[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2011 Edition]
[From the U.S. Government Printing Office]



[[Page 1]]

          

          Title 25

Indians


________________________

Part 300 to End

                         Revised as of April 1, 2011

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2011
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 25:
          Chapter II--Indian Arts and Crafts Board, Department 
          of the Interior                                            3
          Chapter III--National Indian Gaming Commission, 
          Department of the Interior                                19
          Chapter IV--The Office of Navajo and Hopi Indian 
          Relocation                                               213
          Chapter V--Bureau of Indian Affairs, Department of 
          the Interior, and Indian Health Service, Department 
          of Health and Human Services                             301
          Chapter VI--Office of the Assistant Secretary, 
          Indian Affairs, Department of the Interior               365
          Chapter VII--Office of the Special Trustee for 
          American Indians, Department of the Interior             429
  Finding Aids:
      Table of CFR Titles and Chapters........................     441
      Alphabetical List of Agencies Appearing in the CFR......     461
      List of CFR Sections Affected...........................     471

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 25 CFR 301.1 refers 
                       to title 25, part 301, 
                       section 1.

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

[[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 
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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 
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LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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[[Page vi]]

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[[Page vii]]

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    April 1, 2011.







[[Page ix]]



                               THIS TITLE

    Title 25--Indians is composed of two volumes. The parts in these 
volumes are arranged in the following order: Parts 1--299, and part 300 
to end. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of April 1, 2011.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.

[[Page 1]]



                            TITLE 25--INDIANS




                  (This book contains part 300 to End)

  --------------------------------------------------------------------
                                                                    Part

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 II--INDIAN ARTS AND CRAFTS BOARD, DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
300

[Reserved]

301             Navajo, Pueblo, and Hopi silver and 
                    turquoise products; standards...........           5
304             Navajo, Pueblo, and Hopi silver, use of 
                    Government mark.........................           5
307             Navajo all-wool woven fabrics; use of 
                    Government certificate of genuineness...           6
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.............................           8
309             Protection of Indian arts and crafts 
                    products................................           9
310             Use of Government marks of genuineness for 
                    Alaskan Indian and Alaskan Eskimo hand-
                    made products...........................          15

[[Page 5]]

                           PART 300 [RESERVED]



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 6]]

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 7]]



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 8]]

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 9]]



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 10]]



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 11]]

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 12]]

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 13]]

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 14]]

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 15]]

    (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 16]]

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 17]]

    (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 19]]



   CHAPTER III--NATIONAL INDIAN GAMING COMMISSION, DEPARTMENT OF THE 
                                INTERIOR




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

                    SUBCHAPTER A--GENERAL PROVISIONS
Part                                                                Page
501             Purpose and scope of this chapter...........          21
502             Definitions of this chapter.................          21
503             Commission information collection 
                    requirements under the Paperwork 
                    Reduction Act: OMB control numbers and 
                    expiration dates........................          25
504-512

[Reserved]

513             Debt collection.............................          25
514             Fees........................................          32
515             Privacy Act procedures......................          35
516             Testimony of commissioners and employees and 
                    former commissioners and former 
                    employees respecting official duties; 
                    response to subpoena....................          39
517             Freedom of Information Act procedures.......          40
518             Self regulation of class II gaming..........          47
519             Service.....................................          53
    SUBCHAPTER B--APPROVAL OF CLASS II AND CLASS III ORDINANCES AND 
                               RESOLUTIONS
520-521

[Reserved]

522             Submission of gaming ordinance or resolution          55
523             Review and approval of existing ordinances 
                    or resolutions..........................          57
524             Appeals.....................................          58
525-529

[Reserved]

              SUBCHAPTER C--MANAGEMENT CONTRACT PROVISIONS
530

[Reserved]

531             Content of management contracts.............          60
532

[Reserved]

533             Approval of management contracts............          61
534

[Reserved]

535             Post-approval procedures....................          63
536

[Reserved]

[[Page 20]]

537             Background investigations for persons or 
                    entities with a financial interest in, 
                    or having management responsibility for, 
                    a management contract...................          65
538

[Reserved]

539             Appeals.....................................          67
                      SUBCHAPTER D--HUMAN SERVICES
540-541

[Reserved]

542             Minimum internal control standards..........          69
543             Minimum internal control standards for class 
                    II gaming...............................         159
544-546

[Reserved]

547             Minimum technical standards for gaming 
                    equipment used with the play of class II 
                    games...................................         176
548-549

[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..         195
557

[Reserved]

558             Gaming licenses for key employees and 
                    primary management officials............         197
559             Facility license notifications, renewals, 
                    and submissions.........................         198
                         SUBCHAPTER F [RESERVED]
560-569

[Reserved]

           SUBCHAPTER G--COMPLIANCE AND ENFORCEMENT PROVISIONS
570

[Reserved]

571             Monitoring and investigations...............         201
572

[Reserved]

573             Enforcement.................................         204
574

[Reserved]

575             Civil fines.................................         206
576

[Reserved]

577             Appeals before the Commission...............         207
578-579

[Reserved]

                         SUBCHAPTER H [RESERVED]
580-589

[Reserved]

                         SUBCHAPTER I [RESERVED]
590-599

[Reserved]

[[Page 21]]



                     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.
502.22 Construction and maintenance of the gaming facility, and the 
          operation of that gaming is conducted in a manner which 
          adequately protects the environment and the public health and 
          safety.
502.23 Facility license.

    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

[[Page 22]]

designated, are drawn or electronically determined; and
    (3) Win the game by being the first person to cover a designated 
pattern on such cards;
    (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,

[[Page 23]]

lotto, and other games similar to bingo, the electronic or 
electromechanical format broadens 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.
    (d) Any other person designated by the tribe as a key employee.

[57 FR 12392, Apr. 9, 1992, as amended at 74 FR 36932, July 27, 2009]



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, including all those 
expenses of the gaming operation commonly known as operating expenses 
and non-

[[Page 24]]

operating expenses consistent with professional accounting 
pronouncements, excluding management fees.

[74 FR 36932, July 27, 2009]



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;
    (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 5% of the issued and 
outstanding stock alone or in combination with another stockholder who 
is a spouse, parent, child or sibling when the corporation is publicly 
traded or the top ten (10) shareholders for a privately held 
corporation;
    (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; or
    (f) Any person or entity who will receive a portion of the direct or 
indirect interest of any person or entity listed above through 
attribution, grant, pledge, or gift.

[74 FR 36932, July 27, 2009]



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.
    (d) Any other person designated by the tribe as a primary management 
official.

[57 FR 12392, Apr. 9, 1992, as amended at 74 FR 36933, July 27, 2009]



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).



Sec. 502.22  Construction and maintenance of the gaming facility, and the 

operation of that gaming is conducted in a manner which adequately protects the 
          environment and the public health and safety.

    Construction and maintenance of the gaming facility, and the 
operation of that gaming is conducted in a manner which adequately 
protects the environment and the public health and safety means a tribe 
has identified and enforces laws, resolutions, codes, policies, 
standards or procedures applicable to each gaming place, facility or 
location that protect the environment and the public health and safety, 
including standards under a tribal-state compact or Secretarial 
procedures. Laws, resolutions, codes, policies, standards or procedures 
in this area shall cover, at a minimum:
    (a) Emergency preparedness, including but not limited to fire 
suppression, law enforcement, and security;
    (b) Food and potable water;
    (c) Construction and maintenance;
    (d) Hazardous materials;
    (e) Sanitation (both solid waste and wastewater); and
    (f) Other environmental or public health and safety standards 
adopted by the tribe in light of climate, geography, and other local 
conditions and applicable to its gaming facilities, places or locations.

[73 FR 6029, Feb. 1, 2008]

[[Page 25]]



Sec. 502.23  Facility license.

    Facility license means a separate license issued by a tribe to each 
place, facility, or location on Indian lands where the tribe elects to 
allow class II or III gaming.

[73 FR 6029, Feb. 1, 2008]



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
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?

[[Page 26]]

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 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

[[Page 27]]

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.



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;

[[Page 28]]

    (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. 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.

[[Page 29]]



             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 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.

[[Page 30]]



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 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

[[Page 31]]

    (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 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

[[Page 32]]

    (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.
    (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.

[[Page 33]]



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 no later than February 1st of that year, and, if considered 
necessary, shall modify those rates no later than July 1st of that year.
    (2) The Commission shall publish the rates of fees in a notice in 
the Federal Register.
    (3) 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.
    (4) 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.
    (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 be either:
    (i) An amount not to exceed 5% of the cost of structures in use 
throughout the year and 2.5% (two and one-half percent) of the cost of 
structures in use during only a part of the year; or
    (ii) An amount not to exceed 10% of the cost of the total amount of 
amortization/depreciation expenses for the year.
    (3) Examples of computations follow:
    (i) For paragraph (2)(i) of this section:

 
 
 
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
    Maximum allowance:
        $750,000 x .05 =................          37,500
        50,000 x .025 =.................           1,250          38,750
    Assessable gross revenues...........  ..............         456,250
 

    (ii) For paragraph (2)(ii) of this section:

 
 
 
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

[[Page 34]]

 
    Gross gaming profit.................         495,000
    Less allowance for amortization of
     capital expenditures for
     structures:
    Total amount of amortization/                400,000
     depreciation per books
    Maximum allowance:
        $400,000 x .10 =................  ..............          40,000
    Gross gaming revenues...............         455,000
    Assessable gross revenues...........         455,000
 

    (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 a statement showing 
its assessable gross revenues for the previous calendar year.
    (1) These 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 statements shall be sent to the Commission on or before 
June 30th and December 31st of each calendar year.
    (3) The 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) 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) 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 the year.
    (5) Each 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)(5)(i) and (ii) of this section.
    (iv) Multiply the total obtained in paragraph (c)(5)(iii) of this 
section by \1/2\.
    (v) The amount computed in paragraph (c)(5)(iv) of this section is 
the amount to be remitted.
    (6) Examples of fee computations follow:
    (i) Where a filing is made for June 30th of the calendar year, the 
previous year's assessable gross revenues are $2,000,000, the fee rates 
adopted by the Commission are 0.0% on the first $1,500,000 and .08% on 
the remainder, the amounts to be used and the computations to be made 
are as follows:

 
 
 
1st tier revenues--$1,500,000 x 0.0% =                            ......
2nd tier revenues--500,000 x                                        $400
.08% =
  Annual fees...................................................     400
Multiply for fraction of year--\1/2\ or.........................     .50
  Fees for first payment........................................     200
    Amount to be remitted.......................................     200
 

    (7) The 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, NW., Suite 
9100, Washington, DC 20005. Checks should be made payable to the 
National Indian Gaming Commission (do not remit cash).
    (8) The Commission may assess a penalty for failure to file timely a 
statement.
    (9) Interest shall be assessed at rates established from time to 
time by the

[[Page 35]]

Secretary of the Treasury on amounts remaining unpaid after their due 
date.
    (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 by June 30th and December 31st of 
each calendar year.
    (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 to defray the costs of operations of the Commission.

[74 FR 36933, July 27, 2009; 75 FR 2795, Jan. 19, 2010]



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

[[Page 36]]

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 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

[[Page 37]]

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 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

[[Page 38]]

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 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

[[Page 39]]

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?
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.

[[Page 40]]



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.



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 General provisions.
517.2 Public reading room.
517.3 Definitions.
517.4 Requirements for making requests.
517.5 Responsibility for responding to requests.
517.6 Timing of responses to requests.
517.7 Confidential commercial information.
517.8 Appeals.
517.9 Fees.

    Authority: 5 U.S.C. 552, as amended.

    Source: 71 FR 20007, Apr. 19, 2006, unless otherwise noted.



Sec. 517.1  General provisions.

    This part contains the regulations the National Indian Gaming 
Commission (Commission) follows in implementing the Freedom of 
Information Act (FOIA) (5 U.S.C. 552) as amended. These regulations 
provide procedures by which you 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. These 
regulations should be read together with the FOIA, which provides 
additional information about access to records maintained by the 
Commission.



Sec. 517.2  Public reading room.

    Records that are required to be maintained by the Commission shall 
be available for public inspection and copying at 1441 L Street, NW., 
Suite 9100 Washington, DC. Reading room records created on or after 
November 1, 1996, shall be made available electronically via the Web 
site.



Sec. 517.3  Definitions.

    (a) Commercial use requester means a requester seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of himself or the person on whose behalf the request is made, 
which can include furthering those interests through litigation. In 
determining whether a request properly belongs in this category, the 
FOIA Officer shall determine the use to which the requester will put the 
documents requested. Where the FOIA Officer has reasonable cause to 
doubt the use to which the requester will put the records sought, or 
where that use is not clear from the request itself, the FOIA Officer 
shall contact the requester for 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 contains material exempt 
from disclosure under Exemption 4 of the FOIA, because disclosure could 
reasonably be expected to cause substantial competitive harm.

[[Page 41]]

    (c) Direct costs mean those expenditures by the Commission actually 
incurred in searching for and duplicating records in response to the 
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 space, 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 the FOIA request. Such copies can take the form of, 
among other things, paper copy, microfilm, audio-visual materials, or 
machine readable documentation. The copies provided shall be in a form 
that is reasonably usable by the requester.
    (e) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institute of undergraduate 
higher education, an institute of graduate higher education, an 
institute of professional education, or an institute of vocational 
education which operates a program of scholarly research. To qualify for 
this category, the requester must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use, but are sought to further 
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 
paragraph (a) of this section, 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. To qualify for 
this category, the requester must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use, but are sought to further 
scholarly research.
    (h) Record means all books, papers, maps, photographs, machine 
readable materials, or other documentary materials, regardless of 
physical form or characteristics, made or received by the Commission 
under Federal law or in connection with the transaction of public 
business and preserved or appropriate for preservation by the Commission 
or its legitimate successor as evidence of the organization, functions, 
policies, decisions, procedures, operations, or other activities of the 
Government or because of the informational value of data in them. 
Library and museum material made or acquired and preserved solely for 
reference or exhibition purposes, extra copies of documents preserved 
only for convenience of reference, and stocks of publications and of 
processed documents are not included.
    (i) Representative of the news media means any person actively 
gathering 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. For a ``freelance journalist'' to be regarded as working for a 
news organization, the requester must demonstrate a solid basis for 
expecting publication through that organization, such as a publication 
contract. Absent such showing, the requester may provide documentation 
establishing the requester's past publication record. To qualify for 
this category, the requester must not be seeking the requested records 
for a commercial use. However, a request for records supporting a news-
dissemination function shall not be considered to be for a commercial 
use.
    (j) 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.
    (k) Review means the process of examining a record in response to a 
FOIA request to determine if any portion of that record may be withheld 
under one or more of the FOIA Exemptions. It also includes processing 
any record for

[[Page 42]]

disclosure, for example, redacting information that is exempt from 
disclosure under the FOIA. Review time includes time spent considering 
any formal objection to disclosure made by a business submitter under 
Sec. 517.7 (c). Review time does not include time spent resolving 
general legal or policy issues regarding the use of FOIA Exemptions.
    (l) 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 and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format. The FOIA Officer shall ensure 
that searches are conducted in the most efficient and least expensive 
manner reasonably possible.
    (m) 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.
    (n) Working day means a Federal workday that does not include 
Saturdays, Sundays, or Federal holidays.



Sec. 517.4  Requirements for making requests.

    (a) How to make a FOIA request. Requests for records made pursuant 
to the FOIA must be in writing. Requests should be sent to the National 
Indian Gaming Commission, Attn: FOIA Officer, 1441 L Street, NW., Suite 
9100, Washington, DC 20005. Requests may be mailed, dropped off in 
person, or faxed to (202) 632-7066 (not a toll free number). If the 
requester is making a request for records about himself/herself, the 
requester should see 25 CFR 515.3 for additional information. If the 
requester is making a request for records about another individual, the 
requester must provide either a written authorization signed by that 
individual authorizing disclosure of the records to the requester or 
provide proof that the individual is deceased (for example, a copy of 
the death certificate or a copy of the obituary).
    (b) Description of records sought. Requests for records shall 
describe the records requested with as much specificity as possible to 
enable Commission employees to locate the information requested with a 
reasonable amount of effort.
    (c) Agreement to pay fees. Requests shall also include a statement 
indicating the maximum amount of fees the requester is willing to pay to 
obtain the requested information, or a request for a waiver or reduction 
of fees. If the requester is requesting a waiver or reduction of fees 
the requester must include justification for such waiver or reduction 
(see Sec. 517.9 (c) for more information). If the request for a fee 
waiver is denied, the requester will be notified of this decision and 
advised that fees associated with the processing of the request will be 
assessed. The requester must send an acknowledgment to the FOIA Officer 
indicating his/her willingness to pay the fees. Absent such 
acknowledgment within the specified time frame, the request will be 
considered incomplete, no further work shall be done, and the request 
will be administratively closed.
    (d) 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.



Sec. 517.5  Responsibility for responding to requests.

    (a) In general. In determining which records are responsive to a 
request, the Commission ordinarily will include only records in its 
possession as of the date it begins its search for records. If any other 
date is used, the FOIA Officer shall inform the requester of that date.
    (b) Authority to grant or deny requests. The FOIA Officer shall make 
initial determinations either to grant or deny in whole or in part a 
request for records.

[[Page 43]]

    (c) Consultations and referrals. (1) When a requested record has 
been created by another Federal Government agency that record shall be 
referred to the originating agency for direct response to the requester. 
The requester shall be informed of the referral. As this is not a denial 
of a FOIA request, no appeal rights accrue to the requester.
    (2) When a requested record is identified as containing information 
originating with another Federal Government agency, the record shall be 
referred to the originating agency for review and recommendation on 
disclosure.



Sec. 517.6  Timing of responses to requests.

    (a) In general. The FOIA Officer ordinarily shall respond to 
requests according to their order of receipt.
    (b) Multitrack processing. (1) The FOIA Officer may use multi-track 
processing in responding to requests. Multi-track processing means 
placing simple requests requiring rather limited review in one 
processing track and placing more voluminous and complex requests in one 
or more other tracks. Request in either track are processed on a first-
in/first-out basis.
    (2) The FOIA Officer may provide requesters in its slower track(s) 
with an opportunity to limit the scope of their requests in order to 
qualify for faster processing within the specified limits of faster 
track(s). The FOIA Officer will do so either by contacting the requester 
by letter or telephone, whichever is more efficient in each case.
    (c) Initial determinations. (1) The FOIA Officer shall make an 
initial determination regarding access to the requested information and 
notify the requester within twenty (20) working days after receipt of 
the request. This 20 day period may be extended 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 (c)(1) of this 
section, the FOIA Officer shall notify the requester of the reasons for 
the delay and include an estimate of when a determination will be made. 
The requester will then have the opportunity to modify the request or 
arrange for an alternative time frame for completion of the request.
    (3) If the FOIA Officer has a reasonable basis to conclude that a 
requester or group of requesters has divided a request into a series of 
requests on a single subject or related subjects to avoid fees, the 
requests may be aggregated and fees charged accordingly. Multiple 
requests involving unrelated matters will not be aggregated.
    (4) If no initial determination has been made at the end of the 20 
day period provided for in paragraph (a)(1) of this section, including 
any extension, the requester may appeal the action to the FOIA Appeals 
Officer.
    (5) If the FOIA Officer determines that another agency is 
responsible for the records, the FOIA Officer shall refer such records 
to the appropriate agency for direct response to the requester. 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.
    (d) Granting of requests. When the FOIA Officer determines that the 
requested records shall be made available, the FOIA Officer shall notify 
the requester in writing and provide copies of the requested records in 
whole or in part once any fees charged under Sec. 517.9 have been paid 
in full. Records disclosed in part shall be marked or annotated to show 
the exemption applied

[[Page 44]]

to the withheld information and the amount of information withheld 
unless to do so would harm the interest protected by an applicable 
exemption. If a requested record contains exempted material along with 
nonexempt material, all reasonable segregable material shall be 
disclosed.
    (e) Denial of requests. When the FOIA Officer determines that access 
to requested records should be denied, the FOIA Officer shall notify the 
requester of the denial, the grounds for the denial, and the procedures 
for appeal of the denial.
    (f) Expedited processing of request. The FOIA Officer must determine 
whether to grant the request for expedited processing within (10) 
calendar days of its receipt. Requests will receive expedited processing 
if one of the following compelling needs is met:
    (1) The requester can establish that failure to receive the records 
quickly could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (2) The requester is primarily engaged in disseminating information 
and can demonstrate that an urgency to inform the public concerning 
actual or alleged Federal Government activity exists.



Sec. 517.7  Confidential commercial information.

    (a) Notice to submitters. The FOIA Officer shall, to the extent 
permitted by law, provide a submitter who provides confidential 
commercial information to the FOIA Officer, 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 
FOIA Officer shall also notify the requester that notice and an 
opportunity to object has been given to the submitter.
    (b) Where 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 FOIA Officer shall 
afford a submitter a reasonable period of time to provide the FOIA 
Officer 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 submitter's claim of 
confidentiality shall be supported by a statement or certification by an 
officer or authorized representative of the submitter. In the event a 
submitter fails to respond to the notice in the time specified, the 
submitter will be considered to have no objection to the disclosure of 
the information. Information provided by the submitter that is received 
after the disclosure decision has been made will not be considered. 
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

[[Page 45]]

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 
specific disclosure date. The FOIA Officer shall also notify the 
requester that the requested records will be made available.
    (e) Notice of lawsuit. If the requester files a lawsuit seeking to 
compel disclosure of confidential commercial information, the FOIA 
Officer shall promptly notify the submitter of this action. If a 
submitter files a lawsuit seeking to prevent disclosure of confidential 
commercial information, the FOIA Officer shall notify the requester.
    (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 pursuant to Exemption 4 and/or any other exemption of the 
FOIA;
    (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. 517.8  Appeals.

    (a) Right of appeal. The requester has the right to 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. Prior to submitting an appeal any outstanding fees 
associated with FOIA requests must be paid in full.
    (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 initial denial. To expedite the appellate process 
and give the requester an opportunity to present his/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 National Indian Gaming Commission, Attn: FOIA Appeals 
Officer, 1441 L Street, NW., Suite 9100, Washington, DC 20005.
    (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 his/her right to obtain judicial review in the 
appropriate Federal district court.



Sec. 517.9  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. Payment of fees should be by check or 
money order made payable to the Treasury of the United States.

[[Page 46]]

    (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 FOIA Officer shall charge $0.15 per page for copies 
of documents up to 8\1/2\ x 14. For copies prepared by computer, the 
FOIA Officer will charge actual costs of production of the computer 
printouts, including operator time. For other methods of reproduction, 
the FOIA Officer shall charge the actual costs of producing the 
documents.
    (2) Searches. (i) Manual searches. Whenever feasible, the FOIA 
Officer 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 a search 
(e.g. all administrative/clerical or all professional/executive), the 
FOIA Officer shall charge $4.45 per quarter hour for clerical time and 
$7.75 per quarter hour for professional time. Charges for search time 
less than a full hour will be in increments of quarter hours.
    (ii) Computer searches. The FOIA Officer 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 FOIA Officer 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 paragraph (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; representative of the news

[[Page 47]]

media; and all other requesters. These terms are defined in Sec. 517.3. 
The following specific levels of fees are prescribed 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 fall into any of the categories in paragraphs (d)(1) through 
(3) of this section fees which recover the full reasonable direct costs 
incurred for searching for and reproducing records if that total costs 
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 shall 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 charges will 
be assessed when requested records are not found or when 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 the 31st day following the day on which the bill was sent to 
you. 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, as amended, and the 
implementing procedures to recover any indebtedness owed to the 
Commission.
    (g) Aggregating requests. The 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 FOIA Officer reasonably believes that a requester is attempting to 
divide a request into a series of requests to evade an assessment of 
fees, the FOIA Officer 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 $250.00. 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 requester 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?

[[Page 48]]

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?

    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);

[[Page 49]]

    (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);
    (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;

[[Page 50]]

    (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;
    (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

[[Page 51]]

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 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

[[Page 52]]

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 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

[[Page 53]]

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 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

[[Page 54]]

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 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 55]]



     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.
    (i) A tribe shall provide Indian lands or environmental and public 
health and safety documentation that the Chairman may in his or her 
discretion request as needed.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993; 73 
FR 6029, Feb. 1, 2008]



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--

[[Page 56]]

    (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--
    (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.

[[Page 57]]

    (b) A disapproval shall be effective immediately unless appealed 
under part 524 of this chapter.



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.

[[Page 58]]


    Source: 58 FR 5812, Jan. 22, 1993, unless otherwise noted.



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

[[Page 59]]

documentation, if any. Failure to file an appeal within the time 
provided by 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 60]]



               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.

    Management contracts 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 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
    (2) Access to any other gaming-related information the tribe deems 
appropriate.

[[Page 61]]

    (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 
amending 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.

[74 FR 36934, July 27, 2009]



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 and amendments.
533.3 Submission of management contract for approval.
533.4 Action by the Chairman.
533.5 [Reserved]
533.6 Approval and disapproval.
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.

[58 FR 5829, Jan. 22, 1993, as amended at 74 FR 36935, July 27, 2009]

[[Page 62]]



Sec. 533.2  Time for submitting management contracts and amendments.

    A tribe or a management contractor shall submit a management 
contract to the Chairman for review within sixty (60) days of execution 
by the parties. The Chairman shall notify the parties of their right to 
appeal the approval or disapproval of the management contract under part 
539 of this chapter.

[74 FR 36935, July 27, 2009]



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
    (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 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.
    (h) A legal description for the site on which the gaming operation 
to be managed is, or will be, located.

[74 FR 36935, July 27, 2009]



Sec. 533.4  Action by the Chairman.

    (a) The Chairman 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 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 approved or 
disapproved the contract under this part.

[74 FR 36935, July 27, 2009]



Sec. 533.5  [Reserved]



Sec. 533.6  Approval and disapproval.

    (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. 
Failure to comply with the standards of part 531 of this chapter or 
Sec. 533.3 may result in the Chairman's disapproval of the management 
contract.
    (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:

[[Page 63]]

    (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 or her 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.

[74 FR 36935, July 27, 2009]



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 Chairman in accordance with the 
requirements of part 531 of this chapter and this part, are void.

[74 FR 36936, July 27, 2009]

                           PART 534 [RESERVED]



PART 535_POST-APPROVAL PROCEDURES--Table of Contents



Sec.
535.1 Amendments.
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  Amendments.

    (a) Subject to the Chairman's approval, a tribe may enter into an 
amendment of a management contract for the operation of a class II or 
class III gaming activity.
    (b) A tribe shall submit an amendment to the Chairman within thirty 
(30) days of its execution.
    (c) A tribe shall include in any request for approval of an 
amendment under this part:
    (1) An amendment 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 amendment;
    (3) Copies of documents evidencing the authority under paragraph 
(c)(2) of this section;
    (4) A list of all persons and entities identified in Sec. 537.1(a) 
and Sec. 537.1(c)(1) of this chapter:
    (i) If the amendment involves a change in person(s) having a direct 
or

[[Page 64]]

indirect financial interest in the management contract or having 
management responsibility for the management contract, a list of such 
person(s) and either:
    (A) 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
    (B) The dates on which the information was previously submitted;
    (ii) [Reserved]
    (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)(1) The Chairman shall approve or disapprove an amendment within 
thirty (30) days from receipt of a complete submission if the amendment 
does not require a background investigation under part 537 of this 
chapter, unless the Chairman notifies the parties in writing of the need 
for an extension of up to thirty (30) days.
    (2) The Chairman shall approve or disapprove an amendment as soon as 
practicable but no later than 180 days from receipt of a complete 
submission if the amendment requires a background investigation under 
part 537 of this chapter;
    (3) A party may appeal the Chairman's approval or disapproval of an 
amendment under part 539 of this chapter. If the Chairman does not 
approve or disapprove an amendment within the timelines of paragraph 
(d)(1) or (d)(2) of this section, the amendment shall be deemed 
disapproved and a party shall have thirty (30) days to appeal the 
decision under part 539 of this chapter.
    (e)(1) The Chairman may approve an amendment to a management 
contract if the amendment meets the submission requirements of paragraph 
(c) of this section. Failure to comply with the submission requirements 
of paragraph (c) of this section may result in the Chairman's 
disapproval of an amendment.
    (2) The Chairman shall disapprove an amendment 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 an amendment 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) Amendments that have not been approved by the Chairman in 
accordance with the requirements of this part are void.

[74 FR 36936, July 27, 2009]



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 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, or 537 of this chapter, the 
Chairman may require modifications of, or may void, a management 
contract or amendment 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 or void 
proceedings by serving the parties, specifying the grounds for the 
modification or void. 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 a decision on the basis of the developed record and notify the 
parties of the decision and of their right to appeal.

[74 FR 36936, July 27, 2009]

[[Page 65]]

                           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 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.

[[Page 66]]

    (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;
    (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; and
    (iv) For any other type of entity, the ten (10) largest owners of 
that entity alone or in combination with any other owner who is a 
spouse, parent, child or sibling and any person with management 
responsibility for that entity.
    (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 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

[[Page 67]]

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).

[74 FR 36937, July 27, 2009]



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)--$25,000
    (2) Each individual and entity with a financial interest in the 
contract--$10,000
    (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.
    (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.

[74 FR 36938, July 27, 2009]



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.

[[Page 68]]

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 or amendment under this subchapter, 
except that appeals from the Chairman's decision to require 
modifications of or to void a management contract or amendment 
subsequent to his or her initial approval are addressed in Sec. 535.3 
and part 577 of this chapter.

[74 FR 36938, July 27, 2009]



Sec. 539.2  Appeals.

    A party may appeal the Chairman's approval or disapproval of a 
management contract or amendment 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. At the time of filing, an appeal under 
this section shall specify the reasons why the party 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 a final decision of the Commission.

[74 FR 36938, July 27, 2009]

[[Page 69]]



                       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?
542.19 What are the minimum internal control standards for accounting?
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. Account access cards 
are not ``smart cards.''
    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.

[[Page 70]]

    Betting station means the area designated in a pari-mutuel area that 
accepts wagers and pays winning bets.
    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.

[[Page 71]]

    Count team means personnel that perform either the count of the 
gaming machine drop and/or the table game drop.
    Counter check means a form provided by the gaming operation for the 
customer to use in lieu of a personal check.
    Counter Game means a game in which the gaming operation is a party 
to wagers and wherein the gaming operation documents all wagering 
activity. The term includes, but is not limited to, bingo, keno, and 
pari-mutuel race books. The term does not include table games, card 
games and gaming machines.
    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).

[[Page 72]]

    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 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

[[Page 73]]

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 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

[[Page 74]]

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.
    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.
    Statistical drop means total amount of money, chips and tokens 
contained in the drop boxes, plus pit credit issued, minus pit credit 
payments in cash in the pit.
    Statistical win means closing bankroll, plus credit slips for cash, 
chips or tokens returned to the cage, plus drop, minus opening bankroll, 
minus fills to the table, plus marker credits.
    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.

[[Page 75]]

    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.
    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; 71 
FR 27391, May 11, 2006]



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:

[[Page 76]]

    (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 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).

[[Page 77]]

    (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 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.

[[Page 78]]

    (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 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,

[[Page 79]]

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 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.

[[Page 80]]

    (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;
    (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

[[Page 81]]

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 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

[[Page 82]]

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.
    (iv) If the electronic equipment utilizes patron account access 
cards for activation of play, then Sec. 542.13(o) (as applicable) shall 
apply.
    (2) [Reserved]
    (h) Standards for linked electronic games. Management shall ensure 
that 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,

[[Page 83]]

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 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; 71 FR 27392, May 11, 2006]

    Effective Date Note: At 73 FR 60498, Oct. 10, 2008, Sec. 542.7 was 
removed and reserved, effective Oct. 13, 2009. At 74 FR 52139, Oct. 9, 
2009, the effectiveness of this amendment was delayed until Oct. 13, 
2010. At 75 FR 55270, Sept. 10, 2010, the effectiveness of this 
amendment was further delayed until Oct. 13, 2011.



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.

[[Page 84]]

    (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 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.
    (iv) If the electronic equipment utilizes patron account access 
cards for activation of play, then Sec. 542.13(o) (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; 71 FR 27392, May 11, 2006]



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.

[[Page 85]]

    (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 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.

[[Page 86]]

    (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 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

[[Page 87]]

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 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

[[Page 88]]

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.
    (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

[[Page 89]]

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 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

[[Page 90]]

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).
    (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);

[[Page 91]]

    (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:
    (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]

[[Page 92]]



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 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:

[[Page 93]]

    (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;
    (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.

[[Page 94]]

    (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 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.

[[Page 95]]

    (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;
    (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

[[Page 96]]

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]
    (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

[[Page 97]]

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/ 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

[[Page 98]]

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
    (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

[[Page 99]]

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;
    (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.

[[Page 100]]

    (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 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.

[[Page 101]]

    (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 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;

[[Page 102]]

    (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, 
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

[[Page 103]]

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.
    (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;

[[Page 104]]

    (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) For each customer file, an employee shall:
    (A) Record the customer's name and current address;
    (B) The date the account was opened; and
    (C) At the time the initial deposit is made, account opened, or 
credit extended, the identity of the customer shall be verified by 
examination of a valid driver's license or other reliable identity 
credential.
    (iii) 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 
personnel at the discretion of the department director.
    (iv) After entering a specified number of incorrect PIN entries at 
the cage or player terminal, the customer shall be directed to proceed 
to a clerk to obtain a new PIN. If a customer forgets, misplaces or 
requests a change to their PIN, the customer shall proceed to a clerk 
for assistance.
    (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

[[Page 105]]

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.
    (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; 71 FR 27392, May 11, 2006]



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.

[[Page 106]]

    (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.
    (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

[[Page 107]]

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 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

[[Page 108]]

    (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;
    (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

[[Page 109]]

    (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.
    (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).

[[Page 110]]

    (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
    (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.
    (2) [Reserved]

[67 FR 43400, June 27, 2002, as amended at 71 FR 27392, May 11, 2006]

    Effective Date Note: At 73 FR 60498, Oct. 10, 2008, Sec. 542.16 was 
removed and reserved, effective Oct. 13, 2009. At 74 FR 52139, Oct. 9, 
2009, the effectiveness of this amendment was delayed until Oct. 13, 
2010. At 75 FR 55270, Sept. 10, 2010, the effectiveness of this 
amendment was further delayed until Oct. 13, 2011.



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

[[Page 111]]

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 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.

[[Page 112]]

    (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 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. 542.19  What are the minimum internal control standards for accounting?

    (a) Each gaming operation shall prepare accurate, complete, legible, 
and permanent records of all transactions pertaining to revenue and 
gaming activities.
    (b) Each gaming operation shall prepare general accounting records 
according to Generally Accepted Accounting Principles on a double-entry 
system of accounting, maintaining detailed, supporting, subsidiary 
records, including, but not limited to:
    (1) Detailed records identifying revenues, expenses, assets, 
liabilities, and equity for each gaming operation;
    (2) Detailed records of all markers, IOU's, returned checks, hold 
checks, or other similar credit instruments;
    (3) Individual and statistical game records to reflect statistical 
drop, statistical win, and the percentage of statistical win to 
statistical drop by each table game, and to reflect statistical

[[Page 113]]

drop, statistical win, and the percentage of statistical win to 
statistical drop for each type of table game, by shift, by day, 
cumulative month-to-date and year-to-date, and individual and 
statistical game records reflecting similar information for all other 
games;
    (4) Gaming machine analysis reports which, by each machine, compare 
actual hold percentages to theoretical hold percentages;
    (5) The records required by this part and by the Tribal internal 
control standards;
    (6) Journal entries prepared by the gaming operation and by its 
independent accountants; and
    (7) Any other records specifically required to be maintained.
    (c) Each gaming operation shall establish administrative and 
accounting procedures for the purpose of determining effective control 
over a gaming operation's fiscal affairs. The procedures shall be 
designed to reasonably ensure that:
    (1) Assets are safeguarded;
    (2) Financial records are accurate and reliable;
    (3) Transactions are performed only in accordance with management's 
general and specific authorization;
    (4) Transactions are recorded adequately to permit proper reporting 
of gaming revenue and of fees and taxes, and to maintain accountability 
of assets;
    (5) Recorded accountability for assets is compared with actual 
assets at reasonable intervals, and appropriate action is taken with 
respect to any discrepancies; and
    (6) Functions, duties, and responsibilities are appropriately 
segregated in accordance with sound business practices.
    (d) Gross gaming revenue computations. (1) For table games, gross 
revenue equals the closing table bankroll, plus credit slips for cash, 
chips, tokens or personal/payroll checks returned to the cage, plus 
drop, less opening table bankroll and fills to the table, and money 
transfers issued from the game through the use of a cashless wagering 
system.
    (2) For gaming machines, gross revenue equals drop, less fills, 
jackpot payouts and personal property awarded to patrons as gambling 
winnings. Additionally, the initial hopper load is not a fill and does 
not affect gross revenue. The difference between the initial hopper load 
and the total amount that is in the hopper at the end of the gaming 
operation's fiscal year should be adjusted accordingly as an addition to 
or subtraction from the drop for the year.
    (3) For each counter game, gross revenue equals:
    (i) The money accepted by the gaming operation on events or games 
that occur during the month or will occur in subsequent months, less 
money paid out during the month to patrons on winning wagers (``cash 
basis''); or
    (ii) The money accepted by the gaming operation on events or games 
that occur during the month, plus money, not previously included in 
gross revenue, that was accepted by the gaming operation in previous 
months on events or games occurring in the month, less money paid out 
during the month to patrons as winning wagers (``modified accrual 
basis'').
    (4) For each card game and any other game in which the gaming 
operation is not a party to a wager, gross revenue equals all money 
received by the operation as compensation for conducting the game.
    (i) A gaming operation shall not include either shill win or loss in 
gross revenue computations.
    (ii) In computing gross revenue for gaming machines, keno and bingo, 
the actual cost to the gaming operation of any personal property 
distributed as losses to patrons may be deducted from winnings (other 
than costs of travel, lodging, services, food, and beverages), if the 
gaming operation maintains detailed documents supporting the deduction.
    (e) Each gaming operation shall establish internal control systems 
sufficient to ensure that currency (other than tips or gratuities) 
received from a patron in the gaming area is promptly placed in a locked 
box in the table, or, in the case of a cashier, in the appropriate place 
in the cashier's cage, or on those games which do not have a locked drop 
box, or on card game tables, in an appropriate place on the

[[Page 114]]

table, in the cash register or in another approved repository.
    (f) If the gaming operation provides periodic payments to satisfy a 
payout resulting from a wager, the initial installment payment, when 
paid, and the actual cost of a payment plan, which is funded by the 
gaming operation, may be deducted from winnings. The gaming operation is 
required to obtain the approval of all payment plans from the TGRA. For 
any funding method which merely guarantees the gaming operation's 
performance, and under which the gaming operation makes payments out of 
cash flow (e.g. irrevocable letters of credits, surety bonds, or other 
similar methods), the gaming operation may only deduct such payments 
when paid to the patron.
    (g) For payouts by wide-area progressive gaming machine systems, a 
gaming operation may deduct from winnings only its pro rata share of a 
wide-area gaming machine system payout.
    (h) Cash-out tickets issued at a gaming machine or gaming device 
shall be deducted from gross revenue as jackpot payouts in the month the 
tickets are issued by the gaming machine or gaming device. Tickets 
deducted from gross revenue that are not redeemed within a period, not 
to exceed 180 days of issuance, shall be included in gross revenue. An 
unredeemed ticket previously included in gross revenue may be deducted 
from gross revenue in the month redeemed.
    (i) A gaming operation may not deduct from gross revenues the unpaid 
balance of a credit instrument extended for purposes other than gaming.
    (j) A gaming operation may deduct from gross revenue the unpaid 
balance of a credit instrument if the gaming operation documents, or 
otherwise keeps detailed records of, compliance with the following 
requirements. Such records confirming compliance shall be made available 
to the TGRA or the Commission upon request:
    (1) The gaming operation can document that the credit extended was 
for gaming purposes;
    (2) The gaming operation has established procedures and relevant 
criteria to evaluate a patron's credit reputation or financial resources 
and to then determine that there is a reasonable basis for extending 
credit in the amount or sum placed at the patron's disposal;
    (3) In the case of personal checks, the gaming operation has 
established procedures to examine documentation, which would normally be 
acceptable as a type of identification when cashing checks, and has 
recorded the patron's bank check guarantee card number or credit card 
number, or has satisfied paragraph (j)(2) of this section, as management 
may deem appropriate for the check-cashing authorization granted;
    (4) In the case of third-party checks for which cash, chips, or 
tokens have been issued to the patron, or which were accepted in payment 
of another credit instrument, the gaming operation has established 
procedures to examine documentation, normally accepted as a means of 
identification when cashing checks, and has, for the check's maker or 
drawer, satisfied paragraph (j)(2) of this section, as management may 
deem appropriate for the check-cashing authorization granted;
    (5) In the case of guaranteed drafts, procedures should be 
established to ensure compliance with the issuance and acceptance 
procedures prescribed by the issuer;
    (6) The gaming operation has established procedures to ensure that 
the credit extended is appropriately documented, not least of which 
would be the patron's identification and signature attesting to the 
authenticity of the individual credit transactions. The authorizing 
signature shall be obtained at the time credit is extended.
    (7) The gaming operation has established procedures to effectively 
document its attempt to collect the full amount of the debt. Such 
documentation would include, but not be limited to, letters sent to the 
patron, logs of personal or telephone conversations, proof of 
presentation of the credit instrument to the patron's bank for 
collection, settlement agreements, or other documents which demonstrate 
that the gaming operation has made a good faith attempt to collect the 
full amount of the debt. Such records documenting collection efforts 
shall be made available to the TGRA or the commission upon request.

[[Page 115]]

    (k) Maintenance and preservation of books, records and documents. 
(1) All original books, records and documents pertaining to the conduct 
of wagering activities shall be retained by a gaming operation in 
accordance with the following schedule. A record that summarizes gaming 
transactions is sufficient, provided that all documents containing an 
original signature(s) attesting to the accuracy of a gaming related 
transaction are independently preserved. Original books, records or 
documents shall not include copies of originals, except for copies that 
contain original comments or notations on parts of multi-part forms. The 
following original books, records and documents shall be retained by a 
gaming operation for a minimum of five (5) years:
    (i) Casino cage documents;
    (ii) Documentation supporting the calculation of table game win;
    (iii) Documentation supporting the calculation of gaming machine 
win;
    (iv) Documentation supporting the calculation of revenue received 
from the games of keno, pari-mutuel, bingo, pull-tabs, card games, and 
all other gaming activities offered by the gaming operation;
    (v) Table games statistical analysis reports;
    (vi) Gaming machine statistical analysis reports;
    (vii) Bingo, pull-tab, keno and pari-mutuel wagering statistical 
reports;
    (viii) Internal audit documentation and reports;
    (ix) Documentation supporting the write-off of gaming credit 
instruments and named credit instruments;
    (x) All other books, records and documents pertaining to the conduct 
of wagering activities that contain original signature(s) attesting to 
the accuracy of the gaming related transaction.
    (2) Unless otherwise specified in this part, all other books, 
records, and documents shall be retained until such time as the 
accounting records have been audited by the gaming operation's 
independent certified public accountants.
    (3) The above definition shall apply without regards to the medium 
by which the book, record or document is generated or maintained (paper, 
computer-generated, magnetic media, etc.).

[71 FR 27392, May 11, 2006]



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.

[[Page 116]]

    (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.
    (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

[[Page 117]]

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 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.

[[Page 118]]

    (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 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.

[[Page 119]]

    (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 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:

[[Page 120]]

    (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 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,

[[Page 121]]

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 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

[[Page 122]]

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 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.

[[Page 123]]

    (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 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

[[Page 124]]

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 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

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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. 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

[[Page 126]]

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 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.

[[Page 127]]

    (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.
    (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.

[[Page 128]]

    (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 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:

[[Page 129]]

    (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.
    (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

[[Page 130]]

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 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

[[Page 131]]

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 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

[[Page 132]]

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, 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

[[Page 133]]

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 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

[[Page 134]]

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 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]

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    (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 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

[[Page 136]]

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, 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.

[[Page 137]]

    (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.
    (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).

[[Page 138]]

    (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 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).

[[Page 139]]

    (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. 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.

[[Page 140]]

    (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:
    (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

[[Page 141]]

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.
    (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

[[Page 142]]

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 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.

[[Page 143]]

    (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
    (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

[[Page 144]]

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.
    (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

[[Page 145]]

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 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

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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 
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

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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 
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.

[[Page 148]]

    (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) 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

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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 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

[[Page 150]]

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 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

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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, 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.

[[Page 152]]

    (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 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

[[Page 153]]

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 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,

[[Page 154]]

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. 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

[[Page 155]]

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;
    (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

[[Page 156]]

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.
    (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

[[Page 157]]

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 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.

[[Page 158]]

    (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.
    (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.

[[Page 159]]

    (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.
    (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]



PART 543_MINIMUM INTERNAL CONTROL STANDARDS FOR CLASS II GAMING--Table of Contents



Sec.
543.1 What does this part cover?
543.2 What are the definitions for this part?
543.3 How do tribal governments comply with this part?
543.4-543.5 [Reserved]
543.6 Does this part apply to small and charitable gaming operations?
543.7 What are the minimum internal control standards for bingo?
543.8-543.15 [Reserved]
543.16 What are the minimum internal controls for information 
          technology?

     Authority: 25 U.S.C. 2701 et seq.

    Source: 73 FR 60498, Oct. 10, 2008, unless otherwise noted.



Sec. 543.1  What does this part cover?

    This part, along with Sec. Sec. 542.14 through 542.15, 542.17 
through 542.18, 542.20 through 542.23, 542.30 through 542.33, and 542.40 
through 542.43 of this chapter establishes the minimum internal control 
standards for the conduct of Class II bingo and other games similar to 
bingo on Indian lands as described in 25 U.S.C. 2701 et seq. Throughout 
this part the term bingo includes other games similar to bingo.

[[Page 160]]



Sec. 543.2  What are the definitions for this part?

    The definitions in this section apply to all sections of this part 
unless otherwise noted.
    Accountability. All financial instruments, receivables, and patron 
deposits constituting the total amount for which the bankroll custodian 
is responsible at a given time.
    Actual bingo win percentage. The percentage calculated by dividing 
the bingo win by the bingo sales. Can be calculated for individual prize 
schedules or type of player interfaces on a per-day or cumulative basis.
    Agent. An employee or licensed person authorized by the gaming 
operation, as approved by the tribal gaming regulatory authority, 
designated for certain authorizations, decisions, tasks and actions in 
the gaming operation. This definition is not intended to eliminate nor 
suggest that appropriate management contracts are not required, where 
applicable, as referenced in 25 U.S.C. 2711.
    Amount in. The total value of all financial instruments and cashless 
transactions accepted by the Class II gaming system.
    Amount out. The total value of all financial instruments and 
cashless transactions paid by the Class II gaming system, plus the total 
value of manual payments.
    Bingo paper. A consumable physical object that has one or more bingo 
cards on its face.
    Bingo sales. The value of purchases made by players to participate 
in bingo.
    Bingo win. The result of bingo sales minus prize payouts.
    Cage. A secure work area within the gaming operation for cashiers 
which may include a storage area for the gaming operation bankroll.
    Cash equivalents. The monetary value that a gaming operation may 
assign to a document, financial instrument, or anything else of 
representative value other than cash. A cash equivalent includes, but is 
not limited to, tokens, chips, coupons, vouchers, payout slips and 
tickets, and other items to which a gaming operation has assigned an 
exchange value.
    Cashless system. A system that performs cashless transactions and 
maintains records of those cashless transactions.
    Cashless transaction. A movement of funds electronically from one 
component to another, often to or from a patron deposit account.
    Class II game. A game as described in 25 U.S.C. 2703(7)(A).
    Class II Gaming System. All components, whether or not technologic 
aids in electronic, computer, mechanical, or other technologic form, 
that function together to aid the play of one or more Class II games 
including accounting functions mandated by part 547 of this chapter.
    Commission. The National Indian Gaming Commission.
    Count. The act of counting and recording the drop and/or other 
funds.
    Count room. A secured room where the count is performed.
    Coupon. A financial instrument of fixed wagering value, usually 
paper, that can only be used to acquire non-cashable credits through 
interaction with a voucher system. This does not include instruments 
such as printed advertising material that cannot be validated directly 
by a voucher system.
    Drop. The total amount of financial instruments removed from 
financial instrument storage components in Class II gaming systems.
    Drop period. The period of time that occurs between sequential 
drops.
    Electronic funds transfer. A transfer of funds to or from a Class II 
gaming system through the use of a cashless system, which are transfers 
from an external financial institution.
    Financial instrument. Any tangible item of value tendered in Class 
II game play including but not limited to bills, coins, vouchers, and 
coupons.
    Financial instrument acceptor. Any component that accepts financial 
instruments.
    Financial instrument storage component. Any component that stores 
financial instruments.
    Game software. The operational program or programs that govern the 
play, display of results, and/or awarding of prizes or credits for Class 
II games.

[[Page 161]]

    Gaming Equipment. All electronic, electro-mechanical, mechanical or 
other physical components utilized in the play of Class II games.
    Independent. The separation of functions so that the person or 
process monitoring, reviewing or authorizing the controlled 
transaction(s) is separate from the persons or process performing the 
controlled transaction(s).
    Inter-tribal prize pool. A fund to which multiple tribes contribute 
from which prizes are paid to winning players at a participating tribal 
gaming facility and which is administered by one of the participating 
tribes or a third party, (e.g. progressive prize pools, shared prize 
pools, etc.).
    Internal audit. The audit function of a gaming operation that is 
independent of the department subject to the audit. Internal audit 
activities should be conducted in a manner that permits objective 
evaluation of areas examined.
    Internal auditor. The person(s) who perform an independent audit. 
Independence is obtained through the organizational reporting 
relationship, as the internal audit department must not report to 
management of the gaming operation. Internal audit personnel may provide 
audit coverage to more than one operation within a tribe's gaming 
operation holdings.
    Kiosk. A self serve point of sale or other component capable of 
accepting or dispensing financial instruments and may also be capable of 
initiating cashless transactions of values to or from a patron deposit 
account or promotional account.
    Manual payout. The payment to a player of some or all of a player's 
accumulated credits (e.g. short pays, cancelled credits, etc.) or an 
amount owed as a result of a winning event by an agent of the gaming 
operation.
    MICS. Minimum internal control standards in this part.
    Non-cashable credit. Credits given by an operator to a patron; 
placed on a Class II gaming system through a coupon, cashless 
transaction, or other approved means; and capable of activating play but 
not being converted to cash.
    Patron deposit account. An account maintained on behalf of a patron, 
for the purpose of depositing and withdrawing cashable funds for the 
primary purpose of interacting with a gaming activity.
    Patron deposits. The funds placed with a designated cashier by 
patrons for the patrons' use at a future time.
    PIN. A personal identification number.
    Player interface. Any component(s) of a Class II gaming system, 
including an electronic or technological aid (not limited to terminals, 
player stations, handhelds, fixed units, etc.) that directly enable(s) 
player interaction in a Class II game.
    Player tracking system. A system typically used by a gaming 
operation to record the amount of play of an individual patron.
    Prize payout. A transaction associated with a winning event.
    Prize schedule. A set of prizes available to players for achieving 
pre-designated patterns in Class II game(s).
    Progressive prize. A prize that increases by a selectable or 
predefined amount based on play of a Class II game.
    Promotional account. A file, record, or other data structure that 
records transactions involving a patron or patrons that are not 
otherwise recorded in a patron deposit account.
    Promotional prize payout. Merchandise or awards given to players by 
the gaming operation which is based on gaming activity.
    Random number generator (RNG). A software module, hardware component 
or combination of these designed to produce outputs that are effectively 
random.
    Server. A computer which controls one or more applications or 
environments.
    Shift. An eight-hour period, unless otherwise approved by the tribal 
gaming regulatory authority, not to exceed 24 hours.
    Short pay. The payment of the unpaid balance of an incomplete payout 
by a player interface.
    Tier A. Gaming operations with annual gross gaming revenues of more 
than $1 million but not more than $5 million.
    Tier B. Gaming operations with annual gross gaming revenues of more

[[Page 162]]

than $5 million but not more than $15 million.
    Tier C. Gaming operations with annual gross gaming revenues of more 
than $15 million.
    Tribal Gaming Regulatory Authority. The entity authorized by tribal 
law to regulate gaming conducted pursuant to the Indian Gaming 
Regulatory Act.
    Voucher. A financial instrument of fixed value that can only be used 
to acquire an equivalent value of cashable credits or cash through 
interaction with a voucher system.
    Voucher System. A component of the Class II gaming system or an 
external system that securely maintains records of vouchers and coupons; 
validates payment of vouchers and coupons; records successful or failed 
payments of vouchers and coupons; and controls the purging of expired 
vouchers and coupons.



Sec. 543.3  How do tribal governments comply with this part?

    (a) Compliance based upon tier. [Reserved]
    (b) Determination of tier. [Reserved]
    (c) Tribal internal control standards. Within six months of October 
10, 2008, each tribal gaming regulatory authority must, in accordance 
with the tribal gaming ordinance, establish or ensure that tribal 
internal control standards are established and implemented that must:
    (1) Provide a level of control that equals or exceeds those set 
forth in this part; and
    (2) Contain standards to identify, detect and deter money laundering 
in furtherance of a criminal enterprise, terrorism, tax evasion or other 
unlawful activity. The standards should be designed to facilitate the 
keeping of records and the filing of reports with the appropriate 
federal regulatory and law enforcement authorities.
    (3) Establish a deadline, no later than October 13, 2010, 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 six months if written notice citing justification 
is provided to the Commission no later than two weeks before the 
deadline.
    (d) Gaming operations. Each gaming operation must 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 on or before November 10, 2008, must comply with this part 
within the time requirements established in paragraph (c) of this 
section. In the interim, such operations must continue to comply with 
existing tribal internal control standards.
    (2) New gaming operations. All gaming operations that commence 
operations after April 10, 2009, must comply with this part before 
commencement of operations.
    (e) Submission to Commission. Tribal regulations promulgated 
pursuant to this part are not required to be submitted to the Commission 
pursuant to Sec. 522.3(b) of this chapter.
    (f) CPA testing. (1) An independent certified public accountant 
(CPA) must 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 must 
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 tribe must submit two copies of the report to the 
Commission within 120 days of the gaming operation's fiscal year end. In 
performing the compliance audit, the CPA must use the Statements on 
Standards for Attestation Engagements No. 10 at Sections 101 (``Attest 
Engagements'') and 201 (``Agreed-Upon Procedures Engagements'') 
(collectively ``SSAE's''), July 12, 2007, American Institute of 
Certified Public Accountants Inc, (AICPA). SSAE No. 10 at Sections 101 
and 201 are incorporated by reference into this section with the 
approval of the Director of the Federal Register under 5 U.S.C. 552(a) 
and 1 CFR part 51. To enforce any edition other than that

[[Page 163]]

specified in this section, the Commission must publish notice of change 
in the Federal Register and the material must be available to the 
public. You may obtain a copy from the American Institute of Certified 
Public Accountants, 220 Leigh Farm Rd., Durham, NC 27707, 1-888-777-
7077, at http://www.aicpa.org. You may inspect a copy at the National 
Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 
20005, 202-632-7003. All approved material is available for inspection 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030 or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. The CPA must 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 inspections, observations and 
substantive testing. The CPA must complete separate checklists for bingo 
and information technology. 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 must 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: 
financial instrument acceptor drop and count. 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 proper identification of the CPA's personnel and to provide for 
their prompt access to the count rooms. The checklists should provide 
for drop and count observations. The count room should not be entered 
until the count is in process and the CPA should not leave the room 
until the monies have been counted and verified to the count sheet by 
the CPA and accepted into accountability.
    (B) Observations of the gaming operation's agents as they perform 
their duties.
    (C) Interviews with the gaming operation's agents 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, this section, is not required for the partial period.
    (2) Alternatively, at the discretion of the tribe, the tribe may 
engage an independent 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 must 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

[[Page 164]]

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 must 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.
    (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 six month periods) encompassing a portion or 
all of the most recent business year has been properly 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 six 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, re-perform 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 re-performance 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 
three percent of the procedures required in each CPA NIGC MICS 
Compliance Checklist or other comparable testing procedures for the 
bingo department and five percent for the other departments completed by 
internal audit in compliance with the internal audit MICS. The re-
performance 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 the CPA 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 document any differences between 
their re-performance results and the internal audit results.
    (D) Documentation must be maintained for five years by the CPA 
indicating the procedures re-performed 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 re-perform substantially all of the procedures 
after several years.
    (F) 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. 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

[[Page 165]]

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, at 
Sections 101 and 201 are 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 SSAE's 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. The report must describe all instances of 
procedural noncompliance (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: The 
citation of the applicable MICS for which the instance of noncompliance 
was noted; a narrative description of the noncompliance, including the 
number of exceptions and sample size tested.
    (5) Report submission requirements. (i) The CPA must prepare a 
report of the findings for the tribe and management. The tribe must 
submit two copies of the report to the Commission no later than 120 days 
after the gaming operation's business year end. 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, 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.

[73 FR 60498, Oct. 10, 2008, as amended at 74 FR 52139, Oct. 9, 2009]

    Effective Date Note: At 75 FR 55270, Sept. 10, 2010, Sec. 543.3 was 
amended by revising paragraph (c)(3), effective Oct. 13, 2011. For the 
convenience of the user, the revised text is set forth as follows:



Sec. 543.3  How do tribal governments comply with this part?

                                * * * * *

    (c) * * *
    (3) Establish a deadline, no later than October 13, 2011, 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 six months if written

[[Page 166]]

notice citing justification is provided to the Commission no later than 
two weeks before the deadline.

                                * * * * *



Sec. Sec. 543.4-543.5  [Reserved]



Sec. 543.6  Does this part apply to small and charitable gaming operations?

    (a) Small gaming operations. This part does not apply to small 
gaming operations provided that:
    (1) The tribal gaming regulatory authority permits the operation to 
be exempt from this part;
    (2) The annual gross gaming revenue of the operation does not exceed 
$2 million; and
    (3) The tribal gaming regulatory authority develops and the 
operation complies with alternate procedures that:
    (i) Protect the integrity of games offered;
    (ii) Safeguard the assets used in connection with the operation; and
    (iii) Create, prepare and maintain records in accordance with 
Generally Accepted Accounting Principles.
    (b) Charitable gaming operations. This part does 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 agents;
    (4) The annual gross gaming revenue of the charitable operation does 
not exceed $2 million; and
    (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;
    (ii) Safeguard the assets used in connection with the gaming 
operation; and
    (iii) Create, prepare and maintain records in accordance with 
Generally Accepted Accounting Principles. For more information please 
see www.fasb.gov or www.fasb.org.
    (c) Independent operators. Nothing in this section exempts gaming 
operations conducted by independent operators for the benefit of a 
charitable organization.



Sec. 543.7  What are the minimum internal control standards for bingo?

    (a) Bingo Cards--(1) Inventory of bingo paper. (i) The bingo paper 
inventory must be controlled so as to assure the integrity of the bingo 
paper being used as follows:
    (A) When received, bingo paper must be inventoried and secured by an 
authorized agent(s) independent of bingo sales;
    (B) The issue of bingo paper to the cashiers must be documented and 
signed for by the authorized agent(s) responsible for inventory control 
and a cashier. The bingo control log must include the series number of 
the bingo paper;
    (C) The bingo control log must be utilized by the gaming operation 
to verify the integrity of the bingo paper being used; and
    (D) Once each month, an authorized agent(s) independent of both 
bingo paper sales and bingo paper inventory control must verify the 
accuracy of the ending balance in the bingo control log by reconciling 
it with the bingo paper inventory.
    (ii) Paragraph (a)(1) of this section does not apply where no 
physical inventory is applicable.
    (2) Bingo sales. (i) There must be an accurate accounting of all 
bingo sales.
    (ii) All bingo sales records must include the following information:
    (A) Date;
    (B) Time;
    (C) Shift or session;
    (D) Sales transaction identifiers, which may be the unique card 
identifier(s) sold or when electronic bingo card faces are sold, the 
unique identifiers of the card faces sold;
    (E) Quantity of bingo cards sold;
    (F) Dollar amount of bingo sales;
    (G) Signature, initials, or identification of the agent or device 
who conducted the bingo sales; and
    (H) When bingo sales are recorded manually, total sales are verified 
by an authorized agent independent of the bingo sales being verified and 
the signature, initials, or identification of the authorized agent who 
verified the bingo sales is recorded.

[[Page 167]]

    (iii) No person shall have unrestricted access to modify bingo sales 
records.
    (iv) An authorized agent independent of the seller must perform the 
following standards for each seller at the end of each session:
    (A) Reconcile the documented total dollar amount of cards sold to 
the documented quantity of cards sold;
    (B) Note any variances; and
    (C) Appropriately investigate any noted variances with the results 
of the follow-up documented.
    (3) Voiding bingo cards. (i) Procedures must be established and 
implemented to prevent the voiding of card sales after the start of the 
calling of the game for which the bingo card was sold. Cards may not be 
voided after the start of a game for which the card was sold.
    (ii) When a bingo card must be voided the following controls must 
apply as relevant:
    (A) A non-electronic bingo card must be marked void; and
    (B) The authorization of the void, by an authorized agent 
independent of the original sale transaction (supervisor recommended), 
must be recorded either by signature on the bingo card or by 
electronically associating the void authorization to the sale 
transaction of the voided bingo card.
    (4) Reissue of previously sold bingo cards. When one or more 
previously sold bingo cards need to be reissued, the following controls 
must apply: the original sale of the bingo cards must be verified; and 
the reissue of the bingo cards must be documented, including the 
identity of the agent authorizing reissuance.
    (b) Draw--(1) Verification and display. (i) Procedures must be 
established and implemented to ensure the identity of each object drawn 
is accurately recorded and transmitted to the participants. The 
procedures must identify the method used to ensure the identity of each 
object drawn.
    (ii) For all games offering a prize payout of $1,200 or more, as the 
objects are drawn, the identity of the objects must be immediately 
recorded and maintained for a minimum of 24 hours.
    (iii) Controls must be present to assure that all objects eligible 
for the draw are available to be drawn prior to the next draw.
    (c) Manual payouts and short pays. (1) Procedures must be 
established and implemented to prevent unauthorized access or fraudulent 
transactions using manual payout documents, including:
    (i) Payout documents must be controlled and completed in a manner 
that is intended to prevent a custodian of funds from altering the 
dollar amount on all parts of the payout document subsequent to the 
manual payout and misappropriating the funds.
    (ii) Payout documents must be controlled and completed in a manner 
that deters any one individual from initiating and producing a 
fraudulent payout document, obtaining the funds, forging signatures on 
the payout document, routing all parts of the document, and 
misappropriating the funds. Recommended procedures of this standard 
include but are not limited to the following:
    (A) Funds are issued either to a second verifier of the manual 
payout (i.e., someone other than the agents who generated/requested the 
payout) or to two agents concurrently (i.e., the generator/requestor of 
the document and the verifier of the manual payout). Both witness the 
manual payout; or
    (B) The routing of one part of the completed document is under the 
physical control (e.g., dropped in a locked box) of an agent other than 
the agent that obtained/issued the funds and the agent that obtained/
issued the funds must not be able to place the document in the locked 
box.
    (iii) Segregation of responsibilities. The functions of sales and 
prize payout verification must be segregated, if performed manually. 
Agents who sell bingo cards on the floor must not verify bingo cards for 
prize payouts with bingo cards in their possession of the same type as 
the bingo card being verified for the game. Floor clerks who sell bingo 
cards on the floor are permitted to announce the identifiers of winning 
bingo cards.
    (iv) Validation. Procedures must be established and implemented to 
determine the validity of the claim prior to the payment of a prize 
(i.e., bingo card was sold for the game played, not voided, etc.) by at 
least two persons.

[[Page 168]]

    (v) Verification. Procedures must be established and implemented to 
ensure that at least two persons verify the winning pattern has been 
achieved on the winning card prior to the payment of a prize.
    (vi) Authorization and signatures. (A) A Class II gaming system may 
substitute as one authorization/signature verifying, validating or 
authorizing a winning card of less than $1,200 or other manual payout. 
Where a Class II gaming system substitutes as an authorization/
signature, the manual payout is subject to the limitations provided in 
this section.
    (B) For manual prize payouts of $1,200 or more and less than a 
predetermined amount not to exceed $50,000, at least two agents must 
authorize, sign and witness the manual prize payout.
    (1) Manual prize payouts over a predetermined amount not to exceed 
$50,000 must require one of the two signatures and verifications to be a 
supervisory or management employee independent of the operation of 
bingo.
    (2) This predetermined amount, not to exceed $50,000, must be 
authorized by management, approved by the tribal gaming regulatory 
authority, documented, and maintained.
    (2) Documentation, including:
    (i) Manual payouts and short-pays exceeding $10 must be documented 
on a two-part form, of which a restricted system record can be 
considered one part of the form, and documentation must include the 
following information:
    (A) Date and time;
    (B) Player interface identifier or game identifier;
    (C) Dollar amount paid (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 
paid;
    (D) Type of manual payout (e.g., prize payout, external bonus 
payout, short pay, etc.);
    (E) Game outcome (e.g., patterns, symbols, bingo card identifier/
description, etc.) for manual prize payouts, external bonus description, 
reason for short pay, etc.;
    (F) Preprinted or concurrently printed sequential manual payout 
identifier; and
    (G) Signatures or other authorizations, as required by this part.
    (ii) For short-pays of $10 or less, the documentation (single-part 
form or log is acceptable) must include the following information:
    (A) Date and time;
    (B) Player interface number;
    (C) Dollar amount paid (both alpha and numeric). Alpha is optional 
if another unalterable method is used for evidencing the amount paid;
    (D) The signature of at least one agent verifying and witnessing the 
short pay; and
    (E) Reason for short pay.
    (iii) In other situations that allow an agent to input a prize 
payout or change the dollar amount of the prize payout by more than $1 
in a Class II gaming system that has an automated prize payout 
component, two agents, one of which is a supervisory employee, must be 
physically involved in verifying and witnessing the prize payout.
    (iv) For manually paid promotional prize payouts, as a result of the 
play of a game and where the amount paid is not included in the prize 
schedule, the documentation (single-part form or log is acceptable) must 
include the following information:
    (A) Date and time;
    (B) Player interface number;
    (C) Dollar amount paid (both alpha and numeric). Alpha is optional 
if another unalterable method is used for evidencing the amount paid;
    (D) The signature of at least one agent verifying and witnessing the 
manual promotional prize payout of $599 or less and two agents verifying 
and witnessing the manual promotional prize payout exceeding $599;
    (E) Description or name of the promotion; and
    (F) Total amount of manual promotional prize payouts must be 
recorded by shift, session or other relevant time period.
    (v) When a controlled manual payout document is voided, the agent 
completing the void must clearly mark ``void'' across the face of the 
document, sign across the face of the document

[[Page 169]]

and all parts of the document must be retained for accountability.
    (d) Operational controls. (1) Procedures must be established and 
implemented with the intent to prevent unauthorized access to or 
fraudulent transactions involving cash or cash equivalents.
    (2) Cash or cash equivalents exchanged between two persons must be 
counted independently by at least two persons and reconciled to the 
recorded amounts at the end of each shift or if applicable each session. 
Unexplained variances must be documented and maintained. Unverified 
transfers of cash or cash equivalents are prohibited.
    (3) Procedures must be established and implemented to control cash 
or cash equivalents in accordance with this section and based on the 
amount of the transaction. These procedures include, but are not limited 
to, counting and recording on an accountability form by shift, session 
or relevant time period the following:
    (i) Inventory, including any increases or decreases;
    (ii) Transfers;
    (iii) Exchanges, including acknowledging signatures or initials; and
    (iv) Resulting variances.
    (4) Any change of control of accountability, exchange or transfer 
must require the cash or cash equivalents be counted and recorded 
independently by at least two persons and reconciled to the recorded 
amount.
    (e) Gaming equipment. (1) Procedures must be established and 
implemented with the intention to restrict access to agents for the 
following:
    (i) Controlled gaming equipment/components (e.g., draw objects and 
back-up draw objects); and
    (ii) Random number generator software. (Additional information 
technology security standards can be found in Sec. 543.16 of this 
part.)
    (2) The game software components of a Class II gaming system will be 
identified in the test laboratory report. When initially received, the 
software must be verified to be authentic copies, as certified by the 
independent testing laboratory.
    (3) Procedures must be established relating to the periodic 
inspection, maintenance, testing, and documentation of a random sampling 
of gaming equipment/components, including but not limited to:
    (i) Software related to game outcome must be authenticated semi-
annually by an agent independent of bingo operations by comparing 
signatures against the test laboratory letter on file with the tribal 
gaming regulatory authority for that version.
    (ii) Class II gaming system interfaces to external systems must be 
tested annually for accurate communications and appropriate logging of 
events.
    (4) Records must be maintained for each player interface that 
indicate the date the player interface was placed into service or made 
available for play, the date the player interface was removed from 
service and not available for play, and any changes in player interface 
identifiers.
    (f) Voucher systems. (1) The voucher system must be utilized to 
verify the authenticity of each voucher or coupon redeemed.
    (2) If the voucher is valid, the patron is paid the appropriate 
amount.
    (3) Procedures must be established and implemented to document the 
payment of a claim on a voucher that is not physically available or a 
voucher that cannot be validated (e.g., mutilated, expired, lost, 
stolen, etc.).
    (i) If paid, appropriate documentation is retained for 
reconciliation purposes.
    (ii) Payment of a voucher for $50 or more, a supervisory employee 
must review the applicable voucher system, player interface or other 
transaction history records to verify the validity of the voucher and 
initial the voucher or documentation prior to payment.
    (4) Vouchers redeemed must remain in the cashier's accountability 
for reconciliation purposes. The voucher redemption system reports must 
be used to ensure all paid vouchers have been validated.
    (5) Vouchers paid during a period while the voucher system is 
temporarily out of operation must be marked ``paid'', initialed and 
dated by the cashier. If the voucher is greater than a predetermined 
amount approved (not to exceed $500), a supervisory employee

[[Page 170]]

must approve the payment and evidence that approval by initialing the 
voucher prior to payment.
    (6) Paid vouchers are maintained in the cashier's accountability for 
reconciliation purposes.
    (7) Upon restored operation of the voucher system, vouchers redeemed 
while the voucher system was temporarily out of operation must be 
validated as expeditiously as possible.
    (8) Unredeemed vouchers can only be voided in the voucher system by 
supervisory employees. The supervisory employee completing the void must 
clearly mark ``void'' across the face of the voucher and sign across the 
face of the voucher, if available. The accounting department will 
maintain the voided voucher, if available.
    (g) Patron accounts and cashless systems. (1) All smart cards (i.e., 
cards that possess the means to electronically store or retrieve data) 
that maintain the only source of account data are prohibited.
    (2) For patron deposit accounts the following standards must apply:
    (i) For each patron deposit account, an agent must:
    (A) Require the patron to personally appear at the gaming operation;
    (B) Record the type of identification credential examined, the 
credential number, the expiration date of credential, and the date 
credential was examined. (Note: A patron's driver's license is the 
preferred method for verifying the patron's identity. A passport, non-
resident alien identification card, other government issued 
identification credential or another picture identification credential 
normally acceptable as a means of identification when cashing checks, 
may also be used.);
    (C) Record the patron's name and may include another identifier 
(e.g., nickname, title, etc.) of the patron, if requested by patron;
    (D) Record a unique identity for each patron deposit account;
    (E) Record the date the account was opened; and
    (F) Provide the account holder with a secure method of access to the 
account.
    (ii) Patron deposit accounts must be established for patrons at 
designated areas of accountability and the creation of the account must 
meet all the controls of paragraph (g)(2)(i) of this section when the 
patron makes an initial deposit of cash or cash equivalents.
    (iii) If patron deposit account adjustments may be made by the 
operation, the operation must be authorized by the account holder to 
make necessary adjustments. This requirement can be met through the 
collection of a single authorization that covers the life of the patron 
deposit account.
    (iv) Patron deposits & withdrawals. (A) Prior to the patron making a 
withdrawal from a patron deposit account, the cashier must verify the 
identity of the patron and availability of funds. Reliance on a secured 
PIN entered by the patron is an acceptable method of verifying patron 
identity.
    (B) A multi-part deposit/withdrawal record must be created when the 
transaction is processed by a cashier, including;
    (1) Same document number on all copies;
    (2) Type of transaction, deposit or withdrawal;
    (3) Name or other identifier of the patron;
    (4) At least the last four digits of the account identifier;
    (5) Patron signature for withdrawals, unless a secured PIN is 
utilized by the patron;
    (6) Date of transaction;
    (7) Dollar amount of transaction;
    (8) Nature of deposit or withdrawal (e.g., cash, check, chips); and
    (9) Signature of the cashier processing the transaction.
    (C) A copy of the transaction record must be secured for 
reconciliation of the cashier's bank for each shift. All transactions 
involving patron deposit accounts must be accurately tracked.
    (D) The copy of the transaction record must be forwarded to the 
accounting department at the end of the gaming day.
    (E) When a cashier is not involved in the deposit/withdrawal of 
funds, procedures must be established that safeguard the integrity of 
the process used.
    (v) Patron deposit account adjustments. (A) Adjustments to the 
patron deposit accounts must be performed by an agent.
    (B) A record must be created when the transaction is processed, 
including;

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    (1) Unique transaction identifier;
    (2) Type of transaction, adjustment;
    (3) Name or other identifier of the patron;
    (4) At least the last four digits of the account identifier;
    (5) Date of transaction;
    (6) Dollar amount of transaction;
    (7) Reason for the adjustment; and
    (8) Signature or unique identifier for the agent who made the 
adjustment.
    (C) The transaction record must be forwarded to the accounting 
department at the end of the gaming day.
    (vi) Where available, systems reports that indicate the dollar 
amount of transactions for patron deposit accounts (e.g., deposits, 
withdrawals, account adjustments, etc.) that should be reflected in each 
cashier's accountability must be utilized at the conclusion of each 
shift in the reconciling of funds.
    (vii) Cashless transactions and electronic funds transfers to and 
from patron deposit accounts must be recorded and maintained at the end 
of the gaming operations specified 24-hour accounting period.
    (viii) Procedures must be established to maintain a detailed record 
for each patron deposit account that includes the dollar amount of all 
funds deposited and withdrawn, account adjustments made, and the 
transfers to or from player interfaces.
    (ix) Detailed patron deposit account transaction records must be 
available to the patron upon reasonable request and to the tribal gaming 
regulatory authority upon request.
    (x) Only dedicated gaming operation bank accounts must be used to 
record electronic funds transfers to or from the patron deposit 
accounts. Gaming operation bank accounts dedicated to electronic funds 
transfers to or from the patron deposit accounts must not be used for 
any other types of transactions.
    (3) For promotional and other accounts the following standards must 
apply:
    (i) Changes to promotional and other accounts must be performed by 
an agent.
    (ii) The following standards apply if a player tracking system is 
utilized:
    (A) In the absence of the patron, modifications to balances on a 
promotional or other account must be made under the authorization of 
supervisory employees and must be sufficiently documented (including 
substantiation of reasons for modification). Modifications are randomly 
verified by independent agents on a quarterly basis. This standard does 
not apply to the deletion of balances related to inactive or closed 
accounts through an automated process.
    (B) Access to inactive or closed accounts is restricted to 
supervisory employees.
    (C) Patron identification is required when redeeming values. 
Reliance on a secured PIN by the patron is an acceptable method of 
verifying patron identification.
    (h) Promotions. (1) The conditions for participating in promotional 
programs, including drawings and giveaway programs must be approved and 
available for patron review at the gaming operation.
    (2) Changes to the player tracking systems, promotional accounts, 
promotion and external bonusing system parameters which control features 
such as the awarding of bonuses, the issuance of cashable credits, non-
cashable credits, coupons and vouchers, must be performed under the 
authority of supervisory employees, independent of the department 
initiating the change. Alternatively, the changes may be performed by 
supervisory employees of the department initiating the change if 
sufficient documentation is generated and the propriety of the changes 
are randomly verified by supervisory employees independent of the 
department initiating the change on a monthly basis.
    (3) All other changes to the player tracking system must be 
appropriately documented.
    (4) All relevant controls from Sec. 543.16 of this part will apply.
    (i) Accounting--(1) Accounting/audit standards. (i) Accounting/
auditing procedures must be performed by agents who are independent of 
the persons who performed the transactions being reviewed.
    (ii) All accounting/audit procedures and actions must be documented 
(e.g.,

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log, checklist, investigations and notation on reports), maintained for 
inspection and provided to the tribal gaming regulatory authority upon 
request.
    (iii) Accounting/audit procedures must be performed reviewing 
transactions for relevant accounting periods, including a 24-hour 
accounting period and reconciled in total for those time periods.
    (iv) Accounting/audit procedures must be performed within seven days 
of the transaction's occurrence date being reviewed.
    (v) Accounting/audit procedures must be in place to review variances 
related to bingo accounting data, which must include at a minimum any 
variance noted by the Class II gaming system for cashless transactions 
in and out, electronic funds transfer in and out, external bonus 
payouts, vouchers out and coupon promotion out.
    (vi) At least monthly, an accounting/audit agent must confirm that 
the appropriate investigation has been completed for the review of 
variances.
    (2) Audit tasks to be performed for each day's business.
    (i) Records of bingo card sales must be reviewed for proper 
authorization, completion and accurate calculations.
    (ii) Manual payout summary report, if applicable, must be reviewed 
for proper authorizations, completion, accurate calculations, and 
authorization confirming manual payout summary report totals.
    (iii) A random sampling of records of manual payouts must be 
reviewed for proper authorizations and completion for manual payouts 
less than $1,200.
    (iv) Records of all manual prize payouts of $1,200 or more must be 
reviewed for proper authorizations and completion.
    (v) Where manual payout information is available per player 
interface, records of manual payouts must be reviewed against the 
recorded manual payout amounts per player interface.
    (vi) Manual payout forms must be reconciled to each cashier's 
accountability documents and in total for each relevant period (e.g., 
session, shift, day, etc.).
    (vii) Records of voided manual payouts must be reviewed for proper 
authorization and completion.
    (viii) Records of voided bingo cards must be reviewed for proper 
authorization and completion.
    (ix) Use of controlled forms must be reviewed to ensure each form is 
accounted for.
    (x) Where bingo sales are available per player interface, bingo 
sales must be reviewed for reasonableness.
    (xi) Amount of financial instruments accepted per financial 
instrument type and per financial instrument acceptor must be reviewed 
for reasonableness, to include but not limited to zero amounts.
    (xii) Where total prize payouts are available per player interface, 
total prize payouts must be reviewed for reasonableness.
    (xiii) Amount of financial instruments dispensed per financial 
instrument type and per financial instrument dispenser must be reviewed 
for reasonableness, to include but not limited to zero amounts.
    (xiv) For a random sampling, foot the vouchers redeemed and trace 
the totals to the totals recorded in the voucher system and to the 
amount recorded in the applicable cashier's accountability document.
    (xv) Daily exception information provided by systems used in the 
operation of bingo must be reviewed for propriety of transactions and 
unusual occurrences.
    (xvi) Ensure promotional coupons which are not financial instruments 
are properly cancelled to prevent improper recirculation.
    (xvii) Reconcile all parts of the form used to document transfers 
that increase/decrease the inventory of an accountability (includes 
booths and any other accountability areas).
    (xviii) Reconcile voucher liability (e.g., issued-voided-redeemed-
expired = unpaid) to the voucher system records.
    (xix) The total of all patron deposit accounts must be reconciled, 
as follows:
    (A) A report must be generated that details each day's beginning and 
ending balance of patron deposit accounts, adjustments to patron deposit 
accounts, and all patron deposit account transactions.
    (B) Reconcile the beginning and ending balances to the summary of 
manual

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deposit/withdrawal and account adjustment documentation to the patron 
deposit account report.
    (xx) Reconcile each day's patron deposit account liability (e.g., 
deposits  adjustments-withdrawals = total account 
balance) to the system records.
    (xxi) Reconcile electronic funds transfers to the cashless system 
records, the records of the outside entity which processed the 
transactions and the operations dedicated cashless account bank records.
    (xxii) Accounting data used in performance analysis may only be 
altered to correct amounts that were determined to be in error. When 
correcting accounting data, the correct amount must be indicated in any 
Class II gaming system exception reports generated.
    (xxiii) Accounting/auditing agents must reconcile the audited bingo 
totals report to the audited bingo accounting data for each day.
    (xxiv) Accounting/auditing agents must ensure each day's bingo 
accounting data used in performance reports has been audited and 
reconciled.
    (xxv) If the Class II gaming system produces exception reports they 
must be reviewed on a daily basis for propriety of transactions and 
unusual occurrences.
    (3) Audit tasks to be performed at relevant periods:
    (i) Financial instrument acceptor data must be recorded immediately 
prior to or subsequent to a financial instrument acceptor drop. The 
financial instrument acceptor amount-in data must be recorded at least 
weekly. The time between recordings may extend beyond one week in order 
for a recording to coincide with the end of an accounting period only if 
such extension is for no longer than six additional days.
    (ii) When a player interface is removed from the floor, the 
financial instrument acceptor contents must be protected to prevent the 
misappropriation of stored funds.
    (iii) When a player interface is permanently removed from the floor, 
the financial instrument acceptor contents must be counted and recorded.
    (iv) For currency interface systems, accounting/auditing agents must 
make appropriate comparisons of system generated count as recorded in 
the statistical report at least one drop period per month. Discrepancies 
must be resolved prior to generation/distribution of reports.
    (v) For each drop period, accounting/auditing agents must compare 
the amount-in per financial instrument accepted by the financial 
instrument acceptors to the drop amount counted for the period. 
Discrepancies must be resolved before the generation/distribution of 
statistical reports.
    (vi) Investigation must be performed for any one player interface 
having an unresolved drop variance in excess of an amount that is both 
more than $25 and at least three percent (3%) of the actual drop. The 
investigation performed and results of the investigation must be 
documented, maintained for inspection, and provided to the tribal gaming 
regulatory authority upon request.
    (vii) The results of a variance investigation, including the date 
and personnel involved in any investigation, will be documented in the 
appropriate report and retained. The results will also include any 
corrective action taken (e.g., accounting data storage component 
replaced, interface component repaired, software debugged, etc.). The 
investigation will be completed and the results documented within seven 
days of the day the variance was noted, unless otherwise justified.
    (viii) Procedures must be established and implemented to perform the 
following on a regular basis, at a minimum of monthly, and using 
predetermined thresholds:
    (A) Where the Class II gaming system is capable of providing 
information per player interface, identify and investigate player 
interfaces with total prize payouts exceeding bingo sales;
    (B) Where bingo sales is available per player interface, investigate 
any percentage of increase/decrease exceeding a predetermined threshold, 
not to exceed 20%, in total bingo sales as compared to a similar period 
of time that represents consistency in prior performance.
    (C) Investigate any exception noted in paragraphs (i)(3)(viii)(A) 
and (B) of this section and document the findings.

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The investigation may include procedures to review one or more of the 
following:
    (1) Verify days on floor are comparable.
    (2) Non-prize payouts for authenticity and propriety.
    (3) Player interface out of service periods.
    (4) Unusual fluctuations in manual payouts.
    (D) If the investigation does not identify an explanation for 
exceptions then a physical check procedure must be performed, as 
required by paragraph (i)(3)(viii)(E) of this section.
    (E) Document any investigation of unresolved exceptions using a 
predefined player interface physical check procedure and checklist, to 
include a minimum of the following as applicable:
    (1) Verify game software;
    (2) Verify player interface configurations;
    (3) Test amount in accounting data for accuracy upon insertion of 
financial instruments into the financial instrument acceptor;
    (4) Test amount out accounting data for accuracy upon dispensing of 
financial instruments from the financial instrument dispenser;
    (5) Record findings and repairs or modifications made to resolve 
malfunctions, including date and time, player interface identifier and 
signature of the agent performing the player interface physical check, 
and additional signatures as required; and
    (6) Maintain player interface physical check records, either in 
physical or electronic form, for the period prescribed by the procedure.
    (ix) For Class II gaming systems, procedures must be performed at 
least monthly to verify that the system accounting data is accurate.
    (x) For Tier C, at least weekly:
    (A) Financial instruments accepted at a kiosk must be removed and 
counted by at least two agents; and
    (B) Kiosk transactions must be reconciled to the beginning and 
ending balances for each kiosk.
    (xi) At the conclusion of a promotion, accounting/audit agents must 
perform procedures (e.g., interviews, review of payout documentation, 
etc.) to ensure that promotional prize payouts, drawings, and giveaway 
programs are conducted in accordance with the rules provided to the 
patrons.
    (4) Inter-tribal prize pools. Procedures must be established and 
implemented to govern the participation in inter-tribal prize pools, 
which at a minimum must include the review, verification and maintenance 
of the following records, which must be made available, within a 
reasonable time of the request, to the tribal gaming regulatory 
authority upon request:
    (i) Summary of contributions in total made to an inter-tribal prize 
pool;
    (ii) Summary of disbursements in total from an inter-tribal prize 
pool; and
    (iii) Summary of inter-tribal prize pool funds availability.
    (5) Performance analysis. (i) Bingo performance data must be 
recorded at the end of the gaming operations specified 24-hour 
accounting period. Such data must include:
    (A) Amount-in and amount-out for each Class II gaming system.
    (B) The total value of all financial instruments accepted by the 
Class II gaming system by each financial instrument acceptor and by each 
financial instrument type.
    (C) The total value of all financial instruments dispensed by the 
Class II gaming system and by each financial instrument type.
    (D) The total value of all manual payouts by each Class II gaming 
system.
    (E) The total value of bingo purchases for each Class II gaming 
system.
    (F) The total value of prizes paid for each Class II gaming system.
    (ii) Procedures must be established and implemented that ensure the 
reliability of the performance data.
    (iii) Upon receipt of the summary of the data, the accounting 
department must review it for reasonableness using pre-established 
parameters defined by the gaming operation.
    (iv) An agent must record and maintain all required data before and 
after any maintenance or modifications that involves the clearing of the 
data (e.g., system software upgrades, data storage

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media replacement, etc.). The information recorded must be used when 
reviewing performance reports to ensure that the maintenance or 
modifications did not improperly affect the data in the reports.
    (6) Statistical reporting. (i) The bingo sales, prize payouts, bingo 
win, and actual bingo win percentages must be recorded for:
    (A) Each shift or session;
    (B) Each day;
    (C) Month-to-date; and
    (D) Year-to-date or fiscal year-to-date.
    (ii) A monthly comparison for reasonableness must be made of the 
amount of bingo paper sold from the bingo paper control log to the 
amount of bingo paper sales revenue recognized.
    (iii) Management employees independent of the bingo department must 
review bingo statistical information on at least a monthly basis.
    (iv) Agents independent of the bingo department must investigate any 
large or unusual statistical fluctuations, as defined by the gaming 
operation.
    (v) Such investigations must be documented, maintained for 
inspection, and provided to the tribal gaming regulatory authority upon 
request.
    (vi) The actual bingo win percentages used in the statistical 
reports should not include operating expenses (e.g., a percentage 
payment to administrators of inter-tribal prize pools), promotional 
prize payouts or bonus payouts not included in the prize schedule.
    (7) Progressive prize pools. (i) A display that shows the amount of 
the progressive prize must be conspicuously displayed at or near the 
player interface(s) to which the prize applies.
    (ii) At least once each day, each gaming operation must record the 
total amount of each progressive prize pool offered at the gaming 
operation on the progressive log.
    (iii) When a manual payment for a progressive prize is made from a 
progressive prize pool, the amount must be recorded on the progressive 
log.
    (iv) Each gaming operation must record, on the progressive log, the 
base reset amount of each progressive prize the gaming operation offers.
    (v) Procedures must be established and implemented specific to the 
transfer of progressive amounts in excess of the base reset amount to 
other awards or prizes. Such procedures may also include other methods 
of distribution that accrue to the benefit of the gaming public.



Sec. Sec. 543.8-543.15  [Reserved]



Sec. 543.16  What are the minimum internal controls for information technology?

    (a) Physical security measures restricting access to agents, 
including vendors, must exist over the servers, including computer 
terminals, storage media, software and data files to prevent 
unauthorized access and loss of integrity of data and processing.
    (b) Unauthorized individuals must be precluded from having access to 
the secured computer area(s).
    (c) User controls. (1) Computer systems, including application 
software, must be secured through the use of passwords or other approved 
means.
    (2) Procedures must be established and implemented to ensure that 
management or independent agents assign and control access to computer 
system functions.
    (3) Passwords must be controlled as follows unless otherwise 
addressed in the standards in this section.
    (i) Each user must have his or her own individual user 
identification and password.
    (ii) When an individual has multiple user profiles, only one user 
profile per application may be used at a time.
    (iii) Passwords must be changed at least quarterly with changes 
documented. Documentation is not required if the system prompts users to 
change passwords and then denies access if the change is not completed.
    (iv) The system must be updated to change the status of terminated 
users from active to inactive status within 72 hours of termination.
    (v) At least quarterly, independent agents must review user access 
records for appropriate assignment of access and to ensure that 
terminated users do not have access to system functions.
    (vi) Documentation of the quarterly user access review must be 
maintained.

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    (vii) System exception information (e.g., changes to system 
parameters, corrections, overrides, voids, etc.) must be maintained.
    (4) Procedures must be established and implemented to ensure access 
listings are maintained which include at a minimum:
    (i) User name or identification number (or equivalent); and
    (ii) Listing of functions the user can perform or equivalent means 
of identifying same.
    (d) Adequate backup and recovery procedures must be in place that 
include:
    (1) Daily backup of data files--(i) Backup of all programs. Backup 
of programs is not required if the program can be reinstalled.
    (ii) Secured storage of all backup data files and programs, or other 
adequate protection to prevent the permanent loss of any data.
    (iii) Backup data files and programs may be stored in a secured 
manner in another building that is physically separated from the 
building where the system's hardware and software are located. They may 
also be stored in the same building as the hardware/software as long as 
they are secured in a fireproof safe or some other manner that will 
ensure the safety of the files and programs in the event of a fire or 
other disaster.
    (2) Recovery procedures must be tested on a sample basis at least 
annually with documentation of results.
    (e) Access records. (1) Procedures must be established to ensure 
computer access records, if capable of being generated by the computer 
system, are reviewed for propriety for the following at a minimum:
    (i) Class II gaming systems;
    (ii) Accounting/auditing systems;
    (iii) Cashless systems;
    (iv) Voucher systems;
    (v) Player tracking systems; and
    (vi) External bonusing systems.
    (2) If the computer system cannot deny access after a predetermined 
number of consecutive unsuccessful attempts to log on, the system must 
record unsuccessful log on attempts.
    (f) Remote access controls. (1) For computer systems that can be 
accessed remotely, the written system of internal controls must 
specifically address remote access procedures including, at a minimum:
    (i) Record the application remotely accessed, authorized user's name 
and business address and version number, if applicable;
    (ii) Require approved secured connection;
    (iii) The procedures used in establishing and using passwords to 
allow authorized users to access the computer system through remote 
access;
    (iv) The agents involved and procedures performed to enable the 
physical connection to the computer system when the authorized user 
requires access to the system through remote access; and
    (v) The agents involved and procedures performed to ensure the 
remote access connection is disconnected when the remote access is no 
longer required.
    (2) In the event of remote access, the information technology 
employees must prepare a complete record of the access to include:
    (i) Name or identifier of the employee authorizing access;
    (ii) Name or identifier of the authorized user accessing system;
    (iii) Date, time, and duration of access; and
    (iv) Description of work performed in adequate detail to include the 
old and new version numbers, if applicable of any software that was 
modified, and details regarding any other changes made to the system.

                        PARTS 544	546 [RESERVED]



PART 547_MINIMUM TECHNICAL STANDARDS FOR GAMING EQUIPMENT 

USED WITH THE PLAY OF CLASS II GAMES--Table of Contents



Sec.
547.1 What is the purpose of this part?
547.2 How do these regulations affect state jurisdiction?
547.3 What are the definitions for this part?
547.4 How does a tribal government, tribal gaming regulatory authority, 
          or tribal gaming operation comply with this part?
547.5 What are the rules of interpretation and of general application 
          for this part?

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547.6 What are the minimum technical standards for enrolling and 
          enabling Class II gaming system components?
547.7 What are the minimum technical hardware standards applicable to 
          Class II gaming systems?
547.8 What are the minimum technical software standards applicable to 
          Class II gaming systems?
547.9 What are the minimum technical standards for Class II gaming 
          system accounting functions?
547.10 What are the minimum standards for Class II gaming system 
          critical events?
547.11 What are the minimum technical standards for money and credit 
          handling?
547.12 What are the minimum technical standards for downloading on a 
          Class II gaming system?
547.13 What are the minimum technical standards for program storage 
          media?
547.14 What are the minimum technical standards for electronic random 
          number generation?
547.15 What are the minimum technical standards for electronic data 
          communications between system components?
547.16 What are the minimum standards for game artwork, glass, and 
          rules?
547.17 How does a tribal gaming regulatory authority apply for a 
          variance from these standards?

    Authority: 25 U.S.C. 2706(b).

    Source: 73 FR 60525, Oct. 10, 2008, unless otherwise noted.



Sec. 547.1  What is the purpose of this part?

    The Indian Gaming Regulatory Act, 25 U.S.C. 2703(7)(A)(i), permits 
the use of electronic, computer, or other technologic aids in connection 
with the play of Class II games. This part establishes the minimum 
technical standards governing the use of such aids.



Sec. 547.2  How do these regulations affect state jurisdiction?

    Nothing in this part shall be construed to grant to a state 
jurisdiction over Class II gaming or to extend a state's jurisdiction 
over Class III gaming.



Sec. 547.3  What are the definitions for this part?

    For the purposes of this part, the following definitions apply:
    Account access component. A component within a Class II gaming 
system that reads or recognizes account access media and gives a patron 
the ability to interact with his or her account.
    Account access medium. A magnetic stripe card or any other medium 
inserted into, or otherwise made to interact with, an account access 
component in order to give a patron the ability to interact with an 
account.
    Audit mode. The mode where it is possible to view Class II gaming 
system accounting functions, statistics, etc. and perform non-player-
related functions.
    Agent. An employee or other person authorized by the gaming 
operation, as approved by the tribal gaming regulatory authority, 
designated for certain decisions, tasks and actions in the gaming 
operation.
    Cancel credit. An action initiated by the Class II gaming system 
where some or all of a player's credits are removed by an attendant and 
paid to the player.
    Cashless system. A system that performs cashless transactions and 
maintains records of those cashless transactions.
    Cashless transaction. A movement of funds electronically from one 
component to another, often to or from a patron deposit account.
    CD-ROM. Compact Disc--Read Only Memory.
    Chairman. The Chairman of the National Indian Gaming Commission.
    Class II game. The same as ``class II gaming'' in 25 U.S.C. 
2703(7)(A).
    Class II gaming system. All components, whether or not technologic 
aids in electronic, computer, mechanical, or other technologic form, 
that function together to aid the play of one or more Class II games, 
including accounting functions mandated by these regulations.
    Commission. The National Indian Gaming Commission established by the 
Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq.
    Coupon. A financial instrument of fixed wagering value, usually 
paper, that can only be used to acquire non-cashable credits through 
interaction with a voucher system. This does not include instruments 
such as printed advertising material that cannot be validated directly 
by a voucher system.
    Critical memory. Memory locations storing data essential to the

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functionality of the Class II gaming system.
    DLL. A Dynamic-Link Library file.
    Download package. Approved data sent to a component of a Class II 
gaming system for such purposes as changing the component software.
    DVD. Digital Video Disk or Digital Versatile Disk.
    Electromagnetic interference. The physical characteristic of an 
electronic component to emit electronic noise either into free air, onto 
the power lines, or onto communication cables.
    Electrostatic discharge. A single-event, rapid transfer of 
electrostatic charge between two objects, usually resulting when two 
objects at different potentials come into direct contact with each 
other.
    EPROM. Erasable Programmable Read Only Memory--a storage area that 
may be filled with data and information, that once written is not 
modifiable, and that is retained even if there is no power applied to 
the machine.
    Fault. An event that when detected by a Class II gaming system 
causes a discontinuance of game play or other component functions.
    Financial instrument. Any tangible item of value tendered in Class 
II game play, including, but not limited to, bills, coins, vouchers and 
coupons.
    Financial instrument acceptor. Any component that accepts financial 
instruments.
    Financial instrument dispenser. Any component that dispenses 
financial instruments.
    Financial instrument storage component. Any component that stores 
financial instruments.
    Flash memory. Non-volatile memory that retains its data when the 
power is turned off and that can be electronically erased and 
reprogrammed without being removed from the circuit board.
    Game software. The operational program or programs that govern the 
play, display of results, and/or awarding of prizes or credits for Class 
II games.
    Gaming equipment. All electronic, electro-mechanical, mechanical, or 
other physical components utilized in the play of Class II games.
    Hardware. Gaming equipment.
    Interruption. Any form of mis-operation, component failure, or 
interference to the Class II gaming equipment.
    Modification. A revision to any hardware or software used in a Class 
II gaming system.
    Non-cashable credit. Credits given by an operator to a patron; 
placed on an Class II gaming system through a coupon, cashless 
transaction or other approved means; and capable of activating play but 
not being converted to cash.
    Patron deposit account. An account maintained on behalf of a patron, 
for the purpose of depositing and withdrawing cashable funds for the 
primary purpose of interacting with a gaming activity.
    Player interface. Any component or components of a Class II gaming 
system, including an electronic or technologic aid (not limited to 
terminals, player stations, handhelds, fixed units, etc.), that directly 
enables player interaction in a Class II game.
    Prize schedule. The set of prizes available to players for achieving 
pre-designated patterns in the Class II game.
    Program storage media. An electronic data storage component, such as 
a CD-ROM, EPROM, hard disk, or flash memory on which software is stored 
and from which software is read.
    Progressive prize. A prize that increases by a selectable or 
predefined amount based on play of a Class II game.
    Random number generator (RNG). A software module, hardware component 
or combination of these designed to produce outputs that are effectively 
random.
    Reflexive software. Any software that has the ability to manipulate 
and/or replace a randomly generated outcome for the purpose of changing 
the results of a Class II game.
    Removable/rewritable storage media. Program or data storage 
components that can be removed from gaming equipment and be written to, 
or rewritten by, the gaming equipment or by other equipment designed for 
that purpose.

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    Server. A computer that controls one or more applications or 
environments within a Class II gaming system.
    Test/diagnostics mode. A mode on a component that allows various 
tests to be performed on the Class II gaming system hardware and 
software.
    Testing laboratory. An organization recognized by a tribal gaming 
regulatory authority pursuant to Sec. 547.4(f).
    Tribal gaming regulatory authority. The entity authorized by tribal 
law to regulate gaming conducted pursuant to the Indian Gaming 
Regulatory Act.
    Voucher. A financial instrument of fixed wagering value, usually 
paper, that can only be used to acquire an equivalent value of cashable 
credits or cash through interaction with a voucher system.
    Voucher system. A component of the Class II gaming system or an 
external system that securely maintains records of vouchers and coupons; 
validates payment of vouchers; records successful or failed payments of 
vouchers and coupons; and controls the purging of expired vouchers and 
coupons.



Sec. 547.4  How does a tribal government, tribal

gaming regulatory authority, or tribal gaming operation comply with this part?

    (a) Limited immediate compliance. A tribal gaming regulatory 
authority shall:
    (1) Require that all Class II gaming system software that affects 
the play of the Class II game be submitted, together with the signature 
verification required by Sec. 547.8(f), to a testing laboratory 
recognized pursuant to paragraph (f) of this section within 120 days 
after November 10, 2008;
    (2) Require that the testing laboratory test the submission to the 
standards established by Sec. 547.8(b), Sec. 547.8(f), Sec. 547.14, 
the minimum probability standards of Sec. 547.5(c), and to any 
additional technical standards adopted by the tribal gaming regulatory 
authority;
    (3) Require that the testing laboratory provide the tribal gaming 
regulatory authority with a formal written report setting forth and 
certifying to the findings and conclusions of the test;
    (4) Make a finding, in the form of a certificate provided to the 
supplier or manufacturer of the Class II gaming system, that the Class 
II gaming system qualifies for grandfather status under the provisions 
of this section, but only upon receipt of a testing laboratory's report 
that the Class II gaming system is compliant with Sec. 547.8(b), Sec. 
547.8(f), the minimum probability standards of Sec. 547.5(c), Sec. 
547.14, and any other technical standards adopted by the tribal gaming 
regulatory authority. If the tribal gaming regulatory authority does not 
issue the certificate, or if the testing laboratory finds that the Class 
II gaming system is not compliant with Sec. 547.8(b), Sec. 547.8(f), 
the minimum probability standards of Sec. 547.5(c), Sec. 547.14, or 
any other technical standards adopted by the tribal gaming regulatory 
authority, then the gaming system shall immediately be removed from play 
and not be utilized.
    (5) Retain a copy of any testing laboratory's report so long as the 
Class II gaming system that is the subject of the report remains 
available to the public for play;
    (6) Retain a copy of any certificate of grandfather status so long 
as the Class II gaming system that is the subject of the certificate 
remains available to the public for play; and
    (7) Require the supplier of any player interface to designate with a 
permanently affixed label each player interface with an identifying 
number and the date of manufacture or a statement that the date of 
manufacture was on or before the effective date of this part. The tribal 
gaming regulatory authority shall also require the supplier to provide a 
written declaration or affidavit affirming that the date of manufacture 
was on or before November 10, 2008.
    (b) Grandfather provisions. All Class II gaming systems manufactured 
or placed in a tribal facility on or before the effective date of this 
part and certified pursuant to paragraph (a) of this section are 
grandfathered Class II gaming systems for which the following provisions 
apply:
    (1) Grandfathered Class II gaming systems may continue in operation 
for a period of five years from November 10, 2008.

[[Page 180]]

    (2) Grandfathered Class II gaming system shall be available for use 
at any tribal gaming facility subject to approval by the tribal gaming 
regulatory authority, which shall transmit its notice of that approval, 
identifying the grandfathered Class II gaming system and its components, 
to the Commission.
    (3) As permitted by the tribal gaming regulatory authority, 
individual hardware or software components of a grandfathered Class II 
gaming system may be repaired or replaced to ensure proper functioning, 
security, or integrity of the grandfathered Class II gaming system.
    (4) All modifications that affect the play of a grandfathered Class 
II gaming system must be approved pursuant to paragraph (c) of this 
section, except for the following:
    (i) Any software modifications that the tribal gaming regulatory 
authority finds will maintain or advance the system's overall compliance 
with this part or any applicable provisions of parts 542 and 543 of this 
chapter, after receiving a new testing laboratory report that the 
modifications are compliant with the standards established by Sec. 
547.8(b), the minimum probability requirements of Sec. 547.5(c), Sec. 
547.14, and any other standards adopted by the tribal gaming regulatory 
authority;
    (ii) Any hardware modifications that the tribal gaming regulatory 
authority finds will maintain or advance the system's overall compliance 
with this part or any applicable provisions of parts 542 and 543 of this 
chapter; and
    (iii) Any other modification to the software of a grandfathered 
Class II gaming system that the tribal gaming regulatory authority finds 
will not detract from, compromise or prejudice:
    (A) The proper functioning, security, or integrity of the Class II 
gaming system, and
    (B) The gaming system's overall compliance with the requirements of 
this part or any applicable provisions of parts 542 and 543 of this 
chapter.
    (iv) No such modification may be implemented without the approval of 
the tribal gaming regulatory authority. The tribal gaming regulatory 
authority shall maintain a record of the modification so long as the 
Class II gaming system that is the subject of the modification remains 
available to the public for play and shall make the record available to 
the Commission upon request. The Commission will only make available for 
public review records or portions of records subject to release under 
the Freedom of Information Act, 5 U.S.C. 552; the Privacy Act of 1974, 5 
U.S.C. 552a; or the Indian Gaming Regulatory Act, 25 U.S.C. 2716(a).
    (c) Submission, testing, and approval--generally. Except as provided 
in paragraphs (b) and (d) of this section, no tribal gaming regulatory 
authority shall permit in a tribal gaming operation the use of any Class 
II gaming system, or any associated cashless system or voucher system or 
any modification thereto, unless:
    (1) The Class II gaming system, cashless system, voucher payment 
system, or modification has been submitted to a testing laboratory;
    (2) The testing laboratory tests the submission to the standards 
established by:
    (i) This part;
    (ii) Any applicable provisions of parts 542 and 543 of this chapter 
that are testable by the testing laboratory; and
    (iii) The tribal gaming regulatory authority;
    (3) The testing laboratory provides a formal written report to the 
party making the submission, setting forth and certifying to its 
findings and conclusions; and
    (4)(i) Following receipt of the testing laboratory's report, the 
tribal gaming regulatory authority makes a finding that the Class II 
gaming system, cashless system, or voucher system conforms to the 
standards established by:
    (A) This part;
    (B) Any applicable provisions of parts 542 and 543 of this chapter 
that are testable by the testing laboratory; and
    (C) The tribal gaming regulatory authority.
    (ii) The tribal gaming regulatory authority shall retain a copy of 
the testing laboratory's report so long as the Class II gaming system, 
cashless system, voucher system, or modification thereto that is the 
subject of the report

[[Page 181]]

remains available to the public for play in its gaming operation.
    (d) Emergency hardware and software modifications. (1) A tribal 
gaming regulatory authority, in its discretion, may permit modified 
hardware or software to be made available for play without prior 
laboratory testing or review if the modified hardware or software is:
    (i) Necessary to correct a problem affecting the fairness, security, 
or integrity of a game or accounting system or any cashless system, or 
voucher system; or
    (ii) Unrelated to game play, an accounting system, a cashless 
system, or a voucher system.
    (2) If a tribal gaming regulatory authority authorizes new or 
modified software or hardware to be made available for play or use 
without prior testing laboratory review, the tribal gaming regulatory 
authority shall thereafter require the hardware or software manufacturer 
to:
    (i) Immediately advise other users of the same hardware or software 
of the importance and availability of the update;
    (ii) Immediately submit the new or modified hardware or software to 
a testing laboratory for testing and verification of compliance with 
this part and any applicable provisions of parts 542 and 543 of this 
chapter that are testable by the testing laboratory; and
    (iii) Immediately provide the tribal gaming regulatory authority 
with a software signature verification tool meeting the requirements of 
Sec. 547.8(f) for any new or modified software.
    (3) If a tribal gaming regulatory authority authorizes a software or 
hardware modification under this paragraph, it shall maintain a record 
of the modification and a copy of the testing laboratory report so long 
as the Class II gaming system that is the subject of the modification 
remains available to the public for play and shall make the record 
available to the Commission upon request. The Commission will only make 
available for public review records or portions of records subject to 
release under the Freedom of Information Act, 5 U.S.C. 552; the Privacy 
Act of 1974, 5 U.S.C. 552a; or the Indian Gaming Regulatory Act, 25 
U.S.C. 2716(a).
    (e) Compliance by charitable gaming operations. This part shall not 
apply to charitable gaming operations, provided that:
    (1) The tribal government determines that the organization 
sponsoring the gaming operation is a charitable organization;
    (2) All proceeds of the charitable gaming operation are for the 
benefit of the charitable organization;
    (3) The tribal gaming regulatory authority permits the charitable 
organization to be exempt from this part;
    (4) The charitable gaming operation is operated wholly by the 
charitable organization's employees or volunteers; and
    (5) The annual gross gaming revenue of the charitable gaming 
operation does not exceed $1,000,000.
    (f) Testing laboratories. (1) A testing laboratory may provide the 
examination, testing, evaluating and reporting functions required by 
this section provided that:
    (i) It demonstrates its integrity, independence and financial 
stability to the tribal gaming regulatory authority.
    (ii) It demonstrates its technical skill and capability to the 
tribal gaming regulatory authority.
    (iii) It is not owned or operated by the same tribe or tribal gaming 
regulatory authority for whom it is providing the testing, evaluating, 
and reporting functions required by this section.
    (iv) The tribal gaming regulatory authority:
    (A) Makes a suitability determination of the testing laboratory 
based upon standards no less stringent than those set out in Sec. Sec. 
533.6(b)(1)(ii) through (v) of this chapter and based upon no less 
information than that required by Sec. 537.1 of this chapter, or
    (B) Accepts, in its discretion, a determination of suitability for 
the testing laboratory made by any other gaming regulatory authority in 
the United States.
    (v) After reviewing the suitability determination and the 
information provided by the testing laboratory, the

[[Page 182]]

tribal gaming regulatory authority determines that the testing 
laboratory is qualified to test and evaluate Class II gaming systems.
    (2) The tribal gaming regulatory authority shall:
    (i) Maintain a record of all determinations made pursuant to 
paragraphs (f)(1)(iv) and (f)(1)(v) of this section for a minimum of 
three years and shall make the records available to the Commission upon 
request. The Commission will only make available for public review 
records or portions of records subject to release under the Freedom of 
Information Act, 5 U.S.C. 552; the Privacy Act of 1974, 5 U.S.C. 552a; 
or the Indian Gaming Regulatory Act, 25 U.S.C. 2716(a).
    (ii) Place the testing laboratory under a continuing obligation to 
notify it of any adverse regulatory action in any jurisdiction where the 
testing laboratory conducts business.
    (iii) Require the testing laboratory to provide notice of any 
material changes to the information provided to the tribal gaming 
regulatory authority.



Sec. 547.5  What are the rules of interpretation and of general application for this part?

    (a) Minimum standards. A tribal gaming regulatory authority may 
establish and implement additional technical standards that are as 
stringent as, or more stringent than, those set out in this part.
    (b) Only applicable standards apply. Gaming equipment and software 
used with Class II gaming systems shall meet all applicable requirements 
of this part. For example, if a Class II gaming system lacks the ability 
to print or accept vouchers, then any standards that govern vouchers do 
not apply.
    (c) Fairness. No Class II gaming system shall cheat or mislead 
users. All prizes advertised shall be available to win. No progressive 
prize shall have a probability of winning less than 1 in 100,000,000. No 
other prize shall have a probability of winning less than 1 in 
50,000,000.
    (d) Approved equipment and software only. All gaming equipment and 
software used with Class II gaming systems shall be identical in all 
respects to a prototype reviewed and tested by a testing laboratory and 
approved for use by the tribal gaming regulatory authority pursuant to 
Sec. 547.4(a) through (c). Unapproved software shall not be loaded onto 
or stored on any program storage medium used in a Class II gaming 
system, except as provided in Sec. 547.4(d).
    (e) Proper functioning. All gaming equipment and software used with 
Class II gaming systems shall perform according to the manufacturer's 
design and operating specifications.
    (f) No Limitation of Technology. This part should not be interpreted 
to limit the use of technology or to preclude the use of technology not 
specifically referenced.
    (g) Severability. If any provision of this part is declared invalid 
by a court of competent jurisdiction, such decision shall not affect the 
remainder of this part.



Sec. 547.6  What are the minimum technical standards for enrolling and 

enabling Class II gaming system components?

    (a) General requirements. Class II gaming systems shall provide a 
method to:
    (1) Enroll and unenroll system components;
    (2) Enable and disable specific system components.
    (b) Specific requirements. Class II gaming systems shall:
    (1) Ensure that only enrolled and enabled system components 
participate in gaming; and
    (2) Ensure that the default condition for components shall be 
unenrolled and disabled.



Sec. 547.7  What are the minimum technical hardware standards applicable to Class II gaming systems?

    (a) General requirements. (1) The Class II gaming system shall 
operate in compliance with applicable regulations of the Federal 
Communications Commission.
    (2) Prior to approval by the tribal gaming regulatory authority 
pursuant to Sec. 547.4(c), the Class II gaming system shall have 
obtained from Underwriters' Laboratories, or its equivalent, relevant 
certification(s) required for equipment of its type, including but not 
limited to certifications for liquid

[[Page 183]]

spills, electromagnetic interference, etc.
    (b) Printed circuit boards. (1) Printed circuit boards that have the 
potential to affect the outcome or integrity of the game, and are 
specially manufactured or proprietary and not off-the-shelf, shall 
display a unique identifier such as a part number and/or revision 
number, which shall be updated to reflect new revisions or modifications 
of the board.
    (2) Switches or jumpers on all circuit boards that have the 
potential to affect the outcome or integrity of any game, progressive 
award, financial instrument, cashless transaction, voucher transaction, 
or accounting records shall be capable of being sealed.
    (c) Electrostatic discharge. Class II gaming system components 
accessible to the public shall be constructed so that they exhibit 
immunity to human body electrostatic discharges on areas exposed to 
contact. Static discharges of 15 kV for air 
discharges and 7.5 kV for contact discharges may 
not cause damage, or inhibit operation or integrity of the Class II 
gaming system.
    (d) Physical enclosures. Physical enclosures shall be of a robust 
construction designed to resist determined illegal entry. All 
protuberances and attachments such as buttons, identification plates, 
and labels shall be sufficiently robust to avoid unauthorized removal.
    (e) Player interface. The player interface shall include a method or 
means to:
    (1) Display information to a player; and
    (2) Allow the player to interact with the Class II gaming system.
    (f) Account access components. A Class II gaming system component 
that reads account access media shall be located within a secure, locked 
or tamper-evident area or in a cabinet or housing that is of a robust 
construction designed to resist determined illegal entry and to protect 
internal components. In addition, the account access component:
    (1) Shall be constructed so that physical tampering leaves evidence 
of such tampering; and
    (2) Shall provide a method to enable the Class II gaming system to 
interpret and act upon valid or invalid input or error condition.
    (g) Financial instrument storage components. Any Class II gaming 
system components that store financial instruments and that are not 
operated under the direct control of a gaming operation employee or 
agent shall be located within a secure and locked area or in a locked 
cabinet or housing that is of a robust construction designed to resist 
determined illegal entry and to protect internal components.
    (h) Financial instrument acceptors. (1) Any Class II gaming system 
components that handle financial instruments and that are not operated 
under the direct control of an agent shall:
    (i) Be located within a secure, locked and tamper-evident area or in 
a locked cabinet or housing that is of a robust construction designed to 
resist determined illegal entry and to protect internal components;
    (ii) Be able to detect the entry of valid or invalid financial 
instruments and to provide a method to enable the Class II gaming system 
to interpret and act upon valid or invalid input or error condition; and
    (iii) Be constructed to permit communication with the Class II 
gaming system of the accounting information required by Sec. 547.9(a) 
and by applicable provisions of any Commission and tribal gaming 
regulatory regulations governing minimum internal control standards.
    (2) Prior to completion of a valid financial instrument transaction 
by the Class II gaming system, no monetary amount related to that 
instrument shall be available for play. For example, credits shall not 
be available for play until currency or coupon inserted into an acceptor 
is secured in the storage component.
    (3) The monetary amount related to all valid financial instrument 
transactions by the Class II gaming system shall be recorded as required 
by Sec. 547.9(a) and the applicable provisions of any Commission and 
tribal gaming regulatory authority regulations governing minimum 
internal control standards.

[[Page 184]]

    (i) Financial instrument dispensers. (1) Any Class II gaming system 
components that dispense financial instruments and that are not operated 
under the direct control of a gaming operation employee or agent shall:
    (i) Be located within a secure, locked and tamper-evident area or in 
a locked cabinet or housing that is of a robust construction designed to 
resist determined illegal entry and to protect internal components;
    (ii) Provide a method to enable the Class II gaming system to 
interpret and act upon valid or invalid input or error condition; and
    (iii) Be constructed to permit communication with the Class II 
gaming system of the accounting information required by Sec. 547.9(a) 
and by applicable provisions of any Commission and tribal gaming 
regulatory regulations governing minimum internal control standards.
    (2) The monetary amount related to all valid financial instrument 
transactions by the Class II gaming system shall be recorded as required 
by Sec. 547.9(a), the applicable provisions of parts 542 and 543 of 
this chapter, and any tribal gaming regulatory authority regulations 
governing minimum internal control standards.
    (j) Game Outcome Determination Components. Any Class II gaming 
system logic components that affect the game outcome and that are not 
operated under the direct control of a gaming operation employee or 
agent shall be located within a secure, locked and tamper-evident area 
or in a locked cabinet or housing that is of a robust construction 
designed to resist determined illegal entry and to protect internal 
components. DIP switches or jumpers that can affect the integrity of the 
Class II gaming system must be capable of being sealed by the tribal 
gaming regulatory authority.
    (k) Door access detection. All components of the Class II gaming 
system that are locked in order to meet the requirements of this part 
shall include a sensor or other methods to monitor an open door. A door 
open sensor, and its components or cables, shall be secure against 
attempts to disable them or interfere with their normal mode of 
operation;
    (l) Separation of functions/no limitations on technology. Nothing 
herein shall prohibit the account access component, financial instrument 
storage component, financial instrument acceptor, and financial 
instrument dispenser from being included within the same component, or 
separated into individual components.



Sec. 547.8  What are the minimum technical software standards applicable to Class II gaming systems?

    This section provides general software standards for Class II gaming 
systems for the play of Class II games.
    (a) Player interface displays. (1) If not otherwise provided to the 
player, the player interface shall display the following:
    (i) The purchase or wager amount;
    (ii) Game results; and
    (iii) Any player credit balance.
    (2) Between plays of any game and until the start of the next play, 
or until the player selects a new game option such as purchase or wager 
amount or card selection, whichever is earlier, if not otherwise 
provided to the player, the player interface shall display:
    (i) The total purchase or wager amount and all prizes and total 
credits won for the last game played;
    (ii) The final results for the last game played, including 
entertaining displays of results, if any; and
    (iii) Any default purchase or wager amount for the next play.
    (b) Game initiation and play. (1) Each game played on the Class II 
gaming system shall follow and not deviate from a constant set of rules 
for each game provided to players pursuant to Sec. 547.16. Any change 
in rules constitutes a different game. There shall be no automatic or 
undisclosed changes of rules.
    (2) For bingo games and games similar to bingo, the Class II gaming 
system shall not alter or allow to be altered the card permutations or 
game rules used for play of a Class II game unless specifically chosen 
by the player prior to commitment to participate in the game. No 
duplicate cards shall be sold for any common draw.
    (3) No game play shall commence and, no financial instrument or 
credit shall be accepted on the affected player

[[Page 185]]

interface, in the presence of any fault condition that affects the 
outcome of the game, open door, or while in test, audit, or lock-up 
mode.
    (4) The player must choose to participate in the play of a game.
    (c) Audit Mode. (1) If an audit mode is provided, the Class II 
gaming system shall provide, for those components actively involved in 
the audit:
    (i) All accounting functions required by Sec. 547.9, by applicable 
provisions of any Commission regulations governing minimum internal 
control standards, and by any internal controls adopted by the tribe or 
tribal gaming regulatory authority;
    (ii) Display player interface identification; and
    (iii) Display software version or game identification;
    (2) Audit mode shall be accessible by a secure method such as an 
employee PIN and key or other auditable access control.
    (3) Accounting function data shall be accessible by an authorized 
person at any time, except during a payout, during a handpay, or during 
play.
    (4) The Class II gaming system shall disable financial instrument 
acceptance on the affected player interface while in audit mode, except 
during financial instrument acceptance testing.
    (d) Last game recall. The last game recall function shall:
    (1) Be retrievable at all times, other than when the recall 
component is involved in the play of a game, upon the operation of an 
external key-switch, entry of an audit card, or a similar method;
    (2) Display the results of recalled games as originally displayed or 
in text representation, including entertaining display results 
implemented in video, rather than electro-mechanical, form, if any, so 
as to enable the tribal gaming regulatory authority or operator to 
clearly identify the game sequences and results that occurred;
    (3) Allow the Class II gaming system component providing game 
recall, upon return to normal game play mode, to restore any affected 
display to the positions, forms and values displayed before access to 
the game recall information; and
    (4) Provide the following information for the current and previous 
four games played and shall display:
    (i) Game start time, end time, and date;
    (ii) The total number of credits at the start of play, less the 
purchase or wager amount;
    (iii) The purchase or wager amount;
    (iv) The total number of credits at the end of play; and
    (v) The total number of credits won as a result of the game 
recalled, and the value in dollars and cents for progressive prizes, if 
different.
    (vi) For bingo games and games similar to bingo only, also display:
    (A) The card(s) used by the player;
    (B) The identifier of the bingo game played;
    (C) The numbers or other designations drawn, in the order that they 
were drawn;
    (D) The numbers or other designations and prize patterns covered on 
each card;
    (E) All prizes won by the player, including winning patterns and 
entertaining displays implemented in video, rather than electro-
mechanical form, if any; and
    (F) The unique identifier of the card on which prizes were won;
    (vii) For pull-tab games only, also display:
    (A) The result(s) of each pull-tab, displayed in the same pattern as 
on the tangible pull-tab;
    (B) All prizes won by the player;
    (C) The unique identifier of each pull tab; and
    (D) Any other information necessary to fully reconstruct the current 
and four previous plays.
    (e) Voucher and credit transfer recall. Notwithstanding the 
requirements of any other section in this part, a Class II gaming system 
shall have the capacity to:
    (1) Display the information specified in Sec. 547.11(b)(5)(ii) 
through (vi) for the last five vouchers or coupons printed and the last 
five vouchers or coupons accepted; and
    (2) Display a complete transaction history for the last five 
cashless transactions made and the last five cashless transactions 
accepted.

[[Page 186]]

    (f) Software signature verification. The manufacturer or developer 
of the Class II gaming system must provide to the testing laboratory and 
to the tribal gaming regulatory authority an industry-standard 
methodology, acceptable to the tribal gaming regulatory authority, for 
verifying the Class II gaming system game software. By way of 
illustration, for game software stored on rewritable media, such 
methodologies include signature algorithms and hashing formulas such as 
SHA-1.
    (g) Test, diagnostic, and demonstration modes. If test, diagnostic, 
and/or demonstration modes are provided, the Class II gaming system 
shall, for those components actively involved in the test, diagnostic, 
or demonstration mode:
    (1) Clearly indicate when that component is in the test, diagnostic, 
or demonstration mode;
    (2) Not alter financial data on that component other than temporary 
data;
    (3) Only be available after entering a specific mode;
    (4) Disable credit acceptance and payment unless credit acceptance 
or payment is being tested; and
    (5) Terminate all mode-specific functions upon exiting a mode.
    (h) Multi-game. If multiple games are offered for player selection 
at the player interface, the player interface shall:
    (1) Provide a display of available games;
    (2) Provide the means of selecting among them;
    (3) Display the full amount of the player's credit balance;
    (4) Identify the game selected or being played; and
    (5) Not force the play of a game after its selection.
    (i) Program interruption and resumption. The Class II gaming system 
software shall be designed so that upon resumption following any 
interruption, the system:
    (1) Is able to return to a known state;
    (2) Shall check for any fault condition upon resumption;
    (3) Shall verify the integrity of data stored in critical memory;
    (4) Shall return the purchase or wager amount to the player in 
accordance with the rules of the game; and
    (5) Shall detect any change or corruption in the Class II gaming 
system software.
    (j) Class II gaming system components acting as progressive 
controllers. This paragraph applies to progressive controllers and 
components acting as progressive controllers in Class II gaming systems.
    (1) Modification of progressive parameters shall be conducted in a 
secure manner approved by the tribal gaming regulatory authority. Such 
parameters may include:
    (i) Increment value;
    (ii) Secondary pool increment(s);
    (iii) Reset amount(s);
    (iv) Maximum value(s); and
    (v) Identity of participating player interfaces.
    (2) The Class II gaming system component or other progressive 
controller shall provide a means of creating a progressive balancing 
report for each progressive link it controls. At a minimum, that report 
shall provide balancing of the changes of the progressive amount, 
including progressive prizes won, for all participating player 
interfaces versus current progressive amount(s), plus progressive 
prizes. In addition, the report shall account for, and not be made 
inaccurate by, unusual events such as:
    (i) Class II gaming system critical memory clears;
    (ii) Modification, alteration, or deletion of progressive prizes;
    (iii) Offline equipment; or
    (iv) Multiple site progressive prizes.
    (k) Critical memory. (1) Critical memory may be located anywhere 
within the Class II gaming system. Critical memory is any memory that 
maintains any of the following data:
    (i) Accounting data;
    (ii) Current credits;
    (iii) Configuration data;
    (iv) Last game recall information required by Sec. 547.8(d);
    (v) Game recall information for the current game, if incomplete;
    (vi) Software state (the last normal state software was in before 
interruption);
    (vii) RNG seed(s), if necessary for maintaining integrity;
    (viii) Encryption keys, if necessary for maintaining integrity;

[[Page 187]]

    (ix) Progressive prize parameters and current values;
    (x) The five most recent financial instruments accepted by type, 
excluding coins and tokens;
    (xi) The five most recent financial instruments dispensed by type, 
excluding coins and tokens; and
    (xii) The five most recent cashless transactions paid and the five 
most recent cashless transactions accepted.
    (2) Critical memory shall be maintained using a methodology that 
enables errors to be identified and acted upon. All accounting and 
recall functions shall be verified as necessary to ensure their ongoing 
integrity.
    (3) The validity of affected data stored in critical memory shall be 
checked after each of the following events:
    (i) Every restart;
    (ii) Each attendant paid win;
    (iii) Each attendant paid progressive win;
    (iv) Each sensored door closure; and
    (v) Every reconfiguration, download, or change of prize schedule or 
denomination requiring operator intervention or action.
    (l) Secured access. Class II gaming systems that use a logon or 
other means of secured access shall include a user account lockout after 
a predetermined number of consecutive failed attempts to access system.



Sec. 547.9  What are the minimum technical standards for Class II gaming system accounting functions?

    This section provides standards for accounting functions used in 
Class II gaming systems.
    (a) Required accounting data.The following minimum accounting data, 
however named, shall be maintained by the Class II gaming system.

----------------------------------------------------------------------------------------------------------------
                     Title                                                 Description
----------------------------------------------------------------------------------------------------------------
(1) Amount In..................................  The total value of all financial instruments and cashless
                                                  transactions accepted by the Class II gaming system. Each type
                                                  of financial instrument accepted by the Class II gaming system
                                                  shall be tracked independently per financial instrument
                                                  acceptor, and as required by applicable requirements of any
                                                  Commission and tribal gaming regulatory authority regulations
                                                  governing minimum internal control standards.
(2) Amount Out.................................  The total value of all financial instruments and cashless
                                                  transactions paid by the Class II gaming system, plus the
                                                  total value of attendant pay. Each type of financial
                                                  instrument paid by the Class II Gaming System shall be tracked
                                                  independently per financial instrument dispenser, and as
                                                  required by applicable requirements of any Commission and
                                                  tribal gaming regulatory authority regulations governing
                                                  minimum internal control standards.
----------------------------------------------------------------------------------------------------------------

    (b) Accounting data storage. If the Class II gaming system 
electronically maintains accounting data:
    (1) Accounting data shall be stored with at least eight decimal 
digits.
    (2) Credit balances shall have sufficient digits to accommodate the 
design of the game.
    (3) Accounting data displayed to the player may be incremented or 
decremented using visual effects, but the internal storage of this data 
shall be immediately updated in full.
    (4) Accounting data shall be updated upon the occurrence of the 
relevant accounting event.
    (5) Modifications to accounting data shall be recorded, including 
the identity of the person(s) making the modifications, and be 
reportable by the Class II gaming system.
    (c) Rollover. Accounting data that rolls over to zero shall not 
corrupt data.
    (d) Credit balance display and function. (1) Any credit balance 
maintained at the player interface shall be prominently displayed at all 
times except:
    (i) In audit, configuration, recall and test modes; or
    (ii) Temporarily, during entertaining displays of game results.
    (2) Progressive prizes may be added to the player's credit balance 
provided:
    (i) The player credit balance is maintained in dollars and cents;
    (ii) The progressive accounting data is incremented in number of 
credits; or
    (iii) The prize in dollars and cents is converted to player credits 
or transferred to the player's credit balance in a manner that does not 
mislead the player or cause accounting imbalances.

[[Page 188]]

    (3) If the player credit balance displays in credits, but the actual 
balance includes fractional credits, the Class II gaming system shall 
display the fractional credit when the player credit balance drops below 
one credit.



Sec. 547.10  What are the minimum standards for Class II gaming system critical events?

    This section provides standards for events such as system critical 
faults, deactivation, door open or other changes of states, and lockup 
within the Class II gaming system.
    (a) Fault events. (1) The following events are to be treated as 
described below:

------------------------------------------------------------------------
              Events                  Definition and action to be taken
------------------------------------------------------------------------
(i) Component fault...............  Reported when a fault on a component
                                     is detected. When possible, this
                                     event message should indicate what
                                     the nature of the fault is.
(ii) Financial storage component    Reported when a financial instrument
 full.                               acceptor or dispenser includes
                                     storage, and it becomes full. This
                                     event message should indicate what
                                     financial storage component is
                                     full.
(iii) Financial output component    Reported when a financial instrument
 empty.                              dispenser is empty. The event
                                     message should indicate which
                                     financial output component is
                                     affected, and whether it is empty.
(iv) Financial component fault....  Reported when an occurrence on a
                                     financial component results in a
                                     known fault state.
(v) Critical memory error.........  Some critical memory error has
                                     occurred. When a non-correctable
                                     critical memory error has occurred,
                                     the data on the Class II gaming
                                     system component can no longer be
                                     considered reliable. Accordingly,
                                     any game play on the affected
                                     component shall cease immediately,
                                     and an appropriate message shall be
                                     displayed, if possible.
(vi) Progressive communication      If applicable; when communications
 fault.                              with a progressive controller
                                     component is in a known fault
                                     state.
(vii) Program storage medium fault  The software has failed its own
                                     internal security check or the
                                     medium itself has some fault.
                                    Any game play on the affected
                                     component shall cease immediately,
                                     and an appropriate message shall be
                                     displayed, if possible.
------------------------------------------------------------------------

    (2) The occurrence of any event identified in paragraph (a)(1) of 
this section shall be recorded.
    (3) Upon clearing any event identified in paragraph (a)(1) of this 
section, the Class II gaming system shall:
    (i) Record that the fault condition has been cleared;
    (ii) Ensure the integrity of all related accounting data; and
    (iii) In the case of a malfunction, return a player's purchase or 
wager according to the rules of the game.
    (b) Door open/close events. (1) In addition to the requirements of 
paragraph (a)(1) of this section, the Class II gaming system shall 
perform the following for any component affected by any sensored door 
open event:
    (i) Indicate that the state of a sensored door changes from closed 
to open or opened to closed;
    (ii) Disable all financial instrument acceptance, unless a test mode 
is entered;
    (iii) Disable game play on the affected player interface;
    (iv) Disable player inputs on the affected player interface, unless 
test mode is entered; and
    (v) Disable all financial instrument disbursement, unless a test 
mode is entered.
    (2) The Class II gaming system may return the component to a ready 
to play state when all sensored doors are closed.
    (c) Non-fault events. (1) The following non-fault events are to be 
treated as described below, if applicable:

------------------------------------------------------------------------
                Event                  Definition and action to be taken
------------------------------------------------------------------------
(i) Player interface power off during  This condition is reported by the
 play.                                  affected component(s) to
                                        indicate power has been lost
                                        during game play.
(ii) Player interface power on.......  This condition is reported by the
                                        affected component(s) to
                                        indicate it has been turned on.

[[Page 189]]

 
(iii) Financial instrument storage     This condition is reported when a
 component container/stacker removed.   financial instrument storage
                                        container has been removed. The
                                        event message should indicate
                                        which storage container was
                                        removed.
------------------------------------------------------------------------



Sec. 547.11  What are the minimum technical standards for money and credit handling?

    This section provides standards for money and credit handling by a 
Class II gaming system.
    (a) Credit acceptance, generally. (1) Upon any credit acceptance, 
the Class II gaming system shall register the correct number of credits 
on the player's credit balance.
    (2) The Class II gaming system shall reject financial instruments 
deemed invalid.
    (b) Credit redemption, generally. (1) For cashable credits on a 
player interface, players shall be allowed to cash out and/or redeem 
those credits at the player interface except when that player interface 
is:
    (i) Involved in the play of a game;
    (ii) In audit mode, recall mode or any test mode;
    (iii) Detecting any sensored door open condition;
    (iv) Updating the player credit balance or total win accounting 
data; or
    (v) Displaying a fault condition that would prevent cash-out or 
credit redemption. In this case a fault indication shall be displayed.
    (2) For cashable credits not on a player interface, the player shall 
be allowed to cash out and/or redeem those credits at any time.
    (3) A Class II gaming system shall not automatically pay an award 
subject to mandatory tax reporting or withholding.
    (4) Credit redemption by voucher or coupon shall conform to the 
following:
    (i) A Class II gaming system may redeem credits by issuing a voucher 
or coupon when it communicates with a voucher system that validates the 
voucher or coupon.
    (ii) A Class II gaming system that redeems credits by issuing 
vouchers and coupons shall either:
    (A) Maintain an electronic record of all information required by 
paragraphs (b)(5)(ii) through (vi) of this section; or
    (B) Generate two identical copies of each voucher or coupon issued, 
one to be provided to the player and the other to be retained within the 
machine for audit purposes.
    (5) Valid vouchers and coupons shall contain the following:
    (i) Gaming operation name and location;
    (ii) The identification number of the Class II gaming system 
component or the player interface number, as applicable;
    (iii) Date and time of issuance;
    (iv) Alpha and numeric dollar amount;
    (v) A sequence number;
    (vi) A validation number that:
    (A) Is produced by a means specifically designed to prevent 
repetition of validation numbers; and
    (B) Has some form of checkcode or other form of information 
redundancy to prevent prediction of subsequent validation numbers 
without knowledge of the checkcode algorithm and parameters;
    (vii) For machine-readable vouchers and coupons, a bar code or other 
form of machine readable representation of the validation number, which 
shall have enough redundancy and error checking to ensure that 99.9% of 
all misreads are flagged as errors;
    (viii) Transaction type or other method of differentiating voucher 
and coupon types; and
    (ix) Expiration period or date.
    (6) Transfers from an account may not exceed the balance of that 
account.
    (7) For Class II gaming systems not using dollars and cents 
accounting and not having odd cents accounting, the Class II gaming 
system shall reject any transfers from voucher payment systems or 
cashless systems that are not even multiples of the Class II gaming 
system denomination.
    (8) Voucher redemption systems shall include the ability to report 
redemptions per redemption location or user.

[[Page 190]]



Sec. 547.12  What are the minimum technical standards for downloading on a Class II gaming system?

    This section provides standards for downloading on a Class II gaming 
system.
    (a) Downloads. (1) Downloads are an acceptable means of transporting 
approved content, including but not limited to software, files, data, 
and prize schedules.
    (2) Downloads of software, games, prize schedules, or other download 
packages shall be conducted only as authorized by the tribal gaming 
regulatory authority.
    (3) Downloads shall use secure methodologies that will deliver the 
download data without alteration or modification, in accordance with 
Sec. 547.15(a).
    (4) Downloads conducted during operational periods shall be 
performed in a manner that will not affect game play.
    (5) Downloads shall not affect the integrity of accounting data.
    (6) The Class II gaming system or the tribal gaming regulatory 
authority shall log each download of any download package. Each log 
record shall contain as a minimum:
    (i) The time and date of the initiation of the download;
    (ii) The time and date of the completion of the download;
    (iii) The Class II gaming system components to which software was 
downloaded;
    (iv) The version(s) of download package and any software downloaded. 
Logging of the unique software signature will satisfy this requirement;
    (v) The outcome of any software verification following the download 
(success or failure); and
    (vi) The name and identification number, or other unique identifier, 
of any individual(s) conducting or scheduling a download.
    (b) Verifying downloads. Following download of any game software, 
the Class II gaming system shall verify the downloaded software using a 
software signature verification method that meets the requirements of 
Sec. 547.8(f). Using any method it deems appropriate, the tribal gaming 
regulatory authority shall confirm the verification.



Sec. 547.13  What are the minimum technical standards for program storage media?

    This section provides minimum standards for removable, (re-
)writable, and nonwritable storage media in Class II gaming systems.
    (a) Removable program storage media. All removable program storage 
media shall maintain an internal checksum or signature of its contents. 
Verification of this checksum or signature is to be performed after 
every restart. If the verification fails, the affected Class II gaming 
system component(s) shall lock up and enter a fault state.
    (b) Nonrewritable program storage media. (1) All EPROMs and 
Programmable Logic Devices (PLDs) that have erasure windows shall be 
fitted with covers over their erasure windows.
    (2) All unused areas of EPROMs shall be written with the inverse of 
the erased state (e.g., zero bits (00 hex) for most EPROMs), random 
data, or repeats of the program data.
    (3) Flash memory storage components intended to have the same 
logical function as ROM, i.e. not to be dynamically written, shall be 
write-protected or otherwise protected from unauthorized modification.
    (4) The write cycle shall be closed or finished for all CD-ROMs such 
that it is not possible to write any further data to the CD.
    (5) Write protected hard disks are permitted if the hardware means 
of enabling the write protect is easily viewable and can be sealed in 
place Write protected hard disks are permitted using software write 
protection verifiable by a testing laboratory.
    (c) Writable and rewritable program storage media. (1) Writable and 
rewritable program storage, such as hard disk drives, Flash memory, 
writable CD-ROMs, and writable DVDs, may be used provided that the 
software stored thereon may be verified using the mechanism provided 
pursuant to Sec. 547.8(f).
    (2) Program storage shall be structured so there is a verifiable 
separation of fixed data (e.g. program, fixed parameters, DLLs) and 
variable data.
    (d) Identification of program storage media. All program storage 
media that

[[Page 191]]

is not rewritable in circuit, (e.g. EPROM, CD-ROM) shall be uniquely 
identified, displaying:
    (1) Manufacturer;
    (2) Program identifier;
    (3) Program version number(s); and
    (4) Location information, if critical (e.g. socket position 3 on the 
printed circuit board).



Sec. 547.14  What are the minimum technical standards for electronic random number generation?

    This section provides minimum standards for electronic RNGs in Class 
II gaming systems.
    (a) Properties. All RNGs shall produce output having the following 
properties:
    (1) Statistical randomness;
    (2) Unpredictability; and
    (3) Non-repeatability.
    (b) Statistical Randomness. (1) Numbers produced by an RNG shall be 
statistically random individually and in the permutations and 
combinations used in the application under the rules of the game. For 
example, if a bingo game with 75 objects with numbers or other 
designations has a progressive winning pattern of the five numbers or 
other designations on the bottom of the card and the winning of this 
prize is defined to be the five numbers or other designations are 
matched in the first five objects drawn, the likelihood of each of the 
75C5 combinations are to be verified to be statistically equal.
    (2) Numbers produced by an RNG shall pass the statistical tests for 
randomness to a 99% confidence level, which may include:
    (i) Chi-square test;
    (ii) Equi-distribution (frequency) test;
    (iii) Gap test;
    (iv) Poker test;
    (v) Coupon collector's test;
    (vi) Permutation test;
    (vii) Run test (patterns of occurrences shall not be recurrent);
    (viii) Spectral test;
    (ix) Serial correlation test potency and degree of serial 
correlation (outcomes shall be independent from the previous game); and
    (x) Test on subsequences.
    (c) Unpredictability. (1) It shall not be feasible to predict future 
outputs of an RNG, even if the algorithm and the past sequence of 
outputs are known.
    (2) Unpredictability shall be ensured by reseeding or by 
continuously cycling the RNG, and by providing a sufficient number of 
RNG states for the applications supported.
    (3) Re-seeding may be used where the re-seeding input is at least as 
statistically random as, and independent of, the output of the RNG being 
re-seeded.
    (d) Non-repeatability. The RNG shall not be initialized to reproduce 
the same output stream that it has produced before, nor shall any two 
instances of an RNG produce the same stream as each other. This property 
shall be ensured by initial seeding that comes from:
    (1) A source of ``true'' randomness, such as a hardware random noise 
generator; or
    (2) A combination of timestamps, parameters unique to a Class II 
gaming system, previous RNG outputs, or other, similar method.
    (e) General requirements. (1) Software that calls an RNG to derive 
game outcome events shall immediately use the output returned in 
accordance with the game rules.
    (2) The use of multiple RNGs is permitted as long as they operate in 
accordance with this section.
    (3) RNG outputs shall not be arbitrarily discarded or selected.
    (4) Where a sequence of outputs is required, the whole of the 
sequence in the order generated shall be used in accordance with the 
game rules.
    (5) The Class II gaming system shall neither adjust the RNG process 
or game outcomes based on the history of prizes obtained in previous 
games nor make any reflexive or secondary decision that affects the 
results shown to the player or game outcome. Nothing in this paragraph 
shall prohibit the use of entertaining displays.
    (f) Scaling algorithms and scaled numbers. An RNG that provides 
output scaled to given ranges shall:
    (1) Be independent and uniform over the range;
    (2) Provide numbers scaled to the ranges required by game rules, and 
notwithstanding the requirements of paragraph (e)(3) of this section, 
may discard numbers that do not map uniformly onto the required range 
but shall use

[[Page 192]]

the first number in sequence that does map correctly to the range;
    (3) Be capable of producing every possible outcome of a game 
according to its rules; and
    (4) Use an unbiased algorithm. A scaling algorithm is considered to 
be unbiased if the measured bias is no greater than 1 in 100 million.



Sec. 547.15  What are the minimum technical standards for electronic data 

communications between system components?

    This section provides minimum standards for electronic data 
communications with gaming equipment or components used with Class II 
gaming systems.
    (a) Sensitive data.Communication of sensitive data shall be secure 
from eavesdropping, access, tampering, intrusion or alteration 
unauthorized by the tribal gaming regulatory authority. Sensitive data 
shall include, but not be limited to:
    (1) RNG seeds and outcomes;
    (2) Encryption keys, where the implementation chosen requires 
transmission of keys;
    (3) PINs;
    (4) Passwords;
    (5) Financial instrument transactions;
    (6) Transfers of funds;
    (7) Player tracking information;
    (8) Download Packages; and
    (9) Any information that affects game outcome.
    (b) Wireless communications. (1) Wireless access points shall not be 
accessible to the general public.
    (2) Open or unsecured wireless communications are prohibited.
    (3) Wireless communications shall be secured using a methodology 
that makes eavesdropping, access, tampering, intrusion or alteration 
impractical. By way of illustration, such methodologies include 
encryption, frequency hopping, and code division multiplex access (as in 
cell phone technology).
    (c) Methodologies shall be used that will ensure the reliable 
transfer of data and provide a reasonable ability to detect and act upon 
any corruption of the data.
    (d) Class II gaming systems shall record detectable, unauthorized 
access or intrusion attempts.
    (e) Remote communications shall only be allowed if authorized by the 
tribal gaming regulatory authority. Class II gaming systems shall have 
the ability to enable or disable remote access, and the default state 
shall be set to disabled.
    (f) Failure of data communications shall not affect the integrity of 
critical memory.
    (g) The Class II gaming system shall log the establishment, loss, 
and re-establishment of data communications between sensitive Class II 
gaming system components.



Sec. 547.16  What are the minimum standards for game artwork, glass, and rules?

    This section provides standards for the display of game artwork, the 
displays on belly or top glass, and the display and disclosure of game 
rules, whether in physical or electronic form.
    (a) Rules, instructions, and prize schedules, generally. The 
following shall at all times be displayed or made readily available to 
the player upon request:
    (1) Game name, rules, and options such as the purchase or wager 
amount stated clearly and unambiguously;
    (2) Denomination;
    (3) Instructions for play on, and use of, the player interface, 
including the functions of all buttons; and
    (4) A prize schedule or other explanation, sufficient to allow a 
player to determine the correctness of all prizes awarded, including;
    (i) The range and values obtainable for any variable prize;
    (ii) Whether the value of a prize depends on the purchase or wager 
amount; and
    (iii) The means of division of any pari-mutuel prizes; but
    (iv) For bingo and games similar to bingo, the prize schedule or 
other explanation need not state that subsets of winning patterns are 
not awarded as additional prizes (e.g. five in a row does not also pay 
three in a row or four in a row), unless there are exceptions, which 
shall be clearly stated.
    (b) Disclaimers. The Class II gaming system shall continually 
display:

[[Page 193]]

    (1) ``Malfunctions void all prizes and plays'' or equivalent; and
    (2) ``Actual Prizes Determined by Bingo [or other applicable Class 
II game] Play. Other Displays for Entertainment Only.'' or equivalent.



Sec. 547.17  How does a tribal gaming regulatory authority apply for a variance from these standards?

    (a) Tribal Gaming Regulatory Authority approval. (1) A tribal gaming 
regulatory authority may approve a variance from the requirements of 
this part if it has determined that the variance will achieve a level of 
security and integrity 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 within 30 days, a detailed report, which shall include the 
following:
    (i) An explanation of how the variance achieves a level of security 
and integrity sufficient to accomplish the purpose of the standard it is 
to replace; and
    (ii) The variance as granted and the record on which it is based.
    (3) In the event that the tribal gaming regulatory authority or the 
tribe's government chooses to submit a variance request directly to the 
Chairman for joint government to government review, the tribal gaming 
regulatory authority or tribal government may do so without the approval 
requirement set forth in paragraph (a) (1) of this section.
    (b) Chairman Review. (1) The Chairman may approve or object to a 
variance granted by a tribal gaming regulatory authority.
    (2) Any objection by the Chairman shall be in written form with an 
explanation why the variance as approved by the tribal gaming regulatory 
authority does not provide a level of security or integrity sufficient 
to accomplish the purpose of the standard it is to replace.
    (3) If the Chairman fails to approve or object in writing within 60 
days after the date of receipt of a complete submission, the variance 
shall be considered approved by the Chairman. The Chairman and the 
tribal gaming regulatory authority may, by agreement, extend this 
deadline an additional 60 days.
    (4) No variance may be implemented until approved by the tribal 
gaming regulatory authority pursuant to paragraph (a)(1) of this section 
or the Chairman has approved pursuant to paragraph (b)(1) of this 
section.
    (c) Commission Review. Should the tribal gaming regulatory authority 
elect to maintain its approval after written objection by the Chairman, 
the tribal gaming regulatory authority shall be entitled to an appeal to 
the full Commission in accordance with the following process:
    (1) Within 60 days of receiving an objection, the tribal gaming 
regulatory authority shall file a written notice of appeal with the 
Commission that may include a request for an oral hearing or it may 
request that the matter be decided upon written submissions.
    (2) Within 10 days after filing a notice of appeal the tribal gaming 
regulatory authority shall file a supplemental statement specifying the 
reasons why the tribal gaming regulatory authority believes the 
Chairman's objection should be reviewed, and shall include supporting 
documentation, if any.
    (3) Failure to file an appeal or submit the supplemental statement 
within the time provided by this section shall result in a waiver of the 
opportunity for an appeal.
    (4) If an oral hearing is requested it shall take place within 30 
days of the notice of appeal and a record shall be made.
    (5) If the tribal gaming regulatory authority requests that the 
appeal be decided on the basis of written submission, the Commission 
shall issue a written decision within 30 days of receiving the 
supplemental statement.
    (6) The Commission shall uphold the objection of the Chairman, only 
if, upon de novo review of the record upon which the Chairman's decision 
is based, the Commission determines that the variance approved by the 
tribal gaming regulatory authority does not achieve a level of security 
and integrity sufficient to accomplish the purpose of the standard it is 
to replace.

[[Page 194]]

    (7) The Commission shall issue a decision within 30 days of the oral 
hearing unless the tribal gaming regulatory authority elects to provide 
the Commission additional time, not to exceed an additional 30 days, to 
issue a decision. In the absence of a decision by the Commission within 
the time provided, the decision of the tribal gaming regulatory 
authority shall be deemed affirmed.
    (8) The Commission's decision shall constitute final agency action.

                        PARTS 548	549 [RESERVED]

[[Page 195]]



   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 granted 
a gaming license. The information will be used by the Tribal gaming 
regulatory authorities and by the 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 
issuance, denial, 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 license you for 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.
    (c) All tribal gaming ordinances and ordinance amendments that have 
been approved by the Chairman prior to the effective date of this 
section and that reference this notice do not need to be amended to 
comply with this section. All future ordinance submissions, however, 
must comply.
    (d) All license application forms used 180 days after the effective 
date of this section shall contain notices in compliance with this 
section.

[74 FR 36938, July 27, 2009]



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 license application may be 
grounds for denying a license or the suspension or revocation of a 
license. 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:

[[Page 196]]

    (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.
    (c) All tribal gaming ordinances and ordinance amendments that have 
been approved by the Chairman prior to the effective date of this 
section and that reference this notice do not need to be amended to 
comply with this section. All future ordinance submissions, however, 
must comply.
    (d) All license application forms used 180 days after the effective 
date of this section shall contain notices in compliance with this 
section.

[74 FR 36939, July 27, 2009]



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), 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

[[Page 197]]

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.

                           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 granting a gaming license.
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 granting a gaming license.

    (a) 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 granting of a gaming 
license. If the authorized tribal official, in applying the standards 
adopted in a tribal ordinance, determines that licensing 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, 
an authorizing tribal official shall not license that person in a key 
employee or primary management official position.
    (b) All tribal gaming ordinances and ordinance amendments that have 
been approved by the Chairman prior to the effective date of this 
section and that reference this section do not need to be amended to 
comply with this section. All future ordinance submissions, however, 
must comply.

[74 FR 36939, July 27, 2009]



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:

[[Page 198]]

    (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.



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_FACILITY LICENSE NOTIFICATIONS, RENEWALS, AND SUBMISSIONS--Table of Contents



Sec.
559.1 What is the scope and purpose of this part?
559.2 When must a tribe notify the Chairman that it is considering 
          issuing a new facility license?
559.3 How often must a facility license be renewed?
559.4 When must a tribe submit a copy of a newly issued or renewed 
          facility license to the Chairman?
559.5 What must a tribe submit to the Chairman with the copy of each 
          facility license that has been issued or renewed?
559.6 Does a tribe need to notify the Chairman if a facility license is 
          terminated or not renewed or if a gaming place, facility, or 
          location closes or reopens?
559.7 May the Chairman request Indian lands or environmental and public 
          health and safety documentation regarding any gaming place, 
          facility, or location where gaming will occur?
559.8 May a tribe submit documents required by this part electronically?

    Authority: 25 U.S.C. 2701, 2702(3), 2703(4), 2705, 2706, 2710 and 
2719.

[[Page 199]]


    Source: 73 FR 6029, Feb. 1, 2008, unless otherwise noted.



Sec. 559.1  What is the scope and purpose of this part?

    (a) The purpose of this part is to ensure that each place, facility, 
or location where class II or III gaming will occur is located on Indian 
lands eligible for gaming and that the construction and maintenance of 
the gaming facility, and the operation of that gaming is conducted in a 
manner which adequately protects the environment and the public health 
and safety pursuant to the Indian Gaming Regulatory Act.
    (b) Each gaming place, facility, or location conducting class II or 
III gaming pursuant to the Indian Gaming Regulatory Act or on which a 
tribe intends to conduct class II or III gaming pursuant to the Indian 
Gaming Regulatory Act is subject to the requirements of this part.



Sec. 559.2  When must a tribe notify the Chairman that it is considering issuing a new facility license?

    (a) A tribe shall submit to the Chairman a notice that a facility 
license is under consideration for issuance at least 120 days before 
opening any new place, facility, or location on Indian lands where class 
II or III gaming will occur. The notice shall contain the following:
    (1) The name and address of the property;
    (2) A legal description of the property;
    (3) The tract number for the property as assigned by the Bureau of 
Indian Affairs, Land Title and Records Offices, if any;
    (4) If not maintained by the Bureau of Indian Affairs, Department of 
the Interior, a copy of the trust or other deed(s) to the property or an 
explanation as to why such documentation does not exist; and
    (5) If not maintained by the Bureau of Indian Affairs, Department of 
the Interior, documentation of the property's ownership.
    (b) A tribe does not need to submit to the Chairman a notice that a 
facility license is under consideration for issuance for occasional 
charitable events lasting not more than a week.



Sec. 559.3  How often must a facility license be renewed?

    At least once every three years after the initial issuance of a 
facility license, a tribe shall renew or reissue a separate facility 
license to each existing place, facility or location on Indian lands 
where a tribe elects to allow gaming.



Sec. 559.4  When must a tribe submit a copy of a newly issued or renewed facility license to the Chairman?

    A tribe must submit to the Chairman a copy of each newly issued or 
renewed facility license within 30 days of issuance.



Sec. 559.5  What must a tribe submit to the Chairman with the copy 

of each facility license that has been issued or renewed?

    (a) A tribe shall submit to the Chairman with each facility license 
an attestation certifying that by issuing the facility license:
    (1) The tribe has identified and enforces the environment and public 
health and safety laws, resolutions, codes, policies, standards or 
procedures applicable to its gaming operation;
    (2) The tribe is in compliance with those laws, resolutions, codes, 
policies, standards, or procedures, or, if not in compliance with any or 
all of the same, the tribe will identify those with which it is not in 
compliance, and will adopt and submit its written plan for the specific 
action it will take, within a period not to exceed six months, required 
for compliance. At the successful completion of such written plan, or at 
the expiration of the period allowed for its completion, the tribe shall 
report the status thereof to the Commission. In the event that the tribe 
estimates that action for compliance will exceed six months, the 
Chairman must concur in such an extension of the time period, otherwise 
the tribe will be deemed noncompliant. The Chairman will take into 
consideration the consequences on the environment and the public health 
and safety, as well as mitigating measures the tribe may provide in the 
interim, in his or her consideration of requests for such an extension 
of the time period.

[[Page 200]]

    (3) The tribe is ensuring that the construction and maintenance of 
the gaming facility, and the operation of that gaming is conducted in a 
manner which adequately protects the environment and the public health 
and safety.
    (b) A document listing all laws, resolutions, codes, policies, 
standards or procedures identified by the tribe as applicable to its 
gaming facilities, other than Federal laws, in the following areas:
    (1) Emergency preparedness, including but not limited to fire 
suppression, law enforcement, and security;
    (2) Food and potable water;
    (3) Construction and maintenance;
    (4) Hazardous materials;
    (5) Sanitation (both solid waste and wastewater); and
    (6) Other environmental or public health and safety laws, 
resolutions, codes, policies, standards or procedures adopted by the 
tribe in light of climate, geography, and other local conditions and 
applicable to its gaming places, facilities, or locations.
    (c) After the first submission of a document under paragraph (b) of 
this section, upon reissuing a license to an existing gaming place, 
facility, or location, and in lieu of complying with paragraph (b) of 
this section, a tribe may certify to the Chairman that it has not 
substantially modified its laws protecting the environment and public 
health and safety.



Sec. 559.6  Does a tribe need to notify the Chairman if a facility license 

is terminated or not renewed or if a gaming place, facility, or location closes or 
          reopens?

    A tribe must notify the Chairman within 30 days if a facility 
license is terminated or not renewed or if a gaming place, facility, or 
location closes or reopens.



Sec. 559.7  May the Chairman request Indian lands or environmental and public

health and safety documentation regarding any gaming place, facility, or location 
          where gaming will occur?

    A tribe shall provide Indian lands or environmental and public 
health and safety documentation that the Chairman may in his or her 
discretion request.



Sec. 559.8  May a tribe submit documents required by this part electronically?

    Yes. Tribes wishing to submit documents electronically should 
contact the Commission for guidance on acceptable document formats and 
means of transmission.



                         SUBCHAPTER F [RESERVED]
                        PARTS 560	569 [RESERVED]

[[Page 201]]



           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 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 202]]

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 203]]

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) Each tribe shall prepare comparative financial statements 
covering all financial activities of each class II and class III gaming 
operation on the tribe's Indian lands for each fiscal year.
    (b) A tribe shall engage an independent certified public accountant 
to provide an annual audit of the financial statements of each class II 
and class III gaming operation on the tribe's Indian lands for each 
fiscal year. The independent certified public accountant must be 
licensed by a state board of accountancy. Financial statements prepared 
by the certified public accountant shall conform to generally accepted 
accounting principles and the annual audit shall conform to generally 
accepted auditing standards.
    (c) If a gaming operation has gross gaming revenues of less than 
$2,000,000 during the prior fiscal year, the annual audit requirement of 
paragraph (b) of this section is satisfied if:
    (1) The independent certified public accountant completes a review 
of the financial statements conforming to the statements on standards 
for accounting and review services of the gaming operation; and
    (2) Unless waived in writing by the Commission, the gaming 
operation's financial statements for the three previous years were sent 
to the Commission in accordance with Sec. 571.13.
    (d) If a gaming operation has multiple gaming places, facilities or 
locations on the tribe's Indian lands, the annual audit requirement of 
paragraph (b) of this section is satisfied if:
    (1) The tribe chooses to consolidate the financial statements of the 
gaming places, facilities or locations;
    (2) The independent certified public accountant completes an audit 
conforming to generally accepted auditing standards of the consolidated 
financial statements;
    (3) The consolidated financial statements include consolidating 
schedules for each gaming place, facility, or location;
    (4) Unless waived in writing by the Commission, the gaming 
operation's financial statements for the three previous years, whether 
or not consolidated, were sent to the Commission in accordance with 
Sec. 571.13; and
    (5) The independent certified public accountant expresses an opinion 
on the consolidated financial statement as a whole and subjects the 
accompanying financial information to the auditing procedures applicable 
to the audit of consolidated financial statements.
    (e) If there are multiple gaming operations on a tribe's Indian 
lands and

[[Page 204]]

each operation has gross gaming revenues of less than $2,000,000 during 
the prior fiscal year, the annual audit requirement of paragraph (b) of 
this section is satisfied if:
    (1) The tribe chooses to consolidate the financial statements of the 
gaming operations;
    (2) The consolidated financial statements include consolidating 
schedules for each operation;
    (3) The independent certified public accountant completes a review 
of the consolidated schedules conforming to the statements on standards 
for accounting and review services for each gaming facility or location;
    (4) Unless waived in writing by the Commission, the gaming 
operations' financial statements for the three previous years, whether 
or not consolidated, were sent to the Commission in accordance with 
Sec. 571.13; and
    (5) The independent certified public accountant expresses an opinion 
on the consolidated financial statements as a whole and subjects the 
accompanying financial information to the auditing procedures applicable 
to the audit of consolidated financial statements.

[74 FR 36939, July 27, 2009]



Sec. 571.13  Copies of audit reports.

    (a) Each tribe shall prepare and submit to the Commission two paper 
copies or one electronic copy of the financial statements and audits 
required by Sec. 571.12, together with management letter(s), and other 
documented auditor communications and/or reports as a result of the 
audit setting forth the results of each fiscal year. The submission must 
be sent to the Commission within 120 days after the end of each fiscal 
year of the gaming operation.
    (b) If a gaming operation changes its fiscal year, the tribe shall 
prepare and submit to the Commission two paper copies or one electronic 
copy of the financial statements, reports, and audits required by Sec. 
571.12, together with management letter(s), setting forth the results of 
the stub period from the end of the previous fiscal year to the 
beginning of the new fiscal year. The submission must be sent to the 
Commission within 120 days after the end of the stub period, or a tribe 
may incorporate the financial results of the stub period in the 
financial statements for the new business year.
    (c) When gaming ceases to operate and the tribal gaming regulatory 
authority has terminated the facility license required by Sec. 559.6, 
the tribe shall prepare and submit to the Commission two paper copies or 
one electronic copy of the financial statements, reports, and audits 
required by Sec. 571.12, together with management letter(s), setting 
forth the results covering the period since the period covered by the 
previous financial statements. The submission must be sent to the 
Commission within 120 days after the cessation of gaming activity or 
upon completion of the tribe's fiscal year.

[74 FR 36939, July 27, 2009]



Sec. 571.14  Relationship of financial statements to fee assessment reports.

    A tribe shall reconcile its Commission fee assessment reports, 
submitted under 25 CFR part 514, with its audited or reviewed financial 
statements for each location and make available such reconciliation upon 
request by the Commission's authorized representative.

[74 FR 36940, July 27, 2009]

                           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.

[[Page 205]]



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.
    (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 522 or part 559 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.
    (13) A gaming facility operates on Indian lands not eligible for 
gaming under the Indian Gaming Regulatory Act.
    (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.

[[Page 206]]

    (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 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.

[58 FR 5844, Jan. 22, 1993, as amended at 73 FR 6030, Feb. 1, 2008; 74 
FR 36940, July 27, 2009]

                           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.

[[Page 207]]



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 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.

[[Page 208]]



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) 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

[[Page 209]]

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 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

[[Page 210]]

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 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.

[[Page 211]]



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 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]

[[Page 212]]



                         SUBCHAPTER H [RESERVED]
                        PARTS 580	589 [RESERVED]



                         SUBCHAPTER I [RESERVED]
                        PARTS 590	599 [RESERVED]

[[Page 213]]



       CHAPTER IV--THE OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION




  --------------------------------------------------------------------
Part                                                                Page
700             Commission operations and relocation 
                    procedures..............................         215
720             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Navajo and 
                    Hopi Indian Relocation Commission.......         293
721-899

[Reserved]

[[Page 215]]



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 216]]

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 217]]

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 218]]

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 219]]



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 220]]

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 221]]

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 222]]



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 223]]

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 224]]



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 225]]



                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 226]]

    (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 227]]

    (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 228]]

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 229]]



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 230]]

    (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 231]]

    (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 232]]

    (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 233]]

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 234]]

    (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 235]]



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 236]]

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 237]]

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 238]]

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 239]]

    (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 240]]

    (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 241]]

(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 242]]

    (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 243]]

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 244]]

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 245]]

    (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 246]]

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 247]]

    (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 248]]

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 249]]

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 250]]

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 251]]

    (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 252]]

    (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 253]]

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 254]]

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 255]]



                      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 256]]

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 257]]

    (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 258]]

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.

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    (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 260]]

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 261]]

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 262]]

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 263]]

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 264]]

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 265]]

    (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 266]]

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 267]]

    (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 268]]



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 269]]

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 270]]

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 271]]

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 272]]

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 273]]

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 274]]


    (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 275]]

    (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 276]]

    (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 277]]



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 278]]

    (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 Sec. 700.715 or 
Sec. 700.719 or Sec. 700.723 or Sec. 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 279]]

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 280]]

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 281]]

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 282]]

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 283]]

    (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 284]]

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 285]]

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 286]]

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 287]]



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 288]]

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 289]]



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 290]]

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 291]]

    (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 292]]



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 293]]

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 294]]

    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 295]]



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 296]]

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 297]]

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 298]]

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 299]]

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 301]]



  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.....................................         303

[[Page 303]]



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 304]]

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?

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                 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?

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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?

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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?

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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?

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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 310]]

    (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 311]]

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 312]]

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 313]]

    Contract means a self-determination contract as defined in section 
4(j) of the Act.
    Contract appeals board means the Civilian Board of Contract Appeals 
(CBCA).
    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.

[61 FR 32501, June 24, 1996, as amended at 75 FR 31701, June 4, 2010]



                  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

[[Page 314]]

to provide for the assumption by the Indian tribe or tribal organization 
of any program, service, function, or activity (or portion thereof) that 
is 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.

[[Page 315]]

    (3) An identification of funds the Indian tribe or tribal 
organization requests to recover for indirect contract 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 316]]



           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 317]]

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 318]]



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 319]]

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 320]]

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: (1)   A-122, ``Cost Principles for
 an institution of higher education, (2) a   Non-Profit Organizations.''
 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.



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.

[[Page 321]]

                 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, 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

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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.



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)

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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) 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.

[[Page 324]]



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
    (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.

[[Page 325]]



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.
    (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

[[Page 326]]

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 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.

[[Page 327]]

                      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.



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

[[Page 328]]

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.
    (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.

[[Page 329]]



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 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.

[[Page 330]]

    (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.



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;

[[Page 331]]

    (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.
    (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.

[[Page 332]]

    (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.
    (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.

[[Page 333]]



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:
    (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

[[Page 334]]

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:
    (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

[[Page 335]]

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 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

[[Page 336]]

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;
    (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

[[Page 337]]

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 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

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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.
    (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:

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    (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 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.

[[Page 340]]



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:
    (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.

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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:
    (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

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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.



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

[[Page 343]]

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 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

[[Page 344]]

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 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;

[[Page 345]]

    (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.



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.

[[Page 346]]



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;
    (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

[[Page 347]]

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 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

[[Page 348]]

    (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 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 900.158. You 
may request a hearing on the record. An appeal to

[[Page 349]]

the IBIA under 25 CFR 900.158 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.

[61 FR 32501, June 24, 1996, as amended at 75 FR 31701, June 4, 2010]



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.
    (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.

[[Page 350]]

    (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;
    (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;

[[Page 351]]

    (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 900.166. An appeal to the 
Secretary under 25 CFR 900.166 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 900.166. An appeal to the IBIA under 
25 CFR 900.166 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.

[61 FR 32501, June 24, 1996, as amended at 75 FR 31701, June 4, 2010]



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 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;

[[Page 352]]

    (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 900.173. An appeal to the 
Secretary under 25 CFR 900.173 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 Interior Board of 
Indian Appeals (IBIA) under 25 CFR 900.173. An appeal to the IBIA under 
25 CFR 900.173 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

[[Page 353]]

served these copies. If neither party files an objection to the 
recommended decision within 15 days, the recommended decision will 
become final.

[61 FR 32501, June 24, 1996, as amended at 75 FR 31701, June 4, 2010]



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

[75 FR 31701, June 4, 2010]



      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 with the DHHS Office of General Counsel, subcontractors of 
an Indian tribe or tribal organization which are:

[[Page 354]]

    (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 employee's salary and benefits 
unless the employee receives additional compensation for performing 
covered services from anyone other than the contractor.


[[Page 355]]


    (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 subcontract with 
the California Rural Indian Health Board to carry out IHS programs in 
geographically defined service areas in California and personal

[[Page 356]]

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 357]]



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 Office of the 
General Counsel, General Law Division, Claims Office, 330 Independence 
Avenue, SW, Room 4256, Wilbur J. Cohen Federal Building, Washington, DC 
20201, or at such other address as shall have been provided to the 
contractor in writing.

[61 FR 32501, June 24, 1996, as amended at 72 FR 52791, Sept. 17, 2007]



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

[[Page 358]]

    (e) Other materials identified in Sec. 900.188(c).

                       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. Sec. 900.207 and 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 359]]



                 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 CBCA, 48 CFR part 6101; and
    (c) The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28 
U.S.C. 2412, and regulations at 48 CFR 6101.30, 6101.31 (CBCA), 43 CFR 
4.602, 4.604 through 4.628 (DOI), and 45 CFR 13.4 through 13.7 (HHS).

[61 FR 32501, June 24, 1996, as amended at 75 FR 31701, June 4, 2010]



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 360]]



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

[61 FR 32501, June 24, 1996, as amended at 71 FR 76601, Dec. 21, 2006; 
75 FR 31701, June 4, 2010]



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 361]]



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 CBCA 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 CBCA; and
    (5) Any additional information which may be relevant.

[61 FR 32501, June 24, 1996, as amended at 71 FR 76601, Dec. 21, 2006]



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;

[[Page 362]]

    (b) The financial interests of the United States relating to trust 
resources, trust acquisitions, or lands conveyed or to be conveyed 
pursuant to the Alaska Native Claims Settlement Act 43 U.S.C. 1601 et 
seq.; or
    (c) An express statutory obligation of the United States to third 
parties. This section only applies 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.

[[Page 363]]



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.



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

[[Page 364]]

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 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. 900.171 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.

[61 FR 32501, June 24, 1996, as amended at 75 FR 31701, June 4, 2010]



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 365]]



     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.....................................         367
1001            Self-Governance Program.....................         423

[[Page 367]]



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?

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                     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?

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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?

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                  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?

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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?

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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

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          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 the 
          CBCA?
1000.430 Who handles appeals 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.



                      Subpart A_General Provisions



Sec. 1000.1  Authority.

    This part is prepared and issued by the Secretary of the Interior 
under the

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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.
    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

[[Page 375]]

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;
    (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

[[Page 376]]

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 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.

[[Page 377]]

    (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:
    (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

[[Page 378]]

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.



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

[[Page 379]]

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 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

[[Page 380]]

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 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:

[[Page 381]]

    (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 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

[[Page 382]]

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.

                     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:

[[Page 383]]

    (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.



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

[[Page 384]]

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 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)

[[Page 385]]

    (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 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

[[Page 386]]

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 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.

[[Page 387]]

    (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.
(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.

[[Page 388]]



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, 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.

[[Page 389]]

    (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/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.

[[Page 390]]

    (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.

                               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

[[Page 391]]

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.



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

[[Page 392]]

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:
    (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.

[[Page 393]]



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 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

[[Page 394]]

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.

                  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

[[Page 395]]

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:
    (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;

[[Page 396]]

    (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 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

[[Page 397]]

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.



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:

[[Page 398]]

    (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 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

[[Page 399]]

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.



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

[[Page 400]]

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 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.

[[Page 401]]

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.



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));

[[Page 402]]

    (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-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.

[[Page 403]]



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 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.

[[Page 404]]

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;
    (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

[[Page 405]]

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:
    (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

[[Page 406]]

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.



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

[[Page 407]]

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 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.

[[Page 408]]



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 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

[[Page 409]]

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.



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

[[Page 410]]

    (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.



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.

[[Page 411]]



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, 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.

[[Page 412]]

                        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.



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

[[Page 413]]

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.



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.

[[Page 414]]



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
    (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.

[[Page 415]]

    (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 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

[[Page 416]]

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. 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

[[Page 417]]

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 Civilian Board of Contract Appeals (CBCA) 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.

[65 FR 78703, Dec. 15, 2000, as amended at 75 FR 31701, June 4, 2010]



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.



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);

[[Page 418]]

    (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 CBCA.

[65 FR 78703, Dec. 15, 2000, as amended at 75 FR 31701, June 4, 2010]



Sec. 1000.429  What statutes and regulations govern resolution of 

disputes concerning signed AFAs or compacts that are appealed to the CBCA?

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

[[Page 419]]

    (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'.

[65 FR 78703, Dec. 15, 2000, as amended at 75 FR 31701, June 4, 2010]



Sec. 1000.430  Who handles appeals regarding reassumption for imminent jeopardy?

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

[75 FR 31702, June 4, 2010]



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

[75 FR 31702, June 4, 2010]



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.
    (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.

[[Page 420]]



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.



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.

[[Page 421]]



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.



 Sec. 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 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

[[Page 422]]

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 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

[[Page 423]]

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-
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

[[Page 424]]

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 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

[[Page 425]]

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.
    (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;

[[Page 426]]

    (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.
    (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.

[[Page 427]]

    (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 429]]



    CHAPTER VII--OFFICE OF THE SPECIAL TRUSTEE FOR AMERICAN INDIANS, 
                       DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
1200            American Indian Trust Fund Management Reform 
                    Act.....................................         431

[[Page 431]]



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 432]]

    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 433]]

    (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 434]]

(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 435]]

    (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 436]]

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 437]]

    (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 438]]



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 439]]



                              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 441]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2011)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        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
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
       XXX  Department of Homeland Security (Parts 3000--3099)

[[Page 442]]

      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   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 (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        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 (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      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 (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)

[[Page 443]]

      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
     LXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 8200--8299)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 8700--8799)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)

[[Page 444]]

      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic 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)
     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)

[[Page 445]]

      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  National Institute of Food and 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)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    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 446]]

                           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 (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      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)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       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 (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

[[Page 447]]

                    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 448]]

             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  U.S. 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  U.S. 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  Office of Workers' Compensation Programs, 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 Service, 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 449]]

                      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 (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)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       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 
                HousingCommissioner, 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)

[[Page 450]]

         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        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)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       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 (Parts 1200--1299)

[[Page 451]]

                      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)
        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)

[[Page 452]]

     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Ocean Energy Management, Regulation, and 
                Enforcement, Department of the Interior (Parts 
                200--299)
        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)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)
         X  Financial Crimes Enforcement Network, Departmnent of 
                the Treasury (Parts 1000--1099)

                      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)

[[Page 453]]

      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     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)
    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)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        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)

[[Page 454]]

        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       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 (Parts 1500--
                1599)
       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)
        II  Armed Forces Retirement Home

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory 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)

[[Page 455]]

          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)
   62--100  [Reserved]
            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)
  103--104  [Reserved]
       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)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [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

[[Page 456]]

         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--10099)

             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)

                       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) 
                [Reserved]
         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)

[[Page 457]]

       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)
        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)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           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  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  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)

[[Page 458]]

        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)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (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)

[[Page 459]]

         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       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)
        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 461]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2011)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
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              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 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
  National Institute of Food and Agriculture.     7, XXXIV
  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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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 462]]

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
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
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
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                       5, LXVIII; 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; 50, VI
  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
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       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
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 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 463]]

  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, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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
Election Assistance Commission                    2, LVIII; 11, II
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, 34
  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                   2, XV; 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

[[Page 464]]

  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
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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 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 Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
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

[[Page 465]]

General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  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          2, III; 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
  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
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 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
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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

[[Page 466]]

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
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
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
  MBureau of Ocean Energy Management,             30, II
       Regulation, and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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
Investment Security, Office of                    31, VIII
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                                2, XXVII; 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
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V

[[Page 467]]

  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
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  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, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
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
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 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      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
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 Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture.       7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
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

[[Page 468]]

National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 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
Office of Workers' Compensation Programs          20, VII
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
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  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 Regulatory 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
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L

[[Page 469]]

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                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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
Special Inspector General for Iraq                5, LXXXVII
     Reconstruction
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
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                     2, XII; 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; 47, IV; 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 Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, 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
[[Page 470]]

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                       2, VIII; 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 471]]



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 III
513 Added; interim.................................................58057

                                  2002

25 CFR
                                                                   67 FR
                                                                    Page
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 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
    Regulation at 68 FR 35169 eff. date corrected..................36745
309.18 Added.......................................................35170

[[Page 472]]

    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 III
514.1 (d) revised...................................................2505

                                  2005

25 CFR
                                                                   70 FR
                                                                    Page
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

25 CFR
                                                                   71 FR
                                                                    Page
Chapter III
517 Revised........................................................20007
542.2 Amended......................................................27391
542.7 (g)(1)(iv) added.............................................27392
542.8 (h)(1)(iv) added.............................................27392
542.13 (o)(4)(ii) and (iii) redesignated as (o)(4)(iii) and (iv); 
        new (o)(4)(ii) added; new (o)(4)(iv) revised...............27392
542.16 (f)(1)(vi) removed..........................................27392
542.19 Added.......................................................27392
Chapter V
900.222 (e) amended................................................76601
900.229 (a) and (b)(4) amended.....................................76601
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

[[Page 473]]

                                  2007

25 CFR
                                                                   72 FR
                                                                    Page
Chapter V
900.201 Amended....................................................52791

                                  2008

25 CFR
                                                                   73 FR
                                                                    Page
Chapter III
502.22 Added........................................................6029
502.23 Added........................................................6029
522.2 (i) added.....................................................6029
542.7 Removed; eff. 10-13-09.......................................60498
542.16 Removed; eff. 10-13-09......................................60498
543 Added..........................................................60498
547 Added..........................................................60525
559 Added...........................................................6029
573.6 (a)(4) revised................................................6030

                                  2009

25 CFR
                                                                   74 FR
                                                                    Page
Chapter III
502.14 (d) added...................................................36932
    Regulation at 74 FR 36932 eff. date delayed....................42775
502.16 Revised.....................................................36932
    Regulation at 74 FR 36932 eff. date delayed....................42775
502.17 Revised.....................................................36932
    Regulation at 74 FR 36932 eff. date delayed....................42775
502.19 (d) added...................................................36933
    Regulation at 74 FR 36933 eff. date delayed....................42775
514.1 Revised......................................................36933
    Regulation at 74 FR 36933 eff. date delayed....................42755
531.1 Revised......................................................36934
    Regulation at 74 FR 36934 eff. date delayed....................42755
533.1 (c) removed..................................................36935
    Regulation at 74 FR 36935 eff. date delayed....................42755
533.2 Revised......................................................36935
    Regulation at 74 FR 36935 eff. date delayed....................42755
533.3 Revised......................................................36935
    Regulation at 74 FR 36935 eff. date delayed....................42755
533.4 Revised......................................................36935
    Regulation at 74 FR 36935 eff. date delayed....................42755
533.5 Removed......................................................36935
    Regulation at 74 FR 36935 eff. date delayed....................42755
533.6 Revised......................................................36935
    Regulation at 74 FR 36935 eff. date delayed....................42755
533.7 Revised......................................................36936
    Regulation at 74 FR 36936 eff. date delayed....................42755
535.1 Revised......................................................36936
    Regulation at 74 FR 36936 eff. date delayed....................42755
535.3 Revised......................................................36936
    Regulation at 74 FR 36936 eff. date delayed....................42755
537.1 Revised......................................................36937
    Regulation at 74 FR 36937 eff. date delayed....................42755
537.3 Revised......................................................36938
    Regulation at 74 FR 36938 eff. date delayed....................42755
539.1 Revised......................................................36938
    Regulation at 74 FR 36938 eff. date delayed....................42755
539.2 Revised......................................................36938
    Regulation at 74 FR 36938 eff. date delayed....................42755
542.7 Regulation at 73 FR 60498 eff. date delayed to 10-13-10......52138
542.16 Regulation at 73 FR 60498 eff. date delayed to 10-13-10.....52138
543.3 (c)(3) revised...............................................52139
556.2 Revised......................................................36938
    Regulation at 74 FR 36938 eff. date delayed....................42755
556.3 Revised......................................................36939
    Regulation at 74 FR 36939 eff. date delayed....................42755
558.2 Revised......................................................36939
    Regulation at 74 FR 36939 eff. date delayed....................42755
571.12 Revised.....................................................36939
    Regulation at 74 FR 36939 eff. date delayed....................42755
571.13 Revised.....................................................36939
    Regulation at 74 FR 36939 eff. date delayed....................42755
571.14 Revised.....................................................36940
    Regulation at 74 FR 36940 eff. date delayed....................42755
573.6 (a)(13) added................................................36940
    Regulation at 74 FR 36940 eff. date delayed....................42755

[[Page 474]]

                                  2010

25 CFR
                                                                   75 FR
                                                                    Page
Chapter III
514.1 (c)(2), (6)(i) and (d) correctly amended......................2795
542.7 Regulation at 73 FR 60498 eff. date delayed to 10-13-11......55270
542.16 Regulation at 73 FR 60498 eff. date delayed to 10-13-11.....55270
543.3 (c)(3) revised; eff. 10-13-11................................55270
Chapter V
900.6 Amended......................................................31701
900.156 (b) amended................................................31701
900.165 (b) and (c) amended........................................31701
900.172 (b) and (c) amended........................................31701
900.177 Revised....................................................31701
900.216 (b) and (c) revised........................................31701
900.222 (e) revised................................................31701
900.253 (b) revised................................................31701
Chapter VI
1000.421 (b) revised...............................................31701
1000.428 Amended...................................................31701
1000.429 Heading and introductory text revised.....................31701
1000.430 Revised...................................................31702
1000.431 Revised...................................................31702

                                  2011

 (No regulations were published from January 1, 2011, through April 1, 
                                  2011)


                                  [all]