[Federal Register Volume 59, Number 9 (Thursday, January 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-570]


[[Page Unknown]]

[Federal Register: January 13, 1994]


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Part IV





Department of the Interior





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Bureau of Indian Affairs



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25 CFR Part 23




Indian Child Welfare Act; Final Rule




DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 23

RIN 1076-AC55

 
Indian Child Welfare Act

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) is publishing final Indian 
Child Welfare Act (ICWA) grant regulations in response to comments 
received during the Notice of Proposed Rulemaking (NPRM) comment period 
and in response to recommendations received from numerous Indian 
tribes, Indian organizations and other interested parties during a 
series of consultation sessions held during 1990-1992. Indian tribes 
collectively recommended the conversion of the current competitive 
grant award process to a noncompetitive funding mechanism for tribes, 
the stabilization of tribal ICWA programs through the provision of 
recurring base funding, and the continuation of a competitive award 
system for off-reservation Indian organization applicants.

EFFECTIVE DATE: February 14, 1994.

FOR FURTHER INFORMATION CONTACT: Betty B. Tippeconnie, Division of 
Social Services, Bureau of Indian Affairs, Department of the Interior, 
telephone (202) 208-2721.

SUPPLEMENTARY INFORMATION: This final rule is published under authority 
delegated by the Secretary of the Interior (Secretary) to the Assistant 
Secretary--Indian Affairs in the Departmental Manual at 209 DM 8. This 
final rule, revising regulations which govern the ICWA grant process as 
codified at 25 CFR part 23, was preceded by the publication of the NPRM 
in the Federal Register on January 12, 1993 (Vol. 58, No. 7), with a 
30-day public comment period.
    Current regulations provide for the competitive award of ICWA 
grants to Indian tribes and off-reservation Indian organizations based 
on the BIA's review of applications. In the past, limited 
appropriations necessitated the competitive award process. Under this 
system, tribes were unable to develop long-range plans and programs due 
to the uncertainty of sustained resources. Moreover, administration of 
this program was costly and time consuming, because tribes needed to 
complete lengthy applications for ICWA grant funds which were then 
reviewed and considered by BIA.
    In order for the BIA to convert to a noncompetitive grant award 
system for tribes, it was necessary to secure sufficient ICWA 
appropriations. In FY 1992, the BIA requested a substantial increase in 
appropriations for the ICWA grants program so that noncompetitive 
awards could be made to tribes. This was explained in the BIA's budget 
request and was approved by the Office of Management and Budget, 
creating a $16,786,000 program. The FY 1994 ICWA appropriations include 
$22,905,000 for Indian tribes and $1,735,000 for off-reservation Indian 
organizations. These increased ICWA funds and the revised regulations 
will fulfill the BIA's goal to convert to a noncompetitive award system 
for all federally recognized tribes, enabling them to access recurring 
base ICWA funds via the tribe/agency funding mechanism already in 
place. The revised regulations will require all applicants to develop 
multi-year comprehensive programs which will reduce the overall burden 
on the public and the Federal Government by reducing the amount of 
time, resources, and paperwork associated with implementing the current 
competitive grant application system and related grant administration 
and fiscal activities. Additionally, all program operation activities 
will be moved from the headquarters level to the lowest possible level 
of decisionmaking, and the appeals process will be streamlined 
substantially for all applicants at all levels of government. Thus, the 
revised regulations will be less burdensome and more cost-effective, 
and efficient.
    Although these regulations convert ICWA grants to a noncompetitive 
system for federally recognized Indian tribes on reservations, the 
competitive award system will be retained for off-reservation Indian 
organizations. This is because there will not be sufficient ICWA grant 
funds available for noncompetitive awards to all eligible off-
reservation Indian organization applicants.
    Fifty-five individual comments and two documents containing 
consolidated recommendations and comments were received by February 11, 
1993, the closing date of the comment period. The consolidated comments 
were the result of meetings facilitated by two BIA area offices. Each 
comment was carefully reviewed by a Division of Social Services work 
group, which adopted, rejected or developed a modified version of each 
recommendation for incorporation into the final rule. Several comments 
received after the close of the comment period were not considered.
    A number of comments pertained to issues that cannot properly be 
addressed in regulations. These comments fell within one of the 
following categories:
    (1) Matters outside the realm and purview of these regulations that 
may be addressed through other means, such as state non-compliance 
issues with respect to implementing applicable provisions of the Act, 
or special consideration to extend a tribe's service area so that it 
may serve tribal members residing in a major urban area;
    (2) Proposals regarding distribution methodologies for ICWA grant 
funds, such as a distribution based upon where the majority of Indian 
populations are concentrated; and
    (3) Requests for examples and how they relate to specific 
circumstances. Requests for such information and technical assistance 
on the application of specific regulations should be directed to 
appropriate agency or area office staff.
    This final rule is the result of extensive consultation on this 
subject matter since 1990. The BIA is committed to tribal participation 
in fostering a true tribal-BIA partnership in addressing priority 
issues in Indian Country. We have communicated to the Indian 
communities in various ways that Indian child welfare services are of 
paramount concern and importance to the BIA. The BIA conducted a series 
of tribal consultation sessions prior to the publication of the NPRM 
revising the current ICWA regulations. The BIA believes that Indian 
tribes and Indian organizations have had ample opportunity for 
meaningful input into the development of both the proposed and final 
regulatory revisions, and options for the distribution of the ICWA 
grant funds. The following is a brief synopsis of these activities.
    In February 1990, the Acting Deputy to the Assistant Secretary--
Indian Affairs (Tribal Services) called upon each BIA area office 
(areas) to establish tribal technical work groups for the purpose of 
reviewing the existing ICWA grant process, identifying problem areas, 
and making recommendations for improvement. Additionally, each area was 
requested to develop a methodology for measuring the impact of ICWA 
programs. Working under a tight deadline, the areas convened work 
groups and submitted reports suggesting several ways to improve the 
capabilities of ICWA programs. In September 1990, the BIA issued an 
executive summary of the area reports which contained comments and 
recommendations received from tribes and Indian organizations. 
Essentially, the collective findings and recommendations of the work 
groups addressed the competitive nature of the grant process and the 
impacts that unstable, insufficient funding levels have had on the 
continuity of programs.
    The BIA's Division of Social Services then crafted proposed changes 
to 25 CFR part 23, incorporating recommendations contained in the 
executive summary, thereby revising the regulations governing the ICWA 
grant process. The BIA distributed these draft regulations to the areas 
for a second round of consultations in March 1991. Included on the 
consultation agenda were ICWA funding-related issues/concerns. Each of 
the twelve areas met the challenge and conducted field hearings and 
solicited comments on the proposed regulations. Subsequent to these 
area consultation sessions, all comments received from tribes and 
interested parties were considered and incorporated, to the extent 
feasible, into the NPRM.
    A third consultation session facilitated by the BIA was held in 
Denver, Colorado, in November 1991, for the exclusive purpose of 
addressing the development of options for the distribution of the ICWA 
grant funds. At this meeting, the BIA made a commitment to continue 
tribal consultation on the proposed changes to the ICWA grant process. 
Based on recommendations received from tribes in Denver, the BIA 
developed nine proposed methods for the distribution of ICWA grant 
funds. Consistent with the BIA's government-to-government relationship 
with Indian tribes, the BIA, in December 1991, communicated directly 
with tribally-elected officials in conducting a preference survey to 
arrive at the most preferred option for distributing ICWA grant funds. 
Fiscal Year (FY) 1992 ICWA grant funds were distributed to eligible 
Indian tribes through a methodology reflective of a combination of 
three options most preferred by tribal leadership. Funds were 
distributed to 374 tribes and Alaska native villages.
    In summary, the BIA has to date demonstrated its commitment to, and 
has facilitated the consultative process on behalf of, Indian tribes 
and other interested parties with respect to the ICWA regulatory 
revisions.
    Although the final rule significantly differs in organization from 
the NPRM as published, the major components remain intact. Some 
sections have been rearranged to better delineate and identify under 
one subpart all the applicable sections on the grant application 
procedures. Some sections have been consolidated, condensed, or 
rephrased for purposes of clarity. After careful consideration of all 
comments and recommendations received, sections that were considered no 
longer necessary or applicable were deleted. Additionally, the ICWA 
grant process has been divided into two different processes: a newly-
designated Subpart C pertains exclusively to Indian tribes and a newly 
designated Subpart D pertains exclusively to off-reservation Indian 
organization applicants pursuant to 25 U.S.C. 1932. In response to 
recommendations received, both processes also have been restructured so 
that ICWA grants will be processed by the appropriate BIA agency or 
area office. The move in this direction is consistent with BIA policy 
that program decisions be made by BIA line officials at the lowest 
level of decision-making.
    Contingent upon annual congressional appropriations, the purposes 
of the final rule remain the same as announced in the NPRM, namely:
    (1) To convert the competitive ICWA grant award process to a 
noncompetitive award system for eligible Indian tribes;
    (2) To promote long-term planning;
    (3) To stabilize and provide core funding for tribal ICWA programs, 
enabling them to develop, coordinate, and implement comprehensive 
Indian child and family service programs;
    (4) To provide for off-reservation ICWA programs to continue to be 
awarded competitively; and
    (5) To establish new requirements for internal evaluation processes 
for all grantees.
    In all its consultation sessions on regulatory revisions to date, 
the BIA has made known publicly its intentions for implementing both 
the proposed noncompetitive ICWA grant award system for federally 
recognized Indian tribes and Alaska native villages, and the 
competitive award system for off-reservation Indian organization 
applicants. The following is background information on and the reasons 
why the BIA has determined it would develop and implement two separate 
grant processes.
    (1) Public Law 95-608 statutorily treats federally recognized 
Indian tribes and off-reservation Indian organization applicants 
differently at 25 U.S.C. 1931 and 1932 respectively. 25 U.S.C. 1931 
delineates for Indian tribes eight separate ICWA program activities, 
while 25 U.S.C. 1932 identifies four ICWA program activities for off-
reservation Indian organizations. Moreover, under 25 U.S.C. 1931, 
tribes may use ICWA funds as non-Federal matching shares for programs 
administered under the Social Security Act. This provision is 
consistent with entities considered eligible, by other Federal 
programs, to apply for and administer Social Security Act programs, 
whereas off-reservation Indian organizations are not statutorily 
authorized to do so.
    (2) The Federal government has a government-to-government 
relationship with the sovereign governments of federally recognized 
Indian tribes and Alaska native villages as contemplated by Public Law 
95-608. Therefore, federal funds for which a tribe is eligible are 
distributed directly to the tribe by a Federal Finance System. Once the 
revised regulations are implemented, this funds distribution system 
will allow tribes quick access to program funds and will reduce the 
burden hours heretofore required for the execution and administration 
of grants. The Federal government does not, however, have a similar 
relationship with off-reservation Indian organizations incorporated 
under state law. As a result of these relationships, the BIA may 
develop and implement a noncompetitive grant award system for Indian 
tribes, while retaining a competitive system for off-reservation Indian 
organization applicants.
    (3) The Congress has been informed of the BIA's intent to develop 
and implement two separate grant award systems, one for Indian tribes 
and another for off-reservation Indian organization applicants. Since 
FY 1991, the BIA has submitted budget justification documents informing 
the Congress of all actions contemplated with respect to the 
implementation of the new ICWA initiative and its attendant regulatory 
revisions.
    (4) Beginning in FY 1993, the Congress earmarked a national 
allocation of ICWA funds to be awarded competitively to successful off-
reservation Indian organization applicants. Likewise, Congress 
earmarked FY 1993 ICWA funds to be granted noncompetitively to tribal 
programs.
    (5) Limited funds appropriated and earmarked for the off-
reservation ICWA grant competition precludes the BIA from funding these 
organizations noncompetitively, because there would not be enough funds 
for all eligible off-reservation Indian organization applicants. Other 
concerns inherent in the noncompetitive funding of off-reservation 
Indian organization grantees include the fact that there is no fair 
manner in which the BIA may fund a select few of the many eligible 
organizations. Any preferential treatment given such a select group 
would be deemed discriminatory by those organizations not funded. 
Considering the limited funds available for successful off-reservation 
Indian organization applicants, a competitive award process is the only 
alternative available to the BIA.
    The decision to continue a competitive award system for off-
reservation Indian organization applicants should not in any way be 
construed to mean that off-reservation ICWA programs are valued less 
than tribal programs. The BIA recognizes and acknowledges that off-
reservation ICWA programs play an important advocacy role on behalf of 
many Indian families residing in urban settings in brokering services 
provided by urban agencies/services providers. Off-reservation ICWA 
programs oftentimes provide the key link between Indian tribes and 
their tribal members residing off-reservation who may be experiencing 
crisis situations, particularly those involving involuntary child 
custody proceedings in state courts.
    During the November 1991 tribal consultation session conducted in 
Denver, Colorado, tribes requested that the BIA seek a legal opinion as 
to the applicability of the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-638), as amended, to tribal ICWA grant 
programs. Tribes recommended and supported the concept of converting 
the competitive ICWA grant award process to a noncompetitive award 
system for tribes under the authority of Public Law 93-638. Tribes also 
recommended that all provisions of Public Law 93-638 be made applicable 
to tribal ICWA programs once this conversion materializes. In 
particular, tribes sought entitlement to contract support costs for 
tribal ICWA programs and eligibility for indirect costs at the tribes' 
negotiated rates with the Office of the Inspector General (OIG). Ninety 
percent of tribal governments who submitted comments during the NPRM 
comment period reiterated their recommendations with respect to the 
provision of contract support funds for tribal ICWA programs.
    In response to the BIA's request for a legal opinion on behalf of 
Indian tribes with respect to the specific issues stated above, the 
Department of the Interior's Solicitor for Indian Affairs determined 
that there is neither statutory authority nor Indian Self-Determination 
regulatory provisions which would permit Title II Indian Child Welfare 
Act grant programs to be awarded as contracts to tribes under the 
authority of the Indian Self-Determination and Education Assistance Act 
(Pub. L. 93-638), as amended.
    Pursuant to Public Law 93-638, as amended, tribes are entitled to 
contract with the BIA to plan, conduct, and administer all or parts of 
any program which the BIA is authorized to administer for the benefit 
of Indians. However, grants made under the Indian Child Welfare Act are 
not such a program. The BIA can neither operate ICWA programs on behalf 
of Indian tribes nor can it assume the operation of such a program in 
the event a tribe no longer wishes to operate an ICWA program. Hence, 
ICWA grants are not contractible under the regulatory provisions which 
implement Public Law 93-638. However, the Solicitor concluded that 
there are no statutory or regulatory restrictions on the allocation of 
indirect costs to ICWA grants awarded to Indian tribes under section 
201 of the Act (25 U.S.C. 1931) at the OIG-negotiated indirect cost 
rates.
    Therefore, based upon the above Solicitor's opinion, BIA policy, 
and subject to the availability of contract support funds, ICWA 
contract support costs for tribes may be paid. However, there are no 
funds currently appropriated for ICWA indirect costs.

Changes Adopted Due to Comments Received

    Comment. A commenter recommended that the purpose statement at 
Sec. 23.1 be restated to reflect that these regulations govern the 
provision of funding for, and the administration of ICWA programs, 
rather than addressing the performance of the Federal government's 
responsibilities under the Act.
    Response. The BIA agrees with the recommendation, and the purpose 
statement at Sec. 23.1 incorporates this recommendation.
    Comment. Commenters recommended that several new definitions be 
added because they were necessary, or that other definitions be 
clarified because they were unclear in meaning. Commenters also 
recommended deletion of entire definitions or portions thereof because 
they were perceived to be unnecessary, confusing, or irrelevant to the 
ICWA grant process. Two commenters recommended the deletion of any 
references to status offenses (such as truancy and incorrigibility) 
within the definition of child custody proceeding because such language 
is not contained in the Act.
    Response. The BIA agrees with the rationales provided to add the 
following new definitions:
    (1) Bureau of Indian Affairs; (2) child custody proceeding, to 
clarify that other tribal placements made in accordance with the Act 
are included, but that status offenses are excluded; (3) grants 
officer, to define the responsibilities of this BIA official; (4) off-
reservation ICWA program, as distinguishable from a tribal government 
ICWA program; (5) Title II of Pub. L. 95-608, due to provisions therein 
that provide authority for ICWA grant programs; and (6) tribal 
government, which now better defines tribal applicants and is 
preferable to the definition of ``on- and near-reservation programs,'' 
as formerly used in the NPRM.
    The following definitions are being deleted for the reasons given:
    (1) Director, Office of Tribal Services is no longer used in this 
rule; (2) indirect costs; (3) indirect cost rate because their 
applicability is discussed in 25 CFR part 276, Appendix A; (4) near-
reservation because this term was confusing to those tribes who do not 
have designated near-reservation service areas (instead, grants 
formerly designated as ``on- and near-reservation'' are redesignated as 
tribal government ICWA grants); and (5) unduplicated case count is no 
longer used in this rule. A change in the definition of Indian is made 
to be consistent with the definition at 43 U.S.C. 1606. Additionally, 
clarifying language for purposes of eligibility for ICWA grants under 
25 U.S.C. 1932 is being added to the definition of Indian organization. 
It is intended that this definition be solely applicable to off-
reservation Indian organizations, not Indian organizations located 
within the confines of the geographical boundaries of Indian 
reservations.
    Comment. Although several commenters agreed with the NPRM policy 
statement at Sec. 23.3, emphasizing the provision of prevention and 
reunification services, other commenters recommended that the policy 
statement be consistent with the Congressional declaration of policy at 
25 U.S.C. 1902 (Pub. L. 95-608), and that ICWA programs should be 
comprehensive in nature and approach.
    Response. The BIA agrees with the above recommendations and has 
revised the policy statement to reflect these recommendations, with 
emphasis on the design, development and implementation of Indian child 
and family service programs to coordinate with, rather than to 
supplant, existing programs.
    Comment. A commenter inquired as to notification responsibilities, 
under 25 U.S.C. 1912, of child custody proceedings in state courts when 
the location of the Indian parents, Indian custodians or the Indian 
child's tribe is known.
    Response. The BIA agrees that current regulations are unclear as to 
notification responsibilities under 25 U.S.C. 1912 when the whereabouts 
of the Indian parents, Indian custodians or child's tribe are known. 
Thus, Sec. 23.11(a) now begins with a new paragraph which specifically 
delineates the responsibility of any party seeking to effect a foster 
care placement of, or termination of parental rights to, an Indian 
child under state law to notify directly, and in a timely manner, the 
affected Indian parents, Indian custodians or the child's tribe of such 
state court proceeding. For purposes of efficacy and to avoid 
duplication of effort, included in this section is a new requirement to 
send copies of notices provided in accordance with this section to the 
Secretary and the appropriate Area Director. The Secretary has, 
heretofore, experienced such duplication of effort.
    Comment. Additional tribal comments received on Sec. 23.11 included 
exceptions to BIA area offices designated to process ICWA notices in 
behalf of said tribes as specified at Sec. 23.11 (c)(1)-(12).
    Response. All exceptions to Sec. 23.11 (c)(1)-(12) are 
incorporated.
    Comment. One commenter requested that more inclusive information be 
secured with respect to the notification requirements at Sec. 23.11 
(d)(1)-(3).
    Response. Notification requirements identified at Sec. 23.11 
(d)(1)-(2) are rephrased to be more inclusive, concise, and clear 
regarding attempts to secure information on the Indian child's lineal 
ancestors.
    Comment. A commenter requested clarification as to which agency 
pays for court-appointed counsel under section Sec. 23.11 (e)(2).
    Response. Language at Sec. 23.11 (e)(2) is rephrased to be 
consistent with 25 U.S.C. 1912, which addresses the provision of court-
appointed counsel when a state court determines indigency and payment 
for such counsel as authorized by state law. Additionally, language at 
Sec. 23.11 (e)(4) is consistent with the new requirement at Sec. 23.11 
(a) that the moving party is responsible for providing to the Secretary 
and appropriate Area Director copies of ICWA notices sent to the 
affected parties pursuant to 25 U.S.C. 1912.
    Comment. A commenter recommended that language at Sec. 23.11 (e)(5) 
closely follow 25 U.S.C. 1911.
    Response. The above recommendation is incorporated at Sec. 23.11 
(e)(5) to reflect language in the Act and to give clearer meaning to 
this section.
    Comment. A commenter suggested that the confidentiality requirement 
at Sec. 23.11 (d)(7) be applicable to all parties notified rather than 
just BIA officials.
    Response. The BIA agrees that the confidentiality requirement is 
applicable to all Federal and tribal personnel involved in the handling 
of ICWA notices at all levels. This section is revised to reflect this 
understanding. The publication of confidential information related to 
ICWA notices in tribal newsletters is prohibited as well.
    Comment. A commenter recommended that Sec. 23.11(f), which 
establishes timeframes within which the BIA must notify the affected 
Indian parties and the child's tribe of child custody proceedings, be 
consistent with the 15-day requirement established by law.
    Response. The BIA agrees, and the timeframe is changed from the 10 
days indicated in the NPRM to 15 days as provided for by statute.
    Comment. A commenter suggested that the BIA clarify to whom section 
Sec. 23.11(g) applies.
    Response. This section has been clarified to address participants 
in Indian child custody proceedings.
    Comment. The Division of Social Services is including at Sec. 23.12 
the authority for this provision. A new change provides that the 
Secretary or his/her designee shall update and publish as necessary the 
names and addresses of tribal agents for service of ICWA notices. This 
change is made because the Division of Social Services published in the 
March 26, 1993, Federal Register (Vol. 58, No. 57) the most 
comprehensive listing ever of designated tribal agents for all 
federally recognized Indian tribes and Alaska native villages, and thus 
foresees the publication of updated information only as necessary in 
the future, rather than on an annual basis.
    Comment. The Division of Social Services is adding the word 
``involuntary'' to the title heading of Sec. 23.13 and at paragraph (a) 
of this section to clarify that the provisions are applicable only to 
``involuntary child custody proceedings'' as provided for in 25 U.S.C. 
1912 and to be consistent with the title heading in Subpart B.
    Comment. The Department of the Interior's Office of the Solicitor 
(Indian Affairs) and the Board of Indian Appeals (IBIA) recommended the 
incorporation of specific citations they provided with respect to 
decisions appealable to the IBIA under Sec. 23.13 (c) and (f). The IBIA 
also recommended deletion of the words ``Hearings and'' from the title 
in Subpart F as there are no provisions for the conduct of hearings 
under this subpart.
    Response. The BIA agrees that the citations provided for appeals in 
the NPRM were general in nature and that Subpart F contains no 
provisions for hearings. Therefore, recommended citations on appeals 
are being incorporated into Sec. 23.13 (c) and (f) and the words 
``Hearings and'' are being deleted from the title in Subpart F.
    Comment. Numerous comments recommended that the entire grant 
process be streamlined for both ``on-reservation'' and off-reservation 
Indian organization applicants, as well as the establishment of minimum 
grant application and grant administration requirements. Commenters 
stated that some of the detailed information required for the 
submission of grant applications is excessive or redundant; some 
sections are considered restrictive; and that the application process 
could be streamlined.
    Tribes recommended that, in keeping with the BIA's policy on 
program operations, the entire grant process be dealt with at the 
lowest level of decision-making, in this case by the Agency 
Superintendent. Similarly, all comments received from potential off-
reservation Indian organization applicants supported and recommended 
that the area offices continue to bear the responsibility for the 
conduct of the competitive ICWA grant review and award process for off-
reservation applicants. Tribes also recommended that the ICWA grants be 
awarded under the authority of the Indian Self-Determination Act and 
regulations. However, for the reason discussed earlier, this is not 
feasible.
    Response: Although off-reservation Indian organizations presented 
their views on why ICWA grants to such organizations should also be 
awarded noncompetitively, that is not an alternative for the BIA for 
the reasons discussed in the preamble. Some off-reservation Indian 
organizations also requested authority to operate the same types of on-
reservation programs operated by tribes. These regulations identify 
off-reservation ICWA programs as those delineated by statute at 25 
U.S.C. 1932. However, it should be noted that the list of off-
reservation ICWA programs is nonexclusive, provided other program 
activities promote and fulfill the intent and purposes of the Act.
    Based upon the above comments and as previously discussed, the 
grant applications and award processes are dichotomized to address two 
categories of applicants: (1) Tribal government applicants (formerly 
called ``on- and near-reservation programs''); and (2) off-reservation 
Indian organization applicants. Accordingly, tribal applicants formerly 
identified at proposed Sec. 23.21 are designated as ``tribal 
government'' applicants at a newly established subpart C, and 
subsequent references are consistent with this renamed applicant 
category. The term ``tribal government'' better defines the tribal 
applicants and recognizes the Federal government's government-to-
government relationship with Indian tribes, rather than relating to 
tribal ICWA programs on the basis of their locales.
    Subpart C includes and sequences all sections applicable to the 
noncompetitive tribal government grant application and administrative 
processes as published in the NPRM at proposed Secs. 23.21; 23.22; 
23.23; 23.24; 23.26; 23.27; 23.28; 23.32; 23.33; 23.42; 23.43; 23.45; 
and 23.51, the basic components of which remain intact in subpart C of 
the final rule. Tribal government applications will be processed by the 
appropriate Agency Superintendent or Area Director.
    Likewise, the newly established subpart D delineates the 
competitive grant review and award process exclusively for off-
reservation Indian organization applicants. The grant application 
process in subpart D has been redirected in response to overwhelming 
support for the area offices to continue to conduct the competitive 
reviews of off-reservation ICWA applications and make funding 
decisions. Thus, off-reservation ICWA applications will be reviewed and 
processed in their entirety by the Area Directors, rather than by the 
centralized review committee as previously contemplated.
    Subparts C and D each identify in one subpart all sections 
applicable to each respective applicant.
    All general references to the BIA in the NPRM are corrected 
throughout this document. Specific BIA officials and/or offices are now 
identified.
    Subpart C. The following section-by-section discussion of subpart C 
of the final rule highlights only those changes or additions made in 
response to specific comments/recommendations with respect to the 
implementation of this subpart for tribal government applicants. The 
rearrangement of those grant application contents and procedures, grant 
reporting requirements and other administrative provisions identified 
and published in the NPRM at Secs. 23.21; 23.22; 23.23; 23.24; 23.26; 
23.27; 23.28; 23.32; 23.33; 23.42; 23.43; 23.44; 23.47 and 23.51, and 
which basically remain intact in subpart C of the final rule, will not 
be discussed in detail. Applicable sections cited are consolidated and 
streamlined for purposes of clarity and efficiency.
    Sec. 23.21. Through publication of a Federal Register announcement 
at the outset of the implementation of the noncompetitive ICWA grant 
award process during which tribal applications will be initially 
solicited, the Assistant Secretary will notify eligible tribal 
applicants under subpart C of the amount of ICWA funds available for 
their ICWA program. The funding levels will be based upon the service 
area population to be served. Upon the receipt of this notice from the 
Agency Superintendent or appropriate Area Director, tribal applicants 
shall prepare and submit a complete ICWA application within the 
prescribed timeframe to the Agency Superintendent or Area Director. 
Thereafter, it is intended that core ICWA grant funds will be awarded 
annually to eligible tribal applicants, provided their ICWA programs 
meet the requirements delineated at Sec. 23.23(c).
    One political subunit of a tribal government sought recognition as 
an eligible tribal applicant, separate from the tribe's governing body. 
No change is made because such an exception would permit the receipt 
and award of two ICWA grants for the benefit of one tribe.
    Sec. 23.22. This section provides a nonexclusive list of ICWA 
programs and activities, including tribally designed programs intended 
to promote the intent and purposes of the Act. Use of ICWA funds as 
non-Federal matching shares is consistent with the new policy 
statement. In keeping with the tenets of Indian Self-Determination 
policy and to facilitate increased self-determination among tribes, 
tribal governments are given the flexibility and latitude they sought 
to design, develop, and implement comprehensive Indian child and family 
service programs designed to meet community needs. In order to maximize 
the impact of available resources, it is intended that ICWA grant 
programs funded under subpart C coordinate with and complement similar 
Federal, state, local, and tribal programs.
    Sec. 23.23. For purposes of clarification in this section and 
elsewhere within the regulations, reference is made to the Secretary or 
his/her designee to indicate that the Secretary delegates his/her 
decision-making authority to other Federal officials.
    For the reasons given, references to the following subject matter 
are deleted: (1) The verification process for the applicant's service 
area population because this determination will not occur annually, but 
only during the initial funding phase; (2) all references to preventive 
and reunification services, because the current emphasis is on 
comprehensiveness, which includes prevention and reunification 
services; (3) references to specific employee qualifications/staffing 
requirements, plans for regular access to professional services, and 
the provision of specialized child welfare services, because it is 
expected that applicant staffing plans will address these concerns; and 
(4) the discussion on contract support costs and indirect cost rates, 
because relevant material on the subject matter is found at 25 CFR part 
276, Appendix A.
    In order to ensure that grantees comply with title IV of Pub. L. 
101-630 with respect to the conduct of character and background 
investigations of personnel identified in the statute, grantees are 
expected to initiate efforts to conduct the investigations prior to the 
actual employment of such personnel and to complete the investigations 
in a timely fashion.
    The subsections on application contents are restated to define more 
clearly the intended comprehensive developmental approach sought and to 
better delineate the application requirements. Applicable citations or 
explanatory language are provided throughout subpart C where references 
are made to existing Federal requirements.
    Subpart D. The following section-by-section discussion of subpart D 
of the final rule highlights only those changes or additions made in 
response to specific comments/recommendations with respect to the 
implementation of this subpart for off-reservation Indian organization 
applicants.
    Similar to the discussion on subpart C, the rearrangement of all 
sections applicable to competitive grant application contents and 
procedures, grant reporting requirements and other administrative 
provisions published in the NPRM at Secs. 23.21; 23.22; 23.23; 23.25; 
23.26; 23.27; 23.28; 23.29; 23.30; 23.42; 23.43; and 23.47, and which 
basically remain intact in subpart D of the final rule, will not be 
discussed in detail. Applicable sections cited are consolidated and 
streamlined for purposes of clarity and efficiency.
    This subpart is refocused from a centralized review system to a 
competitive review of applications by area review committees, under the 
direction of the Area Directors. Thus, all references to the Assistant 
Secretary and the proposed centralized review system are deleted and 
replaced with the area review system.
    Sec. 23.31. As previously discussed and in accordance with the 
recommendations received from affected applicants, applications under 
Subpart D will be solicited in response to periodic Federal Register 
announcements and processed in their entirety by the appropriate Area 
Director designated at Sec. 23.11 of this part. This designation 
clearly identifies for prospective applicants under this subpart which 
Area Director processes their applications. Heretofore, this 
information was lacking and caused some confusion among applicants as 
to where to submit their ICWA grant applications.
    Sec. 23.32. Similar to Sec. 23.22, this section provides language 
which comports with the Act and the same nonexclusive list of ICWA 
programs and activities as those identified in the statute at 25 U.S.C. 
1932.
    Sec. 23.33. All mandatory application requirements cited herein 
were previously identified in the NPRM. However, the timeframe allowing 
for the Area Director's certification and subsequent transmittal of an 
application to the area review committee is changed from 15 working 
days to 5 working days because it is anticipated that fewer 
applications will be received under this subpart. The five-day 
timeframe, not to be confused with the timeframe for the actual review 
and scoring of the application, is deemed sufficient for purposes of 
certification of the application contents only.
    As in Sec. 23.23, the subsections on application contents are 
restated to define better the intended comprehensive developmental 
approach sought and to delineate better the application requirements. 
Applicable citations or explanatory language are provided throughout 
Subpart D where references are made to existing Federal requirements.
    For the reasons given, references to the following subject matters 
are deleted: (1) The requirement for evidence of tribal support via a 
tribal resolution if more than one-half of the applicant's service area 
population are members of one tribe. This is deleted because commenters 
stated this was an unrealistic expectation and there are other means 
available to determine an applicant's service area population; (2) all 
references to preventive and reunification services as the current 
emphasis is on comprehensiveness which includes prevention and 
reunification services; (3) references to specific employee 
qualifications/staffing requirements, plans for regular access to 
professional services, and the provision of specialized child welfare 
services as it is expected that applicant staffing plans will address 
these concerns; and (4) the discussion on contract support costs and 
indirect cost rates is deleted because relevant material on the subject 
matter is found at 25 CFR part 276, Appendix A.
    In order to ensure that grantees comply with Title IV of Pub. L. 
101-630 with respect to the conduct of character and background 
investigations of personnel identified in that statute, grantees are 
expected to conduct and complete the investigations prior to the actual 
employment of such personnel.
    Applicable citations or explanatory language are provided 
throughout Subpart D where references are made to existing Federal 
requirements. Additionally, personnel/offices responsible for 
implementing specific actions/activities are identified.
    Sec. 23.34. In accordance with recommendations received from 
commenters as discussed earlier, the entire section on the review of, 
and decisions regarding, off-reservation applications is changed from a 
centralized review system to area reviews. The personnel and offices 
identified to carry out the responsibilities as outlined are consistent 
with area office organizational structures. The competitive review and 
decision-making processes remain the same, except that the entire 
process will occur at the area office level.
    In response to commenters and to ensure that applications are 
reviewed by experienced, knowledgeable reviewers, each area review 
committee is chaired by a person qualified by training and experience 
in the delivery of Indian child and family service programs.
    All funding decisions are made by Area Directors and subject to 
appeal procedures under Sec. 23.62.
    Sec. 23.35. For purposes of timeliness, the timeframe for Central 
Office action is changed from 60 days to 30 days because fewer 
competitive applications than in the past are expected to be processed. 
This would require less time to distribute available funds to the area 
offices.
    Subpart E. All applicable general and uniform grant administrative 
provisions and requirements are identified herein. New language 
reflects considerations given to circumstances where changes might 
occur in the future with respect to applicable Federal statute, 
regulations, or OMB circulars.
    Sec. 23.42. Timeframe requirements for requesting technical 
assistance, as well as responses to technical assistance, are deleted. 
It is expected that tribes needing technical assistance will request 
such assistance to comply with the timeframe for the submission of 
tribal government applications as delineated in Sec. 23.21 (b), and 
that appropriate BIA personnel will honor in a timely manner such 
tribal requests. The timeframe for the receipt of requests from off-
reservation applicants for technical assistance is changed to no later 
than 10 days prior to the close of the application deadline. This is 
consistent with past experience and, thus, is considered a reasonable 
timeframe.
    In response to commenters, a new section is added on the provision 
of technical assistance in the event a program receives an 
unsatisfactory program evaluation.
    Sec. 23.43. Consistent with previous changes, authorities for the 
approval and execution of grants is changed from the Assistant 
Secretary--Indian Affairs to Area Directors for grants awarded under 
Subpart D. Likewise, a similar change is made for grants awarded under 
Subpart C from Area Directors to Agency Superintendents, where 
applicable. The separation of authorities under this section and those 
identified in Sec. 23.44 are consistent with current BIA practice.
    Sec. 23.44. This section is refocused to grantee responsibility for 
achieving programmatic goals, providing assurance that the quality and 
quantity of actual program performance conforms to the requirements of 
the grant award document and compliance with applicable Federal 
requirements. Consistent with current policy and practice, grant 
program and fiscal monitoring responsibilities are assigned or 
designated by the Area Directors.
    Sec. 23.45. Commenters expressed concerns that grants awarded 
competitively under Subpart D should be scored and awarded on the basis 
of the final form of the grant application received at the close of the 
application period. Applicants should identify all subgrants within 
their application; thus, the provision for subgrants under Subpart D 
was considered unnecessary.
    The BIA agrees. Therefore, subgranting procedures will apply only 
to grants awarded under Subpart C of this part.
    Sec. 23.46 (h). This subsection, formerly identified in the NPRM at 
Sec. 23.48 (Penalties), is moved to Sec. 23.46 (h) for purposes of 
applicability under this section and an appropriate citation is 
provided for said penalties.
    Sec. 23.47. Specific timeframe requirements for the receipt of 
required reports and other information are changed to reflect reporting 
due dates specified in grant award documents. This is a more reasonable 
approach than the timeframes imposed in the NPRM.
    Sec. 23.47 (c)(1)(iv). This statistical reporting requirement, 
mandated by Pub. L. 99-570 since enactment in 1986, is being included 
in regulation. To date, the BIA has not had the opportunity to include 
this reporting requirement in any regulation.
    Sec. 23.47 (c)(2). Language change in this section reflects that 
the BIA may negotiate for the provision of other grant-related reports 
not previously identified, replacing the NPRM language which stated 
that reports would be submitted in response to requests from OMB or the 
Congress.
    Sec. 23.47 deletions. Commenters regarded the following 
requirements as unnecessary: (1) Calculating program unit costs; (2) 
quantification of program outputs; and (3) specific recordkeeping 
requirements for the maintenance of client case records. The BIA agreed 
that numbers 1 and 2 were unnecessary and deleted them. However, the 
specificity for client case record content is removed and is now 
covered under the general recordkeeping requirements as Secs. 23.23 and 
23.33.
    Sec. 23.50. Due to concerns expressed with respect to serving all 
members of an Indian family unit, regardless of tribal membership/
affiliation, this section is revised so that tribes may, under Subpart 
C, extend ICWA services to non-Indian family members related by 
marriage to tribal members; provided that such services comport with 
the intent and purposes of the ICWA.
    NPRM references to service eligibility for on- and near-reservation 
Indian child and family service programs are deleted and replaced with 
tribal government ICWA programs, consistent with the terminology used 
for tribal ICWA programs.
    Sec. 23.51. The section on Revisions or Amendments of grants 
formerly identified at Sec. 23.51 in the NPRM is moved to Sec. 23.21 
(c) and is applicable to grants awarded under Subpart C. Commenters 
expressed concerns that grants awarded competitively under Subpart D 
should be scored, awarded, and operated on the basis of the final form 
of the grant application contents received at the close of the 
application period. Commenters expressed their belief that applications 
which are awarded competitively would not ordinarily have a need for 
grant revisions or modifications of a material nature once awarded. The 
BIA agrees and thus these provisions will apply only to grants awarded 
under Subpart C of this part.
    Secs. 23.52 and 23.53. These two sections identify by title the BIA 
officials responsible for taking the specific actions delineated in 
these two sections. This change replaces the generic term ``BIA'' as 
used in the NPRM.
    Subpart F--Appeals. In response to comments received, the words 
``Hearings and'' are removed from the title in Subpart F because no 
provisions for the conduct of hearings are included in this subpart. 
Consistent with the changes made with respect to the BIA line officials 
making decisions on all aspects of the ICWA grant award process, their 
decisions are subject to appeal under this subpart. The titles of these 
decision makers are included in Secs. 23.61 and 23.62. Specific appeal 
citations provided by the IBIA with respect to decisions appealable to 
the IBIA are incorporated at Secs. 23.61 and 23.62. These citations 
replace the generic references made in the NPRM to ``subpart 2 of this 
chapter.''
    Subpart H--Assistance to State Courts. For purposes of 
clarification in this subpart, new language refers to the Secretary or 
his/her designee to indicate that the Secretary delegates his/her 
decision-making authority to other Federal officials. An additional 
change in this subpart clarifies that the BIA is not obligated to pay 
for the services identified in this subpart.

Comments Not Adopted.

    Comment. Some commenters recommended that the definitions of 
Indian, Indian child, and Indian tribe be changed and/or expanded, such 
as the inclusion of Alaska Native corporations incorporated under state 
law under the definition of Indian tribe.
    Response. These three definitions are taken verbatim from Pub. L. 
95-608, the Indian Child Welfare Act. The BIA has no authority to 
change these statutory definitions.
    Comment. One commenter recommended that revised regulations require 
ICWA notices be sent to tribes via registered mail. Additionally, one 
commenter suggested that the time limitation imposed on tribes to 
prepare for involuntary child custody proceedings in state courts be 
extended to 30 days to allow additional time to prepare for court 
proceedings.
    Response. No change is made in the manner in which ICWA notices are 
served due to considerations given for proof of delivery of said 
notices in a timely manner. Registered mail is delivered only to the 
addressee. This means ICWA notices may not be delivered should the 
addressee not be present at the time of mail delivery. Unclaimed 
registered mail is held by the mail service for a limited number of 
days and then returned to the sender. On the other hand, mail delivered 
via certified mail with return receipt requested may be delivered to 
the office in the address rather than only to a specific person. 
Because the intent of providing ICWA notices is timely tribal 
notification of child custody proceedings and proof that such notice 
was given, certified mail with return receipt requested is the 
preferred method of serving ICWA notices to assure its timely delivery.
    The timeframes specified for all parties/agents involved in the 
service of ICWA notices pursuant to 25 U.S.C. 1912 are imposed by 
statute and therefore not subject to change.
    Comment. A commenter recommended that state courts be required to 
notify tribes of voluntary child custody proceedings under Sec. 23.11.
    Response. This recommendation is not incorporated because the ICWA 
addresses only mandatory tribal notification in cases involving 
involuntary child custody proceedings.
    Comment. Some commenters requested clarification of the ``juvenile 
delinquency'' as it is used in Sec. 23.13. No change is made.
    Response. The manner in which the above term is used is in the 
context of applying and following state-established procedures and 
criteria in calculating legal payment fees/rates for court-appointed 
legal counsel in accordance with Sec. 23.13. Each state has set 
criteria, procedures, and rates applicable to the calculation of legal 
fees associated with the conduct of state juvenile delinquency 
proceedings. In the absence of similar state-established criteria, 
procedures, and rates to assist in determining attorney fees and 
expenses associated with involuntary child custody proceedings, the 
language at Sec. 23.13 (d) is intended to lend guidance to state courts 
in determining/calculating attorney fees and legal expenses for court-
appointed legal counsel in accordance with Sec. 23.13 by following the 
same state-established procedures and criteria for calculating legal 
payment fees/rates for state juvenile delinquency proceedings. This 
section does not imply that juvenile delinquency proceedings are 
covered under the ICWA.
    Comments. One commenter recommended that failure of the Area 
Director to comply with the established timeframes specified at 
Secs. 23.13 (c) and 23.13 (f) be grounds for automatic approval of 
attorney fees and expenses pursuant to Sec. 23.13. A commenter 
suggested that the provision for payment of attorney fees and expenses 
be extended to attorneys representing Indian tribes in state courts.
    Response. No change is made because automatic approval would 
neither guarantee nor assure that applicants under Sec. 23.13 would be 
eligible for attorney fees or expenses as delineated in that section. 
No change is made with respect to payment of attorney fees for legal 
counsel representing tribes in state courts, because the ICWA addresses 
only the need for court-appointed legal counsel to represent an 
indigent Indian parent or Indian custodian, but does not address 
similar representation for tribes.
    Comment. Commenters recommended that the term ``multi-year'' be 
defined in terms of years.
    Response. This suggestion is not adopted because the BIA desires to 
allow flexibility within the meaning of multi-year, whether it be in 
terms of two, three, or five years. As the BIA and tribes gain 
experience in the ICWA noncompetitive grant award system, both parties 
may eventually desire long-term grant awards to tribes.
    Comment. A commenter recommended that off-reservation ICWA programs 
be allowed to serve those individuals who meet the definition of Indian 
as defined in the Indian Health Care Improvement Act of 1976.
    Response. For purposes of service eligibility for off-reservation 
ICWA grant programs, the definition of Indian already includes persons 
defined in section (4)(c) of the Act cited above. (25 U.S.C. 1603 and 
1934).
    Comment. One commenter recommended that off-reservation Indian 
organization applicants under Subpart D be allowed to use ICWA funds as 
non-Federal matching shares for other Federal programs in the same 
manner that Indian tribes are.
    Response. The above recommendation is not incorporated because the 
statutory provision for this flexibility is limited to Indian tribes 
(25 U.S.C. 1931) and does not extend to off-reservation Indian 
organizations. This is because, absent any support from and/or sanction 
by tribal governments, these organizations, in and of themselves, do 
not qualify under current regulations as eligible applicants in their 
own right to apply for funds or administer such Federal programs as 
those under Title IV-B, IV-E, or XX of the Social Security Act.
    Comment. Several off-reservation Indian organizations who have 
successfully operated ICWA programs since the inception of the grant 
program recommended that similarly situated grantees receive some type 
of recognition during the grant application scoring process for 
demonstrating a history of successful program performance.
    Response. Although specific procedural scoring issues relative to 
competitive grant applications are generally not covered by regulation, 
the BIA implemented the above recommendation by way of awarding bonus 
points to off-reservation applicants for past successful program 
performance during the FY 1993 grant cycle. It is anticipated that 
bonus points will continue to be used in the future.
    Comment. Some off-reservation Indian organizations recommended that 
national ICWA program priorities be established to give more specific 
guidance to applicants.
    Response. No change is made with respect to the establishment of 
national ICWA program priorities. It is the position of the BIA that 
program priorities should be locally determined on the basis of 
identified needs and gaps in services.
    Comment. Some commenters recommended that tribes involved in the 
subgranting of certain administrative procedures to Indian 
organizations be held harmless with respect to grantee accountability 
over ICWA grant activity and funds.
    Response. No change is made because the subgranting procedures at 
Sec. 23.45 are consistent with existing BIA regulations on subgrants 
whereby the grantee retains administrative and financial responsibility 
over the ICWA grant activity and funds.
    Comment. Comments were received with respect to the applicability 
of these regulations to tribes with Self-governance compacts.
    Response. To the extent that Self-governance compact tribes do not 
request and secure approval for waivers to specific regulations, all 
regulatory provisions are applicable to Self-governance tribes. 
Similarly, all regulations are applicable to tribes operating 
Consolidated Tribal Government Programs.
    Comment. One law firm and one Indian organization expressed their 
views that the BIA failed to engage in ``meaningful'' consultation.
    Response. As discussed in the preamble, the BIA has repeatedly 
provided various forums and opportunities for tribal participation 
throughout the entire regulatory revision process during 1990-1992. The 
BIA feels it conducted ``meaningful'' consultation with tribes and 
other interested parties.
    The information collection requirements contained in Part 23.13 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance number [insert new number]. 
This information is being collected and will be used to determine 
eligibility for payment of legal fees for indigent Indian parents and 
Indian custodians, involved in involuntary Indian child custody 
proceedings in state courts, who are not eligible for legal services 
through other mechanisms. Response to this request is required to 
obtain a benefit.
    Public reporting for this information collection is estimated to 
average 10 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimates or any aspect of this information collection should be 
mailed or hand-delivered to the Bureau of Indian Affairs, Information 
Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., 
Washington, DC 20240; and the Office of Information and Regulatory 
Affairs [Paperwork Reduction Project--insert new clearance number], 
Office of Management and Budget, Washington, DC 20503.
    The information collection requirements contained in 25 CFR parts 
23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the Office 
of Management and Budget under 44 U.S.C. 3501 et seq., and assigned 
clearance number 1076-0131. The information collection requirements 
under 25 CFR parts 23.21 and 23.31 are collected in the form of ICWA 
grant applications from Indian tribes and off-reservation Indian 
organizations. A response to this request is required to obtain grant 
funds. The information collection requirements under 25 CFR part 23.46 
are collected in compliance with applicable OMB circulars on financial 
management, internal and external controls and other fiscal assurances. 
The grantee information collection requirements under 25 CFR part 23.47 
are collected in the form of quarterly and annual program performance 
narrative reports and statistical data as required by the grant award 
document. Pursuant to 25 U.S.C. 1951, the information collection 
requirement under 25 CFR part 23.71 is collected from state courts 
entering final adoption decrees for any Indian child and is provided to 
and maintained by the Secretary.
    Public reporting for the information collection at 25 CFR parts 
23.21 and 23.31 is estimated to average 32 hours per response, 
including the time for reviewing the grant application instructions, 
gathering the necessary information and data, and completing the grant 
application. Public reporting for the information collection at 25 CFR 
parts 23.46 and 23.47 is estimated to average a combined total of 16 
annual hours per grantee, including the time for gathering the 
necessary information and data, and completing the required forms and 
reports. Public reporting for the information collection at 25 CFR part 
23.71 is estimated to average 4 hours per response, including the time 
for obtaining and preparing the final adoption decree for transmittal 
to the Secretary. Direct comments regarding any of these burden 
estimates or any aspect of this information collection should be mailed 
or hand-delivered to the Bureau of Indian Affairs, Information 
Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., 
Washington, DC 20240; and the Office of Information and Regulatory 
Affairs [Paperwork Reduction Project 1076-0131], Office of Management 
and Budget, Washington, DC 20503.
    This rulemaking action revising 25 CFR part 23 will be limited in 
applicability to federally recognized Indian tribes and off-reservation 
Indian organizations applying for grant programs. BIA personnel will 
receive and process grant applications and monitor the grants once 
awarded. Indian tribes and off-reservation Indian organizations will 
administer and manage the day-to-day operations of the grant 
activities. Individual Indians and Indian families will be the 
recipients of services under these grant programs. Given the low levels 
of funding which are expected to be available for small tribes, this 
rule will not impose a significant economic effect on a substantial 
number of small entities.
    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.) because of the limited applicability as stated above.
    This regulation has been reviewed under Executive Order 12866.
    The Department of the Interior has determined that this rule is not 
a Federal action significantly affecting the quality of the human 
environment and that no detailed statement is required pursuant to the 
National Environment Policy Act of 1969.
    In accordance with Executive Order 12630, the Department of the 
Interior has determined that this rule does not have significant 
takings implications.
    The Department of the Interior has determined that this rule does 
not have significant federalism effects.
    The Department of the Interior has certified to the Office of 
Management and Budget that these final regulations meet the applicable 
standards provided in Sections 2(a) and 2(b)(2) of Executive Order 
12778.
    The primary author of this document is Betty B. Tippeconnie, Chief, 
Branch of Child and Family Services, Division of Social Services, 
Office of Tribal Services, Bureau of Indian Affairs, 1849 C Street, 
NW., Mail Stop 310-SIB, Washington, DC 20240.

List of Subjects in 25 CFR Part 23

    Administrative practices and procedures, Child custody proceedings, 
Child Welfare, Grant programs--Indians, Grant programs--child and 
family service, Grant appeals, Indians, Reporting and recordkeeping 
requirements.
    For the reasons set out in the preamble, part 23 of title 25, 
chapter I, of the Code of Federal Regulations is revised as set forth 
below.

PART 23--INDIAN CHILD WELFARE ACT

Subpart A--Purpose, Definitions, Policy

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

Subpart B--Notice of Involuntary Child Custody Proceedings and Payment 
for Appointed Counsel in State Courts

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

Subpart C--Grants to Indian Tribes for Title II Indian Child and Family 
Service Programs

Sec. 23.21  Noncompetitive tribal government grants.
Sec. 23.22  Purpose of tribal government grants.
Sec. 23.23  Tribal government application contents.
Subpart D--Grants to Off-reservation Indian Organizations for Title II 
Indian Child and Family Service Programs
Sec. 23.31  Competitive off-reservation grant process.
Sec. 23.32  Purpose of off-reservation grants.
Sec. 23.33  Competitive off-reservation application contents and 
application selection criteria.
Sec. 23.34  Review and decision on off-reservation applications by 
Area Director.
Sec. 23.35  Deadline for Central Office action.
Subpart E--General and Uniform Grant Administration Provisions and 
Requirements
Sec. 23.41  Uniform grant administration provisions, requirements 
and applicability.
Sec. 23.42  Technical assistance.
Sec. 23.43  Authority for grant approval and execution.
Sec. 23.44  Grant administration and monitoring.
Sec. 23.45  Subgrants.
Sec. 23.46  Financial management, internal and external controls and 
other assurances.
Sec. 23.47  Reports and availability of information to Indians.
Sec. 23.48  Matching shares and agreements.
Sec. 23.49  Fair and uniform provision of services.
Sec. 23.50  Service eligibility.
Sec. 23.51  Grant carry-over authority.
Sec. 23.52  Grant suspension.
Sec. 23.53  Cancellation.

Subpart F--Appeals

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

Subpart G--Administrative Provisions

Sec. 23.71  Recordkeeping and information availability.

Subpart H--Assistance to State Courts

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

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

Subpart A--Purpose, Definitions, and Policy


Sec. 23.1  Purpose.

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


Sec. 23.2  Definitions.

    Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92 
Stat. 3069, 25 U.S.C. 1901 et seq.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
the Department of the Interior.
    Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, 
the Department of the Interior.
    Child Custody Proceeding includes:
    (1) Foster care placement, which shall mean any action removing an 
Indian child from his or her parent or Indian custodian for temporary 
placement in a foster home or institution or the home of a guardian or 
conservator where the parent or Indian custodian cannot have the child 
returned upon demand, but where parental rights have not been 
terminated;
    (2) Termination of parental rights, which shall mean any action 
resulting in the termination of the parent-child relationship;
    (3) Preadoptive placement, which shall mean the temporary placement 
of an Indian child in a foster home or institution after the 
termination of parental rights, but prior to or in lieu of adoptive 
placement;
    (4) Adoptive placement, which shall mean the permanent placement of 
an Indian child for adoption, including any action resulting in a final 
decree of adoption; and
    (5) Other tribal placements made in accordance with the placement 
preferences of the Act, including the temporary or permanent placement 
of an Indian child in accordance with tribal children's codes and local 
tribal custom or tradition;
    (6) The above terms shall not include a placement based upon an act 
which, if committed by an adult, would be deemed a crime in the 
jurisdiction where the act occurred or upon an award, in a divorce 
proceeding, of custody to one of the parents.
    Consortium means an association or partnership of two or more 
eligible applicants who enter into an agreement to administer a grant 
program and to provide services under the grant to Indian residents in 
a specific geographical area when it is administratively feasible to 
provide an adequate level of services within the area.
    Extended family member shall be as defined by the law or custom of 
the Indian child's tribe or, in the absence of such law or custom, 
shall be a person who has reached the age of 18 and who is the Indian 
child's grandparent, aunt or uncle, brother or sister, brother-in-law 
or sister-in-law, niece or nephew, first or second cousin, or 
stepparent.
    Grant means a written agreement between the BIA and the governing 
body of an Indian tribe or Indian organization wherein the BIA provides 
funds to the grantee to plan, conduct or administer specific programs, 
services, or activities and where the administrative and programmatic 
provisions are specifically delineated.
    Grantee means the tribal governing body of an Indian tribe or Board 
of Directors of an Indian organization responsible for grant 
administration.
    Grants Officer means an officially designated officer who 
administers ICWA grants awarded by the Bureau of Indian Affairs, the 
Department of the Interior.
    Indian means any person who is a member of an Indian tribe, or who 
is an Alaska Native and a member of a Regional Corporation as defined 
in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 
1606.
    Indian child means any unmarried person who is under age 18 and is 
either a member of an Indian tribe, or is eligible for membership in an 
Indian tribe and is the biological child of a member of an Indian 
tribe.
    Indian child's tribe means the Indian tribe in which an Indian 
child is a member or is eligible for membership or, in the case of an 
Indian child who is a member of or is eligible for membership in more 
than one tribe, the Indian tribe with which the Indian child has the 
more significant contacts, to be determined in accordance with the 
BIA's ``Guidelines for State Courts--Indian Child Custody 
Proceedings.''
    Indian custodian means any Indian person who has legal custody of 
an Indian child under tribal law or custom or under state law or to 
whom temporary physical care, custody and control has been transferred 
by the parent of such child.
    Indian organization, solely for purposes of eligibility for grants 
under subpart D of this part, means any legally established group, 
association, partnership, corporation, or other legal entity which is 
owned or controlled by Indians, or a majority (51 percent or more) of 
whose members are Indians.
    Indian preference means preference and opportunities for employment 
and training provided to Indians in the administration of grants in 
accordance with section 7 (b) of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians federally recognized as 
eligible for the services provided to Indians by the Secretary because 
of their status as Indians, including any Alaska Native village as 
defined in section 3 (c) of the Alaska Native Claims Settlement Act, 43 
U.S.C. 1602 (c).
    Off-reservation ICWA program means an ICWA program administered in 
accordance with 25 U.S.C. 1932 by an off-reservation Indian 
organization.
    Parent means the biological parent or parents of an Indian child or 
any Indian person who has lawfully adopted an Indian child, including 
adoptions under tribal law or custom. The term does not include the 
unwed father where paternity has not been acknowledged or established.
    Reservation means Indian country as defined in 18 U.S.C. 1151 and 
any lands not covered under such section, title to which is either held 
by the United States in trust for the benefit of any Indian tribe or 
individual or held by any Indian tribe or individual subject to a 
restriction by the United States against alienation.
    Secretary means the Secretary of the Interior.
    Service areas solely for newly recognized or restored Indian tribes 
without established reservations means those service areas 
congressionally established by Federal law to be the equivalent of a 
reservation for the purpose of determining the eligibility of a newly 
recognized or restored Indian tribe and its members for all Federal 
services and benefits.
    State court means any agent or agency of a state, including the 
District of Columbia or any territory or possession of the United 
States, or any political subdivision empowered by law to terminate 
parental rights or to make foster care placements, preadoptive 
placements, or adoptive placements.
    Subgrant means a secondary grant that undertakes part of the 
obligations of the primary grant, and assumes the legal and financial 
responsibility for the funds awarded and for the performance of the 
grant-supported activity.
    Technical assistance means the provision of oral, written, or other 
relevant information and assistance to prospective grant applicants in 
the development of their grant proposals. Technical assistance may 
include a preliminary review of an application to assist the applicant 
in identifying the strengths and weaknesses of the proposal, ongoing 
program planning, design and evaluation, and such other program-
specific assistance as is necessary for ongoing grant administration 
and management.
    Title II means Title II of Public Law 95-608, the Indian Child 
Welfare Act of 1978, which authorizes the Secretary to make grants to 
Indian tribes and off-reservation Indian organizations for the 
establishment and operation of Indian child and family service 
programs.
    Tribal Court means a court with jurisdiction over child custody 
proceedings and which is either a Court of Indian Offenses, a court 
established and operated under the code or custom of an Indian tribe, 
or any other administrative body of a tribe which is vested with 
authority over child custody proceedings.
    Tribal government means the federally recognized governing body of 
an Indian tribe.
    Value means face, par, or market value, or cost price, either 
wholesale or retail, whichever is greater.


Sec. 23.3  Policy.

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


Sec. 23.4  Information collection.

    (a) The information collection requirements contained in Sec. 23.13 
of this part have been approved by the Office of Management and Budget 
(OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1076-
0111.
    (1) This information will be used to determine eligibility for 
payment of legal fees for indigent Indian parents and Indian 
custodians, involved in involuntary Indian child custody proceedings in 
state courts, who are not eligible for legal services through other 
mechanisms. Response to this request is required to obtain a benefit.
    (2) Public reporting for this information collection is estimated 
to average 10 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any aspect of this information collection should be 
mailed or hand-delivered to the Bureau of Indian Affairs, Information 
Collection Clearance Officer, Room 336-SIB, 1849 C street, NW., 
Washington, DC 20240; and the Office of Information and Regulatory 
Affairs Paperwork Reduction Project--1076-0111, Office of Management 
and Budget, Washington, DC 20503.
    (b) The information collection requirements contained in 
Secs. 23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1076-0131. The information collection 
requirements under Secs. 23.21 and 23.31 are collected in the form of 
ICWA grant applications from Indian tribes and off-reservation Indian 
organizations. A response to this request is required to obtain grant 
funds. The information collection requirements under 23.46 are 
collected in compliance with applicable OMB circulars on financial 
management, internal and external controls and other fiscal assurances 
in accordance with existing Federal grant administration and reporting 
requirements. The grantee information collection requirements under 
Sec. 23.47 are collected in the form of quarterly and annual program 
performance narrative reports and statistical data as required by the 
grant award document. Pursuant to 25 U.S.C. 1951, the information 
collection requirement under Sec. 23.71 is collected from state courts 
entering final adoption decrees for any Indian child and is provided to 
and maintained by the Secretary.
    (1) Public reporting for the information collection at Secs. 23.21 
and 23.31 is estimated to average 32 hours per response, including the 
time for reviewing the grant application instructions, gathering the 
necessary information and data, and completing the grant application. 
Public reporting for the information collection at Secs. 23.46 and 
23.47 is estimated to average a combined total of 16 annual hours per 
grantee, including the time for gathering the necessary information and 
data, and completing the required forms and reports. Public reporting 
for the information collection at Sec. 23.71 is estimated to average 4 
hours per response, including the time for obtaining and preparing the 
final adoption decree for transmittal to the Secretary.
    (2) Direct comments regarding any of these burden estimates or any 
aspect of these information collection requirements should be mailed or 
hand-delivered to the Bureau of Indian Affairs, Information Collection 
Clearance Officer, room 336-SIB, 1849 C Street, NW., Washington, DC, 
20240; and the Office of Information and Regulatory Affairs Paperwork 
Reduction Project--1076-0131, Office of Management and Budget, 
Washington, DC 20503.

Subpart B--Notice of Involuntary Child Custody Proceedings and 
Payment for Appointed Counsel in State Courts


Sec. 23.11  Notice.

    (a) In any involuntary proceeding in a state court where the court 
knows or has reason to know that an Indian child is involved, and where 
the identity and location of the child's Indian parents or custodians 
or tribe is known, the party seeking the foster care placement of, or 
termination of parental rights to, an Indian child shall directly 
notify the Indian parents, Indian custodians, and the child's tribe by 
certified mail with return receipt requested, of the pending 
proceedings and of their right of intervention. Notice shall include 
requisite information identified at paragraphs (d)(1) through (4) and 
(e)(1) through (6) of this section, consistent with the confidentiality 
requirement in paragraph (e)(7) of this section. Copies of these 
notices shall be sent to the Secretary and the appropriate Area 
Director listed in paragraphs (c)(1) through (12) of this section.
    (b) If the identity or location of the Indian parents, Indian 
custodians or the child's tribe cannot be determined, notice of the 
pendency of any involuntary child custody proceeding involving an 
Indian child in a state court shall be sent by certified mail with 
return receipt requested to the appropriate Area Director listed in 
paragraphs (c)(1) through (12) of this section. In order to establish 
tribal identity, it is necessary to provide as much information as is 
known on the Indian child's direct lineal ancestors including, but not 
limited to, the information delineated at paragraph (d)(1) through (4) 
of this section.
    (c)(1) For proceedings in Alabama, Connecticut, Delaware, District 
of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, 
Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North 
Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, 
Vermont, Virginia, West Virginia or any territory or possession of the 
United States, notices shall be sent to the following address: Eastern 
Area Director, Bureau of Indian Affairs, 3701 N. Fairfax Drive, Suite 
260, Arlington, Virginia 22201.
    (2) For proceedings in Illinois, Indiana, Iowa, Michigan, 
Minnesota, Ohio, or Wisconsin, notices shall be sent to the following 
address: Minneapolis Area Director, Bureau of Indian Affairs, 331 
Second Avenue South, Minneapolis, Minnesota 55401-2241.
    (3) For proceedings in Nebraska, North Dakota, or South Dakota, 
notices shall be sent to the following address: Aberdeen Area Director, 
Bureau of Indian Affairs, 115 Fourth Avenue, SE, Aberdeen, South Dakota 
57401.
    (4) For proceedings in Kansas, Texas (except for notices to the 
Ysleta del Sur Pueblo of El Paso County, Texas), and the western 
Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo, Canadian, 
Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, 
Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, 
Logan, Major, Noble, Oklahoma, Pawnee, Payne, Pottawatomie, Roger 
Mills, Texas, Tillman, Washita, Woods and Woodward, notices shall be 
sent to the following address: Anadarko Area Director, Bureau of Indian 
Affairs, P.O. Box 368, Anadarko, Oklahoma 73005. Notices to the Ysleta 
del Sur Pueblo of El Paso County, Texas shall be sent to the 
Albuquerque Area Director at the address listed in paragraph (c)(6) of 
this section.
    (5) For proceedings in Wyoming or Montana (except for notices to 
the Confederated Salish & Kootenai Tribes of the Flathead Reservation, 
Montana), notices shall be sent to the following address: Billings Area 
Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings, 
Montana 59101. Notices to the Confederated Salish & Kootenai Tribes of 
the Flathead Reservation, Montana, shall be sent to the Portland Area 
Director at the address listed in paragraph (c)(11) of this section.
    (6) For proceedings in the Texas counties of El Paso and Hudspeth 
and proceedings in Colorado or New Mexico (exclusive of notices to the 
Navajo Tribe from the New Mexico counties listed in paragraph (c)(9) of 
this section), notices shall be sent to the following address: 
Albuquerque Area Director, Bureau of Indian Affairs, 615 First Street, 
P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the Navajo 
Tribe shall be sent to the Navajo Area Director at the address listed 
in paragraph (c)(9) of this section.
    (7) For proceedings in Alaska (except for notices to the Metlakatla 
Indian Community, Alaska), notices shall be sent to the following 
address: Juneau Area Director, Bureau of Indian Affairs, 709 West 9th 
Street, Juneau, Alaska 99802-1219. Notices to the Metlakatla Indian 
Community of the Annette Islands Reserve, Alaska, shall be sent to the 
Portland Area Director at the address listed in paragraph (c)(11) of 
this section.
    (8) For proceedings in Arkansas, Missouri, and the eastern Oklahoma 
counties of Adair, Atoka, Bryan, Carter, Cherokee, Craig, Creek, 
Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes, Jefferson, 
Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, McIntosh, 
Murray, Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg, 
Pontotoc, Pushmataha, Marshall, Rogers, Seminole, Sequoyah, Wagoner, 
Washington, Stephens, and Tulsa, notices shall be sent to the following 
address: Muskogee Area Director, Bureau of Indian Affairs, 101 North 
Fifth Street, Muskogee, Oklahoma 74401.
    (9) For proceedings in the Arizona counties of Apache, Coconino 
(except for notices to the Hopi and San Juan Paiute Tribes) and Navajo 
(except for notices to the Hopi Tribe); the New Mexico counties of 
McKinley (except for notices to the Zuni Tribe), San Juan, and Socorro; 
and the Utah county of San Juan, notices shall be sent to the following 
address: Navajo Area Director, Bureau of Indian Affairs, P.O. Box 1060, 
Gallup, New Mexico 87301. Notices to the Hopi and San Juan Paiute 
Tribes shall be sent to the Phoenix Area Director at the address listed 
in paragraph (c)(10) of this section. Notices to the Zuni Tribe shall 
be sent to the Albuquerque Area Director at the address listed in 
paragraph (c)(6) of this section.
    (10) For proceedings in Arizona (exclusive of notices to the Navajo 
Tribe from those counties listed in paragraph (c)(9) of this section), 
Nevada or Utah (exclusive of San Juan county), notices shall be sent to 
the following address: Phoenix Area Director, Bureau of Indian Affairs, 
1 North First Street, P.O. Box 10, Phoenix, Arizona 85001.
    (11) For proceedings in Idaho, Oregon or Washington, notices shall 
be sent to the following address: Portland Area Director, Bureau of 
Indian Affairs, 911 NE 11th Avenue, Portland, Oregon 97232. All notices 
to the Confederated Salish & Kootenai Tribes of the Flathead 
Reservation, located in the Montana counties of Flathead, Lake, 
Missoula, and Sanders, shall also be sent to the Portland Area 
Director.
    (12) For proceedings in California or Hawaii, notices shall be sent 
to the following address: Sacramento Area Director, Bureau of Indian 
Affairs, Federal Office Building, 2800 Cottage Way, Sacramento, 
California 95825.
    (d) Notice to the appropriate Area Director pursuant to paragraph 
(b) of this section may be sent by certified mail with return receipt 
requested or by personal service and shall include the following 
information, if known:
    (1) Name of the Indian child, the child's birthdate and birthplace.
    (2) Name of Indian tribe(s) in which the child is enrolled or may 
be eligible for enrollment.
    (3) All names known, and current and former addresses of the Indian 
child's biological mother, biological father, maternal and paternal 
grandparents and great grandparents or Indian custodians, including 
maiden, married and former names or aliases; birthdates; places of 
birth and death; tribal enrollment numbers, and/or other identifying 
information.
    (4) A copy of the petition, complaint or other document by which 
the proceeding was initiated.
    (e) In addition, notice provided to the appropriate Area Director 
pursuant to paragraph (b) of this section shall include the following:
    (1) A statement of the absolute right of the biological Indian 
parents, the child's Indian custodians and the child's tribe to 
intervene in the proceedings.
    (2) A statement that if the Indian parent(s) or Indian custodian(s) 
is (are) unable to afford counsel, and where a state court determines 
indigency, counsel will be appointed to represent the Indian parent or 
Indian custodian where authorized by state law.
    (3) A statement of the right of the Indian parents, Indian 
custodians and child's tribe to be granted, upon request, up to 20 
additional days to prepare for the proceedings.
    (4) The location, mailing address, and telephone number of the 
court and all parties notified pursuant to this section.
    (5) A statement of the right of the Indian parents, Indian 
custodians and the child's tribe to petition the court for transfer of 
the proceeding to the child's tribal court pursuant to 25 U.S.C. 1911, 
absent objection by either parent: Provided, that such transfer shall 
be subject to declination by the tribal court of said tribe.
    (6) A statement of the potential legal consequences of the 
proceedings on the future custodial and parental rights of the Indian 
parents or Indian custodians.
    (7) A statement that, since child custody proceedings are conducted 
on a confidential basis, all parties notified shall keep confidential 
the information contained in the notice concerning the particular 
proceeding. The notices shall not be handled by anyone not needing the 
information contained in the notices in order to exercise the tribe's 
rights under the Act.
    (f) Upon receipt of the notice, the Secretary or his/her designee 
shall make reasonable documented efforts to locate and notify the 
child's tribe and the child's Indian parents or Indian custodians. The 
Secretary or his/her designee shall have 15 days, after receipt of the 
notice from the persons initiating the proceedings, to notify the 
child's tribe and Indian parents or Indian custodians and send a copy 
of the notice to the court. If within the 15-day time period the 
Secretary or his/her designee is unable to verify that the child meets 
the criteria of an Indian child as defined in 25 U.S.C. 1903, or is 
unable to locate the Indian parents or Indian custodians, the Secretary 
or his/her designee shall so inform the court prior to initiation of 
the proceedings and state how much more time, if any, will be needed to 
complete the search. The Secretary or his/her designee shall complete 
all research efforts, even if those efforts cannot be completed before 
the child custody proceeding begins.
    (g) Upon request from a party to an Indian child custody 
proceeding, the Secretary or his/her designee shall make a reasonable 
attempt to identify and locate the child's tribe, Indian parents or 
Indian custodians to assist the party seeking the information.


Sec. 23.12  Designated tribal agent for service of notice.

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


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

    (a) When a state court appoints counsel for an indigent Indian 
party in an involuntary Indian child custody proceeding for which the 
appointment of counsel is not authorized under state law, the court 
shall send written notice of the appointment to the BIA Area Director 
designated for that state in Sec. 23.11. The notice shall include the 
following:
    (1) Name, address, and telephone number of attorney who has been 
appointed.
    (2) Name and address of client for whom counsel is appointed.
    (3) Relationship of client to child.
    (4) Name of Indian child's tribe.
    (5) Copy of the petition or complaint.
    (6) Certification by the court that state law makes no provision 
for appointment of counsel in such proceedings.
    (7) Certification by the court that the Indian client is indigent.
    (b) The Area Director shall certify that the client is eligible to 
have his or her appointed counsel compensated by the BIA unless:
    (1) The litigation does not involve a child custody proceeding as 
defined in 25 U.S.C. 1903 (1);
    (2) The child who is the subject of the litigation is not an Indian 
child as defined in 25 U.S.C. 1903 (4);
    (3) The client is neither the Indian child who is the subject of 
the litigation, the Indian child's parent as defined in 25 U.S.C. 1903 
(9), nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);
    (4) State law provides for appointment of counsel in such 
proceedings;
    (5) The notice to the Area Director of appointment of counsel is 
incomplete; or
    (6) Funds are not available for the particular fiscal year.
    (c) No later than 10 days after receipt of the notice of 
appointment of counsel, the Area Director shall notify the court, the 
client, and the attorney in writing whether the client has been 
certified as eligible to have his or her attorney fees and expenses 
paid by the BIA. If certification is denied, the notice shall include 
written reasons for that decision, together with a statement that 
complies with 25 CFR 2.7 and that informs the applicant that the 
decision may be appealed to the Assistant Secretary. The Assistant 
Secretary shall consider appeals under this subsection in accordance 
with 25 CFR 2.20 (c) through (e). Appeal procedures shall be as set out 
in part 2 of this chapter.
    (d) When determining attorney fees and expenses, the court shall:
    (1) Determine the amount of payment due appointed counsel by the 
same procedures and criteria it uses in determining the fees and 
expenses to be paid appointed counsel in state juvenile delinquency 
proceedings; and
    (2) Submit approved vouchers to the Area Director who certified 
eligibility for BIA payment, together with the court's certification 
that the amount requested is reasonable under the state standards 
considering the work actually performed in light of criteria that apply 
in determining fees and expenses for appointed counsel in state 
juvenile delinquency proceedings.
    (e) The Area Director shall authorize the payment of attorney fees 
and expenses in the amount requested in the voucher approved by the 
court unless:
    (1) The amount of payment due the state-appointed counsel is 
inconsistent with the fees and expenses specified in Sec. 23.13 (d)(1); 
or
    (2) The client has not been certified previously as eligible under 
paragraph (c) of this section; or
    (3) The voucher is submitted later than 90 days after completion of 
the legal action involving a client certified as eligible for payment 
of legal fees under paragraph (b) of this section.
    (f) No later than 15 days after receipt of a payment voucher, the 
Area Director shall send written notice to the court, the client, and 
the attorney stating the amount of payment, if any, that has been 
authorized. If the payment has been denied, or the amount authorized is 
less than the amount requested in the voucher approved by the court, 
the notice shall include a written statement of the reasons for the 
decision together with a statement that complies with 25 CFR 2.7 and 
that informs the client that the decision may be appealed to the 
Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 
CFR 4.310 through 4.318 and 43 CFR 4.330 through 4.340.
    (g) Failure of the Area Director to meet the deadline specified in 
paragraphs (c) and (f) of this section may be treated as a denial for 
purposes of appeal under paragraph (f) of this section.
    (h) Payment for appointed counsel does not extend to Indian tribes 
involved in state court child custody proceedings or to Indian families 
involved in Indian child custody proceedings in tribal courts.

Subpart C--Grants to Indian Tribes for Title II Indian Child and 
Family Service Programs


Sec. 23.21  Noncompetitive tribal government grants.

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


Sec. 23.22  Purpose of tribal government grants.

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


Sec. 23.23  Tribal government application contents.

    (a) The appropriate Area Director shall, subject to the tribe's 
fulfillment of the mandatory application requirements and the 
availability of appropriated funds, make a grant to the tribal 
governing body of a tribe or consortium of tribes eligible to apply for 
a grant under this subpart.
    (b) The following mandatory tribal application requirements must be 
submitted to the appropriate Agency Superintendent or Area Director in 
accordance with the timeframe established in Sec. 23.21 (b) of this 
subpart:
    (1) A current tribal resolution requesting a grant by the Indian 
tribe(s) to be served by the grant. If an applicant is applying for a 
grant benefiting more than one tribe (consortium), an authorizing 
resolution from each tribal government to be served must be included. 
The request must be in the form of a current tribal resolution by the 
tribal governing body and shall include the following information:
    (i) The official name of tribe(s) applying for the grant and who 
will directly benefit from or receive services from the grant;
    (ii) The proposed beginning and ending dates of the grant;
    (iii) A provision stating that the resolution will remain in effect 
for the duration of the program or until the resolution expires or is 
rescinded; and
    (iv) The signature of the authorized representative of the tribal 
government and the date thereof.
    (2) A completed Application for Federal Assistance form, SF-424.
    (3) A narrative needs assessment of the social problems or issues 
affecting the resident Indian population to be served; the geographic 
area(s) to be served; and estimated number of resident Indian families 
and/or persons to receive benefits or services from the program.
    (4) A comprehensive developmental multi-year plan in narrative form 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems 
or issues. At a minimum, the plan must include:
    (i) The program goals and objectives, stated in measurable terms, 
to be achieved through the grant;
    (ii) A narrative description of how Indian families and communities 
will benefit from the program; and
    (iii) The methodology, including culturally defined approaches, and 
procedures by which the tribe(s) will accomplish the identified goals 
and objectives.
    (5) An internal monitoring system to measure progress and 
accomplishments, and to assure that the quality and quantity of actual 
performance conforms to the requirements of the grant.
    (6) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services.
    (i) The plan must include proposed key personnel; their 
qualifications, training or experience relevant to the services to be 
provided; responsibilities; Indian preference criteria for employment; 
and position descriptions.
    (ii) In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), 
title IV, the Indian Child Protection and Family Violence Prevention 
Act, grantees shall conduct character and background investigations of 
those personnel identified in that statute. Grantees must initiate 
character and background investigations of said personnel prior to 
their actual employment, and complete the investigations in a timely 
manner.
    (7) A program budget and budget narrative justification submitted 
on an annual basis for the amount of the award and supported by the 
proposed plan, appropriate program services and activities for the 
applicable grant year.
    (8) Identification of any consultants and/or subgrantees the 
applicant proposes to employ; a description of the consultant and/or 
subgrantee services to be rendered; the qualifications and experience 
in performing the identified services; and the basis for the cost and 
amount to be paid for such services.
    (9) A certification by a licensed accountant that the bookkeeping 
and accounting procedures which the tribe(s) uses or intends to use 
meet existing Federal standards for grant management and administration 
specified at Sec. 23.46.
    (10) A system for managing property and recordkeeping which 
complies with subpart D of 43 CFR part 2 implementing the Privacy Act 
(5 U.S.C. 552a) and with existing Federal requirements for grants at 25 
CFR 276.5 and 276.11, including the maintenance and safeguarding of 
direct service case records on families and/or individuals served by 
the grant.
    (11) A listing of equipment, facilities, and buildings necessary to 
carry out the grant program. Liability insurance coverage for buildings 
and their contents is recommended for grantees under this subpart.
    (12) Pursuant to the Drug-Free Workplace Act of 1988, tribal 
programs shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory requirement for Federal grant recipients.
    (c) Continued annual funding of an ICWA program under this subpart 
shall be contingent upon the existing grant program receiving a 
satisfactory program evaluation from the area social services office 
for the previous year of operation. A copy of this evaluation must be 
submitted together with an annual budget and budget narrative 
justification in accordance with paragraph (b)(7) of this section. 
Minimum standards for receiving a satisfactory evaluation shall 
include:
    (1) The timely submission of all fiscal and programmatic reports;
    (2) A narrative program report indicating work accomplished in 
accordance with the applicant's approved multi-year plan and, if 
applicable, a description of any modification in programs or activities 
to be funded in the next fiscal year; and
    (3) The implementation of mutually determined corrective action 
measures, if applicable.

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


Sec. 23.31  Competitive off-reservation grant process.

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


Sec. 23.32  Purpose of off-reservation grants.

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


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

    (a) An application for a competitive multi-year grant under this 
subpart shall be submitted to the appropriate Area Director prior to or 
on the announced deadline date published in the Federal Register. The 
Area Director shall certify the application contents pursuant to 
Sec. 23.34 and forward the application within five working days to the 
area review committee, composed of members designated by the Area 
Director, for competitive review and action. Modifications and/or 
information received after the close of the application period, as 
announced in the Federal Register, shall not be reviewed or considered 
by the area review committee in the competitive process.
    (b) Mandatory application requirements for Indian organization 
applicants shall include:
    (1) An official request for an ICWA grant program from the 
organization's board of directors covering the duration of the proposed 
program;
    (2) A completed Application for Federal Assistance form, SF 424;
    (3) Written assurances that the organization meets the definition 
of Indian organization at Sec. 23.2;
    (4) A copy of the organization's current Articles of Incorporation 
for the applicable grant years;
    (5) Proof of the organization's nonprofit status;
    (6) A copy of the organization's IRS tax exemption certificate and 
IRS employer identification number;
    (7) Proof of liability insurance for the applicable grant years; 
and
    (8) Current written assurances that the requirements of Circular A-
128 for fiscal management, accounting, and recordkeeping are met.
    (9) Pursuant to the Drug-Free Workplace Act of 1988, all grantees 
under this subpart shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory requirement for Federal grant recipients.
    (c) Competitive application selection criteria. The Area Director 
or his/her designated representative shall select those proposals which 
will in his/her judgment best promote the proposes of the Act. 
Selection shall be made through the area review committee process in 
which each application will be scored individually and ranked according 
to score, taking into consideration the mandatory requirements as 
specified above and the following selection criteria:
    (1) The degree to which the application reflects an understanding 
of the social problems or issues affecting the resident Indian client 
population which the applicant proposes to serve;
    (2) Whether the applicant presents a narrative needs assessment, 
quantitative data and demographics of the client Indian population to 
be served;
    (3) Estimates of the number of Indian people to receive benefits or 
services from the program based on available data;
    (4) Program goals and objectives to be achieved through the grant;
    (5) A comprehensive developmental multi-year narrative plan 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems 
or issues. At a minimum, the plan must include a narrative description 
of the program; the program goals and objectives, stated in measurable 
terms, to be achieved through the grant; and the methodology, including 
culturally defined approaches, and procedures by which the grantee will 
accomplish the identified goals and objectives;
    (6) An internal monitoring system the grantee will use to measure 
progress and accomplishments, and to ensure that the quality and 
quantity of actual performance conforms to the requirements of the 
grant;
    (7) Documentation of the relative accessibility which the Indian 
population to be served under a specific proposal already has to 
existing child and family service programs emphasizing the prevention 
of Indian family breakups, such as mandatory state services. Factors to 
be considered in determining accessibility include:
    (i) Cultural barriers;
    (ii) Discrimination against Indians;
    (iii) Inability of potential Indian clientele to pay for services;
    (iv) Technical barriers created by existing public or private 
programs;
    (v) Availability of transportation to existing programs;
    (vi) Distance between the Indian community to be served under the 
proposal and the nearest existing programs;
    (vii) Quality of services provided to Indian clientele; and
    (viii) Relevance of services provided to specific needs of the 
Indian clientele.
    (8) If the proposed program duplicates existing Federal, state, or 
local child and family service programs emphasizing the prevention of 
Indian family breakups, proper and current documented evidence that 
repeated attempts to obtain services have been unsuccessful;
    (9) Evidence of substantial support from the Indian community or 
communities to be served, including but not limited to:
    (i) Tribal support evidenced by a tribal resolution or cooperative 
service agreements between the administrative bodies of the affected 
tribe(s) and the applicant for the duration of the grant period, or
    (ii) Letters of support from social services organizations familiar 
with the applicant's past work experience;
    (10) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services. The plan must 
include proposed key personnel, their qualifications, training or 
experience relevant to the services to be provided, responsibilities, 
Indian preference criteria for employment and position descriptions. In 
accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), Title IV, the 
Indian Child Protection and Family Violence Prevention Act, grantees 
shall conduct character and background investigations of those 
personnel identified in that statute prior to their actual employment;
    (11) The reasonableness and relevance of the estimated overall 
costs of the proposed program or services and their overall relation to 
the organization's funding base, activities, and mission;
    (12) The degree to which the detailed annual budget and 
justification for the requested funds are consistent with, and clearly 
supported by, the proposed plan and by appropriate program services and 
activities for the applicable grant year;
    (13) The applicant's identification of any consultants and/or 
subgrantees it proposes to employ; description of the services to be 
rendered; the qualifications and experience of said personnel, 
reflecting the requirements for performing the identified services; and 
the basis for the cost and the amount to be paid for such services;
    (14) Certification by a licensed accountant that the bookkeeping 
and accounting procedures that the applicant uses or intends to use 
meet existing Federal standards for grant administration and management 
specified at Sec. 23.46;
    (15) The compliance of property management and recordkeeping 
systems with subpart D of 43 CFR part 2 (the Privacy Act, 5 U.S.C. 
552a), and with existing Federal requirements for grants at 25 CFR 
276.5 and 276.11, including the maintenance and safeguarding of direct 
service case records on families and/or individuals served by the 
grant;
    (16) A description of the proposed facilities, equipment, and 
buildings necessary to carry out the grant activities; and
    (17) Proof of liability insurance coverage for the applicable grant 
year(s).
    (d) Two or more applications receiving the same competitive score 
will be prioritized in accordance with announcements made in the 
Federal Register pursuant to Sec. 23.31 (b) for the applicable year(s).
    (e) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon 
the availability of appropriated funds and upon the existing grant 
program receiving a satisfactory program evaluation from the area 
social services office for the previous year of operation. A copy of 
this evaluation shall be submitted together with an annual budget and 
budget narrative justification in accordance with paragraph (c) (10) of 
this section. Minimum standards for receiving a satisfactory evaluation 
shall include the timely submission of all fiscal and programmatic 
reports; a narrative program report indicating work accomplished in 
accordance with the initial approved multi-year plan; and the 
implementation of mutually determined corrective action measures, if 
applicable.


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

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


Sec. 23.35  Deadline for Central Office action.

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

Subpart E--General and Uniform Grant Administration Provisions and 
Requirements


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

    The general and uniform grant administration provisions and 
requirements specified at 25 CFR part 276 and under this subpart are 
applicable to all grants awarded to tribal governments and off-
reservation Indian organizations under this part, except to the extent 
inconsistent with an applicable Federal statute, regulation or OMB 
circular.


Sec. 23.42  Technical assistance.

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


Sec. 23.43  Authority for grant approval and execution.

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


Sec. 23.44  Grant administration and monitoring.

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


Sec. 23.45  Subgrants.

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


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

    Grantee financial management systems shall comply with the 
following standards for accurate, current and complete disclosure of 
financial activities.
    (a) OMB Circular A-87 (Cost principles for state and local 
governments and federally recognized Indian tribal governments).
    (b) OMB Circular A-102 (Common rule 43 CFR part 12).
    (c) OMB Circular A-128 (Single Audit Act).
    (d) OMB Circular A-110 or 122 (Cost principles for non-profit 
organizations and tribal organizations, where applicable).
    (e) Internal control. Effective control and accountability must be 
maintained for all grants. Grantees must adequately safeguard any 
property and must ensure that it is used solely for authorized 
purposes.
    (f) Budget control. Actual expenditures must be compared with 
budgeted amounts for the grant. Financial information must be related 
to program performance requirements.
    (g) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, grant documents, or other information 
required by the grantee's financial management system. The Secretary or 
his/her designee may review the adequacy of the financial management 
system of an Indian tribe(s) or off-reservation Indian organization 
applying for a grant under this part.
    (h) Pursuant to 18 U.S.C. 641, whoever embezzles, steals, purloins, 
or knowingly converts to his or her use or the use of another, or 
without authority, sells, conveys or disposes of any record, voucher, 
money, or thing of value of the United States or of any department or 
agency thereof, or any property made or being made under contract for 
the United States or any department or agency thereof; or whoever 
receives, conceals, or retains the same with intent to convert it to 
his or her use or gain, knowing it to have been embezzled, stolen, 
purloined, or converted shall be fined not more than $10,000 or 
imprisoned not more than 10 years, or both; but if the value of such 
property does not exceed the sum of $100, he or she shall be fined not 
more than $1,000 or imprisoned not more than one year, or both.


Sec. 23.47  Reports and availability of information to Indians.

    (a) Any tribal government or off-reservation Indian organization 
receiving a grant under this part shall make general programmatic 
information and reports concerning that grant available to the Indian 
people it serves or represents. Access to this information may be 
requested in writing and shall be made available within 10 days of 
receipt of the request. Except as required by title IV of Pub. L. 101-
630, the Indian Child Protection and Family Violence Prevention Act, 
grantees shall hold confidential all information obtained from persons 
receiving services from the program, and shall not release such 
information without the individual's written consent. Information may 
be disclosed in a manner which does not identify or lead to the 
identification of particular individuals.
    (b) Grantees shall submit Standard Form 269 or 269A on a quarterly 
and an annual basis to report their status of funds by the dates 
specified in the grant award document.
    (c) Grantees shall furnish and submit the following written 
quarterly and annual program reports by the dates specified in the 
award document:
    (1) Quarterly and annual statistical and narrative program 
performance reports which shall include, but need not be limited to, 
the following;
    (i) A summary of actual accomplishments and significant activities 
as related to program objectives established for the grant period;
    (ii) The grantee's evaluation of program performance using the 
internal monitoring system submitted in their application;
    (iii) Reports on all significant ICWA direct service grant 
activities including but not limited to the following information:
    (A) Significant title II activities;
    (B) Data reflecting numbers of individuals referred for out-of-home 
placements, number of individuals benefiting from title II services and 
types of services provided, and
    (C) Information and referral activities.
    (iv) Child abuse and neglect statistical reports and related 
information as required by 25 U.S.C. 2434, Pub. L. 99-570, the Indian 
Alcohol and Substance Abuse Prevention and Treatment Act of 1986;
    (v) A summary of problems encountered or reasons for not meeting 
established objectives;
    (vi) Any deliverable or product required in the grant; and
    (vii) Additional pertinent information when appropriate.
    (2) The BIA may negotiate for the provision of other grant-related 
reports not previously identified.
    (d) Events may occur between scheduled performance reporting dates 
which have significant impact on the grant-supported activity. In such 
cases, the grantee must inform the awarding agency as soon as problems, 
delays, adverse conditions, or serious incidents giving rise to 
liability become known and which will materially impair its ability to 
meet the objectives of the grant.


Sec. 23.48  Matching shares and agreements.

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


Sec. 23.49  Fair and uniform provision of services.

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


Sec. 23.50  Service eligibility.

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


Sec. 23.51  Grant carry-over authority.

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


Sec. 23.52  Grant suspension.

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


Sec. 23.53  Cancellation.

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

Subpart F--Appeals


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

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


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

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


Sec. 23.63  Appeals from inaction of official.

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

Subpart G--Administrative Provisions


Sec. 23.71  Recordkeeping and information availability.

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

Subpart H--Assistance to State Courts


Sec. 23.81  Assistance in identifying witnesses.

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


Sec. 23.82  Assistance in identifying language interpreters.

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


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

    Upon the request of a child placement agency, the court or an 
Indian tribe, the Secretary or his/her designee shall assist in 
locating the biological parents or prior Indian custodians of an 
adopted Indian child whose adoption has been terminated pursuant to 25 
U.S.C. 1914. Such requests for assistance should be sent to the Area 
Director designated in Sec. 23.11(c).
Marshall M. Cutsforth,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 94-570 Filed 1-12-94; 8:45 am]
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