authorized to remove the bill acceptor canisters shall 
be precluded from having simultaneous access to the bill acceptor 
canister contents keys and release keys.
    (4) For situations requiring access to a bill acceptor canister at a 
time other than the scheduled drop, the date, time, and signature of 
employee signing out/in the release key must be documented.
    (p) Table game drop box storage rack keys. Persons authorized to 
obtain table game drop box storage rack keys shall be precluded from 
having simultaneous access to table game drop box contents keys with the 
exception of the count team.

[[Page 955]]

    (q) Bill acceptor canister storage rack keys. Persons authorized to 
obtain bill acceptor canister storage rack keys shall be precluded from 
having simultaneous access to bill acceptor canister contents keys with 
the exception of the count team.
    (r) Table game drop box contents keys. (1) The physical custody of 
the keys needed for accessing stored, full table game drop box contents 
shall require the involvement of persons from at least two separate 
departments, with the exception of the count team.
    (2) Access to the table game drop box contents key at other than 
scheduled count times shall require the involvement of at least two 
persons from separate departments, including management. The reason for 
access shall be documented with the signatures of all participants and 
observers.
    (3) Only count team members shall be allowed access to table game 
drop box contents keys during the count process.
    (s) Bill acceptor canister contents keys. (1) The physical custody 
of the keys needed for accessing stored, full bill acceptor canister 
contents shall require involvement of persons from two separate 
departments, with the exception of the count team.
    (2) Access to the bill acceptor canister contents key at other than 
scheduled count times shall require the involvement of at least two 
persons from separate departments, one of whom must be a supervisor. The 
reason for access shall be documented with the signatures of all 
participants and observers.
    (3) Only the count team members shall be allowed access to bill 
acceptor canister contents keys during the count process.
    (t) Gaming machine computerized key security systems. (1) 
Computerized key security systems which restrict access to the gaming 
machine drop and count keys through the use of passwords, keys or other 
means, other than a key custodian, must provide the same degree of 
control as indicated in the aforementioned key control standards; refer 
to paragraphs (l), (o), (q) and (s) of this section. Note: This standard 
does not apply to the system administrator. The system administrator is 
defined in paragraph (t)(2)(i) of this section.
    (2) For computerized key security systems, the following additional 
gaming machine key control procedures apply:
    (i) Management personnel independent of the gaming machine 
department assign and control user access to keys in the computerized 
key security system (i.e., system administrator) to ensure that gaming 
machine drop and count keys are restricted to authorized employees.
    (ii) In the event of an emergency or the key box is inoperable, 
access to the emergency manual key(s) (a.k.a. override key), used to 
access the box containing the gaming machine drop and count keys, 
requires the physical involvement of at least three persons from 
separate departments, including management. The date, time, and reason 
for access, must be documented with the signatures of all participating 
employees signing out/in the emergency manual key(s).
    (iii) The custody of the keys issued pursuant to paragraph 
(t)(2)(ii) of this section, requires the presence of two persons from 
separate departments from the time of their issuance until the time of 
their return.
    (iv) Routine physical maintenance that requires accessing the 
emergency manual key(s) (override key) and does not involve the 
accessing of the gaming machine drop and count keys, only requires the 
presence of two persons from separate departments. The date, time and 
reason for access must be documented with the signatures of all 
participating employees signing out/in the emergency manual key(s).
    (3) For computerized key security systems controlling access to 
gaming machine drop and count keys, accounting/audit personnel, 
independent of the system administrator, will perform the following 
procedures:
    (i) Daily, review the report generated by the computerized key 
security system indicating the transactions performed by the 
individual(s) that adds,

[[Page 956]]

deletes, and changes user's access within the system (i.e., system 
administrator). Determine whether the transactions completed by the 
system administrator provide an adequate control over the access to the 
gaming machine drop and count keys. Also, determine whether any gaming 
machine drop and count key(s) removed or returned to the key cabinet by 
the system administrator was properly authorized.
    (ii) For at least one day each month, review the report generated by 
the computerized key security system indicating all transactions 
performed to determine whether any unusual gaming machine drop and count 
key removals or key returns occurred.
    (iii) At least quarterly, review a sample of users that are assigned 
access to the gaming machine drop and count keys to determine that their 
access to the assigned keys is adequate relative to their job position.
    (iv) All noted improper transactions or unusual occurrences are 
investigated with the results documented.
    (4) Quarterly, an inventory of all count room, drop box release, 
storage rack and contents keys is performed, and reconciled to records 
of keys made, issued, and destroyed. Investigations are performed for 
all keys unaccounted for, with the investigation being documented.
    (u) Table games computerized key security systems. (1) Computerized 
key security systems which restrict access to the table game drop and 
count keys through the use of passwords, keys or other means, other than 
a key custodian, must provide the same degree of control as indicated in 
the aforementioned key control standards, refer to paragraphs (m), (n), 
(p) and (r) of this section. Note: This standard does not apply to the 
system administrator. The system administrator is defined in paragraph 
(u)(2)(ii) of this section.
    (2) For computerized key security systems, the following additional 
table game key control procedures apply:
    (i) Management personnel independent of the table game department 
assign and control user access to keys in the computerized key security 
system (i.e., system administrator) to ensure that table game drop and 
count keys are restricted to authorized employees.
    (ii) In the event of an emergency or the key box is inoperable, 
access to the emergency manual key(s) (a.k.a. override key), used to 
access the box containing the table game drop and count keys, requires 
the physical involvement of at least three persons from separate 
departments, including management. The date, time, and reason for 
access, must be documented with the signatures of all participating 
employees signing out/in the emergency manual key(s).
    (iii) The custody of the keys issued pursuant to paragraph 
(u)(2)(ii) of this section, requires the presence of two persons from 
separate departments from the time of their issuance until the time of 
their return.
    (iv) Routine physical maintenance that requires accessing the 
emergency manual key(s) (override key) and does not involve the 
accessing of the table games drop and count keys, only requires the 
presence of two persons from separate departments. The date, time and 
reason for access must be documented with the signatures of all 
participating employees signing out/in the emergency manual key(s).
    (3) For computerized key security systems controlling access to 
table games drop and count keys, accounting/audit personnel, independent 
of the system administrator, will perform the following procedures:
    (i) Daily, review the report generated by the computerized key 
security system indicating the transactions performed by the 
individual(s) that adds, deletes, and changes user's access within the 
system (i.e., system administrator). Determine whether the transactions 
completed by the system administrator provide an adequate control over 
the access to the table games drop and count keys. Also, determine 
whether any table games drop and count key(s) removed or returned to the 
key cabinet by the system administrator was properly authorized.
    (ii) For at least one day each month, review the report generated by 
the computerized key security system indicating all transactions 
performed to determine whether any unusual table

[[Page 957]]

games drop and count key removals or key returns occurred.
    (iii) At least quarterly, review a sample of users that are assigned 
access to the table games drop and count keys to determine that their 
access to the assigned keys is adequate relative to their job position.
    (iv) All noted improper transactions or unusual occurrences are 
investigated with the results documented.
    (4) Quarterly, an inventory of all count room, table game drop box 
release, storage rack and contents keys is performed, and reconciled to 
records of keys made, issued, and destroyed. Investigations are 
performed for all keys unaccounted for, with the investigations being 
documented.
    (v) Emergency drop procedures. Emergency drop procedures shall be 
developed by the Tribal gaming regulatory authority, or the gaming 
operation as approved by the Tribal gaming regulatory authority.
    (w) Equipment standards for gaming machine count. (1) A weigh scale 
calibration module shall be secured so as to prevent unauthorized access 
(e.g., prenumbered seal, lock and key, etc.).
    (2) A person independent of the cage, vault, gaming machine, and 
count team functions shall be required to be present whenever the 
calibration module is accessed. Such access shall be documented and 
maintained.
    (3) If a weigh scale interface is used, it shall be adequately 
restricted so as to prevent unauthorized access (passwords, keys, etc.).
    (4) If the weigh scale has a zero adjustment mechanism, it shall be 
physically limited to minor adjustments (e.g., weight of a bucket) or 
physically situated such that any unnecessary adjustments to it during 
the weigh process would be observed by other count team members.
    (5) The weigh scale and weigh scale interface (if applicable) shall 
be tested by a person or persons independent of the cage, vault, and 
gaming machine departments and count team at least quarterly. At least 
annually, this test shall be performed by internal audit in accordance 
with the internal audit standards. The result of these tests shall be 
documented and signed by the person or persons performing the test.
    (6) Prior to the gaming machine count, at least two employees shall 
verify the accuracy of the weigh scale with varying weights or with 
varying amounts of previously counted coin for each denomination to 
ensure the scale is properly calibrated (varying weights/coin from drop 
to drop is acceptable).
    (7) If a mechanical coin counter is used (instead of a weigh scale), 
the Tribal gaming regulatory authority, or the gaming operation as 
approved by the Tribal gaming regulatory authority, shall establish and 
the gaming operation shall comply with procedures that are equivalent to 
those described in paragraphs (u)(4), (u)(5), and (u)(6) of this 
section.
    (8) If a coin meter count machine is used, the count team member 
shall record the machine number denomination and number of coins in ink 
on a source document, unless the meter machine automatically records 
such information.
    (i) A count team member shall test the coin meter count machine 
before the actual count to ascertain if the metering device is 
functioning properly with a predetermined number of coins for each 
denomination.
    (ii) [Reserved]

[67 FR 43400, June 27, 2002, as amended at 70 FR 23024, May 4, 2005; 70 
FR 47107, Aug. 12, 2005]



Sec. 542.32  What are the minimum internal control standards for 
internal audit for Tier B gaming operations?

    (a) Internal audit personnel. (1) For Tier B gaming operations, a 
separate internal audit department must be maintained. Alternatively, 
designating personnel (who are independent with respect to the 
departments/procedures being examined) to perform internal audit work 
satisfies the requirements of this paragraph.
    (2) The internal audit personnel shall report directly to the Tribe, 
Tribal gaming regulatory authority, audit committee, or other entity 
designated by the Tribe in accordance with the definition of internal 
audit in Sec. 542.2.
    (b) Audits. (1) Internal audit personnel shall perform audits of all 
major gaming areas of the gaming operation. The following shall be 
reviewed at least annually:

[[Page 958]]

    (i) Bingo, including but not limited to, bingo card control, payout 
procedures, and cash reconciliation process;
    (ii) Pull tabs, including but not limited to, statistical records, 
winner verification, perpetual inventory, and accountability of sales 
versus inventory;
    (iii) Card games, including but not limited to, card games 
operation, cash exchange procedures, shill transactions, and count 
procedures;
    (iv) Keno, including but not limited to, game write and payout 
procedures, sensitive key location and control, and a review of keno 
auditing procedures;
    (v) Pari-mutual wagering, including write and payout procedures, and 
pari-mutual auditing procedures;
    (vi) Table games, including but not limited to, fill and credit 
procedures, pit credit play procedures, rim credit procedures, soft 
drop/count procedures and the subsequent transfer of funds, unannounced 
testing of count room currency counters and/or currency interface, 
location and control over sensitive keys, the tracing of source 
documents to summarized documentation and accounting records, and 
reconciliation to restricted copies;
    (vii) Gaming machines, including but not limited to, jackpot payout 
and gaming machine fill procedures, gaming machine drop/count and bill 
acceptor drop/count and subsequent transfer of funds, unannounced 
testing of weigh scale and weigh scale interface, unannounced testing of 
count room currency counters and/or currency interface, gaming machine 
drop cabinet access, tracing of source documents to summarized 
documentation and accounting records, reconciliation to restricted 
copies, location and control over sensitive keys, compliance with EPROM 
duplication procedures, and compliance with MICS procedures for gaming 
machines that accept currency or coin(s) and issue cash-out tickets or 
gaming machines that do not accept currency or coin(s) and do not return 
currency or coin(s);
    (viii) Cage and credit procedures including all cage, credit, and 
collection procedures, and the reconciliation of trial balances to 
physical instruments on a sample basis. Cage accountability shall be 
reconciled to the general ledger;
    (ix) Information technology functions, including review for 
compliance with information technology standards;
    (x) Complimentary service or item, including but not limited to, 
procedures whereby complimentary service items are issued, authorized, 
and redeemed; and
    (xi) Any other internal audits as required by the Tribe, Tribal 
gaming regulatory authority, audit committee, or other entity designated 
by the Tribe.
    (2) In addition to the observation and examinations performed under 
paragraph (b)(1) of this section, follow-up observations and 
examinations shall be performed to verify that corrective action has 
been taken regarding all instances of noncompliance cited by internal 
audit, the independent accountant, and/or the Commission. The 
verification shall be performed within six (6) months following the date 
of notification.
    (3) Whenever possible, internal audit observations shall be 
performed on an unannounced basis (i.e., without the employees being 
forewarned that their activities will be observed). Additionally, if the 
independent accountant also performs the internal audit function, the 
accountant shall perform separate observations of the table games/gaming 
machine drops and counts to satisfy the internal audit observation 
requirements and independent accountant tests of controls as required by 
the American Institute of Certified Public Accountants guide.
    (c) Documentation. (1) Documentation (e.g., checklists, programs, 
reports, etc.) shall be prepared to evidence all internal audit work 
performed as it relates to the requirements in this section, including 
all instances of noncompliance.
    (2) The internal audit department shall operate with audit programs, 
which, at a minimum, address the MICS. Additionally, the department 
shall properly document the work performed, the conclusions reached, and 
the resolution of all exceptions. Institute of Internal Auditors 
standards are recommended but not required.

[[Page 959]]

    (d) Reports. (1) Reports documenting audits performed shall be 
maintained and made available to the Commission upon request.
    (2) Such audit reports shall include the following information:
    (i) Audit objectives;
    (ii) Audit procedures and scope;
    (iii) Findings and conclusions;
    (iv) Recommendations, if applicable; and
    (v) Management's response.
    (e) Material exceptions. All material exceptions resulting from 
internal audit work shall be investigated and resolved with the results 
of such being documented and retained for five years.
    (f) Role of management. (1) Internal audit findings shall be 
reported to management.
    (2) Management shall be required to respond to internal audit 
findings stating corrective measures to be taken to avoid recurrence of 
the audit exception.
    (3) Such management responses shall be included in the internal 
audit report that will be delivered to management, the Tribe, Tribal 
gaming regulatory authority, audit committee, or other entity designated 
by the Tribe.
    (g) Internal Audit Guidelines. In connection with the internal audit 
testing pursuant to paragraph (b)(1) of this section, the Commission 
shall develop recommended Internal Audit Guidelines, which shall be 
available upon request.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47107, Aug. 12, 2005]



Sec. 542.33  What are the minimum internal control standards for 
surveillance for Tier B gaming operations?

    (a) The surveillance system shall be maintained and operated from a 
staffed surveillance room and shall provide surveillance over gaming 
areas.
    (b) The entrance to the surveillance room shall be located so that 
it is not readily accessible by either gaming operation employees who 
work primarily on the casino floor, or the general public.
    (c) Access to the surveillance room shall be limited to surveillance 
personnel, designated employees, and other persons authorized in 
accordance with the surveillance department policy. Such policy shall be 
approved by the Tribal gaming regulatory authority. The surveillance 
department shall maintain a sign-in log of other authorized persons 
entering the surveillance room.
    (d) Surveillance room equipment shall have total override capability 
over all other satellite surveillance equipment located outside the 
surveillance room.
    (e) The surveillance system shall include date and time generators 
that possess the capability to display the date and time of recorded 
events on video and/or digital recordings. The displayed date and time 
shall not significantly obstruct the recorded view.
    (f) The surveillance department shall strive to ensure staff is 
trained in the use of the equipment, knowledge of the games, and house 
rules.
    (g) Each camera required by the standards in this section shall be 
installed in a manner that will prevent it from being readily 
obstructed, tampered with, or disabled by customers or employees.
    (h) Each camera required by the standards in this section shall 
possess the capability of having its picture displayed on a monitor and 
recorded. The surveillance system shall include sufficient numbers of 
monitors and recorders to simultaneously display and record multiple 
gaming and count room activities, and record the views of all dedicated 
cameras and motion activated dedicated cameras.
    (i) Reasonable effort shall be made to repair each malfunction of 
surveillance system equipment required by the standards in this section 
within seventy-two (72) hours after the malfunction is discovered. The 
Tribal gaming regulatory authority shall be notified of any camera(s) 
that has malfunctioned for more than twenty-four (24) hours.
    (1) In the event of a dedicated camera malfunction, the gaming 
operation and/or surveillance department shall immediately provide 
alternative camera coverage or other security measures, such as 
additional supervisory or security personnel, to protect the subject 
activity.
    (2) [Reserved]
    (j) Bingo. (1) The surveillance system shall possess the capability 
to monitor

[[Page 960]]

the bingo ball drawing device or random number generator, which shall be 
recorded during the course of the draw by a dedicated camera with 
sufficient clarity to identify the balls drawn or numbers selected.
    (2) The surveillance system shall monitor and record the game board 
and the activities of the employees responsible for drawing, calling, 
and entering the balls drawn or numbers selected.
    (k) Card games. The surveillance system shall monitor and record 
general activities in each card room with sufficient clarity to identify 
the employees performing the different functions.
    (l) Progressive card games. (1) Progressive card games with a 
progressive jackpot of $25,000 or more shall be monitored and recorded 
by dedicated cameras that provide coverage of:
    (i) The table surface, sufficient that the card values and card 
suits can be clearly identified;
    (ii) An overall view of the entire table with sufficient clarity to 
identify customers and dealer; and
    (iii) A view of the posted jackpot amount.
    (2) [Reserved]
    (m) Keno. (1) The surveillance system shall possess the capability 
to monitor the keno ball-drawing device or random number generator, 
which shall be recorded during the course of the draw by a dedicated 
camera with sufficient clarity to identify the balls drawn or numbers 
selected.
    (2) The surveillance system shall monitor and record general 
activities in each keno game area with sufficient clarity to identify 
the employees performing the different functions.
    (n) Pari-mutuel. The surveillance system shall monitor and record 
general activities in the pari-mutuel area, to include the ticket writer 
and cashier areas, with sufficient clarity to identify the employees 
performing the different functions.
    (o) Table games--(1) Operations with four (4) or more table games. 
Except as otherwise provided in paragraphs (o)(3), (o)(4), and (o)(5) of 
this section, the surveillance system of gaming operations operating 
four (4) or more table games shall provide at a minimum one (1) pan-
tilt-zoom camera per two (2) tables and surveillance must be capable of 
taping:
    (i) With sufficient clarity to identify customers and dealers; and
    (ii) With sufficient coverage and clarity to simultaneously view the 
table bank and determine the configuration of wagers, card values, and 
game outcome.
    (iii) One (1) dedicated camera per table and one (1) pan-tilt-zoom 
camera per four (4) tables may be an acceptable alternative procedure to 
satisfy the requirements of this paragraph.
    (2) Operations with three (3) or fewer table games. The surveillance 
system of gaming operations operating three (3) or fewer table games 
shall:
    (i) Comply with the requirements of paragraph (o)(1) of this 
section; or
    (ii) Have one (1) overhead camera at each table.
    (3) Craps. All craps tables shall have two (2) dedicated cross view 
cameras covering both ends of the table.
    (4) Roulette. All roulette areas shall have one (1) overhead 
dedicated camera covering the roulette wheel and shall also have one (1) 
dedicated camera covering the play of the table.
    (5) Big wheel. All big wheel games shall have one (1) dedicated 
camera viewing the wheel.
    (p) Progressive table games. (1) Progressive table games with a 
progressive jackpot of $25,000 or more shall be monitored and recorded 
by dedicated cameras that provide coverage of:
    (i) The table surface, sufficient that the card values and card 
suits can be clearly identified;
    (ii) An overall view of the entire table with sufficient clarity to 
identify customers and dealer; and
    (iii) A view of the progressive meter jackpot amount. If several 
tables are linked to the same progressive jackpot meter, only one meter 
need be recorded.
    (2) [Reserved]
    (q) Gaming machines. (1) Except as otherwise provided in paragraphs 
(q)(2) and (q)(3) of this section, gaming machines offering a payout of 
more than $250,000 shall be monitored and recorded by a dedicated 
camera(s) to provide coverage of:
    (i) All customers and employees at the gaming machine, and

[[Page 961]]

    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (2) In-house progressive machine. In-house progressive gaming 
machines offering a base payout amount (jackpot reset amount) of more 
than $100,000 shall be monitored and recorded by a dedicated camera(s) 
to provide coverage of:
    (i) All customers and employees at the gaming machine; and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (3) Wide-area progressive machine. Wide-area progressive gaming 
machines offering a base payout amount of $1 million or more and 
monitored by an independent vendor utilizing an on-line progressive 
computer system shall be recorded by a dedicated camera(s) to provide 
coverage of:
    (i) All customers and employees at the gaming machine; and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (4) Notwithstanding paragraph (q)(1) of this section, if the gaming 
machine is a multi-game machine, the Tribal gaming regulatory authority, 
or the gaming operation subject to the approval of the Tribal gaming 
regulatory authority, may develop and implement alternative procedures 
to verify payouts.
    (r) Cage and vault. (1) The surveillance system shall monitor and 
record a general overview of activities occurring in each cage and vault 
area with sufficient clarity to identify employees within the cage and 
customers and employees at the counter areas.
    (2) Each cashier station shall be equipped with one (1) dedicated 
overhead camera covering the transaction area.
    (3) The surveillance system shall provide an overview of cash 
transactions. This overview should include the customer, the employee, 
and the surrounding area.
    (s) Fills and credits. (1) The cage or vault area in which fills and 
credits are transacted shall be monitored and recorded by a dedicated 
camera or motion activated dedicated camera that provides coverage with 
sufficient clarity to identify the chip values and the amounts on the 
fill and credit slips.
    (2) Controls provided by a computerized fill and credit system may 
be deemed an adequate alternative to viewing the fill and credit slips.
    (t) Currency and coin. (1) The surveillance system shall monitor and 
record with sufficient clarity all areas where currency or coin may be 
stored or counted.
    (2) The surveillance system shall provide for:
    (i) Coverage of scales shall be sufficiently clear to view any 
attempted manipulation of the recorded data.
    (ii) Monitoring and recording of the table game drop box storage 
rack or area by either a dedicated camera or a motion-detector activated 
camera.
    (iii) Monitoring and recording of all areas where coin may be stored 
or counted, including the hard count room, all doors to the hard count 
room, all scales and wrapping machines, and all areas where uncounted 
coin may be stored during the drop and count process.
    (iv) Monitoring and recording of soft count room, including all 
doors to the room, all table game drop boxes, safes, and counting 
surfaces, and all count team personnel. The counting surface area must 
be continuously monitored and recorded by a dedicated camera during the 
soft count.
    (v) Monitoring and recording of all areas where currency is sorted, 
stacked, counted, verified, or stored during the soft count process.
    (u) Change booths. The surveillance system shall monitor and record 
a general overview of the activities occurring in each gaming machine 
change booth.
    (v) Video recording and/or digital record retention. (1) All video 
recordings and/or digital records of coverage provided by the dedicated 
cameras or motion-activated dedicated cameras required by the standards 
in this section shall be retained for a minimum of seven (7) days.
    (2) Recordings involving suspected or confirmed gaming crimes, 
unlawful activity, or detentions by security personnel, must be retained 
for a minimum of thirty (30) days.

[[Page 962]]

    (3) Duly authenticated copies of video recordings and/or digital 
records shall be provided to the Commission upon request.
    (w) Video library log. A video library log, or comparable 
alternative procedure approved by the Tribal gaming regulatory 
authority, shall be maintained to demonstrate compliance with the 
storage, identification, and retention standards required in this 
section.
    (x) Malfunction and repair log. (1) Surveillance personnel shall 
maintain a log or alternative procedure approved by the Tribal gaming 
regulatory authority that documents each malfunction and repair of the 
surveillance system as defined in this section.
    (2) The log shall state the time, date, and nature of each 
malfunction, the efforts expended to repair the malfunction, and the 
date of each effort, the reasons for any delays in repairing the 
malfunction, the date the malfunction is repaired, and where applicable, 
any alternative security measures that were taken.
    (y) Surveillance log. (1) Surveillance personnel shall maintain a 
log of all surveillance activities.
    (2) Such log shall be maintained by surveillance room personnel and 
shall be stored securely within the surveillance department.
    (3) At a minimum, the following information shall be recorded in a 
surveillance log:
    (i) Date;
    (ii) Time commenced and terminated;
    (iii) Activity observed or performed; and
    (iv) The name or license credential number of each person who 
initiates, performs, or supervises the surveillance.
    (4) Surveillance personnel shall also record a summary of the 
results of the surveillance of any suspicious activity. This summary may 
be maintained in a separate log.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47107, Aug. 12, 2005]



Sec. 542.40  What is a Tier C gaming operation?

    A Tier C gaming operation is one with annual gross gaming revenues 
of more than $15 million.



Sec. 542.41  What are the minimum internal control standards for drop 
and count for Tier C gaming operations?

    (a) Computer applications. For any computer applications utilized, 
alternate documentation and/or procedures that provide at least the 
level of control described by the standards in this section, as approved 
by the Tribal gaming regulatory authority, will be acceptable.
    (b) Table game drop standards. (1) The setting out of empty table 
game drop boxes and the drop shall be a continuous process.
    (2) At the end of each shift:
    (i) All locked table game drop boxes shall be removed from the 
tables by a person independent of the pit shift being dropped;
    (ii) A separate drop box shall be placed on each table opened at any 
time during each shift or a gaming operation may utilize a single drop 
box with separate openings and compartments for each shift; and
    (iii) Upon removal from the tables, table game drop boxes shall be 
transported directly to the count room or other equivalently secure area 
with comparable controls and locked in a secure manner until the count 
takes place.
    (3) If drop boxes are not placed on all tables, then the pit 
department shall document which tables were open during the shift.
    (4) The transporting of table game drop boxes shall be performed by 
a minimum of two persons, at least one of whom is independent of the pit 
shift being dropped.
    (5) All table game drop boxes shall be posted with a number 
corresponding to a permanent number on the gaming table and marked to 
indicate game, table number, and shift.
    (6) Surveillance shall be notified when the drop is to begin so that 
surveillance may monitor the activities.
    (c) Soft count room personnel. (1) The table game soft count and the 
gaming machine bill acceptor count shall be performed by a minimum of 
three employees.
    (2) Count room personnel shall not be allowed to exit or enter the 
count room

[[Page 963]]

during the count except for emergencies or scheduled breaks. At no time 
during the count, shall there be fewer than three employees in the count 
room until the drop proceeds have been accepted into cage/vault 
accountability. Surveillance shall be notified whenever count room 
personnel exit or enter the count room during the count.
    (3) Count team members shall be rotated on a routine basis such that 
the count team is not consistently the same three persons more than four 
(4) days per week. This standard shall not apply to gaming operations 
that utilize a count team of more than three persons.
    (4) The count team shall be independent of transactions being 
reviewed and counted. The count team shall be independent of the cage/
vault departments, however, an accounting representative may be used if 
there is an independent audit of all soft count documentation.
    (d) Table game soft count standards. (1) The table game soft count 
shall be performed in a soft count room or other equivalently secure 
area with comparable controls.
    (2) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (3) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (4) The table game drop boxes shall be individually emptied and 
counted in such a manner to prevent the commingling of funds between 
boxes until the count of the box has been recorded.
    (i) The count of each box shall be recorded in ink or other 
permanent form of recordation.
    (ii) A second count shall be performed by an employee on the count 
team who did not perform the initial count.
    (iii) Corrections to information originally recorded by the count 
team on soft count documentation shall be made by drawing a single line 
through the error, writing the correct figure above the original figure, 
and then obtaining the initials of at least two count team members who 
verified the change.
    (5) If currency counters are utilized and the count room table is 
used only to empty boxes and sort/stack contents, a count team member 
shall be able to observe the loading and unloading of all currency at 
the currency counter, including rejected currency.
    (6) Table game drop boxes, when empty, shall be shown to another 
member of the count team, or to another person who is observing the 
count, or to surveillance, provided the count is monitored in its 
entirety by a person independent of the count.
    (7) Orders for fill/credit (if applicable) shall be matched to the 
fill/credit slips. Fills and credits shall be traced to or recorded on 
the count sheet.
    (8) Pit marker issue and payment slips (if applicable) removed from 
the table game drop boxes shall either be:
    (i) Traced to or recorded on the count sheet by the count team; or
    (ii) Totaled by shift and traced to the totals documented by the 
computerized system. Accounting personnel shall verify the issue/payment 
slip for each table is accurate.
    (9) Foreign currency exchange forms (if applicable) removed from the 
table game drop boxes shall be reviewed for the proper daily exchange 
rate and the conversion amount shall be recomputed by the count team. 
Alternatively, this may be performed by accounting/auditing employees.
    (10) The opening/closing table and marker inventory forms (if 
applicable) shall either be:
    (i) Examined and traced to or recorded on the count sheet; or
    (ii) If a computerized system is used, accounting personnel can 
trace the opening/closing table and marker inventory forms to the count 
sheet. Discrepancies shall be investigated with the findings documented 
and maintained for inspection.
    (11) The count sheet shall be reconciled to the total drop by a 
count team member who shall not function as the sole recorder.
    (12) All members of the count team shall sign the count document or 
a

[[Page 964]]

summary report to attest to their participation in the count.
    (13) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (14) The count sheet, with all supporting documents, shall be 
delivered to the accounting department by a count team member or a 
person independent of the cashiers department. Alternatively, it may be 
adequately secured (e.g., locked container to which only accounting 
personnel can gain access) until retrieved by the accounting department.
    (15) Access to stored, full table game drop boxes shall be 
restricted to authorized members of the drop and count teams.
    (e) Gaming machine bill acceptor drop standards. (1) A minimum of 
three employees shall be involved in the removal of the gaming machine 
drop, at least one of who is independent of the gaming machine 
department.
    (2) All bill acceptor canisters shall be removed only at the time 
previously designated by the gaming operation and reported to the Tribal 
gaming regulatory authority, except for emergency drops.
    (3) Surveillance shall be notified when the drop is to begin so that 
surveillance may monitor the activities.
    (4) The bill acceptor canisters shall be removed by a person 
independent of the gaming machine department then transported directly 
to the count room or other equivalently secure area with comparable 
controls and locked in a secure manner until the count takes place.
    (i) Security shall be provided over the bill acceptor canisters 
removed from the gaming machines and awaiting transport to the count 
room.
    (ii) The transporting of bill acceptor canisters shall be performed 
by a minimum of two persons, at least one of who is independent of the 
gaming machine department.
    (5) All bill acceptor canisters shall be posted with a number 
corresponding to a permanent number on the gaming machine.
    (f) Gaming machine bill acceptor count standards. (1) The gaming 
machine bill acceptor count shall be performed in a soft count room or 
other equivalently secure area with comparable controls.
    (2) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (3) If counts from various revenue centers occur simultaneously in 
the count room, procedures shall be in effect that prevent the 
commingling of funds from different revenue centers.
    (4) The bill acceptor canisters shall be individually emptied and 
counted in such a manner to prevent the commingling of funds between 
canisters until the count of the canister has been recorded.
    (i) The count of each canister shall be recorded in ink or other 
permanent form of recordation.
    (ii) Corrections to information originally recorded by the count 
team on soft count documentation shall be made by drawing a single line 
through the error, writing the correct figure above the original figure, 
and then obtaining the initials of at least two count team members who 
verified the change.
    (5) If currency counters are utilized and the count room table is 
used only to empty canisters and sort/stack contents, a count team 
member shall be able to observe the loading and unloading of all 
currency at the currency counter, including rejected currency.
    (6) Canisters, when empty, shall be shown to another member of the 
count team, or to another person who is observing the count, or to 
surveillance, provided that the count is monitored in its entirety by a 
person independent of the count.
    (7) The count sheet shall be reconciled to the total drop by a count 
team member who shall not function as the sole recorder.
    (8) All members of the count team shall sign the count document or a

[[Page 965]]

summary report to attest to their participation in the count.
    (9) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (10) The count sheet, with all supporting documents, shall be 
delivered to the accounting department by a count team member or a 
person independent of the cashiers department. Alternatively, it may be 
adequately secured (e.g., locked container to which only accounting 
personnel can gain access) until retrieved by the accounting department.
    (11) Access to stored bill acceptor canisters, full or empty, shall 
be restricted to:
    (i) Authorized members of the drop and count teams; and
    (ii) Authorized personnel in an emergency for the resolution of a 
problem.
    (g) Gaming machine coin drop standards. (1) A minimum of three 
employees shall be involved in the removal of the gaming machine drop, 
at least one of who is independent of the gaming machine department.
    (2) All drop buckets shall be removed only at the time previously 
designated by the gaming operation and reported to the Tribal gaming 
regulatory authority, except for emergency drops.
    (3) Surveillance shall be notified when the drop is to begin in 
order that surveillance may monitor the activities.
    (4) Security shall be provided over the buckets removed from the 
gaming machine drop cabinets and awaiting transport to the count room.
    (5) As each machine is opened, the contents shall be tagged with its 
respective machine number if the bucket is not permanently marked with 
the machine number. The contents shall be transported directly to the 
area designated for the counting of such drop proceeds. If more than one 
trip is required to remove the contents of the machines, the filled 
carts of coins shall be securely locked in the room designed for 
counting or in another equivalently secure area with comparable 
controls. There shall be a locked covering on any carts in which the 
drop route includes passage out of doors.
    (i) Alternatively, a smart bucket system that electronically 
identifies and tracks the gaming machine number, and facilitates the 
proper recognition of gaming revenue, shall satisfy the requirements of 
this paragraph.
    (ii) [Reserved]
    (6) Each drop bucket in use shall be:
    (i) Housed in a locked compartment separate from any other 
compartment of the gaming machine and keyed differently than other 
gaming machine compartments; and
    (ii) Identifiable to the gaming machine from which it is removed. If 
the gaming machine is identified with a removable tag that is placed in 
the bucket, the tag shall be placed on top of the bucket when it is 
collected.
    (7) Each gaming machine shall have drop buckets into which coins or 
tokens that are retained by the gaming machine are collected. Drop 
bucket contents shall not be used to make change or pay hand-paid 
payouts.
    (8) The collection procedures may include procedures for dropping 
gaming machines that have trays instead of drop buckets.
    (h) Hard count room personnel. (1) The weigh/count shall be 
performed by a minimum of three employees.
    (2) At no time during the weigh/count shall there be fewer than 
three employees in the count room until the drop proceeds have been 
accepted into cage/vault accountability. Surveillance shall be notified 
whenever count room personnel exit or enter the count room during the 
count.
    (i) If the gaming machine count is conducted with a continuous 
mechanical count meter that is not reset during the count and is 
verified in writing by at least three employees at the start and end of 
each denomination count, then one employee may perform the wrap.
    (ii) [Reserved]
    (3) Count team members shall be rotated on a routine basis such that 
the count team is not consistently the same three persons more than four 
(4)

[[Page 966]]

days per week. This standard shall not apply to gaming operations that 
utilize a count team of more than three persons.
    (4) The count team shall be independent of transactions being 
reviewed and counted. The count team shall be independent of the cage/
vault departments, unless they are non-supervisory gaming machine 
employees and perform the laborer function only (A non-supervisory 
gaming machine employee is defined as a person below the level of gaming 
machine shift supervisor). A cage cashier may be used if this person is 
not allowed to perform the recording function. An accounting 
representative may be used if there is an independent audit of all count 
documentation.
    (i) Gaming machine coin count and wrap standards. (1) Coins shall 
include tokens.
    (2) The gaming machine coin count and wrap shall be performed in a 
count room or other equivalently secure area with comparable controls.
    (i) Alternatively, an on-the-floor drop system utilizing a mobile 
scale shall satisfy the requirements of this paragraph, subject to the 
following conditions:
    (A) The gaming operation shall utilize and maintain an effective on-
line gaming machine monitoring system, as described in Sec. 
542.13(m)(3);
    (B) Components of the on-the-floor drop system shall include, but 
not be limited to, a weigh scale, a laptop computer through which weigh/
count applications are operated, a security camera available for the 
mobile scale system, and a VCR to be housed within the video compartment 
of the mobile scale. The system may include a mule cart used for mobile 
weigh scale system locomotion.
    (C) The gaming operation must obtain the security camera available 
with the system, and this camera must be added in such a way as to 
eliminate tampering.
    (D) Prior to the drop, the drop/count team shall ensure the scale 
batteries are charged;
    (E) Prior to the drop, a videotape shall be inserted into the VCR 
used to record the drop in conjunction with the security camera system 
and the VCR shall be activated;
    (F) The weigh scale test shall be performed prior to removing the 
unit from the hard count room for the start of the weigh/drop/count;
    (G) Surveillance shall be notified when the weigh/drop/count begins 
and shall be capable of monitoring the entire process;
    (H) An observer independent of the weigh/drop/count teams 
(independent observer) shall remain by the weigh scale at all times and 
shall observe the entire weigh/drop/count process;
    (I) Physical custody of the key(s) needed to access the laptop and 
video compartment shall require the involvement of two persons, one of 
whom is independent of the drop and count team;
    (J) The mule key (if applicable), the laptop and video compartment 
keys, and the remote control for the VCR shall be maintained by a 
department independent of the gaming machine department. The appropriate 
personnel shall sign out these keys;
    (K) A person independent of the weigh/drop/count teams shall be 
required to accompany these keys while they are checked out, and observe 
each time the laptop compartment is opened;
    (L) The laptop access panel shall not be opened outside the hard 
count room, except in instances when the laptop must be rebooted as a 
result of a crash, lock up, or other situation requiring immediate 
corrective action;
    (M) User access to the system shall be limited to those employees 
required to have full or limited access to complete the weigh/drop/
count; and
    (N) When the weigh/drop/count is completed, the independent observer 
shall access the laptop compartment, end the recording session, eject 
the videotape, and deliver the videotape to surveillance.
    (ii) [Reserved]
    (3) Access to the count room during the count shall be restricted to 
members of the drop and count teams, with the exception of authorized 
observers, supervisors for resolution of problems, and authorized 
maintenance personnel.
    (4) If counts from various revenue centers occur simultaneously in 
the

[[Page 967]]

count room, procedures shall be in effect that prevent the commingling 
of funds from different revenue centers.
    (5) The following functions shall be performed in the counting of 
the gaming machine drop:
    (i) Recorder function, which involves the recording of the gaming 
machine count; and
    (ii) Count team supervisor function, which involves the control of 
the gaming machine weigh and wrap process. The supervisor shall not 
perform the initial recording of the weigh/count unless a weigh scale 
with a printer is used.
    (6) The gaming machine drop shall be counted, wrapped, and 
reconciled in such a manner to prevent the commingling of gaming machine 
drop coin with coin (for each denomination) from the next gaming machine 
drop until the count of the gaming machine drop has been recorded. If 
the coins are not wrapped immediately after being weighed or counted, 
they shall be secured and not commingled with other coin.
    (i) The amount of the gaming machine drop from each machine shall be 
recorded in ink or other permanent form of recordation on a gaming 
machine count document by the recorder or mechanically printed by the 
weigh scale.
    (ii) Corrections to information originally recorded by the count 
team on gaming machine count documentation shall be made by drawing a 
single line through the error, writing the correct figure above the 
original figure, and then obtaining the initials of at least two count 
team members who verified the change.
    (A) If a weigh scale interface is used, corrections to gaming 
machine count data shall be made using either of the following:
    (1) Drawing a single line through the error on the gaming machine 
document, writing the correct figure above the original figure, and then 
obtaining the initials of at least two count team employees. If this 
procedure is used, an employee independent of the gaming machine 
department and count team shall enter the correct figure into the 
computer system prior to the generation of related gaming machine 
reports; or
    (2) During the count process, correct the error in the computer 
system and enter the passwords of at least two count team employees. If 
this procedure is used, an exception report shall be generated by the 
computer system identifying the gaming machine number, the error, the 
correction, and the count team employees attesting to the correction.
    (B) [Reserved]
    (7) If applicable, the weight shall be converted to dollar amounts 
before the reconciliation of the weigh to the wrap.
    (8) If a coin meter is used, a count team member shall convert the 
coin count for each denomination into dollars and shall enter the 
results on a summary sheet.
    (9) The recorder and at least one other count team member shall sign 
the weigh tape and the gaming machine count document attesting to the 
accuracy of the weigh/count.
    (10) All members of the count team shall sign the count document or 
a summary report to attest to their participation in the count.
    (11) All drop proceeds and cash equivalents that were counted shall 
be turned over to the cage or vault cashier (who shall be independent of 
the count team) or to an authorized person/employee independent of the 
revenue generation and the count process for verification. Such person 
shall certify by signature as to the accuracy of the drop proceeds 
delivered and received.
    (12) All gaming machine count and wrap documentation, including any 
applicable computer storage media, shall be delivered to the accounting 
department by a count team member or a person independent of the 
cashier's department. Alternatively, it may be adequately secured (e.g., 
locked container to which only accounting personnel can gain access) 
until retrieved by the accounting department.
    (13) If the coins are transported off the property, a second 
(alternative) count procedure shall be performed before the coins leave 
the property. Any variances shall be documented.
    (14) Variances. Large (by denomination, either $1,000 or 2% of the 
drop, whichever is less) or unusual (e.g., zero

[[Page 968]]

for weigh/count or patterned for all counts) variances between the 
weigh/count and wrap shall be investigated by management personnel 
independent of the gaming machine department, count team, and the cage/
vault functions on a timely basis. The results of such investigation 
shall be documented, maintained for inspection, and provided to the 
Tribal gaming regulatory authority upon request.
    (j) Security of the count room inventory during the gaming machine 
coin count and wrap. (1) If the count room serves as a coin room and 
coin room inventory is not secured so as to preclude access by the count 
team, then the following standards shall apply:
    (i) At the commencement of the gaming machine count the following 
requirements shall be met:
    (A) The coin room inventory shall be counted by at least two 
employees, one of whom is a member of the count team and the other is 
independent of the weigh/count and wrap procedures;
    (B) The count in paragraph (j)(1)(i)(A) of this section shall be 
recorded on an appropriate inventory form;
    (ii) Upon completion of the wrap of the gaming machine drop:
    (A) At least two members of the count team (wrap team), 
independently from each other, shall count the ending coin room 
inventory;
    (B) The counts in paragraph (j)(1)(ii)(A) of this section shall be 
recorded on a summary report(s) that evidences the calculation of the 
final wrap by subtracting the beginning inventory from the sum of the 
ending inventory and transfers in and out of the coin room;
    (C) The same count team members shall compare the calculated wrap to 
the weigh/count, recording the comparison and noting any variances on 
the summary report;
    (D) A member of the cage/vault department shall count the ending 
coin room inventory by denomination and shall reconcile it to the 
beginning inventory, wrap, transfers, and weigh/count; and
    (E) At the conclusion of the reconciliation, at least two count/wrap 
team members and the verifying employee shall sign the summary report(s) 
attesting to its accuracy.
    (2) If the count room is segregated from the coin room, or if the 
coin room is used as a count room and the coin room inventory is secured 
to preclude access by the count team, all of the following requirements 
shall be completed, at the conclusion of the count:
    (i) At least two members of the count/wrap team shall count the 
final wrapped gaming machine drop independently from each other;
    (ii) The counts shall be recorded on a summary report;
    (iii) The same count team members (or the accounting department) 
shall compare the final wrap to the weigh/count, recording the 
comparison and noting any variances on the summary report;
    (iv) A member of the cage/vault department shall count the wrapped 
gaming machine drop by denomination and reconcile it to the weigh/count;
    (v) At the conclusion of the reconciliation, at least two count team 
members and the cage/vault employee shall sign the summary report 
attesting to its accuracy; and
    (vi) The wrapped coins (exclusive of proper transfers) shall be 
transported to the cage, vault or coin vault after the reconciliation of 
the weigh/count to the wrap.
    (k) Transfers during the gaming machine coin count and wrap. (1) 
Transfers may be permitted during the count and wrap only if permitted 
under the internal control standards approved by the Tribal gaming 
regulatory authority.
    (2) Each transfer shall be recorded on a separate multi-part form 
with a preprinted or concurrently-printed form number (used solely for 
gaming machine count transfers) that shall be subsequently reconciled by 
the accounting department to ensure the accuracy of the reconciled 
gaming machine drop.
    (3) Each transfer must be counted and signed for by at least two 
members of the count team and by a person independent of the count team 
who is responsible for authorizing the transfer.
    (l) Gaming machine drop key control standards. (1) Gaming machine 
coin drop cabinet keys, including duplicates, shall be maintained by a 
department independent of the gaming machine department.

[[Page 969]]

    (2) The physical custody of the keys needed to access gaming machine 
coin drop cabinets, including duplicates, shall require the involvement 
of two persons, one of whom is independent of the gaming machine 
department.
    (3) Two employees (separate from key custodian) shall be required to 
accompany such keys while checked out and observe each time gaming 
machine drop cabinets are accessed, unless surveillance is notified each 
time keys are checked out and surveillance observes the person 
throughout the period the keys are checked out.
    (m) Table game drop box key control standards. (1) Procedures shall 
be developed and implemented to insure that unauthorized access to empty 
table game drop boxes shall not occur from the time the boxes leave the 
storage racks until they are placed on the tables.
    (2) The involvement of at least two persons independent of the cage 
department shall be required to access stored empty table game drop 
boxes.
    (3) The release keys shall be separately keyed from the contents 
keys.
    (4) At least three (two for table game drop box keys in operations 
with three tables or fewer) count team members are required to be 
present at the time count room and other count keys are issued for the 
count.
    (5) All duplicate keys shall be maintained in a manner that provides 
the same degree of control as is required for the original keys. Records 
shall be maintained for each key duplicated that indicate the number of 
keys made and destroyed.
    (6) Logs shall be maintained by the custodian of sensitive keys to 
document authorization of personnel accessing keys.
    (n) Table game drop box release keys. (1) The table game drop box 
release keys shall be maintained by a department independent of the pit 
department.
    (2) Only the person(s) authorized to remove table game drop boxes 
from the tables shall be allowed access to the table game drop box 
release keys; however, the count team members may have access to the 
release keys during the soft count in order to reset the table game drop 
boxes.
    (3) Persons authorized to remove the table game drop boxes shall be 
precluded from having simultaneous access to the table game drop box 
contents keys and release keys.
    (4) For situations requiring access to a table game drop box at a 
time other than the scheduled drop, the date, time, and signature of 
employee signing out/in the release key must be documented.
    (o) Bill acceptor canister release keys. (1) The bill acceptor 
canister release keys shall be maintained by a department independent of 
the gaming machine department.
    (2) Only the person(s) authorized to remove bill acceptor canisters 
from the gaming machines shall be allowed access to the release keys.
    (3) Persons authorized to remove the bill acceptor canisters shall 
be precluded from having simultaneous access to the bill acceptor 
canister contents keys and release keys.
    (4) For situations requiring access to a bill acceptor canister at a 
time other than the scheduled drop, the date, time, and signature of 
employee signing out/in the release key must be documented.
    (p) Table game drop box storage rack keys. (1) A person independent 
of the pit department shall be required to accompany the table game drop 
box storage rack keys and observe each time table game drop boxes are 
removed from or placed in storage racks.
    (2) Persons authorized to obtain table game drop box storage rack 
keys shall be precluded from having simultaneous access to table game 
drop box contents keys with the exception of the count team.
    (q) Bill acceptor canister storage rack keys. (1) A person 
independent of the gaming machine department shall be required to 
accompany the bill acceptor canister storage rack keys and observe each 
time canisters are removed from or placed in storage racks.
    (2) Persons authorized to obtain bill acceptor canister storage rack 
keys shall be precluded from having simultaneous access to bill acceptor 
canister contents keys with the exception of the count team.
    (r) Table game drop box contents keys. (1) The physical custody of 
the keys

[[Page 970]]

needed for accessing stored, full table game drop box contents shall 
require the involvement of persons from at least two separate 
departments, with the exception of the count team.
    (2) Access to the table game drop box contents key at other than 
scheduled count times shall require the involvement of at least three 
persons from separate departments, including management. The reason for 
access shall be documented with the signatures of all participants and 
observers.
    (3) Only count team members shall be allowed access to table game 
drop box content keys during the count process.
    (s) Bill acceptor canister contents keys. (1) The physical custody 
of the keys needed for accessing stored, full bill acceptor canister 
contents shall require involvement of persons from two separate 
departments, with the exception of the count team.
    (2) Access to the bill acceptor canister contents key at other than 
scheduled count times shall require the involvement of at least three 
persons from separate departments, one of whom must be a supervisor. The 
reason for access shall be documented with the signatures of all 
participants and observers.
    (3) Only the count team members shall be allowed access to bill 
acceptor canister contents keys during the count process.
    (t) Gaming machine computerized key security systems. (1) 
Computerized key security systems which restrict access to the gaming 
machine drop and count keys through the use of passwords, keys or other 
means, other than a key custodian, must provide the same degree of 
control as indicated in the aforementioned key control standards; refer 
to paragraphs (l), (o), (q) and (s) of this section. Note: This standard 
does not apply to the system administrator. The system administrator is 
defined in paragraph (t)(2)(i) of this section.
    (2) For computerized key security systems, the following additional 
gaming machine key control procedures apply:
    (i) Management personnel independent of the gaming machine 
department assign and control user access to keys in the computerized 
key security system (i.e., system administrator) to ensure that gaming 
machine drop and count keys are restricted to authorized employees.
    (ii) In the event of an emergency or the key box is inoperable, 
access to the emergency manual key(s) (a.k.a. override key), used to 
access the box containing the gaming machine drop and count keys, 
requires the physical involvement of at least three persons from 
separate departments, including management. The date, time, and reason 
for access, must be documented with the signatures of all participating 
employees signing out/in the emergency manual key(s).
    (iii) The custody of the keys issued pursuant to paragraph 
(t)(2)(ii) of this section requires the presence of two persons from 
separate departments from the time of their issuance until the time of 
their return.
    (iv) Routine physical maintenance that requires accessing the 
emergency manual key(s) (override key) and does not involve the 
accessing of the gaming machine drop and count keys, only requires the 
presence of two persons from separate departments. The date, time and 
reason for access must be documented with the signatures of all 
participating employees signing out/in the emergency manual key(s).
    (3) For computerized key security systems controlling access to 
gaming machine drop and count keys, accounting/audit personnel, 
independent of the system administrator, will perform the following 
procedures:
    (i) Daily, review the report generated by the computerized key 
security system indicating the transactions performed by the 
individual(s) that adds, deletes, and changes user's access within the 
system (i.e., system administrator). Determine whether the transactions 
completed by the system administrator provide an adequate control over 
the access to the gaming machine drop and count keys. Also, determine 
whether any gaming machine drop and count key(s) removed or returned to 
the key cabinet by the system administrator was properly authorized.
    (ii) For at least one day each month, review the report generated by 
the computerized key security system indicating all transactions 
performed to

[[Page 971]]

determine whether any unusual gaming machine drop and count key removals 
or key returns occurred.
    (iii) At least quarterly, review a sample of users that are assigned 
access to the gaming machine drop and count keys to determine that their 
access to the assigned keys is adequate relative to their job position.
    (iv) All noted improper transactions or unusual occurrences are 
investigated with the results documented.
    (4) Quarterly, an inventory of all count room, drop box release, 
storage rack and contents keys is performed, and reconciled to records 
of keys made, issued, and destroyed. Investigations are performed for 
all keys unaccounted for, with the investigation being documented.
    (u) Table games computerized key security systems. (1) Computerized 
key security systems which restrict access to the table game drop and 
count keys through the use of passwords, keys or other means, other than 
a key custodian, must provide the same degree of control as indicated in 
the aforementioned key control standards; refer to paragraphs (m), (n), 
(p) and (r) of this section. Note: This standard does not apply to the 
system administrator. The system administrator is defined in paragraph 
(u)(2)(ii) of this section.
    (2) For computerized key security systems, the following additional 
table game key control procedures apply:
    (i) Management personnel independent of the table game department 
assign and control user access to keys in the computerized key security 
system (i.e., system administrator) to ensure that table game drop and 
count keys are restricted to authorized employees.
    (ii) In the event of an emergency or the key box is inoperable, 
access to the emergency manual key(s) (a.k.a. override key), used to 
access the box containing the table game drop and count keys, requires 
the physical involvement of at least three persons from separate 
departments, including management. The date, time, and reason for 
access, must be documented with the signatures of all participating 
employees signing out/in the emergency manual key(s).
    (iii) The custody of the keys issued pursuant to paragraph 
(u)(2)(ii) of this section requires the presence of two persons from 
separate departments from the time of their issuance until the time of 
their return.
    (iv) Routine physical maintenance that requires accessing the 
emergency manual key(s) override key) and does not involve the accessing 
of the table games drop and count keys, only requires the presence of 
two persons from separate departments. The date, time and reason for 
access must be documented with the signatures of all participating 
employees signing out/in the emergency manual key(s).
    (3) For computerized key security systems controlling access to 
table games drop and count keys, accounting/audit personnel, independent 
of the system administrator, will perform the following procedures:
    (i) Daily, review the report generated by the computerized key 
security system indicating the transactions performed by the 
individual(s) that adds, deletes, and changes user's access within the 
system (i.e., system administrator). Determine whether the transactions 
completed by the system administrator provide an adequate control over 
the access to the table games drop and count keys. Also, determine 
whether any table games drop and count key(s) removed or returned to the 
key cabinet by the system administrator was properly authorized.
    (ii) For at least one day each month, review the report generated by 
the computerized key security system indicating all transactions 
performed to determine whether any unusual table games drop and count 
key removals or key returns occurred.
    (iii) At least quarterly, review a sample of users that are assigned 
access to the table games drop and count keys to determine that their 
access to the assigned keys is adequate relative to their job position.
    (iv) All noted improper transactions or unusual occurrences are 
investigated with the results documented.
    (4) Quarterly, an inventory of all count room, table game drop box 
release, storage rack and contents keys is performed, and reconciled to 
records of keys made, issued, and destroyed.

[[Page 972]]

Investigations are performed for all keys unaccounted for, with the 
investigations being documented.
    (v) Emergency drop procedures. Emergency drop procedures shall be 
developed by the Tribal gaming regulatory authority, or the gaming 
operation as approved by the Tribal gaming regulatory authority.
    (w) Equipment standards for gaming machine count. (1) A weigh scale 
calibration module shall be secured so as to prevent unauthorized access 
(e.g., prenumbered seal, lock and key, etc.).
    (2) A person independent of the cage, vault, gaming machine, and 
count team functions shall be required to be present whenever the 
calibration module is accessed. Such access shall be documented and 
maintained.
    (3) If a weigh scale interface is used, it shall be adequately 
restricted so as to prevent unauthorized access (passwords, keys, etc.).
    (4) If the weigh scale has a zero adjustment mechanism, it shall be 
physically limited to minor adjustments (e.g., weight of a bucket) or 
physically situated such that any unnecessary adjustments to it during 
the weigh process would be observed by other count team members.
    (5) The weigh scale and weigh scale interface (if applicable) shall 
be tested by a person or persons independent of the cage, vault, and 
gaming machine departments and count team at least quarterly. At least 
annually, this test shall be performed by internal audit in accordance 
with the internal audit standards. The result of these tests shall be 
documented and signed by the person or persons performing the test.
    (6) Prior to the gaming machine count, at least two employees shall 
verify the accuracy of the weigh scale with varying weights or with 
varying amounts of previously counted coin for each denomination to 
ensure the scale is properly calibrated (varying weights/coin from drop 
to drop is acceptable).
    (7) If a mechanical coin counter is used (instead of a weigh scale), 
the Tribal gaming regulatory authority, or the gaming operation as 
approved by the Tribal gaming regulatory authority, shall establish and 
the gaming operation shall comply with procedures that are equivalent to 
those described in paragraphs (u)(4), (u)(5), and (u)(6) of this 
section.
    (8) If a coin meter count machine is used, the count team member 
shall record the machine number denomination and number of coins in ink 
on a source document, unless the meter machine automatically records 
such information.
    (i) A count team member shall test the coin meter count machine 
before the actual count to ascertain if the metering device is 
functioning properly with a predetermined number of coins for each 
denomination.
    (ii) [Reserved]

[67 FR 43400, June 27, 2002, as amended at 70 FR 23026, May 4, 2005; 70 
FR 47107, Aug. 12, 2005]



Sec. 542.42  What are the minimum internal control standards for 
internal audit for Tier C gaming operations?

    (a) Internal audit personnel. (1) For Tier C gaming operations, a 
separate internal audit department shall be maintained whose primary 
function is performing internal audit work and that is independent with 
respect to the departments subject to audit.
    (2) The internal audit personnel shall report directly to the Tribe, 
Tribal gaming regulatory authority, audit committee, or other entity 
designated by the Tribe in accordance with the definition of internal 
audit in Sec. 542.2.
    (b) Audits. (1) Internal audit personnel shall perform audits of all 
major gaming areas of the gaming operation. The following shall be 
reviewed at least annually:
    (i) Bingo, including but not limited to, bingo card control, payout 
procedures, and cash reconciliation process;
    (ii) Pull tabs, including but not limited to, statistical records, 
winner verification, perpetual inventory, and accountability of sales 
versus inventory;
    (iii) Card games, including but not limited to, card games 
operation, cash exchange procedures, shill transactions, and count 
procedures;
    (iv) Keno, including but not limited to, game write and payout 
procedures, sensitive key location and control, and a review of keno 
auditing procedures;

[[Page 973]]

    (v) Pari-mutual wagering, including write and payout procedures, and 
pari-mutual auditing procedures;
    (vi) Table games, including but not limited to, fill and credit 
procedures, pit credit play procedures, rim credit procedures, soft 
drop/count procedures and the subsequent transfer of funds, unannounced 
testing of count room currency counters and/or currency interface, 
location and control over sensitive keys, the tracing of source 
documents to summarized documentation and accounting records, and 
reconciliation to restricted copies;
    (vii) Gaming machines, including but not limited to, jackpot payout 
and gaming machine fill procedures, gaming machine drop/count and bill 
acceptor drop/count and subsequent transfer of funds, unannounced 
testing of weigh scale and weigh scale interface, unannounced testing of 
count room currency counters and/or currency interface, gaming machine 
drop cabinet access, tracing of source documents to summarized 
documentation and accounting records, reconciliation to restricted 
copies, location and control over sensitive keys, compliance with EPROM 
duplication procedures, and compliance with MICS procedures for gaming 
machines that accept currency or coin(s) and issue cash-out tickets or 
gaming machines that do not accept currency or coin(s) and do not return 
currency or coin(s);
    (viii) Cage and credit procedures including all cage, credit, and 
collection procedures, and the reconciliation of trial balances to 
physical instruments on a sample basis. Cage accountability shall be 
reconciled to the general ledger;
    (ix) Information technology functions, including review for 
compliance with information technology standards;
    (x) Complimentary service or item, including but not limited to, 
procedures whereby complimentary service items are issued, authorized, 
and redeemed; and
    (xi) Any other internal audits as required by the Tribe, Tribal 
gaming regulatory authority, audit committee, or other entity designated 
by the Tribe.
    (2) In addition to the observation and examinations performed under 
paragraph (b)(1) of this section, follow-up observations and 
examinations shall be performed to verify that corrective action has 
been taken regarding all instances of noncompliance cited by internal 
audit, the independent accountant, and/or the Commission. The 
verification shall be performed within six (6) months following the date 
of notification.
    (3) Whenever possible, internal audit observations shall be 
performed on an unannounced basis (i.e., without the employees being 
forewarned that their activities will be observed). Additionally, if the 
independent accountant also performs the internal audit function, the 
accountant shall perform separate observations of the table games/gaming 
machine drops and counts to satisfy the internal audit observation 
requirements and independent accountant tests of controls as required by 
the American Institute of Certified Public Accountants guide.
    (c) Documentation. (1) Documentation (e.g., checklists, programs, 
reports, etc.) shall be prepared to evidence all internal audit work 
performed as it relates to the requirements in this section, including 
all instances of noncompliance.
    (2) The internal audit department shall operate with audit programs, 
which, at a minimum, address the MICS. Additionally, the department 
shall properly document the work performed, the conclusions reached, and 
the resolution of all exceptions. Institute of Internal Auditors 
standards are recommended but not required.
    (d) Reports. (1) Reports documenting audits performed shall be 
maintained and made available to the Commission upon request.
    (2) Such audit reports shall include the following information:
    (i) Audit objectives;
    (ii) Audit procedures and scope;
    (iii) Findings and conclusions;
    (iv) Recommendations, if applicable; and
    (v) Management's response.
    (e) Material exceptions. All material exceptions resulting from 
internal audit work shall be investigated and resolved with the results 
of such being documented and retained for five years.

[[Page 974]]

    (f) Role of management. (1) Internal audit findings shall be 
reported to management.
    (2) Management shall be required to respond to internal audit 
findings stating corrective measures to be taken to avoid recurrence of 
the audit exception.
    (3) Such management responses shall be included in the internal 
audit report that will be delivered to management, the Tribe, Tribal 
gaming regulatory authority, audit committee, or other entity designated 
by the Tribe.
    (g) Internal Audit Guidelines. In connection with the internal audit 
testing pursuant to paragraph (b)(1) of this section, the Commission 
shall develop recommended Internal Audit Guidelines, which shall be 
available upon request.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47107, Aug. 12, 2005]



Sec. 542.43  What are the minimum internal control standards for 
surveillance for a Tier C gaming operation?

    (a) The surveillance system shall be maintained and operated from a 
staffed surveillance room and shall provide surveillance over gaming 
areas.
    (b) The entrance to the surveillance room shall be located so that 
it is not readily accessible by either gaming operation employees who 
work primarily on the casino floor, or the general public.
    (c) Access to the surveillance room shall be limited to surveillance 
personnel, designated employees, and other persons authorized in 
accordance with the surveillance department policy. Such policy shall be 
approved by the Tribal gaming regulatory authority. The surveillance 
department shall maintain a sign-in log of other authorized persons 
entering the surveillance room.
    (d) Surveillance room equipment shall have total override capability 
over all other satellite surveillance equipment located outside the 
surveillance room.
    (e) In the event of power loss to the surveillance system, an 
auxiliary or backup power source shall be available and capable of 
providing immediate restoration of power to all elements of the 
surveillance system that enable surveillance personnel to observe the 
table games remaining open for play and all areas covered by dedicated 
cameras. Auxiliary or backup power sources such as a UPS System, backup 
generator, or an alternate utility supplier, satisfy this requirement.
    (f) The surveillance system shall include date and time generators 
that possess the capability to display the date and time of recorded 
events on video and/or digital recordings. The displayed date and time 
shall not significantly obstruct the recorded view.
    (g) The surveillance department shall strive to ensure staff is 
trained in the use of the equipment, knowledge of the games, and house 
rules.
    (h) Each camera required by the standards in this section shall be 
installed in a manner that will prevent it from being readily 
obstructed, tampered with, or disabled by customers or employees.
    (i) Each camera required by the standards in this section shall 
possess the capability of having its picture displayed on a monitor and 
recorded. The surveillance system shall include sufficient numbers of 
monitors and recorders to simultaneously display and record multiple 
gaming and count room activities, and record the views of all dedicated 
cameras and motion activated dedicated cameras.
    (j) Reasonable effort shall be made to repair each malfunction of 
surveillance system equipment required by the standards in this section 
within seventy-two (72) hours after the malfunction is discovered. The 
Tribal gaming regulatory authority shall be notified of any camera(s) 
that has malfunctioned for more than twenty-four (24) hours.
    (1) In the event of a dedicated camera malfunction, the gaming 
operation and/or the surveillance department shall immediately provide 
alternative camera coverage or other security measures, such as 
additional supervisory or security personnel, to protect the subject 
activity.
    (2) [Reserved]
    (k) Bingo. (1) The surveillance system shall possess the capability 
to monitor the bingo ball drawing device or random number generator, 
which shall be recorded during the course of the draw

[[Page 975]]

by a dedicated camera with sufficient clarity to identify the balls 
drawn or numbers selected.
    (2) The surveillance system shall monitor and record the game board 
and the activities of the employees responsible for drawing, calling, 
and entering the balls drawn or numbers selected.
    (l) Card games. The surveillance system shall monitor and record 
general activities in each card room with sufficient clarity to identify 
the employees performing the different functions.
    (m) Progressive card games. (1) Progressive card games with a 
progressive jackpot of $25,000 or more shall be monitored and recorded 
by dedicated cameras that provide coverage of:
    (i) The table surface, sufficient that the card values and card 
suits can be clearly identified;
    (ii) An overall view of the entire table with sufficient clarity to 
identify customers and dealer; and
    (iii) A view of the posted jackpot amount.
    (2) [Reserved]
    (n) Keno. (1) The surveillance system shall possess the capability 
to monitor the keno ball-drawing device or random number generator, 
which shall be recorded during the course of the draw by a dedicated 
camera with sufficient clarity to identify the balls drawn or numbers 
selected.
    (2) The surveillance system shall monitor and record general 
activities in each keno game area with sufficient clarity to identify 
the employees performing the different functions.
    (o) Pari-mutuel. The surveillance system shall monitor and record 
general activities in the pari-mutuel area, to include the ticket writer 
and cashier areas, with sufficient clarity to identify the employees 
performing the different functions.
    (p) Table games--(1) Operations with four (4) or more table games. 
Except as otherwise provided in paragraphs (p)(3), (p)(4), and (p)(5) of 
this section, the surveillance system of gaming operations operating 
four (4) or more table games shall provide at a minimum one (1) pan-
tilt-zoom camera per two (2) tables and surveillance must be capable of 
taping:
    (i) With sufficient clarity to identify customers and dealers; and
    (ii) With sufficient coverage and clarity to simultaneously view the 
table bank and determine the configuration of wagers, card values, and 
game outcome.
    (iii) One (1) dedicated camera per table and one (1) pan-tilt-zoom 
camera per four (4) tables may be an acceptable alternative procedure to 
satisfy the requirements of this paragraph.
    (2) Operations with three (3) or fewer table games. The surveillance 
system of gaming operations operating three (3) or fewer table games 
shall:
    (i) Comply with the requirements of paragraph (p)(1) of this 
section; or
    (ii) Have one (1) overhead camera at each table.
    (3) Craps. All craps tables shall have two (2) dedicated cross view 
cameras covering both ends of the table.
    (4) Roulette. All roulette areas shall have one (1) overhead 
dedicated camera covering the roulette wheel and shall also have one (1) 
dedicated camera covering the play of the table.
    (5) Big wheel. All big wheel games shall have one (1) dedicated 
camera viewing the wheel.
    (q) Progressive table games. (1) Progressive table games with a 
progressive jackpot of $25,000 or more shall be monitored and recorded 
by dedicated cameras that provide coverage of:
    (i) The table surface, sufficient that the card values and card 
suits can be clearly identified;
    (ii) An overall view of the entire table with sufficient clarity to 
identify customers and dealer; and
    (iii) A view of the progressive meter jackpot amount. If several 
tables are linked to the same progressive jackpot meter, only one meter 
need be recorded.
    (2) [Reserved]
    (r) Gaming machines. (1) Except as otherwise provided in paragraphs 
(r)(2) and (r)(3) of this section, gaming machines offering a payout of 
more than $250,000 shall be monitored and recorded by a dedicated 
camera(s) to provide coverage of:
    (i) All customers and employees at the gaming machine, and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.

[[Page 976]]

    (2) In-house progressive machine. In-house progressive gaming 
machines offering a base payout amount (jackpot reset amount) of more 
than $100,000 shall be monitored and recorded by a dedicated camera(s) 
to provide coverage of:
    (i) All customers and employees at the gaming machine; and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (3) Wide-area progressive machine. Wide-area progressive gaming 
machines offering a base payout amount of $1 million or more and 
monitored by an independent vendor utilizing an on-line progressive 
computer system shall be recorded by a dedicated camera(s) to provide 
coverage of:
    (i) All customers and employees at the gaming machine; and
    (ii) The face of the gaming machine, with sufficient clarity to 
identify the payout line(s) of the gaming machine.
    (4) Notwithstanding paragraph (r)(1) of this section, if the gaming 
machine is a multi-game machine, the Tribal gaming regulatory authority, 
or the gaming operation subject to the approval of the Tribal gaming 
regulatory authority, may develop and implement alternative procedures 
to verify payouts.
    (s) Cage and vault. (1) The surveillance system shall monitor and 
record a general overview of activities occurring in each cage and vault 
area with sufficient clarity to identify employees within the cage and 
customers and employees at the counter areas.
    (2) Each cashier station shall be equipped with one (1) dedicated 
overhead camera covering the transaction area.
    (3) The surveillance system shall provide an overview of cash 
transactions. This overview should include the customer, the employee, 
and the surrounding area.
    (t) Fills and credits. (1) The cage or vault area in which fills and 
credits are transacted shall be monitored and recorded by a dedicated 
camera or motion activated dedicated camera that provides coverage with 
sufficient clarity to identify the chip values and the amounts on the 
fill and credit slips.
    (2) Controls provided by a computerized fill and credit system maybe 
deemed an adequate alternative to viewing the fill and credit slips.
    (u) Currency and coin. (1) The surveillance system shall monitor and 
record with sufficient clarity all areas where currency or coin may be 
stored or counted.
    (2) Audio capability of the soft count room shall also be 
maintained.
    (3) The surveillance system shall provide for:
    (i) Coverage of scales shall be sufficiently clear to view any 
attempted manipulation of the recorded data.
    (ii) Monitoring and recording of the table game drop box storage 
rack or area by either a dedicated camera or a motion-detector activated 
camera.
    (iii) Monitoring and recording of all areas where coin may be stored 
or counted, including the hard count room, all doors to the hard count 
room, all scales and wrapping machines, and all areas where uncounted 
coin may be stored during the drop and count process.
    (iv) Monitoring and recording of soft count room, including all 
doors to the room, all table game drop boxes, safes, and counting 
surfaces, and all count team personnel. The counting surface area must 
be continuously monitored and recorded by a dedicated camera during the 
soft count.
    (v) Monitoring and recording of all areas where currency is sorted, 
stacked, counted, verified, or stored during the soft count process.
    (v) Change booths. The surveillance system shall monitor and record 
a general overview of the activities occurring in each gaming machine 
change booth.
    (w) Video recording and/or digital record retention. (1) All video 
recordings and/or digital records of coverage provided by the dedicated 
cameras or motion-activated dedicated cameras required by the standards 
in this section shall be retained for a minimum of seven (7) days.
    (2) Recordings involving suspected or confirmed gaming crimes, 
unlawful activity, or detentions by security personnel, must be retained 
for a minimum of thirty (30) days.

[[Page 977]]

    (3) Duly authenticated copies of video recordings and/or digital 
records shall be provided to the Commission upon request.
    (x) Video library log. A video library log, or comparable 
alternative procedure approved by the Tribal gaming regulatory 
authority, shall be maintained to demonstrate compliance with the 
storage, identification, and retention standards required in this 
section.
    (y) Malfunction and repair log. (1) Surveillance personnel shall 
maintain a log or alternative procedure approved by the Tribal gaming 
regulatory authority that documents each malfunction and repair of the 
surveillance system as defined in this section.
    (2) The log shall state the time, date, and nature of each 
malfunction, the efforts expended to repair the malfunction, and the 
date of each effort, the reasons for any delays in repairing the 
malfunction, the date the malfunction is repaired, and where applicable, 
any alternative security measures that were taken.
    (z) Surveillance log. (1) Surveillance personnel shall maintain a 
log of all surveillance activities.
    (2) Such log shall be maintained by surveillance room personnel and 
shall be stored securely within the surveillance department.
    (3) At a minimum, the following information shall be recorded in a 
surveillance log:
    (i) Date;
    (ii) Time commenced and terminated;
    (iii) Activity observed or performed; and
    (iv) The name or license credential number of each person who 
initiates, performs, or supervises the surveillance.
    (4) Surveillance personnel shall also record a summary of the 
results of the surveillance of any suspicious activity. This summary may 
be maintained in a separate log.

[67 FR 43400, June 27, 2002, as amended at 70 FR 47108, Aug. 12, 2005]

                        PARTS 543-549 [RESERVED]

[[Page 978]]



   SUBCHAPTER E_GAMING LICENSES AND BACKGROUND INVESTIGATIONS FOR KEY 
               EMPLOYEES AND PRIMARY MANAGEMENT OFFICIALS



                        PARTS 550-555 [RESERVED]



PART 556_BACKGROUND INVESTIGATIONS FOR PRIMARY MANAGEMENT OFFICIALS AND 
KEY EMPLOYEES--Table of Contents




Sec.
556.1 Scope of this part.
556.2 Privacy notice.
556.3 Notice regarding false statements.
556.4 Background investigations.
556.5 Report to Commission.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5813, Jan. 22, 1993, unless otherwise noted.



Sec. 556.1  Scope of this part.

    Unless a tribal-state compact allocates sole jurisdiction to an 
entity other than a tribe with respect to background investigations, the 
requirements of this part apply to all class II and class III gaming.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 556.2  Privacy notice.

    (a) A tribe shall place the following notice on the application form 
for a key employee or a primary management official before that form is 
filled out by an applicant:

    In compliance with the Privacy Act of 1974, the following 
information is provided: Solicitation of the information on this form is 
authorized by 25 U.S.C. 2701 et seq. The purpose of the requested 
information is to determine the eligibility of individuals to be 
employed in a gaming operation. The information will be used by National 
Indian Gaming Commission members and staff who have need for the 
information in the performance of their official duties. The information 
may be disclosed to appropriate Federal, Tribal, State, local, or 
foreign law enforcement and regulatory agencies when relevant to civil, 
criminal or regulatory investigations or prosecutions or when pursuant 
to a requirement by a tribe or the National Indian Gaming Commission in 
connection with the hiring or firing of an employee, the issuance or 
revocation of a gaming license, or investigations of activities while 
associated with a tribe or a gaming operation. Failure to consent to the 
disclosures indicated in this notice will result in a tribe's being 
unable to hire you in a primary management official or key employee 
position.
    The disclosure of your Social Security Number (SSN) is voluntary. 
However, failure to supply a SSN may result in errors in processing your 
application.

    (b) A tribe shall notify in writing existing key employees and 
primary management officials that they shall either:
    (1) Complete a new application form that contains a Privacy Act 
notice; or
    (2) Sign a statement that contains the Privacy Act notice and 
consent to the routine uses described in that notice.



Sec. 556.3  Notice regarding false statements.

    (a) A tribe shall place the following notice on the application form 
for a key employee or a primary management official before that form is 
filled out by an applicant:

    A false statement on any part of your application may be grounds for 
not hiring you, or for firing you after you begin work. Also, you may be 
punished by fine or imprisonment (U.S. Code, title 18, section 1001)

    (b) A tribe shall notify in writing existing key employees and 
primary management officials that they shall either:
    (1) Complete a new application form that contains a notice regarding 
false statements; or
    (2) Sign a statement that contains the notice regarding false 
statements.



Sec. 556.4  Background investigations.

    A tribe shall perform a background investigation for each primary 
management official and for each key employee of a gaming operation.
    (a) A tribe shall request from each primary management official and 
from each key employee all of the following information:
    (1) Full name, other names used (oral or written), social security 
number(s),

[[Page 979]]

birth date, place of birth, citizenship, gender, all languages (spoken 
or written);
    (2) Currently and for the previous 5 years: business and employment 
positions held, ownership interests in those businesses, business and 
residence addresses, and drivers license numbers;
    (3) The names and current addresses of at least three personal 
references, including one personal reference who was acquainted with the 
applicant during each period of residence listed under paragraph (a)(2) 
of this section;
    (4) Current business and residence telephone numbers;
    (5) A description of any existing and previous business 
relationships with Indian tribes, including ownership interests in those 
businesses;
    (6) A description of any existing and previous business 
relationships with the gaming industry generally, including ownership 
interests in those businesses;
    (7) The name and address of any licensing or regulatory agency with 
which the person has filed an application for a license or permit 
related to gaming, whether or not such license or permit was granted;
    (8) For each felony for which there is an ongoing prosecution or a 
conviction, the charge, the name and address of the court involved, and 
the date and disposition if any;
    (9) For each misdemeanor conviction or ongoing misdemeanor 
prosecution (excluding minor traffic violations) within 10 years of the 
date of the application, the name and address of the court involved and 
the date and disposition;
    (10) For each criminal charge (excluding minor traffic charges) 
whether or not there is a conviction, if such criminal charge is within 
10 years of the date of the application and is not otherwise listed 
pursuant to paragraph (a)(8) or (a)(9) of this section, the criminal 
charge, the name and address of the court involved and the date and 
disposition;
    (11) The name and address of any licensing or regulatory agency with 
which the person has filed an application for an occupational license or 
permit, whether or not such license or permit was granted;
    (12) A photograph;
    (13) Any other information a tribe deems relevant; and
    (14) Fingerprints consistent with procedures adopted by a tribe 
according to Sec. 522.2(h) of this chapter.
    (b) A tribe shall conduct an investigation sufficient to make a 
determination under Sec. 558.2 of this chapter. In conducting a 
background investigation, a tribe or its agents shall promise to keep 
confidential the identity of each person interviewed in the course of 
the investigation.
    (c) If the Commission has received an investigative report 
concerning an individual who another tribe wishes to employ as a key 
employee or primary management official and if the second tribe has 
access to the investigative materials held by the first tribe, the 
second tribe may update the investigation and update the investigative 
report under Sec. 556.5(b) of this part.



Sec. 556.5  Report to Commission.

    (a) When a tribe employs a primary management official or a key 
employee, the tribe shall forward to the Commission a completed 
application containing the information listed under Sec. 556.4(a)(1)-
(13) of this part.
    (b) Before issuing a license to a primary management official or to 
a key employee, a tribe shall forward to the Commission an investigative 
report on each background investigation. An investigative report shall 
include all of the following:
    (1) Steps taken in conducting a background investigation;
    (2) Results obtained;
    (3) Conclusions reached; and
    (4) The bases for those conclusions.
    (c) When a tribe forwards its report to the Commission, it shall 
include a copy of the eligibility determination made under Sec. 558.2 
of this chapter.
    (d) If a tribe does not license an applicant--
    (1) The tribe shall notify the Commission; and
    (2) May forward copies of its eligibility determination under Sec. 
558.2 and investigative report (if any) under Sec. 556.5(b) to the 
Commission for inclusion in the Indian Gaming Individuals Record System.

[[Page 980]]

                           PART 557 [RESERVED]



PART 558_GAMING LICENSES FOR KEY EMPLOYEES AND PRIMARY MANAGEMENT 
OFFICIALS--Table of Contents




Sec.
558.1 Scope of this part.
558.2 Eligibility determination for employment in a gaming operation.
558.3 Procedures for forwarding applications and reports for key 
          employees and primary management officials to the Commission.
558.4 Granting a gaming license.
558.5 License suspension.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5814, Jan. 22, 1993, unless otherwise noted.



Sec. 558.1  Scope of this part.

    Unless a tribal-state compact allocates responsibility to an entity 
other than a tribe:
    (a) The licensing authority for class II or class III gaming is a 
tribal authority.
    (b) A tribe shall develop licensing procedures for all employees of 
a gaming operation. The procedures and standards of part 556 of this 
chapter and the procedures and standards of this part apply only to 
primary management officials and key employees.
    (c) For primary management officials or key employees, a tribe shall 
retain applications for employment and reports (if any) of background 
investigations for inspection by the Chairman or his or her designee for 
no less than three (3) years from the date of termination of employment.
    (d) A right to a hearing under Sec. 558.5 of this part shall vest 
only upon receipt of a license granted under an ordinance approved by 
the Chairman.

[58 FR 5814, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 558.2  Eligibility determination for employment in a gaming 
operation.

    An authorized tribal official shall review a person's prior 
activities, criminal record, if any, and reputation, habits and 
associations to make a finding concerning the eligibility of a key 
employee or a primary management official for employment in a gaming 
operation. If the authorized tribal official, in applying the standards 
adopted in a tribal ordinance, determines that employment of the person 
poses a threat to the public interest or to the effective regulation of 
gaming, or creates or enhances the dangers of unsuitable, unfair, or 
illegal practices and methods and activities in the conduct of gaming, a 
management contractor or a tribal gaming operation shall not employ that 
person in a key employee or primary management official position.

[58 FR 5814, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 558.3  Procedures for forwarding applications and reports for key 
employees and primary management officials to the Commission.

    (a) When a key employee or a primary management official begins work 
at a gaming operation, a tribe shall:
    (1) Forward to the Commission a completed application for employment 
that contains the notices and information listed in Sec. Sec. 556.2, 
556.3 and 556.4 of this chapter; and
    (2) Conduct a background investigation under part 556 of this 
chapter to determine the eligibility of the key employee or primary 
management official for continued employment in a gaming operation.
    (b) Upon completion of a background investigation and a 
determination of eligibility for employment in a gaming operation under 
paragraph (a)(2) of this section, a tribe shall forward a report under 
Sec. 556.5(b) of this chapter to the Commission within 60 days after an 
employee begins work or within 60 days of the Chairman's approval of an 
ordinance under part 523. A gaming operation shall not employ a key 
employee or primary management official who does not have a license 
after 90 days.
    (c) During a 30-day period beginning when the Commission receives a 
report submitted under paragraph (b) of this section, the Chairman may 
request additional information from a tribe concerning a key employee or 
a primary management official who is the subject of a report. Such a 
request shall suspend the 30-day period until the Chairman receives the 
additional information.

[[Page 981]]



Sec. 558.4  Granting a gaming license.

    (a) If, within the 30-day period described in Sec. 558.3(c) of this 
part, the Commission notifies a tribe that it has no objection to the 
issuance of a license pursuant to a license application filed by a key 
employee or a primary management official for whom the tribe has 
provided an application and investigative report to the Commission 
pursuant to Sec. 558.3 (a) and (b) of this part, the tribe may go 
forward and issue a license to such applicant.
    (b) If, within the 30-day period described in Sec. 558.3(c) of this 
part, the Commission provides the tribe with a statement itemizing 
objections to the issuance of a license to a key employee or to a 
primary management official for whom the tribe has provided an 
application and investigative report to the Commission pursuant to Sec. 
558.3 (a) and (b) of this part, the tribe shall reconsider the 
application, taking into account the objections itemized by the 
Commission. The tribe shall make the final decision whether to issue a 
license to such applicant.



Sec. 558.5  License suspension.

    (a) If, after the issuance of a gaming license, the Commission 
receives reliable information indicating that a key employee or a 
primary management official is not eligible for employment under Sec. 
558.2 of this part, the Commission shall notify the tribe that issued a 
gaming license.
    (b) Upon receipt of such notification under paragraph (a) of this 
section, a tribe shall suspend such license and shall notify in writing 
the licensee of the suspension and the proposed revocation.
    (c) A tribe shall notify the licensee of a time and a place for a 
hearing on the proposed revocation of a license.
    (d) After a revocation hearing, a tribe shall decide to revoke or to 
reinstate a gaming license. A tribe shall notify the Commission of its 
decision.

                           PART 559 [RESERVED]



                         SUBCHAPTER F [RESERVED]



                        PARTS 560-569 [RESERVED]

[[Page 982]]



           SUBCHAPTER G_COMPLIANCE AND ENFORCEMENT PROVISIONS



                           PART 570 [RESERVED]



PART 571_MONITORING AND INVESTIGATIONS--Table of Contents




                            Subpart A_General

Sec.
571.1 Scope.
571.2 Definitions.
571.3 Confidentiality.

                Subpart B_Inspection of Books and Records

571.5 Entry of premises.
571.6 Access to papers, books, and records.
571.7 Maintenance and preservation of papers and records.

                   Subpart C_Subpoenas and Depositions

571.8 Subpoena of witnesses.
571.9 Subpoena of documents and other items.
571.10 Geographical location.
571.11 Depositions.

                            Subpart D_Audits

571.12 Audit standards.
571.13 Copies of audit reports.
571.14 Relationship of audited financial statements to fee assessment 
          reports.

    Authority: 25 U.S.C. 2706(b), 2710(b)(2)(C), 2715, 2716.

    Source: 58 FR 5842, Jan. 22, 1993, unless otherwise noted.



                            Subpart A_General



Sec. 571.1  Scope.

    This part sets forth general procedures governing Commission 
monitoring and investigations of Indian gaming operations.



Sec. 571.2  Definitions.

    As used in this subchapter, the following terms have the specified 
meanings:
    Commission's authorized representative means any persons who is 
authorized to act on behalf of the Commission for the purpose of 
implementing the Act and this chapter.
    Day means calendar day unless otherwise specified.
    Hearing means that part of a proceeding that involves the submission 
of evidence to the presiding official, either by oral presentation or 
written submission.
    Party means the Chairman, the respondent(s), and any other person 
named or admitted as a party to a proceeding.
    Person means an individual, Indian tribe, corporation, partnership, 
or other organization or entity.
    Presiding official means a person designated by the Commission who 
is qualified to conduct an administrative hearing and authorized to 
administer oaths, and has had no previous role in the prosecution of a 
matter over which he or she will preside.
    Respondent means a person against whom the Commission is seeking 
civil penalties under section 2713 of the Act.
    Violation means a violation of applicable federal or tribal 
statutes, regulations, ordinances, or resolutions.

[58 FR 5842, Jan. 22, 1993; 58 FR 8449, Feb. 12, 1993, as amended at 58 
FR 16494, Mar. 29, 1993]



Sec. 571.3  Confidentiality.

    Unless confidentiality is waived, the Commission shall treat as 
confidential any and all information received under the Act that falls 
within the exemptions of 5 U.S.C. 552(b) (4) and (7); except that when 
such information indicates a violation of Federal, State, or tribal 
statutes, regulations, ordinances, or resolutions, the Commission shall 
provide such information to appropriate law enforcement officials. The 
confidentiality of documents submitted in a multiple-party proceeding 
under part 577 of this chapter is addressed in Sec. 577.8 of this 
chapter.



                Subpart B_Inspection of Books and Records



Sec. 571.5  Entry of premises.

    (a) The Commission's authorized representative may enter the 
premises of an Indian gaming operation to inspect,

[[Page 983]]

examine, photocopy, and audit all papers, books, and records (including 
computer records) concerning:
    (1) Gross revenues of class II gaming conducted on Indian lands; and
    (2) Any other matters necessary to carry out the duties of the 
Commission under the Act and this chapter.
    (b) The Commission's authorized representative shall present 
official identification upon entering a gaming operation for the purpose 
of enforcing the Act.



Sec. 571.6  Access to papers, books, and records.

    (a) Once the Commission's authorized representative presents proper 
identification, a gaming operation shall provide the authorized 
representative with access to all papers, books, and records (including 
computer records) concerning class II gaming or any other matters for 
which the Commission requires such access to carry out its duties under 
the Act.
    (b) If such papers, books, and records are not available at the 
location of the gaming operation, the gaming operation shall make them 
available at a time and place convenient to the Commission's authorized 
representative.
    (c) Upon the request of the Commission's authorized representative, 
the gaming operation shall photocopy, or allow the Commission's 
authorized representative to photocopy, any papers, books, and records 
that are requested by the Commission's authorized representative.



Sec. 571.7  Maintenance and preservation of papers and records.

    (a) A gaming operation shall keep permanent books of account or 
records, including inventory records of gaming supplies, sufficient to 
establish the amount of gross and net income, deductions and expenses, 
receipts and disbursements, and other information required in any 
financial statement, report, or other accounting prepared pursuant to 
the Act or this chapter.
    (b) The Commission may require a gaming operation to submit 
statements, reports, or accountings, or keep specific records, that will 
enable the Commission to determine whether or not such operation:
    (1) Is liable for fees payable to the Commission and in what amount; 
and
    (2) Has properly and completely accounted for all transactions and 
other matters monitored by the Commission.
    (c) Books or records required by this section shall be kept at all 
times available for inspection by the Commission's authorized 
representatives. They shall be retained for no less than five (5) years.
    (d) A gaming operation shall maintain copies of all enforcement 
actions that a tribe or a state has taken against the operation, noting 
the final disposition of each case.



                   Subpart C_Subpoenas and Depositions



Sec. 571.8  Subpoena of witnesses.

    By majority vote the Commission may authorize the Chairman to 
require by subpoena the attendance and testimony of witnesses relating 
to any matter under consideration or investigation by the Commission. 
Witnesses so summoned shall be paid the same fees and mileage that are 
paid to witnesses in the courts of the United States.



Sec. 571.9  Subpoena of documents and other items.

    By majority vote the Commission may authorize the Chairman to 
require by subpoena the production of certain documents and other items 
that are material and relevant to facts in issue in any matter under 
consideration or investigation by the Commission.



Sec. 571.10  Geographical location.

    The attendance of witnesses and the production of books, papers, and 
documents, may be required from any place in the United States at any 
designated place of hearing.



Sec. 571.11  Depositions.

    (a) Any party wishing to depose a witness shall file a request with 
the Commission or, if a presiding official has been designated under 
part 577 of this chapter, to the presiding official. Such a request 
shall not be granted except for good cause shown. A Commissioner or a 
presiding official may order testimony to be taken by deposition in

[[Page 984]]

any proceeding or investigation pending before the Commission at any 
stage of such proceeding or investigation, except that Commission 
personnel may not be questioned by deposition for the purposes of 
discovery, but may be questioned by written interrogatories as 
authorized by the Commission or a presiding official. Commission records 
are not subject to discovery under this chapter. The inspection of 
Commission records is governed by Sec. 571.3 of this part and the 
Freedom of Information Act, 5 U.S.C. 552. Depositions under this section 
may be taken before any person designated by the Commission or a 
presiding official, and who has the power to administer oaths.
    (b) A party or a Commissioner (or a person designated by a 
Commissioner under paragraph (a) of this section) proposing to take a 
deposition under this section shall give reasonable notice to the 
Commission and the parties, if any, of the taking of a deposition. 
Notice shall include the name of the witness and the time and place of 
the deposition.
    (c) Every person deposed under this part shall be notified of his or 
her right to be represented by counsel during the deposition, and shall 
be required to swear or affirm to testify to the whole truth. Testimony 
shall be reduced to writing and subscribed by the deponent. Depositions 
shall be filed promptly with the Commission or, if a presiding official 
has been designated, with the presiding official.
    (d) Witnesses whose depositions are taken as authorized in this 
section, and the persons taking the same, shall be severally entitled to 
the same fees as are paid for like services in the courts of the United 
States.



                            Subpart D_Audits



Sec. 571.12  Audit standards.

    A tribe shall engage an independent certified public accountant to 
provide an annual audit of the financial statements of each gaming 
operation on Indian lands. Such financial statements shall be prepared 
in accordance with generally accepted accounting principles and the 
audit(s) shall be conducted in accordance with generally accepted 
auditing standards. Audit(s) of the gaming operation required under this 
section may be conducted in conjunction with any other independent audit 
of the tribe, provided that the requirements of this chapter are met.



Sec. 571.13  Copies of audit reports.

    A tribe shall submit to the Commission a copy of the report(s) and 
management letter(s) setting forth the results of each annual audit 
within 120 days after the end of each fiscal year of the gaming 
operation.



Sec. 571.14  Relationship of audited financial statements to fee 
assessment reports.

    A tribe shall reconcile its quarterly fee assessment reports, 
submitted under 25 CFR part 514, with its audited financial statements 
and make available such reconciliation upon request by the Commission's 
authorized representative.

                           PART 572 [RESERVED]



PART 573_ENFORCEMENT--Table of Contents




Sec.
573.1 Scope.
573.3 Notice of violation.
573.6 Order of temporary closure.

    Authority: 25 U.S.C. 2705(a)(1), 2706, 2713, 2715.

    Source: 58 FR 5844, Jan. 22, 1993, unless otherwise noted.



Sec. 573.1  Scope.

    This part sets forth general rules governing the Commission's 
enforcement of the Act, this chapter, and tribal ordinances and 
resolutions approved by the Chairman under part 522 or 523 of this 
chapter. Civil fines in connection with notice of violation issued under 
this part are addressed in part 575 of this chapter.



Sec. 573.3  Notice of violation.

    (a) The Chairman may issue a notice of violation to any person for 
violations of any provision of the Act or this chapter, or of any tribal 
ordinance or resolution approved by the Chairman under part 522 or 523 
of this chapter.

[[Page 985]]

    (b) A notice of violation shall contain:
    (1) A citation to the federal or tribal requirement that has been or 
is being violated;
    (2) A description of the circumstances surrounding the violation, 
set forth in common and concise language;
    (3) Measures required to correct the violation;
    (4) A reasonable time for correction, if the respondent cannot take 
measures to correct the violation immediately; and
    (5) Notice of rights of appeal.



Sec. 573.6  Order of temporary closure.

    (a) When an order of temporary closure may issue. Simultaneously 
with or subsequently to the issuance of a notice of violation under 
Sec. 573.3 of this part, the Chairman may issue an order of temporary 
closure of all or part of an Indian gaming operation if one or more of 
the following substantial violations are present:
    (1) The respondent fails to correct violations within:
    (i) The time permitted in a notice of violation; or
    (ii) A reasonable time after a tribe provides notice of a violation.
    (2) A gaming operation fails to pay the annual fee required by 25 
CFR part 514.
    (3) A gaming operation operates for business without a tribal 
ordinance or resolution that the Chairman has approved under part 522 or 
523 of this chapter.
    (4) A gaming operation operates for business without a license from 
a tribe, in violation of part 558 of this chapter.
    (5) A gaming operation operates for business without either 
background investigations having been completed for, or tribal licenses 
granted to, all key employees and primary management officials, as 
provided in Sec. 558.3(b) of this chapter.
    (6) There is clear and convincing evidence that a gaming operation 
defrauds a tribe or a customer.
    (7) A management contractor operates for business without a contract 
that the Chairman has approved under part 533 of this chapter.
    (8) Any person knowingly submits false or misleading information to 
the Commission or a tribe in response to any provision of the Act, this 
chapter, or a tribal ordinance or resolution that the Chairman has 
approved under part 522 or 523 of this chapter.
    (9) A gaming operation refuses to allow an authorized representative 
of the Commission or an authorized tribal official to enter or inspect a 
gaming operation, in violation of Sec. 571.5 or Sec. 571.6 of this 
chapter, or of a tribal ordinance or resolution approved by the Chairman 
under part 522 or 523 of this chapter.
    (10) A tribe fails to suspend a license upon notification by the 
Commission that a primary management official or key employee does not 
meet the standards for employment contained in Sec. 558.2 of this 
chapter, in violation of Sec. 558.5 of this chapter.
    (11) A gaming operation operates class III games in the absence of a 
tribal-state compact that is in effect, in violation of 25 U.S.C. 
2710(d).
    (12) A gaming operation's facility is constructed, maintained, or 
operated in a manner that threatens the environment or the public health 
and safety, in violation of a tribal ordinance or resolution approved by 
the Chairman under part 522 or 523 of this chapter.
    (b) Order effective upon service. The operator of an Indian gaming 
operation shall close the operation upon service of an order of 
temporary closure, unless the order provides otherwise.
    (c) Informal expedited review. Within seven (7) days after service 
of an order of temporary closure, the respondent may request, orally or 
in writing, informal expedited review by the Chairman.
    (1) The Chairman shall complete the expedited review provided for by 
this paragraph within two (2) days after his or her receipt of a timely 
request.
    (2) The Chairman shall, within two (2) days after the expedited 
review provided for by this paragraph:
    (i) Decide whether to continue an order of temporary closure; and
    (ii) Provide the respondent with an explanation of the basis for the 
decision.
    (3) Whether or not a respondent seeks informal expedited review 
under this

[[Page 986]]

paragraph, within thirty (30) days after the Chairman serves an order of 
temporary closure the respondent may appeal the order to the Commission 
under part 577 of this chapter. Otherwise, the order shall remain in 
effect unless rescinded by the Chairman for good cause.

                           PART 574 [RESERVED]



PART 575_CIVIL FINES--Table of Contents




Sec.
575.1 Scope.
575.3 How assessments are made.
575.4 When civil fine will be assessed.
575.5 Procedures for assessment of civil fines.
575.6 Settlement, reduction, or waiver of civil fine.
575.9 Final assessment.

    Authority: 25 U.S.C. 2705(a), 2706, 2713, 2715.

    Source: 58 FR 5844, Jan. 22, 1993, unless otherwise noted.



Sec. 575.1  Scope.

    This part addresses the assessment of civil fines under section 
2713(a) of the Act with respect to notices of violation issued under 
Sec. 573.3 of this chapter.



Sec. 575.3  How assessments are made.

    The Chairman shall review each notice of violation and order of 
temporary closure in accordance with Sec. 575.4 of this part to 
determine whether a civil fine will be assessed, the amount of the fine, 
and, in the case of continuing violations, whether each daily illegal 
act or omission will be deemed a separate violation for purposes of the 
total civil fine assessed.



Sec. 575.4  When civil fine will be assessed.

    The Chairman may assess a civil fine, not to exceed $25,000 per 
violation, against a tribe, management contractor, or individual 
operating Indian gaming for each notice of violation issued under Sec. 
573.3 of this chapter after considering the following factors:
    (a) Economic benefit of noncompliance. The Chairman shall consider 
the extent to which the respondent obtained an economic benefit from the 
noncompliance that gave rise to a notice of violation, as well as the 
likelihood of escaping detection.
    (1) The Chairman may consider the documented benefits derived from 
the noncompliance, or may rely on reasonable assumptions regarding such 
benefits.
    (2) If noncompliance continues for more than one day, the Chairman 
may treat each daily illegal act or omission as a separate violation.
    (b) Seriousness of the violation. The Chairman may adjust the amount 
of a civil fine to reflect the seriousness of the violation. In doing 
so, the Chairman shall consider the extent to which the violation 
threatens the integrity of Indian gaming.
    (c) History of violations. The Chairman may adjust a civil fine by 
an amount that reflects the respondent's history of violations over the 
preceding five (5) years.
    (1) A violation cited by the Chairman shall not be considered unless 
the associated notice of violation is the subject of a final order of 
the Commission and has not been vacated; and
    (2) Each violation shall be considered whether or not it led to a 
civil fine.
    (d) Negligence or willfulness. The Chairman may adjust the amount of 
a civil fine based on the degree of fault of the respondent in causing 
or failing to correct the violation, either through act or omission.
    (e) Good faith. The Chairman may reduce the amount of a civil fine 
based on the degree of good faith of the respondent in attempting to 
achieve rapid compliance after notification of the violation.



Sec. 575.5  Procedures for assessment of civil fines.

    (a) Within 15 days after service of a notice of violation, or such 
longer period as the Chairman may grant for good cause, the respondent 
may submit written information about the violation to the Chairman. The 
Chairman shall consider any information so submitted in determining the 
facts surrounding the violation and the amount of the civil fine.
    (b) The Chairman shall serve a copy of the proposed assessment on 
the respondent within thirty (30) days after

[[Page 987]]

the notice of violation was issued, when practicable.
    (c) The Chairman may review and reassess any civil fine if necessary 
to consider facts that were not reasonably available on the date of 
issuance of the proposed assessment.



Sec. 575.6  Settlement, reduction, or waiver of civil fine.

    (a) Reduction or waiver. (1) Upon written request of a respondent 
received at any time prior to the filing of a notice of appeal under 
part 577 of this chapter, the Chairman may reduce or waive a civil fine 
if he or she determines that, taking into account exceptional factors 
present in a particular case, the fine is demonstrably unjust.
    (2) All petitions for reduction or waiver shall contain:
    (i) A detailed description of the violation that is the subject of 
the fine;
    (ii) A detailed recitation of the facts that support a finding that 
the fine is demonstrably unjust, accompanied by underlying 
documentation, if any; and
    (iii) A declaration, signed and dated by the respondent and his or 
her counsel or representative, if any, as follows: Under penalty of 
perjury, I declare that, to the best of my knowledge and belief, the 
representations made in this petition are true and correct.
    (3) The Chairman shall serve the respondent with written notice of 
his or her determination under paragraph (a) of this section, including 
a statement of the grounds for the Chairman's decision.
    (b) Settlement. At any time prior to the filing of a notice of 
appeal under part 577 of this chapter, the Chairman and the respondent 
may agree to settle an enforcement action, including the amount of the 
associated civil fine. In the event a settlement is reached, a 
settlement agreement shall be prepared and executed by the Chairman and 
the respondent. If a settlement agreement is executed, the respondent 
shall be deemed to have waived all rights to further review of the 
violation or civil fine in question, except as otherwise provided 
expressly in the settlement agreement. In the absence of a settlement of 
the issues under this paragraph, the respondent may contest the assessed 
civil fine before the Commission in accordance with part 577 of this 
chapter.



Sec. 575.9  Final assessment.

    (a) If the respondent fails to request a hearing as provided in part 
577 of this chapter, the proposed civil fine assessment shall become a 
final order of the Commission.
    (b) Civil fines assessed under this part shall be paid by the person 
assessed and shall not be treated as an operating expense of the 
operation.
    (c) The Commission shall transfer civil fines paid under this 
subchapter to the U.S. Treasury.

[58 FR 5844, Jan. 22, 1993, as amended at 58 FR 16495, Mar. 29, 1993]

                           PART 576 [RESERVED]



PART 577_APPEALS BEFORE THE COMMISSION--Table of Contents




Sec.
577.1 Scope.
577.3 Request for hearing.
577.4 Hearing deadline.
577.6 Service.
577.7 Conduct of hearing.
577.8 Request to limit disclosure of confidential information.
577.9 Consent order or settlement.
577.12 Intervention.
577.13 Transcript of hearing.
577.14 Recommended decision of presiding official.
577.15 Review by Commission.

    Authority: 25 U.S.C. 2706, 2713, 2715.

    Source: 58 FR 5845, Jan. 22, 1993, unless otherwise noted.



Sec. 577.1  Scope.

    (a) This part provides procedures for appeals to the Commission 
regarding:
    (1) A violation alleged in a notice of violation;
    (2) Civil fines assessed by the Chairman;
    (3) Whether an order of temporary closure issued by the Chairman 
should be made permanent or be dissolved; and
    (4) The Chairman's decision to void or modify a management contract 
under part 535 of this chapter subsequent to initial approval.
    (b) Appeals from determinations of the Chairman under 25 U.S.C. 2710 
and 2711 (regarding management contracts)

[[Page 988]]

and 2710 (regarding tribal gaming ordinances) are addressed in parts 539 
and 524 of this chapter respectively.



Sec. 577.3  Request for hearing.

    (a) A respondent may request a hearing to contest the matters listed 
in Sec. 577.1(a)(1)-(4) by submitting a notice of appeal to the 
Commission within thirty (30) days after service of:
    (1) A notice of violation;
    (2) A proposed civil fine assessment or reassessment;
    (3) An order of temporary closure; or
    (4) An order voiding or modifying a management contract subsequent 
to initial approval.
    (b) A notice of appeal shall reference the notice or order from 
which the appeal is taken.
    (c) Within ten (10) days after filing a notice of appeal, the 
respondent shall file with the Commission a supplemental statement that 
states with particularity the relief desired and the grounds therefor 
and that includes, when available, supporting evidence in the form of 
affidavits. If the respondent wishes to present oral testimony or 
witnesses at the hearing, the respondent shall include a request to do 
so with the supplemental statement. The request to present oral 
testimony or witnesses shall specify the names of proposed witnesses and 
the general nature of their expected testimony, and whether a closed 
hearing is requested and why. The respondent may waive in writing his or 
her right to an oral hearing and instead elect to have the matter 
determined by the Commission solely on the basis of written submissions.



Sec. 577.4  Hearing deadline.

    (a) The Commission shall designate a presiding official who shall 
commence a hearing within 30 days after the Commission receives a timely 
notice of appeal from the respondent. At the request of the respondent, 
the presiding official may order the hearing to commence at a time more 
than 30 days after the respondent files a notice of appeal. The 
Commission shall transmit the administrative record of the case to the 
presiding official upon designation.
    (b) If the subject of an appeal is whether an order of temporary 
closure should be made permanent or be dissolved, the hearing shall be 
concluded within 30 days after the Commission receives a timely notice 
of appeal, unless the respondent waives this requirement. 
Notwithstanding any other provision of this part, the presiding official 
shall conduct such a hearing in a manner that will enable him or her to 
conclude the hearing within the period required by this paragraph, while 
ensuring due process to all parties.



Sec. 577.6  Service.

    (a) A respondent who initiates an appeal under this part shall serve 
copies of the initiating documents on the Commission at the address 
indicated in the notice or order that is the subject of the appeal. All 
filings shall be made with the Commission until a presiding official is 
designated and the parties are so notified, after which all filings 
shall be made with the presiding official. Any party or other person who 
subsequently files any other document with the Commission or the 
presiding officer shall simultaneously serve copies of that document on 
any other parties to the proceeding, except to that extent Sec. 577.8 
of this part may govern the disclosure of confidential information 
contained in a filing.
    (b) Copies of documents by which a proceeding is initiated shall be 
served on all known parties personally, by facsimile, or by registered 
or certified mail, return receipt requested. All subsequent documents 
shall be served personally, by facsimile, or by first class mail.
    (c) Service of copies of all documents is complete at the time of 
personal service or, if service is made by mail or facsimile, upon 
transmittal.
    (d) Whenever a representative (including an attorney) has entered an 
appearance for a party in a proceeding initiated under this part, 
service thereafter shall be made upon the representative.
    (e) In computing any period of time prescribed for filing and 
serving a document, the first day of the period so computed shall not be 
included. The last day shall be included unless it is a

[[Page 989]]

Saturday, Sunday, or federal legal holiday, in which case the period 
shall run until the end of the next business day.
    (f)(1) The presiding official may extend the time for filing or 
serving any document except a notice of appeal.
    (2) A request for an extension of time must be filed within the time 
originally allowed for filing.
    (3) For good cause the presiding official may grant an extension of 
time on his or her own initiative.



Sec. 577.7  Conduct of hearing.

    (a) Once designated by the Commission, the presiding official shall 
set the case for hearing. The respondent may appear at the hearing 
personally, through counsel, or personally with counsel. The respondent 
shall have the right to introduce relevant written materials and to 
present an oral argument. At the discretion of the presiding official, a 
hearing under this section may include an opportunity to submit oral and 
documentary evidence and cross-examine witnesses.
    (b) When holding a hearing under this part, the presiding official 
shall:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas authorized by the Commission;
    (3) Rule on offers of proof and receive relevant evidence;
    (4) Authorize exchanges of information (including depositions and 
interrogatories in accordance with 25 CFR part 571, subpart C) among the 
parties when to do so would expedite the proceeding;
    (5) Regulate the course of the hearing;
    (6) When appropriate, hold conferences for the settlement or 
simplification of the issues by consent of the parties;
    (7) At any conference held pursuant to paragraph (b)(6) of this 
section, require the attendance of at least one representative of each 
party who has authority to negotiate the resolution of issues in 
controversy;
    (8) Dispose of procedural requests or similar matters;
    (9) Recommend decisions in accordance with Sec. 577.14 of this 
part; and
    (10) Take other actions authorized by the Commission consistent with 
this part.
    (c) The presiding official may order the record to be kept open for 
a reasonable period following the hearing (normally five days), during 
which time the parties may make additional submissions to the record. 
Thereafter, the record shall be closed and the hearing shall be deemed 
concluded. Within 30 days after the record closes, the presiding 
official shall issue a recommended decision in accordance with Sec. 
577.14 of this part.



Sec. 577.8  Request to limit disclosure of confidential information.

    (a) If any person submitting a document in a proceeding that 
involves more than two parties claims that some or all of the 
information contained in that document is exempt from the mandatory 
public disclosure requirements under the Freedom of Information Act (5 
U.S.C. 552), is information referred to in 18 U.S.C. 1905 (disclosure of 
confidential information), or is otherwise exempt by law from public 
disclosure, the person shall:
    (1) Indicate that the document in its entirety is exempt from 
disclosure or identify and segregate information within the document 
that is exempt from disclosure; and
    (2) Request that the presiding official not disclose such 
information to the parties to the proceeding (other than the Chairman, 
whose actions regarding the disclosure of confidential information are 
governed by Sec. 571.3 of this chapter) except pursuant to paragraph 
(b) of this section, and shall serve the request upon the parties to the 
proceeding. The request to the presiding official shall include:
    (i) A copy of the document, group of documents, or segregable 
portions of the documents marked ``Confidential Treatment Requested''; 
and
    (ii) A statement explaining why the information is confidential.
    (b) A party to a proceeding may request that the presiding official 
direct a person submitting information under paragraph (a) of this 
section to provide that information to the party. The presiding official 
shall so direct if the

[[Page 990]]

party requesting the information agrees under oath and in writing:
    (1) Not to use or disclose the information except directly in 
connection with the hearing; and
    (2) To return all copies of the information at the conclusion of the 
proceeding to the person submitting the information under paragraph (a) 
of this section.
    (c) If a person submitting documents in a proceeding under this part 
does not claim confidentiality under paragraph (a) of this section, the 
presiding official may assume that there is no objection to disclosure 
of the document in its entirety.
    (d) If the presiding official determines that confidential treatment 
is not warranted with respect to all or any part of the information in 
question, the presiding official shall so inform all parties by 
telephone, if possible, and by facsimile or express mail letter directed 
to the parties' last known addresses. The person requesting confidential 
treatment then shall be given an opportunity to withdraw the document 
before it is considered by the presiding official, or to disclose the 
information voluntarily to all parties.
    (e) If the presiding official determines that confidential treatment 
is warranted, the presiding official shall so inform all parties by 
facsimile or express mail directed to the parties' last known address.
    (f) When a decision by a presiding official is based in whole or in 
part on evidence not included in the public record, the decision shall 
so state, specifying the nature of the evidence and the provision of law 
under which disclosure was denied, and the evidence so considered shall 
be retained under seal as part of the official record.



Sec. 577.9  Consent order or settlement.

    (a) General. At any time after the commencement of a proceeding, but 
at least five (5) days before the date set for hearing under Sec. 577.7 
of this part, the parties jointly may move to defer the hearing for a 
reasonable time to permit negotiation of a settlement or an agreement 
containing findings and an order disposing of the whole or any part of 
the proceeding.
    (b) Content. Any agreement containing consent findings and an order 
disposing of the whole or any part of a proceeding shall also provide:
    (1) A waiver of any further procedural steps before the Commission;
    (2) A waiver of any right to challenge or contest the validity of 
the order and decision entered into in accordance with the agreement; 
and
    (3) That the presiding official's certification of the findings and 
agreement shall constitute dismissal of the appeal and final agency 
action.
    (c) Submission. Before the expiration of the time granted for 
negotiations, the parties or their authorized representatives may:
    (1) Submit to the presiding official a proposed agreement containing 
consent findings and an order;
    (2) Notify the presiding official that the parties have reached a 
full settlement and have agreed to dismissal of the action, subject to 
compliance with the terms of the settlement; or
    (3) Inform the presiding official that agreement cannot be reached.
    (d) Disposition. In the event a settlement agreement containing 
consent findings and an order is submitted within the time granted, the 
presiding official shall certify such findings and agreement within 
thirty (30) days after his or her receipt of the submission. Such 
certification shall constitute dismissal of the appeal and final agency 
action.



Sec. 577.12  Intervention.

    (a) Persons other than the respondent may be permitted to 
participate as parties if the presiding official finds that:
    (1) The final decision could directly and adversely affect them or 
the class they represent;
    (2) They may contribute materially to the disposition of the 
proceedings;
    (3) Their interest is not adequately represented by existing 
parties; and
    (4) Intervention would not unfairly prejudice existing parties or 
delay resolution of the proceeding.
    (b) If a tribe has jurisdiction over lands on which there is a 
gaming operation that is the subject of a proceeding under this part, 
and the tribe is not already a named party, such

[[Page 991]]

tribe may intervene as a matter of right.
    (c) A person not named as a party and who wishes to participate as a 
party under this section shall submit a petition to the presiding 
official within ten (10) days after the person knew or should have known 
about the proceeding. The petition shall be filed with the presiding 
official and served on each person who has been made a part at the time 
of filing. The petition shall state concisely:
    (1) Petitioner's interest in the proceeding;
    (2) How his or her participation as a party will contribute 
materially to the disposition of the proceeding;
    (3) Who will appear for petitioner;
    (4) The issues on which petitioner wishes to participate; and
    (5) Whether petitioner wishes to present witnesses.
    (d) Objections to the petition may be filed by any party within ten 
(10) days after service of the petition.
    (e) When petitions to participate as parties are made by individuals 
or groups with common interests, the presiding official may request all 
such petitioners to designate a single representative, or he or she may 
recognize one or more petitioners.
    (f) The presiding official shall give each petitioner, as well as 
the parties, written notice of the presiding official's decision on the 
petition. For each petition granted, the presiding official shall 
provide a brief statement of the basis of the decision. If the petition 
is denied, the presiding official shall briefly state the grounds for 
denial and may then treat the petition as a request for participation as 
amicus curiae (that is, ``friend of the court'').



Sec. 577.13  Transcript of hearing.

    Hearings under this part that involve oral presentations shall be 
recorded verbatim and transcripts thereof shall be provided to parties 
upon request. Fees for transcripts shall be at the actual cost of 
duplication.



Sec. 577.14  Recommended decision of presiding official.

    (a) Recommended decision. Within thirty (30) days after the record 
closes, the presiding official shall render his or her recommended 
decision. The recommended decision of the presiding official shall be 
based upon the whole record and shall include findings of fact and 
conclusions of law upon each material issue of fact or law presented on 
the record.
    (b) Filing of objections. Within ten (10) days after the date of 
service of the presiding official's recommended decision, the parties 
may file with the Commission objections to any aspect of the decision, 
and the reasons therefor.



Sec. 577.15  Review by Commission.

    The Commission shall affirm or reverse, in whole or in part, the 
recommended decision of the presiding official by a majority vote within 
thirty (30) days after the date on which the presiding official issued 
the decision. The Commission shall provide a notice and order to all 
parties stating the reasons for its action. In the absence of a majority 
vote by the Commission within the time provided by this section, the 
recommended decision of the presiding official shall be deemed affirmed 
except that, if the subject of the appeal is an order of temporary 
closure issued under Sec. 573.6 of this chapter, the order of temporary 
closure shall be dissolved.

                        PARTS 578-579 [RESERVED]



                         SUBCHAPTER H [RESERVED]



                        PARTS 580-589 [RESERVED]

[[Page 992]]



                         SUBCHAPTER I [RESERVED]



                        PARTS 590-599 [RESERVED]

[[Page 993]]



       CHAPTER IV--THE OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION




  --------------------------------------------------------------------
Part                                                                Page
700             Commission operations and relocation 
                    procedures..............................         995
720             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Navajo and 
                    Hopi Indian Relocation Commission.......        1073
721-899         [Reserved]

[[Page 995]]



PART 700_COMMISSION OPERATIONS AND RELOCATION PROCEDURES--Table of 
Contents




               Subpart A_General Policies and Instructions

Sec.
700.1 Purpose.
700.3 Assurances with respect to acquisition and displacement.
700.5 Supersedure of regulations.
700.11 Manner of notice.
700.13 Waiver of regulations.
700.15 Waiver of rights by owner.

                               Definitions

700.31 Applicability of definitions.
700.33 Act (The Act).
700.35 Applicant.
700.37 Application for relocation assistance benefits and agreement to 
          move.
700.39 Appraisal.
700.41 Appraiser.
700.43 Assistance payment.
700.45 Business.
700.47 Commission.
700.49 Certified eligible head of household.
700.51 Custodial parent.
700.53 Dwelling, replacement.
700.55 Decent, safe, and sanitary dwelling.
700.57 Dependent.
700.59 Displaced person.
700.61 Fair market value.
700.65 Farm operation.
700.67 Habitation.
700.69 Head of household.
700.71 Improvements.
700.77 Livestock.
700.79 Marriage.
700.81 Monthly housing cost.
700.83 Nonprofit organization.
700.85 Owner.
700.87 Person.
700.89 Relocation contract.
700.91 Relocation report.
700.93 Relocation plan.
700.95 Replacement housing funds.
700.97 Residence.
700.99 Salvage value.
700.101 Single person.
700.103 Uniform Act.
700.105 Utility charges.

  Subpart B_Acquisition and Disposal of Habitations and/or Improvements

700.111 Applicability of acquisition requirements.
700.113 Basic acquisition policies.
700.115 Preliminary acquisition notice.
700.117 Criteria for appraisals.
700.119 Establishment of fair market value.
700.121 Statement of the basis for the determination of fair market 
          value.
700.123 Expenses incidental to transfer of ownership to the Commission.
700.125 Disposal of property.
700.127 Payments for acquisition of improvements.

                Subpart C_General Relocation Requirements

700.131 Purpose and applicability.
700.133 Notice of displacement.
700.135 Relocation assistance advisory services.
700.137 Final date for voluntary relocation application.
700.138 Persons who have not applied for voluntary relocation by July 7, 
          1986.
700.139 Referral for action.
700.141 General requirements--claims for relocation payments.
700.143 Payments for divorced or separated relocatees.
700.145 Payments to estates.
700.147 Eligibility.

    Subpart D_Moving and Related Expenses, Temporary Emergency Moves

700.151 Eligibility.
700.153 Actual reasonable moving and related expenses--residential 
          moves.
700.155 Expenses in searching for replacement dwelling--residential 
          move.
700.157 Actual reasonable moving and related expenses--nonresidential 
          moves.
700.159 Payment for direct loss of personal property--nonresidential 
          moves.
700.161 Substitute personal property--nonresidential moves.
700.163 Expenses in searching for replacement location--nonresidential 
          moves.
700.165 Ineligible moving and related expenses.
700.167 Moving and related expenses--fixed payment.
700.169 Fixed payment for moving expenses--residential moves.
700.171 Fixed payment for moving expenses--nonresidential moves.
700.173 Average net earnings of business or farm.
700.175 Temporary emergency moves.

                 Subpart E_Replacement Housing Payments

700.181 Eligibility.
700.183 Determination of replacement housing benefit.
700.187 Utilization of replacement home benefits.
700.189 Expenditure of replacement home benefits.

                      Subpart F_Incidental Expenses

700.195 General.

[[Page 996]]

700.197 Basic eligibility requirements.
700.199 Incidental expenses.

             Subpart G_Assistance Payments (Incentive Bonus)

700.205 Eligibility requirements.

                Subpart H_Last Resort Replacement Housing

700.209 Applicability.
700.211 Basic rights and rules.
700.213 Methods of providing last resort replacement housing.

                     Subpart I_Commission Operations

700.219 General.

                     Subpart J_Inspection of Records

700.235 Purpose and scope.
700.237 Definitions.
700.239 Records available.
700.241 Request for records.
700.243 Action on initial requests.
700.245 Time limits on processing of initial requests.
700.247 Appeals.
700.249 Action on appeals.
700.251 Fees.

                          Subpart K_Privacy Act

700.255 Purpose and scope.
700.257 Definitions.
700.259 Records subject to Privacy Act.
700.261 Standards for maintenance of records subject to the Act.
700.263 Assuring integrity of records.
700.265 Conduct of employees.
700.267 Disclosure of records.
700.269 Accounting for disclosures.
700.271 Requests for notification of existence of records: Submission.
700.273 Request for notification of existence of records: Action on.
700.275 Requests for access to records.
700.277 Requests for access to records: Submission.
700.279 Requests for access to records: Initial decision.
700.281 Requests for notification of existence of records and for access 
          to records: Appeals.
700.283 Requests for access to records: Special situations.
700.285 Amendment of records.
700.287 Petitions for amendment: Submission and form.
700.289 Petitions for amendment: Processing and initial decision.
700.291 Petitions for amendment: Time limits for processing.
700.293 Petitions for amendment: Appeals.
700.295 Petitions for amendment: Action on appeals.
700.297 Statements of disagreement.

   Subpart L_Determination of Eligibility, Hearing and Administrative 
                            Review (Appeals)

700.301 Definitions.
700.303 Initial Commission determinations.
700.305 Availability of hearings.
700.307 Request for hearings.
700.309 Presiding officers.
700.311 Hearing scheduling and documents.
700.313 Evidence and procedure.
700.315 Post-hearing briefs.
700.317 Presiding officer decisions.
700.319 Final agency action.
700.321 Direct appeal to Commissioners.

                      Subpart M_Life Estate Leases

700.331 Application for life estate leases.
700.333 Determination of disability.
700.335 Grouping and granting of applications for life estate leases.
700.337 Establishment of boundaries of life estate leases.
700.339 Residency on life estate leases.
700.341 Access to life estate leases.
700.343 Life estate leases.

                      Subpart N_Discretionary Funds

700.451 Purpose.
700.453 Definitions.
700.455 Financial assistance.
700.457 Assistance to match or pay 30% of grants, contracts or other 
          expenditures.
700.459 Assistance for demonstration projects and for provision of 
          related facilities and services.
700.461 Method for soliciting applications.
700.463 Requirements for applications.
700.465 Technical feasibility.
700.467 Construction costs.
700.469 Unallowable program and project costs.
700.471 Review and approval.
700.473 Administrative expenditures of the Commission.
700.475 Reports.
700.477 Administration of financial assistance and recordkeeping 
          requirements.
700.479 Administrative review.

              Subpart O_Employee Responsibility and Conduct

700.501 Statement of purpose.
700.503 Definitions.
700.505 Coverage.
700.507 Responsibilities.
700.509 Duties of the designated agency ethics official.
700.511 Statements of employment and financial interests.
700.513 Business dealings on behalf of the government.

[[Page 997]]

700.515 Conflicts of interest.
700.517 Affiliations and financial interests.
700.519 Gifts, entertainment and favors.
700.521 Outside work and interests.
700.523 Business relationships among employees.
700.525 Use of government information or expertise.
700.527 Endorsements.
700.529 Negotiations for employment.
700.531 Government property.
700.533 Restrictions affecting travel and travel expense reimbursement.
700.535 Nepotism.
700.537 Indebtedness.
700.539 Soliciting contributions.
700.541 Fraud or false statement in a Government matter.
700.543 Gambling.
700.545 Alcoholism and drug abuse.
700.547 Consuming intoxicants on Government premises or during duty 
          hours.
700.549 Employee organizations.
700.551 Franking privilege and official stationery.
700.553 Use of official titles.
700.555 Notary services.
700.557 Political activity.
700.559 Equal opportunity.
700.561 Sexual harassment.
700.563 Statutory restrictions from 18 U.S.C. 207, which are applicable 
          to former Government employees.
700.565 Miscellaneous statutory provisions.

                   Subpart P_Hopi Reservation Evictees

700.601 Definitions.
700.603 Eligibility.
700.605 Relocation assistance.
700.607 Dual eligibility.
700.609 Appeals.
700.611 Application deadline.

                       Subpart Q_New Lands Grazing

700.701 Definitions.
700.703 Authority.
700.705 Objectives.
700.707 Regulations; scope.
700.709 Grazing privileges.
700.711 Grazing permits.
700.713 Tenure of grazing permits.
700.715 Assignment, modification, and cancellation of grazing permits.
700.717 Stocking rate.
700.719 Establishment of grazing fees.
700.721 Range management plans.
700.722 Grazing associations.
700.723 Control of livestock disease and parasites.
700.725 Livestock trespass.
700.727 Impoundment and disposal of unauthorized livestock.
700.729 Amendments.
700.731 Appeals.

            Subpart R_Protection of Archaeological Resources

700.801 Purpose.
700.803 Authority.
700.805 Definitions.
700.807 Prohibited Acts.
700.809 Permit requirements and exceptions.
700.811 Application for permits and information collection.
700.813 Notification of Indian Tribes of possible harm to, or 
          destruction of, sites on public lands having religious or 
          cultural importance.
700.815 Issuance of permits.
700.817 Terms and conditions of permits.
700.819 Suspension and revocation of permits.
700.821 Appeals relating to permits.
700.823 Permit reviews and disputes.
700.825 Relationship to section 106 of the National Historic 
          Preservation Act.
700.827 Custody of Archaeological resources.
700.829 Determination of archaeological or commercial value and cost of 
          restoration and repair.
700.831 Assessment of civil penalties.
700.833 Civil penalty amounts.
700.835 Other penalties and rewards.
700.837 Confidentiality of archaeological resource information.
700.839 Report.
700.841 Determination of loss or absence of archaeological interest.
700.843 Permitting procedures for Navajo Nation Lands.

    Authority: Pub. L. 99-590; Pub. L. 93-531, 88 Stat. 1712 as amended 
by Pub. L. 96-305, 94 Stat. 929, Pub. L. 100-666, 102 Stat. 3929 (25 
U.S.C. 640d).

    Source: 47 FR 2092, Jan. 14, 1982, unless otherwise noted.



               Subpart A_General Policies and Instructions



Sec. 700.1  Purpose.

    The purpose of this part is to implement provisions of the Act of 
December 22, 1974 (Pub. L. 93-531, 88 Stat. 1712 as amended by Pub. L. 
96-305, 94 Stat. 929), hereinafter referred to as the Act, in accordance 
with the following objectives--
    (a) To insure that persons displaced as a result of the Act are 
treated fairly, consistently, and equitably so that these persons will 
not suffer the disproportionate adverse, social, economic, cultural and 
other impacts of relocation.
    (b) To set forth the regulations and procedures by which the 
Commission

[[Page 998]]

shall operate; and implement the provisions of the Act.
    (c) To establish standards consistent with those established in the 
implementation of the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 (84 Stat. 1894, 42 U.S.C. 4601 et. 
seq., Pub. L. 91-646), hereinafter referred to as the Uniform Act.
    (d) To insure that owners of habitations and other improvements to 
be acquired pursuant to the Act are treated fairly and consistently, to 
encourage and expedite acquisition by agreements with such owners, to 
minimize litigation, relieve congestion in the courts and to promote 
public confidence in the Commission's relocation program.
    (e) To facilitate development of a relocation plan according to the 
Act and carry out the directed relocation as promptly and fairly as 
possible, with a minimum of hardship and discomfort to the relocation, 
in accordance with the Act.



Sec. 700.3  Assurances with respect to acquisition and displacement.

    The Commission will not approve any programs or projects which may 
result in the acquisition of habitations and/or improvements, or in the 
displacement of any person, until such time as written assurances are 
submitted to the Commission that such projects or programs are in 
accordance with the Act. It will--
    (a) Assure that, within a reasonable period of time prior to 
displacement, adequate, decent, safe and sanitary replacement dwellings 
(defined at Sec. 700.55) will be available to all certified eligible 
heads of households.
    (b) Carry out relocation services in a manner that will promote 
maximum quality in housing.
    (c) Inform affected persons of their rights under the policies and 
procedures set forth under the regulations in this part.



Sec. 700.5  Supersedure of regulations.

    These regulations supersede the regulations formerly appearing in 
this part. However, any acquisition of property or displacement of a 
person occurring prior to the effective date of these regulations shall 
continue to be governed by the regulations at 25 CFR part 700 in effect 
at the time of the acquisition or displacement.



Sec. 700.11  Manner of notice.

    Each notice which the Commission is required to provide under these 
regulations shall be personally served, receipt documented, or sent by 
certified or registered first-class mail, return receipt requested. Each 
notice shall be written in plain understandable language. Recipients who 
notify the Commission that they are unable to read and understand the 
notice will be provided with appropriate translation and counseling. 
Each notice shall indicate the name and telephone number of a person who 
may be contacted for answers to questions or other needed help.



Sec. 700.13  Waiver of regulations.

    (a) Any time limit specified for the filing of a claim or an appeal 
under the regulations in this part may, on a case by case basis, be 
extended by the Commission.
    (b) The Commission may waive any requirement of these regulations in 
this part if such requirement is not required by law and if the 
Commission finds such waiver or exception to be in the best interest of 
individual Indian applicants, the Commission, and the United States. Any 
request for a Commission waiver shall be submitted in writing to the 
Commission and shall be justified on a case by case basis.



Sec. 700.15  Waiver of rights by owner.

    Nothing in these regulations shall prevent a fully informed 
applicant from voluntarily waiving any of his/her rights under the 
regulations in this part. A waiver of rights shall in no way constitute 
an exemption from the requirement to relocate pursuant to the Act.

                               Definitions



Sec. 700.31  Applicability of definitions.

    Except where otherwise noted, the definitions appearing in this 
subpart A apply to the regulations in this part.

[[Page 999]]



Sec. 700.33  Act (The Act).

    (a) The Act. The Act is Pub. L. 93-531, (88 Stat. 1712, 25 U.S.C. 
640d.) as amended by Pub. L. 96-305 (94 Stat. 929).



Sec. 700.35  Applicant.

    A person who applies for relocation assistance benefits and agrees 
to relocate as required by the Act.



Sec. 700.37  Application for relocation assistance benefits and 
agreement to move.

    The application for relocation assistance benefits and agreement to 
move is Commission Form 69-R0001, completion of which is used 
for establishing the date upon which a person shall be deemed to have a 
contract with the Commission to relocate pursuant to section 14(b) of 
the Act.



Sec. 700.39  Appraisal.

    The appraisal is an estimate of the fair market value which is 
placed on the habitation and other improvements owned by a relocatee.



Sec. 700.41  Appraiser.

    An appraiser is a person appointed or hired by the Commission to 
make an appraisal of the habitation and other improvements on the land 
owned by the relocatees. All compensation for the appraiser shall be 
paid by the Commission.



Sec. 700.43  Assistance payment.

    An assistance payment is the additional payment made to the 
certified eligible head of household pursuant to section 14(b) of the 
Act. This term is synonymous with ``incentive bonus''.



Sec. 700.45  Business.

    The term business means any lawful activity, except a nonprofit 
organization or a farm operation, that is--
    (a) Conducted primarily for the purchase, sale, lease and or rental 
of personal and/or real property, and/or for the manufacture, 
processing, and/or marketing of products, commodities, and/or any other 
personal property; or
    (b) Conducted primarily for the sale of services to the public; or
    (c) Solely for the purpose of subpart D of this part, conducted 
primarily for outdoor advertising display purposes, when the display(s) 
must be moved as a result of the Act.



Sec. 700.47  Commission.

    The Navajo and Hopi Indian Relocation Commission is that entity 
established pursuant to 25 U.S.C. 640d-11 (section 12(a) of the Act).



Sec. 700.49  Certified eligible head of household.

    A certified eligible head of household is a person who has received 
notice from the Commission that he/she has been certified as eligible to 
receive certain relocation assistance benefits.



Sec. 700.51  Custodial parent.

    A custodial parent is a person who has the immediate personal care, 
charge, and control of a minor child who resides in his/her household, 
or a person who fills the parental role but who is not necessarily 
blood-related.



Sec. 700.53  Dwelling, replacement.

    The term replacement dwelling means a dwelling selected by the head 
of a household as a replacement dwelling that meets the criteria of this 
section. A replacement dwelling is a dwelling that:
    (a) Is decent, safe, and sanitary as described in Sec. 700.55.
    (b) May include existing dwellings for resale, new construction, 
modular homes, mobile homes, mutual self-help housing or other federally 
assisted housing programs.
    (c) Is in an area not subjected to unreasonable adverse 
environmental conditions from either natural or man-made sources and in 
an area not generally less desirable than that of the acquired dwelling 
with respect to public utilities, public and commercial facilities, and 
schools.
    (d) Is available at a purchase price within the ability-to-pay of 
the displaced person. A replacement dwelling shall be considered within 
the ability-to-pay of the displaced person if, after he receives a 
replacement housing payment and any available housing assistance 
payments, his new monthly housing cost (defined at Sec. 700.81) for the 
replacement dwelling does not exceed twenty-five percent (25%) of the

[[Page 1000]]

monthly gross income of all adult members of the household, including 
supplemental income payments received from public agencies. If the 
person's monthly income pattern is irregular, the Commission shall base 
its determination of average gross monthly income on the period of time, 
actual and/or projected, that most fairly and equitable represents the 
person's ability-to-pay.
    (e) Is actually available to the displaced person on the private 
market, other federally sponsored housing projects, tribal-sponsored 
housing projects and/or Commission-sponsored housing projects.



Sec. 700.55  Decent, safe, and sanitary dwelling.

    (a) General. The term decent, safe, and sanitary dwelling means a 
dwelling which--
    (1) Meets applicable federal, state and local housing and occupancy 
codes; including but not limited to the Uniform Building Code, National 
Electrical Code, ICBO Plumbing Code, the Uniform Mechanical Code, HUD 
Minimum Property Standards, and HUD Mobile Home Construction and Safety 
Standards (24 CFR part 4080).
    (2) Is structurally sound, clean, weathertight and in good repair 
and has adequate living space and number of rooms.
    (3) Has an adequate and safe electrical wiring system for lighting 
and other electrical services where economically feasible.
    (4) Meets the requirements of the HUD lead-based paint regulations 
(24 CFR part 42) issued under the Lead-Based Paint Poisoning Prevention 
Act (42 U.S.C. 4831 et seq.);
    (5) In the case of a physically handicapped person, is free of any 
architectural barriers. To the extent that standards prescribed by the 
American National Standards Institute, Inc., in publication ANSI A117.1-
1961 (R 1971), are pertinent, this provision will be considered met if 
it meets those standards;
    (6) Has heating as required by climatic conditions;
    (7) Has habitable sleeping area that is adequately ventilated and 
sufficient to accommodate the occupants;
    (8) Has a separate well-lighted and ventilated bathroom, affording 
privacy to the user, that contains a sink and bathtub or shower stall, 
properly connected to hot and cold water, and a flush toilet, all in 
good working order and properly connected to a sewage drainage system; 
and
    (9) In the case of new construction or modular housing, complies 
with the energy performance standards for new buildings set forth by the 
U.S. Department of Energy.
    (10) The Commission may waive paragraph (a)(3) or (8) of this 
section on a case-by-case basis if it is determined that it is in the 
best interest of the individual relocatee to do so.



Sec. 700.57  Dependent.

    A dependent is a person who either derives more than one-half of 
his/her support from another or is under the custody, control and care 
of another. In instances where there are conflicting claims for the 
dependent status of a person in more than one household, the household 
of the person having custody, control and care shall be determined to be 
the household wherein the person is a dependent.



Sec. 700.59  Displaced person.

    Displaced person means a member of the Hopi Tribe residing within 
the area partitioned to the Navajo Tribe or a member of the Navajo Tribe 
residing within the area partitioned to the Hopi Tribe who must be 
relocated pursuant to the Act. This term is synonymous with the term 
``relocatee''.



Sec. 700.61  Fair market value.

    Fair market value shall mean the value placed on the habitation and 
improvements owned by each head of household as determined pursuant to 
Sec. Sec. 700.117 through 700.121.



Sec. 700.65  Farm operation.

    Farm operation means any activity conducted for the production of 
one or more agricultural products or commodities including livestock, 
crops and timber for sale or home use, and customarily producing such 
products or commodities in sufficient quantity to be capable of 
contributing materially

[[Page 1001]]

to the operator's support as determined in Sec. 700.171(b)(3).



Sec. 700.67  Habitation.

    The term habitation means the dwelling(s) of each household required 
to relocate under the term of the Act.



Sec. 700.69  Head of household.

    (a) Household. A household is:
    (1) A group of two or more persons living together at a specific 
location who form a unit of permanent and domestic character.
    (2) A single person who at the time his/her residence on land 
partitioned to the Tribe of which he/she is not a member actually 
maintained and supported him/herself or was legally married and is now 
legally divorced.
    (b) Head of household. The head of household is that individual who 
speaks on behalf of the members of the household and who is designated 
by the household members to act as such.
    (c) In order to qualify as a head of household, the individual must 
have been a head of household as of the time he/she moved from the land 
partitioned to a tribe of which they were not a member.

[49 FR 22278, May 29, 1984]



Sec. 700.71  Improvements.

    Improvements are structures and attached fixtures to the land owned 
by a member of a household required to relocate under the terms of the 
Act, in addition to the habitation which improvements cannot readily be 
moved without substantial damage, or whose movement would require 
unreasonable cost.



Sec. 700.77  Livestock.

    The term livestock shall mean all domesticated animals of every type 
owned by the displaced person.



Sec. 700.79  Marriage.

    Marriage is a legally recorded marriage or a traditional commitment 
between a man or woman recognized by the law of the Hopi Tribe or the 
Navajo Tribe.



Sec. 700.81  Monthly housing cost.

    (a) General. The term monthly housing cost for a replacement 
dwelling purchased by a certified eligible head of household is the 
average monthly cost for all mortgage payments, real property taxes, 
reasonable utility charges, and insurance.
    (b) Computation of monthly housing cost for replacement dwelling. A 
person's monthly housing cost for a replacement dwelling shall be a 
projected amount that includes one-twelfth of the estimated reasonable 
annual cost for utility charges.



Sec. 700.83  Nonprofit organization.

    The term nonprofit organization means a corporation, individual, or 
other public or private entity that is engaged in a lawful business, 
professional, or instructional activity on a nonprofit basis and that 
has established its nonprofit status under applicable Federal, State, or 
Tribal law.



Sec. 700.85  Owner.

    The term owner means the person who holds any interest in 
habitations and improvements to be acquired by the Commission pursuant 
to section 15(a) of the Act, which the Commission determines warrants 
consideration of ownership.



Sec. 700.87  Person.

    The term person means any individual, partnership, corporation, or 
association.



Sec. 700.89  Relocation contract.

    The Relocation Contract is that contract signed by the head of 
household in which he/she agrees to purchase an existing house or to 
construct a new house, the owner of such existing house or the builder 
of the proposed new house agrees to sell or perform the construction, 
and the Commission agrees to make payments according to such agreement.

[47 FR 17988, Apr. 27, 1982]



Sec. 700.91  Relocation report.

    The relocation report shall be the report prepared by the Commission 
and submitted to Congress pursuant to section 13(a) of the Act.

[[Page 1002]]



Sec. 700.93  Relocation plan.

    The relocation plan shall be the plan prepared by the Commission and 
submitted to Congress pursuant to section 13(c) of the Act.



Sec. 700.95  Replacement housing funds.

    Replacement housing funds means those funds authorized to be 
appropriated pursuant to section 25(a)(1) of the Act.



Sec. 700.97  Residence.

    (a) Residence is established by proving that the head of household 
and/or his/her immediate family were legal residents as of December 22, 
1974, of the lands partitioned to the Tribe of which they are not 
members.

[49 FR 22278, May 29, 1984]



Sec. 700.99  Salvage value.

    Salvage value means the probable sale price of an item, if offered 
for sale on the condition that it will be removed from the property at 
the buyer's expense, allowing a reasonable period of time to find a 
person buying with knowledge of the uses and purposes for which it is 
adaptable and capable of being used, including separate use of 
serviceable components and scrap when there is no reasonable prospect of 
sale except on that basis.



Sec. 700.101  Single person.

    A single person is a widow, widower, unmarried or divorced person.



Sec. 700.103  Uniform Act.

    The term Uniform Act means the Uniform Relocation Assistance and 
Real Property Acquisition Policies Act of 1970 (84 Stat. 1894; 42 U.S.C. 
4601 et seq.; Pub. L. 91-646).



Sec. 700.105  Utility charges.

    Utility charges means the cost for heat, lighting, hot water, 
electricity, natural gas, butane, propane, wood, coal or other fuels 
water, sewer and trash removal.



  Subpart B_Acquisition and Disposal of Habitations and/or Improvements



Sec. 700.111  Applicability of acquisition requirements.

    General. The requirements of this subpart B apply to all Commission 
acquisition of habitations and/or improvements that occur on or after 
the effective date of these regulations.



Sec. 700.113  Basic acquisition policies.

    (a) Appraisal and invitation to owner. Before the initiation of 
negotiations, the Commission shall have the habitations and/or 
improvements appraised to its satisfaction and will attempt to assure 
that the owner or his designated representative is contacted in advance 
of the appraisal(s) and given an opportunity to accompany each appraiser 
during the appraiser's inspection of the property.
    (b) Determination and offer of fair market value. Before the 
initiation of negotiations, the Commission shall establish an amount 
which it believes is fair market value for improvements. This amount 
shall be based on a current appraisal at the time negotations commence 
for the Relocation Contract between the NHIRC and the relocatee. The 
appraisal will be adjusted according to the Boeckh Building Cost 
Modifier for time or any physical changes in the improvements. If any 
changes are necessary the appraisal will be corrected to reflect a 
current dollar value. The amount of the current appraisal will be 
offered as just compensation for the improvements acquired, except as 
provided in paragraph (d) of this section. A copy of the initial 
appraisal will be sent to the owner as soon as possible after the 
appraisal program is completed.
    (c) Basic negotiation procedures. The Commission will attempt to 
meet with the owner or his/her representative to discuss its offer to 
purchase his/her property including the basis for the determination of 
fair market value and explain acquisition policies and procedures, 
including payment of incidental expenses. The owner shall be given 
reasonable opportunity to present material which he/she believes is 
relevant to determining the value of the property

[[Page 1003]]

and to suggest modification in the proposed terms and conditions of the 
purchase. The Commission shall consider the owner's presentation.
    (d) If the condition of the property indicates the need for a new 
appraisal or if a significant delay has occurred since the time of the 
latest appraisal of the property, the Commission shall have the 
appraisal updated or obtain a new appraisal. If a new appraisal is for a 
lesser value than the previous appraisal and said lesser value is due to 
damage done to the property during the time between the two appraisals, 
and such damage was not caused by the owner of the improvement, the 
owner shall be entitled to the higher appraisal value.
    (e) [Reserved]
    (f) Objection to determination of fair market value. If the owner 
objects to the Commission's determination of fair market value, the 
owner may request a hearing pursuant to the Commission's Hearing and 
Administrative Review procedures;
    (g) Payment before taking possession. Before requiring an owner to 
surrender possession of his habitations and/or improvements, the 
Commission shall--
    (1) Apply the agreed purchase price towards the acquisition price of 
the replacement dwelling or;
    (2) Deposit with the court in an appropriate proceeding, such as 
divorce or probate, for the benefit of the owner, an amount not less 
than the Commission's determination of fair market value for the 
property or the court award of compensation for the property up to the 
maximum benefit allowed under the then existing replacement housing 
benefit.



Sec. 700.115  Preliminary acquisition notice.

    As soon as feasible in the acquisition process, the Commission shall 
issue a preliminary acquisition notice to the owner. The notice shall--
    (a) Inform the owner of the Commission's interest in acquiring his/
her habitations and/or improvements.
    (b) Explain that such preliminary acquisition notice is not a notice 
to vacate and that it does not establish eligibility for relocation 
payments or other relocation assistance under these regulations.



Sec. 700.117  Criteria for appraisals.

    (a) Appraisal standards. The Commission's appraisals shall be based 
upon nationally recognized appraisal standards and techniques to the 
extent that such principles are consistent with the concepts of value 
that the Commission may establish.
    (b) Documentation. Appraisal reports must contain sufficient 
documentation, including supporting valuation data and the appraiser's 
analyses of that data, to demonstrate the reasonableness of the 
appraiser's opinion(s) of value.
    (c) Conflict of interest. No appraiser shall have any interest, 
direct or indirect, in the habitations and/or improvements which he 
appraisers for the Commission that would in any way conflict with his 
performance of the appraisal.



Sec. 700.119  Establishment of fair market value.

    (a) General. The Commission shall establish the amount of fair 
market value to be offered to the owner for the habitations and/or 
improvements. Such amount shall not be less than--
    (1) The appraiser's recommendations as to the fair market value of 
the habitations and/or improvements; or
    (2) The fair market value estimate set forth in the agency's 
approved appraisal, if the property is valued at $2,000 or less.
    (b) Owner retention of improvements. If the owner of a habitation 
and/or improvement is permitted to retain it for removal off-site, the 
amount determined to be just compensation for the interest in 
habitations and/or improvements to be acquired from him shall not be 
less than the amount determined by subtracting the salvage value of the 
improvements he retains for off-site removal from the amount determined 
to be fair market value for his entire interest in the habitation and 
improvement. Retention of improvements by the owner shall not change, 
alter or abrogate the requirement of the Act that the owner must move 
from land partitioned to the tribe of which he/she is not a member.

[[Page 1004]]



Sec. 700.121  Statement of the basis for the determination of fair 
market value.

    At the time of the initiation of negotiations to acquire the 
habitations and/or improvements, the Commission shall furnish the owner, 
along with the initial written purchase offer, a written statement of 
the basis for the determination of fair market value. To the extent 
permitted by the Commission, the statement shall include the following--
    (a) A description and location identification of the habitations 
and/or improvements to be acquired.
    (b) An inventory identifying the buildings, structures, fixtures, 
and other improvements, including appurtenant removable building 
equipment, which are considered to be part of the habitations and/or 
improvements for which the offer of fair market value is made.
    (c) A recital of the amount of the offer and a declaration that such 
amount--
    (1) Is the full amount believed by the Commission to be just 
compensation for the property and is not less than the fair market value 
of the property as determined on the basis of the appraisal(s);
    (2) Does not reflect any relocation payments or other relocation 
assistance which the owner is entitled to receive.
    (d) If only a portion of a habitation and/or improvement is to be 
acquired, an apportionment of the total estimated just compensation for 
the partial acquisition will be made. In the event that the Commission 
determines that partial acquisitions are necessary, all portions so 
acquired will be acquired simultaneously.



Sec. 700.123  Expenses incidental to transfer of ownership to the 
Commission.

    Eligible costs. The Commission shall reimburse the owner for 
reasonable expenses he/she necessarily incurred incidental to the 
transfer of habitations and/or improvements to the Commission. The 
Commission is not required to pay costs solely required to perfect the 
owner's interest in the habitations and/or improvements.



Sec. 700.125  Disposal of property.

    Property acquired by the Commission pursuant to the Act shall be 
disposed of in one of the following manners:
    (a) If the Commission determines that the property acquired 
constitutes a substantial risk to public health and safety, the 
Commission may remove or destroy the property.
    (b) The Commission may transfer the property acquired by gratuitous 
conveyance to the tribe exercising jurisdiction over the area. Notice of 
such transfer shall be in writing and shall be completed within sixty 
(60) days from the finalization of all property acquisition procedures, 
unless the tribe notifies the Commission in writing within that time 
that the property transfer is refused. In the event of a refusal by the 
tribe, the Commission shall remove the property.



Sec. 700.127  Payments for acquisition of improvements.

    Payments for acquisition of improvements shall be made in the 
following situations:
    (a) To individuals who have been denied benefits under these rules 
and who can prove ownership of habitations and improvements on land 
partitioned to the tribe of which they are not members. If the owner is 
deceased the payment shall be made to his or her estate. Payments under 
this subsection are further limited by 25 U.S.C. 640d-14(c), Pub. L. 93-
531, sec. 15(c).
    (b) To individuals who have been certified as eligible for 
relocation benefits but who at the time of certification, own a decent, 
safe and sanitary dwelling as determined by the Commission pursuant to 
Sec. 700.187 and who own habitation and improvements on land 
partitioned to the tribe of which they are not members.

Ownership shall be determined on the basis of Commission appraisal 
records at the time of the initial eligibility determination.

(25 U.S.C. 640d, Pub. L. 93-531, 25 U.S.C. 640d-14, Pub. L. 96-305)

[49 FR 35379, Sept. 7, 1984]

[[Page 1005]]



                Subpart C_General Relocation Requirements



Sec. 700.131  Purpose and applicability.

    This subpart prescribes general requirements governing the provision 
of relocation payments and other relocation assistance under the 
regulations in this part. The relocation requirements of the regulations 
in this part apply to the relocation of any displaced person.



Sec. 700.133  Notice of displacement.

    After the Commission's Relocation Report and Plan is in effect 
pursuant to the Act, the Commission shall issue a preliminary relocation 
notice to each person identified by the Commission as potentially 
subject to relocation. This notice shall--
    (a) Be published in a newspaper of general circulation in the area 
of the former Joint Use Area at least two times, and shall be sent to 
each Chapter House on the former Joint Use Area for posting.
    (b) Inform the person that he/she will be required to relocate 
permanently in the future unless the person has applied for and is 
determined to be eligible for a Life Estate.
    (c) Generally describe the relocation assistance program for which 
the person may become eligible, including the maximum allowable dollar 
amounts and basic conditions of eligibility for the payments.



Sec. 700.135  Relocation assistance advisory services.

    (a) General. The Commission may carry out a relocation assistance 
advisory program which offers the services described in paragraph (b) of 
this section. If the Commission determines that a person occupying 
habitations and/or improvements adjacent to the habitations and/or 
improvements acquired pursuant to the Act is caused substantial social, 
economic cultural or other injury because of such acquisition, it may 
offer such services to such person.
    (b) Services to be provided. The advisory program will include such 
measures, facilities, and services as may be necessary or appropriate in 
order to--
    (1) Personally interview where possible each certified eligible head 
of household to determine his/her relocation needs and preferences, and 
explain to him/her the relocation payments and other assistance for 
which he/she may be eligible, the related eligibility requirements, and 
the procedures for obtaining such payments and assistance;
    (2) Provide current and continuing information on the availability, 
purchase prices, and rental costs of replacement dwellings and 
commercial and farm properties and locations, as the case may be.
    (3) Assure that replacement dwellings are available to all certified 
eligible heads of households.
    (4) Assist any persons displaced from a business or farm operation 
to obtain and become established in a suitable replacement location;
    (5) Supply persons to be displaced with appropriate information 
concerning Tribal, Federal, State or local housing programs, disaster 
loans and other programs administered by the Small Business 
Administration, and other Federal or State programs offering assistance 
to persons to be displaced;
    (6) Endeavor to minimize the adverse social, economic, cultural and 
other hardships and impacts of relocation on persons involved in 
adjusting to such relocation.
    (c) Coordination of relocation activities. The Commission shall, to 
the maximum extent feasible, coordinate its relocation assistance 
advisory services activities with existing local, state, federal and 
Tribal agencies to the extent necessary to enable it to carry out its 
program. Referrals of displaced persons for services to existing 
services providers will be utilized whenever possible.
    (d) Policy. The Commission shall continue to provide assistance to a 
family, individual, business concern, non-profit organization, or farm 
operation until relocation has been achieved unless section Sec. 
700.139 becomes applicable.
    (e) Reasons for terminating assistance. In general, the 
circumstances under which the Commission's relocation obligations cease 
are the following:

[[Page 1006]]

    (1) Two years have elapsed since the family or individual has moved 
to a decent, safe and sanitary replacement dwelling and has received all 
assistance payments to which entitled.
    (2) All reasonable efforts to trace a family or individual have 
failed.
    (3) The family or individual on his/her own initiative moves to 
substandard housing and has refused reasonable offers of additional 
assistance in moving to a decent, safe and sanitary replacement 
dwelling.
    (4) The business concern, farm operation, or non-profit organization 
has received all assistance and payments to which it is entitled, and 
has either been successfully relocated or ceased operations.
    (5) Other relevant reasons as determined by the Commission.



Sec. 700.137  Final date for voluntary relocation application.

    (a) In order to be considered for voluntary relocation assistance 
benefits, an applicant must have filed a completed application form with 
the Commission by the close of business on July 7, 1986.
    (b) To qualify for relocation assistance, individuals must meet the 
eligibility requirements as of July 7, 1986.

[51 FR 19170, May 28, 1986]



Sec. 700.138  Persons who have not applied for voluntary relocation 
by July 7, 1986.

    (a) Pursuant to 25 U.S.C. 640d-14 (d)(3) heads-of-household who do 
not make timely arrangements for relocation by filing an application by 
July 7, 1986, shall be provided a replacement home by the Commission. To 
be eligible for benefits (Housing and Moving Expenses), such persons 
must be, as of July 7, 1986, physically residing full time on land 
partitioned to a tribe of which they are not members and they must also 
otherwise meet all other current eligibility criteria.
    (b) The Commission shall utilize amounts payable with respect to 
such households pursuant to 25 U.S.C. 640d-14(b)(2) and 25 U.S.C. 640d-
34(a) for the construction or acquisition of a home and related 
facilities for such households.
    (c) Persons identified by the Commission as potentially subject to 
relocation who have not applied for relocation assistance shall be 
contacted by the Commission as soon as practicable after July 7, 1986. 
At such time, the Commission shall--
    (1) Request that the head-of-household choose an available area for 
relocation, and contract with the Commission for relocation; and
    (2) Offer the relocatee suitable housing; and
    (3) Offer to purchase from the head-of-household the habitation and 
improvements; and
    (4) Offer provisions for the head-of-household and his family to be 
moved (e.g., moving expenses, etc.).
    (d) If a person so identified fails to agree to move after the 
actions outlined in this section are taken by the Commission and 
suitable housing is available (or sufficient funds are available to 
assure the relocation assistance to which the relocatee may be 
entitled), the Commission will issue a ninety-day notice stating the 
date by which the person will be required to vacate the area partitioned 
to the Tribe of which he is not a member.

[51 FR 19170, May 28, 1986]



Sec. 700.139  Referral for action.

    Upon the expiration of all notice periods and upon the failure or 
refusal of any relocatees to make timely arrangements to move, the 
Commission shall forward the names and addresses of such relocatees to 
the Secretary of the Interior and to the U.S. Attorney for the District 
of Arizona for such action as they deem appropriate. The Commission will 
assure the availability of relocation assistance to which the relocatees 
may be entitled.



Sec. 700.141  General requirements--claims for relocation payments.

    (a) Documentation. Any claim for a relocation payment under subpart 
D, E, F, G, or H of this part shall be submitted to the Commission on 
the appropriate Commission form and supported by such documentation as 
may reasonably be required by the Commission to demonstrate expenses 
incurred, such as bills and receipts.

[[Page 1007]]

    (b) Time for filing. All claims for a relocation payment shall be 
filed with the Commission within sixty (60) days after the family 
occupies the replacement home unless this time period is extended by the 
Commission.
    (c) Direct payment of claim. Relocation payments shall be made in 
accordance with the terms of the Relocation Contracts and are not 
subject to claims of creditors or assignments.



Sec. 700.143  Payments for divorced or separated relocatees.

    General. The following considerations apply to certified eligible 
heads of household who are legally separated or divorced and intend to 
establish separate eligibility.
    (a) Determination of benefits. Eligibility for relocation benefits 
is determined as of the time that the Relocation Contract is signed.
    (1) If the divorce or separation took place before benefits were 
first applied for, the spouse who vacated the habitation will not be 
eligibile for benefits and all relocation benefits will accrue to the 
spouse remaining in occupancy as head of the household remaining to be 
relocated.
    (2) If both husband and wife are in possession of the habitation at 
the time that benefits are first applied for, and are divorced or 
separated prior to signing of a Relocation Contract, both husband and 
wife may qualify separately for benefits if each meets the requirements 
of eligibility under these regulations.
    (3) If both husband and wife are in possession of the habitation at 
the time a Relocation Contract is signed but are divorced or separated 
prior to occupancy of the replacement dwelling, only one benefit will be 
paid to the household. Such benefits (including the assistance payment, 
moving expenses and replacement dwelling benefit) and the purchase price 
of the habitation and improvements may be prorated between husband and 
wife in such manner as they may agree in writing so long as such 
proration is consistent with the terms of the Relocation Contract. Such 
proration may also be made by a court of competent jurisdiction. In the 
absence of an agreement between the parties or a court order, any 
necessary prorations shall be made by the Commission.
    (b) For purposes of this section, a head of household shall be 
considered as married even though living apart from his or her spouse 
unless legally separated under a decree or separate maintenance.

[47 FR 17988, Apr. 27, 1982]



Sec. 700.145  Payments to estates.

    (a) Relocation benefits can be paid to the estate of a deceased 
Certified Eligible Head of Household under the following circumstances:
    (1) If there is no household requiring relocation pursuant to the 
Act surviving the deceased head of household:
    (i) Compensation for the habitation and other improvements owned by 
the deceased head of household and the cost of removing personal 
property from the acquired habitation and other improvements shall be 
paid to the estate of a deceased head of household, or as otherwise 
directed by a court of competent jurisdiction.
    (ii) No replacement housing benefit or assistance payment (bonus) 
shall be paid under this circumstance.
    (2) Replacement housing benefits may be paid to an estate only when 
a certified eligible head of household was qualified for such a housing 
payment pursuant to the Act and signed a Relocation Contract but died 
before the replacement housing was occupied. The estate of a certified 
eligible head of household who had not signed a Relocation Contract at 
the time of his/her death is not eligible for payment of a replacement 
housing benefit.
    (b) If one of a married couple who was a certified eligible head of 
household dies, the surviving spouse may be paid the same relocation 
assistance benefits, including replacement housing payments, which the 
couple would have received had death not occurred. If there is no 
surviving spouse, a court of competent jurisdiction may appoint a 
guardian to act for minor members of the household. The Commission shall 
deal with such guardian and any members of the household who have 
attained their majority in a manner to

[[Page 1008]]

effect relocation of the remaining household under these regulations.

[47 FR 17988, Apr. 27, 1982]



Sec. 700.147  Eligibility.

    (a) To be eligible for services provided for under the Act, and 
these regulations, the head of household and/or immediate family must 
have been residents on December 22, 1974, of an area partitioned to the 
Tribe of which they were not members.
    (b) The burden of proving residence and head of household status is 
on the applicant.
    (c) Eligibility for benefits is further restricted by 25 U.S.C. 
640d-13(c) and 14(c).
    (d) Individuals are not entitled to receive separate benefits if it 
is determined that they are members of a household which has received 
benefits.
    (e) Relocation benefits are restricted to those who qualify as 
heads-of-household as of July 7, 1986.

[49 FR 22278, May 29, 1984, as amended at 51 FR 19170, May 28, 1986]



    Subpart D_Moving and Related Expenses, Temporary Emergency Moves



Sec. 700.151  Eligibility.

    (a) General. All certified eligible heads of household are eligible 
for moving and related expenses as prescribed in this subpart. A 
certified eligible head of household who lives on his/her business or 
farm property may be eligible for both a payment as a dwelling occupant 
and a payment with respect to the business or farm operation.
    (b) Least costly approach. The amount of payment for an eligible 
expense under this subpart shall not exceed the least costly method, as 
determined by the Commission, of accomplishing the objective of the 
payment without causing undue hardship to the certified eligible heads 
of household.
    (c) Prior approval. Written approval of the Commission must be 
obtained for all moving and search expenses in this subpart. Such 
approval shall be obtained by each certified eligible head of household 
prior to incurring any expense from the real estate specialist to whom 
the case is assigned. If prior approval and the amount thereof is not 
obtained from the Commission, the Commission thereafter will determine:
    (1) Whether the travel was required and the expenses reasonable and;
    (2) The amount of reimbursement to be paid, if any.



Sec. 700.153  Actual reasonable moving and related expenses--residential 
moves.

    Subject to the limitations contained in this subpart, a certified 
eligible head of household is entitled to actual reasonable expenses 
for--
    (a) Transportation computed at prevailing federal per diem and 
mileage allowance schedules, meals and lodging away from home required 
by the Commission.
    (b) Transportation computed at prevailing federal per diem and 
mileage allowance schedules of the household and personal property from 
the acquired site to the replacement site.
    (c) Packing, crating, unpacking and uncrating of the personal 
property.
    (d) Disconnecting, dismantling, removing, reassembling and 
reinstalling relocated household appliances, and other personal 
property;
    (e) Storage of the personal property, not to exceed one year unless 
extended by the Commission.
    (f) Insurance of the personal property in connection with the move 
and necessary storage; and
    (g) Other moving related expenses that are not listed as ineligible 
under Sec. 700.165, as the Commission determines to be reasonable and 
necessary.



Sec. 700.155  Expenses in searching for replacement dwelling--residential 
move.

    (a) A certified eligible head of household is entitled to actual 
reasonable expenses incurred in the search for a replacement dwelling.
    (b) Transportation, meals and lodging when required to be away from 
home by the Commission, computed at prevailing federal per diem and 
mileage allowance schedules.

[[Page 1009]]



Sec. 700.157  Actual reasonable moving and related expenses--nonresidential 
moves.

    (a) Eligible costs. Subject to the limitations of Sec. 700.151(c) a 
certified eligible business, farm operation or nonprofit organization is 
entitled to payment for actual reasonable expenses for:
    (1) Transportation of personal property from the acquired site to 
the replacement site.
    (2) Packing, crating, unpacking, and uncrating the personal 
property.
    (3) Disconnecting, dismantling, removing, reassembling and 
installing relocated and substitute machinery, equipment, and other 
personal property. This includes connection to utilities available 
nearby and modifications necessary to adapt such property to the 
replacement structure or to the utilities or to adapt the utilities to 
the personal property;
    (4) Storage of the personal property;
    (5) Insurance of personal property in connection with the move and 
necessary storage;
    (6) Any license, permit or certification required by the displaced 
person, to the extent such cost is (i) necessary to its re-establishment 
at the replacement location and (ii) does not exceed either the cost for 
one year or for the remaining useful life of the existing license, 
permit, or certification, whichever is less;
    (7) Professional services, including architect's, attorney's and 
engineer's fees, and consultant's charges, necessary for (i) planning 
the move of the personal property, (ii) moving the personal property, or 
(iii) installing the relocation personal property at the replacement 
location.
    (8) Relettering signs and printing replacement stationery made 
obsolete as a result of the move;
    (9) Actual direct loss of personal property;
    (10) Purchase of substitute personal property;
    (11) Searching for a replacement location;
    (12) Other moving-related expenses that are not listed as ineligible 
under Sec. 700.165.
    (b) Self-move. If the displaced person self-moves his business, farm 
operation, or nonprofit organization, the Commission may approve a 
payment for his moving expenses in an amount not to exceed the lowest 
acceptable bid or estimate obtained by the Commission, without 
submission of documentation of moving expenses actually incurred.
    (c) Notification to Commission and inspection. To be eligible for a 
payment under this section, the displaced person shall permit the 
Commission to make reasonable and timely inspections of the personal 
property at the displacement and replacement sites.



Sec. 700.159  Payment for direct loss of personal property--nonresidential 
moves.

    (a) General. A certified eligible business is entitled to payment 
for actual direct loss of an item of tangible personal property incurred 
as a result of moving or discontinuing his business, farm operation, or 
nonprofit organization. The payment shall consist of the reasonable 
costs incurred in attempting to sell the item plus the less of--
    (1) The fair market value of the item for continued use at the 
acquired site, less the proceeds from its sale. (When payment for 
property loss is claimed for goods held for sale, the fair market value 
shall be based on the cost of the goods to the business, not the 
potential selling price); or
    (2) The estimated cost of moving the item, but with no allowance for 
storage. (If the business, farm operation or nonprofit organization is 
discontinued, the estimated cost shall be based on a moving distance of 
50 (fifty) miles.)
    (b) Advertising sign. The amount of a payment for direct loss of an 
advertising sign, which is personal property, shall be the lesser of--
    (1) The depreciated reproduction cost of the sign as determined by 
the Commission, less the proceeds from its sale; or
    (2) The estimated cost of moving the sign.
    (c) Sales effort. To be eligible for payment for direct loss of 
personal property, the claimant must make good faith effort to sell the 
personal property, unless the Commission determines that no such effort 
is necessary.

[[Page 1010]]

    (d) Transfer of ownership. To be eligible for payment for direct 
loss of personal property, the claimant shall transfer to the Commission 
ownership of the unsold personal property.



Sec. 700.161  Substitute personal property--nonresidential moves.

    (a) General. If an item of personal property, which is used as part 
of a business, farm operation or nonprofit organization, is not moved 
but is promptly replaced with a comparable substitute item at the 
replacement site, the displaced person is entitled to payment of the 
lesser of--
    (1) The cost of the substitute item, including installation cost at 
the replacement site, minus any proceeds from the sale or trade-in of 
the replaced item, if any; or
    (2) The estimated cost of moving the replaced item, based on the 
lowest acceptable bid or estimate obtained by the Commission for 
eligible moving and related expenses, but with no allowance for storage.
    (b) Transfer of ownership. To be eligible for a payment under this 
section, the claimant shall transfer to the Commission ownership of the 
personal property that has not been sold or traded in.



Sec. 700.163  Expenses in searching for replacement 
location--nonresidential moves.

    A displaced business, farm or nonprofit organization is entitled to 
an amount not to exceed $500 (five-hundred dollars), as determined by 
the Commission, for actual reasonable expenses incurred in searching for 
a replacement location, including--
    (a) Transportation computed at prevailing federal per diem and 
mileage allowance schedules; meals and lodging away from home;
    (b) Time spent searching, based on reasonable earnings;
    (c) Fees paid to a real estate agent or broker to locate a 
replacement site.



Sec. 700.165  Ineligible moving and related expenses.

    A displaced person is not entitled to payment for--
    (a) The cost of moving any structure or other improvement in which 
the displaced person reserved ownership; or
    (b) Interest on a loan to cover moving expenses; or
    (c) Loss of goodwill; or
    (d) Loss of profits; or
    (e) Loss of trained employees; or
    (f) Physical changes at replacement location of business, farm or 
nonprofit organization, except as provided at Sec. 700.157; or
    (g) Any additional expense of a business, farm, or nonprofit 
organization incurred because of operating in a new location.



Sec. 700.167  Moving and related expenses--fixed payment.

    A displaced person (other than an outdoor advertising display 
business who is eligible for a payment for his actual moving and related 
expenses under subpart D of these regulations) is entitled to receive a 
fixed payment in lieu of a payment for such actual moving and related 
expenses.



Sec. 700.169  Fixed payment for moving expenses--residential moves.

    The fixed payment for moving and related expenses of a certified 
eligible head of household from a dwelling consists of--
    (a) A moving expense allowance not to exceed $300 (three hundred 
dollars).
    (b) A dislocation allowance of $200 (two hundred dollars).



Sec. 700.171  Fixed payment for moving expenses--nonresidential moves.

    (a) General. The fixed payment for moving and related expenses of a 
displaced business or farm operation that meets applicable requirements 
under this section is an amount equal to its average annual net earnings 
as computed in accordance with Sec. 700.173, but not less than $2,500 
nor more than $10,000. A nonprofit organization which meets the 
applicable requirements under this section is entitled to a payment of 
$2,500.
    (b) Business. A business qualifies for payment under this section if 
the Commission determines that--
    (1) The business cannot be relocated without a substantial loss of 
its existing patronage.

[[Page 1011]]

    (2) The business is not part of a commercial enterprise having 
another establishment, which is not being acquired by the Commission, 
and which is under the same ownership and engaged in the same or similar 
business activities. For purposes of this rule, no remaining business 
facility which had average annual gross receipts of less than $1,000 and 
average annual net earnings of less than $500, during the two taxable 
years prior to displacement, shall be considered ``another 
establishment''; and
    (3) The business had (i) average annual gross receipts of at least 
$1,000 during the two taxable years prior to displacement, or (ii) 
average annual net earnings of at least $500 as determined in accordance 
with Sec. 700.173. However, the Commission may waive this test in any 
case in which it determines that its use would cause a substantial 
hardship.
    (c) Determining number of businesses acquired. In determining 
whether two or more legal entities, all of which have been acquired, 
constitute a single business, which is entitled to only one fixed 
payment, all pertinent factors shall be considered, including the extent 
to which--
    (1) The same premises and equipment are shared;
    (2) Substantially identical or interrelated business functions are 
carried out and business and financial affairs are commingled;
    (3) The entities are held out to the public, and to those 
customarily dealing with them, as one business, and
    (4) The same person or closely related persons own, control or 
manage the affairs of the entities.
    (d) Farm operation. A farm operation qualifies for a payment under 
this section if the Commission determines that it meets the criteria set 
forth in Sec. 700.171(b)(3). In the case of a partial acquisition, the 
fixed payment shall be made only if the Commission determines that--
    (1) The part acquired was a farm operation before the acquisition; 
or
    (2) The partial acquisition caused the operator to be displaced from 
the farm operation; or
    (3) The partial acquisition caused a substantial change in the 
nature of the farm operation.
    (e) Nonprofit organization. A nonprofit organization qualifies for a 
$2,500 payment under this section, if the Commission determines that 
it--
    (1) Cannot be relocated without a substantial loss of existing 
patronage (membership and clientele). A nonprofit organization is 
assumed to meet this test, unless the Commission demonstrates otherwise; 
and
    (2) Is not part of an enterprise having at least one other 
establishment engaged in the same or similar activity which is not being 
acquired by the Commission.



Sec. 700.173  Average net earnings of business or farm.

    (a) Computing net earnings. For purposes of this subpart, the 
average annual net earnings of a business or farm operation is one-half 
of its net earnings before Federal, State and local income taxes, during 
the two taxable years immediately prior to the taxable year in which it 
was displaced. However, if the business or farm was not in operation for 
the full two taxable years prior to displacement, net earnings shall be 
computed on the basis of the actual period of operation on the acquired 
site, projected to an annual rate. Also, average annual net earnings may 
be based upon a different period of time when the Commission determines 
it to be more equitable. Net earnings include any compensation obtained 
from the business or farm operation by its owner, his spouse, or 
dependents.
    (b) Documentation. A displaced person who elects to receive a fixed 
payment in lieu of actual expenses incurred in moving his business or 
farm shall furnish the Commission proof of his net earnings through 
income tax returns, certified financial statements or other reasonable 
evidence.



Sec. 700.175  Temporary emergency moves.

    (a) General. An eligible household may be granted temporary 
relocation resources, at the Commission's discretion, provided:

[[Page 1012]]

    (1) That the move is for a limited time period not to exceed 12 
months unless extended by the Commission.
    (2) That permanent relocation resources are not available at the 
time of displacement.
    (3) Prior approval of the Commission is obtained.
    (4) That a Relocation Contract providing for permanent relocation 
has been executed.
    (5) The head of household actually remained domiciled on lands 
partitioned to the tribe of which he is not a member as of December 22, 
1974, and continuously thereafter.
    (6) The head of household shall vacate all improvements owned by him 
on lands partitioned to the tribe of which he is not a member and shall 
transfer title to said improvements to the Commission.

Temporary relocation shall in no way diminish the responsibility of the 
Commission to offer relocation assistance and services designed to 
achieve permanent and suitable facilities.
    (b) Conditions under which move to temporary housing accommodations 
may be approved. The move of a family or individual into temporary 
housing accommodations may be approved by the Commission only if the 
following conditions are met.
    (1) The move will be undertaken because:
    (i) It is necessary because of an emergency as determined by the 
Commission; or
    (ii) The individual or family is subject to conditions hazardous to 
his or his family's health or safety.
    (2) The temporary housing is decent, safe, and sanitary.
    (3) The Commission shall have determined that within twelve (12) 
months of the date of the temporary move, replacement housing meeting 
Commission-approved standards will be available for occupancy by the 
persons temporarily rehoused.
    (4) Prior to the move, the Commission shall provide in writing 
assurance to each head of household that:
    (i) Replacement housing will be available at the earliest possible 
time but in any event no later than twelve (12) months from the date of 
the move to temporary housing.
    (ii) Replacement housing will be made available on a priority basis, 
to the individual or family who has been temporarily rehoused.
    (iii) The move to temporary rehousing will not, in any way, affect a 
claimant's eligibility for a replacement housing payment nor deprive him 
of the same choice or replacement housing units that would have been 
made available had the temporary move not been made.
    (iv) The Commission will pay all costs in connection with the move 
to temporary housing, including any increased housing costs.
    (c) Agency documentation. To request Commission approval for a 
temporary move of a family, the following information shall be submitted 
to the Commission (additional information may be required on a case-by-
case basis):
    (1) An explanation of the necessity for the temporary move, based 
upon the criteria set forth by the Commission.
    (2) The estimated duration of the temporary occupancy.
    (3) In the case of the family or individual, (i) a copy of the 
written assurance which will be provided to the person explaining his 
rights and the continuing obligation of the agency to provide relocation 
assistance, and (ii) evidence that the family or individual agrees to 
make the temporary move.
    (d) Costs in connection with temporary move--(1) Costs included. 
Costs included in a temporary move may cover the following:
    (i) Actual reasonable moving costs and related expenses for the move 
to temporary accommodations.
    (ii) For the family or individual moved from a rental unit the 
difference, if any, between the rental cost of the dwelling vacated and 
the rental cost of the temporary unit.
    (iii) For a homeowner who retains ownership of his dwelling the 
reasonable cost of renting the temporary dwelling.
    (iv) For a homeowner whose dwelling has been acquired the 
difference, if any, between his housing costs for the acquired dwelling 
and the rental cost of the temporary unit.
    (2) Costs not a replacement home benefit. Costs in connection with a 
move to

[[Page 1013]]

temporary accommodations are not to be considered as relocation payments 
under the Act. (See paragraph (e) of this section.)
    (e) Distinguishing between cost of temporary move and relocation 
payment. The costs of a temporary move, as decribed in the foregoing 
subparagraphs, are not to be considered as all or a part of the 
relocation payment to which a displaced person is entitled under the 
Act. Thus, when a family is moved to temporary accommodations, a 
relocation payment is not made and the election or choice of type of 
payments that would ordinarily be made upon displacement must be delayed 
until the final move is made. When the move out of temporary 
accommodations is made, the displaced person shall receive the full 
relocation payments to which he/she is entitled pursuant to Commission 
regulations.



                 Subpart E_Replacement Housing Payments



Sec. 700.181  Eligibility.

    (a) Basic eligibility requirements. A certified eligible head of 
household who established his/her residency requirements in the area 
partitioned to the tribe of which he/she is not a member, is eligible 
for the replacement housing payment specified at Sec. 700.183(a).
    (b) Other rules and requirements. A payment under this subpart E is 
subject to the other applicable rules and requirements of these 
regulations.



Sec. 700.183  Determination of replacement housing benefit.

    (a) Amount of benefit. The replacement housing benefit for a 
certified eligible head-of-household is an amount not to exceed fifty-
five thousand dollars ($55,000) for a household of three or less and not 
to exceed sixty-six thousand dollars ($66,000) for a household of four 
or more. Subject to such other requirements of these regulations as may 
apply, the replacement housing benefit shall be calculated as follows;
    (1) The amount of the fair market value of the habitation and 
improvements purchased from an eligible head-of-household pursuant to 
subpart B of this part shall be applied first toward the cost of a 
replacement dwelling.
    (2) An additional amount shall be added to the value of the 
habitation and improvements to equal the cost of a decent, safe, and 
sanitary replacement dwelling.
    (3) The total value of the replacement dwelling shall not exceed the 
amount of the replacement housing benefit specified in paragraph (a) of 
this section.
    (4) In the event the cost of providing a decent, safe, and sanitary 
replacement dwelling is less than the fair market value of the 
habitation and improvements purchased from an eligible head-of-household 
pursuant to subpart B of this part, the difference shall be paid to that 
head-of-household.
    (b) The Commission shall, on or before the first Friday in April of 
each fiscal year, after consultation with the Secretary of the 
Department of Housing and Urban Development, annually increase, decrease 
or leave unadjusted the above limitations on replacement housing 
benefits to reflect changes in housing or development and construction 
costs, other than costs of land, during the preceding year. In 
determining whether to increase or decrease the replacement housing 
benefit limitations set forth above, the Commission shall consider the 
following:
    (1) The most recent percentage rate of increase or decrease in 
single family housing construction costs reported by HUD. (General 
Prototype Housing Costs For One to Four Family Dwelling Units).
    (2) The most recent Boecht Building Cost Modifier.
    (3) The experience of relocatee families in obtaining replacement 
housing within the current benefits.
    (4) The cost of available replacement housing which meets Commission 
standards as set forth in these regulations.
    (5) Such other available information which the Commission deems 
appropriate and which is relevant to a determination of whether 
replacement housing benefits should be increased or decreased to reflect 
change in housing or development and construction costs during the 
preceding year.

[[Page 1014]]

    (c) If the owner retains ownership of his dwelling, moves it from 
the acquired site, and reoccupies it on a replacement site, the purchase 
price of the replacement dwelling shall be considered to be the sum of--
    (1) The cost of the replacement site, if any; plus
    (2) The moving and restoration expenses; plus
    (3) The costs, if any, incurred to make the unit a decent, safe, and 
sanitary replacement dwelling; but not to exceed the above limitation on 
total replacement home benefits.

[47 FR 17988, Apr. 27, 1982, as amended at 52 FR 21951, June 10, 1987]



Sec. 700.187  Utilization of replacement home benefits.

    The Commission shall assure that all eligible heads of household 
receive a decent, safe and sanitary replacement dwelling in the 
following manner:
    (a) If the eligible head of household owns no dwelling other than 
that on the area from which he or she must move pursuant to the Act, the 
Commission will make funds available to the head of household as 
provided in these regulations for the acquisition of a replacement home 
in one of the following manners:
    (1) Purchase of an existing home, by the head of household,
    (2) Construction of a home by the head of household,
    (3) Participation or purchase by the head of household in a mutual 
help housing or other home ownership project under the U.S. Housing Act 
of 1937 (50 Stat. 888, as amended; 42 U.S.C. 1401) or in any other 
federally assisted housing program.
    (b) If the eligible head of household owns or is buying or building 
a home in an area other than the area from which he or she must move 
pursuant to the Act, the Commission will expend relocation benefits in 
one of the following manners:
    (1) If the home is decent, safe, and sanitary, but is encumbered by 
a mortgage, such mortgage existing as of the effective date of these 
regulations, the Commission will expend replacement housing benefits up 
to the maximum then existing benefit to accelerate to the maximum extent 
possible the achievement by that household of debt-free home ownership.
    (2) If the home is owned free and clear but does not meet Commission 
decent, safe, and sanitary standards, the Commission will, at its 
discretion, either:
    (i) Expend replacement home benefits for improvements to assure the 
home meets decent, safe, and sanitary standards, or
    (ii) Expend replacement home benefits for the acquisition of a 
replacement dwelling as if the eligible head of household or spouse did 
not own a home as in paragraph (a) of this section.
    (3) If the home is neither owned free and clear nor decent, safe, 
and sanitary, the Commission will, at its discretion, either:
    (i) Expend replacement home benefits for improvements to assure that 
the home meets decent, safe, and sanitary standards, and to accelerate 
to the maximium extent possible the achievement of debt-free home 
ownership, or
    (ii) Expend replacement home benefits for the acquisition of a 
replacement dwelling as if the eligible head of household or spouse did 
not own a home as in paragraph (a) of this section.
    (4) If the home is decent, safe, and sanitary, and is owned free and 
clear, no replacement home benefits will be paid.
    (c) Home improvements shall include the following: General repairs, 
painting and texturing, fencing--including corrals, landscaping, 
grading, room additions, re-modeling, roofing, insulating, repair or 
improvements to the water, sewerage, cooling, heating, or electrical 
systems, storage buildings, energy conservation measures, and other home 
improvements as determined and defined by the Commission.
    (d) In implementing these regulations the Commission will encourage 
the use of innovative energy or other technologies in order to achieve 
the minimum monthly housing cost feasible for each replacement house.

[[Page 1015]]



Sec. 700.189  Expenditure of replacement home benefits.

    Replacement home benefits shall be expended or obligated in full at 
or before the time of original acquisition except as stated below. It is 
not anticipated that such exceptions would be common and each such 
instance shall be reviewed and a determination will be made by the 
Certification Officer.
    (a) Under unusual circumstances such as: Unknown (latent) defects in 
the replacement dwellings, significant change of circumstances and 
extreme hardship, benefits may be expended after the time of original 
acquisition up to the existing maximum replacement home benefit.
    (b) All replacement home benefits shall be expended not later than 
one (1) year after the date of payment of the incentive bonus, except 
under unusual circumstances as stated above, up to the statutory 
maximum.
    (c) Replacement home benefits shall not be expended for maintenance 
except under unusual circumstances as stated above, up to the statutory 
maximum.
    (d) For purposes of this paragraph, the time of original acquisition 
shall be defined as the date of execution of the Commission's Relocation 
Contract.



                      Subpart F_Incidental Expenses



Sec. 700.195  General.

    Incidental expenses are those reasonable expenses, as determined by 
the Commission, to be incidental to the purchase of the replacement 
dwelling, but not prepaid.



Sec. 700.197  Basic eligibility requirements.

    A certified eligible head of household is eligible for reimbursement 
of expenses that are incidental to the purchase of a replacement 
dwelling, as provided in Sec. 700.199 hereof.



Sec. 700.199  Incidental expenses.

    (a) Eligible costs. Subject to the limitations in paragraphs (b) and 
(c) of this section, the incidental expenses to be paid are those 
actually incurred by the displaced person incident to the purchase of 
the replacement dwelling, including--
    (1) Legal, closing, and related costs, including those for title 
search, preparing conveyance instruments, notary fees, preparing plats, 
recording fees; and title insurance;
    (2) Lender, FHA or VA appraisal fees;
    (3) FHA or VA application fee;
    (4) Certification of structural soundness when required by the 
lender;
    (5) Credit report;
    (6) Owner's and mortgagee's evidence or assurance of title;
    (7) Escrow agent's fee;
    (8) State revenue or documentary stamps, sales or transfer taxes;
    (9) Such administrative costs as are necessary to secure and acquire 
homesite leases and/or allotments on tribal lands. These costs may 
include survey fees, appropriate tribal fees and other conveyance 
instruments as may be appropriate;
    (10) Costs, such as advertising charges, incurred incident to the 
purchase of the improvements owned by the head of household.
    (11) Cost related to fee inspector's inspections of the replacement 
dwelling.
    (12) Such other costs as the Commission determines to be incidental 
to the purchase.
    (b) Truth in lending charge. Any expense, which is determined to be 
part of the debt service or finance charge under 15 U.S.C. 131-1641 and 
Regulation Z (12 CFR part 226) issued thereunder by the Board of 
Governors of the Federal Reserve System, is not eligible for 
reimbursement as an incidental expense.



             Subpart G_Assistance Payments (Incentive Bonus)



Sec. 700.205  Eligibility requirements.

    A certified eligible head of household is eligible for the 
assistance payment pursuant to section 14(b) of the Act.
    (a) Amount of payment. The amount of payment shall be computed in 
accordance with the schedule provided for in section 14(b) of the Act.
    (b) Date for determination of amount of assistance payment. The date 
of completion and filing with the Commission of the Application for 
Relocation Assistance and Agreement to Relocate shall

[[Page 1016]]

be the date used for determination of the amount of the assistance 
payment.
    (c) Time of payment. Assistance payments provided for in this 
section shall only be paid upon actual occupancy of the replacement 
dwelling and vacation of the acquired habitation and/or improvement, if 
any, in the area partitioned to the Tribe of which he/she is not a 
member.



                Subpart H_Last Resort Replacement Housing



Sec. 700.209  Applicability.

    The provisions of this subpart apply only when the Commission 
determines that, unless it acts under the provisions of this subpart, 
there is a reasonable likelihood that replacement dwelling(s) will not 
be available on a timely basis to person(s) to be displaced.



Sec. 700.211  Basic rights and rules.

    The provisions of this subpart do not deprive any displaced person 
of any rights described elsewhere in these regulations. The Commission 
may meet its obligation to provide persons with reasonable opportunities 
to relocate to a replacement dwelling by offering such opportunities 
developed or to be developed under this subpart.



Sec. 700.213  Methods of providing last resort replacement housing.

    (a) General. The methods of providing last resort housing include, 
but are not limited to--
    (1) Rehabilitation of, and/or additions to, an existing replacement 
dwelling;
    (2) A replacement housing payment in excess of the limits set forth 
in subparts E and F of this part or the provision of direct Commission 
mortgage financing;
    (3) The construction of a new replacement dwelling;
    (4) The relocation and, if necessary, rehabilitation of a 
replacement dwelling;
    (5) The purchase of land and/or a replacement dwelling by the 
Commission and subsequent sale or lease to, or exchange with, a 
displaced person; and
    (6) The removal of barriers to the handicapped as may be necessary.



                     Subpart I_Commission Operations



Sec. 700.219  General.

    (a) The operation of the Commission shall be governed by a 
Management Manual passed, amended or repealed by a majority of the 
Commission at any regular or special meeting. The Management Manual is 
the prescribed medium for publication of policies, procedures and 
instructions which are necessary to facilitate the day-to-day operations 
and administration of the Commission.
    (b) Meetings. The Commission shall hold a regular monthly meeting on 
the first Friday of each month at a time and place designated by public 
notice unless said Friday falls on a legal holiday, in that event, the 
meeting shall begin on the next regular workday. The monthly meeting may 
continue for as many days thereafter as is necessary to complete the 
regular affairs of the Commission, and may be recessed from time to time 
and reconvened at times designated by the Chairperson.
    (c) Special public meetings. May be called by any Commissioner with 
ten (10) working days written notice given to the other Commissioners. 
Written notice may be waived by a release bearing the signatures of all 
three Commissioners.
    (d) Executive Session. During a regular or special meeting, any 
Commissioner may request an Executive Session for purposes of personnel 
and administrative matters.
    (e) Compliance with other laws and regulations. As a federal agency, 
the Commission will conduct its activities in conformance with 
applicable federal statutes and administrative procedures.



                     Subpart J_Inspection of Records



Sec. 700.235  Purpose and scope.

    (a) This subpart contains the regulations of the Commission 
implementing the requirement of subsection (a)(3) of the Freedom of 
Information Act, 5 U.S.C. 552(a)(3), which provides that the Commission 
``upon any request for records which (1) Reasonably describes

[[Page 1017]]

such records and (2) is made in accordance with published rules stating 
the time, place, fees (if any), and procedures to be followed, shall 
make the records promptly available to any person.'' This subpart 
describes the procedures by which records may be obtained from the 
Commission. The procedures in this subpart are not applicable to 
requests for records published in the Federal Register or opinions in 
the adjudication of cases, statements of policy and interpretations and 
administrative staff manuals which have been published or made available 
under subpart A of this part.



Sec. 700.237  Definitions.

    Act. As used in this subpart, ``Act'' means the ``Freedom of 
Information Act,'' 5 U.S.C. 552.



Sec. 700.239  Records available.

    (a) Commission policy. It is the policy of the Commission to make 
the records of the Commission available to the public to the greatest 
extent possible, in keeping with the spirit of the Freedom of 
Information Act.
    (b) Statutory disclosure requirement. The Freedom of Information Act 
requires that the Commission, on a request from a member of the public 
to inspect or copy records made in accordance with the procedures in 
this subpart, shall promptly make the records available.
    (c) Statutory exemptions. The Act exempts nine categories of records 
from this disclosure requirement. The Act provides that disclosure is 
not required of matters that are:
    (1) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and in fact properly classified pursuant to such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempt from disclosure by statute;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Investigatory records compiled for law enforcement purposes, but 
only to the extent that production of such records would
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the indentity of a confidential source and, in the 
case of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Decisions on requests. It is the policy of the Commission to 
withhold information falling within an exemption only if (1) disclosure 
is prohibited by statute or Executive Order or (2) sound grounds exist 
for invocation of the exemption.
    (e) Deletion of portions of records. If a requested record contains 
material within an exemption together with material not within an 
exemption and it is determined under the regulations in this subpart to 
withhold the exempt material, any reasonably segregable nonexempt 
material shall be separated from the exempt material.
    (f) Creation of records. This subpart applies only to records which 
exist at the time a request for records is made. Records are not 
required to be created in response to a request by combining

[[Page 1018]]

or compiling selected items from the files or by preparing a new 
computer program, nor are records required to be created to provide the 
requester with such data as proportions, percentages, frequency 
distributions, trends, or comparisons.
    (g) Records of concern to other departments and agencies. (1) If the 
release of a record would be of concern to both the Commission and 
another Federal agency, the record will be made available by the 
Commission only if the interest of the Commission is the primary 
interest. If the Commission's interest is not the primary interest, the 
requester shall be referred in writing to the agency having the primary 
interest. The Commission has the primary interest in a record if the 
record was developed pursuant to Commission regulations, directives, or 
request even though the record originated outside of the Commission.
    (2) If the release of a record in which the Commission has a primary 
interest would be of substantial concern to another agency, the official 
processing the request, should, if administratively feasible and 
appropriate, consult with that agency before releasing the record.
    (h) Records obtained from the public. If a requested record was 
obtained by the Commission from a person or entity outside of the 
Government, the official responsible for processing the request shall, 
when it is administratively feasible to do so, seek the views of that 
person or entity on whether the record should be released before making 
a decision on the request.



Sec. 700.241  Request for records.

    (a) Submission of requests. A request to inspect or copy records 
shall be made to the installation where the records are located. If the 
records are located at more than one installation or if the specific 
location of the records is not known to the person wishing to inspect or 
copy the records, he may direct his request to the head of the 
appropriate bureau, or the bureau's chief public information officer, if 
any.
    (b) Form of request. (1) Requests invoking the Freedom of 
Information Act shall be in writing.
    (2)(i) A request must reasonably describe the records requested. A 
request reasonably describes the records requested if it will enable an 
employee of the Commission familiar with the subject area of the request 
to locate the record with a reasonable amount of effort. If such 
information is available, the request should identify the subject matter 
of the record, the date when it was made, the place where it was made, 
and the person or office that made it, the present custodian of the 
record, and any other information which will assist in location of the 
requested records. If the request involves a matter known by the 
requester to be in litigation, the request should also state the case 
name and court hearing the case.
    (ii) If the description of a record sought is insufficient to allow 
identification and location of the record, the response denying the 
request on this ground shall so state and, to the extent possible, 
indicate what additional descriptive information, if any, would assist 
in location of the record.
    (3) A request shall state the maximum amount of fees which the 
requester is willing to pay. Requesters are notified that under Sec. 
700.251, the failure to state willingness to pay fees as high as are 
anticipated by the Commission will delay running of the time limit and 
delay processing of the request, if the responsible official anticipates 
that the fees chargeable may exceed $25.00.
    (4)(i) To insure expeditious handling, requests shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``FREEDOM OF INFORMATION REQUEST.'' The failure of a request to 
bear such a legend will not disqualify a request from processing under 
the procedures in this subpart if the request otherwise meets the 
requirments of this section. A request not bearing the legend ``FREEDOM 
OF INFORMATION REQUEST'' will not, however, be deemed to have been 
received for purposes of the running of the time limit set out in Sec. 
700.245 until it has been identified by bureau personnel as a Freedom of 
Information request and marked by them with this legend.

[[Page 1019]]

    (ii) Commission personnel identifying a communication from the 
public not bearing the legend ``FREEDOM OF INFORMATION REQUEST'' as a 
request otherwise meeting the requirements of this section shall 
immediately (A) mark the communication with the legend ``FREEDOM OF 
INFORMATION REQUEST.'' (B) date the request to reflect the date on which 
it was identified, and (C) take steps to assure proper processing of the 
request under the procedures in this subpart.
    (d) Categorical requests. (1) A request for all records falling 
within a reasonably specific category shall be regarded as conforming to 
the statutory requirement that records be reasonably described if (i) it 
can be determined which particular records are covered by the request 
and (ii) the records can be searched for, collected and produced without 
unduly burdening or interfering with Commission operations because of 
the staff time consumed or the resulting disruption of the files.
    (2) If a categorical request is determined under paragraph (d)(1) of 
this section not to reasonably describe the records requested, the 
response denying the request on that ground shall specify the reasons 
why and shall extend to the requester an opportunity to confer with 
knowledgeable Commission personnel in an attempt to reduce the request 
to manageable proportions by reformulation and by agreeing on an orderly 
procedure for the production of the records.



Sec. 700.243  Action on initial requests.

    (a) Granting of requests. (1) A requested record shall be made 
available if (i) the record is not exempt from disclosure or (ii) the 
record is exempt from disclosure, but its withholding is neither 
required by statute or Executive order nor supported by sound grounds.
    (b) Form of grant. (1) When a requested record has been determined 
to be available, the official processing the request shall immediately 
notify the person requesting the record as to where and when the record 
is available for inspection or as the case may be, where and when copies 
will be available. If fees are due under Sec. 700.251, the responsible 
official shall also state the amount or, if the exact amount cannot be 
determined, the approximate amount of fees due.
    (2) If the record was obtained by the Commission from a person or 
entity outside of the Government, the responsible official shall, when 
it is administratively feasible to do so, notify that person or entity 
that the record has been made available.
    (c) Denial of requests. (1) A request for a record may be denied 
only if it is determined that (i) the record is exempt from disclosure 
and (ii) that withholding of the record is required by statute or 
Executive order or supported by sound grounds.
    (2) A request to inspect or copy a record shall be denied only by 
the Freedom of Information Act Officer or by an official whom the 
Executive Director has in writing designated.
    (d) Form of denial. A reply denying a request shall be in writing 
and shall include:
    (1) A reference to the specific exemption or exemptions under the 
Freedom of Information Act authorizing the withholding of the record;
    (2) The sound ground for withholding;
    (3) A listing of the names and titles or positions of each person 
responsible for the denial;
    (4) A statement that the denial may be appealed to the Commission 
pursuant to Sec. 700.247 and that such appeal must be in writing and be 
received by this official within twenty (20) days (Saturdays, Sundays, 
and public legal holidays excepted) after the date of the denial, in the 
case of the denial of an entire request, or within twenty (20) days 
(Saturdays, Sundays, and public legal holidays excepted) of records 
being made available, in the case of a partial denial, by writing to the 
Freedom of Information Act Officer, Navajo-Hopi Indian Relocation 
Commission, P.O. Box KK, Flagstaff, Arizona 86002.
    (e) Exception. The requirements of paragraphs (c), (d), and (e) of 
this section do not apply to requests denied under Sec. 2.14 on the 
ground that the request did not reasonably describe the records 
requested or to requests for records which do not exist.

[[Page 1020]]

    (f) Filing of denials. Copies of all replies denying, in whole or 
part, a request for a record which are issued under this section of 
Sec. 700.243 shall be promptly submitted by the Freedom of Information 
Act Officer, denials to the Executive Director and the Commission's 
legal counsel.



Sec. 700.245  Time limits on processing of initial requests.

    (a) Basic limit. Requests for records shall be processed promptly. A 
determination whether to grant or deny a request shall be made within no 
more than ten (10) days (excepting Saturdays, Sundays, and legal public 
holidays) after receipt of a request. This determination shall be 
communicated immediately to the requester.
    (b) Running of basic time limit. For purposes of paragraph (a) of 
this section, the time limit commences to run when a request is received 
at the Commission's office in Flagstaff, Arizona.
    (c) Extensions of time. In the following unusual circumstances, the 
time limit for acting upon an initial request may be extended to the 
extent reasonably necessary to the proper processing of the particular 
request, but in no case may the time limit be extended for more than ten 
(10) working days:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.
    (d) Authority to make extensions. (1) An extension of time under 
paragraph (c) of this section may be made only by the Freedom of 
Information Act Officer or such higher authority as the Commission has 
in writing designated.
    (2) The person requesting the records shall be notified in writing 
of the extension. The written notice shall state the reason for the 
extension and the date on which a determination on the request is 
expected to be dispatched.
    (3) The Freedom of Information Act Officer shall be responsible for 
promptly furnishing copies of such notices to the Executive Director and 
the Commission's legal counsel.
    (e) Treatment of delay as denial. (1) If no determination has been 
reached at the end of the ten (10) day period for deciding an initial 
request, or the last extension thereof, the requester may deem his 
request denied and may exercise a right of appeal in accordance with the 
provisions of Sec. 700.247.
    (2) When no determination can be reached within the applicable time 
limit, the responsible official shall nevertheless continue to process 
the request. On expiration of the time limit, the responsible official 
shall inform the requester of the reason for the delay, of the date on 
which a determination may be expected to be dispatched, and of his right 
to treat the delay as a denial for purposes of appeal to the Commission 
in accordance with Sec. 700.247. The requester may be asked to consider 
delaying use of his right to appeal until the date on which the 
determination is expected to be dispatched. If the requester so agrees, 
he is deemed not to have treated the failure to respond within the 
applicable time limit as a denial for purposes of the running of the 
twenty (20) working-day appeal period set out in Sec. 700.247. If a 
determination of the request is not issued by the new agreed upon date, 
or if the request is denied in whole or part, the requester will have 
available his full right of appeal under Sec. 700.247, including the 
entire twenty (20) working-day period for filing of the appeal.



Sec. 700.247  Appeals.

    (a) Right of appeal. Where a request for records has been denied, in 
whole or part, the person submitting the request may appeal the denial 
to the Commission.
    (b) Time for appeal. An appeal must be received no later than twenty 
(20) days (Saturdays, Sundays, and public legal holidays excepted) after 
the date of the initial denial, in the case of a denial of an entire 
request, or twenty (20) days

[[Page 1021]]

(Saturdays, Sundays, and public legal holidays excepted) after records 
have been made available, in the case of a partial denial.
    (c) Form of appeal. (1) An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and the initial denial and should, in order to 
expedite the appellate process and give the requester an opportunity to 
present his arguments, contain a brief statement of the reasons why the 
requester believes the initial denial to have been in error.
    (2) The appeal shall be addressed to Freedom of Information Act 
Officer, Navajo-Hopi Indian Relocation Commission, P.O. Box KK, 
Flagstaff, Arizona 86002.
    (3)(i) Both the envelope containing the notice of appeal and the 
face of the notice shall bear the legend ``FREEDOM OF INFORMATION 
APPEAL''. The failure of an appeal to bear such a legend will not 
disqualify an appeal from processing under Sec. 2.18 if the appeal 
otherwise meets the requirements of this section. An appeal not bearing 
the legend ``FREEDOM OF INFORMATION APPEAL'' will not, however, be 
deemed to have been received for purposes of the running of the time 
limit set out in Sec. 700.249 until it has been identified by 
Commission personnel as a Freedom of Information appeal and marked by 
them with this legend.
    (ii) Commission personnel identifying a communication from the 
public not bearing the legend ``FREEDOM OF INFORMATION APPEAL'' as an 
appeal otherwise meeting the requirements of this section shall 
immediately (A) mark the communication with the legend ``FREEDOM OF 
INFORMATION APPEAL,'' (B) date the appeal to reflect the date on which 
it was identified, and (C) take steps to assure proper processing of the 
appeal under the procedures in this subpart.
    (4) The Freedom of Information Act Officer shall be responsible for 
promptly furnishing copies of such notices to the Executive Director and 
the Commission's legal counsel.



Sec. 700.249  Action on appeals.

    (a) Authority. Appeals from initial denials of requests for records 
shall be decided for the Commission by the Executive Director after 
consultation with the Commission's legal counsel.
    (b) Time limit. A final determination on any appeal shall be made 
within twenty (20) days (excepting Saturdays, Sundays, and public legal 
holidays) after receipt of the appeal.
    (c) Extensions of time. (1) If the time limit for responding to the 
initial request for a record was not extended under the provisions of 
Sec. 700.245 or was extended for fewer than ten (10) working days, the 
time for processing of the appeal may be extended by the Executive 
Director to the extent reasonably necessary to the proper processing of 
the appeal, but in no event may the extension, when taken together with 
any extension made during processing of the initial request, result in 
an aggregate extension with respect to any one request of more than ten 
(10) working days. The time for processing of an appeal may be extended 
only if one or more of the unusual circumstances listed in Sec. 
700.245(c) requires an extension.
    (2) The Executive Director shall, in writing, advise the appellant 
of the reasons for the extension and the date on which a final 
determination of the appeal is expected to be dispatched.
    (3) If no determination on the appeal has been reached at the end of 
the twenty (20) working-day period for deciding an appeal, or the last 
extension thereof, the requester is deemed to have exhausted his 
administrative remedies, giving rise to a right of review in a district 
court of the United States as specified in 5 U.S.C. 552(a)(4). When no 
determination can be reached within the applicable time limit, the 
appeal will nevertheless continue to be processed. On expiration of the 
time limit, the requester shall be informed of the reason for the delay, 
of the date on which a determination may be expected to be dispatched, 
and of his right to seek judicial review. The requester may be asked to 
consider delaying resort to his right to judicial review until the date 
on which the determination on his appeal is expected to be dispatched.

[[Page 1022]]

    (d) Form of decision. The final determination on an appeal shall be 
in writing and shall state the basis for the determination. If the 
determination is to release the requested records or portions thereof, 
the Freedom of Information Act Officer shall immediately make the 
records available or instruct the appropriate bureau official to make 
them immediately available. If the determination upholds in whole or 
part the initial denial of a request for records, the determination 
shall advise the requester of his right to obtain judicial review in the 
U.S. District Court for the district in which the withheld records are 
located, or in which the requester resides or has his principal place of 
business or in the U.S. District Court for the District of Columbia, and 
shall set forth the names and titles or positions of each person 
responsible for the denial.
    (e) Distribution of copies. Copies of final determinations issued by 
the Commission shall be provided to the Commission's legal counsel.



Sec. 700.251  Fees.

    (a) Services for which fees may be charged. (1) Unless waived 
pursuant to the provisions of paragraph (c) of this section, user fees 
shall be charged for document search and duplication costs incurred in 
responding to requests for records. User fees also shall be charged for 
the formal certification of verification attached to authenticated 
copies of records under the seal of the Commission.
    (2) Unless waived or reduced pursuant to paragraph (c) of this 
section, user fees shall be charged in accordance with the schedule of 
charges contained in the Commission's Management Manual.
    (b) Services for which fees may not be charged. No fee may be 
charged for any services required by the Freedom of Information Act to 
be performed in responding to a request for records other than those 
services for which fees may be charged under paragraph (a) of this 
section. Services for which no fees may be charged include, but are not 
limited to,
    (1) Examining requested records to determine whether they are exempt 
from mandatory disclosure or whether, even if exempt, they should 
nevertheless be made available in whole or part,
    (2) Deleting exempt matter from records so that the remaining 
portions of the records may be made available,
    (3) Monitoring a requester's inspection of agency records made 
available to him for inspection, and
    (4) Resolving legal and policy issues affecting access to requested 
records.
    (c) Waiver or reduction of fees. (1) Fees otherwise chargeable for 
document search and duplication costs incurred in responding to requests 
for records may be waived or reduced, as appropriate, if the official 
making the records available determines that furnishing the records can 
be considered as primarily benefiting the public as opposed to the 
requester.
    (2) Fees otherwise applicable for document research and duplication 
costs incurred in responding to requests may be waived and not charged 
if the request involves:
    (i) Furnishing unauthenticated copies of any documents reproduced 
for gratuitous distribution;
    (ii) Furnishing one copy of a personal document (e.g., a birth 
certificate) to a person who has been required to furnish it for 
retention by the Commission;
    (iii) Furnishing one copy of the transcript of a hearing before a 
hearing officer in a grievance or similar proceeding to the employee for 
whom the hearing was held.
    (3) Fees otherwise chargeable for document search and duplication 
costs incurred in responding to requests may be waived or reduced if the 
cost of collecting the fee would exceed the amount of the fee or if the 
request involves:
    (i) Furnishing records to press, radio and television 
representatives for dissemination through the media to the general 
public;
    (ii) Furnishing records to donors with respect to their gifts;
    (iii) Furnishing records to individuals or private non-profit 
organizations having an official voluntary or cooperative relationship 
with the Commission to assist the individual or organization in its work 
with the Commission;
    (iv) Furnishing records to state, local and tribal governments and 
public

[[Page 1023]]

international organizations when to do so without charge is an 
appropriate courtesy, or when the recipient is carrying on a function 
related to that of the Commission and to do so will help to accomplish 
the work of the Commission;
    (v) Furnishing records when to do so saves costs and yields income 
equal to the direct cost of providing the records (e.g., where the 
Commission's fee for the service would be included in a billing against 
the Commission);
    (vi) Furnishing records when to do so is in conformance with 
generally established business custom (e.g., furnishing personal 
reference data to prospective employers of former Commission employees);
    (vii) Furnishing one copy of a record in order to assist the 
requester to obtain financial benefits to which he is entitled (e.g., 
veterans or their dependents, employees with Government employee 
compensation claims or persons insured by the Government).
    (d) Notice of anticipated fees and prepayment. (1) Where it is 
anticipated that fees chargeable under this section may amount to more 
than $25.00 and the requester has not indicated in advance his 
willingness to pay fees as high as are anticipated, the request shall be 
deemed not to have been received for purposes of the time limits 
established by Sec. 700.245 until the requester is advised of the fees 
which are anticipated and has agreed to pay these fees. Advice to 
requesters with respect to anticipated fees shall be provided promptly.
    (2) The appropriate cases, advance payment of fees may be required 
before requested records are made available to the requester.
    (3) A notice of anticipated fees or notice of request for advance 
payment shall extend an offer to the requester to confer with 
appropriate personnel in an attempt to reformulate the request in a 
manner which will reduce the anticipated fees and meet the needs of the 
requester.
    (e) Form of payment. Payment of fees shall be made by check or money 
order payable to the Navajo-Hopi Indian Relocation Commission. The term 
United States or the initials ``U.S.'' shall not be included on the 
check or money order. Where appropriate, the official responsible for 
handling a request may require that payment by check be made in the form 
of a certified check.



                          Subpart K_Privacy Act



Sec. 700.255  Purpose and scope.

    This subpart contains the regulations of the Navajo and Hopi Indian 
Relocation Commission implementing section 3 of the Privacy Act.



Sec. 700.257  Definitions.

    (a) Act. As used in this subpart, ``Act'' means section 3 of the 
Privacy Act, 5 U.S.C. 552a.
    (b) Individual. As used in this subpart, ``individual'' means a 
citizen of the United States or an alien lawfully admitted for permanent 
residence.
    (c) Maintain. As used in this subpart, the term ``maintain'' 
includes maintain, collect, use or disseminate.
    (d) Record. As used in this subpart, ``record'' means any item, 
collection, or grouping of information about an individual that is 
maintained by the Commission including, but not limited to, education, 
financial transactions, medical history, and criminal or employment 
history and that contains the individual's name, or the identifying 
number, symbol, or other identifying particular assigned to the 
individual, such as a finger or voice print, or a photograph.
    (e) System of records. As used in this subpart, ``System of 
records'' means a group of any records under the control of the 
Commission from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.
    (f) Medical records. As used in this subpart, ``medical records'' 
means records which relate to the identification, prevention, cure or 
alleviation of any disease, illness or injury including psychological 
disorders, alcoholism and drug addiction.
    (g) Civil Service Commission personnel records. As used in this 
subpart, ``Civil Service Commission personnel records'' means records 
maintained for the Civil Service Commission by the Commission and used 
for personnel management programs or processes such as

[[Page 1024]]

staffing, employee development, retirement, and grievances and appeals.
    (h) Statistical records. As used in this subpart, ``statistical 
records'' means records in a system of records maintained for 
statistical research or reporting purposes only and not used in whole or 
in part in making any determination about an identifiable individual.
    (i) Routine use. As used in this subpart, ``routine use'' means a 
use of a record for a purpose which is compatible with the purpose for 
which it was collected.
    (j) System notice. As used in this subpart, ``system notice'' means 
the notice describing a system of records required by 5 U.S.C. 
552a(e)(4) to be published annually in the Federal Register.
    (k) System manager. As used in this subpart, ``system manager'' 
means the official designated in a system notice as having 
administrative responsibility for a system of records.
    (l) Commission Privacy Act Officer. As used in the subpart, 
``Commission Privacy Act Officer'' means the official in the Commission 
charged with responsibility for assisting the Commission in carrying out 
the functions which he is assigned in this subpart and for coordinating 
the activities of the divisions of the Commission in carrying out the 
functions which they are assigned in this subpart.



Sec. 700.259  Records subject to Privacy Act.

    The Privacy Act applies to all ``records'' as that term is defined 
in Sec. 700.257(d), which the Commission maintains in a ``system of 
records,'' as that term is defined in Sec. 700.257(e).



Sec. 700.261  Standards for maintenance of records subject to the Act.

    (a) Content of records. Records subject to the Privacy Act shall 
contain only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required to be 
accomplished by statute or Executive Order of the President.
    (b) Standards of accuracy. Records subject to the Privacy Act which 
are used in making any determination about any individual shall be 
maintained with such accuracy, relevance, timeliness, and completeness 
as is reasonably necessary to assure fairness to the individual in 
making the determination.
    (c) Collection of information. (1) Information which may be used in 
making determination about an individual's rights, benefits, and 
privileges under Federal programs shall, to the greatest extent 
practicable, be collected directly from that individual.
    (2) In deciding whether collection of information from an 
individual, as opposed to a third party source, is practicable, the 
following factors, among others may be considered:
    (i) Whether the nature of the information sought is such that it can 
only be obtained from a third party;
    (ii) Whether the cost of collecting the information from the 
individual is unreasonable when compared with the cost of collecting it 
from a third party;
    (iii) Whether there is a risk that information collected from third 
parties if inaccurate, could result in an adverse determination to the 
individual concerned;
    (iv) Whether the information, if supplied by the individual, would 
have to be verified by a third party; or
    (v) Whether provisions can be made for verification, by the 
individual, of information collected from third parties.
    (d) Advice to individual concerning uses of information. (1) Each 
individual who is asked to supply information about himself which will 
be added to a system of records shall be informed of the basis for 
requesting the information, how it may be used, and what the 
consequences, if any, are of not supplying the information.
    (2) At a minimum, the notice to the individual must state;
    (i) The authority (whether granted by statute or Executive Order of 
the President) which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary;
    (ii) The principal purpose or purposes for which the information is 
intended to be used;
    (iii) The routine uses which may be made of the information; and

[[Page 1025]]

    (iv) The effects on him, if any, of not providing all or any part of 
the requested information.
    (3)(i) When information is collected on a standard form, the notice 
to the individual shall be on the form or on a tear-off sheet attached 
to the form or on a separate sheet, whichever is most practical.
    (ii) When information is collected by an interviewer, the 
interviewer shall provide the individual with a written notice which the 
individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
that a copy be mailed to him.
    (iii) An individual may be asked to acknowledge, in writing, that he 
has been afforded the notice required by this section.
    (e) Records concerning activity protected by the First Amendment. No 
record may be maintained describing how any individual exercises rights 
guaranteed by the First Amendment to the Constitution unless (1) 
expressly authorized by statute or by the individual about whom the 
record is maintained or (2) pertinent to and within the scope of an 
authorized law enforcement activity.



Sec. 700.263  Assuring integrity of records.

    (a) Statutory requirement. The Privacy Act requires that records 
subject to the Act be maintained with appropriate administrative, 
technical and physical safeguards to insure the security and 
confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity which could result in 
substantial harm, embarassment, inconvenience, or unfairness to any 
individual on whom information is maintained, 5 U.S.C. 522a(e)(10).
    (b) Records maintained in manual form. When maintained in manual 
form, records subject to the Privacy Act shall be maintained, at a 
minimum, subject to the following safeguards, or safeguards affording 
comparable protection:
    (1) Areas in which the records are maintained or regularly used 
shall be posted with an appropriate warning stating that access to the 
records is limited to authorized persons. The warning shall also 
summarize the requirements of Sec. 700.265 and state that the Privacy 
Act contains a criminal penalty for the unauthorized disclosure of 
records to which it applies.
    (2) During working hours, (i) the area in which the records are 
maintained or regularly used shall be occupied by authorized personnel 
or (ii) access to the records shall be restricted by their storage in 
locked metal file cabinets or a locked room.
    (3) During non-working hours, access to the records shall be 
restricted by their storage in locked metal file cabinets or a locked 
room.
    (c) Records maintained in computerized form. When maintained in 
computerized form, records subject to the Privacy Act shall be 
maintained, at a minimum, subject to safeguards based on those 
recommended in the National Bureau of Standards booklet ``Computer 
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30, 
1975), and any supplements thereto, which are adequate and appropriate 
to assuring the integrity of records in the system.
    (d) Civil Service Commission personnel records. A system of records 
made up of Civil Service Commission personnel records shall be 
maintained under the security requirements set out in 5 CFR 293.108.



Sec. 700.265  Conduct of employees.

    (a) Handling of records subject to the Act. Employees whose duties 
require handling of records subject to the Privacy Act shall, at all 
times, take care to protect the integrity, security and confidentiality 
of these records.
    (b) Disclosure of records. No employee of the Commission may 
disclose records subject to the Privacy Act unless disclosure is 
permitted under Sec. 700.267 or is to the individual to whom the record 
pertains.
    (c) Alteration of records. No employee of the Commission may alter 
or destroy a record subject to the Privacy Act unless (1) such 
alteration or destruction is properly undertaken in the course of the 
employee's regular duties or (2) such alteration or destruction is 
required by a decision under Sec. Sec. 700.287-

[[Page 1026]]

700.295 or the decision of a court of competent jurisdiction.



Sec. 700.267  Disclosure of records.

    (a) Prohibition of disclosure. No record contained in a system of 
records may be disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains.
    (b) General exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) To those officers or employees of the Commission who have a need 
for the record in the performance of their duties; or
    (2) Required by the Freedom of Information Act, 5 U.S.C. 522.
    (c) Specific exceptions. The prohibition contained in paragraph (a) 
does not apply where disclosure of the record would be:
    (1) For a routine use as defined in Sec. 700.257(i) which has been 
described in a systems notice published in the Federal Register;
    (2) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13 U.S. Code.
    (3) To a recipient who has provided the System Manager responsible 
for the system in which the record is maintained with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (4) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;
    (5) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Department specifying the particular portion 
desired and the law enforcement activity for which the record is sought;
    (6) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (7) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (8) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (9) Pursuant to the order of a court of competent jurisdiction.
    (d) Reviewing records prior to disclosure. (1) Prior to any 
disclosure of a record about an individual, unless disclosure is 
required by the Freedom of Information Act, reasonable efforts shall be 
made to assure that the records are accurate, complete, timely and 
relevant for agency purposes.
    (2) When a record is disclosed in connection with a Freedom of 
Information request made under subpart B of this part and it is 
appropriate and administratively feasible to do so, the requester shall 
be informed of any information known to the Commission indicating that 
the record may not be fully accurate, complete, or timely.



Sec. 700.269  Accounting for disclosures.

    (a) Maintenance of an accounting. (1) Where a record is disclosed to 
any person, or to another agency, under any of the specific exceptions 
provided by Sec. 700.267(c), an accounting shall be made.
    (2) The accounting shall record (i) the date, nature, and purpose of 
each disclosure of a record to any person or to another agency and (ii) 
the name and address of the person or agency to whom the disclosure was 
made.
    (3) Accountings prepared under this section shall be maintained for 
at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made.

[[Page 1027]]

    (b) Access to accountings. (1) Except for accountings of disclosures 
made under Sec. 700.267(c)(5), accountings of all disclosures of a 
record shall be made available to the individual to whom the record 
relates at his request.
    (2) An individual desiring access to accountings of disclosures of a 
record pertaining to him shall submit his request by following the 
procedures of Sec. 700.277.
    (c) Notification of disclosure. When a record is disclosed pursuant 
to Sec. 700.267(c)(9) as the result of the order of a court of 
competent juridiction, reasonable efforts shall be made to notify the 
individual to whom the record pertains as soon as the order becomes a 
matter of public record.



Sec. 700.271  Requests for notification of existence of records: 
Submission.

    (a) Submission of requests. (1)(i) An individual desiring to 
determine under the Privacy Act whether a system of records contains 
records pertaining to him shall address his inquiry to the system 
manager having responsibility for the system unless the system notice 
describing the system prescribes or permits submission to some other 
official or officials.
    (ii) If a system notice describing a system requires that an 
individual contact more than two officials concerning the existence of 
records in the system, an individual desiring to determine whether the 
system contains records pertaining to him may contact the system manager 
for assistance in determining which official is most likely to be in 
possession of records pertaining to that individual.
    (2) If an individual desires to determine whether records pertaining 
to him are maintained in two or more systems, he shall make a separate 
inquiry concerning each system.
    (b) Form of request. (1) An inquiry to determine whether a system of 
records contains records pertaining to an individual shall be in 
writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``PRIVACY ACT INQUIRY.''
    (3) The request shall state that the individual is seeking 
information concerning records pertaining to himself and shall supply 
such additional identifying information, if any, as is called for in the 
system notice describing the system.
    (4) If an individual has reason to believe that information 
pertaining to him or her may be filed under a name other than the name 
he or she is currently using (e.g., a maiden name), he or she shall 
include this information in the request.



Sec. 700.273  Request for notification of existence of records: Action 
on.

    (a) Decisions on request. (1) An individual inquiring to determine 
whether a system of records contains records pertaining to him shall be 
advised within ten (10) days (excepting Saturdays, Sundays and legal 
public holidays) whether or not the system does contain records 
pertaining to him unless (i) the records were compiled in reasonable 
anticipation of a civil action or proceeding or (ii) the system of 
records is one which has been excepted from the notification provisions 
of the Privacy Act by rulemaking.
    (2) If the records were compiled in reasonable anticipation of a 
civil action or proceeding or the system of records is one which has 
been excepted from the notification provisions of the Privacy Act by 
rulemaking, the individual will be promptly notified that his is not 
entitled to notification of whether the system contains records 
pertaining to him.
    (b) Authority to deny requests. A decision to deny a request for 
notification of the existence of records shall be made by the Privacy 
Act Officer.
    (c) Form of decision. (1) No particular form is required for a 
decision informing an individual whether or not a system of records 
contains records pertaining to him.
    (2) A decision declining to inform an individual whether or not a 
system of records contains records pertaining to him shall be in writing 
and shall state the basis for denial of the request and shall advise the 
individual that he may appeal the declination to the Executive Director 
pursuant to Sec. 700.285 by writing to the Privacy Act Officer, Navajo 
and Hopi Indian Relocation Commission, P.O. Box KK, Flagstaff, Arizona

[[Page 1028]]

86002, and that the appeal must be received by this official within 
twenty (20) days (Saturdays, Sundays and public legal holidays excepted) 
of the date of the decision.



Sec. 700.275  Requests for access to records.

    The Privacy Act permits an individual, upon his request, to gain 
access to his record or to any information pertaining to him which is 
contained in a system and to review the record and have a copy made of 
all or any portion thereof in a form comprehensive to him, 5 U.S.C. 
552a(d)(1). A request for access shall be submitted in accordance with 
the procedures in this subpart.



Sec. 700.277  Requests for access to records: Submission.

    (a) Submission of requests. (1) Requests for access to records shall 
be submitted to the system manager having responsibility for the system 
in which the records are maintained unless the system notice describing 
the system prescribes or permits submission to some other official or 
officials.
    (2) If an individual desires access to records maintained in two or 
more separate systems, he shall submit a separate request for access to 
the records in each system.
    (b) Form of request. (1) A request for access to records subject to 
the Privacy Act shall be in writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``PRIVACY ACT REQUEST FOR ACCESS.''
    (3) The request shall specify whether the requester seeks all of the 
records contained in the system which relate to him or only some portion 
thereof. If the requester seeks only a portion of the records which 
relate to him, the request shall reasonably describe the specific 
records sought.
    (4) If the requester seeks to have copies of the requested records 
made, the request shall state the maximum amount of copying fees which 
the requester is willing to pay. A request which does not state the 
amount of fees the requester is willing to pay will be treated as a 
request to inspect the requested records. Requesters are further 
notified that under Sec. 700.279(d) the failure to state willingness to 
pay fees as high as are anticipated by the Commission will delay 
processing of a request.
    (5) The request shall supply such identifying information, if any, 
as is called for in the system notice describing the system.
    (6) Requests failing to meet the requirements of this paragraph 
shall be returned to the requester with a written notice advising the 
request of the deficiency in the request.



Sec. 700.279  Requests for access to records: Initial decision.

    (a) Decisions on requests. A request made under this subpart for 
access to a record shall be granted promptly unless (1) the record was 
compiled in reasonable anticipation of a civil action or proceeding or 
(2) the record is contained in a system of records which has been 
excepted from the access provisions of the Privacy Act by rulemaking.
    (b) Authority to deny requests. A decision to deny a request for 
access under this subpart shall be made by the Privacy Act Officer.
    (c) Form of decision. (1) No particular form is required for a 
decision granting access to a record. The decision shall, however, 
advise the individual requesting the record as to where and when the 
record is available for inspection or, as the case may be, where and 
when copies will be available. If fees are due under Sec. 700.279(d), 
the individual requesting the record shall also be notified of the 
amount of fees due or, if the exact amount has not been determined, the 
approximate amount of fees due.
    (2) A decision denying a request for access, in whole or part, shall 
be in writing and shall state the basis for denial of the request. The 
decision shall also contain a statement that the denial may be appealed 
to the Executive Director pursuant to Sec. 700.281 by writing to 
Privacy Act Officer, Navajo and Hopi Indian Relocation Commission, P.O. 
Box KK, Flagstaff, Arizona 86002, and that the appeal must be received 
by this official within twenty (20) days (Saturdays, Sundays and public 
legal

[[Page 1029]]

holidays excepted) of the date of the decision.
    (d) Fees. (1) No fees may be charged for the cost of searching for 
or reviewing a record in response to a request made under Sec. 700.271.
    (2) Fees for copying a record in response to a request made under 
Sec. 700.271 shall be charged in accordance with the schedule of 
charges contained in the Commission's Management Manual, unless the 
official responsible for processing the request determines that, in his/
her opinion, reduction or waiver of fees is appropriate.
    (3) Where it is anticipated that fees chargeable in connection with 
a request will exceed the amount the person submitting the request has 
indicated he/she is willing to pay, the official processing the request 
shall notify the requester and shall not complete processing of the 
request until the requester has agreed, in writing, to pay fees as high 
as are anticipated.



Sec. 700.281  Requests for notification of existence of records and 
for access to records: Appeals.

    (a) Right of appeal. If an individual has been notified that he/she 
is not entitled to notification of whether a system of records contains 
records pertaining to him or has been denied access, in whole or part, 
to a requested record that individual may appeal to the Executive 
Director.
    (b) Time for appeal. (1) An appeal must be received by the Privacy 
Act Officer no later than twenty (20) days (Saturdays, Sundays and 
public legal holidays excepted) after the date of the initial decision 
on a request.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within twenty (20) days (Saturdays, Sundays and public 
legal holidays excepted) of the date of the initial decision of the 
request.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial request and the decision on the request.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the initial request to have been 
in error.
    (3) The appeal shall be addressed to Privacy Act Officer, Navajo and 
Hopi Indian Relocation Commission, Box KK, Flagstaff, Arizona 86002.
    (d) Action on appeals. (1) Appeals from decisions on initial 
requests made pursuant to Sec. Sec. 700.273 and 700.277 shall be 
decided for the Commission by the Executive Director after consultation 
with the Commission's legal counsel.
    (2) The decision on an appeal shall be in writing and shall state 
the basis for the decision.



Sec. 700.283  Requests for access to records: Special situations.

    (a) Medical records. (1) Medical records shall be disclosed to the 
individual to whom they pertain unless it is determined, in consultation 
with a medical doctor, that disclosure should be made to a medical 
doctor of the individual's choosing.
    (2) If it is determined that disclosure of medical records directly 
to the individual to whom they pertain could have an adverse effect on 
that individual, the individual may designate a medical doctor to 
receive the records and the records will be disclosed to that doctor.
    (b) Inspection in presence of third party. (1) An individual wishing 
to inspect records pertaining to him which have been opened for his 
inspection may, during the inspection, be accompanied by a person of his 
own choosing.
    (2) When such a procedure is deemed appropriate, the individual to 
whom the records pertain may be required to furnish a written statement 
authorizing discussion of his record in the accompanying person's 
presence.



Sec. 700.285  Amendment of records.

    The Privacy Act permits an individual to request amendment of a 
record pertaining to him if be believes the record is not accurate, 
relevant, timely or complete, 5 U.S.C. 552a(d)(2). A request for 
amendment of a record shall be submitted in accordance with the 
procedures in this subpart.



Sec. 700.287  Petitions for amendment: Submission and form.

    (a) Submission of petitions for amendment. (1) A request for 
amendment of a

[[Page 1030]]

record shall be submitted to the system manager for the system of 
records containing the record unless the system notice describing the 
system prescribes or permits submission to a different official or 
officials. If an individual wishes to request amendment of records 
located in more than one system, a separate petition must be submitted 
to each system manager.
    (2) A petition for amendment of a record may be submitted only if 
the individual submitting the petition has previously requested and been 
granted access to the record and has inspected or been given a copy of 
the record.
    (b) Form of petition. (1) A petition for amendment shall be in 
writing and shall specifically identify the record whose amendment is 
sought.
    (2) The petition shall state, in detail, the reasons why the 
petitioner believes the record, or the portion thereof objectionable to 
him, is not accurate, relevant, timely or complete. Copies of documents 
or evidence relied upon in support of these reasons shall be submitted 
with the petition.
    (3) The petition shall state, specifically and in detail, the 
changes sought in the record. If the changes involve rewriting of the 
record or portions thereof or involve adding new language to the record, 
the petition shall propose specific language to implement the changes.



Sec. 700.289  Petitions for amendment: Processing and initial decision.

    (a) Decisions on petitions. In reviewing a record in response to a 
petition for amendment, the accuracy, relevance, timeliness and 
completeness of the record shall be assessed against the criteria set 
out in Sec. 700.261. In addition, personnel records shall be assessed 
against the criteria for determining record quality published in the 
Federal Personnel Manual and the Commission Manual addition thereto.
    (b) Authority to decide. An initial decision on a petition for 
amendment may be made only by the Privacy Act Officer.
    (c) Acknowledgement of receipt. Unless processing of a petition is 
completed within ten (10) days (Saturdays, Sundays and public legal 
holidays excepted), the receipt of the petition for amendment shall be 
acknowledged in writing by the system manager to whom it is directed.
    (d) Inadequate petitions. (1) If a petition does not meet the 
requirements of Sec. 700.287, the petitioner shall be so advised and 
shall be told what additional information must be submitted to meet the 
requirements of Sec. 700.287.
    (2) If the petitioner fails to submit the additional information 
within a reasonable time, his petition may be rejected. The rejection 
shall be in writing and shall meet the requirements of paragraph (e) of 
this section.
    (e) Form of decision. (1) A decision on a petition for amendment 
shall be in writing and shall state concisely the basis for the 
decision.
    (2) If the petitioned for amendment is rejected, in whole or part, 
the decision shall advise the petitioner that the rejection may be 
appealed to the Executive Director by writing to the Privacy Act 
Officer, Navajo and Hopi Indian Relocation Commission, Box KK, 
Flagstaff, Arizona 86002, and that the appeal must be received by this 
official within twenty (20) days (Saturdays, Sundays and public legal 
holidays excepted) of the date of the decision.
    (f) Implementation of initial decision. If a petitioned for 
amendment is accepted, in whole or part, the appropriate Commission 
Division maintaining the record shall:
    (1) Correct the record accordingly and,
    (2) Where an accounting of disclosures has been made pursuant to 
Sec. 700.269 advise all previous recipients of the record that the 
correction was made and the substance of the correction.



Sec. 700.291  Petitions for amendment: Time limits for processing.

    (a) Acknowledgement of receipt. The acknowledgement of receipt of a 
petition required by Sec. 700.289(c) shall be dispatched not later than 
ten (10) days (Saturdays, Sundays and public legal holidays excepted) 
after receipt of the petition by the system manager responsible for the 
system containing the challenged record, unless a decision on the 
petition has been previously dispatched.

[[Page 1031]]

    (b) Decision on petition. A petition for amendment shall be 
processed promptly. A determination whether to accept or reject the 
petitioned for amendment shall be made within no more than thirty (30) 
days (Saturdays, Sundays, and public legal holidays excepted) after 
receipt of the petition by the system manager responsible for the system 
containing the challenged record.
    (c) Suspension of time limit. The thirty (30) day time limit for a 
decision on a petition shall be suspended if it is necessary to notify 
the petitioner, pursuant to Sec. 700.289(d) that additional information 
in support of the petition is required. Running of the thirty (30) day 
time limit shall resume on receipt of the additional information by the 
system manager responsible for the system containing the challenged 
record.
    (d) Extensions of time. (1) The thirty (30) day time limit for a 
decision on a petition may be extended if the official responsible for 
making a decision on the petition determines that an extension is 
necessary for one of the following reasons:
    (i) A decision on the petition requires analysis of voluminous 
record or records;
    (ii) Some or all of the challenged records must be collected from 
facilities other than the facility at which the official responsible for 
making the decision is located.
    (2) If the official responsible for making a decision on the 
petition determines that an extension is necessary, he shall promptly 
inform the petitioner of the extension and the date on which a decision 
is expected to be dispatched.



Sec. 700.293  Petitions for amendment: Appeals.

    (a) Right of appeal. Where a petitioned-for amendment has been 
rejected, in whole or part, the individual submitting the petition may 
appeal the denial to the Executive Director.
    (b) Time for appeal. (1) An appeal must be received no later than 
twenty (20) days (Saturdays, Sundays and public legal holidays excepted) 
after the date of the decision on a petition.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within twenty (20) days (Saturdays, Sundays and public 
legal holidays excepted) of the date of the decision on a petition.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial petition and the decision on that petition.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the petition to have been in 
error.
    (3) The appeal shall be addressed to Privacy Act Officer, Navajo and 
Hopi Indian Relocation Commission, Box KK, Flagstaff, Arizona 86002.



Sec. 700.295  Petitions for amendment: Action on appeals.

    (a) Authority. Appeals from decisions on initial petitions for 
amendment shall be decided for the Commission by the Executive Director 
after consultation with the Commission's legal counsel unless the record 
challenged by the initial petition is a Civil Service Commission 
personnel record maintained for the Commission by the Navajo and Hopi 
Indian Relocation Commission. Appeals from decisions on initial 
petitions requesting amendment of Civil Service Commission records 
maintained for the Commission by the Navajo and Hopi Indian Relocation 
Commission shall be transmitted by the Executive Director, for decision.
    (b) Time limit. (1) A final determination on any appeal shall be 
made within thirty (30) days (Saturdays, Sundays and legal public 
holidays excepted) after receipt of the appeal.
    (2) The thirty (30) day period for decision on an appeal may be 
extended, for good cause shown, by the Commission. If the thirty (30) 
day period is extended, the individual submitting the appeal shall be 
notified of the extension and of the date on which a determination on 
the appeal is expected to be dispatched.
    (c) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination.
    (2) If the determination upholds, in whole or part, the initial 
decision rejecting the petitioned for amendment, the determination shall 
also advise the individual submitting the appeal:

[[Page 1032]]

    (i) Of his or her right to file a concise statement of the reasons 
for disagreeing with the decision of the agency;
    (ii) Of the procedure established by Sec. 700.297 for the filing of 
the statement of disagreement;
    (iii) That the statement which is filed will be made available to 
anyone to whom the record is subsequently disclosed together with, at 
the discretion of the Commission, a brief statement by the Commission 
summarizing its reasons for refusing to amend the record;
    (iv) That prior recipients of the challenged record will be provided 
a copy of any statement of dispute to the extent that an accounting of 
disclosure was maintained; and
    (v) Of his or her right to seek judicial review of the Commission's 
refusal to amend the record.
    (3) If the determination reverses, in whole or in part, the initial 
decision rejecting the petitioned for amendment, the system manager 
responsible for the system containing the challenged record shall be 
directed to:
    (i) Amend the challenged record accordingly; and
    (ii) If an accounting of disclosure has been made, advise all 
previous recipients of the record which was amended of the amendment and 
its substance.



Sec. 700.297  Statements of disagreement.

    (a) Filing of statements. If the determination of the Executive 
Director under Sec. 700.295 rejects in whole or part, a petitioned for 
amendment, the individual submitting the petition may file with the 
system manager for the system containing the challenged record, a 
concise written statement setting forth the reasons for his disagreement 
with the determination of the Department.
    (b) Disclosure of statements. In any disclosure of a record 
containing information about which an individual has filed a statement 
of disagreement under this section occurring after the filing of the 
statement, the disputed portion of the record will be clearly noted and 
the recipient shall be provided copies of the statement of disagreement. 
If appropriate, a concise statement of the reasons of the Commission for 
not making the requested amendments may also be provided to recipient.



   Subpart L_Determination of Eligibility, Hearing and Administrative 
                            Review (Appeals)

    Source: 46 FR 46801, Sept. 22, 1981; 47 FR 15774, Apr. 13, 1982, 
unless otherwise noted.



Sec. 700.301  Definitions.

    (a) Certifying Officer, as used in this subpart, means that member 
of the Commission staff who certifies eligibility for relocation 
assistance benefits and/or for life estate leases.
    (b) An aggrieved person, as used in this subpart, means a person who 
has been denied any relocation assistance benefits for which he/she has 
applied.



Sec. 700.303  Initial Commission determinations.

    (a) Initial Commission Determination concerning individual 
eligibility or benefits for any person who has filed a claim for 
benefits or for granting of life estate leases shall be made by the 
Certifying Officer. The Determination shall include the amount, if any, 
to which the individual is entitled, and shall state the reasons 
therefor. Such Determination shall be communicated to the Applicant by 
certified letter or in person by Commission staff. A record of personal 
notice shall be maintained by the Commission.
    (b) An explanatory conference shall be scheduled by and with the 
Certifying Officer, if requested by the Applicant or the Certifying 
Officer, within thirty days of the communication of the Determination; 
the right to a hearing is not dependent on the holding of such a 
conference. The Certifying Officer may reverse, amend, or leave standing 
the Initial Determination as a result of such conference: Provided, 
however, his/her decision shall be communicated in writing to the 
Applicant by certified letter or in person by Commission staff within 
five days after such conference.
    (c) Communications of Determinations to the Applicant as provided 
for in Sec. 700.303(a) shall include an explanation of the availability 
of grievance

[[Page 1033]]

procedures, including hearings and representation of counsel and the 
fact that a hearing must be requested within 30 (thirty) days of receipt 
of the determination.
    (d) No decision which at the time of its rendition is subject to 
appeal to the Commission shall be considered final agency action subject 
to judicial review under 5 U.S.C. 704, Provided that in the event of a 
whole or partial denial, no benefits shall be paid unless and until said 
Determination is reversed or modified as provided for herein.



Sec. 700.305  Availability of hearings.

    All persons aggrieved by Initial Commission Determinations 
concerning eligibility, benefits, or for granting of life estate leases 
may have a Hearing to present evidence and argument concerning the 
Determination. Parties seeking such relief from the Commission's Initial 
Determination shall be known as ``Applicants.'' When multiple Applicants 
claim interest in one benefit, determination, or question of 
eligibility, their hearings may be consolidated at the Presiding 
Officer's discretion.



Sec. 700.307  Request for hearings.

    Hearing requests shall be made in person or by letter and must be 
received by the Commission within thirty days after the notice letter 
was received, the personal notice was given, or if an explanatory 
conference is held, after the decision of the Certifying Officer. The 
request shall also contain a specific statement indicating the basis for 
the request.



Sec. 700.309  Presiding officers.

    The hearing shall be presided over and conducted by one of the 
Commissioners appointed pursuant to 25 U.S.C. 640d-11(b) or by such 
other person as the Commission may designate.



Sec. 700.311  Hearing scheduling and documents.

    (a) Hearings shall be held as scheduled by the Presiding Officer.
    (b) Notice of the hearing shall be communicated in writing to the 
applicant at least thirty days prior to the hearing and shall include 
the time, date, place, and nature of the hearing.
    (c) Written notice of the Applicant's objections, if any, to the 
time, date, or place fixed for the hearing must be filed with the 
Presiding Officer at least five days before the date set for the 
hearing. Such notice of objections shall state the reasons therefor and 
suggested alternatives. Discretion as to any changes in the date, time, 
or place of the hearing lies entirely with the Presiding Officer, 
Provided, that the 30 (thirty) day notice period as provided in 
paragraph (b) of this section shall be observed unless waived in writing 
by the applicant or his representative.
    (d) All hearings shall be held within thirty days after Commission 
receipt of the applicant's request therefor unless this limit is 
extended by the Presiding Officer.
    (e) All hearings shall be conducted at the Commission office in 
Flagstaff, Arizona, unless otherwise designated by the Presiding 
Officer.
    (f) All time periods in this regulation include Saturdays, Sundays 
and holidays. If any time period would end on a Saturday, Sunday, or 
holiday, it will be extended to the next consecutive day which is not a 
Saturday, Sunday, or holiday.
    (g) A copy of each document filed in a proceeding under this section 
must be filed with the Commission and may be served by the filing party 
by mail on any other party or parties in the case. In all cases where a 
party is represented by an attorney or representative, such attorney or 
representative will be recognized as fully controlling the case on 
behalf of his client, and service of any document relating to the 
proceeding shall be made upon such attorney or representative, which 
service shall suffice as if made upon the Applicant. Where a party is 
represented by more than one attorney or representative, service upon 
one of the attorneys or representatives shall be sufficient.
    (h) Hearings will be recorded verbatim and transcripts thereof shall 
be made when requested by any parties; costs of transcripts shall be 
borne by the requesting parties unless waived according to Sec. 
700.313(a)(5).
    (i) Applicants may be represented by a licensed attorney or by an 
advocate

[[Page 1034]]

licensed to practice in any Hopi or Navajo Tribal Court.



Sec. 700.313  Evidence and procedure.

    (a) At the hearing and taking of evidence the Applicant shall have 
an opportunity to:
    (1) Submit and have considered facts, witnesses, arguments, offers 
of settlement, or proposals of adjustment;
    (2) Be represented by a lawyer or other representative as provided 
herein;
    (3) Have produced Commission evidence relative to the determination, 
Provided, that the scope of pre-hearing discovery of evidence shall be 
limited to relevant matters as determined by the Presiding Officer;
    (4) Examine and cross-examine witnesses;
    (5) Receive a transcript of the hearing on request and upon payment 
of appropriate Commission fees as published by the Commission, which may 
be waived in cases of indigency.
    (b) The Presiding Officer is empowered to:
    (1) Administer oaths and afffirmations;
    (2) Rule on offers of proof;
    (3) Receive relevant evidence;
    (4) Take depositions or have depositions taken when the ends of 
justice would be served and to permit other pre-hearing discovery within 
his/her discretion;
    (5) Regulate the course and conduct of the hearings; including pre-
hearing procedures;
    (6) Hold pre-hearing or post-hearing conferences for the settlement 
or simplification of the issues;
    (7) Dispose of procedural requests or similar matters;
    (8) Make a record of the proceedings;
    (9) Hold the record open for submission of evidence no longer than 
fourteen days after completion of the hearings;
    (10) Make or recommend a decision in the case based upon evidence, 
testimony, and argument presented;
    (11) Enforce the provisions of 5 USCA section 557(d) in the event of 
a violation thereof;
    (12) Issue subpoenas authorized by law; and
    (13) Extend any time period of this subpart upon his/her own motion 
or upon motion of the applicant, for good cause shown.



Sec. 700.315  Post-hearing briefs.

    Applicants may submit post-hearing briefs or written comments to the 
Presiding Officer within fourteen days after conclusion of the hearings. 
In the event of multiple applicants or parties to a hearing, such briefs 
shall be served on all such applicants by the applicant submitting the 
brief.



Sec. 700.317  Presiding officer decisions.

    (a) The Presiding Officer shall submit to the Commission a written 
decision based upon the evidence and argument presented, within sixty 
days, not including any period the record is held open, if any, after 
conclusion of the hearing, unless otherwise extended by the Presiding 
Officer.
    (b) Copies of the Presiding Officer's decision shall be mailed to 
the Applicant. The Applicant may submit briefs or other written argument 
to the Commission within fourteen days of the date the Presiding 
Officer's determination was mailed to the Applicant.



Sec. 700.319  Final agency action.

    Within 30 (thirty) days after receipt of the Presiding Officer's 
decision, the Commission shall affirm or reverse the decision and issue 
its final agency action upon the application in writing; Provided, that 
in the event one Commissioner sits as the Presiding Officer, the final 
agency action shall be determined by the remaining Commissioners and 
such other person as they may designate who did not so preside over the 
hearing. Such decisions shall be communicated in writing to the 
Applicant by certified mail.



Sec. 700.321  Direct appeal to Commissioners.

    Commission determinations concerning issues other than individual 
eligibility or benefits which do not require a hearing may be appealed 
directly to the Commission in writing. The Commission decision will 
constitute final agency action on such issues.

[[Page 1035]]



                      Subpart M_Life Estate Leases

    Authority: Sec. 30(b), Pub. L. 96-305, 94 Stat. 929 (25 U.S.C. 
640d).

    Source: 46 FR 27921, May 22, 1981; 47 FR 15774, Apr. 13, 1982, 
unless otherwise noted.



Sec. 700.331  Application for life estate leases.

    The following standards and procedures shall govern the application 
for life estate leases:
    (a) Filing of application. Applications for life estate leases shall 
be filed at the Commission's office in Flagstaff, AZ, not later than 
July 1, 1981, unless extended for good cause. Application should be made 
on an approved Commission form known as ``Application for Life Estate 
Lease'' and should contain the following information:
    (1) Name, address, birthdate, social security number, census number, 
spouse, and date of marriage, if married. The head of household who 
applies for a life estate lease shall be known as the ``applicant''.
    (2) Applicant's Quad Map location in the Former Joint Use Area.
    (3) Information listing any other places of Applicant's residence 
since December 22, 1974.
    (4) Name, birthdate, census number, and social security number, if 
any, of the applicant's minor dependent children.
    (5) A statement by the applicant setting forth the nature of the 
applicant's disability, if any.
    (6) Applications should be accompanied, wherever possible, with 
documentation such as Birth Certificates, Baptismal Records, Tribal 
Records, Family Census Cards, Marriage Certificates, Tax Returns, and 
such other documentation required by the Commission.
    (b) Extensions of time for filing of applications for life estate 
leases. Extensions of time for filing of applications for life estate 
leases shall be governed by the following procedures:
    (1) The Commission shall, on a case-by-case basis, determine whether 
good cause exists to warrent a time extension for the receipt of 
applications.
    (2) Initial Commission determinations concerning the time extension 
for receipt of applications shall be made by the Certification Officer. 
Any extensions granted shall be in writing and shall state the length of 
the extensions and the reasons therefore.
    (3) In no event shall an extension be granted for more than eighty-
nine (89) days after July 1, 1981.
    (4) In the event an extension of time is denied or an application is 
refused for filing, the Certification Officer shall state the reasons 
therefore and such determination shall be communicated to the applicant 
by certified letter or in person by Commission staff.
    (5) All persons aggrieved by initial Commission determination may 
have a hearing to present evidence and argument concerning the 
determination. Such hearings shall be requested and governed by the 
Commission's Hearings and Administrative Review Procedures contained in 
Sec. 700.8 of the Commission's Operations and Relocation Procedures.
    (6) For purpose of this subsection, ``good cause'' shall be defined 
as follows:
    (i) Lack of actual notice.
    (ii) Lack of transportation or physical incapacity preventing timely 
filing.
    (iii) Acts of God.
    (iv) Such other facts or reasons deemed sufficient in the discretion 
of the Commission.



Sec. 700.333  Determination of disability.

    The Commission shall determine disability pursuant to the following:
    (a) An applicant shall be considered to be disabled if he/she is 
unable to engage in any substantial gainful activity by reason of any 
medically determined physical or mental impairment which can be expected 
to result in death or which has lasted or can be expected to last for a 
continuous period of not less than twelve months. A physical or mental 
impairment is an impairment that results from anatomical, physiological, 
or psychological abnormalities which are demonstrable by medically 
acceptable clinical and laboratory diagnostic techniques.
    (b) Each applicant who claims entitlement to a life estate lease by 
virture of a disability shall be examined by a physician selected by the 
Commission

[[Page 1036]]

or one selected by the applicant and approved by the Commission. The 
reasonable costs of such examinations shall be paid by the Commission. 
The examining physician shall submit a report of his/her examination to 
the rating physician who shall be a physician selected by the 
Commission. The rating physician shall submit to the Commission a report 
stating his/her opinion as to whether or not the applicant is a least 
50% (fifty percent) disabled and if so, the percent of disability. In 
addition, the rating physician shall state in his/her report the 
conditions or conditions of the applicant upon which the rating is 
based.
    (c) In performing examinations and in making ratings, the physician 
shall follow the procedures and adopt the standards set forth in subpart 
I--Determination of Disability or Blindness, of the Social Security 
Administration, contained in title 20, Code of Federal Regulations, 
Sec. Sec. 416.901 through 416.985, including the appendices, etc., to 
the extent that such procedures and standards are appropriate to this 
examination and rating.
    (d) In making its determination as to the disability and the 
percentage thereof of an applicant who claims disability, the Commission 
shall consider the report of the rating physician and such other matters 
as the Commission deems relevant.



Sec. 700.335  Grouping and granting of applications for life estate 
leases.

    Upon receipt of applications filed pursuant to this section, the 
Commission shall group and award life estate leases in the following 
manner:
    (a) Applicants who are determined to be at least 50% (fifty percent) 
disabled as certified by a physician approved by the Commission. Such 
applicants shall be ranked in the order of the severity of their 
disability.
    (b) Applicants who are not at least 50% (fifty percent) disabled 
shall be ranked in order of their age with the oldest listed first and 
the youngest listed last; provided that, if any applicant physically 
resides in Quarter Quad Numbers 78 NW, 77NE, 55SW, or 54 SE, as 
designated on the Quarter Quad Maps of the Former Joint Use Area 
prepared by the Bureau of Indian Affairs Field Administrative Office, 
such applicant shall be given priority over another applicant of equal 
age.
    (c) Applicants who did not, as of December 22, 1974, and 
continuously thereafter, maintain a separate place of abode and actually 
remain domiciled on Hopi Partitioned Lands, and who, but for this 
subsection would be required to relocate, shall be rejected by the 
Commission.
    (d) Applicants who were not at least forty-nine (49) years of age on 
December 22, 1974, or are not at least 50% (fifty percent) disabled 
shall also be rejected by the Commission.
    (e) The Commission shall award life estate leases to not more than 
one hundred and twenty (120) Navajo applicants with first priority being 
given to applicants listed pursuant to Sec. 700.335(a) and the next 
priority being given to applicants listed pursuant to Sec. 700.335(b), 
in order of such listing.
    (f) The Commission shall award life estate leases to not more than 
ten (10) Hopi applicants with first priority being given to applicants 
listed pursuant to Sec. 700.335(a) and the next priority being given to 
applicants listed pursuant to Sec. 700.335(b) in order of such listing 
except that the portion of Sec. 700.335(b) concerning residency in 
Quarter Quad Numbers 78 NW, 77NE, 77NW, 55 SW, 54SE, etc., shall not 
apply to Hopi applicants.



Sec. 700.337  Establishment of boundaries of life estate leases.

    (a) Prior to the issuance of a life estate lease, the Commission 
shall, after consultation with the Tribe upon whose land the life estate 
lease will be located, establish the actual configuration, shape and 
boundaries of the land area of the life estate lease. The present 
residence of the life tenant shall be within the boundaries of the life 
estate lease and the area of the life estate lease shall not exceed 
ninety (90) acres.
    (b) The following factors will be considered in establishing the 
configuration, shape, and boundaries of a life estate lease:
    (1) The location of the present residence of the applicant and the 
traditional land use area associated with such residence.

[[Page 1037]]

    (2) The topography and soil conditions of the land in the immediate 
vicinity of the applicant's present residence.
    (3) The location of the nearest source of water.
    (4) The proximity of roads.
    (5) Such other factors may be necessary or appropriate.



Sec. 700.339  Residency on life estate leases.

    (a) No person may reside on a life estate lease other than the life 
tenant, his or her spouse, and minor dependents and such persons who are 
necessarily present, as determined by the Commission, to provide for the 
care of the life tenant.
    (b) In determining who is necessarily present for the care of the 
life tenant, the Commission shall consider the following criteria:
    (1) The age of the life tenant.
    (2) The nature and extent of the life tenant's disability, if any.
    (3) The location of the life estate lease, including but not limited 
to, the following factors:
    (i) Topography,
    (ii) Proximity to water,
    (iii) Proximity to fuel,
    (iv) Proximity to shopping and medical services, and
    (v) Any other factors deemed relevant to the Commission.
    (4) The nature and extent of care to be provided to a disabled life 
tenant.
    (5) Any other factors deemed relevant by the Commission.
    (c) In the event it becomes necessary to change the identity of the 
person(s) or number of persons identified as necessarily present for the 
care of the life tenant, the life tenant shall make such request for 
change to the Commission. The Commission, upon review of the request, 
may grant an amended life estate lease to reflect the requested change.



Sec. 700.341  Access to life estate leases.

    (a) Family members and other persons may enter upon the life estate 
lease premises for the purpose of visiting the life estate lease 
residents so long as such visit does not exceed thirty (30) consecutive 
days in any one visit or ninety (90) days total of all visits within any 
lease year, except that grandchildren and their descendants who are not 
minor dependents of the life tenant and who have not attained the age of 
18 (eighteen) years may visit for ninety (90) consecutive days in any 
lease year, the first of which shall commence on the date of issuance of 
the life estate lease. There shall be no limitation on visits which do 
not extend overnight.
    (b) Visitors and residents shall use the existing road systems and 
access rights of way when traveling to and from life estate lease 
premises.



Sec. 700.343  Life estate leases.

    The Commission shall execute a life estate lease to each applicant 
to whom a life estate lease is granted, which lease shall contain the 
following:
    (a) The names of the persons entitled to reside on the life estate 
lease which shall be the life tenant, his or her spouse, and minor 
dependents and/or such persons who are necessarily present to provide 
for the care of life tenant.
    (b) A description of the exterior boundaries of the land included in 
said lease.
    (c) The term of the life estate lease which shall end either upon 
voluntary relinquishment or upon the death of the life tenant or his/her 
spouse, whichever occurs last.
    (d) That the life tenant may feed not to exceed twenty-five (25) 
sheep units per year or equivalent livestock on the life estate lease 
premises.
    (e) That no person may reside on a life estate lease other than the 
life tenant, his or her spouse, and minor dependents, and/or such 
persons who are necessarily present to provide for the care of the life 
tenant.
    (f) That the Secretary of Interior shall pay, pursuant to 25 U.S.C. 
640d-28(i), Pub. L. 96-305, section 30(i), on an annual basis, the fair 
market rental value of such life estate lease to the tribe to whom the 
lands leased were partitioned. Rental payments shall be made within 
thirty (30) days of the execution date of the life estate lease.
    (g) That the life tenant may make reasonable improvements on the 
life estate lease which are related to the residence and agricultural 
purposes of

[[Page 1038]]

the life tenancy as determined by the Commission. Such improvements:
    (1) May include the renovation or replacement of existing dwelling 
structures and privies or outhouses so as to improve their utility, 
safety or level of modern utilities or amenities, but
    (2) Shall not increase the number, size, or capacity of dwelling 
structures on the leased area except with the express written approval 
of the Commission based upon a showing of actual need, or to reasonably 
accommodate a resident care provider for whom there is not adequate 
existing residential capacity.
    (3) May include not more than one shed or barn to be used in 
connection with livestock and/or agricultural activities permitted.
    (4) May include one ceremonial hogan and one traditional ramada type 
structure.
    (5) May include a garden of reasonable size.
    (6) May include such other improvements as the Commission finds to 
be reasonable under the circumstances of each lease.
    (h) That no person may visit on a life estate lease for more than 
thirty (30) consecutive days in any one visit or ninety (90) days total 
of all visits within any lease year the first of which shall commence on 
the date of issuance of the life estate lease, except that grandchildren 
and their descendants who are not minor dependents of the life tenant 
and who have not attained the age of eighteen (18) years may visit for 
ninety (90) consecutive days in any lease year. There shall be no 
limitation on visits which do not extend overnight.
    (i) That said life tenant or his or her surviving spouse may 
relinquish said life estate lease at any time and may receive relocation 
benefits from the Secretary at the time of relinquishment as provided in 
25 U.S.C. 640d-28(h), (Pub. L. 96-305, section 30(h)).
    (j) The purposes for which the life estate lease may be used.
    (k) The life estate tenure shall end by voluntary relinquishment, or 
at the death of the life tenant or the death of his or her spouse, 
whichever occurs last, all as provided in 25 U.S.C. 640d-28(g) (Pub. L. 
96-305, section 30(g)).
    (l) No livestock shall be allowed in the lease area until the 
perimeter of the lease area is fenced.
    (m) Such other terms and conditions deemed necessary or appropriate 
by the Commission.



                      Subpart N_Discretionary Funds

    Source: 47 FR 57916, Dec 29, 1982, unless otherwise noted.



Sec. 700.451  Purpose.

    (a) The purpose of this subpart is to establish procedures for the 
submission, review and approval, and administration of applications for 
financial assistance from the discretionary fund established by Pub. L. 
93-531, as amended.
    (b) The purpose of the discretionary fund is to provide financial 
assistance to activities which will facilitate and expedite the 
relocation and resettlement of individuals under the Act and ease the 
hardship incurred by these individuals.



Sec. 700.453  Definitions.

    (a) Act means Pub. L. 93-531 (88 Stat. 1712, 25 U.S.C. 640d), as 
amended.
    (b) Applicant means with respect to this subpart, any applicant as 
defined under Sec. 700.457(c) or Sec. 700.459(b).
    (c) Business means any lawful activity, except a nonprofit 
organization, that is--
    (1) Conducted primarily for the purchase, sale, lease and/or rental 
of personal and/or real property, and/or for the manufacture, 
processing, and/or marketing of products, commodities, and/or any other 
personal property; or
    (2) Conducted primarily for the sale of services to the public.
    (d) Commissioners means the three Commissioners of the Navajo and 
Hopi Indian Relocation Commission.
    (e) In-kind contribution means a noncash contribution as described 
in attachment F of OMB Circular A-102.
    (f) Local government means a local unit of government including 
specifically a county, municipality, city, town, township, local public 
authority, special district, council of governments, and other regional 
or interstate entity, or any agency or instrumentality of a local 
government.

[[Page 1039]]

    (g) Nonprofit organization means a corporation, partnership, 
individual, or other public or private entity that is engaged in a 
lawful business, professional, or instructional activity on a nonprofit 
basis and that has established its nonprofit status under applicable 
Federal, State, or Tribal law.
    (h) Related facilities means any building or structure normally 
found in a community and includes but is not limited to water, sewer and 
electrical lines, community centers, health centers and clinics, roads, 
and business establishments.
    (i) Services means activities relating to human development 
including, but not limited to, educational and job training, mental 
health counseling, health care, and technical assistance in business 
administration, agriculture, and home economics.
    (j) Tribe means the Navajo Chapter or the Hopi Village.
    (k) Tribal subdivision means a Navajo Chapter or a Hopi Village.



Sec. 700.455  Financial assistance.

    (a) The Commission may provide financial assistance to applicants 
eligible under this subpart from funds available for any fiscal year.
    (b) To obtain financial assistance, an applicant shall submit an 
application in accordance with Sec. 700.463.
    (c) The Commission may make funding decisions throughout the year as 
applications are approved. The Commission shall, to the extent possible, 
make funds available throughout the year for approved applications. 
Based upon the merit of applications received under this subpart, the 
Commission shall determine how funds available under this subpart shall 
be apportioned among the activities described in Sec. Sec. 700.457 and 
700.459.



Sec. 700.457  Assistance to match or pay 30% of grants, contracts or 
other expenditures.

    (a) The purpose of applications for financial assistance under this 
section shall be to aid individuals subject to relocation under the Act 
and to assist the host communities, towns, cities, or other entities in 
adjusting to and meeting the needs of the relocatees. For this purpose, 
the discretionary fund may be used to match or pay not to exceed 30% 
(thirty percent) of any grant, contract, or other expenditure of the 
Federal Government, State or local government, tribal government or 
chapter, or private organization for the benefit of the Navajo or Hopi 
Tribe, if the Commission determines that such grant, contract, or 
expenditure would significantly assist the Commission in carrying out 
its responsibility or assist either tribe in meeting the burdens imposed 
by this Act.
    (b) An ``other expenditure'' under this subsection is defined as 
cooperative agreements, direct provision of services, or in-kind 
contributions. The Commission may match or pay not to exceed 30% (thirty 
percent) of another expenditure through a grant, contract, or 
cooperative agreement.
    (c) Eligible applicants under this section for a grant, contract, or 
cooperative agreement are defined as States, local government, the 
Navajo and Hopi Tribes, tribal chapters or villages and profit and 
nonprofit organizations.
    (d) Total Federal financial assistance under this section may reach 
100% (one hundred percent) if the applicant receives 70% (seventy 
percent) Federal funding from Federal agencies other than the 
Commission.
    (e) When another Federal agency is a primary source of financial 
assistance for an applicant, the Commission may, pursuant to an 
interagency agreement, transfer funds to the primary Federal agency 
providing financial assistance to the applicant.
    (f) The Commission may, pursuant to an interagency agreement, 
transfer not to exceed 10% (ten percent) of the funds available under 
this subpart to another Federal agency directly assisting relocatees if 
such agency's activities would accomplish the purpose of paragraph (a) 
of this section. Financial assistance transferred to accomplish an 
eligible activity under paragraph (a) of this section may not exceed the 
funding limitation of paragraph (a) of this section.
    (g) An applicant may apply for financial assistance under this 
section in accordance with the funding limitations described in 
paragraph (a) for the purpose of undertaking a technical feasibility 
study of a construction project

[[Page 1040]]

or any major project with a total funding of over $200,000 (two hundred 
thousand dollars) or any dollar amount which the Commission may 
prescribe at some future time.



Sec. 700.459  Assistance for demonstration projects and for provision 
of related facilities and services.

    (a) The purpose of applications for financial assistance under this 
section shall be to aid individuals subject to relocation under the Act. 
For this purpose, the discretionary fund may be used by the Commission 
to engage or participate either directly through Federal activities, or 
by cooperative agreement, grant, or contract in demonstration efforts to 
employ innovative energy or other technologies in providing housing and 
related facilities and services in the relocation and resettlement of 
individuals under this Act.
    (b) Applicants eligible under this section to receive grants, 
cooperative agreements or contracts are: states, local governments, the 
Navajo and Hopi Tribes, tribal chapters, profit and nonprofit 
organizations, and individuals.
    (c) Applicants for assistance under this section may receive up to 
100% (one hundred percent) project or program funding from the 
Commission, however, the Commission may specify whether applications for 
certain types of programs or projects under this section require 
matching funding from the applicant.
    (d) Activities described in Sec. 700.457(a) and paragraph (a) of 
this section may be provided by the Commission through in-house 
activities which receive financial assistance under this section.
    (e) The Commission may, pursuant to an interagency agreement, 
transfer not to exceed 10% (ten percent) of the funds available under 
this subpart to another Federal agency directly assisting relocatees if 
such agency's activities would accomplish the purpose of Sec. Sec. 
700.457(a) and 700.459(a).
    (f) An applicant may apply for financial assistance under this 
section for the purpose of undertaking a technical feasibility study of 
a construction project, or any major project with a total planned 
funding of over $200,000, (two hundred thousand dollars) or any dollar 
amount which the Commission may prescribe at some future time.



Sec. 700.461  Method for soliciting applications.

    (a) The Commission shall utilize two methods to solicit applications 
for funding:
    (1) The Commission shall issue an annual announcement of the 
availability of funds for programs which will most effectively meet the 
purposes of Sec. 700.457(a) or 700.459(a). Applicants submitting 
applications under this announcement must demonstrate that the proposed 
project or program will effectively facilitate and expedite the 
relocation effort of the Commission.
    (2) As priority needs are identified by the Commission, calls shall 
be issued during the fiscal year for specific proposals. Requests for 
proposal shall define the need to be addressed and the scope of work 
required.
    (b) The annual announcements of the availability of funds and 
periodic requests for proposals shall be issued through the Commerce 
Business Daily and media which has regional and local circulation. The 
Commission may fund approved applications through grant, contract, or 
direct provision of services, pursuant to Pub. L. 93-531, as amended.



Sec. 700.463  Requirements for applications.

    (a) Applicants shall submit preapplications for funding assistance. 
The preapplication shall be due by the closing date published by the 
Commission, and shall consist of:
    (1) Standard Form 424;
    (2) A brief narrative not to exceed one page describing how the 
program or project will meet the priorities established by the 
Commission pursuant to Sec. 700.457 or Sec. 700.459.
    (b) The Commission shall respond to each preapplication, and shall 
request each person submitting an acceptable preapplication to submit an 
application.
    (c) Applications for financial assistance for a project or program 
may be submitted by the due date established by the Commission for a 
particular

[[Page 1041]]

funding cycle. Applications received after the due date will be 
considered for the next funding cycle, although the Commission, at its 
discretion, may select such a project for funding under the current 
cycle. An original and 5 (five) copies of each application must be 
submitted to the Commission. Applications shall be submitted on such 
forms as the Commission may prescribe in conformity with OMB circulars 
A102 or A110.
    (d) Applications under Sec. 700.457 for matching financial 
assistance not to exceed 30% of another expenditure, shall include:
    (1) A detail sheet showing the sources of matching funds, including 
both cash and in-kind contributions, and documentation that the 
applicant has fulfilled all of the requirements of any Federal agency, 
state or local government or chapter, or private organization from which 
the financial assistance is also requested; and
    (2) A narrative statement which includes an explanation of how the 
application would aid relocatees and assist the host communities, towns, 
cities, or other entities in adjusting to and meeting the needs of 
relocatees.
    (e) Applications for financial assistance under Sec. 700.459 must 
justify the proposed project or program as a demonstration effort in 
order to be eligible for 100% funding.
    (f) Applications shall contain a statement of how the applicant 
plans to comply with the provisions of the Indian Self-Determination Act 
(25 U.S.C. 450e) and the Act of April 16, 1934 (48 Stat. 596) as amended 
(25 U.S.C. 452-457).



Sec. 700.465  Technical feasibility.

    Unless required by a non-Commission source of financial assistance, 
completed plans and specifications are not required at the time an 
application is submitted for construction, technology, or another 
engineering project, however, an application for a construction, 
technology or another engineering project shall:
    (a) Include sufficient information to determine the nature and scope 
of the project, its probable useful life, and a reasonable estimate of 
cost;
    (b) Fully show that the applicant will follow design and performance 
criteria which conform to professionally recognized standards and which 
adequately define the technical capability of the project to serve 
current and foreseeable needs; and
    (c) Justify any evidence or use of unorthodox design.
    (d) Show that the applicant has a management plan for the facility 
which identifies probable sources of operating funds.
    (e) An applicant who is awarded a grant under Sec. 700.465 is 
required to submit completed plans and specifications for the 
construction, technology, or other engineering project prior to 
construction. The Commission shall review the completed plans and 
specifications for technical adequacy as part of its oversight function.



Sec. 700.467  Construction costs.

    Construction costs and costs relating to construction such as 
machinery and equipment, architect/engineer services, and administrative 
services may be allowable as determined by the Commission.



Sec. 700.469  Unallowable program and project costs.

    Costs for program or project operating expenses are not allowable 
except in the following cases--
    (a) An application for an annual contract for services under Sec. 
700.457 or 700.459 may include necessary operating expenses; and
    (b) An application for a demonstration effort under Sec. 700.459 
may include costs relating to the operation of the demonstration.



Sec. 700.471  Review and approval.

    (a) Upon receipt of an application for financial assistance under 
this subpart, members of the Commission staff shall begin a preliminary 
review of the application with the intent of submitting a recommendation 
to the Commissioners of whether to accept or deny the application. The 
Commission staff may inform the applicant before its recommendation to 
the Commissioners, of any special problems or impediments which may 
result in a recommendation for disapproval; may

[[Page 1042]]

offer any available technical assistance required to overcome such 
problems or impediments; and solicit the applicants written response.
    (b) The Commission staff may solicit comments on an application from 
technical specialists, community groups and others, when such advice is 
needed to fully evaluate the application.
    (c) The Commission staff shall forward the application with their 
recommendation to the Commissioners. The Commissioners may approve 
applications if they determine that:
    (1) The application meets the requirements of this subpart;
    (2) The application meets the intent of the Act;
    (3) The application fully demonstrates that it will expedite the 
relocation and resettlement of individuals under the Act and ease the 
hardship incurred by these individuals or by the Tribes;
    (4) The application is compatible with priorities identified by the 
Commission;
    (5) The applicant can carry out the activities described in the 
application and can maintain proper financial controls on the activities 
for which financial assistance is requested;
    (6) The applicant can and will comply with requirements for Indian 
preference in employment and training in connection with the 
administration of the grant, and preference to Indian organizations and 
Indian owned economic enterprises in the award of subcontracts or 
subgrants; and
    (7) Funds are available.
    (d) All applicants shall be notified in writing of the Commission's 
approval or disapproval of the grant applications.



Sec. 700.473  Administrative expenditures of the Commission.

    The Commission may use funds in an amount not to exceed 5 percent of 
the funds authorized under this subpart for expenses relating to the 
administration of the discretionary fund including--
    (a) Personnel, whose time is expended directly in support of such 
administration;
    (b) Supplies which are expended directly in support of such 
administration;
    (c) Contracts, where the work performed is directly related to such 
administration;
    (d) Printing, directly in support of such administration; and
    (e) Travel, directly related to such administration.



Sec. 700.475  Reports.

    Reports shall be furnished by any recipient of financial assistance 
under this subpart, in such manner as may be required by the Commission.



Sec. 700.477  Administration of financial assistance and recordkeeping 
requirements.

    (a) A State or local government (except an institution of higher 
education or a hospital since they are governed by paragraph (b) of this 
section), or the Navajo or Hopi Tribe receiving a grant or cooperative 
agreement under this subpart shall comply with applicable law including 
the following requirements--
    (1) Office of Management and Budget Circular A-102, entitled 
``Uniform Administrative Requirements for Grants-in-Aid to State and 
Local Governments'' including attachment C describing recordkeeping 
requirements; and
    (2) Federal Management Circular 74-4 5 CFR part 1310, entitled 
``Cost Principles Applicable to Grants and Contracts with State and 
Local Governments.''
    (b) A nonprofit organization, institution of higher education, or 
hospital receiving a grant or cooperative agreement under this subpart 
shall comply with applicable law including the following requirements--
    (1) Office of Management and Budget Circular A-110, entitled 
``Grants and Agreements with Institutions of Higher Education, Hospitals 
and Other Nonprofit Organizations'' including attachment C describing 
recordkeeping requirements; and
    (2) Office of Management and Budget Circular A-122, entitled ``Cost 
Principles for Nonprofit Organizations.''
    (c) A profit organization receiving a grant or cooperative agreement 
under this subpart shall comply with applicable law including Federal 
Procurement Regulations (41 CFR subpart 1-15.2) for

[[Page 1043]]

determining the reasonableness, allowability, and allocability of costs.
    (d) A profit organization, tribal chapter, or individual receiving a 
grant or cooperative agreement under this subpart shall--
    (1) Follow sound and proper procedures for the administration of the 
financial assistance including any procedures established by the 
Commission; and
    (2) Retain records as required by the Commission.
    (e) A State, local government, the Navajo or Hopi Tribe, a tribal 
chapter or an individual receiving a contract under this subpart shall 
comply with applicable law including Federal Procurement Regulations (41 
CFR parts 1-1 through 1-30). Recordkeeping requirements for contracts 
are described in Sec. Sec. 1-3.814-2, 1-7.103-3, 1-7.103-18, 1-7.603-
20, and 1-7.603-7 of the Federal Procurement Regulations.
    (f) A State, local government, profit or nonprofit organization, or 
an individual residing off of the Navajo or Hopi reservation applying 
for a grant or cooperative agreement under this subpart shall comply 
with Office of Management and Budget Circular A-95, entitled 
``Evaluation, Review and Coordination of Federal and Federally Assisted 
Programs and Projects'' unless exempted under Part I, section 8.b. of 
this circular.
    (g) Recipients of financial assistance under this subpart shall 
comply with other procedures which the Commission may from time to time 
prescribe for the administration of financial assistance provided under 
this subpart.
    (h) A state or local government, nonprofit organization, institution 
of higher education, hospital, profit organization or individual 
receiving a grant, subgrant, contract or subcontract under this part 
shall comply with the provisions of the Indian Self-Determination Act 
(25 U.S.C. 450e) and the Act of April 16, 1934 (48 Stat. 596) as amended 
(25 U.S.C. 452-457) which require that to the greatest extent feasible:
    (1) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants shall be 
given to Indians; and
    (2) Preference in the award of subcontracts and subgrants in 
connection with the administration of such contracts or grants shall be 
given to Indian organization and to Indian owned economic enterprises as 
defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77) 
(25 U.S.C. 1452).



Sec. 700.479  Administrative review.

    (a) If the Commissioners determine that implementation of an 
application approved according to Sec. 700.471 fails to meet the 
requirements of this subpart, the Commissioners shall give notice to the 
recipient of their intent to terminate or suspend financial assistance 
to the recipient.
    (b) The Commission shall issue such notice in written form sent by 
registered mail, return receipt requested, which notice shall include a 
statement of the reasons for the findings referred to in paragraph (a) 
of this section, and an explanation whether any amendments or actions 
would result in compliance with grant terms and conditions.
    (c) Any person whose approved financial assistance is terminated or 
suspended under paragraph (b) of this section may request a review of 
such action by the Commission. Such request for review shall be in 
writing and must be mailed or delivered to the Commission not later than 
thirty (30) days after receipt of the notice from the Commission by the 
applicant. Such request for review shall state the reasons for the 
request and shall include any additional matters not before the 
Commission which the applicant deems appropriate. The Commission may 
grant or deny a review at its discretion and shall inform the applicant 
of its decision in writing.



              Subpart O_Employee Responsibility and Conduct

    Source: 47 FR 11858, Mar. 19, 1982, unless otherwise noted.



Sec. 700.501  Statement of purpose.

    This part prescribes appropriate standards of conduct and 
responsibilites, financial disclosure reports, and rules of ethics in 
the conduct of Government business that are

[[Page 1044]]

mandatory for all who serve with the Navajo and Hopi Indian Relocation 
Commission, and in order to implement the requirements of law, Executive 
Order 11222 and 5 CFR part 905. The rules promulgated by the Commission 
as essential to agency operations are in addition to the criminal laws 
and other laws governing conduct of Federal employees. Like the laws, 
they will be strictly interpreted and firmly enforced. Ignorance of 
these rules or laxity in observance or enforcement of them will not be 
condoned. They are the prime responsibility of all Commission personnel.



Sec. 700.503  Definitions.

    (a) Special Government Employee: An officer or employee who has been 
employed to perform temporary duties, with or without compensation, for 
not more than 130 days during any period of 365 consecutive days, either 
on a full-time or intermittent basis (18 U.S.C. 202(a)).
    (b) Employee: Any officer or employee of the Commission who is not a 
special government employee.
    (c) Commission personnel: All officers and employees of the 
Commission, including special Government employees.
    (d) Persons: An individual, corporation, company, association, firm, 
partnership, society, joint stock company, or any other organization or 
institution.
    (e) Gratuity: Any gift, honorarium, favor, entertainment, 
hospitality, transportation, loan, or any other tangible thing, and any 
other intangible benefit (i.e., discounts) given to or on behalf of 
Commission employees or their spouses or dependent children for which 
fair market value is not paid by the recipient or by the Government.



Sec. 700.505  Coverage.

    The regulations contained in this part apply to all Commission 
personnel. Exceptions applicable to special Government employees and 
members of the Senior Executive Service are noted in the body of this 
part.



Sec. 700.507  Responsibilities.

    (a) Office of the Commission and Office of Executive Direction. (1) 
The Chairman of the Commission shall prepare and submit to the Office of 
Personnel Management for approval, standards of employee conduct which 
implement requirements of law, Executive Order 11222 and provisions of 5 
CFR part 905; and prescribe additional standards of ethical and other 
conduct and reporting requirements that are appropriate to the agency. 
After OPM approval, the Chairman shall submit the agency's regulations 
to the Federal Register for publication. These requirements also apply 
to any amendments to agency regulations.
    (2) The Commissioners shall appoint a Designated Agency Ethics 
Official and Deputy Ethics Official in accordance with 5 CFR 738.202(b). 
Responsibilities of these officials are described below in Sec. 735.15.
    (3) The Executive Director shall ensure that the regulations 
published under this part are disseminated to all Commission personnel 
and that staff are familiar with and understand the standards of conduct 
and statutes governing conflicts of interest and post Federal employment 
restrictions.
    (4) The Executive Director shall ensure that disciplinary or 
remedial action is taken in the case of all agency personnel who violate 
these standards or related laws and regulations, and against supervisors 
who fail to carry out their responsibilities in taking disciplinary or 
remedial action in such cases.
    (b) Managers and supervisors. Managers and supervisors shall ensure 
that all Commission personnel under their supervision are familiar with 
and understand these regulations governing standards of conduct, 
conflict of interest, and referenced statutory restrictions, and adhere 
to them at all times. Issues and problems which cannot be resolved 
through the discussion process inherent in the supervisor-employee 
relationship shall be referred to the Designated Agency Ethics Official. 
Managers and supervisors shall ensure that disciplinary or remedial 
action is taken with all agency personnel who violate these regulations, 
and against subordinate supervisors who fail to carry out their 
responsibilities for effecting or recommending disciplinary or remedial 
action in these cases.

[[Page 1045]]

    (c) Employees. All Commission personnel shall be familiar with the 
standards of conduct governed in this directive and the laws governing 
conflicts of interest and post employment restrictions, and shall comply 
with them. When in doubt as to the permissibility of an action under the 
terms of this directive, the employee shall not act without first 
consulting the immediate supervisor and as appropriate seeking the 
advice of the Designated Agency Ethics Official.
    (d) Office of Management Operations. (1) The Office of Management 
Operations shall give each employee a copy of these regulations and 
shall conduct an oral briefing on their contents, within 30 days of 
approval. New personnel shall receive a copy and oral briefing promptly 
upon assuming their duties. Additions and amendments shall be similarly 
communicated upon approval.
    (2) The Office shall conduct annual review sessions of these 
standards for all personnel.
    (3) The Office shall provide the Designated Agency Ethics Official 
with necessary administrative and clerical staff support.



Sec. 700.509  Duties of the designated agency ethics official.

    The Designated Agency Ethics Official shall coordinate and manage 
the agency's ethics program. The Deputy Ethics Official shall serve as 
alternate Agency Ethics Official in the absence of the Designated Agency 
Ethics Official, or upon his or her express delegation. Specific duties 
of the Officer include:
    (a) Liaison with Office of Government Ethics (OGE). The Designated 
Agency Ethics Official shall establish and maintain close working 
relations with the OGE, and shall coordinate communications between the 
Commission and OGE through the Agency Liaison Division and Office of 
Ethics of the General Services Administration. If the Designated Agency 
Ethics Official receives a request which he or she believes should be 
answered by the Office of Government Ethics, a referral procedure is 
available. Requests for advisory opinions shall be submitted as 
specified in 5 CFR 738.304. The Designated Agency Ethics Official shall 
provide the OGE with records, reports and any other information which 
may be required under the Ethics in Government Act (Pub. L. 95-521, as 
amended) or requested by the OGE.
    (b) Review of statements. The Designated Agency Ethics Official 
shall review the statements of employment and financial interest 
submitted by agency personnel assessing the application of conflict of 
interest laws and regulations to the information reported. When the 
review discloses a conflict, or the appearance of a conflict, between 
the private interests of an employee and the performance of his or her 
duties as a Commission employee, the Designated Agency Ethics Official 
shall bring the conflict to the attention of the employee, grant the 
individual an opportunity to explain the conflict, and attempt to 
resolve it. If the conflict is not resolved at this point, the 
Designated Agency Ethics Official shall forward a written report on the 
conflict to the Chairman of the Commission recommending appropriate 
action. In developing the recommendation the Designated Agency Ethics 
Official may consult, as appropriate, with the agency General Counsel 
and the GSA Ethics Office.
    (c) Education and counseling program. The Designated Agency Ethics 
Official shall design and conduct an education and counseling program 
for supervisors and employees on all ethics and standards of conduct 
matters, including post-employment matters. Records shall be kept as 
appropriate on the advice rendered.
    (d) Administrative systems review. The Designated Agency Ethics 
Official shall ensure that these regulations and implementing 
administrative systems are evaluated annually to determine their 
adequacy and effectiveness in relation to current agency 
responsibilities. Amendments shall be developed and approved pursuant to 
the results of systems review.



Sec. 700.511  Statements of employment and financial interests.

    (a) Employees required to file statements. (1) Members of the 
Commission shall submit Financial Disclosure Reports (SF-278) to the 
Deputy Ethics

[[Page 1046]]

Counselor of the Department of Interior, according to instructions 
received from that office. Issues of real or apparent conflict of 
interest which involve employees of the Senior Executive Service shall 
be resolved by the Ethics Officer of the Department of the Interior.
    (2) The Designated Agency Ethics Official shall submit SF-278 to the 
Office of Government Ethics for review.
    (3) The employee appointed as Deputy Ethics Official and incumbents 
of the positions listed below shall file NHIRC form 738.1F with the 
Designated Agency Ethics Official:
    (i) Executive Director.
    (ii) General Counsel.
    (iii) Assistant Director for Management Operations.
    (iv) Assistant Director for Relocation Operations.
    (v) Chief, Technical Services Division.
    (vi) Chief, Realty Division.
    (vii) Chief, Advisory Services Division.
    (viii) Chief, Office of Research, Planning and Evaluation.
    (ix) Procurement/Fiscal Officer.
    (x) Realty Specialists.
    (xi) Construction Inspectors.
    (4) The Designated Agency Ethics Official may require Statements of 
Employment and Financial Interest from employees in other specified 
positions, if analysis of duties and responsibilities shows the 
positions meet the criteria listed in paragraph (b) of this section.
    (5) Special Government Employees shall file NHIRC form 738.2F with 
the Designated Agency Ethics Official prior to beginning employment or 
service with the Commission. The Designated Agency Ethics Official may 
waive this requirement if the duties of the position held by the special 
Government employee are of a nature or at such a level of responsibility 
that the submission of the statement by the incumbent is not necessary 
to protect the integrity of the Commission or the Government.
    (b) Criteria for selection of positions subject to filing 
requirements. The following criteria govern selection of employees who 
must also file statements of Employment and Financial Interest (NHIRC 
Form 738.1F) with the Designated Agency Ethics Official.
    (1) Statements of Employment and Financial Interest shall be 
required of employees holding positions which are responsible for:
    (i) Contracting or procurement.
    (ii) Administering or monitoring grants and subcontracts.
    (iii) Other activities where the decision or action has an economic 
impact on the interests of any person or non-Federal enterprise.
    (2) When a new position is established or the duties of an existing 
position are materially changed, the position shall be evaluated 
pursuant to the criteria of this section to determine whether or not it 
should be designated as one requiring the incumbent to submit a 
Statement of Employment and Financial Interests.
    (c) Interests of relatives. The interest of a spouse, minor child, 
or other member of an employee's immediate household is considered to be 
an interest of the employee. Reports must include but are not limited to 
identification of such an individual's employer, financial holdings and 
debts. These provisions also apply to special Government employees.
    (d) Employee complaint against filing requirements. An employee who 
believes that his or her position has been improperly included among 
those requiring the submission of a Statement of Employment and 
Financial Interests may obtain review through the Commission's 
administrative grievance procedure.
    (e) Procedures for obtaining statements. Following approval of these 
regulations, the Designated Agency Ethics Official shall give each 
employee and special Government employee required to file under this 
part, a copy of the appropriate NHIRC form. An enclosure with the form 
shall advise that:
    (1) The completed form shall be returned in a sealed envelope marked 
``personal-in confidence'' to the Designated Agency Ethics Official 
within 30 days.
    (2) The services of the Designated Agency Ethics Official are 
available to assist and advise in preparation of the statement.

[[Page 1047]]

    (3) Any additions or deletions to the information furnished must be 
reported within 30 days of the time they occur, or in the case of a 
special Government employee, at the time the change occurs, and
    (4) No later than June 1 of each year all employees and special 
Government employees required to file under paragraph (a)(3) of this 
section shall file an annual supplementary statement to update the 
information previously filed.
    (5) New employees required to file under paragraph (a)(3) of this 
section shall submit a statement within 30 days of beginning employment 
with the Commission.
    (e) Confidentiality of statements. Statements of employment and 
financial interest shall be held in confidence. Access to information 
from the statements shall not be disclosed except to carry out the 
purpose of this directive.
    (f) Resolving conflicts of interest. When the Designated Agency 
Ethics Official determines from review of the statement that a conflict 
of interest may exist, the submitter shall have the opportunity to 
provide additional information, which shall become part of the record. 
The Designated Agency Ethics Official and the concerned employee shall 
make every effort to resolve the conflict in a manner that is mutually 
acceptable. If these efforts are not successful the Designated Agency 
Ethics Official shall forward a report and recommendation to the 
Chairman of the Commission for final action. Remedial action directed by 
the Chairman may include but is not limited to:
    (1) Disqualification for a particular assignment.
    (2) Change in assigned duties.
    (3) Divestment of the employee or special Government employee of the 
conflicting interests.
    (4) Disciplinary action, including removal.



Sec. 700.513  Business dealings on behalf of the government.

    (a) All employees shall conduct themselves on the job so as to 
efficiently discharge the work of the Commission. Employees shall 
observe courtesy, consideration and promptness in dealing with clients, 
other governmental agencies, and members of the public.
    (b) Commission personnel conducting business with contractors, 
realtors, vendors, service providers and other public and private 
agencies, organizations, business and individuals shall maintain strict 
impartiality in their business dealings. Commission employees shall not 
allow themselves to be placed in a position in which a conflict of 
interest might arise or might justifiably be suspected. Such a conflict 
may arise or appear to arise by the acceptance of gratuities or by any 
action which could reasonably be interpreted as influencing the strict 
impartiality that must prevail in all business relationships involving 
the Commission. However, this requirement of impartiality is not 
intended to prohibit advocacy of client interests, as is required as a 
stated duty of certain agency positions. Such advocacy may occur for 
example during warrantee representation or during technical 
representation with builders.



Sec. 700.515  Conflicts of interest.

    (a) A conflict of interest may exist when an employee uses, or 
appears to use, his or her official position to obtain benefits for 
himself or herself, close friends, relatives, or business associates. A 
conflict of interest may also exist if an employee's private activities 
interfere with the proper discharge of his or her official duties. If an 
employee has any doubt about whether or not a particular situation is, 
or gives the appearance of being a conflict of interest, the situation 
should be discussed with the immediate supervisor. Should further review 
be required, the Designated Agency Ethics Official shall be consulted.
    (b) Principal situations where conflict of interest may develop are 
regulated by the sections which follow. However, these regulations do 
not preclude other conflict of interest situations which may arise in 
connection with the work of the Commission.
    (c) These prohibitions apply to all Commission employees, whether or 
not they are required to file financial and employment disclosure 
statements.

[[Page 1048]]



Sec. 700.517  Affiliations and financial interests.

    (a) Commission personnel shall not engage in any personal, business, 
or professional activity, or receive or retain any direct or indirect 
financial interest, which places them in a position of conflict or 
apparent conflict between their private interests and the public 
interests of the United States as related to the duties of their 
Commission positions.
    (b) Employees are prohibited from accepting money, goods or services 
other than official compensation for any act performed by the employee 
as part of his or her official duties.
    (c) Commission personnel shall not use, directly or indirectly, 
inside information for private gain for themselves, family members, or 
others if that information is not generally available to the public and 
was obtained as a result of Commission employment.
    (d) Commission personnel are prohibited from using their official 
positions to induce, coerce, or in any manner influence any person, 
including subordinates, to provide any improper benefit, financial or 
otherwise, to themselves or others.
    (e) Employees may not have any personal interest in transactions 
which are directed, regulated, or effected by the Commission pursuant to 
the authorities vested in the agency by Pub. L. 93-531 and Pub. L. 96-
395. Specifically:
    (1) No Commission employee shall have a personal interest in a 
contract, subcontract, memorandum of understanding or agreement, or 
other arrangement resulting in payment for the delivery of goods, 
services, or supplies to the Commission, to the Navajo or Hopi tribal 
governments, or to individual relocatees or groups of relocatees.
    (2) No Commission employee shall have or seek an interest in real or 
personal property acquired for transfer to the Navajo or Hopi Tribes.
    (3) No Commission employee shall have or seek an interest in any 
activity supported financially by the Commission through the award of 
Discretionary Funds.
    (4) During the process of acquiring replacement housing for 
relocatees no employee may have a personal interest in the activities of 
a contractor, realtor, or other business entity selected by the 
relocatee to furnish replacement housing; nor may the employee influence 
the relocatee to select any realtor, contractor or other business entity 
with which the employee has personal or business affiliations.
    (5) Nothing in this section shall restrict a relocatee's right to 
exercise free and independent judgment in selecting a realtor, 
contractor, or other vendor or service provider; regardless of any 
personal or business relationship of that entity to a Commission 
employee, provided the employee has not influenced the choice of the 
relocatee in any manner.
    (6) Nothing in this section shall restrict a Commission employee who 
is eligible for relocation benefits from applying for and obtaining such 
benefits according to published criteria; nor to prevent the Commission 
from employing a member of the Hopi or Navajo Tribe who has been, or is 
in the process, of being relocated pursuant to the law.
    (7) Commission employees shall disqualify themselves from 
investigating and preparing recommendations regarding eligibility 
determination for applicants to whom they are closely related by blood 
or marriage.



Sec. 700.519  Gifts, entertainment and favors.

    (a) Acceptance of gratuities, including gifts, entertainment and 
favors, (no matter how innocently tendered or received) from those who 
have or seek business dealings with the Commission, is prohibited as it 
may be a source of embarrassment to the recipient, and may impair public 
confidence in the integrity of the conduct of the Government's business. 
It is emphasized that prohibited conflicts and apparent conficts of 
interest can sometimes arise even from relationships and transactions 
that the persons concerned perceive as inconsequential.
    (b) Except as provided in paragraphs (c) and (d) of this section, 
Commission personnel and their spouses, minor children and members of 
their households shall not solicit nor accept, either directly or 
indirectly, any gift,

[[Page 1049]]

gratuity, favor, entertainment loan or any other thing of monetary value 
from any person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relations with the Commission,
    (2) Conducts operations or activities that are regulated by the 
Commission or significantly affected by Commission decisions, or
    (3) Has interests that may be substantially affected by the 
performance or non-performance of the employee's official duty.
    (c) Employees are specifically prohibited from accepting gifts or 
favors from vendors, contractors, builders, realtors, tribal officials 
or other individuals with whom Commission employees do business. This 
prohibition extends to the acceptance of meals and refreshments offered 
by individuals conducting or seeking business with the Commission 
whether during duty or non-duty hours.
    (d) The following circumstances are excepted from the prohibitions 
listed above:
    (1) An employee may accept unsolicited advertising or promotional 
material with the name of the company imprinted, such as pencils, 
calendars and similar items of nominal intrinsic value.
    (2) An employee may accept transportation and meals provided by a 
contractor in connection with official business when arrangements for 
Government or commercial transportation or meals are clearly 
impracticable and the supervisor has granted prior approval.
    (3) An employee may accept an invitation extended by a relocatee to 
attend a housewarming, potluck, accept a meal and refreshments while 
traveling on the reservation, or similar social activity when 
circumstances would make it rude for the employee to refuse.
    (4) Other circumstances may arise in which it would be to the 
Commission's advantage for an employee to participate in activities 
ordinarily prohibited. In such cases, the employee shall consult with 
his or her supervisor about the course of action to be followed. If 
prior consultation is not possible, the employee shall exercise prudent 
judgement and promptly inform the supervisor of the activity.



Sec. 700.521  Outside work and interests.

    Commission employees may engage in outside work or other activity 
which does not create a conflict between the employee's private 
interests and official duties nor prevent employees from devoting their 
talents and energies to the Commission. An employee's outside work shall 
not reflect discredit upon the Commission.
    (a) Employees engaged in or considering outside employment shall 
inform their supervisor of the work, and supply such additional details 
as may be required to determine whether the employment is compatible 
with the full and proper discharge of the employee's official duties.
    (b) Similarly, employees shall inform the supervisor and request 
approval of other types of outside activities which may present an 
actual or apparent conflict of interest between the employees' official 
duties and their private lives. The supervisor shall determine if the 
outside employment or activity is prohibited by these regulations, and 
so inform the employee. The Designated Agency Ethics Official is 
available to assist supervisors in making such determinations.
    (c) Guidelines and limitations. Outside employment or other outside 
activity is incompatible with the full and proper discharge of an 
employee's duties and responsibilities and hence is prohibited if:
    (1) It would involve the violation of a Federal or State statute, a 
local ordinance, Executive Order, or regulation to which the employee is 
subject.
    (2) It would be of such extent or nature as to interfere with the 
efficient performance of the employee's Government duties, or impair the 
employee's mental or physical capacity to perform them in an acceptable 
manner.
    (3) It would tend to influence the exercise or impartial judgement 
on any matters coming before the employee in the course of his or her 
duties;
    (4) It would involve work for contractors, subcontractors, realtors, 
tribal offices, clients or other entities and individuals which have 
business with or receive services from the Commission or

[[Page 1050]]

conduct activities which are regulated by the Commission.
    (5) Involves a person or enterprise that may be substantially 
affected by the performance or nonperformance of the employee's official 
duties.
    (6) It involves the use of the employee's time during official 
working hours.
    (7) It involves the receipt of salary or anything of monetary value 
from a private source as compensation for services to the Government.
    (8) It involves acceptance of a fee, compensation, gift, payment of 
expense, or any other thing of monetary value under circumstances in 
which acceptance might result in, or create the appearance of, a 
conflict of interest.
    (9) It would be of a nature which might be construed by the general 
public to be an official act of the Commission, or would give the 
impression that a business or product which is involved in the 
relocation project is officially endorsed or approved by the Commission.
    (10) It would involve use by the employee of official facilities, 
e.g., office space, office machines, or supplies, or the services of 
other employees during duty hours.
    (11) It might bring discredit upon, or cause unfavorable criticism 
of, the Government or the Commission or lead to relationships which 
might impair public confidence in the integrity of the Government or the 
Commission.
    (12) It would involve the use of information obtained as a result of 
Government employment that is not freely available to the general public 
in that it either has not been made available to the general public or 
would not be made available upon request.



Sec. 700.523  Business relationships among employees.

    Business relationships among Commission employees which take place 
after working hours and away from Commission premises are not matters 
for regulation, unless they violate the restrictions listed above.



Sec. 700.525  Use of government information or expertise.

    (a) Commission personnel may engage in teaching, lecturing and 
writing about the relocation program, provided the Information which 
they present is public knowledge or would be made available to the 
public upon request.
    (b) Employees shall inform their supervisors in advance of any 
teaching, writing, or lecturing activity which relates to the Commission 
operations. The Commissioners may at their discretion exercise the right 
of review and approval of materials to be presented.
    (c) Employees must obtain supervisory approval for release of 
information considered confidential, and release of information not 
previously published as public information.
    (d) Disclosure of information from records shall conform with the 
provisions of the Freedom of information and the Privacy Acts (5 U.S.C. 
552). An employee may not release confidential information maintained by 
the Commission and available to the employee because of his position as 
an employee of the Commission. Violation of this prohibition may result 
in prosecution under the terms of the Privacy Act in addition to any 
disciplinary penalties levied by the employee's supervisor.
    (e) Commission personnel may not accept compensation for an article, 
speech, consultant service, or other activity if it involves the use of 
information obtained as the result of Government employment which is not 
available to the general public as described in paragraph (a) of this 
section, or results in an actual or appearance of conflict of interest.
    (f) Unless there is a definite Commission position on a matter which 
is the subject of an employee's writing or speech, and the individual 
has been authorized by the Commissioners to present that position 
officially, the employee shall expressly present his or her views on the 
matter as his or her own and not as those of the Commission.
    (g) The right of an employee to express personal opinions is 
respected. However, once the Commission has established policy and 
procedure, every employee is obligated to carry out all lawful 
regulations, orders, and assignments, and to support the programs of the 
Commission as long as they are part of recognized public policy.
    (h) In dealing with the public and with relocatees, employees should

[[Page 1051]]

avoid issuing opinions or decisions contrary to Commission policy which 
can be mistaken as official Commission policy.



Sec. 700.527  Endorsements.

    Employees are prohibited from endorsing in an official capacity 
business products or processes or the services of commercial firms for 
advertising publicity or sale purposes. Use of materials, products or 
services, by the Commission does not constitute official endorsement. 
Employees may not recommend for or against any particular builder, 
supplier, realtor, contractor or other person or business seeking to 
sell any product or service to relocatees.



Sec. 700.529  Negotiations for employment.

    An employee shall inform the supervisor and seek the advice of the 
Designated Agency Ethics Official if he or she wishes to negotiate for 
future non-Federal employment with persons or organizations having 
business with the Commission if the employee is involved in making 
recommendations or decisions affecting those persons or organizations.



Sec. 700.531  Government property.

    Employees shall be held accountable for Government property and 
monies entrusted to their individual use or in connection with their 
official duties. An employee has a positive duty to protect and conserve 
Government property and to use it economically and for official purposes 
only, for example:
    (a) Only official documents and materials may be reproduced on 
Government reproduction equipment.
    (b) Government vehicles may be used only on official business and 
may not be used for personal use or for travel to or from an employee's 
place of residence, unless specifically authorized or assigned by the 
supervisor.
    (c) An employee may not use FTS to make personal phone calls at 
Government expense.
    (d) An employee may not use Government purchase authority for 
personal acquisitions even though reimbursement is made.



Sec. 700.533  Restrictions affecting travel and travel expense 
reimbursement.

    (a) When an employee is on officially authorized travel his or her 
expenses are reimbursed by the Government. The employee may not request 
nor accept reimbursement in cash or kind for travel expenses from any 
other source, even when the employee's expenses exceed the maximum 
Government allowance.
    (b) An employee who is authorized to attend a convention, seminar, 
or similar meeting while on official duty, whose travel is being paid by 
the sponsoring association, may not also claim travel expenses from the 
Government.
    (c) An employee may accept accommodations and expense reimbursement 
for attending meetings, functions, etc. in his or her private capacity 
and on his or her own time, provided that such acceptance does not 
produce an actual or apparent conflict of interest. This restriction 
prohibits an employee from accepting accommodations or reimbursement 
from anyone having or seeking business with the Commission.
    (d) Commission employees traveling on official business, as well as 
employees traveling on personal business, may not accept the use of 
private airplanes, cars, or other means of transportation offered at no 
expense by individuals conducting or seeking business dealings with the 
Commission, nor from clients of the Commission.

    Exception: An employee may accept transportation and meals of modest 
value provided by a contractor or client in connection with official 
business when it is not practical to make arrangements for Government or 
commercial accommodations. The employee must receive prior approval of 
the supervisor in such case. This might occur, for example, if an 
employee were traveling to a remote area where no Government vehicle 
were available, or where there are no nearby restaurants or eating 
places. There is no prohibition against a contractor or private citizen 
traveling as a passenger in a Government vehicle driven by a Commission 
employee on official business, provided administrative procedures have 
been followed in making the travel arrangements.



Sec. 700.535  Nepotism.

    An employee may not appoint or advocate the appointment to any 
position under his or her control, any individual

[[Page 1052]]

who is a relative of the employee. No employee shall supervise a member 
of his or her own family except in emergency situations.



Sec. 700.537  Indebtedness.

    (a) Commission personnel shall pay their just financial obligations 
in a timely manner, especially those imposed by law, such as Federal, 
state, or local taxes. For the purposes of this paragraph, ``just 
financial obligation'' means one acknowledged by the employee or reduced 
to judgment by a court.
    (b) Employees shall promptly refund any salary overpayments and 
excess travel advances.
    (c) An employee's debts to private creditors are his or her personal 
concern. Any complaints or questions concerning such obligations will be 
referred to the employee for handling. Creditors and collectors shall 
not have access to employees on Agency premises during duty hours.



Sec. 700.539  Soliciting contributions.

    (a) An employee shall not solicit a contribution from another 
employee for a gift to an official superior, make a donation as a gift 
to an official superior or accept a gift from an employee receiving less 
pay than himself or herself. (5 U.S.C. 7351) However, this paragraph 
does not preclude a voluntary gift of nominal value made on a special 
occasion.
    (b) If authorized by the supervisor, an employee may solicit 
contributions for charitable causes. He or she may also be permitted to 
collect small donations for gifts for fellow employees for special 
occasions during slack moments.



Sec. 700.541  Fraud or false statement in a Government matter.

    ``Whoever, in any matter within the jurisdiction of any department 
or agency of the United States, knowingly or wilfully falsifies, 
conceals or covers up by a trick, scheme or device a material fact, or 
makes or uses any false writing or document knowing the same to contain 
false, fictitious or fraudulent statement or entry, shall be fined not 
more than $10,000 or imprisoned not more than 5 years or both (18 U.S.C. 
1001).'' Special attention is required in the certification of time and 
attendance reports, applications for employment, personnel security 
forms, requests for travel reimbursement, client certification 
documents, and purchase orders and receiving forms.



Sec. 700.543  Gambling.

    An employee shall not sponsor or participate in any gambling 
activity during working hours on Government premises.



Sec. 700.545  Alcoholism and drug abuse.

    An employee who habitually uses intoxicants to excess is subject to 
removal (5 U.S.C. 7352). The Relocation Commission recognizes alcoholism 
and drug abuse as serious and treatable illnesses. Excessive absence and 
poor work performance are two of the specific problems resulting from 
excessive use of alcohol and drugs. The Commission management will 
assist any employee who has such a problem to obtain professional help 
and will make reasonable allowance as permitted by work schedules to 
allow an employee approved leave for professional treatment. Anyone who 
seeks such assistance will be guaranteed confidential handling of his or 
her case. Disciplinary action will be considered if an employee rejects 
or ignores treatment or other appropriate assistance.



Sec. 700.547  Consuming intoxicants on Government premises or during 
duty hours.

    Consuming alcohol or non-prescription drugs on agency premises, or 
while driving or riding in a Government vehicle, or during working hours 
are prohibited conduct and employees violating this regulation are 
subject to disciplinary acton, including discharge.



Sec. 700.549  Employee organizations.

    An employee may not knowingly be a member of an organization of 
Government employees that advocates the overthrow of the United States' 
constitutional form of government (5 U.S.C. 7311). Employees are also 
prohibited from striking against the Federal Government. With these 
restrictions, an employee has the right to form, join, or assist lawful 
employee organizations. Similarly, an employee has

[[Page 1053]]

also the right to refrain from such activity. In either case, the 
employee may exercise his or her right freely and without fear of 
penalty or reprisal and shall be protected in the exercise of such 
rights.



Sec. 700.551  Franking privilege and official stationery.

    An employee is strictly prohibited from using Government franked 
envelopes with or without applied postage, or official letterhead 
stationery for personal business. (18 U.S.C. 1719)



Sec. 700.553  Use of official titles.

    Employees are prohibited from using their official titles in 
conducting private business or participation in private or public group 
activities not concerned with official duties. Use is strictly limited 
to those occasions and circumstances where representation is official.



Sec. 700.555  Notary services.

    An employee may not charge a fee for performing notarial services as 
part of his or her job duties (EO 977 Nov. 24, 1908).



Sec. 700.557  Political activity.

    (a) Regulations on the political activity of Federal employees can 
be found in 5 U.S.C. 73. In general, the law and the rules prohibit 
using official authority or influence for the purpose of interfering 
with an election or affecting its results, and taking an active part in 
partisan political management or partisan political campaigns.
    (b) Special Government employees of the Commission are subject to 
the political activity restrictions contained in 5 U.S.C. 73 and 18 
U.S.C. 602, 603, 607 and 608 while on an active duty status only.
    (c) Pursuant to provisions of the regulations cited, employees may 
take part in certain local elections. However, Commission employees are 
restricted from taking an active role in political elections of the 
Navajo and Hopi tribal governments, even though such elections are not 
partisan in the usual meaning of the word. With respect to tribal 
elections, employees may not:
    (1) Run for tribal elective office.
    (2) Organize, direct, nor actively participate in a tribal electoral 
campaign.
    (3) Solicit or attempt to coerce fellow employees to contribute 
anything of value to an individual or group engaged in tribal political 
activity.
    (4) Circulate petitions, posters, or other political materials 
during working hours or on Commission premises.
    (5) Engage in any other type of tribal political activity which 
produces a conflict of interest between the employee's job 
responsibilities and the political activity.



Sec. 700.559  Equal opportunity.

    Commission personnel shall scrupulously adhere to the Commission 
program of equal opportunity regardless of race, color, religion, sex, 
age, handicap, or national origin.



Sec. 700.561  Sexual harassment.

    (a) Sexual harassment is a form of employee misconduct which 
undermines the integrity of the employment relationship. All employees 
must be allowed to work in an environment free from unsolicited and 
unwelcome sexual overtures. Sexual harassment is defined by the Office 
of Personnel Management as ``deliberate or repeated unsolicited verbal 
comments, gestures, or physical contact of a sexual nature which are 
unwelcome.'' Sexual harassment does not refer to occasional compliments. 
It refers to behavior which is not welcome, which is personally 
offensive and debilitates morale, interfering with the work 
effectiveness of its victims and their co-workers.
    (b) Sexual harassment is a prohibited personnel practice when it 
results in discrimination for or against an employee on the basis of 
conduct not related to performance.

For example:
    --If submission to sexual advances is a condition of employment, 
whether expressed in explicit or implicit terms;
    --If employment decisions, such as promotion, training, salary 
increases, rewards, etc., are based on an employee's submission to or 
rejection of sexual advances;
    --If the sexual conduct substantially interferes with an affected 
person's work performance, or creates an intimidating, hostile or 
offensive work environment.


[[Page 1054]]


    (c) Within the Federal Government, a supervisor who uses implicit or 
explicit coercive sexual behavior to control, influence, or affect the 
career, salary or job of an employee is engaging in sexual harassment. 
Similarly, an employee of an agency who behaves in this manner in the 
process of conducting agency business is engaging in sexual harassment. 
Finally, any employee who participates in deliberate or repeated 
unsolicited verbal comments, gestures, or physical contact of a sexual 
nature which are unwelcome and interfere with work productivity is also 
engaging in sexual harassment.
    (d) It is the policy of the Relocation Commission that sexual 
harassment is unacceptable conduct in the workplace and will not be 
condoned. An employee who believes that he or she is subject to sexual 
harassment may contact one or more of the following people within the 
Commission for assistance:
    (1) The immediate supervisor or second level supervisor.
    (2) The EEO Counselor.
    (3) The agency EEO Officer.
    (4) The EEO Counselor at the Agency Liaison Division of the General 
Services Administration.



Sec. 700.563  Statutory restrictions from 18 U.S.C. 207, which are 
applicable to former Government employees.

    (a) Restrictions applicable to all former officers and employees--
(1) Permanent bar. A former Government employee is permanently barred 
from serving as agent or attorney for anyone other than the United 
States before any Government office or agency on any particular matter 
involving specific parties in which the former officer or employee had 
participated personally and substantially while with the Government.
    (2) Two year bar. A restriction similar to the one summarized above 
prevents a former employee for two years from representational 
activities on all particular matters which were actually pending under 
the former employee's ``official responsibility'' during the one-year 
period prior to the termination of such responsibility.
    (b) Restrictions applicable only to ``senior employees.'' (1) 
Members of the Senior Executive Service are considered senior employees.
    (2) Two-year ban on assisting in representation by personal 
presence. A former senior employee may not assist in the representation 
of another person by personal presence at an appearance before the 
Government on any particular matter in which the former employee 
personally and substantially participated while with the Government.
    (3) One-year on attempt to influence former agency. A former senior 
employee may not represent another person or himself in attempting to 
influence his own former agency on a matter pending before, or of 
substantial interest to, such agency. Certain communications are 
exempted from this provision. These include communications by former 
senior employees who are employed by State or local governments or by 
certain educational or medical institutions, other exempt communications 
are those that are purely social or informational, communications on 
matters that are personal, including any expression of personal views 
where the former employee has no pecuniary interest, and response to a 
former agency's requests for information.
    (c) Implementing regulations. (1) Detailed regulations implementing 
this law have been published by the Director, Office of Government 
Ethics (see 5 CFR part 737). The Designated Agency Ethics Official 
should be consulted for any additional information.



Sec. 700.565  Miscellaneous statutory provisions.

    Commission personnel shall acquaint themselves with Federal statutes 
which relate to their ethical and other conducts as employees of the 
Commission and of the Government. The attention of Commission personnel 
is directed to the following statutory provisions:
    (a) House Concurrent Resolution 175, 85th Congress 2d Session, 72A 
Stat. B12, the ``Code of Ethics for Government Service.''
    (b) Chapter 11 of title 18, United States Code, relating to bribery, 
graftm and conflicts of interest, as appropriate to the employees 
concerned.

[[Page 1055]]

    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918).
    (e) The prohibition against the employment of a member of the 
Communist organization (50 U.S.C. 784).
    (f) The prohibitions against (1) the disclosures of classified 
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of 
confidential information (18 U.S.C. 1905).
    (g) The provision relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter.
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).
    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibitions against (1) embezzlement of Government money or 
property (18 U.S.C. 641); (2) failing to account for public money (18 
U.S.C. 643); and (3) embezzlement of the money or property of another 
person in the possession of an employee by reason of his employment (18 
U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285).
    (p) The prohibitions against political activities in subchapter III 
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603, 607 
and 608.
    (q) The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).



                   Subpart P_Hopi Reservation Evictees

    Source: 48 FR 51771, Nov. 14, 1983, unless otherwise noted.



Sec. 700.601  Definitions.

    (a) Hopi reservation evictees. Hopi reservation evictees are those 
members of the Navajo Tribe who were evicted from the Hopi Indian 
Reservation as a consequence of the decision in the case of United 
States v. Kabinto (456 F. 2d 1087) (1972).
    (b) Head of household. (1) A household is group of two or more 
persons who live together at a specific location, who form a unit of 
permanent and domestic character.
    (2) The head of household is the individual who speaks on behalf of 
the members of the household and who is determined by the Commission to 
represent the household.
    (3) In order to be eligible for benefits under this section, an 
individual must be a head of household as of the date of certification 
for benefits.
    (4) Those single individuals who actually maintain and support 
themselves as of the date of certification for benefits shall be 
considered a head of household.
    (c) Hopi reservation. For purposes of this subpart Hopi reservation 
shall mean the lands in Land Management District No. Six as defined in 
the September 28, 1962, Judgment in Healing v. Jones Civ. No. 579 pCT 
(d), Ariz., and shall not include the Hopi Partitioned Lands.
    (d) Equivalent assistance from federal agencies. Housing provided 
for Hopi reservation evictees shall be considered equivalent assistance 
if it meets the Commission's standards for a decent, safe and sanitary 
dwelling under Sec. 700.55 of these rules.



Sec. 700.603  Eligibility.

    (a) Those heads of household who were members of the Navajo Tribe 
and were evicted from the Hopi reservation as a consequence of the 
decision in the United States v. Kabinto shall be eligible to receive 
relocation assistance on a preference basis.
    (b) Proof of eviction shall be determined by one of the following 
criteria:

[[Page 1056]]

    (1) Inclusion on the list of defendants in the case of United States 
v. Kabinto (456 F. 2d 1087) (1972);
    (2) Inclusion on the lists prepared by the BIA dated May 10, 1979, 
and May 21, 1979, as a result of having provided services to those heads 
of household.
    (3) Inclusion on a list prepared by the Navajo Tribe and submitted 
to the Commission on January 16, 1981;
    (4) Inclusion on a list prepared by the Navajo Legal Aid Service 
dated April 29, 1970;
    (5) Other evidence furnished by the applicant which is sufficient to 
prove their status as evictees from the Hopi reservation, as determined 
by the Commission.



Sec. 700.605  Relocation assistance.

    (a) Each eligible head of household of Hopi reservation evictees 
shall be entitled to receive the following assistance:
    (1) Relocation advisory services as provided in Sec. 700.135 of 
this part;
    (2) Moving and search expenses, as provided in Sec. 700.151 of this 
part;
    (3) Replacement housing payments as set forth below.
    (b)(1) If the head of household owns no dwelling, the Commission 
will make funds available to the head of household as provided in these 
regulations for the acquisition of a replacement home in one of the 
following manners:
    (i) Purchase of an existing home by the head of household,
    (ii) Contracting by the head of household for the construction of a 
home,
    (iii) Participation or purchase by the head of household in a mutual 
help housing or other home ownership project under the U.S. Housing Act 
of 1937 (50 Stat. 888, as amended; 42 U.S.C. 1401) or in any other 
federally assisted housing program.
    (2) If the eligible head of household owns or is buying or building 
a home, the Commission will expend relocation benefits in one of the 
following manners:
    (i) If the home is decent, safe and sanitary, but is encumbered by a 
mortgage, such mortgage existing as of the effective date of these 
regulations, the Commission may expend replacement housing benefits up 
to the maximum then existing replacement home benefit to accelerate to 
the maximum extent possible the achievement by that household of debt-
free home ownership.
    (ii) If the home is owned free and clear but does not meet 
Commission decent, safe and sanitary standards; or the home is neither 
owned free and clear, nor is decent, safe and sanitary, the Commission 
will, at its discretion either:
    (A) Expend replacement home benefits for improvements to assure the 
home meets the Commission's decent, safe and sanitary standards, or
    (B) Expend replacement home benefits for the acquisition of a 
replacement dwelling as if the eligible head of household or spouse did 
not own a home as in paragraph (b)(1) of this section.
    (3) If the home is decent, safe and sanitary, and is owned free and 
clear, no replacement housing benefits will be paid.
    (4) The amount of the replacement housing payment shall be 
calculated in accordance with Sec. 700.183 of these rules except that 
no compensation will be paid for habitation and improvements.
    (5) The determination of whether the head of household of Hopi 
reservation evictees currently occupies a decent, safe and sanitary 
dwelling shall be made in accordance with Sec. 700.55 of these rules.
    (C) If the head of household has received equivalent assistance from 
other federal agencies as defined in Sec. 700.601(d), they shall not be 
entitled to additional assistance from the Commission.



Sec. 700.607  Dual eligibility.

    Those individuals who moved from the Hopi reservation following 
eviction to the Hopi partitioned Lands and who are eligible to receive 
benefits under the general regulations shall not receive benefits under 
this subpart but shall receive benefits under the general regulations on 
a preferential basis.



Sec. 700.609  Appeals.

    Appeals of eligibility, hearings and administrative review (appeals) 
will be administered under subpart L of this part.

[[Page 1057]]



Sec. 700.611  Application deadline.

    The deadline for receipt of applications for benefits under this 
subpart shall be 120 days following publication of these final rules.



                       Subpart Q_New Lands Grazing

    Source: 56 FR 13397, Apr. 2, 1991, unless otherwise noted.



Sec. 700.701  Definitions.

    (a) Act means Pub. L. 93-531 (88 Sat. 1712, 25 U.S.C. 640 et. seq.) 
as amended by Pub. L. 96-305 and Pub. L. 100-666.
    (b) New Lands means the land acquired for the use of relocatees 
under the authority of Pub. L. 96-305, 25 U.S.C. 640d-10. These lands 
include the 215,000 acres of lands acquired by the Navajo and Hopi 
Indian Relocation Commission and added to the Navajo Reservation and 
150,000 acres of private lands previously owned by the Navajo Nation in 
fee and taken in trust by the United States pursuant to 25 U.S.C. 640d-
10.
    (c) Commissioner means the Commissioner of The Office of Navajo and 
Hopi Indian Relocation in Flagstaff, Arizona. Reference to approval or 
other action by the Commissioner will also include approval or other 
action by another Federal officer under delegated authority from the 
Commissioner.
    (d) Tribe means the Navajo Nation.
    (e) Range unit means a tract of range land designated as a 
management unit for administration of grazing.
    (f) Range Management Plan means a land use plan for a specific range 
unit that will provide for a sustained forage production consistent with 
soil, watershed, wildlife, and other values.
    (g) Stocking rate means the authorized stocking rate by range unit 
as determined by the Commissioner. The stocking rate shall be based on 
forage production, range utilization, land management applications being 
applied, and range improvements in place to achieve uniformity of 
grazing under sustained yield management principles.
    (h) Grazing permit means a revocable privilege granted in writing 
limited to entering on and utilizing forage by domestic livestock on a 
specified tract of land. The term, as used herein, shall include written 
authorization issued to enable the crossing or trailing of domestic 
livestock across specified tracts or range.
    (i) Animal unit (AU) means one adult cow with unweaned calf by her 
side or equivalent thereof based on comparative forage consumption. 
Accepted conversion factors are: Sheep and Goats--one ewe, doe, buck, or 
ram equals 0.25 AU. Horses and Mules--one horse, mule, donkey or burro 
equals 1.25 AU.
    (j) Sheep unit means one ewe with lamb at side or a doe goat with 
kid.
    (k) SUYL means one sheep unit grazed yearlong.
    (l) HPL means the area partitioned to the Hopi Tribe pursuant to 
Pub. L. 93-531 known as the Hopi Partitioned Land.



Sec. 700.703  Authority.

    It is within the authority of the Commissioner on Navajo and Hopi 
Indian Relocation to administer the New Lands added to the Navajo 
Reservation pursuant to 25 U.S.C. 6-10(d)-10.



Sec. 700.705  Objectives.

    It is the purpose of the regulations in this part to aid the Navajo 
Indians in achievement of the following objectives:
    (a) The preservation of the forage, the land, and the water 
resources on the New Lands.
    (b) The resettlement of Navajo Indians physically residing on the 
HPL to the New Lands.



Sec. 700.707  Regulations; scope.

    The grazing regulations in this part apply to the New Lands within 
the boundaries of the Navajo Reservation held in trust by the United 
States for the Navajo Tribe which lands were added to the Navajo 
Reservation pursuant to 25 U.S.C. 640(d)-10; 25 CFR parts 166 and 167 
are not applicable to the New Lands.



Sec. 700.709  Grazing privileges.

    (a) A list of permittees eligible to receive grazing permits is kept 
at the Office of Navajo and Hopi Indian Relocation in Flagstaff, 
Arizona. This list is composed of individuals eligible for New Lands 
grazing permits who:

[[Page 1058]]

    (1) Have a current HPL grazing permit, or have had an HPL permit 
issued since 1980, or are current HPL residents and can show 
documentation of a past grazing permit issued in their name for grazing 
on an area now on the HPL, and
    (2) Who have not received relocation benefits under Pub. L. 93-531, 
and who relocate from the HPL on to a New Lands range unit. Individuals 
on this list will receive a commitment that a permit will be issued to 
them.
    (b) If such persons cannot relocate immediately because their chosen 
relocation site is not ready for occupancy, the Office will issue a 
commitment to them that a grazing permit will be granted upon their 
relocation.
    (c) If such persons are notified by the Office that their relocation 
site is ready for occupancy and they fail or refuse to make timely 
arrangements to relocate when requested by the Office to do so, the 
commitment may be withdrawn.
    (d) Persons on this list must file an application for a New Lands 
Grazing Permit. The Commissioner will determine when the application 
period will close and will publish notice of that date. After the close 
of the period for application, the Commissioner, in his sole discretion, 
may issue permits to individuals if it is determined that to do so will 
facilitate relocation.
    (e) Initial determinations on eligibility for grazing permits will 
be made by the Range Supervisor.

[56 FR 13397, Apr. 2, 1991, as amended at 57 FR 24363, June 9, 1992]



Sec. 700.711  Grazing permits.

    (a) All livestock grazed on the New Lands must be covered by a 
grazing permit authorized and issued by the Commissioner on Navajo and 
Hopi Indian Relocation.
    (b) Permit holders must:
    (1) Be enrolled Navajo Tribal members,
    (2) Be over 18 years of age,
    (3) Maintain a permanent residency on the New Lands Range Unit of 
permit issue, and
    (4) Own livestock which graze on the range unit of permit issue.
    (c) Permits will be issued for a base of 80 SUYL (20 AU) and may not 
be divided or transferred for less than 80 SUYL.
    (d)(1) Temporary seasonal grazing permits for periods not to exceed 
one year may be issued to permittees:
    (i) To use extra forage made available under rotation grazing 
management as regulated by a range unit management plan,
    (ii) To use forage created by unusually favorable climatic 
conditions,
    (iii) To allow use of range while term permits are held in 
suspension under Sec. 700.715(d).
    (2) These temporary permits may be reissued prior to termination 
provided:
    (i) The permittee is managing grazing in compliance with grazing 
regulations,
    (ii) Livestock grazing is in compliance with the cooperative range 
unit range management plan, and
    (iii) Forage is available on the range to sustain the livestock 
authorized under the temporary permit.



Sec. 700.713  Tenure of grazing permits.

    (a) All active regular grazing permits shall be for five years and 
shall be automatically reissued for another five-year period provided 
the permittee is not in violation of Sec. 700.711 or 700.715 or 700.719 
or 700.723 or 700.725 of the regulations. Permits will initially be 
issued with an ending date of October 31 of the fifth year following the 
date of initial issuance.
    (b) Amendments to these regulations extending or limiting the tenure 
of grazing permits are applicable and become a condition of all 
previously granted permits.



Sec. 700.715  Assignment, modification, and cancellation of grazing 
permits.

    (a) Grazing permits may be assigned or transferred with the written 
consent of the contracting parties. The Commissioner will issue a new 
permit provided the transferee meets qualifications under Sec. 
700.711(b).
    (b) Temporary permits issued under Sec. 700.711(d) are directly 
tied to the term permit and may be transferred with the term permit if 
the transferee signs the range unit management plan which provides the 
management for continuation of the temporary grazing permit.

[[Page 1059]]

Temporary permits will not be transferred and shall be null and void if 
the term permit transferee does not sign the management plan agreeing to 
practice conservation management.
    (c) Grazing permits may be assigned for transfer through a notarized 
document to an heir who meets the qualifications for a grazing permit 
under Sec. 700.711.
    (d) Grazing permits must be transferred in whole to a single 
transferee--the transferor relinquishing all grazing privileges at the 
time of transfer.
    (e) The Commissioner may revoke or withdraw all or any part of a 
grazing permit by cancellation or modification on a 30 day written 
notice for violation of the permit or of the management plan, non-
payment of grazing fees, violation of these regulations, or because of 
the termination of the trust status of the permitted land.



Sec. 700.717  Stocking rate.

    The Commissioner will determine livestock carrying capacity for each 
range unit and set the stocking rate and adjust that rate as conditions 
warrant. The Commissioner may consult with the Tribe when making 
adjustments to the stocking rate.



Sec. 700.719  Establishment of grazing fees.

    The Commissioner may establish a minimum acceptable grazing fee per 
SUYL. The Commissioner may consult with the Tribe prior to establishing 
fees.



Sec. 700.721  Range management plans.

    The Commissioner (or his designee) and the permittees of each range 
unit will meet as a group and develop a Range Management Plan for the 
common use of the range unit. The plan will include but will not be 
limited to the following:
    (a) Goals for improving vegetative productivity.
    (b) Incentives for carrying out the goals.
    (c) Stocking rate.
    (d) Record of brands of livestock authorized to graze on the range 
unit.
    (e) Grazing plan and schedule.
    (f) Range monitoring schedule.
    (g) Wildlife management.
    (h) Needs assessment for range and livestock improvements.
    (i) Scheduling for operation and maintenance of existing range 
improvements.



Sec. 700.722  Grazing associations.

    (a) The Commissioner may recognize, cooperate with, and assist range 
unit livestock associations in the management of livestock and range 
resources.
    (b) These associations will provide the means for the members:
    (1) To jointly manage their permitted livestock and the range 
resources,
    (2) To meet jointly with the ONHIR range staff to discuss and 
formulate range management plans,
    (3) To express their wishes through designated officers or 
committees,
    (4) To share costs for handling livestock, construction of range 
improvements, fence and livestock facilities maintenance, and other land 
or livestock improvement projects agreed on, and
    (5) To formulate association special rules needed to assure 
cooperation and resource management.
    (c) The requirements for receiving recognition by the Commissioner 
are:
    (1) The members of the association must be grazing permittees and 
constitute a majority of the grazing permittees on the range unit 
involved.
    (2) The officers of the association must be elected by a majority of 
the association members or of a quorum as specified by the association's 
constitution and bylaws.
    (3) The officers other than secretary and treasurer must be grazing 
permittees on the range unit involved.
    (4) The association's activities must be governed by a constitution 
and bylaws acceptable to the Commissioner and signed by him.
    (5) The association's constitution and bylaws must recognize 
conservation management goals and the need to follow a range unit 
management plan.
    (d) The Commissioner may withdraw his recognition of the association 
whenever:
    (1) The majority of the grazing permittees request that the 
association be dissolved.
    (2) The association becomes inactive and does not meet in annual or 
special

[[Page 1060]]

meetings during a consecutive two-year period.
    (e) A recognized association may hold a grazing permit to benefit 
its members according to the rules of the association constitution and 
bylaws. All of the association's livestock will be run under an 
association brand properly registered with the Navajo Tribe and the 
ONHIR.
    (f) Associations may acquire permits from consenting permittees on 
the range unit in accordance with Sec. 700.711 and may assign or 
transfer these permits in accordance with Sec. 700.715.



Sec. 700.723  Control of livestock disease and parasites.

    Whenever livestock within the New Lands become infected with 
contagious or infectious disease or parasites or have been exposed 
thereto, such livestock must be treated and the movement thereof 
restricted by the responsible permittee in accordance with applicable 
laws.



Sec. 700.725  Livestock trespass.

    The following acts are prohibited:
    (a) The grazing of livestock upon, or driving of livestock across, 
any of the New Lands without a current approved grazing or crossing 
permit.
    (b) The grazing of livestock upon an area specifically rested from 
the grazing of livestock according to the range unit Range Management 
Plan.
    (c) The grazing of livestock upon any land withdrawn from use for 
grazing to protect it from damage after receipt of appropriate notice 
from the Commissioner.
    (d) The grazing of livestock in excess of those numbers authorized 
on the livestock grazing permit approved by the Commissioner.
    (e) Grazing of livestock whose brand is not recorded in the range 
unit Range Management Plan.

The owner of any livestock grazing in trespass on the New Lands is 
liable to a civil penalty of $1 per head per day for each cow, bull, 
horse, mule or donkey and 25[cent] per head per day for each sheep or 
goat in trespass and a reasonable value for damages to property injured 
or destroyed. The Commissioner may take appropriate action to collect 
all such penalties and damages and seek injunctive relief when 
appropriate. All payments for such penalties and damages shall be paid 
to the Commissioner for use as a range improvement fund.



Sec. 700.727  Impoundment and disposal of unauthorized livestock.

    Unauthorized livestock within any range unit of the New Lands which 
are not removed therefrom within the periods prescribed by the 
regulation will be impounded and disposed of by the Commissioner as 
provided herein.
    (a) When the Commissioner determines that unauthorized livestock use 
is occurring, and has definite knowledge of the kind of unauthorized 
livestock and knows the name and address of the owners, the owner shall 
be given written notice and a 10 day period shall be allowed for the 
permittee to solve the unauthorized use without penalty. If after this 
10 day period the unauthorized use is not resolved, such livestock may 
be impounded at any time after five days after written Notice of Intent 
to Impound Unauthorized Livestock is mailed by certified mail or 
personally delivered to such owners or their agent.
    (b) When the Commissioner determines that unauthorized livestock use 
is occurring, but does not have complete knowledge of the number and 
class of livestock, or if the name and address of the owner thereof are 
unknown, such livestock may be impounded at anytime after 15 days after 
the date a General Notice of Intent to Impound Unauthorized Livestock is 
first published in a local newspaper, posted at the nearest chapter 
house, and in one or more local trading posts.
    (c) Unauthorized livestock on the New Lands which are owned by 
persons given notice under paragraph (a) of this section and any 
unauthorized livestock in areas for which notice has been posted and 
published under paragraph (b) of this section, will be impounded without 
further notice anytime within the 12-month period immediately following 
the effective date of the notice.
    (d) Following the impoundment of unauthorized livestock, a notice of 
sale of impounded livestock or unauthorized livestock will be published 
in a local newspaper, posted at the nearest

[[Page 1061]]

chapter house, and in one or more local trading posts. The notice will 
describe the livestock and specify the date, time, and place of sale. 
The date set shall be at least five days after the publication and 
posting of such notice.
    (e) The owners or their agent may redeem the livestock anytime 
before the time set for the sale by submitting proof of ownership and 
paying for all expenses incurred in gathering, impounding, and feeding 
or pasturing the livestock and any trespass fees and/or damages caused 
by the animals.
    (f) Livestock erroneously impounded shall be returned to the 
rightful owner, and all expenses accruing thereto shall be waived.
    (g) If the livestock are not redeemed before the time fixed for 
their sale, they shall be sold at public sale to the highest bidder. 
When livestock are sold pursuant to this regulation, the Commissioner 
shall furnish the buyer a bill of sale or other written instrument 
evidencing the sale.
    (h) The proceeds of any sale of impounded livestock shall be applied 
as follows:
    (1) To the payment of all expenses incurred by the United States in 
gathering, impounding, and feeding or pasturing the livestock.
    (2) Trespass penalties assessed pursuant to Sec. 700.725 shall be 
paid to a separate account to be administered by the Commissioner for 
use as a range improvement fund for the New Lands.
    (3) Any remaining amount shall be paid over to the owner of said 
livestock upon his submitting proof of ownership.

Any proceeds remaining after payment of the first and second items noted 
above, not claimed within one year from the date of sale, will be 
credited to the United States.



Sec. 700.729  Amendments.

    These regulations may be amended or superseded as needed.



Sec. 700.731  Appeals.

    Persons who have filed a claim for a grazing permit and whose claim 
has been denied by the Range Supervisor may appeal to the Commissioner. 
Appeals must be made in writing and must be received by the Office not 
more than 30 days after the date the claim was denied. The appeal shall 
state with specificity why the decision being appealed is in error and 
shall incorporate all supporting documents. The Commissioner will issue 
a decision affirming or reversing the decision of the Range Supervisor 
within 60 days of receipt of the appeal. Such decision will constitute 
final action by the Office and will be communicated to the appellant by 
certified mail.



            Subpart R_Protection of Archaeological Resources

    Source: 62 FR 35078, June 30, 1997, unless otherwise noted.



Sec. 700.801  Purpose.

    (a) The regulations in this subpart implement provisions of the 
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-11) by 
establishing the uniform definitions, standards, and procedures to be 
followed by the O.N.H.I.R. New Lands Manager in providing protection for 
archaeological resources, located on the New Lands. The regulations 
enable Federal land managers to protect archaeological resources, taking 
into consideration provisions of the American Indian Religious Freedom 
Act (92 Stat. 469; 43 U.S.C. 1996), through permits authorizing 
excavation and/or removal of archaeological resources, through civil 
penalties for unauthorized excavation and/or removal, through provisions 
for the preservation of archaeological resource collections and data, 
and through provisions for ensuring confidentiality of information about 
archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.



Sec. 700.803  Authority.

    The regulations in this part are promulgated pursuant to section 
10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii). Section 10(b) of the Act (16 U.S.C. 470ii)

[[Page 1062]]

provides that each Federal land manager shall promulgate such rules and 
regulations, consistent with the uniform rules and regulations in this 
part, as may be necessary for carrying out the purposes of the Act.



Sec. 700.805  Definitions.

    As used for purposes of this part:
    (a) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470-aa-11).
    (b) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location or context in 
which such evidence is situated.
    (3) The following classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section.
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars, or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits, or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons, 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glasseware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked ground or pecked stone);
    (iv) By products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios, and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains described in this paragraph (a);
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any material remains described in this 
paragraph (a).
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal Land Manager may determine that certain material 
remains, in specified areas under the Federal Land Manager's 
jurisdiction and under specified circumstances, are not or are no longer 
of archaeological interest and are not to be considered archaeological 
resources under this part. Any determination made pursuant to this 
paragraph (a)(5) shall be documented. Such determination shall in no way 
affect the Federal Land Manager's obligations under other applicable 
laws or regulations. Prior to making a determination that material 
remains are not or are no longer archaeological resources, the Federal 
Land Manager shall consult with the Navajo Nation to obtain their 
concurrences.

[[Page 1063]]

    (c) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (d) Commissioner means the Commissioner of the Office of Navajo and 
Hopi Indian Relocation. Reference to approval of other action by the 
Commissioner will also include approval or other action by another 
Federal Officer under delegated authority from the Commissioner.
    (e) Federal Land Manager means: With respect to the New Lands, the 
Commissioner of Navajo and Hopi Indian Relocation, having primary 
management authority over such lands, including persons to whom such 
management authority has been officially delegated.
    (f) Indian tribe or Tribe means the Navajo Nation.
    (g) New Lands means the land acquired for the use of relocatees 
under the authority of Pub. L. 96-305, 25 U.S.C., 640(d)-10. These lands 
include the 250,000 acres of land acquired by the Navajo and Hopi Indian 
Relocation Commission and added to the Navajo Reservation, 150,000 acres 
of private lands previously owned by the Navajo Nation in fee and taken 
in trust by the United States pursuant to 25 U.S.C. 640d-10 and up to 
35,000 acres of land in the State of New Mexico to be acquired and added 
to the Navajo Reservation.
    (h) Office means the Office of Navajo and Hopi Indian Relocation.
    (i) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (j) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (k) Tribe means the Navajo Nation.



Sec. 700.807  Prohibited Acts.

    (a) No person may excavate, remove, damage or otherwise alter or 
deface any archaeological resource located on the New Lands unless such 
activity is pursuant to a permit issued under Sec. 700.815 or exempted 
by Sec. 700.809(b) of this part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.



Sec. 700.809  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from the New Lands, and to carry out activities associated 
with such excavation and/or removal, shall apply to the Federal Land 
Manager for a permit for the proposed work, and shall not begin the 
proposed work until a permit has been issued. The Federal Land Manager 
may issue a permit to any qualified person, subject to appropriate terms 
and conditions, provided that the person applying for a permit meets 
conditions in Sec. 700.815(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the New Lands under other permits leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal Land Manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses or entitlements for use; 
any excavation and/or removal of archaeological resources required for 
compliance with those authorities shall be conducted in accordance with 
the permit requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this

[[Page 1064]]

part, provided that such collecting does not result in disturbance of 
any archaeological resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by the Navajo Nation or member thereof of any archaeological 
resource located on the New Lands, except that in the absence of tribal 
law regulating the excavation or removal of archaeological resources, an 
individual tribal member shall be required to obtain a permit under this 
part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
Land Manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 700.811. However, the Federal Land Manager shall 
insure that provisions of Sec. Sec. 700.815 and 700.817 have been met 
by other documented means and that any official duties which might 
result in harm to or destruction of any Indian tribal religious or 
cultural site, as determined by the Federal Land Manager, have been the 
subject of consideration.
    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal Land Manager 
with the concurrence of the Navajo Nation, shall issue a permit, subject 
to the provisions of Sec. Sec. 700.809(b)(5), 700.815(a) (3), (4), (5), 
(6), and (7), 700.817, 700.819, 700.823, 700.825(a), to such Governor or 
to such designee as the Governor deems qualified to carry out the intent 
of the Act, for purposes of conducting archaeological research, 
excavating, and/or removing archaeological resources, and safeguarding 
and preserving any materials and data collected in a university, museum, 
or other scientific or educational institution approved by the Federal 
Land Manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of the New Lands, authorizations may be required for 
activities which do not require a permit under this part. Any person 
wishing to conduct on the New Lands any activity related to but believed 
to fall outside the scope of this part should consult with the Federal 
Land Manager, for the purpose of determining whether any authorization 
is required, prior to beginning such activities.



Sec. 700.811  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal Land Manager for 
a permit to excavate and/or remove archaeological resources from the New 
Lands and to carry out activities associated with such excavation and/or 
removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
location maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training and experience in accord with the 
minimal qualifications listed in Sec. 700.815(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on the New Lands, the name of the university, 
museum, or

[[Page 1065]]

other scientific or educational institution in which the applicant 
proposes to store copies of records, data, photographs, and other 
documents derived from the proposed work, and all collections in the 
event the Indian owners do not wish to take custody or otherwise dispose 
of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, of 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal Land Manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The purpose of the information 
collection under Sec. 700.811 is to meet statutory and administrative 
requirements in the public interest. The information will be used to 
assist Federal land managers in determining that applicants for permits 
are qualified, that the work proposed would further archaeological 
knowledge, that archaeological resources and associated records and data 
will be properly preserved, and that the permitted activity would not 
conflict with the management of the New Lands involved. Response to the 
information requirement is necessary in order for an applicant to obtain 
a benefit.



Sec. 700.813  Notification to Indian tribes of possible harm to, or 
destruction of, sites on public lands having religious or cultural 
importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 700.817.
    (4) When the Federal land manager determines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat or loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal Land Manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to

[[Page 1066]]

communicate with official representatives of that group to obtain 
information on sites they may consider to be of religious or cultural 
importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.



Sec. 700.815  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of the permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have at least one year of experience in research concerning 
archaelogoical resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the New 
Lands;
    (4) Where the proposed work consists of archaeological survey and/or 
data recovery undertaken in accordance with other approved uses of the 
New Lands, and the proposed work has been agreed to in writing by the 
Federal Land Manager, pursuant to section 106 of the National Historic 
Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) and (a)(3) of this 
section shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on the New 
Lands, from the Indian land owner and the Navajo Nation which is the 
Indian Tribe having jurisdiction.
    (6) Evidence is submitted to the Federal Land Manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal Land Manger, the 
following will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit;
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.

[[Page 1067]]



Sec. 700.817  Terms and conditions of permits.

    (a) In all permits issued, the Federal Land Manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location and purpose of the 
work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational institution in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal Land Manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal Land Manager shall include in permits issued for 
archaeological work on the New Lands such terms and conditions as may be 
requested by the Indian landowner and the Navajo Nation.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal Land Manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal Land 
Manager, at least annually.



Sec. 700.819  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal Land Manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 700.807. The 
Federal Land Manager shall provide written notice to the permittee of 
suspension, the cause thereof, and the requirements which must be met 
before the suspension will be removed.
    (2) The Federal Land Manager may revoke a permit upon assessment of 
a civil penalty under Sec. 700.831 upon the permittee's conviction 
under section 6 of the Act, or upon determining that the permittee has 
failed after notice under this section to correct the situation which 
led to suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
Land Manager may suspend or revoke a permit without liability to the 
United States, its agents, or employees when continuation of work under 
the permit would be in conflict with management requirements not in 
effect when the permit was issued. The Federal Land Manager shall 
provide written notice to the permittee stating the nature of and basis 
for the suspension or revocation.



Sec. 700.821  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal Land Manager pursuant to section 
10(b) of the Act and this part.



Sec. 700.823  Permit reviews and disputes.

    (a) Any affected person disputing the decision of the Federal Land 
Manager with respect to the issuance or denial of a permit, the 
inclusion of specific terms and conditions in a permit, or the 
modification, suspension, or revocation or a permit may request the 
Federal Land Manager to review the disputed decision and may request a 
conference to discuss the decision and its basis.
    (b) Any disputant unsatisfied with the higher level review, and 
desiring to appeal the decision, pursuant to Sec. 700.821 of this part, 
should consult with the Federal Land Manager regarding the existence of 
published appeal

[[Page 1068]]

procedures. In the absence of published appeal procedures, the review by 
the head of the Office will constitute the final decision.
    (c) Any affected person may request a review by the Department of 
Interior Consulting Archaeologist of any professional issues involved in 
a permitting decision, such as professional qualifications, research 
design, or other professional archaeological matters. The Departmental 
Consulting Archaeologist shall make a final professional recommendation 
to the head of the Office. The head of the Office will consider the 
recommendation, but may reject it, in whole or in part, for good cause. 
This request should be in writing and should state the reasons for the 
request.



Sec. 700.825  Relationship to section 106 of the National Historic 
Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1996 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal Land Manager from 
compliance with section 106 where otherwise required.



Sec. 700.827  Custody of Archaeological resources.

    (a) Archaeological resources excavated or removed from the New Lands 
remain the property of the Navajo Nation.
    (b) [Reserved]



Sec. 700.829  Determination of archaeological or commercial value and 
cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 700.807 of this part or 
conditions of a permit issued pursuant to this part shall be the value 
of the information associated with the archaeological resource. This 
value shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtained prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting filed work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 700.807 of this part or conditions of a permit 
issued pursuant to this part shall be for its fair market value. Where 
the violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damages as a 
result of a violation or prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following.
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with Pub. L. 101-601, 
the Native American Grave Protection and Repatriation Act.
    (8) Preparation of reports relating to any of the above activities.

[[Page 1069]]



Sec. 700.831  Assessment of civil penalties.

    (a) The Federal Land Manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 700.807 or 
who has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal Land Manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal Land Manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of the proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal Land Manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal Land Manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal Land Manger's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal Land Manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later.) The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal Land Manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion or informal discussions, whichever is later.
    (2) The Federal Land Manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c) and (d) of this section or furnished upon further request 
by the Federal Land Manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal Land Manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal Land Manager shall determine a penalty amount in 
accordance with Sec. 700.831.
    (f) Notice of assessment. The Federal Land Manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
Land Manager shall include the following in the notice of assessment.
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 700.831 for determining the penalty amount 
assessed

[[Page 1070]]

and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request, as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal Land Manager 
under paragraph (f) of this section of any offer of mitigation or 
remission made by the Federal Land Manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for hearing pursuant to paragraph (g)(1) of this section, 
the decision resulting from the hearing or any applicable administrative 
appeal therefrom shall constitute the final administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court, as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal Land Manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal Land Manager is not represented by the Attorney General, a 
civil action may be initiated directly by the Federal Land Manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 700.833  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition in Sec. 700.807 or of any term or condition included in a 
permit issued pursuant to this part, the maximum amount of the penalty 
shall be the full cost of restoration and repair of archaeological 
resources damaged plus the commercial value of archaeological resources 
destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 700.807 or of any 
term or condition included in a permit issued pursuant to this part, the 
maximum amount of the penalty shall be double the cost of restoration 
and repair plus double the commercial value of archaeological resources 
destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal Land Manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.

[[Page 1071]]

    (1) Determination of penalty amount and/or a proposal to mitigate or 
remit the penalty may be based upon any of the following factors.
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal Land Manager and ultimately to the Navajo Nation 
archaeological resources removed from the New Lands.
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal Land Manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on the New Lands.
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation.
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances.
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) The Federal Land Manager shall consult with and consider the 
interests of the Navajo Nation prior to proposing to mitigate or remit 
the penalty.



Sec. 700.835  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal Land Manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or tribal 
government who furnish information or render services in the performance 
of their official duties, and persons who have provided information 
under Sec. 700.833(b)(1)(iii) shall not be certified eligible to 
receive payment of rewards.
    (c) All civil penalty monies and any item forfeited under the 
provisions of this section shall be transferred to the Navajo Nation.



Sec. 700.837  Confidentiality of archaeological resource information.

    The Federal Land Manager shall not make available to the public 
under subchapter II of chapter 5 of title 5 of the United States Code or 
any other provisions of law, information concerning the nature and 
location of any archaeological resource, with the following exceptions:
    (a) The Federal Land Manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c) 
without risking harm to the archaeological resource or to the site in 
which it is located.
    (b) With the concurrence of the Navajo Nation, the Federal Land 
Manager shall make information available, when the Governor of any State 
has submitted to the Federal Land Manager a written request for 
information concerning the archaeological resources within the 
requesting Governor's state; provided that the request includes:
    (1) The specific archaeological resource or area about which 
information is sought.
    (2) The purpose for which the information is sought; and
    (3) The Governor's written commitment to adequately protect the 
confidentiality of the information.



Sec. 700.839  Report.

    Each Federal Land Manager, when requested by the Secretary of the 
Interior, shall submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act.

[[Page 1072]]



Sec. 700.841  Determination of loss or absence of archaeological 
interest.

    (a) Under certain circumstances, a Federal land manager may 
determine, pursuant to Sec. 700.805(a)(5) of this part, that certain 
material remains are not or are no longer of archaeological interest, 
and therefore not to be considered archaeological resources under this 
part.
    (b) The Federal land manager may make such a determination if he/she 
finds that the material remains are not capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics.
    (c) Prior to making a determination that material remains are not or 
are no longer archaeological resources, the Federal land manager shall 
ensure that the following procedures are completed.
    (1) A professional archaeological evaluation of material remains and 
similar materials within the area under consideration shall be 
completed, consistent with the Secretary of Interior's Standards and 
Guidelines for Archaeology and Historic Preservation and with the 36 CFR 
parts 60, 63, and 65.
    (2) The principal Office archaeologist or, in the absence of a 
principal Office archaeologist, the Office Consulting Archaeologist, 
shall establish whether the material remains under consideration 
contribute to scientific or humanistic understandings of past human 
behavior, cultural adaption and related topics. The principal Office 
archaeologist or the Office Consulting Archaeologist, as appropriate, 
shall make a recommendation to the Federal land manager concerning these 
material remains.
    (d) The Federal land manager shall make the determination based upon 
the facts established by and the recommendation of the principal Office 
archaeologist or the Office Consulting Archaeologist, as appropriate, 
and shall fully document the basis therefor, including consultation with 
Indian tribes for determinations regarding sites of religious or 
cultural importance.
    (e) The Federal land manger shall make public notice of the 
determination and its limitations, including any permitting 
requirements, for activities associated with the materials determined 
not to be archaeological resources for the purposes of this part.
    (f) Any interested individual may request in writing that the Office 
Consulting Archaeologist review any final determination by the Federal 
land manager that certain remains are not, or are no longer, 
archaeological resources. Two (2) copies of the request should be sent 
to the Office Consulting Archaeologist, care of Land Use Manager, Office 
of Navajo and Hopi Indian Relocation, PO Box KK, Flagstaff, AZ 86002, 
and should document why the requestor disagrees with the determination 
of the Federal land manger. The Office Consulting Archaeologist shall 
review the request, and, if appropriate, shall review the Federal land 
manager's determination and its supporting documentation. Based upon 
this review, the Departmental Consulting Archaeologist shall prepare a 
final professional recommendation, and shall transmit the recommendation 
and the basis therefor to the head of the bureau for further 
consideration within 60 days of the receipt of the request.
    (g) Any determination made pursuant to this section shall in no way 
affect the Federal land manager's obligation under other applicable laws 
or regulations.



Sec. 700.843  Permitting procedures for Navajo Nation Lands.

    (a) Pursuant to the Act and this subpart, the written consent of the 
Navajo Nation is required. Written consent shall consist of a Navajo 
Nation permit issued in accordance with the Navajo Nation Code or a 
resolution of the Navajo Nation Council or delegated committee of that 
Council.
    (b) When Indian tribal lands are involved in an application for a 
permit or a request for extension or modification of a permit, the 
consent of the Indian tribal government must be obtained. For Indian 
allotted lands outside reservation boundaries, consent from only the 
individual landowner is needed. When multiple-owner allotted lands are 
involved, consent by more than 50 percent of the ownership interest is

[[Page 1073]]

sufficient. For Indian allotted lands within reservation boundaries, 
consent must be obtained from the Navajo Nation and the individual 
landowner(s).
    (c) The applicant should consult with the Office concerning 
procedures for obtaining consent from the appropriate Indian tribal 
authorities and submit the permit application to the Office. The Office 
shall ensure that consultation with the Navajo Nation or individual 
Indian landowner regarding terms and conditions of the permit occurs 
prior to detailed evaluation of the application. Permits shall include 
terms and conditions requested by the Navajo Nation or Indian landowner 
pursuant to Sec. 700.817 of this part.
    (d) The issuance of a permit under this part does not remove the 
requirement for any other permit by Indian tribal law.



PART 720_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE NAVAJO AND HOPI INDIAN RELOCATION 
COMMISSION--Table of Contents




Sec.
720.101 Purpose.
720.102 Application.
720.103 Definitions.
720.104-720.109 [Reserved]
720.110 Self-evaluation.
720.111 Notice.
720.112-720.129 [Reserved]
720.130 General prohibitions against discrimination.
720.131-720.139 [Reserved]
720.140 Employment.
720.141-720.148 [Reserved]
720.149 Program accessibility: Discrimination prohibited.
720.150 Program accessibility: Existing facilities.
720.151 Program accessibility: New construction and alterations.
720.152-720.159 [Reserved]
720.160 Communications.
720.161-720.169 [Reserved]
720.170 Compliance procedures.

    Authority: 29 U.S.C 794.

    Source: 51 FR 22891, 22896, June 23, 1986, unless otherwise noted.



Sec. 720.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the U.S. Postal Service.



Sec. 720.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 720.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, U.S. Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.

[[Page 1074]]

    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alocoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 720.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.

[[Page 1075]]



Sec. Sec. 720.104-720.109  [Reserved]



Sec. 720.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 720.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 720.112-720.129  [Reserved]



Sec. 720.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination

[[Page 1076]]

under any program or activity conducted by the agency; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 720.131-720.139  [Reserved]



Sec. 720.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec. 720.141-720.148  [Reserved]



Sec. 720.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 720.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 720.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 720.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens

[[Page 1077]]

but would nevertheless ensure that handicapped persons receive the 
benefits and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 720.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec. 720.150(a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987 a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.
    (e) Housing. The agency shall ensure that any dwelling purchased for 
a relocatee household is readily accessible to and usable by any 
handicapped person who is a member of that household.

[51 FR 22891, 22896, June 23, 1986, as amended at 51 FR 22892, June 23, 
1986]



Sec. 720.151  Program accessibility: New construction and alterations.

    (a) Each building or part of a building that is constructed or 
altered by, on behalf of, or for the use of the agency shall be 
designed, constructed, or altered so as to be readily accessible to and 
usable by handicapped persons. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established

[[Page 1078]]

in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.
    (b) The agency shall ensure that any dwelling that is constructed 
for a relocatee household is designed and constructed so as to be 
readily accessible to and usable by any handicapped person who is a 
member of that household.

[51 FR 22891, 22896, June 23, 1986, as amended at 51 FR 22892, June 23, 
1986]



Sec. Sec. 720.152-720.159  [Reserved]



Sec. 720.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 720.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 720.161-720.169  [Reserved]



Sec. 720.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Assistant Director for Relocation Operations shall be 
responsible for coordinating implementation of this section. Complaints 
may be mailed to Assistant Director for Relocation Operations, Navajo 
and Hopi Indian Relocation Commission, P.O. Box KK, Flagstaff, Arizona 
86002.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180

[[Page 1079]]

days of the alleged act of discrimination. The agency may extend this 
time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by paragraph (g) of this section. The 
agency may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 22891, 22896, June 23, 1986, as amended at 51 FR 22891, June 23, 
1986]

                        PARTS 721-899 [RESERVED]

[[Page 1081]]



  CHAPTER V--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AND 
     INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES




  --------------------------------------------------------------------
Part                                                                Page
900             Contracts under the Indian Self-
                    Determination and Education Assistance 
                    Act.....................................        1083

[[Page 1083]]



PART 900_CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND EDUCATION 
ASSISTANCE ACT--Table of Contents




                      Subpart A_General Provisions

Sec.
900.1 Authority.
900.2 Purpose and scope.
900.3 Policy statements.
900.4 Effect on existing tribal rights.
900.5 Effect of these regulations on Federal program guidelines, manual, 
          or policy directives.

                          Subpart B_Definitions

900.6 Definitions.

                  Subpart C_Contract Proposal Contents

900.7 What technical assistance is available to assist in preparing an 
          initial contract proposal?
900.8 What must an initial contract proposal contain?
900.9 May the Secretary require an Indian tribe or tribal organization 
          to submit any other information beyond that identified in 
          Sec. 900.8?
900.10 How does an Indian tribe or tribal organization secure a list of 
          all Federal property currently in use in carrying out the 
          programs, functions, services, or activities that benefit the 
          Indian tribe or tribal organization to assist in negotiating a 
          contract?
900.11 What should an Indian tribe or tribal organization that is 
          proposing a contract do about specifying the Federal property 
          that the Indian tribe or tribal organization may wish to use 
          in carrying out the contract?
900.12 Are the proposal contents requirements the same for renewal of a 
          contract that is expiring and for securing an annual funding 
          agreement after the first year of the funding agreement?
900.13 Does the contract proposal become part of the final contract?

           Subpart D_Review and Approval of Contract Proposals

900.14 What does this subpart cover?
900.15 What shall the Secretary do upon receiving a proposal?
900.16 How long does the Secretary have to review and approve the 
          proposal and award the contract, or decline a proposal?
900.17 Can the statutory 90-day period be extended?
900.18 What happens if a proposal is not declined within 90 days after 
          it is received by the Secretary?
900.19 What happens when a proposal is approved?

                    Subpart E_Declination Procedures

900.20 What does this subpart cover?
900.21 When can a proposal be declined?
900.22 For what reasons can the Secretary decline a proposal?
900.23 Can the Secretary decline a proposal where the Secretary's 
          objection can be overcome through the contract?
900.24 Can a contract proposal for an Indian tribe or tribal 
          organization's share of administrative programs, functions, 
          services, and activities be declined for any reason other than 
          the five reasons specified in Sec. 900.22?
900.25 What if only a portion of a proposal raises one of the five 
          declination criteria?
900.26 What happens if the Secretary declines a part of a proposal on 
          the ground that the proposal proposes in part to plan, 
          conduct, or administer a program, function, service or 
          activity that is beyond the scope of programs covered under 
          section 102(a) of the Act, or proposes a level of funding that 
          is in excess of the applicable level determined under section 
          106(a) of the Act?
900.27 If an Indian tribe or tribal organization elects to contract for 
          a severable portion of a proposal, does the Indian tribe or 
          tribal organization lose its appeal rights to challenge the 
          portion of the proposal that was declined?
900.28 Is technical assistance available to an Indian tribe or tribal 
          organization to avoid declination of a proposal?
900.29 What is the Secretary required to do if the Secretary decides to 
          decline all or a portion of a proposal?
900.30 When the Secretary declines all or a portion of a proposal, is 
          the Secretary required to provide an Indian tribe or tribal 
          organization with technical assistance?
900.31 When the Secretary declines all or a portion of a proposal, is an 
          Indian tribe or tribal organization entitled to any appeal?
900.32 Can the Secretary decline an Indian tribe or tribal 
          organization's proposed successor annual funding agreement?
900.33 Are all proposals to renew term contracts subject to the 
          declination criteria?

Subpart F_Standards for Tribal or Tribal Organization Management Systems

                                 General

900.35 What is the purpose of this subpart?

[[Page 1084]]

900.36 What requirements are imposed upon Indian tribes or tribal 
          organizations by this subpart?
900.37 What provisions of Office of Management and Budget (OMB) 
          circulars or the ``common rule'' apply to self-determination 
          contracts?
900.38 Do these standards apply to the subcontractors of an Indian tribe 
          or tribal organization carrying out a self-determination 
          contract?
900.39 What is the difference between a standard and a system?
900.40 When are Indian tribe or tribal organization management standards 
          and management systems evaluated?
900.41 How long must an Indian tribe or tribal organization keep 
          management system records?

               Standards for Financial Management Systems

900.42 What are the general financial management system standards that 
          apply to an Indian tribe carrying out a self-determination 
          contract?
900.43 What are the general financial management system standards that 
          apply to a tribal organization carrying out a self-
          determination contract?
900.44 What minimum general standards apply to all Indian tribe or 
          tribal organization financial management systems when carrying 
          out a self-determination contract?
900.45 What specific minimum requirements shall an Indian tribe or 
          tribal organization's financial management system contain to 
          meet these standards?
900.46 What requirements are imposed upon the Secretary for financial 
          management by these standards?

                 Procurement Management System Standards

900.47 When procuring property or services with self-determination 
          contract funds, can an Indian tribe or tribal organization 
          follow the same procurement policies and procedures applicable 
          to other Indian tribe or tribal organization funds?
900.48 If the Indian tribe or tribal organization does not propose 
          different standards, what basic standards shall the Indian 
          tribe or tribal organization follow?
900.49 What procurement standards apply to subcontracts?
900.50 What Federal laws, regulations, and Executive Orders apply to 
          subcontractors?

                  Property Management System Standards

900.51 What is an Indian tribe or tribal organization's property 
          management system expected to do?
900.52 What type of property is the property management system required 
          to track?
900.53 What kind of records shall the property management system 
          maintain?
900.54 Should the property management system prescribe internal 
          controls?
900.55 What are the standards for inventories?
900.56 What maintenance is required for property?
900.57 What if the Indian tribe or tribal organization chooses not to 
          take title to property furnished or acquired under the 
          contract?
900.58 Do the same accountability and control procedures described above 
          apply to Federal property?
900.59 How are the inventory requirements for Federal property different 
          than for tribal property?
900.60 How does an Indian tribe or tribal organization dispose of 
          Federal personal property?

          Subpart G_Programmatic Reports and Data Requirements

900.65 What programmatic reports and data shall the Indian tribe or 
          tribal organization provide?
900.66 What happens if the Indian tribe or tribal organization and the 
          Secretary cannot come to an agreement concerning the type and/
          or frequency of program narrative and/or program data 
          report(s)?
900.67 Will there be a uniform data set for all IHS programs?
900.68 Will this uniform data set be required of all Indian tribe or 
          tribal organizations contracting with the IHS under the Act?

      Subpart H_Lease of Tribally-Owned Buildings by the Secretary

900.69 What is the purpose of this subpart?
900.70 What elements are included in the compensation for a lease 
          entered into between the Secretary and an Indian tribe or 
          tribal organization for a building owned or leased by the 
          Indian tribe or tribal organization that is used for 
          administration or delivery of services under the Act?
900.71 What type of reserve fund is anticipated for funds deposited into 
          a reserve for replacement of facilities as specified in Sec. 
          900.70(c)?
900.72 Who is the guardian of the fund and may the funds be invested?
900.73 Is a lease with the Secretary the only method available to 
          recover the types of cost described in Sec. 900.70?
900.74 How may an Indian tribe or tribal organization propose a lease to 
          be compensated for the use of facilities?

[[Page 1085]]

                 Subpart I_Property Donation Procedures

                                 General

900.85 What is the purpose of this subpart?
900.86 How will the Secretary exercise discretion to acquire and donate 
          BIA or IHS excess property and excess and surplus Federal 
          property to an Indian tribe or tribal organization?

                      Government-Furnished Property

900.87 How does an Indian tribe or tribal organization obtain title to 
          property furnished by the Federal government for use in the 
          performance of a contract or grant agreement pursuant to 
          section 105(f)(2)(A) of the Act?
900.88 What should the Indian tribe or tribal organization do if it 
          wants to obtain title to government-furnished real property 
          that includes land not already held in trust?
900.89 When may the Secretary elect to reacquire government-furnished 
          property whose title has been transferred to an Indian tribe 
          or tribal organization?
900.90 Does government-furnished real property to which an Indian tribe 
          or tribal organization has taken title continue to be eligible 
          for facilities operation and maintenance funding from the 
          Secretary?

                      Contractor-Purchased Property

900.91 Who takes title to property purchased with funds under a self-
          determination contract or grant agreement pursuant to section 
          105(f)(2)(A) of the Act?
900.92 What should the Indian tribe or tribal organization do if it 
          wants contractor-purchased real property to be taken into 
          trust?
900.93 When may the Secretary elect to acquire title to contractor-
          purchased property?
900.94 Is contractor-purchased real property to which an Indian tribe or 
          tribal organization holds title eligible for facilities 
          operation and maintenance funding from the Secretary?

                       BIA and IHS Excess Property

900.95 What is BIA or IHS excess property?
900.96 How can Indian tribes or tribal organizations learn about BIA and 
          IHS excess property?
900.97 How can an Indian tribe or tribal organization acquire excess BIA 
          or IHS property?
900.98 Who takes title to excess BIA or IHS property donated to an 
          Indian tribe or tribal organization?
900.99 Who takes title to any land that is part of excess BIA or IHS 
          real property donated to an Indian tribe or tribal 
          organization?
900.100 May the Secretary elect to reacquire excess BIA or IHS property 
          whose title has been transferred to an Indian tribe or tribal 
          organization?
900.101 Is excess BIA or IHS real property to which an Indian tribe or 
          tribal organization has taken title eligible for facilities 
          operation and maintenance funding from the Secretary?

         Excess or Surplus Government Property of Other Agencies

900.102 What is excess or surplus government property of other agencies?
900.103 How can Indian tribes or tribal organizations learn about 
          property that has been designated as excess or surplus 
          government property?
900.104 How may an Indian tribe or tribal organization receive excess or 
          surplus government property of other agencies?
900.105 Who takes title to excess or surplus Federal property donated to 
          an Indian tribe or tribal organization?
900.106 If a contract or grant agreement or portion thereof is 
          retroceded, reassumed, terminated, or expires, may the 
          Secretary reacquire title to excess or surplus Federal 
          property of other agencies that was donated to an Indian tribe 
          or tribal organization?

                Property Eligible for Replacement Funding

900.107 What property to which an Indian tribe or tribal organization 
          obtains title under this subpart is eligible for replacement 
          funding?

                         Subpart J_Construction

900.110 What does this subpart cover?
900.111 What activities of construction programs are contractible?
900.112 What are construction phases?
900.113 Definitions.
900.114 Why is there a separate subpart in these regulations for 
          construction contracts and grants?
900.115 How do self-determination construction contracts relate to 
          ordinary Federal procurement contracts?
900.116 Are negotiated fixed-price contracts treated the same as cost-
          reimbursable contracts?
900.117 Do these ``construction contract'' regulations apply to planning 
          services?
900.118 Do these ``construction contract'' regulations apply to 
          construction management services?
900.119 To what extent shall the Secretary consult with affected Indian 
          tribes before spending funds for any construction project?
900.120 How does an Indian tribe or tribal organization find out about a 
          construction project?

[[Page 1086]]

900.121 What happens during the preplanning phase and can an Indian 
          tribe or tribal organization perform any of the activities 
          involved in this process?
900.122 What does an Indian tribe or tribal organization do if it wants 
          to secure a construction contract?
900.123 What happens if the Indian tribe or tribal organization and the 
          Secretary cannot develop a mutually agreeable contract 
          proposal?
900.124 May the Indian tribe or tribal organization elect to use a grant 
          in lieu of a contract?
900.125 What shall a construction contract proposal contain?
900.126 Shall a construction contract proposal incorporate provisions of 
          Federal construction guidelines and manuals?
900.127 What can be included in the Indian tribe or tribal 
          organization's contract budget?
900.128 What funding shall the Secretary provide in a construction 
          contract?
900.129 How do the Secretary and Indian tribe or tribal organization 
          arrive at an overall fair and reasonable price for the 
          performance of a construction contract?
900.130 What role does the Indian tribe or tribal organization play 
          during the performance of a self-determination construction 
          contract?
900.131 What role does the Secretary play during the performance of a 
          self-determination construction contract?
900.132 Once a contract and/or grant is awarded, how will the Indian 
          tribe or tribal organization receive payments?
900.133 Does the declination process or the Contract Dispute Act apply 
          to construction contract amendments proposed either by an 
          Indian tribe or tribal organization or the Secretary?
900.134 At the end of a self-determination construction contract, what 
          happens to savings on a cost-reimbursement contract?
900.135 May the time frames for action set out in this subpart be 
          reduced?
900.136 Do tribal employment rights ordinances apply to construction 
          contracts and subcontracts?
900.137 Do all provisions of the other subparts apply to contracts 
          awarded under this subpart?

                       Subpart K_Waiver Procedures

900.140 Can any provision of the regulations under this part be waived?
900.141 How does an Indian tribe or tribal organization get a waiver?
900.142 Does an Indian tribe or tribal organization's waiver request 
          have to be included in an initial contract proposal?
900.143 How is a waiver request processed?
900.144 What happens if the Secretary makes no decision within the 90-
          day period?
900.145 On what basis may the Secretary deny a waiver request?
900.146 Is technical assistance available for waiver requests?
900.147 What appeal rights are available?
900.148 How can an Indian tribe or tribal organization secure a 
          determination that a law or regulation has been superseded by 
          the Indian Self-Determination Act, as specified in section 
          107(b) of the Act?

                            Subpart L_Appeals

Appeals Other Than Emergency Reassumption and Suspension, Withholding or 
                            Delay in Payment

900.150 What decisions can an Indian tribe or tribal organization appeal 
          under this subpart?
900.151 Are there any appeals this subpart does not cover?
900.152 How does an Indian tribe or tribal organization know where and 
          when to file its appeal from decisions made by agencies of DOI 
          or DHHS?
900.153 Does an Indian tribe or tribal organization have any options 
          besides an appeal?
900.154 How does an Indian tribe or tribal organization request an 
          informal conference?
900.155 How is an informal conference held?
900.156 What happens after the informal conference?
900.157 Is the recommended decision always final?
900.158 How does an Indian tribe or tribal organization appeal the 
          initial decision, if it does not request an informal 
          conference or if it does not agree with the recommended 
          decision resulting from the informal conference?
900.159 May an Indian tribe or tribal organization get an extension of 
          time to file a notice of appeal?
900.160 What happens after an Indian tribe or tribal organization files 
          an appeal?
900.161 How is a hearing arranged?
900.162 What happens when a hearing is necessary?
900.163 What is the Secretary's burden of proof for appeals from 
          decisions under Sec. 900.150(a) through Sec. 900.150(g)?
900.164 What rights do Indian tribes, tribal organizations, and the 
          government have during the appeal process?
900.165 What happens after the hearing?
900.166 Is the recommended decision always final?
900.167 If an Indian tribe or tribal organization objects to the 
          recommended decision, what will the Secretary of Health and 
          Human Services or the IBIA do?

[[Page 1087]]

900.168 Will an appeal hurt the Indian tribe or tribal organization's 
          position in other contract negotiations?
900.169 Will the decisions on appeals be available for the public to 
          review?

  Appeals of Emergency Reassumption of Self-Determination Contracts or 
Suspensions, Withholding or Delay of Payments Under a Self-Determination 
                                Contract

900.170 What happens in the case of emergency reassumption or suspension 
          or withholding or delay of payments?
900.171 Will there be a hearing?
900.172 What happens after the hearing?
900.173 Is the recommended decision always final?
900.174 If an Indian tribe or tribal organization objects to the 
          recommended decision, what will the Secretary of Health and 
          Human Services or the IBIA do?
900.175 Will an appeal hurt an Indian tribe or tribal organization's 
          position in other contract negotiations?
900.176 Will the decisions on appeals be available for the public to 
          review?

            Applicability of the Equal Access to Justice Act

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

      Subpart M_Federal Tort Claims Act Coverage General Provisions

900.180 What does this subpart cover?
900.181 What definitions apply to this subpart?
900.182 What other statutes and regulations apply to FTCA coverage?
900.183 Do Indian tribes and tribal organizations need to be aware of 
          areas which FTCA does not cover?
900.184 Is there a deadline for filing FTCA claims?
900.185 How long does the Federal government have to process an FTCA 
          claim after the claim is received by the Federal agency, 
          before a lawsuit may be filed?
900.186 Is it necessary for a self-determination contract to include any 
          clauses about Federal Tort Claims Act coverage?
900.187 Does FTCA apply to a self-determination contract if FTCA is not 
          referenced in the contract?
900.188 To what extent shall the contractor cooperate with the Federal 
          government in connection with tort claims arising out of the 
          contractor's performance?
900.189 Does this coverage extend to subcontractors of self-
          determination contracts?

                         Medical-Related Claims

900.190 Is FTCA the exclusive remedy for a tort claim for personal 
          injury or death resulting from the performance of a self-
          determination contract?
900.191 Are employees of self-determination contractors providing health 
          services under the self-determination contract protected by 
          FTCA?
900.192 What employees are covered by FTCA for medical-related claims?
900.193 Does FTCA coverage extend to individuals who provide health care 
          services under a personal services contract providing services 
          in a facility that is owned, operated, or constructed under 
          the jurisdiction of the IHS?
900.194 Does FTCA coverage extend to services provided under a staff 
          privileges agreement with a non-IHS facility where the 
          agreement requires a health care practitioner to provide 
          reciprocal services to the general population?
900.195 Does FTCA coverage extend to the contractor's health care 
          practitioners providing services to private patients on a fee-
          for-services basis when such personnel (not the self-
          determination contractor) receive the fee?
900.196 Do covered services include the conduct of clinical studies and 
          investigations and the provision of emergency services, 
          including the operation of emergency motor vehicles?
900.197 Does FTCA cover employees of the contractor who are paid by the 
          contractor from funds other than those provided through the 
          self-determination contract?
900.198 Are Federal employees assigned to a self-determination 
          contractor under the Intergovernmental Personnel Act or 
          detailed under section 214 of the Public Health Service Act 
          covered to the same extent that they would be if working 
          directly for a Federal agency?
900.199 Does FTCA coverage extend to health care practitioners to whom 
          staff privileges have been extended in contractor health care 
          facilities operated under a self-determination contract on the 
          condition that such practitioner provide health services to 
          IHS beneficiaries covered by FTCA?
900.200 May persons who are not Indians or Alaska Natives assert claims 
          under FTCA?

               Procedure for Filing Medical-Related Claims

900.201 How should claims arising out of the performance of medical-
          related functions be filed?
900.202 What should a self-determination contractor or a contractor's 
          employee do on receiving such a claim?

[[Page 1088]]

900.203 If the contractor or contractor's employee receives a summons 
          and/or a complaint alleging a tort covered by FTCA, what 
          should the contractor do?

                       Non-Medical Related Claims

900.204 Is FTCA the exclusive remedy for a non-medical related tort 
          claim arising out of the performance of a self-determination 
          contract?
900.205 To what non-medical-related claims against self-determination 
          contractors does FTCA apply?
900.206 What employees are covered by FTCA for non-medical-related 
          claims?
900.207 How are non-medical related tort claims and lawsuits filed for 
          IHS?
900.208 How are non-medical related tort claims and lawsuits filed for 
          DOI?
900.209 What should a self-determination contractor or contractor's 
          employee do on receiving a non-medical related tort claim?
900.210 If the contractor or contractor's employee receives a summons 
          and/or complaint alleging a non-medical related tort covered 
          by FTCA, what should an Indian tribe or tribal organization 
          do?

                 Subpart N_Post-Award Contract Disputes

900.215 What does this subpart cover?
900.216 What other statutes and regulations apply to contract disputes?
900.217 Is filing a claim under the CDA our only option for resolving 
          post-award contract disputes?
900.218 What is a claim under the CDA?
900.219 How does an Indian tribe, tribal organization, or Federal agency 
          submit a claim?
900.220 Does it make a difference whether the claim is large or small?
900.221 What happens next?
900.222 What goes into a decision?
900.223 When does an Indian tribe or tribal organization get the 
          decision?
900.224 What happens if the decision does not come within that time?
900.225 Does an Indian tribe or tribal organization get paid immediately 
          if the awarding official decides in its favor?
900.226 What rules govern appeals of cost disallowances?
900.227 Can the awarding official change the decision after it has been 
          made?
900.228 Is an Indian tribe or tribal organization entitled to interest 
          if it wins its claim?
900.229 What role will the awarding official play during an appeal?
900.230 What is the effect of a pending appeal?

                     Subpart O_Conflicts of Interest

900.231 What is an organizational conflict of interest?
900.232 What must an Indian tribe or tribal organization do if an 
          organizational conflict of interest arises under a contract?
900.233 When must an Indian tribe or tribal organization regulate its 
          employees or subcontractors to avoid a personal conflict of 
          interest?
900.234 What types of personal conflicts of interest involving tribal 
          officers, employees or subcontractors would have to be 
          regulated by an Indian tribe?
900.235 What personal conflicts of interest must the standards of 
          conduct regulate?
900.236 May an Indian tribe elect to negotiate contract provisions on 
          conflict of interest to take the place of this regulation?

           Subpart P_Retrocession and Reassumption Procedures

900.240 What does retrocession mean?
900.241 Who may retrocede a contract, in whole or in part?
900.242 What is the effective date of retrocession?
900.243 What effect will an Indian tribe or tribal organization's 
          retrocession have on its rights to contract?
900.244 Will an Indian tribe or tribal organization's retrocession 
          adversely affect funding available for the retroceded program?
900.245 What obligation does the Indian tribe or tribal organization 
          have with respect to returning property that was used in the 
          operation of the retroceded program?
900.246 What does reassumption mean?
900.247 Under what circumstances is a reassumption considered an 
          emergency instead of non-emergency reassumption?
900.248 In a non-emergency reassumption, what is the Secretary required 
          to do?
900.249 What happens if the contractor fails to take corrective action 
          to remedy the contract deficiencies identified in the notice?
900.250 What shall the second written notice include?
900.251 What is the earliest date on which the contract will be 
          rescinded in a non-emergency reassumption?
900.252 In an emergency reassumption, what is the Secretary required to 
          do?
900.253 What shall the written notice include?
900.254 May the contractor be reimbursed for actual and reasonable 
          ``wind up costs'' incurred after the effective date of 
          rescission?

[[Page 1089]]

900.255 What obligation does the Indian tribe or tribal organization 
          have with respect to returning property that was used in the 
          operation of the rescinded contract?
900.256 Will a reassumption adversely affect funding available for the 
          reassumed program?

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

    Source: 61 FR 32501, June 24, 1996, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 900 appear at 67 FR 
34602, May 15, 2002.



                      Subpart A_General Provisions



Sec. 900.1  Authority.

    These regulations are prepared, issued, and maintained jointly by 
the Secretary of Health and Human Services and the Secretary of the 
Interior, with the active participation and representation of Indian 
tribes, tribal organizations, and individual tribal members pursuant to 
the guidance of the Negotiated Rulemaking procedures required by section 
107 of the Indian Self-Determination and Education Assistance Act.



Sec. 900.2  Purpose and scope.

    (a) General. These regulations codify uniform and consistent rules 
for contracts by the Department of Health and Human Services (DHHS) and 
the Department of the Interior (DOI) in implementing title I of the 
Indian Self-Determination and Education Assistance Act, Public Law 93-
638, 25 U.S.C. 450 et seq., as amended and sections 1 through 9 
preceding that title.
    (b) Programs funded by other Departments and agencies. Included 
under this part are programs administered (under current or future law 
or interagency agreement) by the DHHS and the DOI for the benefit of 
Indians for which appropriations are made to other Federal agencies.
    (c) This part included in contracts by reference. Each contract, 
including grants and cooperative agreements in lieu of contracts awarded 
under section 9 of the Act, shall include by reference the provisions of 
this part, and any amendment thereto, and they are binding on the 
Secretary and the contractor except as otherwise specifically authorized 
by a waiver under section 107(e) of the Act.
    (d) Freedom of Information. 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. Except for previously provided copies 
of tribal records that the Secretary demonstrates are clearly required 
to be maintained as part of the record keeping systems of the DHHS or 
the DOI, or both, records of the contractors (including archived 
records) shall not be considered Federal records for the purpose of the 
Freedom of Information Act. The Freedom of Information Act does not 
apply to records maintained solely by Indian tribes and tribal 
organizations.
    (e) Privacy Act. Section 108(b) of the Indian Self-Determination Act 
states that records of the tribal government or tribal organizations 
shall not be considered Federal records for the purposes of the Privacy 
Act.
    (f) Information collection. The Office of Management and Budget has 
approved, under 44 U.S.C. chapter 35, the information collection 
requirements in part 900 under assigned control number 1076-0136. The 
information for part 900 is being collected and used by the Departments 
to determine applicant eligibility, evaluate applicant capabilities, 
protect the service population, safeguard Federal funds and other 
resources, and permit the Departments to administer and evaluate 
contract programs.



Sec. 900.3  Policy statements.

    (a) Congressional policy. (1) Congress has recognized the obligation 
of the United States to respond to the strong expression of the Indian 
people for self-determination by assuring maximum Indian participation 
in the direction, planning, conduct and administration of educational as 
well as other Federal programs and services to Indian communities so as 
to render such programs and services more responsive to the needs and 
desires of those communities.

[[Page 1090]]

    (2) Congress has declared its commitment to the maintenance of the 
Federal Government's unique and continuing relationship with, and 
responsibility to, individual Indian tribes and to the Indian people as 
a whole through the establishment of a meaningful Indian self-
determination policy which will permit an orderly transition from the 
Federal domination of programs for, and services to, Indians to 
effective and meaningful participation by the Indian people in the 
planning, conduct, and administration of those programs and services. In 
accordance with this policy, the United States is committed to 
supporting and assisting Indian tribes in the development of strong and 
stable tribal governments, capable of administering quality programs and 
developing the economies of their respective communities.
    (3) Congress has declared that a major national goal of the United 
States is to provide the quantity and quality of educational services 
and opportunities which will permit Indian children to compete and excel 
in the life areas of their choice, and to achieve the measure of self-
determination essential to their social and economic well-being.
    (4) Congress has declared that the programs, functions, services, or 
activities that are contracted and funded under this Act shall include 
administrative functions of the Department of the Interior and the 
Department of Health and Human Services (whichever is applicable) that 
support the delivery of services to Indians, including those 
administrative activities supportive of, but not included as part of, 
the service delivery programs described in this paragraph that are 
otherwise contractible. The administrative functions referred to in the 
preceding sentence shall be contractible without regard to the 
organizational level within the Department that carries out such 
functions. Contracting of the administrative functions described herein 
shall not be construed to limit or reduce in any way the funding for any 
program, function, service, or activity serving any other tribe under 
the Act or any other law. The Secretary is not required to reduce 
funding for programs, projects, or activities serving a tribe to make 
funds available to another Indian tribe or tribal organization under 
this Act.
    (5) Congress has further declared that each provision of the Act and 
each provision of contracts entered into thereunder shall be liberally 
construed for the benefit of the tribes or tribal organizations to 
transfer the funding and the related functions, services, activities, 
and programs (or portions thereof), that are otherwise contractible 
under the Act, including all related administrative functions, from the 
Federal government to the contractor.
    (6) Congress has declared that one of the primary goals of the 1994 
amendments to the Act was to minimize the reporting requirements 
applicable to tribal contractors and to eliminate excessive and 
burdensome reporting requirements. Reporting requirements over and above 
the annual audit report are to be negotiated with disagreements subject 
to the declination procedures of section 102 of the Act.
    (7) Congress has declared that there not be any threshold issues 
which would avoid the declination, contract review, approval, and appeal 
process.
    (8) Congress has declared that all self-determination contract 
proposals must be supported by the resolution of an Indian tribe(s).
    (9) Congress has declared that to the extent that programs, 
functions, services, and activities carried out by tribes and tribal 
organizations pursuant to contracts entered into under this Act reduce 
the administrative or other responsibilities of the Secretary with 
respect to the operation of Indian programs and result in savings that 
have not otherwise been included in the amount of contract funds 
determined under section 106(a) of the Act, the Secretary shall make 
such savings available for the provision of additional services to 
program beneficiaries, either directly or through contractors, in a 
manner equitable to both direct and contracted programs.
    (b) Secretarial policy. (1) It is the policy of the Secretary to 
facilitate the efforts of Indian tribes and tribal organizations to 
plan, conduct and administer programs, functions, services and 
activities, or portions thereof, which

[[Page 1091]]

the Departments are authorized to administer for the benefit of Indians 
because of their status as Indians. The Secretary shall make best 
efforts to remove any obstacles which might hinder Indian tribes and 
tribal organizations including obstacles that hinder tribal autonomy and 
flexibility in the administration of such programs.
    (2) It is the policy of the Secretary to encourage Indian tribes and 
tribal organizations to become increasingly knowledgeable about the 
Departments' programs administered for the benefit of Indians by 
providing information on such programs, functions and activities and the 
opportunities Indian tribes have regarding them.
    (3) It is the policy of the Secretary to provide a uniform and 
consistent set of rules for contracts under the Act. The rules contained 
herein are designed to facilitate and encourage Indian tribes to 
participate in the planning, conduct, and administration of those 
Federal programs serving Indian people. The Secretary shall afford 
Indian tribes and tribal organizations the flexibility, information, and 
discretion necessary to design contractible programs to meet the needs 
of their communities consistent with their diverse demographic, 
geographic, economic, cultural, health, social, religious and 
institutional needs.
    (4) The Secretary recognizes that contracting under the Act is an 
exercise by Indian tribes of the government-to-government relationship 
between the United States and the Indian tribes. When an Indian tribe 
contracts, there is a transfer of the responsibility with the associated 
funding. The tribal contractor is accountable for managing the day-to-
day operations of the contracted Federal programs, functions, services, 
and activities. The contracting tribe thereby accepts the responsibility 
and accountability to the beneficiaries under the contract with respect 
to use of the funds and the satisfactory performance of the programs, 
functions, services and activities funded under the contract. The 
Secretary will continue to discharge the trust responsibilities to 
protect and conserve the trust resources of Indian tribes and the trust 
resources of individual Indians.
    (5) The Secretary recognizes that tribal decisions to contract or 
not to contract are equal expressions of self-determination.
    (6) The Secretary shall maintain consultation with tribal 
governments and tribal organizations in the Secretary's budget process 
relating to programs, functions, services and activities subject to the 
Act. In addition, on an annual basis, the Secretary shall consult with, 
and solicit the participation of, Indian tribes and tribal organizations 
in the development of the budget for the Indian Health Service and the 
Bureau of Indian Affairs (including participation of Indian tribes and 
tribal organizations in formulating annual budget requests that the 
Secretary submits to the President for submission to Congress pursuant 
to section 1105 of title 31, United States Code).
    (7) The Secretary is committed to implementing and fully supporting 
the policy of Indian self-determination by recognizing and supporting 
the many positive and successful efforts and directions of tribal 
governments and extending the applicability of this policy to all 
operational components within the Department. By fully extending Indian 
self-determination contracting to all operational components within the 
Department having programs or portions of programs for the benefit of 
Indians under section 102(a)(1) (A) through (D) and for the benefit of 
Indians because of their status as Indians under section 102(a)(1)(E), 
it is the Secretary's intent to support and assist Indian tribes in the 
development of strong and stable tribal governments capable of 
administering quality programs that meet the tribally determined needs 
and directions of their respective communities. It is also the policy of 
the Secretary to have all other operational components within the 
Department work cooperatively with tribal governments on a government-
to-government basis so as to expedite the transition away from Federal 
domination of Indian programs and make the ideals of Indian self-
government and self-determination a reality.
    (8) It is the policy of the Secretary that the contractibility of 
programs under this Act should be encouraged.

[[Page 1092]]

In this regard, Federal laws and regulations should be interpreted in a 
manner that will facilitate the inclusion of those programs or portions 
of those programs that are for the benefit of Indians under section 
102(a)(1) (A) through (D) of the Act, and that are for the benefit of 
Indians because of their status of Indians under section 102(a)(1)(E) of 
the Act.
    (9) It is the Secretary's policy that no later than upon receipt of 
a contract proposal under the Act (or written notice of an Indian tribe 
or tribal organization's intention to contract), the Secretary shall 
commence planning such administrative actions, including but not limited 
to transfers or reductions in force, transfers of property, and 
transfers of contractible functions, as may be necessary to ensure a 
timely transfer of responsibilities and funding to Indian tribes and 
tribal organizations.
    (10) It is the policy of the Secretary to make available to Indian 
tribes and tribal organizations all administrative functions that may 
lawfully be contracted under the Act, employing methodologies consistent 
with the methodology employed with respect to such functions under 
titles III and IV of the Act.
    (11) The Secretary's commitment to Indian self-determination 
requires that these regulations be liberally construed for the benefit 
of Indian tribes and tribal organizations to effectuate the strong 
Federal policy of self-determination and, further, that any ambiguities 
herein be construed in favor of the Indian tribe or tribal organization 
so as to facilitate and enable the transfer of services, programs, 
functions, and activities, or portions thereof, authorized by the Act.



Sec. 900.4  Effect on existing tribal rights.

    Nothing in these regulations shall be construed as:
    (a) Affecting, modifying, diminishing, or otherwise impairing the 
sovereign immunity from suit enjoyed by Indian tribes;
    (b) Terminating, waiving, modifying, or reducing the trust 
responsibility of the United States to the Indian tribe(s) or individual 
Indians. The Secretary shall act in good faith in upholding this trust 
responsibility;
    (c) Mandating an Indian tribe to apply for a contract(s) or grant(s) 
as described in the Act; or
    (d) Impeding awards by other Departments and agencies of the United 
States to Indian tribes to administer Indian programs under any other 
applicable law.



Sec. 900.5  Effect of these regulations on Federal program guidelines, 
manual, or policy directives.

    Except as specifically provided in the Act, or as specified in 
subpart J, an Indian tribe or tribal organization is not required to 
abide by any unpublished requirements such as program guidelines, 
manuals, or policy directives of the Secretary, unless otherwise agreed 
to by the Indian tribe or tribal organization and the Secretary, or 
otherwise required by law.



                          Subpart B_Definitions



Sec. 900.6  Definitions.

    Unless otherwise provided in this part:
    Act means secs. 1 through 9, and title I of the Indian Self-
Determination and Education Assistance Act of 1975, Public Law 93-638, 
as amended.
    Annual funding agreement means a document that represents the 
negotiated agreement of the Secretary to fund, on an annual basis, the 
programs, services, activities and functions transferred to an Indian 
tribe or tribal organization under the Act.
    Appeal means a request by an Indian tribe or tribal organization for 
an administrative review of an adverse Agency decision.
    Awarding official means any person who by appointment or delegation 
in accordance with applicable regulations has the authority to enter 
into and administer contracts on behalf of the United States of America 
and make determinations and findings with respect thereto. Pursuant to 
the Act, this person can be any Federal official, including but not 
limited to, contracting officers.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.

[[Page 1093]]

    Contract means a self-determination contract as defined in section 
4(j) of the Act.
    Contract appeals board means the Interior Board of Contract Appeals.
    Contractor means an Indian tribe or tribal organization to which a 
contract has been awarded.
    Days means calendar days; except where the last day of any time 
period specified in these regulations falls on a Saturday, Sunday, or a 
Federal holiday, the period shall carry over to the next business day 
unless otherwise prohibited by law.
    Department(s) means the Department of Health and Human Services 
(HHS) or the Department of the Interior (DOI), or both.
    IHS means the Indian Health Service of the Department of Health and 
Human Services.
    Indian means a person who is a member of an Indian Tribe.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group, or community, including pueblos, rancherias, colonies 
and any Alaska Native Village, or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act, which is recognized as eligible for the 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 or tribal organization and the appropriate 
Federal Agency.
    Indirect costs means costs incurred for a common or joint purpose 
benefiting more than one contract objective or which are not readily 
assignable to the contract objectives specifically benefitted without 
effort disproportionate to the results achieved.
    Initial contract proposal means a proposal for programs, functions, 
services, or activities that the Secretary is authorized to perform but 
which the Indian tribe or tribal organization is not now carrying out.
    Real property means any interest in land together with the 
improvements, structures, and fixtures and appurtenances thereto.
    Reassumption means rescission, in whole or in part, of a contract 
and assuming or resuming control or operation of the contracted program 
by the Secretary without consent of the Indian tribe or tribal 
organization pursuant to the notice and other procedures set forth in 
subpart P.
    Retrocession means the voluntary return to the Secretary of a 
contracted program, in whole or in part, for any reason, before the 
expiration of the term of the contract.
    Secretary means the Secretary of Health and Human Services (HHS) or 
the Secretary of the Interior (DOI), or both (and their respective 
delegates).
    Tribal organization means the recognized governing body of any 
Indian tribe; any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities: provided, 
that, in any case where a contract is let or a grant made to an 
organization to perform services benefiting more than one Indian tribe, 
the approval of each such Indian tribe shall be a prerequisite to the 
letting or making of such contract or grant.
    Trust resources means an interest in land, water, minerals, funds, 
or other assets or property which is held by the United States in trust 
for an Indian tribe or an individual Indian or which is held by an 
Indian tribe or Indian subject to a restriction on alienation imposed by 
the United States.



                  Subpart C_Contract Proposal Contents



Sec. 900.7  What technical assistance is available to assist in 
preparing an initial contract proposal?

    The Secretary shall, upon request of an Indian tribe or tribal 
organization and subject to the availability of appropriations, provide 
technical assistance on a non-reimbursable basis to such Indian tribe or 
tribal organization to develop a new contract proposal or to provide for 
the assumption by the Indian tribe or tribal organization of any 
program, service, function, or activity (or portion thereof) that is

[[Page 1094]]

contractible under the Act. The Secretary may also make a grant to an 
Indian tribe or tribal organization for the purpose of obtaining 
technical assistance, as provided in section 103 of the Act. An Indian 
tribe or tribal organization may also request reimbursement for pre-
award costs for obtaining technical assistance under sections 106(a) (2) 
and (5) of the Act.



Sec. 900.8  What must an initial contract proposal contain?

    An initial contract proposal must contain the following information:
    (a) The full name, address and telephone number of the Indian tribe 
or tribal organization proposing the contract.
    (b) If the tribal organization is not an Indian tribe, the proposal 
must also include:
    (1) A copy of the tribal organization's organizational documents 
(e.g., charter, articles of incorporation, bylaws, etc.).
    (2) The full name(s) of the Indian tribe(s) with which the tribal 
organization is affiliated.
    (c) The full name(s) of the Indian tribe(s) proposed to be served.
    (d) A copy of the authorizing resolution from the Indian tribe(s) to 
be served.
    (1) If an Indian tribe or tribal organization proposes to serve a 
specified geographic area, it must provide authorizing resolution(s) 
from all Indian tribes located within the specific area it proposes to 
serve. However, no resolution is required from an Indian tribe located 
outside the area proposed to be served whose members reside within the 
proposed service area.
    (2) If a currently effective authorizing resolution covering the 
scope of an initial contract proposal has already been provided to the 
agency receiving the proposal, a reference to that resolution.
    (e) The name, title, and signature of the authorized representative 
of the Indian tribe or tribal organization submitting the contract 
proposal.
    (f) The date of submission of the proposal.
    (g) A brief statement of the programs, functions, services, or 
activities that the tribal organization proposes to perform, including:
    (1) A description of the geographical service area, if applicable, 
to be served.
    (2) The estimated number of Indian people who will receive the 
benefits or services under the proposed contract.
    (3) An identification of any local, Area, regional, or national 
level departmental programs, functions, services, or activities to be 
contracted, including administrative functions.
    (4) A description of the proposed program standards;
    (5) An identification of the program reports, data and financial 
reports that the Indian tribe or tribal organization will provide, 
including their frequency.
    (6) A description of any proposed redesign of the programs, 
services, functions, or activities to be contracted,
    (7) Minimum staff qualifications proposed by the Indian tribe and 
tribal organization, if any; and
    (8) A statement that the Indian tribe or tribal organization will 
meet the minimum procurement, property and financial management 
standards set forth in subpart F, subject to any waiver that may have 
been granted under subpart K.
    (h) The amount of funds requested, including:
    (1) An identification of the funds requested by programs, functions, 
services, or activities, under section 106(a)(1) of the Act, including 
the Indian tribe or tribal organization's share of funds related to such 
programs, functions, services, or activities, if any, from any 
Departmental local, area, regional, or national level.
    (2) An identification of the amount of direct contract support 
costs, including one-time start-up or preaward costs under section 
106(a)(2) and related provisions of the Act, presented by major 
categories such as:
    (i) Personnel (differentiating between salary and fringe benefits);
    (ii) Equipment;
    (iii) Materials and supplies;
    (iv) Travel;
    (v) Subcontracts; and
    (vi) Other appropriate items of cost.
    (3) An identification of funds the Indian tribe or tribal 
organization requests to recover for indirect contract

[[Page 1095]]

support costs. This funding request must include either:
    (i) A copy of the most recent negotiated indirect cost rate 
agreement; or
    (ii) An estimated amount requested for indirect costs, pending 
timely establishment of a rate or negotiation of administrative overhead 
costs.
    (4) To the extent not stated elsewhere in the budget or previously 
reported to the Secretary, any preaward costs, including the amount and 
time period covered or to be covered; and
    (5) At the option of the Indian tribe or tribal organization, an 
identification of programs, functions, services, or activities specified 
in the contract proposal which will be funded from sources other than 
the Secretary.
    (i) The proposed starting date and term of the contract.
    (j) In the case of a cooperative agreement, the nature and degree of 
Federal programmatic involvement anticipated during the term of the 
agreement.
    (k) The extent of any planned use of Federal personnel and Federal 
resources.
    (l) Any proposed waiver(s) of the regulations in this part; and
    (m) A statement that the Indian tribe or tribal organization will 
implement procedures appropriate to the programs, functions, services or 
activities proposed to be contracted, assuring the confidentiality of 
medical records and of information relating to the financial affairs of 
individual Indians obtained under the proposal contract, or as otherwise 
required by law.



Sec. 900.9  May the Secretary require an Indian tribe or tribal 
organization to submit any other information beyond that identified 
in Sec. 900.8?

    No.



Sec. 900.10  How does an Indian tribe or tribal organization secure a list of all Federal 

property currently in use in carrying out the programs, functions, services, or activities 
that benefit the Indian tribe or tribal organization to assist in negotiating a contract?

    The Indian tribe or tribal organization submits a written request to 
the Secretary. The Secretary shall provide the requested information, 
including the condition of the property, within 60 days.



Sec. 900.11  What should an Indian tribe or tribal organization that is proposing 
a contract do about specifying the Federal property that the Indian tribe or 
tribal organization may wish to use in carrying out the contract?

    The Indian tribe or tribal organization is encouraged to provide the 
Secretary, as early as possible, with:
    (a) A list of the following Federal property intended for use under 
the contract:
    (1) Equipment;
    (2) Furnishings;
    (3) Facilities; and
    (4) Other real and personal property.
    (b) A statement of how the Indian tribe or tribal organization will 
obtain each item by transfer of title under section 105(f)(2) of the Act 
and section 1(b)(8) of the model agreement set forth in section 108(c) 
of the Act, through a temporary use permit, similar arrangement, or 
otherwise; and
    (c) Where equipment is to be shared by contracted and non-contracted 
programs, services, functions, or activities, a proposal outlining 
proposed equipment sharing or other arrangements.



Sec. 900.12  Are the proposal contents requirements the same for renewal 
of a contract that is expiring and for securing an annual funding agreement 
after the first year of the funding agreement?

    No. In these situations, an Indian tribe or tribal organization 
should submit a renewal proposal (or notification of intent not to 
renew) or an annual funding agreement proposal at least 90 days before 
the expiration date of the contract or existing annual funding 
agreement. The proposal shall provide funding information in the same 
detail and format as the original proposal and may also identify any 
significant proposed changes.



Sec. 900.13  Does the contract proposal become part of the final 
contract?

    No, unless the parties agree.

[[Page 1096]]



           Subpart D_Review and Approval of Contract Proposals



Sec. 900.14  What does this subpart cover?

    This subpart covers any proposal to enter into a self-determination 
contract, to amend an existing self-determination contract, to renew an 
existing self-determination contract, or to redesign a program through a 
self-determination contract.



Sec. 900.15  What shall the Secretary do upon receiving a proposal?

    Upon receipt of a proposal, the Secretary shall:
    (a) Within two days notify the applicant in writing that the 
proposal has been received;
    (b) Within 15 days notify the applicant in writing of any missing 
items required by Sec. 900.8 and request that the items be submitted 
within 15 days of receipt of the notification; and
    (c) Review the proposal to determine whether there are declination 
issues under section 102(a)(2) of the Act.



Sec. 900.16  How long does the Secretary have to review and approve 
the proposal and award the contract, or decline a proposal?

    The Secretary has 90 days after receipt of a proposal to review and 
approve the proposal and award the contract or decline the proposal in 
compliance with section 102 of the Act and subpart E. At any time during 
the review period the Secretary may approve the proposal and award the 
requested contract.



Sec. 900.17  Can the statutory 90-day period be extended?

    Yes, with written consent of the Indian tribe or tribal 
organization. If consent is not given, the 90-day deadline applies.



Sec. 900.18  What happens if a proposal is not declined within 90 days 
after it is received by the Secretary?

    A proposal that is not declined within 90 days (or within any agreed 
extension under Sec. 900.17) is deemed approved and the Secretary shall 
award the contract or any amendment or renewal within that 90-day period 
and add to the contract the full amount of funds pursuant to section 
106(a) of the Act.



Sec. 900.19  What happens when a proposal is approved?

    Upon approval the Secretary shall award the contract and add to the 
contract the full amount of funds to which the contractor is entitled 
under section 106(a) of the Act.



                    Subpart E_Declination Procedures



Sec. 900.20  What does this subpart cover?

    This subpart explains how and under what circumstances the Secretary 
may decline a proposal to contract, to amend an existing contract, to 
renew an existing contract, to redesign a program, or to waive any 
provisions of these regulations. For annual funding agreements, see 
Sec. 900.32.



Sec. 900.21  When can a proposal be declined?

    As explained in Sec. Sec. 900.16 and 900.17, a proposal can only be 
declined within 90 days after the Secretary receives the proposal, 
unless that period is extended with the voluntary and express written 
consent of the Indian tribe or tribal organization.



Sec. 900.22  For what reasons can the Secretary decline a proposal?

    The Secretary may only decline to approve a proposal for one of five 
specific reasons:
    (a) The service to be rendered to the Indian beneficiaries of the 
particular program or function to be contracted will not be 
satisfactory;
    (b) Adequate protection of trust resources is not assured;
    (c) The proposed project or function to be contracted for cannot be 
properly completed or maintained by the proposed contract;
    (d) The amount of funds proposed under the contract is in excess of 
the applicable funding level for the contract, as determined under 
section 106(a) of the Act; or
    (e) The program, function, service, or activity (or a portion 
thereof) that is the subject of the proposal is beyond

[[Page 1097]]

the scope of programs, functions, services, or activities covered under 
section 102(a)(1) of the Act because the proposal includes activities 
that cannot lawfully be carried out by the contractor.



Sec. 900.23  Can the Secretary decline a proposal where the Secretary's 
objection can be overcome through the contract?

    No. The Secretary may not decline to enter into a contract with an 
Indian tribe or tribal organization based on any objection that will be 
overcome through the contract.



Sec. 900.24  Can a contract proposal for an Indian tribe or tribal organization's 
share of administrative programs, functions, services, and activities be declined 
for any reason other than the five reasons specified in Sec. 900.22?

    No. The Secretary may only decline a proposal based upon one or more 
of the five reasons listed above. If a contract affects the preexisting 
level of services to any other tribe, the Secretary shall address that 
effect in the Secretary's annual report to Congress under section 
106(c)(6) of the Act.



Sec. 900.25  What if only a portion of a proposal raises one of the five 
declination criteria?

    The Secretary must approve any severable portion of a proposal that 
does not support a declination finding described in Sec. 900.20, 
subject to any alteration in the scope of the proposal that the 
Secretary and the Indian tribe or tribal organization approve.



Sec. 900.26  What happens if the Secretary declines a part of a proposal on the ground that the proposal 

proposes in part to plan, conduct, or administer a program, function, service or activity that is beyond 
the scope of programs covered under section 102(a) of the Act, or proposes a level of funding that is in 
excess of the applicable level determined under section 106(a) of the Act?

    In those situations the Secretary is required, as appropriate, to 
approve the portion of the program, function, service, or activity that 
is authorized under section 102(a) of the Act, or approve a level of 
funding that is authorized under section 106(a) of the Act. As noted in 
Sec. 900.25, the approval is subject to any alteration in the scope of 
the proposal that the Secretary and the Indian tribe or tribal 
organization approve.



Sec. 900.27  If an Indian tribe or tribal organization elects to contract for a 
severable portion of a proposal, does the Indian tribe or tribal organization lose 
its appeal rights to challenge the portion of the proposal that was declined?

    No, but the hearing and appeal procedures contained in these 
regulations only apply to the portion of the proposal that was declined.



Sec. 900.28  Is technical assistance available to an Indian tribe or 
tribal organization to avoid declination of a proposal?

    Yes. In accordance with section 103(d) of the Act, upon receiving a 
proposal, the Secretary shall provide any necessary requested technical 
assistance to an Indian tribe or tribal organization, and shall share 
all relevant information with the Indian tribe or tribal organization, 
in order to avoid declination of the proposal.



Sec. 900.29  What is the Secretary required to do if the Secretary 
decides to decline all or a portion of a proposal?

    If the Secretary decides to decline all or a severable portion of a 
proposal, the Secretary is required:
    (a) To advise the Indian tribe or tribal organization in writing of 
the Secretary's objections, including a specific finding that clearly 
demonstrates that (or that is supported by a controlling legal authority 
that) one of the conditions set forth in Sec. 900.22 exists, together 
with a detailed explanation of the reason for the decision to decline 
the proposal and, within 20 days, any documents relied on in making the 
decision; and
    (b) To advise the Indian tribe or tribal organization in writing of 
the rights described in Sec. 900.31.

[[Page 1098]]



Sec. 900.30  When the Secretary declines all or a portion of a proposal, 
is the Secretary required to provide an Indian tribe or tribal organization 
with technical assistance?

    Yes. The Secretary shall provide additional technical assistance to 
overcome the stated objections, in accordance with section 102(b) of the 
Act, and shall provide any necessary requested technical assistance to 
develop any modifications to overcome the Secretary's stated objections.



Sec. 900.31  When the Secretary declines all or a portion of a proposal, 
is an Indian tribe or tribal organization entitled to any appeal?

    Yes. The Indian tribe or tribal organization is entitled to an 
appeal on the objections raised by the Secretary, with an agency hearing 
on the record, and the right to engage in full discovery relevant to any 
issue raised in the matter. The procedures for appeals are in subpart L 
of these regulations. Alternatively, at its option the Indian tribe or 
tribal organization has the right to sue in Federal district court to 
challenge the Secretary's decision.



Sec. 900.32  Can the Secretary decline an Indian tribe or tribal 
organization's proposed successor annual funding agreement?

    No. If it is substantially the same as the prior annual funding 
agreement (except for funding increases included in appropriations acts 
or funding reductions as provided in section 106(b) of the Act) and the 
contract is with DHHS or the BIA, the Secretary shall approve and add to 
the contract the full amount of funds to which the contractor is 
entitled, and may not decline, any portion of a successor annual funding 
agreement. Any portion of an annual funding agreement proposal which is 
not substantially the same as that which was funded previously (e.g., a 
redesign proposal; waiver proposal; different proposed funding amount; 
or different program, service, function, or activity), or any annual 
funding agreement proposal which pertains to a contract with an agency 
of DOI other than the BIA, is subject to the declination criteria and 
procedures in subpart E. If there is a disagreement over the 
availability of appropriations, the Secretary may decline the proposal 
in part under the procedure in subpart E.



Sec. 900.33  Are all proposals to renew term contracts subject to the 
declination criteria?

    Department of Health and Human Services and the Bureau of Indian 
Affairs will not review the renewal of a term contract for declination 
issues where no material and substantial change to the scope or funding 
of a program, functions, services, or activities has been proposed by 
the Indian tribe or tribal organization. Proposals to renew term 
contracts with DOI agencies other than the Bureau of Indian Affairs may 
be reviewed under the declination criteria.



Subpart F_Standards for Tribal or Tribal Organization Management Systems

                                 General



Sec. 900.35  What is the purpose of this subpart?

    This subpart contains the minimum standards for the management 
systems used by Indian tribes or tribal organizations when carrying out 
self-determination contracts. It provides standards for an Indian tribe 
or tribal organization's financial management system, procurement 
management system, and property management system.



Sec. 900.36  What requirements are imposed upon Indian tribes or tribal 
organizations by this subpart?

    When carrying out self-determination contracts, Indian tribes and 
tribal organizations shall develop, implement, and maintain systems that 
meet these minimum standards, unless one or more of the standards have 
been waived, in whole or in part, under section 107(e) of the Act and 
subpart K.



Sec. 900.37  What provisions of Office of Management and Budget (OMB) 
circulars or the ``common rule'' apply to self-determination contracts?

    The only provisions of OMB Circulars and the only provisions of the 
``common rule'' that apply to self-determination contracts are the 
provisions

[[Page 1099]]

adopted in these regulations, those expressly required or modified by 
the Act, and those negotiated and agreed to in a self-determination 
contract.



Sec. 900.38  Do these standards apply to the subcontractors of an Indian 
tribe or tribal organization carrying out a self-determination contract?

    An Indian tribe or tribal organization may require that some or all 
of the standards in this subpart be imposed upon its subcontractors when 
carrying out a self-determination contract.



Sec. 900.39  What is the difference between a standard and a system?

    (a) Standards are the minimum baseline requirements for the 
performance of an activity. Standards establish the ``what'' that an 
activity should accomplish.
    (b) Systems are the procedural mechanisms and processes for the day-
to-day conduct of an activity. Systems are ``how'' the activity will be 
accomplished.



Sec. 900.40  When are Indian tribe or tribal organization management 
standards and management systems evaluated?

    (a) Management standards are evaluated by the Secretary when the 
Indian tribe or tribal organization submits an initial contract 
proposal.
    (b) Management systems are evaluated by an independent auditor 
through the annual single agency audit report that is required by the 
Act and OMB Circular A-128.



Sec. 900.41  How long must an Indian tribe or tribal organization keep 
management system records?

    The Indian tribe or tribal organization must retain financial, 
procurement and property records for the minimum periods described 
below. Electronic, magnetic or photographic records may be substituted 
for hard copies.
    (a) Financial records. Financial records include documentation of 
supporting costs incurred under the contract. These records must be 
retained for three years from the date of submission of the single audit 
report to the Secretary.
    (b) Procurement records. Procurement records include solicitations, 
purchase orders, contracts, payment histories and records applicable of 
significant decisions. These records must be retained for three years 
after the Indian tribe or tribal organization or subcontractors make 
final payment and all other pending matters are closed.
    (c) Property management records. Property management records of real 
and personal property transactions must be retained for three years from 
the date of disposition, replacement, or transfer.
    (d) Litigation, audit exceptions and claims. Records pertaining to 
any litigation, audit exceptions or claims requiring management systems 
data must be retained until the action has been completed.

               Standards for Financial Management Systems



Sec. 900.42  What are the general financial management system standards 
that apply to an Indian tribe carrying out a self-determination contract?

    An Indian tribe shall expend and account for contract funds in 
accordance with all applicable tribal laws, regulations, and procedures.



Sec. 900.43  What are the general financial management system standards 
that apply to a tribal organization carrying out a self-determination contract?

    A tribal organization shall expend and account for contract funds in 
accordance with the procedures of the tribal organization.



Sec. 900.44  What minimum general standards apply to all Indian tribe 
or tribal organization financial management systems when carrying out 
a self-determination contract?

    The fiscal control and accounting procedures of an Indian tribe or 
tribal organization shall be sufficient to:
    (a) Permit preparation of reports required by a self-determination 
contract and the Act; and
    (b) Permit the tracing of contract funds to a level of expenditure 
adequate to establish that they have not been used in violation of any 
restrictions or prohibitions contained in any

[[Page 1100]]

statute that applies to the self-determination contract.



Sec. 900.45  What specific minimum requirements shall an Indian tribe 
or tribal organization's financial management system contain to meet 
these standards?

    An Indian tribe or tribal organization's financial management system 
shall include provisions for the following seven elements.
    (a) Financial reports. The financial management system shall provide 
for accurate, current, and complete disclosure of the financial results 
of self-determination contract activities. This includes providing the 
Secretary a completed Financial Status Report, SF 269A, as negotiated 
and agreed to in the self-determination contract.
    (b) Accounting records. The financial management system shall 
maintain records sufficiently detailed to identify the source and 
application of self-determination contract funds received by the Indian 
tribe or tribal organization. The system shall contain sufficient 
information to identify contract awards, obligations and unobligated 
balances, assets, liabilities, outlays, or expenditures and income.
    (c) Internal controls. The financial management system shall 
maintain effective control and accountability for all self-determination 
contract funds received and for all Federal real property, personal 
property, and other assets furnished for use by the Indian tribe or 
tribal organization under the self-determination contract.
    (d) Budget controls. The financial management system shall permit 
the comparison of actual expenditures or outlays with the amounts 
budgeted by the Indian tribe or tribal organization for each self-
determination contract.
    (e) Allowable costs. The financial management system shall be 
sufficient to determine the reasonableness, allowability, and 
allocability of self-determination contract costs based upon the terms 
of the self-determination contract and the Indian tribe or tribal 
organization's applicable OMB cost principles, as amended by the Act and 
these regulations. (The following chart lists certain OMB Circulars and 
suggests the entities that may use each, but the final selection of the 
applicable circular may differ from those shown, as agreed to by the 
Indian tribe or tribal organization and the Secretary. Agreements 
between an Indian tribe or tribal organization and the Secretary 
currently in place do not require renegotiation.) Copies of these 
circulars are available from the Executive Office of the President, 
Publications Service, 725 17th Street N. W., Washington, D. C. 20503.

------------------------------------------------------------------------
      Type of tribal organization          Applicable OMB cost circular
------------------------------------------------------------------------
Tribal Government......................  A-87, ``Cost Principles for
                                          State, Local and Indian Tribal
                                          Governments.''
Tribal private non-profit other than:    A-122, ``Cost Principles for
 (1) an institution of higher             Non-Profit Organizations.''
 education, (2) a hospital, or (3) an
 organization named in OMB Circular A-
 122 as not subject to that circular.
Tribal educational institution.........  A-21, ``Cost Principles for
                                          Educational Institutions.''
------------------------------------------------------------------------

    (f) Source documentation. The financial management system shall 
contain accounting records that are supported by source documentation, 
e.g., canceled checks, paid bills, payroll records, time and attendance 
records, contract award documents, purchase orders, and other primary 
records that support self-determination contract fund expenditures.
    (g) Cash management. The financial management system shall provide 
for accurate, current, and complete disclosure of cash revenues 
disbursements, cash-on-hand balances, and obligations by source and 
application for each Indian tribe or tribal organization, and 
subcontractor if applicable, so that complete and accurate cash 
transactions may be prepared as required by the self-determination 
contract.

[[Page 1101]]



Sec. 900.46  What requirements are imposed upon the Secretary for 
financial management by these standards?

    The Secretary shall establish procedures, consistent with Treasury 
regulations as modified by the Act, for the transfer of funds from the 
United States to the Indian tribe or tribal organization in strict 
compliance with the self-determination contract and the annual funding 
agreement.

                 Procurement Management System Standards



Sec. 900.47  When procuring property or services with self-determination contract 
funds, can an Indian tribe or tribal organization follow the same procurement 
policies and procedures applicable to other Indian tribe or tribal organization funds?

    Indian tribes and tribal organizations shall have standards that 
conform to the standards in this subpart. If the Indian tribe or tribal 
organization relies upon standards different than those described below, 
it shall identify the standards it will use as a proposed waiver in the 
initial contract proposal or as a waiver request to an existing 
contract.



Sec. 900.48  If the Indian tribe or tribal organization does not propose 
different standards, what basic standards shall the Indian tribe or tribal 
organization follow?

    (a) The Indian tribe or tribal organization shall ensure that its 
vendors and/or subcontractors perform in accordance with the terms, 
conditions, and specifications of their contracts or purchase orders.
    (b) The Indian tribe or tribal organization shall maintain written 
standards of conduct governing the performance of its employees who 
award and administer contracts.
    (1) No employee, officer, elected official, or agent of the Indian 
tribe or tribal organization shall participate in the selection, award, 
or administration of a procurement supported by Federal funds if a 
conflict of interest, real or apparent, would be involved.
    (2) An employee, officer, elected official, or agent of an Indian 
tribe or tribal organization, or of a subcontractor of the Indian tribe 
or tribal organization, is not allowed to solicit or accept gratuities, 
favors, or anything of monetary value from contractors, potential 
contractors, or parties to sub-agreements, with the following 
exemptions. The Indian tribe or tribal organization may exempt a 
financial interest that is not substantial or a gift that is an 
unsolicited item of nominal value.
    (3) These standards shall also provide for penalties, sanctions, or 
other disciplinary actions for violations of the standards.
    (c) The Indian tribe or tribal organization shall review proposed 
procurements to avoid buying unnecessary or duplicative items and ensure 
the reasonableness of the price. The Indian tribe or tribal organization 
should consider consolidating or breaking out procurement to obtain more 
economical purchases. Where appropriate, the Indian tribe or tribal 
organization shall compare leasing and purchasing alternatives to 
determine which is more economical.
    (d) The Indian tribe or tribal organization shall conduct all major 
procurement transactions by providing full and open competition, to the 
extent necessary to assure efficient expenditure of contract funds and 
to the extent feasible in the local area.
    (1) Indian tribes or tribal organizations shall develop their own 
definition for ``major procurement transactions.''
    (2) As provided in sections 7 (b) and (c) of the Act, Indian 
preference and tribal preferences shall be applied in any procurement 
award.
    (e) The Indian tribe or tribal organization shall make procurement 
awards only to responsible entities who have the ability to perform 
successfully under the terms and conditions of the proposed procurement. 
In making this judgment, the Indian tribe or tribal organization will 
consider such matters as the contractor's integrity, its compliance with 
public policy, its record of past performance, and its financial and 
technical resources.
    (f) The Indian tribe or tribal organization shall maintain records 
on the significant history of all major procurement transactions. These 
records may include, but are not limited to,

[[Page 1102]]

the rationale for the method of procurement, the selection of contract 
type, the contract selection or rejection, and the basis for the 
contract price.
    (g) The Indian tribe or tribal organization is solely responsible, 
using good administrative practice and sound business judgment, for 
processing and settling all contractual and administrative issues 
arising out of a procurement. These issues include, but are not limited 
to, source evaluation, protests, disputes, and claims.
    (1) The settlement of any protest, dispute, or claim shall not 
relieve the Indian tribe or tribal organization of any obligations under 
a self-determination contract.
    (2) Violations of law shall be referred to the tribal or Federal 
authority having proper jurisdiction.



Sec. 900.49  What procurement standards apply to subcontracts?

    Each subcontract entered into under the Act shall at a minimum:
    (a) Be in writing;
    (b) Identify the interested parties, their authorities, and the 
purposes of the contract;
    (c) State the work to be performed under the contract;
    (d) State the process for making any claim, the payments to be made, 
and the terms of the contract, which shall be fixed; and
    (e) Be subject to sections 7 (b) and (c) of the Act.



Sec. 900.50  What Federal laws, regulations, and Executive Orders apply 
to subcontractors?

    Certain provisions of the Act as well as other applicable Federal 
laws, regulations, and Executive Orders apply to subcontracts awarded 
under self-determination contracts. As a result, subcontracts should 
contain a provision informing the recipient that their award is funded 
with Indian Self-Determination Act funds and that the recipient is 
responsible for identifying and ensuring compliance with applicable 
Federal laws, regulations, and Executive Orders. The Secretary and the 
Indian tribe or tribal organization may, through negotiation, identify 
all or a portion of such requirements in the self-determination contract 
and, if so identified, these requirements should be identified in 
subcontracts.

                  Property Management System Standards



Sec. 900.51  What is an Indian tribe or tribal organization's property 
management system expected to do?

    An Indian tribe or tribal organization's property management system 
shall account for all property furnished or transferred by the Secretary 
for use under a self-determination contract or acquired with contract 
funds. The property management system shall contain requirements for the 
use, care, maintenance, and disposition of Federally-owned and other 
property as follows:
    (a) Where title vests in the Indian tribe, in accordance with tribal 
law and procedures; or
    (b) In the case of a tribal organization, according to the internal 
property procedures of the tribal organization.



Sec. 900.52  What type of property is the property management system 
required to track?

    The property management system of the Indian tribe or tribal 
organization shall track:
    (a) Personal property with an acquisition value in excess of $5,000 
per item;
    (b) Sensitive personal property, which is all personal property that 
is subject to theft and pilferage, as defined by the Indian tribe or 
tribal organization. All firearms shall be considered sensitive personal 
property; and
    (c) Real property provided by the Secretary for use under the 
contract.



Sec. 900.53  What kind of records shall the property management system 
maintain?

    The property management system shall maintain records that 
accurately describe the property, including any serial number or other 
identification number. These records should contain information such as 
the source, titleholder, acquisition date, cost, share of Federal 
participation in the cost, location, use and condition of the property, 
and the date of disposal and sale price, if any.

[[Page 1103]]



Sec. 900.54  Should the property management system prescribe internal 
controls?

    Yes. Effective internal controls should include procedures:
    (a) For the conduct of periodic inventories;
    (b) To prevent loss or damage to property; and
    (c) To ensure that property is used for an Indian tribe or tribal 
organization's self-determination contract(s) until the property is 
declared excess to the needs of the contract consistent with the Indian 
tribe or tribal organization's property management system.



Sec. 900.55  What are the standards for inventories?

    A physical inventory should be conducted at least once every 2 
years. The results of the inventory shall be reconciled with the Indian 
tribe or tribal organization's internal property and accounting records.



Sec. 900.56  What maintenance is required for property?

    Required maintenance includes the performance of actions necessary 
to keep the property in good working condition, the procedures 
recommended by equipment manufacturers, and steps necessary to protect 
the interests of the contractor and the Secretary in any express 
warranties or guarantees covering the property.



Sec. 900.57  What if the Indian tribe or tribal organization chooses 
not to take title to property furnished or acquired under the contract?

    If the Indian tribe or tribal organization chooses not to take title 
to property furnished by the government or acquired with contract funds, 
title to the property remains vested in the Secretary. A list of 
Federally-owned property to be used under the contract shall be included 
in the contract.



Sec. 900.58  Do the same accountability and control procedures described 
above apply to Federal property?

    Yes, except that requirements for the inventory and disposal of 
Federal property are different.



Sec. 900.59  How are the inventory requirements for Federal property 
different than for tribal property?

    There are three additional requirements:
    (a) The Indian tribe or tribal organization shall conduct a physical 
inventory of the Federally-owned property and reconcile the results with 
the Indian tribe or tribal organization's property records annually, 
rather than every 2 years;
    (b) Within 90 days following the end of an annual funding agreement, 
the Indian tribe or tribal organization shall certify and submit to the 
Secretary an annual inventory of all Federally-owned real and personal 
property used in the contracted program; and
    (c) The inventory shall report any increase or decrease of $5,000 or 
more in the value of any item of real property.



Sec. 900.60  How does an Indian tribe or tribal organization dispose of 
Federal personal property?

    The Indian tribe or tribal organization shall report to the 
Secretary in writing any Federally-owned personal property that is worn 
out, lost, stolen, damaged beyond repair, or no longer needed for the 
performance of the contract.
    (a) The Indian tribe or tribal organization shall state whether the 
Indian tribe or tribal organization wants to dispose of or return the 
property.
    (b) If the Secretary does not respond within 60 days, the Indian 
tribe or tribal organization may return the property to the Secretary, 
who shall accept transfer, custody, control, and responsibility for the 
property (together with all associated costs).



          Subpart G_Programmatic Reports and Data Requirements



Sec. 900.65  What programmatic reports and data shall the Indian tribe 
or tribal organization provide?

    Unless required by statute, there are no mandatory reporting 
requirements. Each Indian tribe or tribal organization shall negotiate 
with the Secretary the type and frequency of program narrative and 
program data report(s)

[[Page 1104]]

which respond to the needs of the contracting parties and that are 
appropriate for the purposes of the contract. The extent of available 
resources will be a consideration in the negotiations.



Sec. 900.66  What happens if the Indian tribe or tribal organization 
and the Secretary cannot come to an agreement concerning the type and/or 
frequency of program narrative and/or program data report(s)?

    Any disagreements over reporting requirements are subject to the 
declination criteria and procedures in section 102 of the Act and 
subpart E.



Sec. 900.67  Will there be a uniform data set for all IHS programs?

    IHS will work with Indian tribe or tribal organization 
representatives to develop a mutually defined uniform subset of data 
that is consistent with Congressional intent, imposes a minimal 
reporting burden, and which responds to the needs of the contracting 
parties.



Sec. 900.68  Will this uniform data set be required of all Indian tribe 
or tribal organizations contracting with the IHS under the Act?

    No. The uniform data set, applicable to the services to be 
performed, will serve as the target for the Secretary and the Indian 
tribes or tribal organizations during individual negotiations on program 
data reporting requirements.



      Subpart H_Lease of Tribally-Owned Buildings by the Secretary



Sec. 900.69  What is the purpose of this subpart?

    Section 105(l) of the Act requires the Secretary, at the request of 
an Indian tribe or tribal organization, to enter into a lease with the 
Indian tribe or tribal organization for a building owned or leased by 
the tribe or tribal organization that is used for administration or 
delivery of services under the Act. The lease is to include compensation 
as provided in the statute as well as ``such other reasonable expenses 
that the Secretary determines, by regulation, to be allowable.'' This 
subpart contains requirements for these leases.



Sec. 900.70  What elements are included in the compensation for a lease entered into between the 

Secretary and an Indian tribe or tribal organization for a building owned or leased by the Indian 
tribe or tribal organization that is used for administration or delivery of services under the Act?

    To the extent that no element is duplicative, the following elements 
may be included in the lease compensation:
    (a) Rent (sublease);
    (b) Depreciation and use allowance based on the useful life of the 
facility based on acquisition costs not financed with Federal funds;
    (c) Contributions to a reserve for replacement of facilities;
    (d) Principal and interest paid or accrued;
    (e) Operation and maintenance expenses, to the extent not otherwise 
included in rent or use allowances, including, but not limited to, the 
following:
    (1) Water, sewage;
    (2) Utilities;
    (3) Fuel;
    (4) Insurance;
    (5) Building management supervision and custodial services;
    (6) Custodial and maintenance supplies;
    (7) Pest control;
    (8) Site maintenance (including snow and mud removal);
    (9) Trash and waste removal and disposal;
    (10) Fire protection/fire fighting services and equipment;
    (11) Monitoring and preventive maintenance of building structures 
and systems, including but not limited to:
    (i) Heating/ventilation/air conditioning;
    (ii) Plumbing;
    (iii) Electrical;
    (iv) Elevators;
    (v) Boilers;
    (vi) Fire safety system;
    (vii) Security system; and
    (viii) Roof, foundation, walls, floors.
    (12) Unscheduled maintenance;
    (13) Scheduled maintenance (including replacement of floor 
coverings, lighting fixtures, repainting);
    (14) Security services;
    (15) Management fees; and

[[Page 1105]]

    (16) Other reasonable and necessary operation or maintenance costs 
justified by the contractor;
    (f) Repairs to buildings and equipment;
    (g) Alterations needed to meet contract requirements;
    (h) Other reasonable expenses; and
    (i) The fair market rental for buildings or portions of buildings 
and land, exclusive of the Federal share of building construction or 
acquisition costs, or the fair market rental for buildings constructed 
with Federal funds exclusive of fee or profit, and for land.



Sec. 900.71  What type of reserve fund is anticipated for funds 
deposited into a reserve for replacement of facilities as specified in 
Sec. 900.70(c)?

    Reserve funds must be accounted for as a capital project fund or a 
special revenue fund.



Sec. 900.72  Who is the guardian of the fund and may the funds be 
invested?

    (a) The Indian tribe or tribal organization is the guardian of the 
fund.
    (b) Funds may be invested in accordance with the laws, regulations 
and policies of the Indian tribe or tribal organization subject to the 
terms of the lease or the self-determination contract.



Sec. 900.73  Is a lease with the Secretary the only method available 
to recover the types of cost described in Sec. 900.70?

    No. With the exception of paragraph (i) in Sec. 900.70, the same 
types of costs may be recovered in whole or in part under section 106(a) 
of the Act as direct or indirect charges to a self-determination 
contract.



Sec. 900.74  How may an Indian tribe or tribal organization propose a 
lease to be compensated for the use of facilities?

    There are three options available:
    (a) The lease may be based on fair market rental.
    (b) The lease may be based on a combination of fair market rental 
and paragraphs (a) through (h) of Sec. 900.70, provided that no element 
of expense is duplicated in fair market rental.
    (c) The lease may be based on paragraphs (a) through (h) of Sec. 
900.70 only.



                 Subpart I_Property Donation Procedures

                                 General



Sec. 900.85  What is the purpose of this subpart?

    This subpart implements section 105(f) of the Act regarding donation 
of Federal excess and surplus property to Indian tribes or tribal 
organizations and acquisition of property with funds provided under a 
self-determination contract or grant.



Sec. 900.86  How will the Secretary exercise discretion to acquire and 
donate BIA or IHS excess property and excess and surplus Federal property 
to an Indian tribe or tribal organization?

    The Secretary will exercise discretion in a way that gives maximum 
effect to the requests of Indian tribes or tribal organizations for 
donation of BIA or IHS excess property and excess or surplus Federal 
property, provided that the requesting Indian tribe or tribal 
organization shall state how the requested property is appropriate for 
use for any purpose for which a self-determination contract or grant is 
authorized.

                      Government-Furnished Property



Sec. 900.87  How does an Indian tribe or tribal organization obtain title 
to property furnished by the Federal government for use in the performance of a 
contract or grant agreement pursuant to section 105(f)(2)(A) of the Act?

    (a) For government-furnished personal property made available to an 
Indian tribe or tribal organization before October 25, 1994:
    (1) The Secretary, in consultation with each Indian tribe or tribal 
organization, shall develop a list of the property used in a self-
determination contract.
    (2) The Indian tribe or tribal organization shall indicate any items 
on the list to which the Indian tribe or tribal organization wants the 
Secretary to retain title.

[[Page 1106]]

    (3) The Secretary shall provide the Indian tribe or tribal 
organization with any documentation needed to transfer title to the 
remaining listed property to the Indian tribe or tribal organization.
    (b) For government-furnished real property made available to an 
Indian tribe or tribal organization before October 25, 1994:
    (1) The Secretary, in consultation with the Indian tribe or tribal 
organization, shall develop a list of the property furnished for use in 
a self-determination contract.
    (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 or tribal 
organization desires to take title to any real property on the list, the 
Indian tribe or tribal organization shall inform the Secretary, who 
shall take such steps as necessary to transfer title to the Indian tribe 
or tribal organization.
    (c) For government-furnished real and personal property made 
available to an Indian tribe or tribal organization on or after October 
25, 1994:
    (1) The Indian tribe or tribal organization shall take title to all 
property unless the Indian tribe or tribal organization 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).



Sec. 900.88  What should the Indian tribe or tribal organization do if 
it wants to obtain title to 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 or tribal 
organization 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 or tribal organization requests fee title, 
the Secretary shall take the necessary action under Federal law and 
regulations to transfer fee title.
    (b) If the Indian tribe or tribal organization requests beneficial 
ownership with fee title to be held by the United States in trust for an 
Indian tribe:
    (1) The Indian tribe or tribal organization 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) If the request is submitted to the Secretary of Health and Human 
Services for land under the jurisdiction of that Secretary, the 
Secretary shall take all necessary steps to effect a transfer of the 
land to the Secretary of the Interior and shall also forward the Indian 
tribe or tribal organization's request and the tribe's resolution.
    (3) The Secretary of the Interior shall expeditiously process all 
requests in accordance with applicable Federal law and regulations.
    (4) The Secretary shall not require the Indian tribe or tribal 
organization to furnish any information in support of a request other 
than that required by law or regulation.



Sec. 900.89  When may the Secretary elect to reacquire government-furnished 
property whose title has been transferred to an Indian tribe or tribal organization?

    (a) Except as provided in paragraph (b) of this section, when a 
self-determination contract or grant agreement, or portion thereof, is 
retroceded, reassumed, terminated, or expires, the Secretary shall have 
the option to take title to any item of government-furnished property:
    (1) That title has been transferred to an Indian tribe or tribal 
organization;
    (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 or tribal organization in excess 
of $5,000.
    (b) If property referred to in paragraph (a) of this section is 
shared between one or more ongoing contracts or grant agreements and a 
contract or grant 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 contractor or grantee using 
such property shall

[[Page 1107]]

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



Sec. 900.90  Does government-furnished real property to which an Indian 
tribe or tribal organization has taken title continue to be eligible for 
facilities operation and maintenance funding from the Secretary?

    Yes.

                      Contractor-Purchased Property



Sec. 900.91  Who takes title to property purchased with funds under a 
self-determination contract or grant agreement pursuant to section 
105(f)(2)(A) of the Act?

    The contractor takes title to such property, unless the contractor 
chooses to have the United States take title. In that event, the 
contractor must inform the Secretary of the purchase and identify the 
property and its location in such manner as the contractor and the 
Secretary deem necessary. A request for the United States to take title 
to any item of contractor-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.



Sec. 900.92  What should the Indian tribe or tribal organization do 
if it wants contractor-purchased real property to be taken into trust?

    The contractor shall submit a resolution of support from the 
governing body of the Indian tribe in which the beneficial ownership is 
to be registered. If the request to take contractor-purchased real 
property into trust is submitted to the Secretary of Health and Human 
Services, that Secretary shall transfer the request to the Secretary of 
the Interior. The Secretary of the Interior shall expeditiously process 
all requests in accord with applicable Federal law and regulation.



Sec. 900.93  When may the Secretary elect to acquire title to 
contractor-purchased property?

    (a) Except as provided in paragraph (b) of this section when a self-
determination contract or grant agreement, or portion thereof, is 
retroceded, reassumed, terminated, or expires, the Secretary shall have 
the option to take title to any item of government-furnished property:
    (1) Whose title has been transferred to an Indian tribe or tribal 
organization;
    (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 or tribal organization, in excess 
of $5,000.
    (b) If property referred to in paragraph (a) of this section is 
shared between one or more ongoing contracts or grant agreements and a 
contract or grant 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 contractor or grantee using 
such property shall negotiate an acceptable arrangement for continued 
sharing of such property and for the retention or transfer of title.



Sec. 900.94  Is contractor-purchased real property to which an Indian 
tribe or tribal organization holds title eligible for facilities operation 
and maintenance funding from the Secretary?

    Yes.

                       BIA and IHS Excess Property



Sec. 900.95  What is BIA or IHS excess property?

    BIA or IHS excess property means property under the jurisdiction of 
the BIA or IHS that is excess to the agency's needs and the discharge of 
its responsibilities.



Sec. 900.96  How can Indian tribes or tribal organizations learn about 
BIA and IHS excess property?

    The Secretary shall not less than annually send to Indian tribes and 
tribal organizations a listing of all excess BIA or IHS personal 
property before reporting the property to GSA or to any other Federal 
agency as excess. The listing shall identify the agency official to whom 
a request for donation shall be submitted.

[[Page 1108]]



Sec. 900.97  How can an Indian tribe or tribal organization acquire excess 
BIA or IHS property?

    (a) The Indian tribe or tribal organization shall submit to the 
appropriate Secretary a request for specific property that includes a 
statement of how the property is intended for use in connection with a 
self-determination contract or grant. The Secretary shall expeditiously 
process the request and shall exercise discretion in a way that gives 
maximum effect to the request of Indian tribes or tribal organizations 
for the donation of excess BIA or IHS property.
    (b) If more than one request for the same item of personal property 
is submitted, the Secretary shall award the item to the requestor whose 
request is received on the earliest date. If two or more requests are 
received on the same date, the Secretary shall award the item to the 
requestor with the lowest transportation costs. The Secretary shall make 
the donation as expeditiously as possible.
    (c) If more than one request for the same parcel of real property is 
submitted, the Secretary shall award the property to the Indian tribe or 
tribal organization whose reservation or trust land is closest to the 
real property requested.



Sec. 900.98  Who takes title to excess BIA or IHS property donated to 
an Indian tribe or tribal organization?

    The Indian tribe or tribal organization takes title to donated 
excess BIA or IHS property. The Secretary shall provide the Indian tribe 
or tribal organization with all documentation needed to vest title in 
the Indian tribe or tribal organization.



Sec. 900.99  Who takes title to any land that is part of excess BIA or 
IHS real property donated to an Indian tribe or tribal organization?

    (a) If an Indian tribe or tribal organization requests donation of 
fee title to excess real property that includes land not held in trust 
for an Indian tribe, the Indian tribe or tribal organization shall so 
specify in its request for donation. The Secretary shall take the 
necessary action under Federal law and regulations to transfer the title 
to the Indian tribe or tribal organization.
    (b) If an Indian tribe or tribal organization asks the Secretary to 
donate excess real property that includes land and requests that fee 
title to the land be held by the United States in trust for an Indian 
tribe, the requestor shall submit a resolution of support from the 
governing body of the Indian tribe in which the beneficial ownership is 
to be registered.
    (1) If the donation request is submitted to the Secretary of Health 
and Human Services, that Secretary shall take all steps necessary to 
transfer the land to the Secretary of the Interior with the Indian tribe 
or tribal organization's request and the Indian tribe's resolution. The 
Secretary of the Interior shall expeditiously process all requests in 
accordance with applicable Federal law and regulations.
    (2) The Secretary shall not require the Indian tribe or tribal 
organization to furnish any information in support of a request other 
than that required by law or regulation.



Sec. 900.100  May the Secretary elect to reacquire excess BIA or IHS 
property whose title has been transferred to an Indian tribe or tribal 
organization?

    Yes. When a self-determination contract or grant agreement, or 
portion--thereof, is retroceded, reassumed, terminated, or expires, the 
Secretary shall have the option to take title to any item of the 
property;
    (a) Except as provided in paragraph (b) of this section when a self-
determination contract or grant agreement, or portion thereof, is 
retroceded, reassumed, terminated, or expires, the Secretary shall have 
the option to take title to any item of government-furnished property:
    (1) Whose title has been transferred to an Indian tribe or tribal 
organization;
    (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 or tribal organization, in excess 
of $5,000.

[[Page 1109]]

    (b) To the extent that any property referred to in paragraph (a) of 
this section is shared between one or more ongoing contracts or grant 
agreements and a contract or grant 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 
contractor or grantee using such property shall negotiate an acceptable 
arrangement for continued sharing of such property and for the retention 
or transfer of title.



Sec. 900.101  Is excess BIA or IHS real property to which an Indian 
tribe or tribal organization has taken title eligible for facilities 
operation and maintenance funding from the Secretary?

    Yes.

         Excess or Surplus Government Property of Other Agencies



Sec. 900.102  What is excess or surplus government property of other 
agencies?

    (a) ``Excess government property'' is real or personal property 
under the control of a Federal agency, other than BIA and IHS, which is 
not required for the agency's needs and the discharge of its 
responsibilities.
    (b) ``Surplus government property'' means excess real or personal 
property that is not required for the needs of and the discharge of the 
responsibilities of all Federal agencies that has been declared surplus 
by the General Services Administration (GSA).



Sec. 900.103  How can Indian tribes or tribal organizations learn about 
property that has been designated as excess or surplus government property?

    The Secretary shall furnish, not less than annually, to Indian 
tribes or tribal organizations listings of such property as may be made 
available from time to time by GSA or other Federal agencies, and shall 
obtain listings upon the request of an Indian tribe or tribal 
organization.



Sec. 900.104  How may an Indian tribe or tribal organization receive 
excess or surplus government property of other agencies?

    (a) The Indian tribe or tribal organization shall file a request for 
specific property with the Secretary, and shall state how the property 
is appropriate for use for a purpose for which a self-determination 
contract or grant is authorized under the Act.
    (b) The Secretary shall expeditiously process such request and shall 
exercise discretion to acquire the property in the manner described in 
Sec. 900.86 of this subpart.
    (c) Upon approval of the Indian tribe or tribal organization's 
request, the Secretary shall immediately request acquisition of the 
property from the GSA or the holding agency, as appropriate, by 
submitting the necessary documentation in order to acquire the requested 
property prior to the expiration of any ``freeze'' placed on the 
property by the Indian tribe or tribal organization.
    (d) The Secretary shall specify that the property is requested for 
donation to an Indian tribe or tribal organization pursuant to authority 
provided in section 105(f)(3) of the Act.
    (e) The Secretary shall request a waiver of any fees for transfer of 
the property in accordance with applicable Federal regulations.



Sec. 900.105  Who takes title to excess or surplus Federal property 
donated to an Indian tribe or tribal organization?

    (a) Title to any donated excess or surplus Federal personal property 
shall vest in the Indian tribe or tribal organization upon taking 
possession.
    (b) Legal title to donated excess or surplus Federal real property 
shall vest in the Indian tribe or tribal organization upon acceptance by 
the Indian tribe or tribal organization of a proper deed of conveyance.
    (c) If the donation of excess or surplus Federal real property 
includes land owned by the United States but not held in trust for an 
Indian tribe, the Indian tribe or tribal organization shall specify 
whether it wants to acquire fee title to the land or whether it

[[Page 1110]]

wants the land to be held in trust for the benefit of an Indian tribe.
    (1) If the Indian tribe or tribal organization requests fee title, 
the Secretary shall take the necessary action under Federal law and 
regulations to transfer fee title to the Indian tribe or tribal 
organization.
    (2) If the Indian tribe or tribal organization requests beneficial 
ownership with fee title to be held by the United States in trust for an 
Indian tribe:
    (i) The Indian tribe or tribal organization 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.
    (ii) If the donation request of the Indian tribe or tribal 
organization is submitted to the Secretary of Health and Human Services, 
that Secretary shall take all necessary steps to acquire the land and 
transfer it to the Secretary of the Interior and shall also forward the 
Indian tribe or tribal organization's request and the Indian tribe's 
resolution.
    (iii) The Secretary of the Interior shall expeditiously process all 
requests in accord with applicable Federal law and regulations.
    (iv) The Secretary shall not require submission of any information 
other than that required by Federal law and regulation.



Sec. 900.106  If a contract or grant agreement or portion thereof is retroceded, reassumed, 

terminated, or expires, may the Secretary reacquire title to excess or surplus Federal 
property of other agencies that was donated to an Indian tribe or tribal organization?

    No. Section 105(f)(3) of the Act does not give the Secretary the 
authority to reacquire title to excess or surplus government property 
acquired from other agencies for donation to an Indian tribe or tribal 
organization.

                Property Eligible for Replacement Funding



Sec. 900.107  What property to which an Indian tribe or tribal 
organization obtains title under this subpart is eligible for 
replacement funding?

    Government-furnished property, contractor-purchased property and 
excess BIA and IHS property donated to an Indian tribe or tribal 
organization to which an Indian tribe or tribal organization holds title 
shall remain eligible for replacement funding to the same extent as if 
title to that property were held by the United States.



                         Subpart J_Construction



Sec. 900.110  What does this subpart cover?

    (a) This subpart establishes requirements for issuing fixed-price or 
cost-reimbursable contracts to provide: design, construction, repair, 
improvement, expansion, replacement, erection of new space, or 
demolition and other related work for one or more Federal facilities. It 
applies to tribal facilities where the Secretary is authorized by law to 
design, construct and/or renovate, or make improvements to such tribal 
facilities.
    (b) Activities covered by construction contracts under this subpart 
are: design and architectural/engineering services, construction project 
management, and the actual construction of the building or facility in 
accordance with the construction documents, including all labor, 
materials, equipment, and services necessary to complete the work 
defined in the construction documents.
    (1) Such contracts may include the provision of movable equipment, 
telecommunications and data processing equipment, furnishings (including 
works of art), and special purpose equipment, when part of a 
construction contract let under this subpart.
    (2) While planning services and construction management services as 
defined in Sec. 900.113 may be included in a construction contract 
under this subpart, they may also be contracted separately using the 
model agreement in section 108 of the Act.



Sec. 900.111  What activities of construction programs are contractible?

    The Secretary shall, upon the request of any Indian tribe or tribal 
organization authorized by tribal resolution, enter into a self-
determination contract to plan, conduct, and administer construction 
programs or portions thereof.

[[Page 1111]]



Sec. 900.112  What are construction phases?

    (a) Construction programs generally include the following activities 
in phases which can vary by funding source (an Indian tribe or tribal 
organization should contact its funding source for more information 
regarding the conduct of its program):
    (1) The preplanning phase. The phase during which an initial 
assessment and determination of project need is made and supporting 
information collected for presentation in a project application. This 
project application process is explained in more detail in Sec. 
900.122;
    (2) The planning phase. The phase during which planning services are 
provided. This phase can include conducting and preparing a detailed 
needs assessment, developing justification documents, completing and/or 
verifying master plans, conducting predesign site investigations and 
selection, developing budget cost estimates, conducting feasibility 
studies, and developing a project Program of Requirements (POR);
    (3) The design phase. The phase during which licensed design 
professional(s) using the POR as the basis for design of the project, 
prepare project plans, specifications, and other documents that are a 
part of the construction documents used to build the project. Site 
investigation and selection activities are completed in this phase if 
not conducted as part of the planning phase.
    (4) The construction phase. The phase during which the project is 
constructed. The construction phase includes providing the labor, 
materials, equipment, and services necessary to complete the work in 
accordance with the construction documents prepared as part of the 
design phase.
    (b) The following activities may be part of phases described in 
paragraphs (a)(2), (a)(3), and (a)(4) of this section:
    (1) Management; and
    (2) Environmental, archeological, cultural resource, historic 
preservation, and similar assessments and associated activities.



Sec. 900.113  Definitions.

    (a) Construction contract means a fixed-price or cost-reimbursement 
self-determination contract for a construction project, except that such 
term does not include any contract:
    (1) That is limited to providing planning services and construction 
management services (or a combination of such services);
    (2) For the Housing Improvement Program or roads maintenance program 
of the Bureau of Indian Affairs administered by the Secretary of the 
Interior; or
    (3) For the health facility maintenance and improvement program 
administered by the Secretary of Health and Human Services.
    (b) Construction management services (CMS) means activities limited 
to administrative support services; coordination; and monitoring 
oversight of the planning, design, and construction process. An Indian 
tribe or tribal organization's employee or construction management 
services consultant (typically an engineer or architect) performs such 
activities as:
    (1) Coordination and information exchange between the Indian tribe 
or tribal organization and the Federal government;
    (2) Preparation of Indian tribe or tribal organization's 
construction contract proposals;
    (3) Indian tribe or tribal organization subcontract scope of work 
identification and subcontract preparation, and competitive selection of 
Indian tribe or tribal organization construction contract subcontractors 
(see Sec. 900.110);
    (4) Review of work to ensure compliance with the POR and/or the 
construction contract. This does not involve construction project 
management as defined in paragraph (d) of this section.
    (c) Construction programs include programs for the planning, design, 
construction, repair, improvement, and expansion of buildings or 
facilities, including but not limited to, housing, law enforcement and 
detention facilities, sanitation and water systems, roads, schools, 
administration and health facilities, irrigation and agricultural work, 
water conservation, flood control, and port facilities, and 
environmental, archeological, cultural resource, historic preservation, 
and conduct of similar assessments.

[[Page 1112]]

    (d) Construction project management means direct responsibility for 
the construction project through day-to-day on-site management and 
administration of the project. Activities may include cost management, 
project budgeting, project scheduling, procurement services.
    (e) Design means services performed by licensed design professionals 
related to preparing drawings, specifications, and other design 
submissions specified in the contract, as well as services provided by 
or for licensed design professionals during the bidding/negotiating, 
construction, and operational phases of the project.
    (f) Planning services means activities undertaken to support agency 
and/or Congressional funding of a construction project. Planning 
services may include performing a needs assessment, completing and/or 
verifying master plans, developing justification documents, conducting 
pre-design site investigations, developing budget cost estimates, 
conducting feasibility studies as needed and completion of approved 
justification documents and a program of requirements (POR) for the 
project.
    (g) Program of Requirements (POR) is a planning document developed 
during the planning phase for an individual project. It provides 
background about the project; site information; programmatic needs; and, 
for facilities projects, a detailed room-by-room listing of spaces, 
including net and gross sizes, finish materials to be used, furnishings 
and equipment, and other information and design criteria on which to 
base the construction project documents.
    (h) Scope of work means the description of the work to be provided 
through a contract issued under this subpart and the methods and 
processes to be used to accomplish that work. A scope of work is 
typically developed based on criteria provided in a POR during the 
design phase, and project construction documents (plans and 
specifications) during the construction phase.



Sec. 900.114  Why is there a separate subpart in these regulations for 
construction contracts and grants?

    There is a separate subpart because the Act differentiates between 
construction contracts and the model agreement in section 108 of the Act 
which is required for contracting other activities. Construction 
contracts are separately defined in the Act and are subject to a 
separate proposal and review process.



Sec. 900.115  How do self-determination construction contracts relate 
to ordinary Federal procurement contracts?

    (a) A self-determination construction contract is a government-to-
government agreement that transfers control of the construction project, 
including administrative functions, to the contracting Indian tribe or 
tribal organization to facilitate effective and meaningful participation 
by the Indian tribe or tribal organization in planning, conducting, and 
administering the construction project, and so that the construction 
project is responsive to the true needs of the Indian community. The 
Secretary's role in the conduct of a contracted construction project is 
limited to the Secretary's responsibilities set out in Sec. 900.131.
    (b) Self-determination construction contracts are not traditional 
``procurement'' contracts.
    (1) With respect to a construction contract (or a subcontract of 
such a construction contract), the provisions of the Office of Federal 
Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations 
promulgated under that Act, shall apply to a construction contract or 
subcontract only to the extent that application of the provision is:
    (i) Necessary to ensure that the contract may be carried out in a 
satisfactory manner;
    (ii) Directly related to the construction activity; and
    (iii) Not inconsistent with the Act.
    (2) A list of the Federal requirements that meet the requirements of 
this paragraph shall be included in an attachment to the contract under 
negotiations between the Secretary and the Indian tribe or tribal 
organization.

[[Page 1113]]

    (3) Except as provided in paragraph (b)(2) of this section, no 
Federal law listed in section 105(3)(C)(ii) of the Act or any other 
provision of Federal law (including an Executive order) relating to 
acquisition by the Federal government shall apply to a construction 
contract that an Indian tribe or tribal organization enters into under 
this Act, unless expressly provided in the law.
    (c) Provisions of a construction contract under this subpart shall 
be liberally construed in favor of the contracting Indian tribe or 
tribal organization.



Sec. 900.116  Are negotiated fixed-price contracts treated the same as 
cost-reimbursable contracts?

    Yes, except that in negotiated fixed-price construction contracts, 
appropriate clauses shall be negotiated to allocate properly the 
contract risks between the government and the contractor.



Sec. 900.117  Do these ``construction contract'' regulations apply to 
planning services?

    (a) These regulations apply to planning services contracts only as 
provided in this section.
    (1) The Indian tribe or tribal organization shall submit to the 
Secretary for review and approval the POR documents produced as a part 
of a model contract under section 108 of the Act or under a construction 
contract under this subpart.
    (i) Within 60 days after receipt of the POR from the Indian tribe or 
tribal organization for a project that has achieved priority ranking or 
that is funded, the Secretary shall:
    (A) Approve the POR;
    (B) Notify the Indian tribe or tribal organization of and make 
available any objections to the POR that the Secretary may have; or
    (C) Notify the Indian tribe or tribal organization of the reasons 
why the Secretary will be unable either to approve the POR or to notify 
the Indian tribe or tribal organization of any objections within 60 
days, and state the time within which the notification will be made, 
provided that the extended time shall not exceed 60 additional days.
    (ii) Within a maximum of 180 days after receipt of a POR from an 
Indian tribe or tribal organization for a project that is not funded and 
is not described in paragraph (a)(1)(i) of this section, the Secretary 
shall:
    (A) Approve the POR; or
    (B) Notify the Indian tribe or tribal organization of and make 
available any objections to the POR; or
    (C) Notify the Indian tribe or tribal organization of the reasons 
why the Secretary will be unable either to approve the POR or to notify 
the Indian tribe or tribal organization of any objections within 180 
days, and state the time within which the notification will be made, 
provided that the extended time shall not exceed 60 additional days.
    (2) Any failure of the Secretary to act on a POR within the 
applicable period required in paragraph (a)(1) of this section will be 
deemed a rejection of the POR and will authorize the commencement of any 
appeal as provided in section 110 of the Act, or, if a model agreement 
under section 108 of the Act is used, the disputes provision of that 
agreement.
    (3) If an Indian tribe or tribal organization elects to provide 
planning services as part of a construction contract rather than under a 
model agreement as set out in section 108 of the Act, the regulations in 
this subpart shall apply.
    (b) The parties to the contract are encouraged to consult during the 
development of the POR and following submission of the POR to the 
Secretary.



Sec. 900.118  Do these ``construction contract'' regulations apply to 
construction management services?

    No. Construction management services may be contracted separately 
under section 108 of the Act. Construction management services 
consultants and/or Indian tribe or tribal organization employees assist 
and advise the Indian tribe or tribal organization to implement 
construction contracts, but have no contractual relationship with or 
authority to direct construction contract subcontractors.
    (a) If the Indian tribe or tribal organization chooses to contract 
solely for construction management services, these services shall be 
limited to:

[[Page 1114]]

    (1) Coordination and exchange of information between the Indian 
tribe or tribal organization and the Secretary;
    (2) Review of work produced by the Secretary to determine compliance 
with:
    (i) The POR and design contract during the design stage; or
    (ii) The project construction documents during the construction 
stage;
    (3) Disputes shall be resolved in accordance with the disputes 
clause of the CMS contract.
    (b) If the Indian tribe or tribal organization conducts CMS under 
section 108 of the Act and the Indian tribe or tribal organization 
contracts separately under this subpart for all or some of the 
activities in Sec. 900.110, the contracted activities shall be limited 
to:
    (1) Coordination and exchange of information between the Indian 
tribe or tribal organization and Secretary;
    (2) Preparation of tribal or tribal organization construction 
subcontract scope of work identification and subcontract preparation, 
and competitive selection of tribal or tribal organization construction 
contract subcontractors;
    (3) Review of work produced by tribal or tribal organization 
construction subcontractors to determine compliance with:
    (i) The POR and the design contract during the design stage; or
    (ii) The project construction documents during the construction 
stage.



Sec. 900.119  To what extent shall the Secretary consult with affected 
Indian tribes before spending funds for any construction project?

    Before spending any funds for a planning, design, construction, or 
renovation project, whether subject to a competitive application and 
ranking process or not, the Secretary shall consult with any Indian 
tribe or tribal organization(s) that would be significantly affected by 
the expenditure to determine and to follow tribal preferences to the 
greatest extent feasible concerning: size, location, type, and other 
characteristics of the project.



Sec. 900.120  How does an Indian tribe or tribal organization find out 
about a construction project?

    Within 30 days after the Secretary's allocation of funds for 
planning phase, design phase, or construction phase activities for a 
specific project, the Secretary shall notify, by registered mail with 
return receipt in order to document mailing, the Indian tribe or tribal 
organization(s) to be benefitted by the availability of the funds for 
each phase of a project. The Secretarial notice of fund allocation shall 
offer technical assistance in the preparation of a contract proposal.
    (a) The Secretary shall, within 30 days after receiving a request 
from an Indian tribe or tribal organization, furnish the Indian tribe or 
tribal organization with all information available to the Secretary 
about the project including, but not limited to: construction drawings, 
maps, engineering reports, design reports, plans of requirements, cost 
estimates, environmental assessments, or environmental impact reports 
and archeological reports.
    (b) An Indian tribe or tribal organization is not required to 
request this information prior to submitting a notification of intent to 
contract or a contract proposal.
    (c) The Secretary shall have a continuing responsibility to furnish 
information.



Sec. 900.121  What happens during the preplanning phase and can an 
Indian tribe or tribal organization perform any of the activities 
involved in this process?

    (a) The application and ranking process for developing a priority 
listing of projects varies between agencies. There are, however, steps 
in the selection process that are common to most selection processes. An 
Indian tribe or tribal organization that wishes to secure a construction 
project should contact the appropriate agency to determine the specific 
steps involved in the application and selection process used to fund 
specific types of projects. When a priority process is used in the 
selection of construction projects, the steps involved in the 
application and ranking process are as follows:

[[Page 1115]]

    (1) Application. The agency solicits applications from Indian tribes 
or tribal organizations. In the request for applications, the Secretary 
provides specific information regarding the type of project to be 
funded, the objective criteria that will be used to evaluate 
applications, the points or weight that each criterion will be assigned, 
and the time when applications are due. An Indian tribe or tribal 
organization may prepare the application (technical assistance from the 
agency, within resources available, shall be provided upon request from 
an Indian tribe or tribal organization) or may rely upon the agency to 
prepare the application.
    (2) Ranking/Prioritization. The Secretary evaluates the applications 
based on the criteria provided as part of the application preparation 
process. The Secretary applies only criteria and weights assigned to 
each criteria that were disclosed to the Indian tribe or tribal 
organization during the application stage. The applications are then 
ranked in order from the application that best meets application 
criteria to the application that least meet the application criteria.
    (3) Validation. Before final acceptance of a ranked application, the 
information, such as demographic information, deficiency levels reported 
in application, the condition of existing facilities, and program 
housing needs, is validated. During this process, additional information 
may be developed by the Indian tribe or tribal organization in support 
of the original information or the Secretary may designate a 
representative of the Department to conduct an on-site review of the 
information contained in the application.
    (b) [Reserved]



Sec. 900.122  What does an Indian tribe or tribal organization do if it 
wants to secure a construction contract?

    (a) The Act establishes a special process for review and negotiation 
of proposals for construction contracts which is different than that for 
other self-determination contract proposals. The Indian tribe or tribal 
organization should notify the Secretary of its intent to contract. 
After notification, the Indian tribe or tribal organization should 
prepare its contract proposal in accordance with the sections of this 
subpart. While developing its construction contract proposal, the Indian 
tribe or tribal organization can request technical assistance from the 
Secretary. Not later than 30 days after receiving a request from an 
Indian tribe or tribal organization, the Secretary shall provide to the 
Indian tribe or tribal organization all information available about the 
construction project, including construction drawings, maps, engineering 
reports, design reports, plans of requirements, cost estimates, 
environmental assessments, or environmental impact reports, and 
archaeological reports. The responsibility of the Secretary to furnish 
this information shall be a continuing one.
    (b) At the request of the Indian tribe or tribal organization and 
before finalizing its construction contract proposal, the Secretary 
shall provide for a precontract negotiation phase during the development 
of a contract proposal. Within 30 days the Secretary shall acknowledge 
receipt of the proposal and, if requested by the Indian tribe or tribal 
organization, shall confer with the Indian tribe or tribal organization 
to develop a negotiation schedule. The negotiation phase shall include, 
at a minimum:
    (1) The provision of technical assistance under section 103 of the 
Act and paragraph (a) of this section;
    (2) A joint scoping session between the Secretary and the Indian 
tribe or tribal organization to review all plans, specifications, 
engineering reports, cost estimates, and other information available to 
the parties, for the purpose of identifying all areas of agreement and 
disagreement;
    (3) An opportunity for the Secretary to revise plans, designs, or 
cost estimates of the Secretary in response to concerns raised, or 
information provided by, the Indian tribe or tribal organization;
    (4) A negotiation session during which the Secretary and the Indian 
tribe or tribal organization shall seek to develop a mutually agreeable 
contract proposal; and
    (5) Upon the request of the Indian tribe or tribal organization, the 
use of alternative dispute resolution to resolve remaining areas of 
disagreement

[[Page 1116]]

under the dispute resolution provisions under subchapter IV of chapter 5 
of the United States Code.



Sec. 900.123  What happens if the Indian tribe or tribal organization 
and the Secretary cannot develop a mutually agreeable contract proposal?

    (a) If the Secretary and the Indian tribe or tribal organization are 
unable to develop a mutually agreeable construction contract proposal 
under the procedures in Sec. 900.122, the Indian tribe or tribal 
organization may submit a final contract proposal to the Secretary. Not 
later than 30 days after receiving the final contract proposal, the 
Secretary shall approve the contract proposal and award the contract, 
unless, during the period the Secretary declines the proposal under 
sections 102(a)(2) and 102(b) of the Act (including providing 
opportunity for an appeal under section 102(b)).
    (b) Whenever the Secretary declines to enter into a self-
determination contract or contracts under section 102(a)(2) of the Act, 
the Secretary shall:
    (1) State any objections to the contract proposal (as submitted by 
the Indian tribe or tribal organization) in writing and provide all 
documents relied on in making the declination decision within 20 days of 
such decision to the Indian tribe or tribal organization;
    (2) Provide assistance to the Indian tribe or tribal organization to 
overcome the stated objections;
    (3) Provide the Indian tribe or tribal organization with a hearing 
on the record with the right to engage in full discovery relevant to any 
issue raised in the matter and the opportunity for appeal on the 
objections raised, under the regulations set forth in subpart L, except 
that the Indian tribe or tribal organization may, in lieu of filing the 
appeal, initiate an action in a Federal district court and proceed 
directly under section 110(a) of the Act.



Sec. 900.124  May the Indian tribe or tribal organization elect to use 
a grant in lieu of a contract?

    Yes. A grant agreement or a cooperative agreement may be used in 
lieu of a contract under sections 102 and 103 of the Act when agreed to 
by the Secretary and the Indian tribe or tribal organization. Under the 
grant concept, the grantee will assume full responsibility and 
accountability for design and construction performance within the 
funding limitations. The grantee will manage and administer the work 
with minimal involvement by the government. The grantee will be expected 
to have acceptable management systems for finance, procurement, and 
property. The Secretary may issue Federal construction guidelines and 
manuals applicable to its construction programs, and the government 
shall accept tribal proposals for alternatives which are consistent with 
or exceed Federal guidelines or manuals applicable to construction 
programs.



Sec. 900.125  What shall a construction contract proposal contain?

    (a) In addition to the full name, address, and telephone number of 
the Indian tribe or tribal organization submitting the construction 
proposal, a construction contract proposal shall contain descriptions of 
the following standards under which they propose to operate the 
contract:
    (1) The use of licensed and qualified architects;
    (2) Applicable health and safety standards;
    (3) Adherence to applicable Federal, State, local, or tribal 
building codes and engineering standards;
    (4) Structural integrity;
    (5) Accountability of funds;
    (6) Adequate competition for subcontracting under tribal or other 
applicable law;
    (7) The commencement, performance, and completion of the contract;
    (8) Adherence to project plans and specifications (including any 
applicable Federal construction guidelines and manuals and the Secretary 
shall accept tribal proposals for alternatives which are consistent with 
or exceed Federal guidelines or manuals applicable to construction 
programs);
    (9) The use of proper materials and workmanship;
    (10) Necessary inspection and testing;
    (11) With respect to the self-determination contract between the 
Indian tribe or tribal organization and Federal government, a process 
for changes, modifications, stop work, and termination of the work when 
warranted;

[[Page 1117]]

    (b) In addition to provisions regarding the program standards listed 
in paragraph (a) of this section or the assurances listed in paragraph 
(c) of this section, the Indian tribe or tribal organization shall also 
include in its construction contract proposal the following:
    (1) In the case of a contract for design activities, this statement, 
``Construction documents produced as part of this contract will be 
produced in accordance with the Program of Requirements and/or Scope of 
Work,'' and the POR and/or Scope of Work shall be attached to the 
contract proposal. If tribal construction procedures, standards and 
methods (including national, regional, state, or tribal building codes 
or construction industry standards) are consistent with or exceed 
applicable Federal standards then the Secretary shall accept the 
tribally proposed standards; and
    (2) In the case of a contract for construction activities, this 
statement, ``The facility will be built in accordance with the 
construction documents produced as a part of design activities. The 
project documents, including plans and specifications, are hereby 
incorporated into this contract through this reference.'' If tribal 
construction procedures, standards and methods (including national, 
regional, state, or tribal building codes or construction industry 
standards) are consistent with or exceed applicable Federal standards 
then the Secretary shall accept the tribally proposed standards; and
    (3) Proposed methods to accommodate the responsibilities of the 
Secretary provided in Sec. 900.131; and
    (4) Proposed methods to accommodate the responsibilities of the 
Indian tribe or tribal organization provided in Sec. 900.130 unless 
otherwise addressed in paragraph (a) of this section and minimum staff 
qualifications proposed by the Indian tribe or tribal organization, if 
any;
    (5) A contract budget as described in Sec. 900.127; and
    (6) A period of performance for the conduct of all activities to be 
contracted;
    (7) A payment schedule as described in Sec. 900.132;
    (8) A statement indicating whether or not the Indian tribe or tribal 
organization has a CMS contract related to this project;
    (9) Current (unrevoked) authorizing resolutions in accordance with 
Sec. 900.5(d) from all Indian tribes benefitting from the contract 
proposal; and
    (10) Any responsibilities, in addition to the Federal 
responsibilities listed in Sec. 900.131, which the Indian tribe or 
tribal organization proposes the Federal government perform to assist 
with the completion of the scope of work;
    (c) The Indian tribe or tribal organization will provide the 
following assurances in its contract proposal:
    (1) If the Indian tribe or tribal organization elects not to take 
title (pursuant to subpart I) to Federal property used in carrying out 
the contract, ``The Indian tribe or tribal organization will not dispose 
of, modify the use of, or change the terms of the real property title, 
or other interest in the site and facilities without permission and 
instructions from the awarding agency. The Indian tribe or tribal 
organization will record the Federal interest in the title of real 
property in accordance with awarding agency directives and will include 
a covenant in the title of real property acquired in whole or in part 
with Federal assistance funds to assure nondiscrimination during the 
useful life of the project''; and
    (2) ``The Indian tribe or tribal organization will comply with the 
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.)'' 
which prohibits the use of lead based paint in construction or 
rehabilitation of residential structures;
    (3) ``The Indian tribe or tribal organization will comply, or has 
already complied, with the requirements of titles II and III of the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970 (Pub. L. 91-646),'' which provides for fair and equitable 
treatment of persons displaced or whose property is acquired as a result 
of Federal participation in purchases; and
    (4) ``Except for work performed by tribal or tribal organization 
employees, the Indian tribe or tribal organization will comply, as 
applicable, with the provisions of the Davis-Bacon Act (40

[[Page 1118]]

U.S.C. 276c and 18 U.S.C. 874),'' for Federally assisted construction 
subagreements;
    (5) ``The Indian tribe or tribal organization will comply with the 
flood insurance purchase requirements of section 102(a) of the Flood 
Disaster Protection Act of 1973 (Pub. L. 93-234),'' which requires 
recipients in a special flood hazard area to participate in the program 
and to purchase flood insurance if the total cost of insurable 
construction and acquisition is $10,000 or more;
    (6) ``The Indian tribe or tribal organization will comply with all 
applicable Federal environmental laws, regulations, and Executive 
Orders;''
    (7) ``The Indian tribe or tribal organization will comply with the 
Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.) related to 
protecting the components or potential components of the national wild 
and scenic rivers system;''
    (8) ``The Indian tribe or tribal organization will assist the 
awarding agency in assuring compliance with section 106 of the National 
Historic Preservation Act of 1966, as amended (16 U.S.C. 470), EO 11593 
(identification and preservation of historic properties), and the 
Archaeological and Historic Preservation Act of 1974 (16 U.S.C. 469a-1 
et seq.).''
    (d) The Indian tribe or tribal organization and the Secretary will 
both make a good faith effort to identify any other applicable Federal 
laws, Executive Orders, or regulations applicable to the contract, share 
them with the other party, and refer to them in the construction 
contract. The parties will make a good faith effort to identify tribal 
laws, ordinances, and resolutions which may affect either party in the 
performance of the contract.



Sec. 900.126  Shall a construction contract proposal incorporate 
provisions of Federal construction guidelines and manuals?

    Each agency may provide or the Indian tribe or tribal organization 
may request Federal construction guidelines and manuals for 
consideration by the Indian tribe or tribal organization in the 
preparation of its contract proposal. If tribal construction procedures, 
standards and methods (including national, regional, State, or tribal 
building codes or construction industry standards) are consistent with 
or exceed applicable Federal standards, the Secretary shall accept the 
tribally proposed standards.



Sec. 900.127  What can be included in the Indian tribe or tribal 
organization's contract budget?

    (a) The costs incurred will vary depending on which phase (see Sec. 
900.112) of the construction process the Indian tribe or tribal 
organization is conducting and the type of contract that will be used. 
The total amount awarded under a construction contract shall reflect an 
overall fair and reasonable price to the parties (see Sec. 900.129).
    (b) Costs for activities under this subpart that have not been 
billed, allocated, or recovered under a contract issued under section 
108 of the Act should be included.
    (c) The Indian tribe or tribal organization's budget should include 
the cost elements that reflect an overall fair and reasonable price. 
These costs include:
    (1) The reasonable costs to the Indian tribe or tribal organization 
of performing the contract, taking into consideration the terms of the 
contract and the requirements of the Act and any other applicable law;
    (2) The costs of preparing the contract proposal and supporting cost 
data;
    (3) The costs associated with auditing the general and 
administrative costs of the Indian tribe or tribal organization 
associated with the management of the construction contract; and
    (4) In cases where the Indian tribe or tribal organization is 
submitting a fixed-price construction contract:
    (i) The reasonable costs to the Indian tribe or tribal organization 
for general administration incurred in connection with the project that 
is the subject of the contract;
    (ii) The ability of the contractor that carries out the construction 
contract to make a reasonable profit, taking into consideration the 
risks associated with carrying out the contract, local market 
conditions, and other relevant considerations.

[[Page 1119]]

    (d) In establishing a contract budget for a construction project, 
the Secretary shall not be required to identify separately the 
components described in paragraphs (c)(4)(i) and (c)(4)(ii) of this 
section.
    (e) The Indian tribe or tribal organization's budget proposal 
includes a detailed budget breakdown for performing the scope of work 
including a total ``not to exceed'' dollar amount with which to perform 
the scope of work. Specific budget line items, if requested by the 
Indian tribe or tribal organization, can include the following:
    (1) The administrative costs the Indian tribe or tribal organization 
may incur including:
    (i) Personnel needed to provide administrative oversight of the 
contract;
    (ii) Travel costs incurred, both local travel incurred as a direct 
result of conducting the contract and remote travel necessary to review 
project status with the Secretary;
    (iii) Meeting costs incurred while meeting with community residents 
to develop project documents;
    (iv) Fees to be paid to consultants, such as demographic 
consultants, planning consultants, attorneys, accountants, and personnel 
who will provide construction management services;
    (2) The fees to be paid to architects and engineers to assist in 
preparing project documents and to assist in oversight of the 
construction process;
    (3) The fees to be paid to develop project surveys including 
topographical surveys, site boundary descriptions, geotechnical surveys, 
archeological surveys, and NEPA compliance, and;
    (4) In the case of a contract to conduct project construction 
activities, the fees to provide a part-time or full-time on-site 
inspector, depending on the terms of the contract, to monitor 
construction activities;
    (5) In the case of a contract to conduct project construction 
activities, project site development costs;
    (6) In the case of a contract to conduct project construction 
activities, project construction costs including those costs described 
in paragraph (c)(4), of this section;
    (7) The cost of securing and installing moveable equipment, 
telecommunications and data processing equipment, furnishings, including 
works of art, and special purpose equipment when part of a construction 
contract;
    (8) A contingency amount for unanticipated conditions of the 
construction phase of cost-reimbursable contracts. The amount of the 
contingency provided shall be 3 percent of activities being contracted 
or 50 percent of the available contingency funds, whichever is greater. 
In the event provision of required contingency funds will cause the 
project to exceed available project funds, the discrepancy shall be 
reconciled in accordance with Sec. 900.129(e). Any additional 
contingency funds for the construction phase will be negotiated on an 
as-needed basis subject to the availability of funds and the nature, 
scope, and complexity of the project. Any contingency for other phases 
will be negotiated on a contract-by-contract basis. Unused contingency 
funds obligated to the contract and remaining at the end of the contract 
will be considered savings.
    (9) Other costs incurred that are directly related to the conduct of 
contract activities.



Sec. 900.128  What funding shall the Secretary provide in a construction 
contract?

    The Secretary shall provide an amount under a construction contract 
that reflects an overall fair and reasonable price to the parties. These 
costs include:
    (a) The reasonable costs to the Indian tribe or tribal organization 
of performing the contract, taking into consideration the terms of the 
contract and the requirements of the Act and any other applicable law;
    (b) The costs of preparing the contract proposal and supporting cost 
data; and
    (c) The costs associated with auditing the general and 
administrative costs of the tribal organization associated with the 
management of the construction contract; and
    (d) If the Indian tribe or tribal organization is submitting a 
fixed-price construction contract:
    (1) The reasonable costs to the Indian tribe or tribal organization 
for general administration incurred in connection

[[Page 1120]]

with the project that is the subject of the contract;
    (2) The ability of the contractor that carries out the construction 
contract to make a reasonable profit, taking into consideration the 
risks associated with carrying out the contract, local market 
conditions, and other relevant considerations including but not limited 
to contingency.
    (3) In establishing a contract budget for a construction project, 
the Secretary is not required to identify separately the components 
described in paragraph (d) (1) and (d) (2) of this sections.



Sec. 900.129  How do the Secretary and Indian tribe or tribal 
organization arrive at an overall fair and reasonable price for the 
performance of a construction contract?

    (a) Throughout the contract award process, the Secretary and Indian 
tribe or tribal organization shall share all construction project cost 
information available to them in order to facilitate reaching agreement 
on an overall fair and reasonable price for the project or part thereof. 
In order to enhance this communication, the government's estimate of an 
overall fair and reasonable price shall:
    (1) Contain a level of detail appropriate to the nature and phase of 
the work and sufficient to allow comparisons to the Indian tribe or 
tribal organization's estimate;
    (2) Be prepared in a format coordinated with the Indian tribe or 
tribal organization; and
    (3) Include the cost elements contained in section 105(m)(4) of the 
Act.
    (b) The government's cost estimate shall be an independent cost 
estimate based on such information as the following:
    (1) Prior costs to the government for similar projects adjusted for 
comparison to the target location, typically in unit costs, such as 
dollars per pound, square meter cost of building, or other unit cost 
that can be used to make a comparison;
    (2) Actual costs previously incurred by the Indian tribe or tribal 
organization for similar projects;
    (3) Published price lists, to include regional adjustment factors, 
for materials, equipment, and labor; and
    (4) Projections of inflation and cost trends, including projected 
changes such as labor, material, and transportation costs.
    (c) The Secretary shall provide the initial government cost estimate 
to the Indian tribe or tribal organization and make appropriate 
revisions based on concerns raised or information provided by the Indian 
tribe or tribal organization. The Secretary and the Indian tribe or 
tribal organization shall continue to revise, as appropriate, their 
respective cost estimates based on changed or additional information 
such as the following:
    (1) Actual subcontract bids;
    (2) Changes in inflation rates and market conditions, including 
local market conditions;
    (3) Cost and price analyses conducted by the Secretary and the 
Indian tribe or tribal organization during negotiations;
    (4) Agreed-upon changes in the size, scope and schedule of the 
construction project; and
    (5) Agreed-upon changes in project plans and specifications.
    (d) Considering all of the information available, the Secretary and 
the Indian tribe or tribal organization shall negotiate the amount of 
the construction contract. The objective of the negotiations is to 
arrive at an amount that is fair under current market conditions and 
reasonable to both the government and the Indian tribe or tribal 
organization. As a result, the agreement does not necessarily have to be 
in strict conformance with either party's cost estimate nor does 
agreement have to be reached on every element of cost, but only on the 
overall fair and reasonable price of each phase of the work included in 
the contract.
    (e) If the fair and reasonable price arrived at under paragraph (d) 
of this section would exceed the amount available to the Secretary, 
then:
    (1) If the Indian tribe or tribal organization elects to submit a 
final proposal, the Secretary may decline the proposal under section 
105(m)(4)(C)(v) of the Act or if the contract has been awarded, dispute 
the matter under the Contract Disputes Act; or
    (2) If requested by the Indian tribe or tribal organization:

[[Page 1121]]

    (i) The Indian tribe or tribal organization and the Secretary may 
jointly explore methods of expanding the available funds through the use 
of contingency funds, advance payments in accordance with Sec. 900.132, 
rebudgeting, or seeking additional appropriations; or
    (ii) The Indian tribe or tribal organization may elect to propose a 
reduction in project scope to bring the project price within available 
funds; or
    (iii) The Secretary and Indian tribe or tribal organization may 
agree that the project be executed in phases.



Sec. 900.130  What role does the Indian tribe or tribal organization 
play during the performance of a self-determination construction contract?

    (a) The Indian tribe or tribal organization is responsible for the 
successful completion of the project in accordance with the approved 
contract documents.
    (b) If the Indian tribe or tribal organization is contracting to 
perform design phase activities, the Indian tribe or tribal organization 
shall have the following responsibilities:
    (1) The Indian tribe or tribal organization shall subcontract with 
or provide the services of licensed and qualified architects and other 
consultants needed to accomplish the self-determination construction 
contract.
    (2) The Indian tribe or tribal organization shall administer and 
disburse funds provided through the contract in accordance with subpart 
F, Sec. 900.42 through Sec. 900.45 and implement a property management 
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
    (3) The Indian tribe or tribal organization shall direct the 
activities of project architects, engineers, and other project 
consultants, facilitate the flow of information between the Indian tribe 
or tribal organization and its subcontractors, resolve disputes between 
the Indian tribe or tribal organization and its subcontractors or 
between its subcontractors, and monitor the work produced by its 
subcontractors to ensure compliance with the POR.
    (4) The Indian tribe or tribal organization shall direct the work of 
its subcontractors so that work produced is provided in accordance with 
the contract budget and contract performance period as negotiated 
between and agreed to by the parties.
    (5) The Indian tribe or tribal organization shall provide the 
Secretary with an opportunity to review and provide written comments on 
the project plans and specifications only at the concept phase, the 
schematic phase (or the preliminary design), the design development 
phase, and the final construction documents phase and approve the 
project plans and specifications for general compliance with contract 
requirements only at the schematic phase (or the preliminary design) and 
the final construction documents phase or as otherwise negotiated.
    (6) The Indian tribe or tribal organization shall provide the 
Secretary with the plans and specifications after their final review so, 
if needed, the Secretary may obtain an independent government cost 
estimate in accordance with Sec. 900.131(b)(4) for the construction of 
the project.
    (7) The Indian tribe or tribal organization shall retain project 
records and design documents for a minimum of 3 years following 
completion of the contract.
    (8) The Indian tribe or tribal organization shall provide progress 
reports and financial status reports quarterly, or as negotiated, that 
contain a narrative of the work accomplished, including but not limited 
to descriptions of contracts, major subcontracts, and modifications 
implemented during the report period and A/E service deliverables, the 
percentage of the work completed, a report of funds expended during the 
reporting period, and total funds expended for the project. The Indian 
tribe or tribal organization shall also provide copies, for the 
information of the Secretary, of an initial work and payment schedule 
and updates as they may occur.
    (c) If the Indian tribe or tribal organization is contracting to 
perform project construction phase activities, the Indian tribe or 
tribal organization shall have the following responsibilities:

[[Page 1122]]

    (1) The Indian tribe or tribal organization shall subcontract with 
or provide the services of licensed and qualified architects and other 
consultants as needed to accomplish the self-determination construction 
contract.
    (2) The Indian tribe or tribal organization shall administer and 
dispense funds provided through the contract in accordance with subpart 
F, Sec. 900.42 through Sec. 900.45 and implement a property management 
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
    (3) The Indian tribe or tribal organization shall subcontract with 
or provide the services of construction contractors or provide its own 
forces to conduct construction activities in accordance with the project 
construction documents or as otherwise negotiated between and agreed to 
by the parties.
    (4) The Indian tribe or tribal organization shall direct the 
activities of project architects, engineers, construction contractors, 
and other project consultants, facilitate the flow of information 
between the Indian tribe or tribal organization and its subcontractors, 
resolve disputes between itself and its subcontractors or between its 
subcontractors, and monitor the work produced by its subcontractors to 
assure compliance with the project plans and specifications.
    (5) The Indian tribe or tribal organization shall manage or provide 
for the management of day-to-day activities of the contract including 
the issuance of construction change orders to subcontractors except 
that, unless the Secretary agrees:
    (i) The Indian tribe or tribal organization may not issue a change 
order to a construction subcontractor that will cause the Indian tribe 
or tribal organization to exceed its self-determination contract budget;
    (ii) The Indian tribe or tribal organization may not issue a change 
order to a construction subcontractor that will cause the Indian tribe 
or tribal organization to exceed the performance period in its self-
determination contract budget; or
    (iii) The Indian tribe or tribal organization may not issue to a 
construction subcontractor a change order that is a significant 
departure from the scope or objective of the project.
    (6) The Indian tribe or tribal organization shall direct the work of 
its subcontractors so that work produced is provided in accordance with 
the contract budget and performance period as negotiated between and 
agreed to by the parties.
    (7) The Indian tribe or tribal organization shall provide to the 
Secretary progress and financial status reports.
    (i) The reports shall be provided quarterly, or as negotiated, and 
shall contain a narrative of the work accomplished, the percentage of 
the work completed, a report of funds expended during the reporting 
period, and total funds expended for the project.
    (ii) The Indian tribe or tribal organization shall also provide 
copies, for the information of the Secretary, of an initial schedule of 
values and updates as they may occur, and an initial construction 
schedule and updates as they occur.
    (8) The Indian tribe or tribal organization shall maintain on the 
job-site or project office, and make available to the Secretary during 
monitoring visits: contracts, major subcontracts, modifications, 
construction documents, change orders, shop drawings, equipment cut 
sheets, inspection reports, testing reports, and current redline 
drawings.
    (d) Upon completion of the project, the Indian tribe or tribal 
organization shall provide to the Secretary a reproducible copy of the 
record plans and a contract closeout report.
    (e) For cost-reimbursable projects, the Indian tribe or tribal 
organization shall not be obligated to continue performance that 
requires an expenditure of more funds than were awarded under the 
contract. If the Indian tribe or tribal organization has a reason to 
believe that the total amount required for performance of the contract 
will be greater than the amount of funds awarded, it shall provide 
reasonable notice to the Secretary. If the Secretary does not increase 
the amount of funds awarded under the contract, the Indian tribe or 
tribal organization may suspend performance of the contract until 
sufficient additional funds are awarded.

[[Page 1123]]



Sec. 900.131  What role does the Secretary play during the performance 
of a self-determination construction contract?

    (a) If the Indian tribe or tribal organization is contracting solely 
to perform construction management services either under this subpart or 
section 108 of the Act, the Secretary has the following 
responsibilities:
    (1) The Secretary is responsible for the successful completion of 
the project in accordance with the approved contract documents. In 
fulfilling those responsibilities, the Secretary shall consult with the 
Indian tribe or tribal organization on a regular basis as agreed to by 
the parties to facilitate the exchange of information between the Indian 
tribe or tribal organization and Secretary;
    (2) The Secretary shall provide the Indian tribe or tribal 
organization with regular opportunities to review work produced to 
determine compliance with the following documents:
    (i) The POR, during the conduct of design phase activities. The 
Secretary shall provide the Indian tribe or tribal organization with an 
opportunity to review the project construction documents at the concept 
phase, the schematic phase, the design development phase, and the final 
construction documents phase, or as otherwise negotiated. Upon receipt 
of project construction documents for review, the Indian tribe or tribal 
organization shall not take more than 21 days to make available to the 
Secretary any comments or objections to the construction documents as 
submitted by the Secretary. Resolution of any comments or objections 
shall be in accordance with dispute resolution procedures as agreed to 
by the parties and contained in the contract; or
    (ii) The project construction documents, during conduct of the 
construction phase activities. The Indian tribe or tribal organization 
shall have the right to conduct monthly or critical milestone on-site 
monitoring visits or as negotiated with the Secretary;
    (b) If the Indian tribe or tribal organization is contracting to 
perform design and/or construction phase activities, the Secretary shall 
have the following responsibilities:
    (1) In carrying out the responsibilities of this section, and 
specifically in carrying out review, comment, and approval functions 
under this section, the Secretary shall provide for full tribal 
participation in the decision making process and shall honor tribal 
preferences and recommendations to the greatest extent feasible. This 
includes promptly notifying the Indian tribe or tribal organization of 
any concerns or issues in writing that may lead to disapproval, meeting 
with the Indian tribe or tribal organization to discuss these concerns 
and issues and to share relevant information and documents, and making a 
good faith effort to resolve all issues and concerns of the Indian tribe 
or tribal organization. The time allowed for Secretarial review, 
comment, and approval shall be no more than 21 days per review unless a 
different time period is negotiated and specified in individual 
contracts. The 21-day time period may be extended if the Indian tribe or 
tribal organization agrees to the extension in writing. Disagreements 
over the Secretary's decisions in carrying out these responsibilities 
shall be handled under subpart N governing contract disputes under the 
Contract Disputes Act.
    (2) To the extent the construction project is subject to NEPA or 
other environmental laws, the appropriate Secretary shall make the final 
determination under such laws. All other environmentally related 
functions are contractible.
    (3) If the Indian tribe or tribal organization conducts planning 
activities under this subpart, the Secretary shall review and approve 
final planning documents for the project to ensure compliance with 
applicable planning standards.
    (4) When a contract or portion of a contract is for project 
construction activities, the Secretary may rely on the Indian tribe or 
tribal organization's cost estimate or the Secretary may obtain an 
independent government cost estimate that is derived from the final 
project plans and specifications. The Secretary shall obtain the cost 
estimate, if any, within 90 days or less of

[[Page 1124]]

receiving the final plans and specifications from the Indian tribe or 
tribal organization and shall provide all supporting documentation of 
the independent cost estimate to the Indian tribe or tribal organization 
within the 90 day time limit.
    (5) If the contracted project involves design activities, the 
Secretary shall have the authority to review for general compliance with 
the contract requirements and provide written comments on the project 
plans and specifications only at the concept phase, the schematic phase, 
the design development phase and the final construction documents phase, 
and approve for general compliance with contract requirements the 
project plans and specifications only at the schematic phase and the 
final construction documents phase or as otherwise negotiated.
    (6) If the contracted project involves design activities, the 
Secretary reserves a royalty-free, nonexclusive, and irrevocable license 
to reproduce, publish or otherwise use, for Federal government purposes:
    (i) The copyright in any work developed under a contract or 
subcontract of this subpart; and
    (ii) Any rights of copyright to which an Indian tribe or tribal 
organization or a tribal subcontractor purchases ownership through this 
contract.
    (7) Changes that require an increase to the negotiated contract 
budget or an increase in the negotiated performance period or are a 
significant departure from the scope or objective of the project shall 
require approval of the Secretary.
    (8) Review and comment on specific shop drawings as negotiated and 
specified in individual contracts.
    (9) The Secretary may conduct monthly on-site monitoring visits, or 
alternatively if negotiated with the Indian tribe or tribal 
organization, critical milestone on-site monitoring visits.
    (10) The Secretary retains the right to conduct final project 
inspections jointly with the Indian tribe or tribal organization and to 
accept the building or facility. If the Secretary identifies problems 
during final project inspections the information shall be provide to the 
Indian tribe or tribal organization and shall be limited to items that 
are materially noncompliant.
    (11) The Secretary can require an Indian tribe or tribal 
organization to suspend work under a contract in accordance with this 
paragraph. The Secretary may suspend a contract for no more than 30 days 
unless the Indian tribe or tribal organization has failed to correct the 
reason(s) for the suspension or unless the cause of the suspension 
cannot be resolved through either the efforts of the Secretary or the 
Indian tribe or tribal organization.
    (i) The following are reasons the Secretary may suspend work under a 
self-determination contract for construction:
    (A) Differing site conditions encountered upon commencement of 
construction activities that impact health or safety concerns or shall 
require an increase in the negotiated project budget;
    (B) The Secretary discovers materially non-compliant work;
    (C) Funds allocated for the project that is the subject of this 
contract are rescinded by Congressional action; or
    (D) Other Congressional actions occur that materially affect the 
subject matter of the contract.
    (ii) If the Secretary wishes to suspend the work, the Secretary 
shall first provide written notice and an opportunity for the Indian 
tribe or tribal organization to correct the problem. The Secretary may 
direct the Indian tribe or tribal organization to suspend temporarily 
work under a contract only after providing a minimum of 5 working days' 
advance written notice to the Indian tribe or tribal organization 
describing the nature of the performance deficiencies or imminent 
safety, health or environmental issues which are the cause for 
suspending the work.
    (iii) The Indian tribe or tribal organization shall be compensated 
for reasonable costs, including but not limited to overhead costs, 
incurred due to any suspension of work that occurred through no fault of 
the Indian tribe or tribal organization.
    (iv) Disputes arising as a result of a suspension of the work by the 
Secretary shall be subject to the Contract Disputes Act or any other 
alternative

[[Page 1125]]

dispute resolution mechanism as negotiated between and agreed to by the 
parties and contained in the contract.
    (12) The Secretary can terminate the project for cause in the event 
non-compliant work is not corrected through the suspension process 
specified in paragraph (11) of this section.
    (13) The Secretary retains authority to terminate the project for 
convenience for the following reasons:
    (i) Termination for convenience is requested by the Indian tribe or 
tribal organization;
    (ii) Termination for convenience is requested by the Secretary and 
agreed to by the Indian tribe or tribal organization;
    (iii) Funds allocated for the project that is the subject of the 
contract are rescinded by Congressional action;
    (iv) Other Congressional actions take place that affect the subject 
matter of the contract;
    (v) If the Secretary terminates a self-determination construction 
contract for convenience, the Secretary shall provide the Indian tribe 
or tribal organization 21 days advance written notice of intent to 
terminate a contract for convenience; or
    (vi) The Indian tribe or tribal organization shall be compensated 
for reasonable costs incurred due to termination of the contract.



Sec. 900.132  Once a contract and/or grant is awarded, how will the 
Indian tribe or tribal organization receive payments?

    (a) A schedule for advance payments shall be developed based on 
progress, need, and other considerations in accordance with applicable 
law. The payment schedule shall be negotiated by the parties and 
included in the contract. The payment schedule may be adjusted as 
negotiated by the parties during the course of the project based on 
progress and need.
    (b) Payments shall be made to the Indian tribe or tribal 
organization according to the payment schedule contained in the 
contract. If the contract does not provide for the length of each 
allocation period, the Secretary shall make payments to the Indian tribe 
or tribal organization at least quarterly. Each allocation shall be 
adequate to provide funds for the contract activities anticipated to be 
conducted during the allocation period, except that:
    (1) The first allocation may be greater than subsequent allocations 
and include mobilization costs, and contingency funds described in Sec. 
900.128(e)(8); and
    (2) Any allocation may include funds for payment for materials that 
will be used during subsequent allocation periods.
    (c) The Indian tribe or tribal organization may propose a schedule 
of payment amounts measured by time or measured by phase of the project 
(e.g., planning, design, construction).
    (d) The amount of each payment allocation shall be stated in the 
Indian tribe or tribal organization's contract proposal. Upon award of 
the contract, the Secretary shall transfer the amount of the first 
allocation to the Indian tribe or tribal organization within 21 days 
after the date of contract award. The second allocation shall be made 
not later than 7 days before the end of the first allocation period.
    (e) Not later than 7 days before the end of each subsequent 
allocation period after the second allocation, the Secretary shall 
transfer to the Indian tribe or tribal organization the amount for the 
next allocation period, unless the Indian tribe or tribal organization 
is delinquent in submission of allocation period progress reports and 
financial reports or the Secretary takes action to suspend or terminate 
the contract in accordance with Sec. 900.131(b)(11), Sec. 
900.131(b)(12), or Sec. 900.131(b)(13).



Sec. 900.133  Does the declination process or the Contract Dispute Act 
apply to construction contract amendments proposed either by an Indian 
tribe or tribal organization or the Secretary?

    The Contract Disputes Act generally applies to such amendments. 
However, the declination process and the procedures in Sec. 900.122 and 
Sec. 900.123 apply to the proposal by an Indian tribe or tribal 
organization when the proposal is for a new project, a new phase or 
discreet stage of a phase of a project, or an expansion of a project 
resulting from an additional allocation of funds by the Secretary under 
Sec. 900.120.

[[Page 1126]]



Sec. 900.134  At the end of a self-determination construction contract, 
what happens to savings on a cost-reimbursement contract?

    The savings shall be used by the Indian tribe or tribal organization 
to provide additional services or benefits under the contract. 
Unexpended contingency funds obligated to the contract, and remaining at 
the end of the contract, are savings. No further approval or justifying 
documentation by the Indian tribe or tribal organization shall be 
required before expenditure of funds.



Sec. 900.135  May the time frames for action set out in this subpart be 
reduced?

    Yes. The time frames in this subpart are intended to be maximum 
times and may be reduced based on urgency and need, by agreement of the 
parties. If the Indian tribe or tribal organization requests reduced 
time frames for action due to unusual or special conditions (such as 
limited construction periods), the Secretary shall make a good faith 
effort to accommodate the requested time frames.



Sec. 900.136  Do tribal employment rights ordinances apply to 
construction contracts and subcontracts?

    Yes. Tribal employment rights ordinances do apply to construction 
contracts and subcontracts pursuant to section 7(b) and section 7(c) of 
the Act.



Sec. 900.137  Do all provisions of the other subparts apply to 
contracts awarded under this subpart?

    Yes, except as otherwise provided in this subpart and unless 
excluded as follows: programmatic reports and data requirements, 
reassumption, contract review and approval process, contract proposal 
contents, and Sec. 900.150 (d) and (e) of these regulations.



                       Subpart K_Waiver Procedures



Sec. 900.140  Can any provision of the regulations under this part be 
waived?

    Yes. Upon the request of an Indian tribe or tribal organization, the 
Secretary shall waive any provision of these regulations, including any 
cost principles adopted by the regulations under this part, if the 
Secretary finds that granting the waiver is either in the best interest 
of the Indians served by the contract, or is consistent with the 
policies of the Act and is not contrary to statutory law.



Sec. 900.141  How does an Indian tribe or tribal organization get a 
waiver?

    To obtain a waiver, an Indian tribe or tribal organization shall 
submit a written request to the Secretary identifying the regulation to 
be waived and the basis for the request. The Indian tribe or tribal 
organization shall explain the intended effect of the waiver, the impact 
upon the Indian tribe or tribal organization if the waiver is not 
granted, and the specific contract(s) to which the waiver will apply.



Sec. 900.142  Does an Indian tribe or tribal organization's waiver 
request have to be included in an initial contract proposal?

    No. Although a waiver request may be included in a contract 
proposal, it can also be submitted separately.



Sec. 900.143  How is a waiver request processed?

    The Secretary shall approve or deny a waiver within 90 days after 
the Secretary receives a written waiver request. The Secretary's 
decision shall be in writing. If the requested waiver is denied, the 
Secretary shall include in the decision a full explanation of the basis 
for the decision.



Sec. 900.144  What happens if the Secretary makes no decision within 
the 90-day period?

    The waiver request is deemed approved.



Sec. 900.145  On what basis may the Secretary deny a waiver request?

    Consistent with section 107(e) of the Act, the Secretary may only 
deny a waiver request based on a specific written finding. The finding 
must clearly demonstrate (or be supported by controlling legal 
authority) that if the waiver is granted:
    (a) The service to be rendered to the Indian beneficiaries of the 
particular program or function to be contracted will not be 
satisfactory;

[[Page 1127]]

    (b) Adequate protection of trust resources is not assured;
    (c) The proposed project or function to be contracted for cannot be 
properly completed or maintained by the proposed contract;
    (d) The amount of funds proposed under the contract is in excess of 
the applicable funding level for the contract, as determined under 
section 106(a) of the Act; or
    (e) The program, function, service, or activity (or portion of it) 
that is the subject of the proposal is beyond the scope of programs, 
functions, services, or activities that are contractible under the Act 
because the proposal includes activities that cannot lawfully be carried 
out by the contractor.



Sec. 900.146  Is technical assistance available for waiver requests?

    Yes. Technical assistance is available as provided in Sec. 900.7 to 
prepare a waiver request or to overcome any stated objection which the 
Secretary might have to the request.



Sec. 900.147  What appeal rights are available?

    If the Secretary denies a waiver request, the Indian tribe or tribal 
organization has the right to appeal the decision and request a hearing 
on the record under the procedures for hearings and appeals contained in 
subpart L of these regulations. Alternatively, the Indian tribe or 
tribal organization may sue in Federal district court to challenge the 
Secretary's action.



Sec. 900.148  How can an Indian tribe or tribal organization secure a 
determination that a law or regulation has been superseded by the Indian 
Self-Determination Act, as specified in section 107(b) of the Act?

    Any Indian tribe or tribal organization may at any time submit a 
request to the Secretary for a determination that any law or regulation 
has been superseded by the Act and that the law has no applicability to 
any contract or proposed contract under the Act. The Secretary is 
required to provide an initial decision on such a request within 90 days 
after receipt. If such a request is denied, the Indian tribe or tribal 
organization may appeal under subpart L of these regulations. The 
Secretary shall provide notice of each determination made under this 
subpart to all Indian tribes and tribal organizations.



                            Subpart L_Appeals

Appeals Other Than Emergency Reassumption and Suspension, Withholding or 
                            Delay in Payment



Sec. 900.150  What decisions can an Indian tribe or tribal organization 
appeal under this subpart?

    (a) A decision to decline to award a self-determination contract, or 
a portion thereof, under section 102 of the Act;
    (b) A decision to decline to award a construction contract, or a 
portion thereof, under sections 105(m) and 102 of the Act;
    (c) A decision to decline a proposed amendment to a self-
determination contract, or a portion thereof, under section 102 of the 
Act;
    (d) A decision not to approve a proposal, in whole or in part, to 
redesign a program;
    (e) A decision to rescind and reassume a self-determination 
contract, in whole or in part, under section 109 of the Act except for 
emergency reassumptions;
    (f) A decision to refuse to waive a regulation under section 107(e) 
of the Act;
    (g) A disagreement between an Indian tribe or tribal organization 
and the Federal government over proposed reporting requirements;
    (h) A decision to refuse to allow an Indian tribe or tribal 
organization to convert a contract to mature status, under section 4(h) 
of the Act;
    (i) All other appealable pre-award decisions by a Federal official 
as specified in these regulations, whether an official of the Department 
of the Interior or the Department of Health and Human Services; or
    (j) A decision relating to a request for a determination that a law 
or regulation has been superseded by the Act.



Sec. 900.151  Are there any appeals this subpart does not cover?

    This subpart does not cover:
    (a) Disputes which arise after a self-determination contract has 
been

[[Page 1128]]

awarded, or emergency reassumption of self-determination contracts or 
suspension of payments under self-determination contracts, which are 
covered under Sec. 900.170 through Sec. 900.176 of these regulations.
    (b) Other post-award contract disputes, which are covered under 
subpart N.
    (c) Denials under the Freedom of Information Act, 5 U.S.C. 552, 
which may be appealed under 43 CFR 2 for the Department of the Interior 
and 45 CFR 5 for the Department of Health and Human Services; and
    (d) Decisions relating to the award of discretionary grants under 
section 103 of the Act, which may be appealed under 25 CFR 2 for the 
Department of the Interior, and under 45 CFR 5 for the Department of 
Health and Human Services.



Sec. 900.152  How does an Indian tribe or tribal organization know 
where and when to file its appeal from decisions made by agencies 
of DOI or DHHS?

    Every decision in any of the ten areas listed above shall contain 
information which shall tell the Indian tribe or tribal organization 
where and when to file the Indian tribe or tribal organization's appeal. 
Each decision shall include the following statement:

    Within 30 days of the receipt of this decision, you may request an 
informal conference under 25 CFR 900.154, or appeal this decision under 
25 CFR 900.158 to the Interior Board of Indian Appeals (IBIA). Should 
you decide to appeal this decision, you may request a hearing on the 
record. An appeal to the IBIA under 25 CFR 900.158 shall be filed with 
the IBIA by certified mail or by hand delivery at the following address: 
Board of Indian Appeals, U.S. Department of the Interior, 801 North 
Quincy Street, Arlington, VA 22203. You shall serve copies of your 
Notice of Appeal on the Secretary and on the official whose decision is 
being appealed. You shall certify to the IBIA that you have served these 
copies.



Sec. 900.153  Does an Indian tribe or tribal organization have any 
options besides an appeal?

    Yes. The Indian tribe or tribal organization may request an informal 
conference. An informal conference is a way to resolve issues as quickly 
as possible, without the need for a formal hearing. The Indian tribe or 
tribal organization may also choose to sue in U.S. District Court under 
section 102(b)(3) and section 110(a) of the Act.



Sec. 900.154  How does an Indian tribe or tribal organization request 
an informal conference?

    The Indian tribe or tribal organization shall file its request for 
an informal conference with the office of the person whose decision it 
is appealing, within 30 days of the day it receives the decision. The 
Indian tribe or tribal organization may either hand-deliver the request 
for an informal conference to that person's office, or mail it by 
certified mail, return receipt requested. If the Indian tribe or tribal 
organization mails the request, it will be considered filed on the date 
the Indian tribe or tribal organization mailed it by certified mail.



Sec. 900.155  How is an informal conference held?

    (a) The informal conference shall be held within 30 days of the date 
the request was received, unless the Indian tribe or tribal organization 
and the authorized representative of the Secretary agree on another 
date.
    (b) If possible, the informal conference will be held at the Indian 
tribe or tribal organization's office. If the meeting cannot be held at 
the Indian tribe or tribal organization's office and is held more than 
fifty miles from its office, the Secretary shall arrange to pay 
transportation costs and per diem for incidental expenses to allow for 
adequate representation of the Indian tribe or tribal organization.
    (c) The informal conference shall be conducted by a designated 
representative of the Secretary.
    (d) Only people who are the designated representatives of the Indian 
tribe or tribal organization, or authorized by the Secretary of Health 
and Human Services or by the appropriate agency of the Department of the 
Interior, are allowed to make presentations at the informal conference.



Sec. 900.156  What happens after the informal conference?

    (a) Within 10 days of the informal conference, the person who 
conducted

[[Page 1129]]

the informal conference shall prepare and mail to the Indian tribe or 
tribal organization a written report which summarizes what happened at 
the informal conference and a recommended decision.
    (b) Every report of an informal conference shall contain the 
following language:

    Within 30 days of the receipt of this recommended decision, you may 
file an appeal of the initial decision of the DOI or DHHS agency with 
the Interior Board of Indian Appeals (IBIA) under 25 CFR 900.157. You 
may request a hearing on the record. An appeal to the IBIA under 25 CFR 
900.157 shall be filed with the IBIA by certified mail or hand delivery 
at the following address: Board of Indian Appeals, U.S. Department of 
the Interior, 801 North Quincy Street, Arlington, VA 22203. You shall 
serve copies of your Notice of Appeal on the Secretary and on the 
official whose decision is being appealed. You shall certify to the IBIA 
that you have served these copies.



Sec. 900.157  Is the recommended decision always final?

    No. If the Indian tribe or tribal organization is dissatisfied with 
the recommended decision, it may still appeal the initial decision 
within 30 days of receiving the recommended decision and the report of 
the informal conference. If the Indian tribe or tribal organization does 
not file a notice of appeal within 30 days, or before the expiration of 
the extension it has received under Sec. 900.159, the recommended 
decision becomes final.



Sec. 900.158  How does an Indian tribe or tribal organization appeal the 
initial decision, if it does not request an informal conference or if it 
does not agree with the recommended decision resulting from the informal conference?

    (a) If the Indian tribe or tribal organization decides to appeal, it 
shall file a notice of appeal with the IBIA within 30 days of receiving 
either the initial decision or the recommended decision.
    (b) The Indian tribe or tribal organization may either hand-deliver 
the notice of appeal to the IBIA, or mail it by certified mail, return 
receipt requested. If the Indian tribe or tribal organization mails the 
Notice of Appeal, it will be considered filed on the date the Indian 
tribe or tribal organization mailed it by certified mail. The Indian 
tribe or tribal organization should mail the notice of appeal to: Board 
of Indian Appeals, U.S. Department of the Interior, 801 North Quincy 
Street, Arlington, VA 22203.
    (c) The Notice of Appeal shall:
    (1) Briefly state why the Indian tribe or tribal organization thinks 
the initial decision is wrong;
    (2) Briefly identify the issues involved in the appeal; and
    (3) State whether the Indian tribe or tribal organization wants a 
hearing on the record, or whether the Indian tribe or tribal 
organization wants to waive its right to a hearing.
    (d) The Indian tribe or tribal organization shall serve a copy of 
the notice of appeal upon the official whose decision it is appealing. 
The Indian tribe or tribal organization shall certify to the IBIA that 
it has done so.
    (e) The authorized representative of the Secretary of Health and 
Human Services or the authorized representative of the Secretary of the 
Interior will be considered a party to all appeals filed with the IBIA 
under the Act.



Sec. 900.159  May an Indian tribe or tribal organization get an 
extension of time to file a notice of appeal?

    Yes. If the Indian tribe or tribal organization needs more time, it 
can request an extension of time to file its Notice of Appeal within 60 
days of receiving either the initial decision or the recommended 
decision resulting from the informal conference. The request of the 
Indian tribe or tribal organization shall be in writing, and shall give 
a reason for not filing its notice of appeal within the 30-day time 
period. If the Indian tribe or tribal organization has a valid reason 
for not filing its notice of appeal on time, it may receive an extension 
from the IBIA.



Sec. 900.160  What happens after an Indian tribe or tribal organization 
files an appeal?

    (a) Within 5 days of receiving the Indian tribe or tribal 
organization's notice of appeal, the IBIA will decide whether the appeal 
falls under Sec. 900.150(a) through Sec. 900.150(g). If so, the Indian 
tribe or tribal organization is entitled to a hearing.

[[Page 1130]]

    (1) If the IBIA determines that the appeal of the Indian tribe or 
tribal organization falls under Sec. 900.150(h), Sec. 900.150(i), or 
Sec. 900.150(j), and the Indian tribe or tribal organization has 
requested a hearing, the IBIA will grant the request for a hearing 
unless the IBIA determines that there are no genuine issues of material 
fact to be resolved.
    (2) If the IBIA cannot make that decision based on the information 
included in the notice of appeal, the IBIA may ask for additional 
statements from the Indian tribe or tribal organization, or from the 
appropriate Federal agency. If the IBIA asks for more statements, it 
will make its decision within 5 days of receiving those statements.
    (b) If the IBIA decides that the Indian tribe or tribal organization 
is not entitled to a hearing or if the Indian tribe or tribal 
organization has waived its right to a hearing on the record, the IBIA 
will ask for the administrative record under 43 CFR 4.335. The IBIA 
shall tell the parties that the appeal will be considered under the 
regulations at 43 CFR 4, subpart D, except the case shall be docketed 
immediately, without waiting for the 20-day period described in 43 CFR 
4.336.



Sec. 900.161  How is a hearing arranged?

    (a) If a hearing is to be held, the IBIA will refer the Indian tribe 
or tribal organization's case to the Hearings Division of the Office of 
Hearings and Appeals of the U.S. Department of the Interior. The case 
will then be assigned to an Administrative Law Judge (ALJ), appointed 
under 5 U.S.C. 3105.
    (b) Within 15 days of the date of the referral, the ALJ will hold a 
pre-hearing conference, by telephone or in person, to decide whether an 
evidentiary hearing is necessary, or whether it is possible to decide 
the appeal based on the written record. At the pre-hearing conference 
the ALJ will provide for:
    (1) A briefing and discovery schedule;
    (2) A schedule for the exchange of information, including, but not 
limited to witness and exhibit lists, if an evidentiary hearing is to be 
held;
    (3) The simplification or clarification of issues;
    (4) The limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence, if an evidentiary hearing is to be held;
    (5) The possibility of agreement disposing of all or any of the 
issues in dispute; and
    (6) Such other matters as may aid in the disposition of the appeal.
    (c) The ALJ shall order a written record to be made of any 
conference results that are not reflected in a transcript.



Sec. 900.162  What happens when a hearing is necessary?

    (a) The ALJ shall hold a hearing within 60 days of the date of the 
order referring the appeal to the ALJ, unless the parties agree to have 
the hearing on a later date.
    (b) At least 30 days before the hearing, the government agency shall 
file and serve the Indian tribe or tribal organization with a response 
to the notice of appeal.
    (c) If the hearing is held more than 50 miles from the Indian tribe 
or tribal organization's office, the Secretary shall arrange to pay 
transportation costs and per diem for incidental expenses to allow for 
adequate representation of the Indian tribe or tribal organization.
    (d) The hearing shall be conducted in accordance with the 
Administrative Procedure Act, 5 U.S.C. 556.



Sec. 900.163  What is the Secretary's burden of proof for appeals from 
decisions under Sec. 900.150(a) through Sec. 900.150(g)?

    For those appeals, the Secretary has the burden of proof (as 
required by section 102(e)(1) of the Act) to establish by clearly 
demonstrating the validity of the grounds for declining the contract 
proposal.



Sec. 900.164  What rights do Indian tribes, tribal organizations, and 
the government have during the appeal process?

    Both the Indian tribe or tribal organization and the government 
agency have the same rights during the appeal process. These rights 
include the right to:
    (a) Be represented by legal counsel;

[[Page 1131]]

    (b) Have the parties provide witnesses who have knowledge of the 
relevant issues, including specific witnesses with that knowledge, who 
are requested by either party;
    (c) Cross-examine witnesses;
    (d) Introduce oral or documentary evidence, or both;
    (e) Require that oral testimony be under oath;
    (f) Receive a copy of the transcript of the hearing, and copies of 
all documentary evidence which is introduced at the hearing;
    (g) Compel the presence of witnesses, or the production of 
documents, or both, by subpoena at hearings or at depositions;
    (h) Take depositions, to request the production of documents, to 
serve interrogatories on other parties, and to request admissions; and
    (i) Any other procedural rights under the Administrative Procedure 
Act, 5 U.S.C. 556.



Sec. 900.165  What happens after the hearing?

    (a) Within 30 days of the end of the formal hearing or any post-
hearing briefing schedule established by the ALJ, the ALJ shall send all 
the parties a recommended decision, by certified mail, return receipt 
requested. The recommended decision shall contain the ALJ's findings of 
fact and conclusions of law on all the issues. The recommended decision 
shall also state that the Indian tribe or tribal organization has the 
right to object to the recommended decision.
    (b) If the appeal involves the Department of Health and Human 
Services, the recommended decision shall contain the following 
statement:

    Within 30 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Secretary of 
Health and Human Services under 25 CFR 900.165(b). An appeal to the 
Secretary under 25 CFR 900.165(b) shall be filed at the following 
address: Department of Health and Human Services, 200 Independence Ave. 
S.W., Washington, DC, 20201. You shall serve copies of your notice of 
appeal on the official whose decision is being appealed. You shall 
certify to the Secretary that you have served this copy. If neither 
party files an objection to the recommended decision within 30 days, the 
recommended decision will become final.

    (c) If the appeal involves the Department of the Interior, the 
recommended decision shall contain the following statement:

    Within 30 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Interior Board of 
Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to the IBIA 
under 25 CFR 900.165(c) shall be filed at the following address: Board 
of Indian Appeals, 801 North Quincy Street, Arlington, VA 22203. You 
shall serve copies of your notice of appeal on the Secretary of the 
Interior, and on the official whose decision is being appealed. You 
shall certify to the IBIA that you have served these copies. If neither 
party files an objection to the recommended decision within 30 days, the 
recommended decision will become final.



Sec. 900.166  Is the recommended decision always final?

    No. Any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 30 
days of receiving the recommended decision. Objections shall be served 
on all other parties. The recommended decision shall become final 30 
days after the Indian tribe or tribal organization receives the ALJ's 
recommended decision, unless a written statement of objections is filed 
with the Secretary of Health and Human Services or the IBIA during the 
30-day period. If no party files a written statement of objections 
within 30 days, the recommended decision shall become final.



Sec. 900.167  If an Indian tribe or tribal organization objects to the 
recommended decision, what will the Secretary of Health and Human 
Services or the IBIA do?

    (a) The Secretary of Health and Human Services or the IBIA has 20 
days from the date it receives any timely written objections to modify, 
adopt, or reverse the recommended decision. If the Secretary of Health 
and Human Services or the IBIA does not modify or reverse the 
recommended decision during that time, the recommended decision 
automatically becomes final.
    (b) When reviewing the recommended decision, the IBIA or the 
Secretary may consider and decide all issues

[[Page 1132]]

properly raised by any party to the appeal, based on the record.
    (c) The decision of the Secretary or the IBIA shall:
    (1) Be in writing;
    (2) Specify the findings of fact or conclusions of law which are 
modified or reversed;
    (3) Give reasons for the decision, based on the record; and
    (4) State that the decision is final for the Department.



Sec. 900.168  Will an appeal hurt the Indian tribe or tribal 
organization's position in other contract negotiations?

    No. A pending appeal will not affect or prevent the negotiation or 
award of another contract.



Sec. 900.169  Will the decisions on appeals be available for the public 
to review?

    Yes. The Secretary shall publish all final decisions from the ALJs, 
the IBIA, and the Secretary of Health and Human Services.

  Appeals of Emergency Reassumption of Self-Determination Contracts or 
Suspensions, Withholding or Delay of Payments Under a Self-Determination 
                                Contract



Sec. 900.170  What happens in the case of emergency reassumption or 
suspension or withholding or delay of payments?

    (a) This subpart applies when the Secretary gives notice to an 
Indian tribe or tribal organization that the Secretary intends to:
    (1) Immediately rescind a contract or grant and reassume a program; 
or
    (2) Suspend, withhold, or delay payment under a contract.
    (b) When the Secretary advises an Indian tribe or tribal 
organization that the Secretary intends to take an action referred to in 
paragraph (a)(1) of this section, the Secretary shall also notify the 
Deputy Director of the Office of Hearings and Appeals, Department of the 
Interior, 801 North Quincy Street, Arlington, VA 22203.



Sec. 900.171  Will there be a hearing?

    Yes. The Deputy Director of the Office of Hearings and Appeals shall 
appoint an Administrative Law Judge (ALJ) to hold a hearing.
    (a) The hearing shall be held within 10 days of the date of the 
notice referred to in Sec. 900.170 unless the Indian tribe or tribal 
organization agrees to a later date.
    (b) If possible, the hearing will be held at the office of the 
Indian tribe or tribal organization. If the hearing is held more than 50 
miles from the office of the Indian tribe or tribal organization, the 
Secretary shall arrange to pay transportation costs and per diem for 
incidental expenses. This will allow for adequate representation of the 
Indian tribe or tribal organization.



Sec. 900.172  What happens after the hearing?

    (a) Within 30 days after the end of the hearing or any post-hearing 
briefing schedule established by the ALJ, the ALJ shall send all parties 
a recommended decision by certified mail, return receipt requested. The 
recommended decision shall contain the ALJ's findings of fact and 
conclusions of law on all the issues. The recommended decision shall 
also state that the Indian tribe or tribal organization has the right to 
object to the recommended decision.
    (b) If the appeal involves the Department of Health and Human 
Services, the recommended decision shall contain the following 
statement:

    Within 15 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Secretary of 
Health and Human Services under 25 CFR 900.165(b). An appeal to the 
Secretary under 25 CFR 900.165(b) shall be filed at the following 
address: Department of Health and Human Services, 200 Independence Ave. 
S.W., Washington, DC 20201. You shall serve copies of your notice of 
appeal on the official whose decision is being appealed. You shall 
certify to the Secretary that you have served this copy. If neither 
party files an objection to the recommended decision within 15 days, the 
recommended decision will become final.

    (c) If the appeal involves the Department of the Interior, the 
recommended decision shall contain the following statement:

    Within 15 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the

[[Page 1133]]

Interior Board of Indian Appeals (IBIA) under 25 CFR 900.165(c). An 
appeal to the IBIA under 25 CFR 900.165(c) shall be filed at the 
following address: Board of Indian Appeals, 801 North Quincy Street, 
Arlington, VA 22203.
    You shall serve copies of your notice of appeal on the Secretary of 
the Interior, and on the official whose decision is being appealed. You 
shall certify to the IBIA that you have served these copies. If neither 
party files an objection to the recommended decision within 15 days, the 
recommended decision will become final.



Sec. 900.173  Is the recommended decision always final?

    No. Any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 15 
days of receiving the recommended decision. You shall serve a copy of 
your objections on the other party. The recommended decision will become 
final 15 days after the Indian tribe or tribal organization receives the 
ALJ's recommended decision, unless a written statement of objections is 
filed with the Secretary of Health and Human Services or the IBIA during 
the 15-day period. If no party files a written statement of objections 
within 15 days, the recommended decision will become final.



Sec. 900.174  If an Indian tribe or tribal organization objects to the 
recommended decision, what will the Secretary of Health and Human 
Services or the IBIA do?

    (a) The Secretary or the IBIA has 15 days from the date he/she 
receives timely written objections to modify, adopt, or reverse the 
recommended decision. If the Secretary or the IBIA does not modify or 
reverse the recommended decision during that time, the recommended 
decision automatically becomes final.
    (b) When reviewing the recommended decision, the IBIA or the 
Secretary may consider and decide all issues properly raised by any 
party to the appeal, based on the record.
    (c) The decision of the Secretary or of the IBIA shall:
    (1) Be in writing;
    (2) Specify the findings of fact or conclusions of law which are 
modified or reversed;
    (3) Give reasons for the decision, based on the record; and
    (4) State that the decision is final for the Department.



Sec. 900.175  Will an appeal hurt an Indian tribe or tribal 
organization's position in other contract negotiations?

    No. A pending appeal will not affect or prevent the negotiation or 
award of another contract.



Sec. 900.176  Will the decisions on appeals be available for the public 
to review?

    Yes. The Secretary shall publish all final decisions from the ALJs, 
the IBIA, and the Secretary of Health and Human Services.

            Applicability of the Equal Access to Justice Act



Sec. 900.177  Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?

    Yes. EAJA claims against the DOI or the DHHS will be heard by the 
IBIA under 43 CFR 4.601-4.619. For DHHS, appeals from the EAJA award 
will be according to 25 CFR 900.165(b).



      Subpart M_Federal Tort Claims Act Coverage General Provisions



Sec. 900.180  What does this subpart cover?

    This subpart explains the applicability of the Federal Tort Claims 
Act (FTCA). This section covers:
    (a) Coverage of claims arising out of the performance of medical-
related functions under self-determination contracts;
    (b) Coverage of claims arising out of the performance of non-
medical-related functions under self-determination contracts; and
    (c) Procedures for filing claims under FTCA.



Sec. 900.181  What definitions apply to this subpart?

    Indian contractor means:
    (1) In California, subcontractors of the California Rural Indian 
Health Board, Inc. or, subject to approval of the IHS Director after 
consultation

[[Page 1134]]

with the DHHS Office of General Counsel, subcontractors of an Indian 
tribe or tribal organization which are:
    (i) Governed by Indians eligible to receive services from the Indian 
Health Service;
    (ii) Which carry out comprehensive IHS service programs within 
geographically defined service areas; and
    (iii) Which are selected and identified through tribal resolution as 
the local provider of Indian health care services.
    (2) Subject to the approval of the IHS Director after consultation 
with the DHHS Office of General Counsel, Indian tribes and tribal 
organizations which meet in all respects the requirements of the Indian 
Self-Determination Act to contract directly with the Federal Government 
but which choose through tribal resolution to subcontract to carry out 
IHS service programs within geographically defined service areas with 
another Indian tribe or tribal organization which contracts directly 
with IHS.
    (3) Any other contractor that qualifies as an ``Indian contractor'' 
under the Indian Self-Determination Act.



Sec. 900.182  What other statutes and regulations apply to FTCA coverage?

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



Sec. 900.183  Do Indian tribes and tribal organizations need to be 
aware of areas which FTCA does not cover?

    Yes. There are claims against self-determination contractors which 
are not covered by FTCA, claims which may not be pursued under FTCA, and 
remedies that are excluded by FTCA. General guidance is provided below 
as to these matters but is not intended as a definitive description of 
coverage, which is subject to review by the Department of Justice and 
the courts on a case-by-case basis.
    (a) What claims are expressly barred by FTCA and therefore may not 
be made against the United States, an Indian tribe or tribal 
organization? Any claim under 28 U.S.C. 2680, including claims arising 
out of assault, battery, false imprisonment, false arrest, malicious 
prosecution, abuse of process, libel, slander, misrepresentation, 
deceit, or interference with contract rights, unless otherwise 
authorized by 28 U.S.C. 2680(h).
    (b) What claims may not be pursued under FTCA? (1) Except as 
provided in Sec. 900.181(a)(1) and Sec. 900.189, claims against 
subcontractors arising out of the performance of subcontracts with a 
self-determination contractor;
    (2) Claims for on-the-job injuries which are covered by workmen's 
compensation;
    (3) Claims for breach of contract rather than tort claims; or
    (4) Claims resulting from activities performed by an employee which 
are outside the scope of employment.
    (c) What remedies are expressly excluded by FTCA and therefore are 
barred? (1) Punitive damages, unless otherwise authorized by 28 U.S.C. 
2674; and
    (2) Other remedies not permitted under applicable state law.



Sec. 900.184  Is there a deadline for filing FTCA claims?

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



Sec. 900.185  How long does the Federal government have to process an 
FTCA claim after the claim is received by the Federal agency, before a 
lawsuit may be filed?

    Six months.



Sec. 900.186  Is it necessary for a self-determination contract to 
include any clauses about Federal Tort Claims Act coverage?

    No, it is optional. At the request of Indian tribes and tribal 
organizations, self-determination contracts shall include the following 
clauses to clarify the scope of FTCA coverage:
    (a) The following clause may be used for all contracts:

    For purposes of Federal Tort Claims Act coverage, the contractor and 
its employees (including individuals performing personal services 
contracts with the contractor to provide health care services) are 
deemed to be employees of the Federal government while performing work 
under this contract. This status is not changed by the source of the 
funds used by the contractor to pay the

[[Page 1135]]

employee's salary and benefits unless the employee receives additional 
compensation for performing covered services from anyone other than the 
contractor.

    (b) The following clause is for IHS contracts only:

    Under this contract, the contractor's employee may be required as a 
condition of employment to provide health services to non-IHS 
beneficiaries in order to meet contractual obligations. These services 
may be provided in either contractor or non-contractor facilities. The 
employee's status for Federal Tort Claims Act purposes is not affected.



Sec. 900.187  Does FTCA apply to a self-determination contract if FTCA 
is not referenced in the contract?

    Yes.



Sec. 900.188  To what extent shall the contractor cooperate with the 
Federal government in connection with tort claims arising out of the 
contractor's performance?

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



Sec. 900.189  Does this coverage extend to subcontractors of 
self-determination contracts?

    No. Subcontractors or subgrantees providing services to a Public Law 
93-638 contractor or grantee are generally not covered. The only 
exceptions are Indian contractors such as those under

[[Page 1136]]

subcontract with the California Rural Indian Health Board to carry out 
IHS programs in geographically defined service areas in California and 
personal services contracts under Sec. 900.193 (for Sec. 
900.183(b)(1)) or Sec. 900.183(b) (for Sec. 900.190).

                         Medical-Related Claims



Sec. 900.190  Is FTCA the exclusive remedy for a tort claim for personal 
injury or death resulting from the performance of a self-determination contract?

    Yes, except as explained in Sec. 900.183(b). No claim may be filed 
against a self-determination contractor or employee for personal injury 
or death arising from the performance of medical, surgical, dental, or 
related functions by the contractor in carrying out self-determination 
contracts under the Act. Related functions include services such as 
those provided by nurses, laboratory and x-ray technicians, emergency 
medical technicians and other health care providers including 
psychologists and social workers. All such claims shall be filed against 
the United States and are subject to the limitations and restrictions of 
the FTCA.



Sec. 900.191  Are employees of self-determination contractors providing 
health services under the self-determination contract protected by FTCA?

    Yes. For the purpose of Federal Tort Claims Act coverage, an Indian 
tribe or tribal organization and its employees performing medical-
related functions under a self-determination contract are deemed a part 
of the Public Health Service if the employees are acting within the 
scope of their employment in carrying out the contract.



Sec. 900.192  What employees are covered by FTCA for medical-related 
claims?

    (a) Permanent employees;
    (b) Temporary employees;
    (c) Persons providing services without compensation in carrying out 
a contract;
    (d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the 
services are provided in facilities not owned by the contractor); and
    (e) Federal employees assigned to the contract.



Sec. 900.193  Does FTCA coverage extend to individuals who provide health care 
services under a personal services contract providing services in a facility 
that is owned, operated, or constructed under the jurisdiction of the IHS?

    Yes. The coverage extends to individual personal services 
contractors providing health services in such a facility, including a 
facility owned by an Indian tribe or tribal organization but operated 
under a self-determination contract with IHS.



Sec. 900.194  Does FTCA coverage extend to services provided under a staff 
privileges agreement with a non-IHS facility where the agreement requires a 
health care practitioner to provide reciprocal services to the general population?

    Yes. Those services are covered, as long as the contractor's health 
care practitioners do not receive additional compensation from a third 
party for the performance of these services and they are acting within 
the scope of their employment under a self-determination contract. 
Reciprocal services include:
    (a) Cross-covering other medical personnel who temporarily cannot 
attend their patients;
    (b) Assisting other personnel with surgeries or other medical 
procedures;
    (c) Assisting with unstable patients or at deliveries; or
    (d) Assisting in any patient care situation where additional 
assistance by health care personnel is needed.



Sec. 900.195  Does FTCA coverage extend to the contractor's health care practitioners 
providing services to private patients on a fee-for-services basis when such personnel 
(not the self-determination contractor) receive the fee?

    No.

[[Page 1137]]



Sec. 900.196  Do covered services include the conduct of clinical 
studies and investigations and the provision of emergency services, 
including the operation of emergency motor vehicles?

    Yes, if the services are provided in carrying out a self-
determination contract. (An emergency motor vehicle is a vehicle, 
whether government, contractor, or employee-owned, used to transport 
passengers for medical services.)



Sec. 900.197  Does FTCA cover employees of the contractor who are paid 
by the contractor from funds other than those provided through the 
self-determination contract?

    Yes, as long as the services out of which the claim arose were 
performed in carrying out the self-determination contract.



Sec. 900.198  Are Federal employees assigned to a self-determination contractor under the 

Intergovernmental Personnel Act or detailed under section 214 of the Public Health Service 
Act covered to the same extent that they would be if working directly for a Federal agency?

    Yes.



Sec. 900.199  Does FTCA coverage extend to health care practitioners to whom staff privileges 

have been extended in contractor health care facilities operated under a self-determination contract 
on the condition that such practitioner provide health services to IHS beneficiaries covered by FTCA?

    Yes, health care practitioners with staff privileges in a facility 
operated by a contractor are covered when they perform services to IHS 
beneficiaries. Such personnel are not covered when providing services to 
non-IHS beneficiaries.



Sec. 900.200  May persons who are not Indians or Alaska Natives assert 
claims under FTCA?

    Yes. Non-Indian individuals served under the contract whether or not 
on a fee-for-service basis, may assert claims under this subpart.

               Procedure for Filing Medical-Related Claims



Sec. 900.201  How should claims arising out of the performance of 
medical-related functions be filed?

    Claims should be filed on Standard Form 95 (Claim for Damage, Injury 
or Death) or by submitting comparable written information (including a 
definite amount of monetary damage claimed) with the Chief, PHS Claims 
Branch, Room 18-20, Parklawn Building, 5600 Fishers Lane, Rockville, MD 
20857, or at such other address as shall have been provided to the 
contractor in writing.



Sec. 900.202  What should a self-determination contractor or a 
contractor's employee do on receiving such a claim?

    They should immediately forward the claim to the PHS Claims Branch 
at the address indicated in Sec. 900.201 and notify the contractor's 
tort claims liaison.



Sec. 900.203  If the contractor or contractor's employee receives a 
summons and/or a complaint alleging a tort covered by FTCA, what should 
the contractor do?

    As part of the notification required by 28 U.S.C. 2679(c), the 
contractor should immediately inform the Chief, Litigation Branch, 
Business and Administrative Law Division, Office of General Counsel, 
Department of Health and Human Services, 330 Independence Avenue SW., 
Room 5362, Washington, DC 20201, and the contractor's tort claims 
liaison, and forward the following materials:
    (a) Four copies of the claimant's medical records of treatment, 
inpatient and outpatient, and any related correspondence, as well as 
reports of consultants;
    (b) A narrative summary of the care and treatment involved;
    (c) The names and addresses of all personnel who were involved in 
the care and treatment of the claimant;
    (d) Any comments or opinions that the employees who treated the 
claimant believe to be pertinent to the allegations contained in the 
claim; and
    (e) Other materials identified in Sec. 900.188(c).

[[Page 1138]]

                       Non-Medical Related Claims



Sec. 900.204  Is FTCA the exclusive remedy for a non-medical related tort 
claim arising out of the performance of a self-determination contract?

    Yes. Except as explained in Sec. 900.183(b), no claim may be filed 
against a self-determination contractor or employee based upon 
performance of non-medical-related functions under a self-determination 
contract. Claims of this type must be filed against the United States 
under FTCA.



Sec. 900.205  To what non-medical-related claims against 
self-determination contractors does FTCA apply?

    It applies to:
    (a) All tort claims arising from the performance of self-
determination contracts under the authority of the Act on or after 
October 1, 1989; and
    (b) Any tort claims first filed on or after October 24, 1989, 
regardless of when the incident which is the basis of the claim 
occurred.



Sec. 900.206  What employees are covered by FTCA for non-medical-related 
claims?

    (a) Permanent employees;
    (b) Temporary employees;
    (c) Persons providing services without compensation in carrying out 
a contract;
    (d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the 
services are provided in facilities not owned by the contractor); and
    (e) Federal employees assigned to the contract.



Sec. 900.207  How are non-medical related tort claims and lawsuits 
filed for IHS?

    Non-medical-related tort claims and lawsuits arising out of the 
performance of self-determination contracts with the Indian Health 
Service should be filed in the manner described in Sec. 900.201 (for 
both Sec. 900.207 and Sec. 900.208).



Sec. 900.208  How are non-medical related tort claims and lawsuits filed 
for DOI?

    Non-medical-related claims arising out of the performance of self-
determination contracts with the Secretary of the Interior should be 
filed in the manner described in Sec. 900.201 with the Assistant 
Solicitor, Procurement and Patents, Office of the Solicitor, Department 
of the Interior, Room 6511, 1849 C Street NW., Washington, DC 20240.



Sec. 900.209  What should a self-determination contractor or 
contractor's employee do on receiving a non-medical related tort claim?

    (a) If the contract is with DHHS, they should immediately forward 
the claim to the PHS Claims Branch at the address indicated in Sec. 
900.201 and notify the contractor's tort claims liaison.
    (b) If the contract is with DOI, they should immediately notify the 
Assistant Solicitor, Procurement and Patents, Office of the Solicitor, 
Department of the Interior, Room 6511, 1849 C Street N.W., Washington, 
DC 20240.



Sec. 900.210  If the contractor or contractor's employee receives a 
summons and/or complaint alleging a non-medical related tort covered 
by FTCA, what should an Indian tribe or tribal organization do?

    (a) If the contract is with the DHHS, they should immediately inform 
the Chief, Litigation Branch, Business and Administrative Law Division, 
Office of General Counsel, Department of Health and Human Services, 330 
Independence Avenue S.W., Room 5362, Washington, DC 20201 and the 
contractor's tort claims liaison.
    (b) If the contract is with the Department of the Interior, they 
should immediately notify the Assistant Solicitor, Procurement and 
Patents, Office of the Solicitor, Department of the Interior, Room 6511, 
1849 C Street N.W., Washington, DC 20240, and the contractor's tort 
claims liaison.

[[Page 1139]]



                 Subpart N_Post-Award Contract Disputes



Sec. 900.215  What does this subpart cover?

    (a) This subpart covers:
    (1) All HHS and DOI self-determination contracts, including 
construction contracts; and
    (2) All disputes regarding an awarding official's decision relating 
to a self-determination contract.
    (b) This subpart does not cover the decisions of an awarding 
official that are covered under subpart L.



Sec. 900.216  What other statutes and regulations apply to contract 
disputes?

    (a) The Contract Disputes Act of 1978 (CDA), Public Law 95-563 (41 
U.S.C. 601 as amended);
    (b) If the matter is submitted to the Interior Board of Contract 
Appeals, 43 CFR 4.110-126; and
    (c) The Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412 
and regulations at 43 CFR 4.601 through 4.619 (DOI) and 45 CFR 13 
(DHHS).



Sec. 900.217  Is filing a claim under the CDA our only option for 
resolving post-award contract disputes?

    No. The Federal government attempts to resolve all contract disputes 
by agreement at the awarding official's level. These are alternatives to 
filing a claim under the CDA:
    (a) Before issuing a decision on a claim, the awarding official 
should consider using informal discussions between the parties, assisted 
by individuals who have not substantially participated in the matter, to 
aid in resolving differences.
    (b) In addition to filing a CDA claim, or instead of filing a CDA 
claim, the parties may choose to use an alternative dispute resolution 
mechanism, pursuant to the provisions of the Administrative Dispute 
Resolution Act, Public Law 101-552, as amended, 5 U.S.C. 581 et seq., or 
the options listed in section 108(1)(b)(12) of the Indian Self-
Determination Act, as applicable.



Sec. 900.218  What is a claim under the CDA?

    (a) A claim is a written demand by one of the contracting parties, 
asking for one or more of the following:
    (1) Payment of a specific sum of money under the contract;
    (2) Adjustment or interpretation of contract terms; or
    (3) Any other claim relating to the contract.
    (b) However, an undisputed voucher, invoice, or other routing 
request for payment is not a claim under the CDA. A voucher, invoice, or 
routing request for payment may be converted into a CDA claim if:
    (1) It is disputed as to liability or amount; or
    (2) It is not acted upon in a reasonable time and written notice of 
the claim is given to the awarding official by the senior official 
designated in the contract.



Sec. 900.219  How does an Indian tribe, tribal organization, or Federal 
agency submit a claim?

    (a) An Indian tribe or tribal organization shall submit its claim in 
writing to the awarding official. The awarding official shall document 
the contract file with evidence of the date the claim was received.
    (b) A Federal agency shall submit its claim in writing to the 
contractor's senior official, as designated in the contract.



Sec. 900.220  Does it make a difference whether the claim is large or 
small?

    Yes. The Contract Disputes Act requires that an Indian tribe or 
tribal organization making a claim for more than $100,000 shall certify 
that:
    (a) The claim is made in good faith,
    (b) Supporting documents or data are accurate and complete to the 
best of the Indian tribe or tribal organization's knowledge and belief;
    (c) The amount claimed accurately reflects the amount believed to be 
owed by the Federal government; and
    (d) The person making the certification is authorized to do so on 
behalf of the Indian tribe or tribal organization.

[[Page 1140]]



Sec. 900.221  What happens next?

    (a) If the parties do not agree on a settlement, the awarding 
official will issue a written decision on the claim.
    (b) The awarding official shall always give a copy of the decision 
to the Indian tribe or tribal organization by certified mail, return 
receipt requested, or by any other method which provides a receipt.



Sec. 900.222  What goes into a decision?

    A decision shall:
    (a) Describe the claim or dispute;
    (b) Refer to the relevant terms of the contract;
    (c) Set out the factual areas of agreement and disagreement;
    (d) Set out the actual decision, based on the facts, and outline the 
reasoning which supports the decision; and
    (e) Contain the following language:

    This is a final decision. You may appeal this decision to the 
Interior Board of Contract Appeals (IBCA), U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, VA 22203. If you decide to 
appeal, you shall, within 90 days from the date you receive this 
decision, mail or otherwise furnish written notice to the IBCA and 
provide a copy to the individual from whose decision the appeal is 
taken. The notice shall indicate that an appeal is intended, and refer 
to the decision and contract number. Instead of appealing to the IBCA, 
you may bring an action in the U.S. Court of Federal Claims or in the 
United States District Court within 12 months of the date you receive 
this notice.



Sec. 900.223  When does an Indian tribe or tribal organization get the 
decision?

    (a) If the claim is for more than $100,000, the awarding official 
shall issue the decision within 60 days of the day he or she receives 
the claim. If the awarding official cannot issue a decision that 
quickly, he or she shall tell you when the decision will be issued.
    (b) If the claim is for $100,000 or less, and you want a decision 
within 60 days, you shall advise the awarding official in writing that 
you want a decision within that period. If you advise the awarding 
official in writing that you do want a decision within 60 days, the 
awarding official shall issue the decision within 60 days of the day he 
or she receives your written notice.
    (c) If your claim is for $100,000 or less and you do not advise the 
awarding official that you want a decision within 60 days, or if your 
claim exceeds $100,000 and the awarding official has notified you of the 
time within which a decision will be issued, the awarding official shall 
issue a decision within a reasonable time. What is ``reasonable'' 
depends upon the size and complexity of your claim, and upon the 
adequacy of the information you have given to the awarding official in 
support of your claim.



Sec. 900.224  What happens if the decision does not come within that 
time?

    If the awarding official does not issue a decision within the time 
required under Sec. 900.223, the Indian tribe or tribal organization 
may treat the delay as though the awarding official has denied the 
claim, and proceed according to Sec. 900.222(e),



Sec. 900.225  Does an Indian tribe or tribal organization get paid 
immediately if the awarding official decides in its favor?

    Yes. Once the awarding official decides that money should be paid 
under the contract, the amount due, minus any portion already paid, 
should be paid as promptly as possible, without waiting for either party 
to file an appeal. Any payment which is made under this subsection will 
not affect any other rights either party might have. In addition, it 
will not create a binding legal precedent as to any future payments.



Sec. 900.226  What rules govern appeals of cost disallowances?

    In any appeal involving a disallowance of costs, the Board of 
Contract Appeals will give due consideration to the factual 
circumstances giving rise to the disallowed costs, and shall seek to 
determine a fair result without rigid adherence to strict accounting 
principles. The determination of allowability shall assure fair 
compensation for the work or service performed, using cost and 
accounting data as guides, but not rigid measures, for ascertaining fair 
compensation.

[[Page 1141]]



Sec. 900.227  Can the awarding official change the decision after it 
has been made?

    (a) The decision of the awarding official is final and conclusive, 
and not subject to review by any forum, tribunal or government agency, 
unless an appeal or suit is timely commenced as authorized by the 
Contract Disputes Act. Once the decision has been made, the awarding 
official may not change it, except by agreement of the parties, or under 
the following limited circumstances:
    (1) If evidence is discovered which could not have been discovered 
through due diligence before the awarding official issued the decision;
    (2) If the awarding official learns that there has been fraud, 
misrepresentation, or other misconduct by a party;
    (3) If the decision is beyond the scope of the awarding official's 
authority;
    (4) If the claim has been satisfied, released or discharged; or
    (5) For any other reason justifying relief from the decision.
    (b) Nothing in this subpart shall be interpreted to discourage 
settlement discussions or prevent settlement of the dispute at any time.
    (c) If a decision is withdrawn and a new decision is issued that is 
not acceptable to the contractor, the contractor may proceed with the 
appeal based on the new decision. If no new decision is issued, the 
contractor may proceed under Sec. 900.224.
    (d) If an appeal or suit is filed, the awarding official may modify 
or withdraw his or her final decision.



Sec. 900.228  Is an Indian tribe or tribal organization entitled to 
interest if it wins its claim?

    Yes. If an Indian tribe or tribal organization wins the claim, it 
will be entitled to interest on the amount of the award. The interest 
will be calculated from the date the awarding official receives the 
claim until the day it is paid. The interest rate will be the rate which 
the Secretary of the Treasury sets for the Renegotiation Board under the 
Renegotiation Act of 1951, Public Law 92-41, 26 U.S.C. 1212 and 26 
U.S.C. 7447.



Sec. 900.229  What role will the awarding official play during an appeal?

    (a) The awarding official shall provide any data, documentation, 
information or support required by the IBCA for use in deciding a 
pending appeal.
    (b) Within 30 days of receiving an appeal or learning that an appeal 
has been filed, the awarding official shall assemble a file which 
contains all the documents which are pertinent to the appeal, including:
    (1) The decision and findings of fact from which the appeal is 
taken;
    (2) The contract, including specifications and pertinent 
modifications, plans and drawings;
    (3) All correspondence between the parties which relates to the 
appeal, including the letter or letters of claims in response to which 
the decision was issued;
    (4) Transcripts of any testimony taken during the course of the 
proceedings, and affidavits or statements of any witnesses on the matter 
in dispute, which were made before the filing of the notice of appeal 
with the IBCA; and
    (5) Any additional information which may be relevant.



Sec. 900.230  What is the effect of a pending appeal?

    (a) Indian tribes and tribal organizations shall continue 
performance of a contract during the appeal of any claims to the same 
extent they would had there been no dispute.
    (b) A pending dispute will not affect or bar the negotiation or 
award of any subsequent contract or negotiation between the parties.



                     Subpart O_Conflicts of Interest



Sec. 900.231  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 contracting Indian tribe 
or tribal organization and:
    (a) The financial interests of beneficial owners of Indian trust 
resources;
    (b) The financial interests of the United States relating to trust 
resources, trust acquisitions, or lands

[[Page 1142]]

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 if the conflict was not addressed 
when the contract was first negotiated. This section only applies where 
the financial interests of the Indian tribe or tribal organization are 
significant enough to impair the Indian tribe or tribal organization's 
objectivity in carrying out the contract, or a portion of the contract.



Sec. 900.232  What must an Indian tribe or tribal organization do if an 
organizational conflict of interest arises under a contract?

    This section only applies if the conflict was not addressed when the 
contract was first negotiated. When an Indian tribe or tribal 
organization becomes aware of an organizational conflict of interest, 
the Indian tribe or tribal organization must immediately disclose the 
conflict to the Secretary.



Sec. 900.233  When must an Indian tribe or tribal organization regulate 
its employees or subcontractors to avoid a personal conflict of interest?

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



Sec. 900.234  What types of personal conflicts of interest involving 
tribal officers, employees or subcontractors would have to be regulated 
by an Indian tribe?

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



Sec. 900.235  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 trust transactions 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) with an interest in the trust 
transactions under review. Such standards must also provide for 
sanctions or remedies for violation of the standards.



Sec. 900.236  May an Indian tribe elect to negotiate contract 
provisions on conflict of interest to take the place of this regulation?

    Yes. An Indian tribe and the Secretary may agree to contract 
provisions, concerning either personal or organizational conflicts, that 
address the issues specific to the program and activities contracted in 
a manner that provides equivalent protection against conflicts of 
interest to these regulations. Agreed-upon contract provisions shall be 
followed, rather than the related provisions of this regulation. For 
example, the Indian tribe and the Secretary may agree that using the 
Indian tribe's own written code of ethics satisfies the objectives of 
the personal conflicts provisions of this regulation, in whole or in 
part.



           Subpart P_Retrocession and Reassumption Procedures



Sec. 900.240  What does retrocession mean?

    A retrocession means the return to the Secretary of a contracted 
program, in whole or in part, for any reason, before the expiration of 
the term of the contract.



Sec. 900.241  Who may retrocede a contract, in whole or in part?

    An Indian tribe or tribal organization authorized by an Indian tribe 
may retrocede a contract.

[[Page 1143]]



Sec. 900.242  What is the effective date of retrocession?

    The retrocession is effective on the date which is the earliest date 
among:
    (a) One year from the date of the Indian tribe or tribal 
organization's request;
    (b) The date the contract expires; or
    (c) A mutually agreed-upon date.



Sec. 900.243  What effect will an Indian tribe or tribal organization's 
retrocession have on its rights to contract?

    An Indian tribe or tribal organization's retrocession shall not 
negatively affect:
    (a) Any other contract to which it is a party;
    (b) Any other contracts it may request; and
    (c) Any future request by the Indian tribe or tribal organization to 
contract for the same program.



Sec. 900.244  Will an Indian tribe or tribal organization's retrocession 
adversely affect funding available for the retroceded program?

    No. The Secretary shall provide not less than the same level of 
funding that would have been available if there had been no 
retrocession.



Sec. 900.245  What obligation does the Indian tribe or tribal 
organization have with respect to returning property that was used 
in the operation of the retroceded program?

    On the effective date of any retrocession, the Indian tribe or 
tribal organization shall, at the request of the Secretary, deliver to 
the Secretary all requested property and equipment provided under the 
contract which have a per item current fair market value, less the cost 
of improvements borne by the Indian tribe or tribal organization, in 
excess of $5,000 at the time of the retrocession.



Sec. 900.246  What does reassumption mean?

    Reassumption means rescission, in whole or in part, of a contract 
and assuming or resuming control or operation of the contracted program 
by the Secretary without consent of the Indian tribe or tribal 
organization. There are two types of reassumption: emergency and non-
emergency.



Sec. 900.247  Under what circumstances is a reassumption considered an 
emergency instead of non-emergency reassumption?

    (a) A reassumption is considered an emergency reassumption if an 
Indian tribe or tribal organization fails to fulfill the requirements of 
the contract and this failure poses:
    (1) An immediate threat of imminent harm to the safety of any 
person; or
    (2) Imminent substantial and irreparable harm to trust funds, trust 
lands, or interest in such lands.
    (b) A reassumption is considered a non-emergency reassumption if 
there has been:
    (1) A violation of the rights or endangerment of the health, safety, 
or welfare of any person; or
    (2) Gross negligence or mismanagement in the handling or use of:
    (i) Contract funds;
    (ii) Trust funds;
    (iii) Trust lands; or
    (iv) Interests in trust lands under the contract.



Sec. 900.248  In a non-emergency reassumption, what is the Secretary 
required to do?

    The Secretary must:
    (a) Notify the Indian tribes or tribal organizations served by the 
contract and the contractor in writing by certified mail of the details 
of the deficiencies in contract performance;
    (b) Request specified corrective action to be taken within a 
reasonable period of time, which in no case may be less than 45 days; 
and
    (c) Offer and provide, if requested, the necessary technical 
assistance and advice to assist the contractor to overcome the 
deficiencies in contract performance. The Secretary may also make a 
grant for the purpose of obtaining such technical assistance as provided 
in section 103 of the Act.



Sec. 900.249  What happens if the contractor fails to take corrective 
action to remedy the contract deficiencies identified in the notice?

    The Secretary shall provide a second written notice by certified 
mail to the Indian tribes or tribal organizations

[[Page 1144]]

served by the contract and the contractor that the contract will be 
rescinded, in whole or in part.



Sec. 900.250  What shall the second written notice include?

    The second written notice shall include:
    (a) The intended effective date of the reassumption;
    (b) The details and facts supporting the intended reassumption; and
    (c) Instructions that explain the Indian tribe or tribal 
organization's right to a formal hearing within 30 days of receipt of 
the notice.



Sec. 900.251  What is the earliest date on which the contract will be 
rescinded in a non-emergency reassumption?

    The contract will not be rescinded by the Secretary before the 
issuance of a final decision in any administrative hearing or appeal.



Sec. 900.252  In an emergency reassumption, what is the Secretary 
required to do?

    (a) Immediately rescind, in whole or in part, the contract;
    (b) Assume control or operation of all or part of the program; and
    (c) Give written notice to the contractor and the Indian tribes or 
tribal organizations served.



Sec. 900.253  What shall the written notice include?

    The written notice shall include the following:
    (a) A detailed statement of the findings which support the 
Secretary's determination;
    (b) A statement explaining the contractor's right to a hearing on 
the record under Sec. 900.160 and Sec. 900.161 within 10 days of the 
emergency reassumption or such later date as the contractor may approve;
    (c) An explanation that the contractor may be reimbursed for actual 
and reasonable ``wind up costs'' incurred after the effective date of 
the rescission; and
    (d) A request for the return of property, if any.



Sec. 900.254  May the contractor be reimbursed for actual and reasonable 
``wind up costs'' incurred after the effective date of rescission?

    Yes.



Sec. 900.255  What obligation does the Indian tribe or tribal 
organization have with respect to returning property that was 
used in the operation of the rescinded contract?

    On the effective date of any rescission, the Indian tribe or tribal 
organization shall, at the request of the Secretary, deliver to the 
Secretary all property and equipment provided under the contract which 
has a per item current fair market value, less the cost of improvements 
borne by the Indian tribe or tribal organization, in excess of $5,000 at 
the time of the retrocession.



Sec. 900.256  Will a reassumption adversely affect funding available 
for the reassumed program?

    No. The Secretary shall provide at least the same level of funding 
that would have been provided if there had been no reassumption.

[[Page 1145]]



     CHAPTER VI--OFFICE OF THE ASSISTANT SECRETARY, INDIAN AFFAIRS, 
                       DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
1000            Annual funding agreements under the Tribal 
                    Self-Government Act amendments to the 
                    Indian Self-Determination and Education 
                    Act.....................................        1147
1001            Self-Governance Program.....................        1203

[[Page 1147]]



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




                      Subpart A_General Provisions

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

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

                         Purpose and Definitions

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

                               Eligibility

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

                    Admission Into the Applicant Pool

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

          Withdrawal From a Consortium Annual Funding Agreement

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

        Subpart C_Section 402(d) Planning and Negotiation Grants

                       Purpose and Types of Grants

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

               Availability, Amount, and Number of Grants

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

                           Selection Criteria

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

[[Page 1148]]

                     Advance Planning Grant Funding

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

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

                         Purpose and Eligibility

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

                   Eligibility and Application Process

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

    Subpart E_Annual Funding Agreements for Bureau of Indian Affairs 
                                Programs

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

             Contents and Scope of Annual Funding Agreements

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

           Determining What Programs May Be Included in an AFA

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

                         Determining AFA Amounts

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

[[Page 1149]]

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

                Establishing Self-Governance Base Budgets

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

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

                                 Purpose

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

                               Eligibility

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

                                 Funding

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

                       Other Terms and Conditions

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

                  Reallocation, Duration and Amendments

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

       Subpart G_Negotiation Process for Annual Funding Agreements

                                 Purpose

1000.160 What is the purpose of this subpart?

[[Page 1150]]

                  Negotiating a Self-Governance Compact

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

            Negotiation of Initial Annual Funding Agreements

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

       Negotiation Process for Successor Annual Funding Agreements

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

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

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

                  Subpart I_Public Consultation Process

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

                     Subpart J_Waiver of Regulations

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

[[Page 1151]]

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

                         Subpart K_Construction

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

                      Subpart L_Federal Tort Claims

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

                         Subpart M_Reassumption

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

[[Page 1152]]

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

                         Subpart N_Retrocession

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

                    Subpart O_Trust Evaluation Review

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

                        Annual Trust Evaluations

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

                            Subpart P_Reports

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

                   Subpart Q_Miscellaneous Provisions

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

[[Page 1153]]

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

                             Supply Sources

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

                           Prompt Payment Act

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

                           Subpart R--Appeals

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

                     Subpart S_Conflicts of Interest

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

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

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

    Source: 65 FR 78703, Dec. 15, 2000, unless otherwise noted.

[[Page 1154]]



                      Subpart A_General Provisions



Sec. 1000.1  Authority.

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



Sec. 1000.2  Definitions.

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

[[Page 1155]]

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



Sec. 1000.3  Purpose and scope.

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



Sec. 1000.4  Policy statement.

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

[[Page 1156]]

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

[[Page 1157]]

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



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

                         Purpose and Definitions



Sec. 1000.10  What is the purpose of this subpart?

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



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

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



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

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



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

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

                               Eligibility



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

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



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

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



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

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



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

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

[[Page 1158]]

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



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

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



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

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



Sec. 1000.20  What is required in a planning report?

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

[[Page 1159]]



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

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



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

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

                    Admission Into the Applicant Pool



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

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



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

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



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

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



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

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



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

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



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

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

[[Page 1160]]

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



Sec. 1000.29  What happens if a Tribe/Consortium is selected from the 
applicant pool but does not execute a compact and an AFA during the 
calendar year?

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



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

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



Sec. 1000.31  May a Tribe/Consortium be selected to negotiate an AFA 
under section 403(c) without negotiating an AFA under section 403(b)(1) 
and/or section 403(b)(2)?

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

          Withdrawal From a Consortium Annual Funding Agreement



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

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



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

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

[[Page 1161]]

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



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

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

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

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



Sec. 1000.35  When a Tribe withdraws from a Consortium, is the Secretary 
required to award to the withdrawing Tribe a portion of funds associated 
with a construction project if the withdrawing Tribe so requests?

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



        Subpart C_Section 402(d) Planning and Negotiation Grants

                       Purpose and Types of Grants



Sec. 1000.40  What is the purpose of this subpart?

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



Sec. 1000.41  What types of grants are available?

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

[[Page 1162]]

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

               Availability, Amount, and Number of Grants



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

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



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

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



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

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



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

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

                           Selection Criteria



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

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



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

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



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

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

[[Page 1163]]

                     Advance Planning Grant Funding



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

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



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

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



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

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



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

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



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

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



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

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



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

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

[[Page 1164]]



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

                         Purpose and Eligibility



Sec. 1000.60  What is the purpose of this subpart?

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



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

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

                   Eligibility and Application Process



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

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



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

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



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

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



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

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



Sec. 1000.66  What must be included in the application?

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



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

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



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

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

[[Page 1165]]

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



Sec. 1000.69  How can a Tribe/Consortium obtain comments or selection 
documents received or utilized after OSG has made a decision on a 
planning grant application?

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



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

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



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

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



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

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



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

    Yes, see Sec. 1000.169.



    Subpart E_Annual Funding Agreements for Bureau of Indian Affairs 
                                Programs



Sec. 1000.80  What is the purpose of this subpart?

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



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

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

             Contents and Scope of Annual Funding Agreements



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

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



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

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



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

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



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

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

[[Page 1166]]

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 1167]]

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 1168]]

 
(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 1169]]

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 1170]]

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



Sec. 1000.107  Must a Tribe/Consortium with a base budget or base 
budget-eligible program amounts negotiated before January 16, 2001 
negotiate new Tribal shares and residual amounts?

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



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

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



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

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



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

                                 Purpose



Sec. 1000.120  What is the purpose of this subpart?

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



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

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

[[Page 1171]]

                               Eligibility



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

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



Sec. 1000.123  Are there non-BIA programs for which the Secretary must 
negotiate for inclusion in an AFA subject to such terms as the parties 
may negotiate?

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



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

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



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

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



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

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



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

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



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

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



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

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



Sec. 1000.130  Does a Tribe/Consortium need to be identified in an 
authorizing statute in order for a program or element of a program 
to be included in a non-BIA AFA?

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

[[Page 1172]]



Sec. 1000.131  Will Tribes/Consortia participate in the Secretary's 
determination of what is to be included on the annual list of available 
programs?

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



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

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



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

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



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

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



Sec. 1000.135  How will a bureau negotiate an annual funding agreement 
for a program of special geographic, historical, or cultural significance 
to more than one Tribe?

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



Sec. 1000.136  When will this determination be made?

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

                                 Funding



Sec. 1000.137  What funds are included in an AFA?

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

[[Page 1173]]

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



Sec. 1000.138  How are indirect cost rates determined?

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



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

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



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

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



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

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



Sec. 1000.142  Instead of the negotiated indirect cost rate, is it 
possible to establish a fixed amount or another negotiated rate for 
indirect costs where funds are limited?

    Yes, OMB Circular A-87 encourages agencies to test fee-for-service 
alternatives. If the parties agree to a fixed price, fee-for-service 
agreement, then they must use OMB Circular A-87 as a guide in 
determining the appropriate price (OMB circulars are available at http:/
/www.whitehouse.gov/omb/ or see 5 CFR 1310.3).Where limited appropriated

[[Page 1174]]

funds are available, negotiating the fixed cost option or another rate 
may facilitate reaching an agreement with that Tribe/Consortium.

                       Other Terms and Conditions



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

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

                 Reallocation, Duration, and Amendments



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

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



Sec. 1000.145  Do Tribes/Consortia need Secretarial approval to 
reallocate funds between Title-I eligible programs that the 
Tribe/Consortium administers under a non-BIA AFA?

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



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

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



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

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



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

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



       Subpart G_Negotiation Process for Annual Funding Agreements

                                 Purpose



Sec. 1000.160  What is the purpose of this subpart?

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

[[Page 1175]]

                  Negotiating a Self-Governance Compact



Sec. 1000.161  What is a self-governance compact?

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



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

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



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

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



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

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



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

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

            Negotiation of Initial Annual Funding Agreements



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

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



Sec. 1000.167  Who may initiate the information phase?

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



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

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



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

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

[[Page 1176]]

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



Sec. 1000.170  What is the letter of interest?

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



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

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



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

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

[[Page 1177]]

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



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

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

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

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

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



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

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

[[Page 1178]]



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

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



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

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



Sec. 1000.177  What happens when the AFA is signed?

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



Sec. 1000.178  When does the AFA become effective?

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



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

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

       Negotiation Process for Successor Annual Funding Agreements



Sec. 1000.180  What is a successor AFA?

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



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

    Although a written request is desirable to document the precise 
request

[[Page 1179]]

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



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

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



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



Sec. 1000.190  What is the purpose of this subpart?

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



Sec. 1000.191  To whom does this subpart apply?

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



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

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



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

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



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

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



Sec. 1000.195  When must an affected Tribe/Consortium or Tribal 
organization raise the issue of a limitation or reduction of services, 
contracts, or funding for which it is eligible?

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

[[Page 1180]]



Sec. 1000.196  What must be included in a finding by BIA or in a claim 
by an affected Tribe/Consortium or Tribal organization regarding the 
issue of a limitation or reduction of services?

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



Sec. 1000.197  How will BIA resolve a claim?

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



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

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



                  Subpart I_Public Consultation Process



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

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



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

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



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

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

[[Page 1181]]

enhance the consultation process, as mutually agreed.



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

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



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

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



                     Subpart J_Waiver of Regulations



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

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



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

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



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

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



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

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



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

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



Sec. 1000.225  Are meetings or discussions mandatory?

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



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

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

[[Page 1182]]



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

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



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

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



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

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



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

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



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

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



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

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



                         Subpart K_Construction



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

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

[[Page 1183]]

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



Sec. 1000.241  Does this subpart create an agency relationship?

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



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

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



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

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



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

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

[[Page 1184]]

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



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

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



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

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



Sec. 1000.247  May the Secretary require design provisions and other 
terms and conditions for construction programs or activities included 
in an AFA under section 403(c) of the Act?

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



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

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



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

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

[[Page 1185]]

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



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

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



Sec. 1000.251  What happens when a Tribe/Consortium is suspended for 
substantial failure to carry out the terms of an AFA without good 
cause and does not correct the failure during the suspension?

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



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

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



Sec. 1000.253  When a Tribe withdraws from a Consortium, is the 
Secretary required to award to the withdrawing Tribe a portion of funds 
associated with a construction project if the withdrawing Tribe so requests?

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



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

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



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

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



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

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

[[Page 1186]]

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



                      Subpart L_Federal Tort Claims



Sec. 1000.270  What does this subpart cover?

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



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

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



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

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



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

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



Sec. 1000.274  How long does the Federal government have to process a 
FTCA claim after the claim is received by the Federal agency, before a 
lawsuit may be filed?

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



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

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

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

[[Page 1187]]



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

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



Sec. 1000.277  To what extent shall the Tribe/Consortium cooperate with 
the Federal government in connection with tort claims arising out of the 
Tribe's/Consortium's performance?

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



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

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



Sec. 1000.279  Is FTCA the exclusive remedy for a tort claim, including 
a claim concerning personal injury or death, resulting from the performance 
of a self-governance AFA?

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

[[Page 1188]]

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



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

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



Sec. 1000.281  Does FTCA cover employees of the Tribe/Consortium who 
are paid by the Tribe/Consortium from funds other than those provided 
through the self-governance AFA?

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



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

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



Sec. 1000.283  If the Tribe/Consortium or Tribe's/Consortium's employee 
receives a summons and/or a complaint alleging a tort covered by FTCA, 
what should the Tribe/Consortium do?

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



                         Subpart M_Reassumption



Sec. 1000.300  What is the purpose of this subpart?

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



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

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



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

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



Sec. 1000.303  What is imminent jeopardy to natural resources?

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



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

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

[[Page 1189]]

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



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

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



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

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



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

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



Sec. 1000.308  What will the notice of reassumption include?

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



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

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



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

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



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

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

[[Page 1190]]



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

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



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

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



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

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



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

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



Sec. 1000.316  May the Tribe/Consortium be reimbursed for actual and 
reasonable ``wind up costs'' incurred after the effective date of 
retrocession?

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



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

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



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

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



                         Subpart N_Retrocession



Sec. 1000.330  What is the purpose of this subpart?

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



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

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



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

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



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

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

[[Page 1191]]



Sec. 1000.334  When will the retrocession become effective?

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



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

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



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

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



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

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



Sec. 1000.338  What happens to a Tribe's/Consortium's mature contract 
status if it has retroceded a program that is also available for 
self-determination contracting?

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



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

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



                    Subpart O_Trust Evaluation Review



Sec. 1000.350  What is the purpose of this subpart?

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



Sec. 1000.351  Does the Tribal Self-Governance Act of 1994 alter the 
trust responsibility of the United States to Indian Tribes and 
individuals under self-governance?

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



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

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

[[Page 1192]]

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



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

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

                        Annual Trust Evaluations



Sec. 1000.354  What is a trust evaluation?

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



Sec. 1000.355  How are trust evaluations conducted?

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



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

    Yes, if the parties agree.



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

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

[[Page 1193]]



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

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



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

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



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

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



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

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



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

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



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

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



Sec. 1000.364  Who is responsible for corrective action?

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



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

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

[[Page 1194]]



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

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



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

    This depends on the terms contained in the AFA.



                            Subpart P_Reports



Sec. 1000.380  What is the purpose of this subpart?

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



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

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



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

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



                   Subpart Q_Miscellaneous Provisions



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

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

[[Page 1195]]

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



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

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



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

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



Sec. 1000.393  How does the Privacy Act apply?

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



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

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



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

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



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

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



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

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



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

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



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

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

[[Page 1196]]

support some or all of the costs of investment services.



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

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



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

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



Sec. 1000.402  After a non-BIA AFA has been executed and the funds 
transferred to a Tribe/Consortium, can a bureau request the return 
of funds?

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



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

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



Sec. 1000.404  Must self-governance Tribes/Consortia comply with the 
Secretarial approval requirements of 25 U.S.C. 81; 82a; and 476 
regarding professional and attorney contracts?

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



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

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



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

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



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

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

[[Page 1197]]

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

                             Supply Sources



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

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

                           Prompt Payment Act



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

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



                            Subpart R_Appeals



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

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



Sec. 1000.421  What is the purpose of this subpart?

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



Sec. 1000.422  How must disputes be handled?

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

[[Page 1198]]



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

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



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

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



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

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



Sec. 1000.426  How is an informal conference held?

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



Sec. 1000.427  What happens after the informal conference?

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



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

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

[[Page 1199]]



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

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



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

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



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

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



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

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



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

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

[[Page 1200]]

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



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

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



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

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



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

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



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

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



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

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



                     Subpart S_Conflicts of Interest



Sec. 1000.460  What is an organizational conflict of interest?

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

[[Page 1201]]



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

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



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

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



Sec. 1000.463  What types of personal conflicts of interest involving 
tribal officers, employees or subcontractors would have to be regulated 
by a Tribe/Consortium?

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



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

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



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

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

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

                    Article I--Authority and Purpose

                          Section 1--Authority

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

                           Section 2--Purpose

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

[[Page 1202]]

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

              Article II--Terms, Provisions and Conditions

                             Section 1--Term

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

                        Section 2--Funding Amount

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

                     Section 3--Reports to Congress

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

                     Section 4--Regulatory Authority

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

               Section 5--Tribal Administrative Procedure

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

                  Article III--Obligations of the Tribe

                         Section 1--AFA Programs

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

            Section 2--Trust Services for Individual Indians

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

              Article IV--Obligations of the United States

                     Section 1--Trust Responsibility

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

                      Section 2--Trust Evaluations

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

                       Article V--Other Provisions

                         Section 1--Facilitation

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

                   Section 2--Officials Not To Benefit

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

[[Page 1203]]

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

               Section 3--Covenant Against Contingent Fees

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

                      Section 4--Sovereign Immunity

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

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

The Department of the Interior.

By:_____________________________________________________________________

By:_____________________________________________________________________



PART 1001_SELF-GOVERNANCE PROGRAM--Table of Contents




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

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

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



Sec. 1001.1  Purpose.

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



Sec. 1001.2  Applicant eligibility.

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



Sec. 1001.3  Priority ranking for negotiations.

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

[[Page 1204]]

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



Sec. 1001.4  Application review and approval.

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



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

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



Sec. 1001.6  Submitting applications.

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



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

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

[[Page 1205]]

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

[61 FR 17831, Apr. 23, 1996]



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

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

[61 FR 17832, Apr. 23, 1996]



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

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

[[Page 1206]]

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

[61 FR 17832, Apr. 23, 1996]



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

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

[[Page 1207]]

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

[61 FR 17832, Apr. 23, 1996]

[[Page 1209]]



    CHAPTER VII--OFFICE OF THE SPECIAL TRUSTEE FOR AMERICAN INDIANS, 
                       DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
1200            American Indian Trust Fund Management Reform 
                    Act.....................................        1211

[[Page 1211]]



PART 1200_AMERICAN INDIAN TRUST FUND MANAGEMENT REFORM ACT--Table of 
Contents




                      Subpart A_General Provisions

Sec.
1200.1 Purpose of this regulation.
1200.2 Definitions.
1200.3 What is the Department's policy on tribal management of trust 
          funds?
1200.4 May tribes exercise increased direction over their trust funds 
          and retain the protections of Federal trust status?
1200.5 What are the advantages and disadvantages of managing trust funds 
          under the options in Sec. 1200.4?
1200.6 How could a tribe receive future income directly rather than have 
          the government continue to collect it?
1200.7 Information collection.

              Subpart B_Withdrawing Tribal Funds From Trust

1200.10 Who is eligible to withdraw their tribal funds from trust?
1200.11 What funds may be withdrawn?
1200.12 What limitations and restrictions apply to withdrawn funds?
1200.13 How does a tribe apply to withdraw funds?
1200.14 What must the Tribal Management Plan contain?
1200.15 What is the approval process for management plans?
1200.16 What criteria will be used in evaluating the management plan?
1200.17 What special criteria will be used to evaluate management plans 
          for judgment or settlement funds?
1200.18 When does the Department's trust responsibility end?
1200.19 How can the plan be revised?
1200.20 How can a tribe withdraw additional funds?
1200.21 How may a tribe appeal denials under this part?

                Subpart C_Returning Tribal Funds to Trust

1200.30 How does a tribe notify the Department if it wishes to return 
          withdrawn funds to Federal trust status?
1200.31 What part of withdrawn funds can be returned to trust?
1200.32 How often can funds be returned?
1200.33 How can funds be returned?
1200.34 Can a tribe withdraw redeposited funds?

                     Subpart D_Technical Assistance

1200.40 How will the Department provide technical assistance for tribes?
1200.41 What types of technical assistance are available?
1200.42 Who can provide technical assistance?
1200.43 How can a tribe apply for technical assistance?
1200.44 What action will the Department take on requests for technical 
          assistance?

    Authority: 25 U.S.C. 4001.

    Source: 61 FR 67932, Dec. 26, 1996, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1200.1  Purpose of this regulation.

    This part describes the processes by which Indian tribes can manage 
tribal funds currently held in trust by the United States. It defines 
how tribes may withdraw their funds from trust status; how they may 
return funds to trust; and how they may request technical assistance or 
grants to help prepare plans to manage funds or to ensure the capability 
to manage those funds.



Sec. 1200.2  Definitions.

    As used in this part:
    Act means the American Indian Trust Fund Management Reform Act of 
1994 (Pub. L. 103-412, 108 Stat. 4239, 25 U.S.C. 4001).
    Agency Superintendent means the official in charge of a Bureau of 
Indian Affairs Agency.
    Bureau or BIA means the Bureau of Indian Affairs, Department of the 
Interior.
    Department or DOI means the Department of the Interior.
    Fiduciary Trust Officer means the designated OST official at the 
agency or regional office.
    General Counsel means the attorney for the tribe.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior.
    Regional Director means the Bureau of Indian Affairs official in 
charge of a Regional Office.
    Resolution means the formal manner in which a tribal government 
expresses its legislative will.
    Secretary means the Secretary of the Interior or his/her designee.
    Solicitor means the Office of the Solicitor, Department of the 
Interior.

[[Page 1212]]

    Special Trustee means the Special Trustee for American Indians 
appointed under title III of the Act.
    Tribal council means the elected or appointed governing officials of 
any tribe which is recognized by the Secretary.
    Tribe means any Indian tribe, band, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or regional or 
village corporation as defined or established pursuant to the Alaska 
Native Claims Settlement Act which is federally recognized by the U.S. 
Government for special programs and services provided by the Secretary 
to Indians because of their status as Indians. For this purpose, it also 
means two or more tribes joined for any purpose, the joint assets of 
which include funds held in trust by the Secretary. An example of this 
would be the KCA (consisting of the Kiowa, Comanche and Apache Tribes).
    Us means the Department of the Interior, i.e., the Secretary of the 
Interior or his/her designee.
    We means the Department of the Interior, i.e., the Secretary of the 
Interior or his/her designee.

[61 FR 67932, Dec. 26, 1996, as amended at 71 FR 15339, Mar. 28, 2006]



Sec. 1200.3  What is the Department's policy on tribal management of 
trust funds?

    (a) We will give tribes as much responsibility as they desire for 
the management of their tribal funds that we currently hold in trust.
    (b) Title II of the American Indian Trust Fund Management Reform 
Act, implemented by these regulations, offers tribes one approach for 
assuming increased management of their funds that we now hold in trust 
and administer. Under title II, a tribe may completely remove its funds 
from Federal trust status and manage them as it wishes, subject to the 
requirements and conditions in this part. When a tribe withdraws its 
funds under this part, it may invest those funds in equities or other 
investment vehicles that are statutorily unavailable to us.



Sec. 1200.4  May tribes exercise increased direction over their trust 
funds and retain the protections of Federal trust status?

    Yes. The Tribal Self-Governance Act (25 U.S.C. 458) and the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 
provide other options for trust funds management. A tribe may choose to 
manage its trust funds under the provisions of these Acts if it wishes. 
These options are covered by 25 CFR part 900 (the ``Indian Self-
Determination and Education Assistance Act Program'') and 25 CFR part 
1000 (the ``Self-Governance Program'').



Sec. 1200.5  What are the advantages and disadvantages of managing 
trust funds under the options in Sec. 1200.4?

    Under these other options, the funds remain in Federal trust status 
and the tribe can exercise a range of control over their management. 
However, the tribe has fewer investment options than it has when it 
withdraws its funds completely from trust status. If a tribe chooses to 
keep its funds in trust status, the tribe is subject to the same 
statutory investment restrictions that bind us. That means that the 
tribe's investments are limited to bank deposits and securities 
guaranteed by the United States. (See 25 U.S.C. 162a for specific 
statutory investment restrictions.)



Sec. 1200.6  How could a tribe receive future income directly rather 
than have the government continue to collect it?

    If a tribe wishes to receive future income directly, the tribe may 
contact a Fiduciary Trust Officer located at the agency or regional 
office.

[71 FR 15339, Mar. 28, 2006]



Sec. 1200.7  Information collection.

    (a) The information collection requirements contained in subpart B 
of this part have been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 et seq., and assigned OMB Control Number 1035-0003. 
Information is also collected in subpart D through the use of the 
following standard forms:

[[Page 1213]]

    (1) SF 424, Application for Federal Assistance, OMB Control Number 
0348-0043; and
    (2) SF 424A, Budget Information, OMB Control Number 0348-0044.
    (b) Information collected in Sec. 1200.13 (How does a tribe apply 
to withdraw funds?) will be used to determine the eligibility of 
applicants, and the capability of tribes or their contractors to manage 
and invest large blocks of funds.
    (c) Information collected in Sec. 1200.43, (How can a tribe apply 
for technical assistance?) will be used to determine the eligibility of 
applicants, as well as the level of need for technical assistance, in 
order for tribes to develop Management Plans and to complete the 
application for withdrawal process.

[61 FR 67932, Dec. 26, 1996, as amended at 71 FR 15339, Mar. 28, 2006]



              Subpart B_Withdrawing Tribal Funds From Trust



Sec. 1200.10  Who is eligible to withdraw their tribal funds from trust?

    Any tribe for whom we manage funds in trust.



Sec. 1200.11  What funds may be withdrawn?

    A tribe may withdraw some or all funds that we hold in trust if we 
approve a plan that it submits under this part.



Sec. 1200.12  What limitations and restrictions apply to withdrawn funds?

    (a) A tribe may withdraw funds appropriated to satisfy judgments of 
the Indian Claims Commission (ICC) and the Court of Federal Claims and 
that we hold under the Indian Judgment Funds Use and Distributions Act 
(25 U.S.C. 1401) or another act of Congress if:
    (1) The tribe uses the funds as specified in the previously approved 
judgment fund plan, and;
    (2) The tribe withdraws only funds held for Indian tribes and does 
not include any funds held for individual tribal members.
    (b) A tribe may withdraw funds appropriated to satisfy settlement 
agreements relating to certain tribal claims and that we hold and manage 
for the tribe pursuant to an act of Congress if:
    (1) The tribe uses the funds as specified in the previously approved 
settlement act plan;
    (2) The tribe withdraws only funds held for Indian tribes and does 
not include any funds held for individual tribal members; and
    (3) It is determined that there is no provision in the act or 
settlement agreement requiring that the funds remain in trust to 
implement the act or agreement that cannot be waived.
    (c) Tribal funds commonly known as ``Proceeds of Labor'' funds, 
usually income to trust resources, are generally withdrawn under normal 
tribal budgeting procedures, but may also be withdrawn from trust under 
this part. These funds may be returned to trust under the provisions of 
subpart C of this part.



Sec. 1200.13  How does a tribe apply to withdraw funds?

    To withdraw funds, a tribe must submit four copies of its 
application and the attachments listed in this section to: Director, 
Office of External Affairs, Office of the Special Trustee for American 
Indians, Department of the Interior, MS-5140, 1849 C Street NW., 
Washington, DC 20240. We will notify the tribe if the application is 
incomplete and will help the tribe complete the application if 
requested. When we determine that the application is complete, we will 
send copies to the appropriate agency superintendent and regional 
director, and to the Special Trustee and the Solicitor. Each application 
package must contain the items listed below.
    (a) Proof that the tribe has notified its members of its intent to 
remove funds from trust and that, when the request is approved, the 
tribe and not the United States Government will be liable for funds 
management. Notification must be by the method(s) that the tribe 
customarily uses to notify its members of significant tribal actions. 
The notification must identify the specific funds to be withdrawn.
    (b) A tribal resolution that:
    (1) Expressly authorizes the withdrawal of the funds and indicates 
the

[[Page 1214]]

(approximate) dollar amount of the funds to be withdrawn;
    (2) Expressly acknowledges that the funds, once withdrawn in 
accordance with the Act, will no longer be held in trust status by the 
United States, and that we have no further liability or responsibility 
for the funds; and
    (3) Acknowledges that:
    (i) Neither we nor the tribe necessarily accept the account balances 
at the time of withdrawal as accurate; and
    (ii) Neither we nor the tribe have waived any rights regarding the 
balances, including the right to seek compensation for incorrect 
balances.
    (c) A copy of a formal agreement between the tribe and the manager 
of the funds to be withdrawn, in which the manager agrees to:
    (1) Comply with the terms of the plan we approve under Sec. 1200.15 
and make only those changes that conform to revision procedures in the 
approved plan and the requirements of Sec. 1200.19; and
    (2) Transfer funds to the tribe or another manager only after 
receiving a valid tribal resolution calling for this transfer and proof 
that the tribe has notified its members of intent to transfer the funds. 
The resolution must clearly state that:
    (i) The funds are being withdrawn to be reinvested by the tribe in a 
manner consistent with the goals and strategies of the approved plan; 
and
    (ii) The fund managers will continue to follow any previously 
approved distribution plan conditions.
    (d) A legal opinion by the tribe's attorney or its general counsel 
that:
    (1) The resolution referred to in paragraph (b) of this section was 
enacted under procedures established by the tribe's organic documents or 
oral tradition;
    (2) The tribal governing body has the legal authority to withdraw 
funds from trust status and that the withdrawal does not require a 
referendum vote or other procedure beyond a tribal council resolution; 
and
    (3) If the funds to be withdrawn are judgment or settlement funds, 
that the tribe's plan for managing the funds meets the requirements of 
any applicable judgment fund use and distribution plan or settlement 
act.
    (e) The results of a tribal referendum, if one was held.
    (f) If the funds to be withdrawn are judgment or settlement funds, a 
copy of the act and/or plan that sets out the conditions for the uses of 
the funds or income from them.
    (g) A management plan as provided for in Sec. 1200.14.

[61 FR 67932, Dec. 26, 1996, as amended at 71 FR 15339, Mar. 28, 2006]



Sec. 1200.14  What must the Tribal Management Plan contain?

    The Tribal Management Plan required by Sec. 1200.13 must include 
each of the following:
    (a) Tribal investment goals and the strategy for achieving them.
    (b) A description of the protection against the substantial loss of 
principal, as set forth in Sec. 1200.16.
    (c) A copy of the tribe's ordinances and procedures for managing or 
overseeing the management of the funds to be withdrawn. These must 
include adequate protections against fraud, abuse, and violations of the 
management plan.
    (d) A description of the tribe's previous experience managing or 
overseeing the management of invested funds. This should include factual 
data of past performance of tribally-managed funds (i.e., audited 
reports) and the identity and qualifications of the tribe's investment 
officer.
    (e) A description of the capability of all of the individuals or 
investment institutions that will be involved in managing and investing 
the funds for the tribe. Provide copies of State or Federal security 
applications for account executive(s).
    (1) Investment entities named must submit:
    (i) Ownership information (including Central Registry Depository 
(CRD) numbers);
    (ii) Asset size and capitalization;
    (iii) Assets under management;
    (iv) Performance statistics on managed accounts for the past 5 
years; and
    (v) Any adverse actions by licensing and/or regulatory bodies within 
the past 5 years.
    (2) In addition, we may ask about:
    (i) Soft dollar arrangements;

[[Page 1215]]

    (ii) Affiliation with broker dealers, banks, insurance and/or 
investment companies;
    (iii) Research done in house;
    (iv) Recent changes in active portfolio managers; and
    (v) Any other information necessary to make an adequate evaluation 
of the proposed plan.
    (f) A description of how the plan will ensure that the fund manager 
will comply with any conditions established in judgment fund plans or 
settlement acts.
    (g) Proof of liability insurance of the investment firm.
    (h) Proof of liability insurance that protects against fraud for 
those Tribal Council members with authority to disburse funds. In many 
tribes the chairperson, and the comptroller and/or the tribal treasurer, 
for example, would be the positions having this authority.
    (i) A plan for custodianship of investment securities that includes:
    (1) Name of persons in the tribe who can direct the custodian;
    (2) Name of the custodian;
    (3) Copy of intended custodian agreement;
    (4) Size of custodian operation;
    (5) Disclosure of any security lending provisions; and
    (6) Insurance coverage.
    (j) A tribal council agreement to provide an annual audit and report 
on performance of withdrawn funds to the tribal membership. The 
agreement must include a description of the steps (including audit 
performance and reporting) the tribe will take to ensure its membership 
that the tribe is continuing to comply with the terms of the plan 
submitted and approved pursuant to judgment fund limitations (if any) 
and/or the terms of the Act.
    (k) The proposed date for transfer of funds.
    (l) A statement as to whether the tribe chooses to receive the 
withdrawal as a cash balance transfer, as a transfer of marketable 
investments that we own for the tribe, or as a combination of the two.
    (1) A cash balance transfer may require us to sell bonds, notes, or 
other investments that we purchased when investing the tribe's monies.
    (2) We cannot transfer non-marketable securities to a tribe. We can 
only purchase and hold them and must sell them back to the U.S. 
Treasury.
    (3) If we sell a tribe's security at a loss (i.e., when market value 
is less than book value or carrying value) we will first notify the 
tribe. The tribe must instruct us to proceed with the sale and must 
agree not to hold us responsible for the loss before we will make the 
sale.
    (4) If the tribe asks us to transfer marketable securities, upon 
proper instructions from the new tribal custodian, we will order our 
custodian to physically transfer the proper security to the new 
custodian on the agreed upon date.
    (m) Agreement that judgment award funds will have segregated 
accounts.
    (n) A description of the procedures for amending or revising the 
plan.

[61 FR 67932, Dec. 26, 1996, as amended at 71 FR 15339, Mar. 28, 2006]



Sec. 1200.15  What is the approval process for management plans?

    The Secretary will approve or disapprove each management plan, based 
in part upon our recommendation.
    (a) We will determine the completeness of the application, provide 
for adequate professional review of the application and the management 
plan, and provide technical assistance as necessary to make an 
application complete.
    (b) We will coordinate with regional directors in confirming 
authority of tribal governments to make requests.
    (c) We will approve or disapprove a request within 90 calendar days 
of receiving a completed application. This 90-day period does not 
include time that we spend awaiting a response from the tribe for 
additional information that we have requested. All determinations will 
be in writing, and all responses will be by certified mail.
    (d) If we find that a plan does not meet the criteria in Sec. 
1200.16, we will notify the tribe of shortcomings of the request, and 
allow the tribe to respond before recommending formal disapproval.
    (e) Before final approval, we will reach agreement with the tribe on 
how many days after final approval we will

[[Page 1216]]

transfer the funds. We will transfer the funds as soon after final 
approval as the tribe or manager is ready to receive them, unless we 
need additional time to sell existing instruments.

[61 FR 67932, Dec. 26, 1996, as amended at 71 FR 15339, Mar. 28, 2006]



Sec. 1200.16  What criteria will be used in evaluating the management 
plan?

    Each plan must be approved by the appropriate tribal governing body, 
and must be accompanied by a resolution approving the plan. The plan 
must be reasonable in light of the trust responsibility and the 
principles of Indian self-determination, and other appropriate factors, 
including, but not limited to, the factors listed below:
    (a) We will evaluate the individuals or entities that will manage 
the funds to be withdrawn, or that will advise the tribe on investing 
the funds to be withdrawn in order to determine if they have the 
capability and experience to manage the funds. Among the elements we 
will evaluate are: the number of years in business, the performance 
record for funds management, and the ability to compensate the tribe if 
the entity is found liable for failing to comply with the tribe's 
management plan (i.e., its assets, bonding, and insurance).
    (b) We will review the tribe's experience in managing investments. 
We will compare this experience to the complexity of the proposed 
management plan to determine whether the tribe has the experience to 
manage its proposed plan or whether it should begin with a less complex 
approach.
    (c) We will evaluate the tribe's internal audit and control systems 
for overseeing or monitoring its investment activity.
    (d) We will evaluate the adequacy of protection against substantial 
loss of principal. Our determination will include a thorough evaluation 
of the tribe's investment plan including:
    (1) The goals and objectives;
    (2) The proposed uses of the fund in order to meet business 
objectives;
    (3) The size and diversity of the investment portfolio (for example, 
the class of stocks and the mixture of types of investments);
    (4) The financial condition of the tribe;
    (5) The inherent riskiness of the proposed investments; and
    (6) The tribe's projected need and proposed timeframes to draw down 
the funds being invested or the income from them.
    (e) We will determine the likelihood that the plan will be followed. 
We will base this determination on the contents of the agreement between 
the tribe and the fund manager and other appropriate factors.



Sec. 1200.17  What special criteria will be used to evaluate management 
plans for judgment or settlement funds?

    For judgment or settlement funds, in addition to the criteria in 
Sec. 1200.16, we will determine if the plan adequately provides for 
compliance with any conditions, uses of funds, or other requirements 
established by the appropriate judgment fund plan or settlement act.



Sec. 1200.18  When does the Department's trust responsibility end?

    Our trust responsibility for funds withdrawn under this part ends on 
the date that the funds are withdrawn. However at the time of withdrawal 
neither we nor the tribe may be deemed to have accepted the account 
balance at the time of withdrawal as accurate; or waived any rights 
regarding the balance and our ability to seek compensation.



Sec. 1200.19  How can the plan be revised?

    Once a tribe has withdrawn its funds, the tribe may revise its plan 
without our approval. All revisions should conform to the procedures 
outlined in the approved management plan. The tribe should inform its 
members of all revisions to a plan through normal tribal procedures 
before the revisions are implemented.



Sec. 1200.20  How can a tribe withdraw additional funds?

    (a) If a tribe has withdrawn funds under an approved tribal 
management plan and wishes to withdraw additional funds that will be 
managed under the same plan, it need not submit a complete new 
application. The tribe must:

[[Page 1217]]

    (1) Notify us of the additional amount it intends to withdraw and 
whether the funds to be withdrawn are in kind or cash. (Written 
notification should be provided to our address in Sec. 1200.13);
    (2) Send us a tribal resolution approving the new withdrawal and 
certifying that the funds are being withdrawn subject to the same 
conditions and that they will be managed under the plan in the original 
approved application;
    (3) Send us a copy of the most recent compliance audit or investment 
report.
    (b) After we finish our review we will release the additional funds, 
unless the compliance audit or investment report indicates that the 
tribe is not complying with its management plan. In this case, we will 
not release the additional funds until the tribe demonstrates that it is 
complying with the management plan.



Sec. 1200.21  How may a tribe appeal denials under this part?

    If we deny a request or do not approve an application within 90 days 
of a request, the tribe may address any problems that we identify and 
resubmit a revised request, seek technical assistance, or appeal the 
denial under 43 CFR part 4.



                Subpart C_Returning Tribal Funds to Trust



Sec. 1200.30  How does a tribe notify the Department if it wishes to 
return withdrawn funds to Federal trust status?

    If a tribe elects to return some or all of the funds it has 
withdrawn from Federal trust status pursuant to this Act, it must first 
notify us in writing at our address in Sec. 1200.13. This notification 
must provide a proposed date for the return of the funds, as well as the 
amount of funds to be returned, or actual securities to be delivered to 
the appropriate custodian.



Sec. 1200.31  What part of withdrawn funds can be returned to trust?

    A tribe may return all or a portion of the principal which was 
removed from trust under this Act along with earnings and profits. We 
will verify the amount declared for earnings before we accept a return. 
We will accept any amount less than the original principal amount as a 
principal amount.



Sec. 1200.32  How often can funds be returned?

    Tribes may return all or part of withdrawn funds no more than twice 
a year, beginning no sooner than six months after date of withdrawal, 
except with approval of the Secretary.



Sec. 1200.33  How can funds be returned?

    Funds may be returned either as cash or securities, which meet the 
requirements for investments in 25 U.S.C. 162a. Cash can be transferred 
to the US Treasury by Electronic Funds Transfers (EFT), or the Automated 
Clearing House (ACH) process. Tribes must coordinate the transfer of 
ownership in securities with us to ensure proper credit to the tribe. 
The securities must meet investment restrictions contained in 25 U.S.C. 
162a.



Sec. 1200.34  Can a tribe withdraw redeposited funds?

    Yes. If a tribe wishes to withdraw redeposited funds from Federal 
trust status, it must submit a written request to do so, accompanied by 
a new resolution and any revisions it wishes to make in its original 
management plan.



                     Subpart D_Technical Assistance



Sec. 1200.40  How will the Department provide technical assistance 
for tribes?

    (a) We will provide direct or contract technical assistance, in 
accordance with appropriations availability to tribes for developing, 
implementing, and managing Indian trust fund investment plans. We will 
ensure that our legal, financial and other expertise is made fully 
available to advise tribes in developing, implementing, and managing 
investment plans.
    (b) We may award grants to tribes for developing and implementing 
plans for investing Indian tribal trust funds.
    (c) Tribes may also obtain technical assistance on their own.

[[Page 1218]]



Sec. 1200.41  What types of technical assistance are available?

    The types of technical assistance include: investment planning; 
accounting; selection of investment managers; monitoring of investments; 
asset management; or other assistance appropriate to support funds 
withdrawal.



Sec. 1200.42  Who can provide technical assistance?

    A sample of competent providers includes any of the following 
entities with the appropriate skills and capabilities: available DOI or 
OST staff; intertribal organizations; public agencies; and contracted 
private investment firms.



Sec. 1200.43  How can a tribe apply for technical assistance?

    (a) Tribes wishing technical assistance may request it by sending us 
a letter along with a tribal resolution outlining the technical 
assistance required, tribal resources which may be applied to the need, 
and suggested provider, if known. The resolution must state clearly that 
the assistance is needed for developing, implementing, or managing an 
investment plan under the provisions of this authority.
    (b) Tribes requesting funds for technical assistance must send a 
completed SF-424, APPLICATION FOR FEDERAL ASSISTANCE, and SF-424A, 
BUDGET INFORMATION, along with a tribal resolution, detailing the 
assistance specifically requested, and the suggested provider to our 
address in Sec. 1200.13.
    (c) We will make grants subject to funds availability. We will 
publish a notice in the Federal Register concerning the availability of 
funding, deadlines for grants, the application process, and approval 
criteria. If funding is limited, grants will be awarded based on 
criteria that we feel will best meet the intent of the Act. We will 
consult with tribes in determining annual criteria. Unsolicited grant 
requests will not be accepted.



Sec. 1200.44  What action will the Department take on requests for 
technical assistance?

    We will respond in writing to all requests for technical assistance 
and grants, advising of decision, availability of appropriate expertise 
and funding, and anticipated delivery of the service.


[[Page 1219]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1221]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2006)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100-199)
        II  Office of Management and Budget Circulars and Guidance 
                (200-299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 1222]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 1223]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Part 9901)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)

[[Page 1224]]

     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 1225]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

[[Page 1226]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

[[Page 1227]]

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 1228]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 1229]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)

[[Page 1230]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 1231]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 1232]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 1233]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)

[[Page 1234]]

       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 1235]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 1236]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees' 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)

[[Page 1237]]

        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 1238]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 1239]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2006)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 1240]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 1241]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, II
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 1242]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 1243]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Defense Acquisition Regulations System          48, 2
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 1244]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 1245]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52

[[Page 1246]]

Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII

[[Page 1247]]

Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1249]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

25 CFR
                                                                   66 FR
                                                                    Page
Chapter I
11.100 (a)(14) added; eff. 5-3-01 through 5-1-02...................22121
    (a)(15) added; eff. to 9-18-02.................................48087
15 Revised..........................................................7089
20.100 Amended; interim............................................15030
20.300 (a) revised; interim........................................15030
84 Added...........................................................38923
89 Authority citation revised......................................38926
89.1 Removed.......................................................38926
89.2 Removed.......................................................38926
89.3 Removed.......................................................38926
89.4 Removed.......................................................38926
89.5 Removed.......................................................38926
89.6 Removed.......................................................38926
89.7 Removed.......................................................38926
89.8 Removed.......................................................38926
89.9 Removed.......................................................38926
89.10 Removed......................................................38926
89.11 Removed......................................................38926
89.12 Removed......................................................38926
89.13 Removed......................................................38926
89.14 Removed......................................................38926
89.15 Removed......................................................38926
89.16 Removed......................................................38926
89.17 Removed......................................................38926
89.18 Removed......................................................38926
89.19 Removed......................................................38926
89.20 Removed......................................................38926
89.21 Removed......................................................38926
89.22 Removed......................................................38926
89.24 Removed......................................................38926
89.25 Removed......................................................38926
89.26 Removed......................................................38926
103 Revised.........................................................3867
    Regulation at 66 FR 3867 eff. date delayed to 4-17-01...........8898
103.25 Corrected...................................................46307
114 Removed.........................................................7094
115 Revised.........................................................7094
115.701 Redesignated in part as 115.702.............................8768
115.702 Redesignated from 115.701 in part; heading and 
        introductory text revised...................................8768
151 Revised.........................................................3458
    Regulations at 66 FR 3452 and 10815 eff. date delayed...19403, 31976
    Regulation at 66 FR 3458 eff. date delayed........8899, 10816, 42415
    Regulations at 66 FR 3458, 8899, 10816, 19403, 31976 and 42415 
withdrawn..........................................................56608
162 Revised.........................................................7109
166 Revised.........................................................7126
170.4b Added; eff. 1-9-01 through 9-30-01...........................1580
    Revised; eff. to 9-30-01.......................................17078
183 Added..........................................................21088
Chapter III
513 Added; interim.................................................58057

                                  2002

25 CFR
                                                                   67 FR
                                                                    Page
Chapter I
11.100 (a)(14) added...............................................44355
11.110 (a)(15) added...............................................59783
21 Removed.........................................................77678
39.11 (h)(2)(v) and (i)(6) through (18) removed....................52830

[[Page 1250]]

39.12 Revised......................................................52830
39.13 Revised......................................................52830
46.3 Revised.......................................................13570
103.22 Corrected...................................................63543
112 Removed........................................................54735
116 Removed........................................................54735
121 Removed........................................................54735
123 Removed........................................................54735
125 Removed........................................................54735
154 Removed........................................................54735
156 Removed........................................................54735
170.4b Revised; eff. 7-8-02 through 9-30-02........................44357
178 Removed........................................................54735
243 Removed........................................................54735
256.2 Amended......................................................77920
256.5 Revised......................................................77920
256.7 Table revised................................................77920
256.8 (b) amended..................................................77920
256.9 Amended......................................................77920
256.10 Amended.....................................................77921
256.11 Revised.....................................................77921
256.13 (a), (b), (c) and (g)(1) amended............................77921
256.14 (a) and (e) amended; (b)(2) table revised...................77921
256.15 Heading revised.............................................77922
256.17 Amended.....................................................77922
256.19 Amended.....................................................77922
256.23 Heading revised.............................................77922
256.24 Removed; new 256.24 redesignated from 256.25................77922
256.25 Redesignated as 256.24; new 256.25 redesignated from 256.26
                                                                   77922
256.26 Redesignated as 256.25; new 256.26 redesignated from 256.27
                                                                   77922
256.27 Redesignated as 256.26; new 256.27 redesignated from 256.28
                                                                   77922
256.28 Redesignated as 256.27; new 256.28 redesignated from 256.29
                                                                   77922
256.29 Redesignated as 256.28......................................77922
Chapter III
502.7 Revised......................................................41172
502.8 Revised......................................................41172
502.9 Revised......................................................41172
513 Comment period extended.........................................1274
542 Revised........................................................43400
Chapter V
900 Amended........................................................34602

                                  2003

25 CFR
                                                                   68 FR
                                                                    Page
Chapter I
11.100 (a)(15) removed.............................................44616
170.4b Added; eff. 1-13-03 through 9-30-03..........................1005
    Revised (temporary).....................................33629, 48549
    Revised; eff. through 9-30-04..................................67943
Chapter II
309.2 (d) revised..................................................35169
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.3 Redesignated as 309.24.......................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.4 Redesignated as 309.25.......................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.5 Redesignated as 309.26.......................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.6 Redesignated as 309.27; new 309.6 added......................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.7 Added........................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.8 Added........................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.9 Added........................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.10 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.11 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.12 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.13 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.14 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.15 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.16 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.17 Added.......................................................35170

[[Page 1251]]

    Regulation at 68 FR 35169 eff. date corrected..................36745
309.18 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.19 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.20 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.21 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.22 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.23 Added.......................................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.24 Redesignated from 309.3.....................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.25 Redesignated from 309.4.....................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.26 Redesignated from 309.5.....................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.27 Redesignated from 309.6.....................................35170
    Regulation at 68 FR 35169 eff. date corrected..................36745

                                  2004

25 CFR
                                                                   69 FR
                                                                    Page
Chapter I
11.100 (a)(14) revised.............................................51559
170 Revised........................................................43102
    Meetings.......................................................45586
    Regulation at 69 FR 43102 eff. date delayed to 11-13-04........60957
170.4b Revised.....................................................28823
Chapter III
514.1 (d) revised...................................................2505

                                  2005

25 CFR
                                                                   70 FR
                                                                    Page
Chapter I
11.100 (a)(15) added...............................................15761
15 Revised.........................................................11808
30 Added...........................................................22200
31.1 Removed.......................................................21951
31.5 Removed.......................................................21951
36.1 (b) removed; (c) redesignated as new (b)......................21951
36.2 (a), (b), (c) designation, (d) and (e) removed................21951
36.11 (c) removed; (d) redesignated as new (c).....................21951
36.20 (a) and (b) removed; (c), (d) and (e) redesignated as new 
        (a), (b) and (c)...........................................21951
36.60--36.61 (Subpart G) Removed; new Subpart G redesignated from 
        Subpart H..................................................21951
36.70--36.77 (Subpart H) Redesignated as new Subpart G.............21951
37 Added...........................................................22204
39 Authority citation revised......................................22205
39.1--39.3 (Subpart A) Revised.....................................22205
39.100--39.160 (Subpart B) Revised.................................22205
39.110 Redesignated as 39.900......................................33702
39.111 Redesignated as 39.901......................................33702
39.112 Redesignated as 39.902......................................33702
39.113 Redesignated as 39.903......................................33702
39.114 Redesignated as 39.904......................................33702
39.120 Redesignated as 39.1000.....................................33702
39.121 Redesignated as 39.1001.....................................33702
39.122 Redesignated as 39.1002.....................................33702
39.123 Redesignated as 39.1003.....................................33702
39.130 Redesignated as 39.1100.....................................33702
39.131 Redesignated as 39.1101.....................................33702
39.140 Redesignated as 39.1200.....................................33702
39.141 Redesignated as 39.1201.....................................33702
39.142 Redesignated as 39.1202.....................................33702
39.143 Redesignated as 39.1203.....................................33702
39.200--39.230 (Subpart C) Revised.................................22205
39.401--39.413 (Subpart D) Revised.................................22205
39.500--39.505 (Subpart E) Revised.................................22205
39.600--39.604 (Subpart F) Revised.................................22205
39.700--39.732 (Subpart G) Revised.................................22205
39.801--39.809 (Subpart H) Revised.................................22205
39.900 Redesignated from 39.110....................................33702
39.901 Redesignated from 39.111....................................33702
39.902 Redesignated from 39.112....................................33702
39.903 Redesignated from 39.113....................................33702

[[Page 1252]]

39.904 Redesignated from 39.114....................................33702
39.1000 Redesignated from 39.120...................................33702
39.1001 Redesignated from 39.121...................................33702
39.1002 Redesignated from 39.122...................................33702
39.1003 Redesignated from 39.123...................................33702
39.1100 Redesignated from 39.130 and amended.......................33702
39.1101 Redesignated from 39.131...................................33702
39.1200 Redesignated from 39.140...................................33702
39.1201 Redesignated from 39.141...................................33702
39.1202 Redesignated from 39.142; (c) amended......................33702
39.1203 Redesignated from 39.143...................................33702
42 Revised.........................................................22218
44 Added...........................................................22219
47 Added...........................................................22221
124 Amended........................................................40661
    Correctly revised..............................................41963
161 Added..........................................................58888
Chapter III
542.2 Amended......................................................23021
542.3 (f) revised..................................................47104
542.7 (g)(1)(i) revised............................................23021
    (d)(2) revised.................................................47106
542.8 (h)(1)(i) revised............................................23021
    (f)(2) revised.................................................47106
542.10 (f)(1)(ii) revised..........................................47106
542.11 (e)(2)(ii) revised..........................................47106
542.12 (i)(4), (k)(1)(v), (ix) and (xvii) revised..................23021
542.13 (h), (l)(4), (m)(6) and (7) revised.........................23021
    (f)(1) revised.................................................47106
542.14 (d)(2) and (3) revised; (d)(4) removed......................47107
542.17 (b) introductory text and (c) revised; (d) removed..........47107
542.18 Revised.....................................................24022
542.21 (t) and (u) redesignated as (v) and (w); new (t) and (u) 
        added......................................................23023
    (f)(4)(ii) revised; (f)(4)(iii) and (12) removed...............47107
542.22 (g) added...................................................47107
542.23 (n)(3) introductory text revised............................47107
542.31 (t) and (u) redesignated as (v) and (w); new (t) and (u) 
        added......................................................23024
    (f)(4)(ii) revised; (f)(4)(iii) and (12) removed...............47107
542.32 (g) added...................................................47107
542.33 (q)(3) introductory text revised............................47107
542.41 (t) and (u) redesignated as (v) and (w); new (t) and (u) 
        added......................................................23026
    (f)(4)(ii) revised; (f)(4)(iii) and (12) removed...............47107
542.42 (g) added...................................................47107
543.43 (r)(3) introductory text revised............................47108

                                  2006

   (Regulations published from January 1, 2006, through April 1, 2006)

25 CFR
                                                                   71 FR
                                                                    Page
Chapter I
162.622 Reinstated; CFR correction.................................12280
162.623 Reinstated; CFR correction.................................12280
243 Added...........................................................2429
Chapter VII
1200.2 Amended.....................................................15339
1200.6 Revised.....................................................15339
1200.7 Existing text designated as (a), (b) and (c); new (a) 
        revised....................................................15339
1200.13 Amended....................................................15339
1200.14 (j)(1) and (2) removed; (j) revised........................15339
1200.15 (b) amended................................................15339


                                  [all]