[Federal Register Volume 65, Number 242 (Friday, December 15, 2000)]
[Rules and Regulations]
[Pages 78688-78735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31647]



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Part IV





Department of the Interior





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25 CFR Part 1000



Office of the Assistant Secretary--Indian Affairs; Tribal Self-
Governance; Final Rule

  Federal Register / Vol. 65 , No. 242 / Friday, December 15, 2000 / 
Rules and Regulations  

[[Page 78688]]


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DEPARTMENT OF THE INTERIOR

25 CFR Part 1000

RIN 1076-AD21


Office of the Assistant Secretary--Indian Affairs; Tribal Self-
Governance

AGENCY: Office of the Assistant Secretary--Indian Affairs, Interior.

ACTION: Final rule.

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

EFFECTIVE DATE: January 16, 2001.

FOR FURTHER INFORMATION CONTACT: Questions concerning this rule should 
be directed to: William Sinclair, Director, Office of Self-Governance, 
MS-2548 MIB, 1849 C Street NW, Washington, DC, 20240; telephone: 202-
219-0240; electronic mail: [email protected]

SUPPLEMENTARY INFORMATION: These regulations are to implement Title II 
of Pub. L. 103-413, the Indian Self-Determination Act Amendments of 
1994. This Act established the Tribal Self-Governance program on a 
permanent basis and was added as Title IV (Tribal Self Governance Act 
of 1994) of the Indian Self-Determination and Education Assistance Act 
of 1975 (the ISDEA) (Pub. L. 93-638). Title I of Pub. L. 103-413 
consisted of amendments to the self-determination contracting provision 
of the ISDEA and regulations for Title I of Pub. L. 103-413 have 
already been promulgated. When Pub. L. 93-638 is mentioned in these 
regulations, it generally refers to what are now Sections 109 and Title 
I of the ISDEA, as amended.
    The ISDEA has been amended by Congress by the following:
    Pub. L. 98-250 Technical Amendments to Indian Self-Determination 
and Education Assistance Acts, April 3, 1984;
    Pub. L. 100-202 Continuing Appropriations, Fiscal year 1988, 
December 22, 1987;
    Pub. L. 100-446 Department of the Interior and Related Agencies 
Appropriations Act, 1989, September 27, 1988;
    Pub. L. 100-472 Indian Self-Determination And Education Assistance 
Act Amendments of 1988, October 5, 1988;
    Pub. L. 100-581 Review of Tribal Constitutions and Bylaws, November 
1, 1988;
    Pub. L. 101-301 Indian Law: Miscellaneous Amendments, May 24, 1990;
    Pub. L. 101-512 Department of the Interior and Related Agencies 
Appropriations Act, 1991, November 5, 1990;
    Pub. L. 101-644 Indian Arts and Crafts Act of 1990, November 29, 
1990;
    Pub. L. 102-184 Tribal Self-Governance Demonstration Project Act, 
December 4, 1991;
    Pub. L. 103-413 Indian Self-Determination Act Amendments of 1994, 
October 25, 1994;
    Pub. L. 103-435 Indian Technical Corrections, November 2, 1994;
    Pub. L. 104-109 Technical Corrections to Law Relating to Native 
Americans, February 12, 1996;
    Pub. L. 104-208 Omnibus Appropriations Act, September 30, 1996.
    Since most of the legal citations are to Pub. L. 103-413, the 
Indian Self-Determination Act Amendments of 1994, the following table 
may be used to find pertinent parts of this act in 25 U.S.C.:

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

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

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

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

    (1) INCORPORATE SELF-DETERMINATION PROVISIONS.--At the option of 
a participating Tribe or Tribes, any or all provisions of title I of 
this Act shall be made part of an agreement entered into under title 
III of this Act or this title. The Secretary is obligated to include 
such provisions at the option of the participating Tribe or Tribes. 
If such provision is incorporated, it shall have the same force and 
effect as if set out in full in title III or this title.

    The number of annual funding agreements grew by one to 29 in 1995 
and grew to 53 and 60 agreements in 1996 and 1997, respectively, to 
include 180 and 202 Tribes. Self-Governance has continued to grow. In 
1999, there were 67 annual funding agreements

[[Page 78689]]

with BIA covering 209 Federally recognized Tribes. Also in 1999, there 
were three annual funding agreements between Self-Governance Tribes and 
non-BIA bureaus.
    The Tribal Self-Governance Act of 1994, as amended, authorizes the 
following: (1) The Director of the Office of Self-Governance may select 
up to 50 Tribes annually from the applicant pool to participate in 
Tribal Self-Governance. (2) To be a member of the applicant pool each 
Tribe must have: (a) Successfully completed a planning phase that 
includes budgetary research and internal Tribal government planning and 
organizational preparation; (b) have requested to participate in Self-
Governance by resolution; and (c) have demonstrated financial stability 
and financial management capability for the previous 3 years as 
evidenced by the Tribe having no material audit exceptions in their 
required annual audits of Self-Determination contracts. (3) The 
Secretary is to negotiate and enter into annual written funding 
agreements with the governing body of each participating Tribe that 
will allow that Tribe to plan, conduct, consolidate and administer 
programs that were administered by the Bureau of Indian Affairs (BIA) 
without regard to agency or office within which such programs were 
administered. Subject to such terms of the agreement, the Tribes are 
also authorized to redesign or consolidate programs and reallocate 
funds. (4) The Secretary is to negotiate annual funding agreements with 
Tribes for programs administered by the Department other than through 
BIA that are otherwise available to Indian Tribes. Annual funding 
agreements may also include programs from non-BIA bureaus that have a 
special geographic, historic or cultural significance to the 
participating Tribe. (5) Tribes may retrocede all or a portion of the 
programs. (6) For construction projects, the parties may negotiate 
specific provisions of the Office of Federal Procurement and Policy Act 
and Federal Acquisition Regulations for inclusion in annual funding 
agreements. If not included, then such provisions do not apply. (7) Not 
later than 90 days before the effective date of the agreements, the 
agreements are to be sent to the Congress and to potentially affected 
Tribes. (8) Funding agreements shall provide for advance payments to 
the Tribes of amounts equal to what the Tribe would be eligible to 
receive under contracts and grants under this Act. This is to include 
direct program and contract support costs in addition to any funds that 
are specifically or functionally related to the provision of benefits 
and services by the Secretary to the Tribe or its members without 
regard to the organizational level within the Department where such 
functions are provided. (9) Except as otherwise provided by law, the 
Secretary shall interpret laws and regulations in a manner that will 
facilitate the inclusion of programs and the implementation of the 
agreements. (10) The Secretary has 60 days from the receipt of a Tribal 
request for a waiver of Departmental regulations in which to approve or 
deny such a request; denial can only be based upon a finding that such 
a waiver is prohibited by Federal law. (11) An annual report is to be 
submitted to the Congress regarding, among other things, the 
identification of the costs and benefits of Self-Governance and the 
independent views of the participating Tribes. The Secretary is to 
publish in the Federal Register, after consultation with the Tribes, a 
list of, and programmatic targets for, non-BIA programs eligible for 
inclusion in annual funding agreements. (12) Nothing in the Act shall 
be construed to limit or reduce in any way the services, contracts or 
funds that any other Indian Tribes or Tribal organizations are eligible 
to receive under any applicable Federal law or diminish the Secretary's 
trust responsibility to Indian Tribes, individual Indian or Indians 
with trust allotments.
    The Act also authorized the formation of a negotiated rulemaking 
committee if so requested by a majority of the Indian Tribes with Self-
Governance agreements. Such a request was made to the Department of the 
Interior and a rule making committee was formed. Under section 407 of 
the Act, membership was restricted to Federal and Tribal government 
representatives, with a majority of the Tribal members representing 
Tribes with agreements under the Act. Eleven Tribal representatives 
joined the Committee. Seven Tribal representatives were from Tribes 
with Self-Governance agreements and four were from Tribes that were not 
in the Self-Governance Program. Formation of the Rulemaking Committee 
was announced in the Federal Register on February 15, 1995.
    The first meeting of the Joint Tribal/Federal Self-Governance 
Negotiated Rule Making Committee was held in Washington, DC on May 
18,1995 prior to publication of the proposed rule, a total of 12 
meetings of the full Committee were held in different locations 
throughout the country. Subsequently, several meetings were held to 
review public comments and to negotiate changes in the final rule. The 
last meeting was held in Washington, DC in March 1999. There were 
numerous workgroup meetings and teleconferences during this period that 
were used to develop draft material and exchange information in support 
of the full Committee meetings. At the first meeting of the Committee, 
protocols were developed. The main provisions of the protocols were: 
(1) The Committee meetings were open, and minutes kept. The Federal 
Advisory Committee Act did not apply under the Unfunded Mandates Reform 
Act of 1995. (2) A quorum consisted of 8 members, including 7 Tribal 
members and 1 Federal member. The Tribal and Federal representatives 
each selected co-chairs for the Committee and an alternate. (3) The 
Committee operated by consensus of the Federal and Tribal members and 
formed 5 working groups to address specific issues and make 
recommendations to the Committee. (4) The intended product of the 
negotiations is proposed regulations developed by the Committee on 
behalf of the Secretary and Tribal representatives. The Secretary 
agreed to use the preliminary report and the recommendations on the 
final regulations, developed by the Committee, as the basis for the 
Notice of Proposed Rulemaking. (5) The Committee has reviewed all 
comments received from the notice of the Proposed Rule making and has 
submitted a final report with recommendations to the Secretary for 
promulgation of a final rule. (6) The Federal Mediation and 
Conciliation Services was used to facilitate meetings.
    The proposed regulation was published in the Federal Register on 
February 12, 1998 with a 90-day public comment period. Topics on which 
the Negotiating Committee had not reached agreement were identified in 
a preamble section titled, ``Key Areas of Disagreement.'' The Federal 
Register notice specifically invited comments on these areas. Fifty-
four comments were received from a wide variety of Tribal groups and 
individual Tribes, Federal entities, and other groups and individuals. 
Many comments presented positions on the areas of disagreement. Subpart 
S, which pertained to Property Donation in the preamble of the proposed 
rule, pertains to Conflicts of Interest in the final rule. Property 
Donation is now in subpart Q of the final rule.
    To facilitate comparison from the Proposed Rule to the Final Rule, 
the following table is reflective of the section numbers from proposed 
to final. Sections 1000.1-1000.73 maintain the

[[Page 78690]]

same section numbers from proposed to final rule.

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  Proposed      Final       Proposed      Final       Proposed      Final       Proposed      Final       Proposed      Final      Proposed      Final
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       .78          .80         .111         .121         .160         .170         .201         .221         .266         .307         .318        .359
       .79          .81         .112         .122         .161         .171         .202         .222         .267         .308         .319        .360
       .80          .82         .113         .125         .162         .172         .203         .223         .268         .309         .320        .361
       .81          .83         .114         .126         .165         .173         .204         .224         .269         .310         .321        .362
       .82          .84         .115         .128         .166         .173         .205         .225         .270         .311         .322        .363
       .83          .85         .116         .129         .167         .173         .206         .226         .271         .312         .323        .364
       .84          .86         .117         .130         .168         .174         .207         .227         .272         .313         .324        .365
       .85          .87         .118         .131         .169         .175         .208         .228         .273         .314         .325        .366
       .86          .88         .119         .132         .170         .176         .209         .229         .274         .315         .326        .367
       .87          .89         .120         .133         .171         .177         .210         .230         .275         .316         .339        .380
       .88          .91         .121         .134         .172         .178         .211         .231         .276         .317         .340        .381
       .89          .92         .122         .135         .173         .179         .212         .232         .277         .318         .341        .382
       .90          .93         .123         .136         .174         .180         .220         .240         .289         .330         .352        .390
       .91          .94         .124         .137         .175         .181         .221         .241         .290         .331         .353        .391
       .92          .95         .125         .138         .176         .182         .222         .242         .291         .332         .354        .392
       .93          .96         .126         .139         .180         .190         .223         .243         .292         .333         .355        .393
       .94          .97         .127         .140         .181         .191         .224         .245         .293         .334         .356     deleted
       .95          .98         .128         .141         .182         .192         .225         .246         .294         .335         .357        .394
       .96          .99         .129         .142         .183         .193         .226         .247         .295         .336         .358        .395
       .97         .100         .130         .143         .184         .194         .227         .248         .296         .337         .359        .396
       .98         .101         .150         .160         .185         .195         .228         .249         .297         .338         .360        .400
       .99         .102         .151         .161         .186         .196         .229         .250         .298         .339         .361        .401
      .100         .103         .152         .162         .187         .197         .230         .251         .310         .350         .362        .402
      .101         .104         .153         .163         .188         .198         .259         .300         .311         .351         .363        .403
      .102         .105         .154         .164         .190         .210         .260         .301         .312         .352         .364        .404
      .103         .106         .155         .165         .191         .211         .261         .302         .313         .353         .365        .405
      .104         .107         .156         .166         .192         .212         .262         .303         .314         .354         .366        .406
      .105         .108         .157         .167         .193         .213         .263         .304         .315         .355         .367        .407
      .106         .109         .158         .168         .194         .214         .264         .305         .316         .356
      .110         .120         .159         .169         .200         .220         .265         .306         .317         .358
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Summary of Regulations and Comments Received

    The narrative and discussion of comments below is keyed to specific 
subparts of the rule. Matters addressed under the heading ``Key Areas 
of Disagreement'' in the Notice of Proposed Rulemaking are discussed 
under the appropriate subpart.

Subpart A--General Provisions

Summary of Subpart
    This Subpart provides interpretation of the language used 
throughout the Self-Governance Determination and Education Assistance 
Act of 1975, as amended, 25 U.S.C. 450. Subpart A also addresses the 
purpose and scope of the regulation and describes Congressional 
perspectives on the Tribal Self-Governance Act of 1994.
Comments
    Several comments requested that the use of the word ``Act'' be 
clarified. The ``Act'' was then determined to mean the Tribal Self-
Governance Act, Title IV of the Indian Self-Determination and Education 
Assistance Act of 1975.
    A suggestion that the definition of construction management 
services be deleted from Section 1000.2 was accepted.
    One comment suggested that a regulation be developed that would 
address tribal involvement in the budgets of non-BIA bureaus. This 
suggestion was not accepted. For budget consultation purposes, non-BIA 
bureaus can participate in the Self-Governance conferences, BIA budget 
consultations and their own consultations as a result of specific Self-
Governance tribal requests. In addition, Sec. 1000.4(c)(7) addresses 
communication with Tribal governments regarding budgetary matters.
    There were many comments concerning the definition of inherently 
Federal functions. While there is no definition of inherently Federal 
functions contained in this rule, the Committee agreed that:
    Sections 1000.91 through 1000.109 contain detailed provisions 
explaining what funds are available for inclusion in a BIA AFA. 
Sections 1000.94 and 1000.97 define ``residual funds'' and ``Tribal 
shares'', respectively. In defining what is a residual, a critical step 
is to determine what functions are inherently Federal. The regulations 
do not define the term ``inherently Federal'' function. The Department 
will decide what functions are residual or inherently Federal on a case 
by case basis after consultation with the Office of the Solicitor. For 
current guidance on inherently Federal functions (IFF) determinations, 
please see Solicitor's memorandum dated May 17, 1997. The Memorandum is 
available on the Office of Self-Governance's Internet web page or can 
be requested directly from the Office of Self-Governance. Determination 
that functions are inherently Federal shall be applied consistently in 
Central Office and all regional offices to all Tribes in a consistent 
and uniform manner. The Department shall provide information on why 
specific functions have been determined inherently Federal to Tribes in 
accordance with Sec. 1000.95.
    Several comments suggested that the definition of Tribal shares 
should reference the statute. This suggestion was accepted and the 
definition of Tribal shares was also changed to be identical with the 
definition of Tribal shares in Sec. 1000.97.
    Several comments noted that the definition of BIA and non-BIA 
programs does not mention program jointly administered with other 
Federal agencies. The definitions were not changed to accommodate this 
suggestion because the Committee believed that the issue has been 
addressed in Sec. 1000.93. Several other comments suggested that annual

[[Page 78691]]

funding agreement for BIA and non-BIA programs be included in this 
definition section. This suggestion was not included and the 
definitions of annual funding agreement for BIA and non-BIA programs 
are covered in Secs. 1000.81 and 1000.121 respectively.
    Several comments recommended that a definition of a self-
determination contract should be included in the definition section and 
be broad enough to have contracts also include as part of the 
definition the subcontracts between Tribal members and their Consortium 
for the operation of Federal programs. The suggestion to define self-
determination contracts was not accepted because it is defined in 
Pub.L. 93-638. Further, the Act states that to be eligible for Self-
Governance, a Tribe, among other things, must have ``no material audit 
exception in the required annual audit of the self-determination 
contracts of the Tribes'' [Title I sec. 402(c)]. Subcontracts between 
member Tribes and their Consortium are not considered to be the same as 
self-determination contracts.

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

Summary of Subpart
    This subpart describes the eligibility and selection process that 
the Secretary uses to decide which Indian Tribes may participate in 
Tribal self-governance as authorized by section 402 of the Tribal Self 
Governance Act of 1994. Subpart B also describes when a Tribe withdraws 
from an AFA. It also specifies the documents that Tribes must submit 
for admission into the applicant pool and describes what a Tribe must 
do during the planning phase. The subpart explains what a ``material 
audit exception'' is and what the consequences are of having a 
``material audit exception''. This subpart also summarizes what happens 
if a Tribe wishes to withdraw from a Consortium's annual funding 
agreement and how disputes between the Consortium and withdrawing Tribe 
are handled.
Comments
    A comment suggested that although the Act does not employ standard 
accounting terms, it seems that the intent of the law is that 
applicants must have three successive audits that do not disclose any 
material weakness; consequently the comment recommended that 1000.21 be 
changed to reflect that a material audit exception is one where there 
is an identified material weakness or finding of substantial financial 
mismanagement. This suggestion was accepted. Another comment recommend 
that the level of questioned and subsequently disallowed costs should 
be changed from 5 percent of the total expenditures to a dollar 
threshold of anything in excess of $10,000. This recommendation was 
accepted because the percentage threshold could conceivably allow 
Tribes to enter Self-Governance that had financially mismanaged several 
millions of dollars given that some Tribes have total expenditures that 
exceed $100 million. Further, Office of Management and Budget (OMB) 
Circular A-133, which has been adopted as a common rule by the 
Department of the Interior requires auditors to report questioned costs 
that are greater than $10,000.
    A comment recommended that participating Tribes that are members of 
a Consortium and are recipients of contracts with the Consortium for 
the delivery of programs covered by the annual funding agreement should 
be considered as eligible for entrance into Self-Governance once they 
have had three years of subcontracting experience free of material 
audit exceptions as defined in Sec. 1000.21. This suggestion was not 
accepted because the Act states that to be eligible a Tribe, among 
other things, must have ``* * * no material audit exceptions in the 
required annual audit of the self-determination contracts of the 
Tribes'' (Title IV sec. 402(c)(2)). Subcontracts between member Tribes 
and their Consortium are not considered to be the same as self-
determination contracts.
    Several comments addressed the concern about what happens to 
funding and project delivery schedules for Indian Reservation Road 
projects if a member Tribe withdraws from a Consortium. It is 
anticipated that this issue will be a subject of the separate Tribal-
Federal negotiated rulemaking process established under Transportation 
Equity Act for the 21st Century (TEA-21) (23 U.S.C. 202(d)(2)(C)), Pub. 
L. 105-178, and therefore was not addressed in this regulation.
    Another comment said that Sec. 1000.33(b) implies that a Tribe may 
withdraw from a Consortium within the middle of the year and suggested 
deleting reference to the 90-day Congressional review period. However, 
Sec. 1000.32(c) indicates that the effective date of any withdrawal is 
the date on which the current funding agreement expires unless there is 
mutual agreement between the Tribe, Consortium, OSG and the appropriate 
bureau, in which case any and all issues would have to be resolved at 
that time. This suggestion was not accepted.
    A comment identified a confusion in Sec. 1000.34(b)(1) with the 
words ``within 10 days'' because it was unclear as to the reference 
point. Those words have been replaced with ``at least 5 days before the 
90-day Congressional review''. Another comment suggested that the chart 
in Sec. 1000.34 be modified to identify who the non-BIA official is who 
is receiving the decision from the non-BIA bureau head. This was 
accepted and the chart modified. The comment further asserts that the 
Office of Indian Education Programs (OIEP) is not properly identified. 
The chart was modified to specifically identify OIEP.

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

Summary of Subpart
    Subpart C describes the criteria and procedures for awarding 
various self-governance negotiation and planning grants. These grants 
are discretionary and will be awarded by the Director of the Office of 
Self-Governance (OSG). The award amount and number of grants depends 
upon Congressional appropriation. If funding in any year is 
insufficient to meet total requests for grants and financial 
assistance, priority will be given first to negotiation grants and 
second to planning grants.
    Negotiation grants are non-competitive. In order to receive a 
negotiation grant, a Tribe/Consortium must first be selected from the 
applicant pool and then submit a letter affirming its readiness to 
negotiate and requesting a negotiation grant. This subpart also 
indicates that Tribe/Consortium may also elect to negotiate for a self-
governance agreement if selected from the applicant pool without 
applying for or receiving a negotiation grant. Planning grants will be 
awarded to Tribes/Consortia requesting financial assistance in order to 
complete the planning phase requirement for admission into the 
applicant pool.
Comments
    A few comments requested that language be added to subpart C that 
indicate a commitment by the Department to provide funds annually for 
planning and negotiation grants as well as short fall funds to assist 
in implementing the Act. The Committee agreed that the Department 
cannot commit funding that is not appropriated. Another comment 
indicated that the language at Sec. 1000.50(b), concerning material 
audit exceptions, was confusing and the Committee agreed to change the 
language from ``be identified as eligible'' to ``be qualified as 
eligible.''

[[Page 78692]]

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

Summary of Subpart
    This subpart describes the financial assistance for planning and 
negotiating non-BIA programs available to any Tribe/Consortium that:
    (a) Has an existing AFA;
    (b) Is in the applicant pool; or
    (c) Has been selected from the applicant pool.
    Tribes/Consortia may submit only one application per year for a 
grant under this subpart. This financial assistance will support 
information gathering, analysis, and planning activities that may 
involve consulting with appropriate non-BIA bureaus, and negotiation 
activities. The subpart also describes the selection criteria, scoring, 
and notification process that Office of Self Governance will use to 
award planning and negotiation grants for a non-BIA program. The 
decision of the Director of OSG to not award a planning or negotiation 
grant for a non-BIA program is final for the Department.
Comments
    A comment asked that the Director of the Office of Self Governance 
establish selection criteria and a review committee to select grants. 
Selection criteria are established at Sec. 1000.70. The Committee 
believes that a review committee is an unnecessary and burdensome 
requirement. Several comments indicated that Tribe should have a right 
to appeal the decision of the Director of OSG to not award a planning 
or negotiation grant for a non-BIA program. Subpart D does not provide 
for an appeals process because the decision to award a grant will be 
made using selection criteria with associated points established by 
this rule. Those criteria and the point system were agreed to by the 
Committee. A comment indicated that the Director of OSG should seek and 
consider the comments on grant applications by the affected non-BIA 
bureau. The Committee found that this was not a regulatory matter.

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

Summary of Subpart
    This subpart describes the components of an Annual Funding 
Agreement (AFA) for BIA programs. An AFA is a legally binding and 
mutually enforceable written agreement between a self-governance Tribe/
Consortium and BIA. It specifies the programs that are to be performed 
by BIA as inherently Federal functions identified as residuals, 
programs transferred to the Tribe/Consortium, and programs retained by 
BIA to be carried out for the self-governance Tribe. The division of 
the responsibilities between the Tribe/Consortium and BIA is to be 
clearly stated in the AFA.
    Subpart E states that a Tribe/Consortium may include BIA-
administered programs in its AFA regardless of BIA agency or office 
that performs the program. The Secretary must provide to the Tribe/
Consortium:
    (a) Funds equal to what the Tribe/Consortium would have received 
under contracts and grants under Title I of Pub. L. 93-638 (25 U.S.C. 
450);
    (b) Any funds specifically or functionally related to providing 
services to the Tribe/Consortium by the Secretary; and
    (c) Any funds that are otherwise available to Indian Tribes for 
which appropriations are made to other agencies other than the 
Department of the Interior and are administered by the Department of 
the Interior.
    Except for construction or when a waiver of regulations is 
involved, a Tribe/Consortium may redesign a program without approval 
from BIA except when the redesign first requires a waiver of a 
Departmental regulation. Redesign does not entitle Tribes/Consortia to 
an increase in the negotiated funding amount.
    In determining the funding amount to be included in an AFA, this 
subpart defines residual funds as those funds needed to carry out BIA 
residual functions should all Tribes assume programmatic 
responsibility. The residual level will be determined through a process 
that is consistent with the overall process used by BIA.
    The subpart defines Tribal shares as the amount determined for that 
Tribe/Consortium from a particular program. Tribal share amounts may be 
determined by either:
    (a) A formula that has a reasonable basis in the function or 
service performed by BIA office and is consistently applied to all 
Tribes served by the regional and agency offices; or
    (b) On a Tribe-by-Tribe basis, such as awarded competitive grants 
or special project funding.
    Funding amounts may be adjusted while the AFA is in effect in order 
to adjust for certain Congressional actions, correct a mistake, or if 
there is mutual agreement. During the year, a Tribe/Consortium may 
reallocate funds between programs, except construction programs (see 
Secs. 1000.254 and 255 in Subpart K of this part), without Secretarial 
approval.
    This subpart also defines base budgets as the amount of recurring 
funding identified in the annual budget of the President as adjusted by 
Congressional action. Base budgets are derived from:
    (a) A Tribe/Consortium's Pub. L. 93-638 contract amounts;
    (b) Negotiated amounts of agency, regional, and central office 
funding;
    (c) Other recurring funding;
    (d) Special projects, if applicable;
    (e) Programmatic shortfall; and
    (f) Any other general increases/decreases to Tribal priority 
allocations that might include pay, retirement, or other inflationary 
cost adjustments.
    Base budgets do not include any non-recurring program funds, 
Congressional earmarks, or other funds specifically excluded by 
Congress or other recurring programs that are currently in Tribal 
priority applications (TPA) such as general assistance, housing 
improvement program (HIP), road maintenance and contract support.
    Once base budgets are established, a Tribe/Consortium need not 
renegotiate these amounts unless it wants to. If the Tribe/Consortium 
wishes to renegotiate, it also would be required to renegotiate all 
funding included in the AFA on the same basis as all other Tribes.
Comments
    Several comments indicated Sec. 1000.82 implies that residuals are 
limited to inherently Federal functions. However, Sec. 1000.94 makes it 
clear that BIA residual funds are those funds that are necessary to 
carry out BIA residual activities and that these residual activities 
are those that can only be performed by BIA employees and may include 
some functions that are not ``inherently Federal.'' Further, the 
Secretary must take into consideration the other statutory mandates, 
such as Section 406(a), in determining residuals.
    Several comments recommended that the term ``annual funding 
agreement'' be changed to ``funding agreement'' throughout the 
regulation contending that these two terms are used interchangeably 
throughout the Act. This would also be consistent with Sec. 1000.85 
that allows Tribes/Consortia to negotiate an AFA with a term that 
exceeds one year in accordance with Section 105(c)(1) of Title I of 
Pub. L. 93-638 and subject to the availability of Congressional 
appropriations. The decision was made to retain the term ``annual 
funding agreement'' in these regulations because the Act is clear that 
the Secretary is authorized to negotiate ``annual funding agreements''. 
Even though Sec. 1000.85 allows Tribes to negotiate an AFA that exceeds 
one year, this only applies to BIA programs,

[[Page 78693]]

services, functions or activities. Moreover, most appropriations for 
non-BIA bureaus are annual in nature and do not permit multi-year terms 
in advance of appropriations.
    Several comments expressed concerns about the effect of the 
proposed regulations on the Indian Reservation Road (IRR) program that 
is jointly administered by the Departments of Transportation and 
Interior. Following the publication of the proposed rule on February 
12, 1998, the Transportation Equity Act for the 21st Century was 
enacted on June 9, 1998. This Act, known as TEA-21, made a number of 
changes to the Federal lands highway program, that includes IRR 
activities. Some of the comments received regarding the IRR program 
will be the subject of the separate Tribal-Federal negotiated 
rulemaking process established under TEA-21 (23 U.S.C. sec. 
202(d)(2)(C)).
    TEA-21 specifically makes funds for Indian roads and bridges 
available to Indian Tribes for Title I contracts and Title IV 
agreements in accordance with the Indian Self-Determination and 
Education Assistance Act of 1975, as amended. The pertinent provision 
reads as follows:

    (3) CONTRACTS AND AGREEMENTS WITH INDIAN TRIBES.--
    (A) IN GENERAL.--Notwithstanding any other provision of law or 
any interagency agreement, program guideline, manual or policy 
directive, all funds made available under this title for Indian 
reservation roads and for highway bridges located on Indian 
reservation roads to pay for the costs of programs, services, 
functions and activities or portions thereof, that are specifically 
or functionally related to the cost of planning, research, 
engineering and construction of any highway, road, bridge, parkway, 
or transit facility that provides access to or is located within the 
reservation or community of an Indian Tribes shall be made available 
upon request of the Indian Tribal government, to the Indian Tribal 
government for contracts and agreements for such planning, research, 
engineering, and construction in accordance with the Indian Self-
Determination and Education Assistance Act.

Pub. L. 105-178, sec. 1115(b)(4)(3)(A)

    Accordingly, the Committee believes that the TEA-21 statute and 
these final regulations provide the mechanism for including IRR 
programs, functions, services and activities or portions thereof in 
Self-Governance agreements subject to Sec. 1000.93 that defers to the 
requirements of funding agencies other than the Department of the 
Interior.
    Several comments recommended that the regulations be specific that 
inherently Federal functions can not be transferred and be more 
specific about what can be included in an AFA. The Committee believes 
that what can be included in an AFA is adequately covered in 
Sec. 1000.86. Further, Sec. 1000.94 discusses residual and Sec. 1000.95 
discusses how residual information is determined. Several comments 
recommended that inherently Federal functions should be defined and 
included in the definition part of the regulation. The Solicitor has 
ruled that inherently Federal functions cannot be defined and must be 
determined on a case-by-case basis; consequently, this suggestion was 
not accepted.
    In Sec. 1000.92, the words ``associated with programs'' were added 
to the answer, following the word ``funds'', for clarity.
    Sections 1000.91 and 1000.97 deal with negotiated and Tribal share 
amounts of central office operations. Many comments were received 
supporting the retention of central office shares in these sections, 
even though there has been a prohibition in the Department of the 
Interior and Related Agencies Appropriations Acts for the past three 
years. Several comments argued that Title IV of Pub. L. 93-638 is clear 
that Tribes have a right to negotiated shares of the central office and 
that the legislative prohibition is only an annual prohibition. Several 
commentaries emphasized that the central office issue is related only 
to BIA and that for non-BIA programs, any funds transferred to a self-
governance Tribe should be those that the Department would have spent, 
either directly or indirectly, for the benefit of those Tribes.
    The Committee agreed to retain central office in Secs. 1000.91 and 
1000.97. Should the Congressional prohibition be lifted, then BIA would 
be willing to negotiate a portion of central office operations that are 
not a part of BIA residual or inherently Federal responsibilities and 
can be shown to be specifically and functionally related to the 
responsibilities being assumed by a self-governance Tribe.
    Section 1000.94 has been rewritten by deleting specific reference 
to inherently Federal functions and to indicate that residual functions 
are those functions that can only be performed by BIA employees. The 
reason for deleting the reference to inherently Federal functions is 
that there could be some functions that are not inherently Federal in 
nature but that still must be performed by a BIA employee. An example 
would be a function that could be performed by Tribe but because of the 
indivisibility (e.g. one forester serving four Tribes) the function 
would remain a residual function.
    Section 1000.95 has been rewritten to focus on the residual 
information that will be made available to Tribes. This section also 
identifies the overall process that BIA will follow and the general 
principles that will be used in determining and providing the residual 
information to Tribes. Also included are procedures to have the Deputy 
Commissioner reconsider residual levels for particular programs, and 
procedures to appeal the Deputy Commissioner's determination to the 
Assistant Secretary-Indian Affairs. A comment recommended that the 
Assistant Secretary--Indian Affairs provide a written determination on 
a Tribe's appeal within 30 days of receiving it and this suggestion was 
accepted. Another comment suggested changes to Section 1000.95 to 
specify active tribal involvement in the determination of residuals. 
This suggestion was not accepted but a new subsection, (c)(9) was added 
to Sec. 1000.4 that indicates that Executive Order 13084 on 
Consultation and Coordination with Indian Tribal governments will be 
applied in the implementation of these regulations.
    Regarding Sec. 1000.95, the Tribal team raised the issue that when 
BIA is determining residuals for a particular function, service, or 
activity, that consideration should be made without regard to the 
organizational level at which the functions are being performed. It is 
the intent of BIA in determining residuals to take into consideration 
those functions that the Secretary must retain to ensure that the 
Secretary's statutory and trust obligations are met. In making this 
determination, BIA will first look to the appropriate organization 
level at which the service is being provided which may be the agency, 
regional or central office when appropriate. Depending upon where the 
service is being provided, the residual determination will be made.
    Section 1000.96 was modified by removing reference to an ``annual 
list of residual activities'' to be consistent with the changes made in 
Sec. 1000.95.
    Another comment suggested that the term ``Tribal shares'' comply 
with the language of the Act. This suggestion was accepted by adding 
references to section 403(g)(3) and 405(d) of the Act to Sec. 1000.97.
    A comment identified confusion in Sec. 1000.100. This has been 
corrected by replacing the word ``by'' with the word ``to'' so that 
funds would be ``distributed to a Tribe'' not ``distributed by a 
Tribe''. Another comment suggested that allowing Tribes to take a share 
of a competitive grant program violates section 403(g) and section 
406(a) of the Act. No change was made because this

[[Page 78694]]

rule allows for a competitive grant funds to be distributed on a 
formula basis unless prohibited by Congress. If there is no 
Congressional prohibition to distributing all or a portion of a 
competitive grant program by formula, then other Tribes would be 
eligible to receive funds on a formula basis, as well.
    The suggestion to change Section 1000.103 to allow funds to be 
reallocated to any program that is administered by the Tribe/Consortium 
rather than any program that the Tribe/Consortium administers under the 
AFA was not accepted. Section 403(b)(5) of the Act requires that the 
annual funding agreement specify ``* * * the services to be provided, 
the functions to be performed and the responsibility of the tribe and 
the Secretary under the agreement.'' The Department believes that 
allowing reallocation to programs included in the annual funding 
agreement is consistent with the Act.
    A comment suggested that the word ``between'' be changed to 
``among'' in the answer of Sec. 1000.104(a)(3) and this suggestion was 
accepted. Another comment suggested that the answer be changed to allow 
for more BIA discretion in distributing increases in an equitable 
manner. This suggestion was accepted by adding the word ``and Tribes'' 
after the word ``regions'' in (a)(3). A similar change was made to 
Sec. 1000.109(a)(3). Another comment suggested that before any 
reduction in funds, that Tribes be notified in writing and agree to the 
reduction. No change was made since any reduction being addressed in 
this section will be a change that reflects Congressional 
appropriation. Further, Sec. 1000.104 states that Tribes will be 
notified and that the Tribes will be given an opportunity to reconcile.
    A comment recommended deleting contract support from base budgets 
and this suggestion was accepted. An item (c) was added to 
Sec. 1000.105 to clarify that other recurring programs that are in TPA, 
such as general assistance, housing improvement program (HIP), road 
maintenance and contract support are not to be included in the base 
unless any of them should become eligible for base transfer for all 
Tribes. The reason for including item (c) is to make clear about what 
is excluded from base budgets. An additional comment recommended that 
item (c) not be included and this suggestion was not accepted. The four 
programs included in (c) either have a special method for distributing 
funds, such as contract support, or are based upon neediest of the 
needy. Further, (c) does indicate that Self-Governance tribes could 
have these four programs based transferred if such an option were made 
available to all tribes.
    Several comments regarding Secs. 1000.106 and 1000.107 objected to 
the language that requires a Tribe to negotiate all base budget funding 
in order to re-negotiate a specific line item contending that this is 
an incorrect interpretation of the Act. The Committee agreed to the 
wording in Secs. 1000.106 and 1000.107 as the best way to handle the 
issue of re-negotiation of base amounts.
    Another comment suggested that Sec. 1000.109 needed to more 
thoroughly reflect BIA's intent and the amount of discretion it seeks 
to retain in allocating any general increases/decreases. No action was 
taken because the Committee believed that answer is clear enough 
regarding BIA's discretion for base budget adjustments.
    Several comments noted that there is no statutory authority for the 
Secretary to suspend, withhold or delay payment under an annual funding 
agreement and such authority implies evaluation and oversight of Tribal 
actions. Even though such a provision is in Title I of the Act, it is 
absent in Title IV. Several other comments maintain that since annual 
funding agreements are legally binding and mutually enforceable written 
agreements that require some mechanism to withhold, delay, or suspend 
funds when there is a determination that the Tribe/Consortium has not 
substantially carried out the AFA. After discussion, the Committee 
agreed not to regulate this issue.

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

Summary of Subpart
    This subpart describes program eligibility, funding for, and terms 
and conditions relating to, AFAs covering non-BIA programs. This 
subpart also establishes procedures for consultation with Tribes for 
preparation of an annual Federal Register listing of non-BIA programs 
that are eligible for negotiation by self-governance Tribes.
    Sections 1000.122 through 1000.136 of this subpart contain rules on 
the eligibility of programs for inclusion in AFAs. Under the Tribal 
Self-Governance Act of 1994, non-BIA programs are eligible for 
negotiation and inclusion in AFAs based on either section 403(b)(2), 
(25 U.S.C. 485cc(b)(2)) (pertaining to programs available to Indians), 
or section 403(c), (25 U.S.C. 458cc(c) (pertaining to programs of 
special geographic, historical, or cultural significance to the 
participating Tribe/Consortium).
    These provisions reflect the discretion afforded by the Act with 
respect to the terms of eligibility of non-BIA programs for inclusion 
in AFAs, as compared to agreements covering BIA programs. For instance, 
section 403(b)(2) authorizes a non-BIA bureau to negotiate terms that 
it may require in AFAs and section 403(b)(3) allows redesign and 
consolidation of non-BIA programs or reallocation of funds when the 
parties agree.
    Sections 1000.137 through 1000.142 of this subpart describe how AFA 
funding is determined. Programs that would be eligible for self-
determination contracts under Title I of the Indian Self-Determination 
and Education Assistance Act (ISDEA) (Pub. L. 93-638, as amended) are 
to be funded at the same level as required for self-determination 
contracts.
    Programs that are only available because of a special geographic, 
historical, or cultural significance eligible under section 403(c) of 
the Act are not eligible for self-determination contracting. The 
regulations provide that such programs generally are to be funded at 
the level that would have been spent by the bureau to operate the 
program, plus provisions for allowable indirect costs. The latter are 
generally based on rates negotiated by the Department of the Interior 
Inspector General, or the Inspector General of another applicable 
Federal agency.
Comments
    This subpart of the regulations was one of the most contentious 
both to the Committee and to the many who commented. The central focus 
of concerns expressed was the degree of discretion that should be 
accorded to the Secretary in entering into AFAs for non-BIA programs. 
While the Tribal team and representative comments from several Tribes 
and Tribal organizations supported limited discretion, the Federal team 
and representative comments from outside Federal bureaus and non-
governmental organizations supported broad Secretarial discretion. In 
addition to the issue of Secretarial discretion, the comments discussed 
what could be included in an AFA for a non-BIA bureau and, 
specifically, the term ``otherwise available''; the degree to which a 
non-BIA bureau program could be redesigned for Tribal needs; the method 
of entering into successor agreements; the explanation of ``nexus'' as 
it applied to 403(c) programs; and the calculation of indirect costs 
for such programs. Despite the wide range of differing views and 
comments, the

[[Page 78695]]

Committee did come to agreement on most disputed issues. Because the 
views of the Tribal team and representative comments from the several 
Tribes and Tribal organizations and the views of the Federal team and 
the representative comments from outside Federal bureaus and non-
governmental organizations can be aligned between ``Tribal'' and 
``Federal'', they are addressed as such below.
    The Tribal view of ``otherwise available'' as it pertains to the 
inclusion of programs into AFAs for non-BIA bureaus is to interpret 
this phrase as meaning any Federal program unless it is an inherently 
Federal function of the non-BIA bureau. According to the Tribal 
comments, Section 403(b)(2) was meant to extend the reach of Title I 
and to increase Tribal operation of non-BIA programs within the 
Department of the Interior. The Federal team, however, views 
``otherwise available'' under Section 403(b)(2) as essentially a 
different way of describing those programs that are eligible for 
contracting under Pub. L. 93-638. The Federal comments stressed the 
view that it was never the intention of Congress to give Tribes or 
Tribal organizations authority over non-BIA, non-Indian programs--such 
programs are not merely Tribal in scope but, rather, national in scope. 
The term ``otherwise available,'' therefore, would simply extend the 
availability of those Indian programs ``otherwise available'' to Tribes 
for inclusion in AFAs with non-BIA bureaus. The Committee could not 
agree on this matter and the regulation, therefore, reflects the 
Federal view at Secs. 1000.122 through 1000.136.
    Tribal comments and Federal comments differed on the matter of 
whether non-BIA bureaus must negotiate and must contract with Tribes/
Consortia on those programs that are not identified as ``programs for 
the benefit of Indians because of their status as Indians.'' Tribal 
comments refer to the Congressional goal of providing opportunities for 
Tribes to have the dominant role in administering those programs that 
benefit Indians. Therefore, Tribal comments noted that unless a 
program, function, service or activity is inherently Federal, the non-
BIA bureau must negotiate and enter into an AFA with the Tribe/
Consortium. The Federal comments stressed that it is within the 
discretion of the Secretary to enter into an AFA with a Tribe/
Consortium for those programs that may coincidentally benefit Indians 
but that are national in scope and were not by definition ``programs 
for the benefit of Indians because of their status as Indians.'' The 
Committee did not agree on this matter and the regulation, therefore, 
reflects the Federal view at Secs. 1000.122 through 1000.136.
    Intertwined with the perceptions of Secretarial discretion and 
programs available for inclusion in AFAs with non-BIA bureaus is 
whether or not Tribes may reallocate program funds and otherwise 
redesign non-BIA programs to better suit Tribal needs. Tribal comments 
reflected their contention that the Tribal Self-Governance Act was 
meant to be inclusive and, therefore, Tribes should have broad 
authority to assume non-BIA programs and redesign them in a manner that 
best suits their needs. Federal comments continued to stress that 
Congress did not intend Tribes to assume the administration and 
operation of non-BIA, non-Indian programs unless specifically 
authorized by the Secretary. After much discussion in committee, it was 
decided that the Federal view on this matter prevail. Therefore, the 
regulations at Secs. 1000.144-1000.145 reflect that the Tribe/
Consortium may reallocate funds or otherwise redesign non-BIA programs 
if mutually agreed to by the non-BIA bureau and the Tribe/Consortium as 
reflected in an executed AFA.
    With respect to successor agreements, Tribal comments noted that 
successor agreements should be ``more or less'' automatic. The 
difficulties in negotiating fine points of an AFA should have already 
been worked out and, therefore, the Tribal comments asked the Committee 
to more closely review the mechanisms for negotiating successor AFAs. 
The Federal concerns were that the regulations not give the impression 
that multi-year funding agreements were being negotiated--in violation 
of Federal appropriation laws. The Committee discussed this matter in 
some detail and agreed that the mechanism for negotiating successor 
AFAs would be the same as for initial AFAs; however, since the terms of 
such agreements had already been worked out previously, unless major 
changes were to be included in a successor agreement the process would 
be an expedited one. The negotiation process for successor agreements 
is now found in subpart G and reflects the Committee's agreement at 
Secs. 1000.180-1000.182.
    Both Tribal and Federal comments discussed the need to have more 
``complete'' definitions of the geographical, historic, and cultural 
``nexus'' that would be found in Section 403(c) non-BIA programs. With 
some modest revisions, the Committee agreed to more explanatory 
definitions that are reflected in the regulations at Sec. 1000.126.
    It was evident in reviewing Tribal and Federal comments that the 
notion of ``indirect costs'' is a confusing one. The Tribal comments 
indicated a confusion between ``Tribal shares'' and allowable indirect 
costs associated with the management and operation of a Federal 
program. In addition, the method of determining the rate of indirect 
costs was a matter of disagreement even among Tribal comments. The 
Federal comments noted a wariness of negotiating agreements that would 
require an indirect cost expense to the government that was above and 
beyond the funds that were available to expend. In committee it was 
clearly noted by the Federal team that the government was not opposed 
to giving Tribes/Consortia allowable indirect costs. However, the 
Federal team confessed confusion in determining how best to provide the 
Tribes/Consortia with all necessary funds to administer non-BIA 
programs and factor in a further indirect cost expense. The Committee 
agreed to allow the non-BIA bureaus and the Tribes/Consortia to 
negotiate the amount of indirect costs for one particular AFA that 
might be different from the established rate set by the Office of the 
Inspector General. Indeed, the non-BIA bureau and the Tribe are 
encouraged to negotiate fee-for-service alternatives that facilitate 
entering into an AFA. These agreements by the Committee are reflected 
in the regulations at Secs. 1000.138-1000.142.
    A suggestion was made to redraft Section 1000.145 to allow for the 
reallocation of funds in non-BIA annual funding agreements. This 
suggestion was accepted but modified to exclude construction projects.

Subpart G--Negotiation Process for Annual Funding Agreements

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

[[Page 78696]]

negotiations by providing for a timely exchange of information on the 
requested programs.
    The negotiation phase establishes detailed time lines and 
procedures for conducting negotiations with Tribes that have been 
accepted into the self-governance program, identifying the 
responsibilities of the Tribe/Consortium and bureau representatives in 
the negotiation process, and for executing AFAs. The deadlines for the 
negotiation process were chosen by the Committee to reflect the 
availability of annual budget information and the time needed for the 
bureau and the Tribe/Consortium to reach an agreement and the 
requirement under the Tribal Self-Governance Act of 1994 that each AFA 
must be submitted for Congressional review at least 90 days before its 
proposed effective date.
    This subpart also establishes, in Secs. 1000.180 through 1000.182, 
rules for the negotiation process for successor AFAs. A successor 
agreement is a funding agreement negotiated with a particular bureau 
after an initial agreement with that bureau. The procedures for 
negotiating a successor agreement are the same as those for initial 
agreements. The Committee expects, however, that successor agreements 
will build upon the prior agreements and will result in an expedited 
and simplified negotiation process.
    The model compact serves as an umbrella document to recognize the 
government-to-government relationship between the Tribe(s) and the 
Department. Self-governance Tribes may choose to execute a compact with 
the Secretary but are not required to do so in order to enter into AFAs 
with Departmental bureaus. A model self-governance compact is provided 
in Appendix A. The model compact is not the same as an AFA and is not 
intended to replace, duplicate or lessen the importance of the AFA. 
Section 1000.163 permits the parties to agree to additional terms and 
conditions for inclusion in compacts.
    The Committee agreed that for BIA programs only, a Tribe/Consortium 
may elect to continue under the terms of its pre-regulation compact as 
long as those provisions are in compliance with other Federal laws and 
are consistent with these regulations. For BIA programs, a Tribe/
Consortium may include any term that may be included in a contract 
under Title I (Pub. L. 93-638; 25 U.S.C. 450) in the model compact.
Comments
    A comment noted that the wording of Sec. 1000.162 could be 
interpreted to require that Tribes/Consortia enter model compacts 
before an AFA could be negotiated. The Committee has noted this 
possible interpretation and has provided, in Sec. 1000.164, that the 
Tribe/Consortium, at its option, can enter into an AFA without first 
entering into a model compact.
    The Committee did not agree that any term under Title I could be 
included in a non-BIA bureau AFA at the Tribe's/Consortium's option. 
The Tribal team advocated for this position; however, the Federal team 
did not agree and noted that Title I programs are identified as Indian 
programs' and, therefore, would not necessarily have any relevance to 
non-BIA bureau programs. In a related matter, the Committee agreed that 
for BIA programs the Tribe/Consortium may include any provision of 
Title I in the model compact. The regulations at Sec. 1000.163 reflect 
this position.
    Several comments noted that Tribes/Consortia should be able to 
negotiate Tribal-specific provisions in their compacts. The Committee 
agreed with this premise as long as there was mutual agreement between 
the Tribe/Consortium and the bureau. The regulations at Sec. 1000.163 
reflect this position.
    Compacts have been entered into with a number of Tribes/Consortia 
without final regulations in place. Therefore, concern was raised that 
compacts negotiated before the promulgation of final regulations should 
be validated after final regulations are in place. The Committee agreed 
and included a process in Sec. 1000.165 that would allow for validation 
of existing compacts and renegotiation procedures for those terms and 
conditions from prior compacts that might be inconsistent with the 
final regulations. Disputes that might arise from this process are 
further provided for in subpart R of this part. A comment suggested 
that Section 1000.165 be modified to allow compacts to remain in effect 
even if they are inconsistent with these regulations. This suggestion 
was not accepted because initially compacts were created to clarify the 
relation between the Department and the Tribes/Consortia during the 
period when there were no regulations and many of the earlier compacts 
did not receive a careful legal review by the Department.
    Concerns were raised about information collection from Departmental 
bureaus for initial and successor AFAs. The Committee has provided a 
comprehensive listing of information protocols in Sec. 1000.172 that 
should address these concerns. Similarly, concerns were raised about 
the lack of a dispute resolution process. The Committee has provided 
such processes under Sec. 1000.172 that refers to subpart R (Appeals) 
of these regulations.
    With respect to the negotiation process itself, comments were made 
that asked for guidance on the designation of negotiators for both the 
Tribe/Consortium and the bureau(s). The regulations clearly provide for 
the designation of such negotiators in Sec. 1000.173 and Sec. 1000.174. 
It is within the discretion of the Tribe/Consortium and the bureau(s) 
to name such representatives according to their own policies and 
procedures, however the Committee agreed that these representatives 
must be authorized to negotiate on behalf of their respective 
governments as noted at Sec. 1000.175 of these regulations.
    Some comments noted that there should be no distinction between BIA 
and non-BIA programs on the issue of successor AFAs. The Committee 
agreed and made no distinction between BIA and non-BIA in the 
procedures for negotiating successor AFAs.
    The Committee agreed that dispute resolution should be referenced 
to subpart R of these regulations and that a waiver of fees under the 
Freedom of Information Act would be entertained under that Act's 
provisions.

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

Summary of Subpart
    This subpart describes the process used by the Secretary to 
determine whether the implementation of an AFA will cause a limitation 
or reduction in services, contracts or funds to any other Indian Tribe/
Consortium or Tribal organization as prohibited by section 406(a) of 
Pub. L. 93-638 (25 U.S.C. 458ff(a)). Subpart H applies only to BIA 
programs and does not apply to the general public and non-Indians.
    BIA may raise the issue of limitation and/or reduction of services, 
contracts, or funding to other Tribes from the beginning of the 
negotiation period until the end of the first year of implementation of 
the AFA. An adversely affected Tribe/Consortium may raise the issue of 
limitation or reduction of services, contracts, or funding during 
region-wide Tribal shares meetings before the first year of 
implementation, within the 90-day review period before the effective 
date of the AFA, and during the first year of implementation of the 
AFA. Claims not filed on time are barred.
    A claim by either the Department or an adversely affected Tribe/
Consortium or Tribal organization must be a written

[[Page 78697]]

notification that specifies the alleged limitation or reduction of 
services, contracts, or funding. If a limitation and/or reduction 
exists, then BIA must use shortfall funding, supplemental funding, or 
other available BIA resources to prevent the reduction during the 
existing AFA year. BIA may, in a subsequent AFA, adjust the funding to 
correct a finding of actual reduction in services, contracts, or funds 
for that subsequent year. All adjustments under this subpart must be 
mutually agreed to between BIA and the Tribe/Consortium.
Comments
    Some comments questioned the applicability of this subpart only to 
BIA. The concern was that Tribes should have the right to protest 
limitations or reductions in services regardless of whether or not the 
program was managed by BIA or a non-BIA bureau. The Committee took 
great care to ascertain that Section 406(a) of the Act could only apply 
to BIA since non-BIA bureaus do not contemplate providing services to 
the entire Indian community that would necessitate any formal parceling 
of services, activities, and resources. The types of non-BIA programs 
for which Tribes/Consortia would contract under self-governance would 
be limited to those discretionary programs already being provided to 
the general community. Therefore, there would never be an instance of 
program limitation or reduction in services to another Tribe/Consortium 
since the Tribe/Consortium contracting with the non-BIA bureau would be 
merely stepping into the place of the Federal entity and continuing to 
provide the same services as always to the general community.
    Another comment wondered whether or not individual Indians should 
have the right to protest a limitation or reduction in services. The 
Committee considered this concept; however, it was determined that the 
Tribal Self-Governance Act of 1994 applies to sovereign Tribal 
governments as an expression of government-to-government relations 
between the Federal entity and Indian Nations. The particular case of 
an individual Tribal member's personal concerns must be handled, then, 
by that Tribal member's government and is not the subject of regulation 
by the Federal entity. Therefore, no revisions were made to the 
regulations.
    Another comment noted that the time-frame for raising the issue of 
limitation or reduction of services was inconsistent with the statute. 
However, the Committee determined that the time-frames were necessary 
to allow for efficient management of the program.

Subpart I--Public Consultation Process

Summary of Subpart
    This subpart describes when public consultation is appropriate and 
the protocols that should be used in this process. The roles of the 
Tribe/Consortium and the bureau are outlined, including notification 
procedures and the commitment to share information concerning inquiries 
about AFAs.
    Public consultation is used when required by law or when 
appropriate under bureau discretion. When the law requires a public 
consultation process, the bureau will include the Tribe/Consortium to 
the maximum extent possible. When a public consultation process is a 
matter of bureau discretion, the bureau and the Tribe/Consortium may 
develop guidelines for the conduct of public meetings.
    When the bureau conducts a public meeting, it must notify the 
Tribe/Consortium and involve the Tribe/Consortium in as much of the 
conduct of the meeting as is practicable and allowed by law. When 
someone other than the bureau conducts a meeting to discuss a 
particular AFA and the bureau is invited to attend, the bureau will 
notify the Tribe/Consortium of the invitation and encourage the meeting 
sponsor to invite the Tribe/Consortium to participate.
    The bureau and the Tribe/Consortium will exchange information about 
other inquiries relating to the AFA under negotiation from other 
affected or interested parties.
Comments
    The Committee was asked to clarify when a Tribe/Consortium may work 
jointly with the bureau to establish public consultation guidelines. 
Clarifying edits were made. Also, a comment asked that corresponding 
requirements for bureau participation in establishing Tribal guidelines 
for Tribal public consultation procedures be included in the final 
regulation. The Committee rejected this comment, because the Tribes/
Consortia are considered sovereign entities and the Department of the 
Interior has no authority, therefore, to dictate guidelines for their 
internal purposes.

Subpart J--Waiver of Regulations

Summary of Subpart
    This subpart implements section 403(i)(2)(A) of the Tribal Self-
Governance Act of 1994 (25 U.S.C. 458cc(i)(2)(A)). It authorizes the 
Secretary to waive all DOI regulations governing programs included in 
an AFA, as identified by the Tribe/Consortium.
    Subpart J also provides time lines, explains how a Tribe/Consortium 
applies for a waiver, the basis for granting or denying a waiver 
request, the documentation requirements for a decision, and establishes 
a process for reconsideration of the Secretary's denial of a waiver 
request.
    The basis for the Secretary's denial of a waiver request depends on 
whether the request is made for a BIA or non-BIA program. For a BIA 
program, denial of a requested waiver must be predicated on a 
prohibition of Federal law. For a non-BIA program, denial of a 
requested waiver must be predicated on a prohibition of Federal law, or 
inconsistency with the express provisions of the AFA. Examples of 
waivers prohibited by law are provided in the body of the regulation.
    This subpart does not specify whether or not a granted waiver must 
be requested with subsequent funding agreements. Many of the waivers 
that are granted are on a one time basis or are waivers that are 
intended to continue unless there is a change in the law, Federal 
regulations or what the tribe wants to do. Section 1000.220 states that 
the parties should identify waived regulations in the AFA's and because 
the funding agreements are annual, both the tribes and the Federal 
government have an opportunity to determine whether or not the current 
waivers are still appropriate.
Comments
    A comment asked that provisions be included for formal bureau 
comment on the advisability of granting a waiver request. The Committee 
rejected the comment, however, as it did not want to place additional 
administrative burdens on bureaus that may slow or impede action on 
waiver requests.
    Another comment asked whether or not the waiver provisions of the 
regulation would be inconsistent with the Unfunded Mandates Act of 
1995. The Committee found that the regulation imposed no unfunded 
mandates on Tribes.
    A comment from the Department of Transportation expressed concern 
that waivers of Department of Transportation regulations be ``jointly 
reviewed'' by the Secretary of the Interior and the Secretary of 
Transportation. The Committee notes that the only regulations that may 
be waived by the Secretary of the Interior are Department of the 
Interior regulations.
    Some comments proposed language that would limit the discretion of 
the

[[Page 78698]]

Secretary in granting waivers. The Committee agreed that the Act 
narrows the scope of Secretarial discretion and, therefore, the 
Committee would not be empowered to expand the scope of discretion 
beyond the limits already imposed by the statute.
    Another comment proposed that waivers be disallowed only if 
prohibited by Federal law. The Committee agreed that this would be one 
of the factors to be considered in denying a waiver request. However, 
the Federal team allowed that a waiver request might also be denied if 
it was inconsistent with the express provisions of the AFA. This 
standard is included, therefore, in the final regulation.
    A comment proposed that Sec. 1000.226 be changed to deem a waiver 
request as being denied if a decision is not rendered by the Department 
within 60 days and this proposal was accepted.
    A comment recommended that the regulations address appeals on the 
denial of a waiver request beyond the Secretary. The Committee rejected 
this comment, however, because it believes the regulations are clear 
that whenever all administrative appeals are exhausted, the Tribe/
Consortium may avail itself of judicial review in a Federal District 
Court.
    A comment noted that publication of approved waivers of regulations 
be published in the Federal Register to provide notice to Tribes/
Consortia for prospective waiver requests. The Committee added language 
that would post approved waivers on the Office of Self-Governance web 
page and would additionally make such waivers available upon request 
from any Tribe/Consortium.

Subpart K--Construction

Summary of Subpart
    Subpart K applies to all construction, both BIA and non-BIA. It is 
designed as a stand-alone subpart; that is, other subparts do not apply 
to construction agreements if they are inconsistent with the provisions 
in subpart K. The subpart specifies that construction program 
activities are subject to subpart K, such as design, construction 
management services, actual construction; and that are not, such as 
planning services, operation and maintenance activities, and certain 
construction programs that cost less than $100,000. The subpart 
specifies the roles and responsibilities of the Tribes and the 
Secretary in construction programs, including performance, changes, 
monitoring, inspections, and a special reassumption provision for 
construction. It addresses whether inclusion of a construction program 
in an AFA creates an agency relationship with self-governance Tribes.
    Federal Acquisition Regulations provisions are specifically not 
incorporated into these regulations, however, they may be negotiated by 
the parties in the AFA. Also, construction AFAs must address applicable 
Federal laws, program statutes, and regulations. In addition to 
requirements for all AFAs referenced in subpart F, other special 
provisions are added for construction programs, including health and 
safety standards, brief progress reports, and suspension of work when 
appropriate. Building codes appropriate for the project must be used 
and the Federal agency must notify the Tribe when Federal standards are 
appropriate for any project.
Comments
    Several comments expressed the view that all of the self-governance 
regulations should apply to all Title IV agreements, including 
construction. In the preamble to the proposed rule, the Federal team 
had recommended that several general sections of the rule should not 
apply to construction and that the construction subpart should be a 
stand-alone section. It was decided that the provisions of subpart K 
should take precedence over any other subpart provisions that are 
inconsistent with subpart K. A question and an answer were added to 
subpart K stating at Sec. 1000.252, ``Do all provisions of other 
subparts apply to construction portions of AFAs? Yes, unless they are 
inconsistent with this subpart.''
    Other issues raised in the preamble to the proposed rule are 
discussed separately below.
    Several comments raised concerns about the effects that a 
withdrawal from a Consortium would have on AFAs concerning construction 
projects. The comments thereon involving Tribal withdrawals from 
Consortiums, the comments were adopted and new questions and answers 
were agreed upon as reflected in Secs. 1000.35 and 1000.253.
    A comment regarding Sec. 1000.82 (now Sec. 1000.84) did not require 
a change in the regulation because a Tribe could not properly adopt 
construction provisions of Title I of the Act out of context; i.e., it 
would be inconsistent with a properly drafted construction AFA to adopt 
the Model Contract, section 108 of the Act, which is inapplicable to 
construction in Title I.
    With regard to comments on inherent Federal functions, residuals, 
and the Secretary's responsibility to ensure construction safety, a new 
question and an answer were added to the construction subpart to 
reserve a portion of project funds from the AFA so that the Secretary 
has the funds to carry out his statutory mandate of Title IV to ensure 
construction safety (see Sec. 1000.256).
    In response to comments in regarding BIA reallocation of funds in 
Sec. 1000.100 (now Sec. 1000.103), two new questions and answers were 
added to the final regulation, as Secs. 1000.254 and 1000.255, 
discussing reallocation of funds.
    A comment that recommended that Bureau of Land Management Cadastral 
Surveys in Alaska should be defined as being construction was not 
adopted because the regulations are sufficiently clear to provide 
guidance for cadastral surveys in AFAs.
    Comments regarding proposed Title V to the Act involving the Indian 
Health Service were rejected as not relevant to Title IV.
    A comment recommended that ``construction management services'' 
should be defined. The Committee agreed and a definition was added to 
the final regulation.
    A comment that phrasing in Subpart K confuses the meaning of 
``design'' as to whether it is included in construction or not was not 
adopted because the Committee believed that these two sections are 
clear on this subject.
    A comment suggested that some activities described in 
Sec. 1000.240(b) be deleted and not subject to Subpart K because they 
are more applicable to Subpart E. This suggestion was accepted and 
Section 1000.240(b)(1) was changed to make explicit what activities and 
functions are covered by Subpart K. In essence, those activities that 
are administrative in nature are not subject to Subpart K and those 
activities that are associated with the actual construction are subject 
to Subpart K. Another comment recommended that TEA-21 road construction 
funds derived from the Federal Highway Trust Fund and transferred to 
BIA should be exempt from Subpart K if the funds are for a tribe 
assuming the entire road construction program. This suggestion was not 
accepted. While some of the activities included in a road construction 
program can be regulated by Subpart E, the bulk of the activities 
involve specific road construction projects that should comply with 
Subpart K. Further the TEA-21 negotiated rule making effort currently 
underway assume that road construction projects included in a tribe's 
AFA need to comport to Subpart K.
    Comments regarding the lack of clarity in Sec. 1000.241 as to the 
meaning

[[Page 78699]]

of ``an agency relationship'' were accepted and this section was 
modified in the final regulation.
    The Committee adopted a comment recommending that Sec. 1000.244 
should be changed to delete the 5-day notice to a Tribe before 
suspending work in a emergency.
    The comment that Sec. 1000.223(e) of the proposed rule should be 
made into a separate section was adopted and is now Sec. 1000.244. A 
comment recommended that Sec. 1000.244 be changed to limit suspension 
of construction to a condition of imminent jeopardy to public health 
and safety only and this suggestion was not accepted. Another comment 
recommended that a new section be inserted that would indicate that 
compensation costs due to a suspension would not be paid from 
construction costs. This suggestion was accepted in part. Section 
1000.244 was modified to indicate that project funds will not be used 
to compensate for costs associated with a suspension of construction 
work that occurs through no fault of the Tribe/Consortium.
    A comment was made concerning the last sentence of Sec. 1000.246 
concerning the Secretary's option of accepting commonly accepted 
industry construction standards. The comment noted that this issue may 
create a problem in Alaska where building permits are not required in 
much of the state and ``common standards'' could be none at all. This 
comment was not adopted since the language in the regulation regarding 
commonly accepted industry standards is permissive and this section 
does permit the Federal agency to provide Federal standards that are 
mandatory unless a Tribally proposed standard is consistent with or 
exceeds the Federal standard. Other comments were also rejected because 
the Committee believed that this section of the regulation is clear.
    A comment recommending that Sec. 1000.246 use the concept of 
``scope of work'' was not adopted because ``project design'' is 
appropriate language for construction projects.
    Comments relating to 23 U.S.C., such as for Sec. 1000.249, did not 
require clarification because Sec. 1000.243(b) requires compliance with 
applicable Federal laws and program statutes.
    A recommendation to add the citation to the Contract Disputes Act 
referenced in Sec. 1000.251 was adopted.
    A comment that to comply with the Solicitor's July 9, 1997, 
memorandum entitled, ``Tribal Self-Governance Draft Regulations--
Construction Safety'', that a provision should be added that if the 
requirements of Sec. 1000.243 are not met in an AFA, that the AFA 
should not be entered into, was considered unnecessary because it is 
obvious that the Secretary cannot properly enter into an AFA for 
construction projects if the criteria of Sec. 1000.243 are not complied 
with in the AFA proposed by a Tribe/Consortium.
    A comment suggested that Sec. 1000.256 be deleted because it allows 
the Secretary to retain funds to monitor health and safety standards 
and that the residual funds identified in Secs. 1000.94 to 1000.96 
addresses this issue. This suggestion was not accepted because the 
funds identified in Sec. 1000.256 are to cover the Secretary's 
necessary costs associated with specific construction projects. If the 
Secretary were not allowed to retain such costs from the specific 
project funds, then a higher than needed residual would be required at 
regional offices to accommodate for construction projects if and when 
they should be funded.

Subpart L--Federal Tort Claims

Summary of Subpart
    This subpart explains the applicability of the Federal Tort Claims 
Act (FTCA).
Comments
    A recommendation was made to incorporate FTCA rules from Title I. 
This suggestion was accepted and the appropriate Title I rules dealing 
with FTCA have been incorporated and modified slightly for Self-
Governance. Sections 1000.270 to 100.286 replaced Secs. 1000.240 to 
1000.255 of the proposed rule.

Subpart M--Reassumption

Summary of Subpart
    Reassumption is the Federally initiated action of reassuming 
control of Federal programs formerly performed by a Tribe. Subpart M 
explains the types of reassumption authorized under the Tribal Self-
Governance Act of 1994, including the rights of a Consortium member, 
the types of circumstances necessitating reassumption, and Secretarial 
responsibilities including prior notice requirements and other 
procedures.
    Subpart M also describes activities to be performed after 
reassumption has been completed, such as authorization for ``windup'' 
costs, Tribal obligations regarding the return of Federal property to 
the Secretary, and the effect of reassumption on other provisions of an 
AFA.
Comments
    A comment recommended that language regarding those funds impacted 
by the notice of reassumption be more specific to the management of 
trust assets, resources, or the public health and safety. The Committee 
agreed. Other comments recommended editorial changes in the wording 
that were also agreed to by the Committee.

Subpart N--Retrocession

Summary of Subpart
    Retrocession is the Tribally initiated action of returning control 
of certain programs to the Federal government. Subpart N defines 
retrocession, including how Tribes may retrocede, the effect of 
retrocession on future AFA negotiations, and Tribal obligations 
regarding the return of Federal property to the Secretary after 
retrocession.
Comments
    A comment on this subpart recommended that the term ``contractor 
status'' be changed to read ``contract status''. The Committee agreed 
and the phrase was changed.

Subpart O--Trust Evaluation Review

Summary of Subpart
    Subpart O establishes a procedural framework for the annual trust 
evaluation mandated by the Tribal Self-Governance Act of 1994. The 
purpose of the annual trust evaluation is to ensure that trust 
functions assumed by Tribes/Consortia are performed in a manner that 
does not place trust assets in imminent jeopardy.
    Imminent jeopardy of a physical trust asset or natural resource (or 
their intended benefits) exists where there is an immediate threat and 
likelihood of significant devaluation, degradation, or loss to such 
asset. Imminent jeopardy to public health and safety means an immediate 
and significant threat of serious harm to human well-being, including 
conditions that may result in serious injury, or death, caused by 
Tribal action or inaction or as otherwise provided in an annual funding 
agreement.
    Subpart O requires the Secretary's designated representative to 
prepare a written report for each AFA under which trust functions are 
performed by a Tribe. The regulation also authorizes a review of 
Federal performance of residual and nondelegble trust functions 
affecting trust resources.
Comments
    Several comments were received on this subpart. A few dealt with 
editorial changes that the Committee agreed to

[[Page 78700]]

including: capitalizing ``Federal'' and ``Tribal'' throughout the 
regulation; striking a reference to the Code of Federal Regulations 
deemed to be unnecessary; and clarifying that the provisions of the AFA 
to be reviewed are the trust provisions. A comment recommended the 
addition of a question and answer that would address negotiating 
standards for review for purposes of the trust evaluation. The 
Committee agreed on the language to be used and that the question and 
answer should be added. A comment dealt with amending the section 
establishing standards to be used in the review of the Secretary's 
residual trust functions. The Committee agreed to add language that 
would articulate the criteria to be used in reviewing the Secretary's 
residual trust functions. A comment dealt with the need for 
clarification of the responsibilities of Consortia when a trust 
evaluation reveals problems in the performance of trust functions that 
do not rise to imminent jeopardy. The Committee agreed on clarifying 
language. A comment was concerned with establishing more Federal 
participation in assuring no breach of trust when a Tribe is operating 
a trust program and corrective action is necessary. The Committee 
agreed to language that clarified these responsibilities.

Subpart P--Reports

Summary of Subpart
    This subpart describes the report on self-governance that the 
Secretary prepares annually for transmittal to Congress. It includes 
the requirements for the annual report that Tribes submit to the 
Secretary.
Comments
    Comments noted that a Government Performance and Results Act 
(GPRA)-type reporting requirement should be applied to the Tribes and 
the bureaus as this would help justify more programs and services to 
Tribes/Consortia. While the Committee noted the merits of oversight and 
justification of further funding, it recognized that GPRA is a separate 
activity apart from self-governance. Further, there was no authority 
under the statute to mandate GPRA in this regulation. One comment 
suggested that the reporting requirement be made discretionary on the 
part of the tribes and this suggestion was accepted because there is no 
statutory basis requiring Tribes/Consortia to submit an annual report.

Subpart Q--Miscellaneous Provisions

Summary of Subpart
    This subpart addresses many facets of self-governance not covered 
in the other subparts. Issues covered include the applicability of 
various laws and OMB circulars, how funds are handled in various 
situations, and the relationship between employees of the Tribe/
Consortium and employees of the Federal government. Conflicts of 
Interest was moved to become Subpart S. For comments on Conflicts of 
Interest, see subpart S.
Comments
    The committee agreed to delete Sec. 1000.356 from the proposed rule 
which dealt with how payments will be made to self-governance Tribes/
Consortia.
    A suggestion was made to delete the requirement that tribe/
consortium maintain minimum management standards that existed when the 
Tribe/Consortium first entered the Self-Governance program. This 
suggestion was not accepted. As an alternative Sec. 1000.396 has been 
changed so that it is similar to what appears in the Title I 
regulations (Sec. 900.40)
Cash Management
    It was suggested that Sec. 1000.397, which addresses restrictions 
on the use of funds under the AFA, be deleted because it restricts the 
Tribe's/Consortium's ability to adopt programs and focus funds on local 
needs. This suggestion was not accepted. Section 403(b)(5) of the Act 
requires that the annual funding agreement specify ``* * * the services 
to be provided, the functions to be performed and the responsibility of 
the tribe and the Secretary under the agreement.'' It is critical that 
the regulations reflect the general parameters for use of funds 
transferred under AFA's.
    As to cash management, there was considerable discussion on the 
investment of funds transferred to the Tribe/Consortium under an AFA. 
In comment and committee, the overwhelming Tribal view was that the 
Tribe/Consortium should be allowed to invest any funds transferred to 
them under an AFA according to the prudent investor standard. It was 
stressed that such investments would allow the Tribes/Consortia to 
increase their cash holdings and, hence, allow for greater achievement 
in the management of their programs under Tribal Self-Governance. While 
the Federal team could agree that investment--when it paid off--was a 
good way to enhance cash reserves, the Federal team and comments from 
agencies other than DOI questioned the propriety of investing Federal 
funds in other than secured vehicles. The chance to lose Federal funds 
seemed to be inapposite to the goals of self-governance. After 
consultation with the Office of the Solicitor, it was decided by the 
Federal team to allow limited investment in secured transactions. This 
decision is reflected in the regulations at Sec. 1000.398.
Property Donation
    Several comments were received regarding this subpart. The issues 
centered around the procedures and obligation of the Department to 
transfer BIA and non-BIA property to Tribes for use under an AFA. Much 
of the Committee's discussion concerned the applicability of 
105(f)(2)(A) of Pub. L. 93-638 to non-BIA bureaus. After consideration, 
the Committee concluded that it would not regulate this section. 
Instead, Tribes and the Department will be required to follow already 
existing statutes, regulations and guidance issued by the Federal 
government.
Supply Sources
    Several comments were received supporting the Tribal proposal for 
language regarding supply sources. The Committee recognizes that Tribes 
have had difficulties with the General Services Administration (GSA). 
However, only the GSA has the legal authority over a Tribe's/
Consortium's use of Federal supply sources. To assist Tribes in 
exercising their options with regard to Federal supply sources, the 
Committee agreed that the Department should help facilitate discussions 
between the GSA and a Tribe/Consortium. Therefore, the Committee agreed 
to accept the Tribal language with a modification to the last sentence. 
The last sentence to Sec. 1000.408 now reads: While implementation of 
this provision is the responsibility of the General Services 
Administration, the Department shall assist the Tribes/Consortia to 
resolve any barriers to full implementation that may arise to the 
fullest extent possible.

Subpart R--Appeals

Summary of Subpart
    Subpart R prescribes the process Tribes/Consortia may use to 
resolve disputes with the Department arising before or after execution 
of an AFA or compact and certain other disputes related to self-
governance. This subpart also describes the administrative process for 
reviewing disputes related to compact provisions. This subpart 
describes the process for administrative

[[Page 78701]]

appeals to: (1) the Interior Board of Indian Appeals; (2) the Interior 
Board of Contract Appeals; (3) the Assistant Secretary for the bureau 
responsible for certain disputed decisions; (4) the Secretary for 
reconsideration of decisions involving self-governance compacts, and; 
(5) the bureau head for certain pre-award disputes.
    Subpart R indicates those decisions that are not administratively 
appealable under this subpart and makes provisions for informal 
conferences to settle disputes before filing an appeal. Pre-award 
disputes of Title I-eligible programs, functions, services and 
activities may only be filed with the Interior Board of Indian Appeals 
under the regulations promulgated in 25 CFR 900.150(a)-(h), 900.152-
169. Other pre-award disputes of non-Title I-eligible programs, 
functions, services, and activities may be appealed through the 
administrative route within the Department or directly to the Interior 
Board of Indian Appeals. With the exception of certain decisions 
concerning reassumption for imminent jeopardy, the Tribe/Consortium may 
appeal post-award administrative decisions to the Interior Board of 
Contract Appeals.
    Subpart R does not provide an appeals process for disputes arising 
from construction AFAs, as these procedures are found in subpart K of 
these regulations.
Comments
    Comments on this subpart asked the Committee to simplify the 
appeals process and otherwise refrain from unnecessary cross-
referencing that only confuses the reader of the regulations. The 
Committee arranged the appeals subpart to clearly indicate areas of 
dispute resolution including informal conferences, administrative 
resolution of both pre-award and post-award disputes, and matters that 
were not administratively appealable under this subpart.
    A comment indicated that Tribes/Consortia should be able to go to 
the Interior Board of Indian Appeals for reassumption for imminent 
jeopardy. The Committee agreed that the Tribe/Consortium may go to the 
Interior Board of Indian Appeals for Title 1-eligible programs; 
however, non-Title I-eligible programs would go before the Interior 
Board of Contract Appeals. The Committee agreed that a Tribe/Consortium 
may choose to appeal directly to the Interior Board of Indian Appeals 
on an ``abuse of discretion'' standard. The Tribal team had advocated 
that this standard be further qualified ``as governed by the applicable 
canons of construction and the mandates of Section 403(i)(1).'' 
However, the Federal team did not agree with this further qualification 
of the abuse of discretion of standard because it felt that canons of 
construction was a term of art during litigation and was inappropriate 
as a regulatory parameter. The regulations, therefore, do not refer to 
canons of construction.
    There was some discussion of whether the appropriate assistant 
secretary or the bureau head should be the final arbitrator of 
administrative appeals. The Committee recognized that conflicts could 
arise where it would be inappropriate for the bureau to decide an 
appeal. Therefore, the regulations provide that the bureau head would 
be the first line of appeal, unless the decision being appealed was the 
decision of the bureau head in which case the appeal would go to the 
appropriate assistant secretary. If the Tribe/Consortium does not 
receive a favorable decision from the bureau head, the appeal is 
automatically sent forward to the appropriate assistant secretary for 
final decision.

Subpart S--Conflicts of Interest

Summary of Subpart
    The conflict of interest regulation subpart applies only if the AFA 
fails to provide equivalent protection against conflict of interests to 
these regulations. Section 1000.460 defines an organizational conflict 
of interest and addresses only those conflicts discovered after an AFA 
is signed. Section 1000.463 defines personal conflicts of interest and 
requires a Tribe/Consortium to have a Tribally-approved mechanism to 
ensure that no officer, employee, or agent of the Tribe/Consortium has 
a financial or employment interest that conflicts with that of the 
trust beneficiary.
Comments
    Several comments were received supporting the proposed Tribal 
position or questioning the need for a section on conflicts of 
interest. Ultimately, the Department must balance the Federal-Tribal 
government-to-government relationship with the Federal trust 
responsibilities. In recognition of this responsibility, and in an 
attempt to minimize any intrusion or burden on Tribes/Consortia, the 
Committee agreed to adopt the Federal regulations published in Pub. L. 
93-638 (25 U.S.C. 450).
    Comments suggested that it was improper to subject a Tribe/
Consortium to conflicts of interest provisions and not impose similar 
regulations on Federal employees. Federal employees are subject to 
conflicts of interest standards under 5 CFR 2635.
    Some comments objected to the Federal proposal because they were 
inconsistent with the Federal policy on self-governance. While there is 
a strong Federal policy of self-governance, it does not diminish the 
Federal government's trust responsibility. The standards adopted with 
this regulation balance the Federal government's trust responsibilities 
with the policy of self-governance. The organizational conflicts of 
interest apply only if the AFA affects the interests of allottees, 
trust resources or statutory obligations to a third party. The personal 
conflicts of interest regulations only apply to trust programs. These 
provisions would only apply in the absence of a Tribal code or AFA 
provision that adequately protects trust beneficiaries from conflicts 
of interest. The rule also acknowledges that Tribal codes and 
negotiated AFA provisions, that are agreed to by the Department, are 
the preferred manner to address conflicts of interest. A proposal was 
made to replace Secs. 1000.462-.464 with a single question and answer 
that allows the Tribe/Consortium to have some procedure in place that 
will avoid as is practicable possible conflicts of interest. This 
suggestion was not accepted even though the Department acknowledges 
that such regulations may be difficult for some smaller tribes to 
implement. However, the Department must ensure that there is no 
conflict of interest when a Tribe/Consortium manages trust programs so 
that the Secretary's trust responsibility is not compromised.

Review Under Executive Order 12612

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

Review Under Executive Order 12630

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

Review Under Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), BIA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:

[[Page 78702]]

    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations or recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The rule describes the process and procedures for negotiating 
annual funding agreements with Indian Tribes/consortia. Thus, the 
impact of the rule is confined to the federal government and the Indian 
trust beneficiaries and does not impose a compliance burden on the 
economy generally. No new monies are introduced into the stream of 
commerce with this rulemaking. Accordingly, it has been determined that 
this rule is not a ``significant regulatory action'' from an economic 
standpoint, or otherwise creates any inconsistencies or budgetary 
impacts to any other agency or federal program. However, the Department 
submitted the rule for review by the Office of Management and Budget 
(OMB) as a significant policy matter impacting federally-recognized 
tribes/consortia that participate in the Tribal Self-Governance Program 
administered by BIA.

Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section (b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under guidelines issues by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. The Department of the 
Interior has determined that, to the extent permitted by law, the final 
rule meets the relevant standards of Executive Order 12988.

Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., which requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have significant 
economic impact on a substantial number of small entities. This rule 
establishes the process and procedures for negotiating annual funding 
agreements with Indian Tribes/consortia. Indian tribes are not small 
entities under the Regulatory Flexibility Act. Accordingly, the 
Department of the Interior has determined that this proposed regulation 
will not have a significant economic impact on a substantial number of 
small entities, and, therefore, no regulatory flexibility analysis has 
been prepared.

Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996 (SBREFA)

    This final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
proposed rule will not result in an annual effect on the economy of 
$100 million or more. The rule establishes the process and procedures 
for negotiating annual funding agreements with Indian Tribes/consortia 
and no new monies are being introduced into the stream of commerce. The 
final rule will not result in a major increase in costs or prices. The 
effect of this final rule will be to ensure consistent administration 
of the Tribal Self-Governance Program. No increases in costs for 
administration will be realized and no prices would be impacted through 
this administrative rulemaking. The final rule will not result in any 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets. The impact of the final rule will be realized by Indian 
Tribes/Consortia, and the administrative process and procedures 
promulgated in the final rule will not otherwise have a significant 
impact on any small businesses or enterprises.

Review Under Executive Order 13132--Federalism

    The final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. While this final rule will impact tribal 
governments, there is no Federalism impact on the trust relationship or 
balance of power between the United States government and the various 
Indian Tribes/consortia affected by this rulemaking. Therefore, in 
accordance with Executive Order 13132, it is determined that this rule 
will not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.

Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the Act, the 
Department generally must prepare a written statement, including a 
cost-benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to state, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. This final rule will not result in the 
expenditure by the state, local and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. The Department, however, determined that because the rulemaking 
will uniquely affect tribal governments it would follow Departmental 
and Administration protocols in consulting with tribal governments on 
the rulemaking. As this final rule was the result of a negotiated 
rulemaking process, with both a ``Tribal Team'' and a ``Federal Team,'' 
the Department asserts that appropriate consultation was achieved. 
Results of the ongoing negotiated rulemaking process were periodically 
reported and discussed in Federal/Tribal fora and these consultations 
met the mandates established by the President's Executive Order 13084, 
``Consultation and

[[Page 78703]]

Coordination with Indian Tribal Governments.'' Tribal officials and the 
effected tribal constituency were given the opportunity for meaningful 
and timely input in the development of the final rule.

NEPA Compliance

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

Federal Paperwork Reduction Act

    In accordance with 44 U.S.C. 3507(d), OSG submitted the information 
collection and record keeping requirements of 25 CFR Part 1000 to the 
Office of Management and Budget (OMB) for review and approval. The OMB 
approved the self-governance information collection and assigned 
control number 1076-0143 to it.
25 CFR Part 1000
    Title: Annual Funding Agreements Under the Tribal Self-Governance 
Act Amendments to the Indian Self-Determination and Education Act.
    OMB Control Number: 1076-0143.
    Abstract: The Department of the Interior and Indian government 
representatives negotiated a rule to implement section 407 of Pub. L. 
103-413, the Tribal Self-Governance Act of 1994. As required by section 
407 of the Act, the Secretary, upon request of a majority of the self-
governance Tribes, initiated procedures under subchapter III of Chapter 
5 of Title 5, U.S.C., to negotiate and promulgate regulations that are 
necessary to carry out title IV. This rule will allow the Department to 
negotiate annual funding agreements with self-governance Tribes for 
programs, services, functions and activities conducted by the 
Department. The Department developed this negotiated rulemaking with 
active Tribal participation, and it contains the proposed information 
collection.
    Need for and Use: The information provided by the Tribes will be 
used by the Department of the Interior for a variety of purposes. The 
first purpose will be to ensure that qualified applicants are admitted 
into the applicant pool consistent with the requirements of the Act. In 
addition, Tribes seeking grant assistance to meet the planning 
requirements for admission into the applicant pool will provide 
information so that grants can be awarded to Tribes meeting basic 
eligibility (i.e. Tribal resolution indicating that the Tribe wants to 
plan for self-governance and has no material audit exceptions for the 
last three years). Other documentation is required to meet the 
reporting requirements as called for in Section 405 of the Act.
    Respondents: Tribes and Tribal Consortia that may be affected by 
self-governance activities or request funding for projects or services.
    Total Annual Burden: Refer to proposed 25 CFR 1000.3 for a detailed 
table of the burden estimates anticipated by this rulemaking.
    Comments were invited on:
    (a) Whether the proposed collection of information is necessary for 
the proper performance of the Department of the Interior, including 
whether the information will have practical utility;
    (b) The accuracy of OSG's estimate of the burden of the proposed 
collection of information;
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (d) Ways to minimize the burden of collection on the respondents. 
No comments were received concerning the information collection 
requirements of this rule.
    No comments were received on the information collection issues in 
the proposed regulation. Under the Paperwork Reduction Act, OSG must 
obtain OMB approval of all information and record keeping requirements. 
No person is required to respond to an information collection request 
unless the form or regulation requesting the information has a 
currently valid OMB control (clearance) number. This number appears in 
25 CFR 1000.3. To obtain a copy of OSG's information collection 
clearance requests, explanatory information, and related form, contact 
the Information Collection Clearance Officer, Office of Self-
Governance, at (202) 219-0240.

List of Subjects in 25 CFR Part 1000

    Grant programs--Indians, Indians.


    Dated: September 5, 2001.
Bruce Babbitt,
Secretary of the Interior.
    For the reasons set out in the preamble, the Department of the 
Interior adds a new part 1000 in chapter VI of title 25 of the Code of 
Federal Regulations as set forth below.

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

Subpart A--General Provisions
Sec.
1000.1   Authority.
1000.2   Definitions.
1000.3   Purpose and scope.
1000.4   Policy statement.
Subpart B--Selection of Additional Tribes for Participation in Tribal 
Self-Governance

Purpose and Definitions

1000.10   What is the purpose of this subpart?
1000.11   What is the ``applicant pool''?
1000.12   What is a ``signatory''?
1000.13   What is a ``nonsignatory Tribe''?

Eligibility

1000.14   Who is eligible to participate in Tribal self-governance?
1000.15   How many additional Tribes/Consortia may participate in 
self-governance per year?
1000.16   What criteria must a Tribe/Consortium satisfy to be 
eligible for admission to the ``applicant pool''?
1000.17   What documents must a Tribe/Consortium submit to OSG to 
apply for admission to the applicant pool?
1000.18   May a Consortium member Tribe withdraw from the Consortium 
and become a member of the applicant pool?
1000.19   What is done during the ``planning phase''?
1000.20   What is required in a planning report?
1000.21   When does a Tribe/Consortium have a ``material audit 
exception''?
1000.22   What are the consequences of having a material audit 
exception?

Admission Into the Applicant Pool

1000.23   How is a Tribe/Consortium admitted to the applicant pool?
1000.24   When does OSG accept applications to become a member of 
the applicant pool?
1000.25   What are the deadlines for a Tribe/Consortium in the 
applicant pool to negotiate a compact and annual funding agreement 
(AFA)?
1000.26   Under what circumstances will a Tribe/Consortium be 
removed from the applicant pool?
1000.27   How does the Director select which Tribes in the applicant 
pool become self-governance Tribes?
1000.28   What happens if an application is not complete?
1000.29   What happens if a Tribe/Consortium is selected from the 
applicant pool but does not execute a compact and an AFA during the 
calendar year?
1000.30   May a Tribe/Consortium be selected to negotiate an AFA 
under section 403(b)(2) without having or negotiating an AFA under 
section 403(b)(1)?
1000.31   May a Tribe/Consortium be selected to negotiate an AFA 
under section 403(c) without negotiating an AFA under section 
403(b)(1) and/or section 403(b)(2)?

Withdrawal From a Consortium Annual Funding Agreement

1000.32   What happens when a Tribe wishes to withdraw from a 
Consortium annual funding agreement?

[[Page 78704]]

1000.33   What amount of funding is to be removed from the 
Consortium's AFA for the withdrawing Tribe?
1000.34   What happens if there is a dispute between the Consortium 
and the withdrawing Tribe?
1000.35   When a Tribe withdraws from a Consortium, is the Secretary 
required to award to the withdrawing Tribe a portion of funds 
associated with a construction project if the withdrawing Tribe so 
requests?
Subpart C--Section 402(d) Planning and Negotiation Grants

Purpose and Types of Grants

1000.40   What is the purpose of this subpart?
1000.41   What types of grants are available?

Availability, Amount, and Number of Grants

1000.42   Will grants always be made available to meet the planning 
phase requirement as described in section 402(d) of the Act?
1000.43   May a Tribe/Consortium use its own resources to meet its 
self-governance planning and negotiation expenses?
1000.44   What happens if there are insufficient funds to meet the 
Tribal requests for planning/negotiation grants in any given year?
1000.45   How many grants will the Department make each year and 
what funding will be available?

Selection Criteria

1000.46   Which Tribes/Consortia may be selected to receive a 
negotiation grant?
1000.47   What must a Tribe/Consortium do to receive a negotiation 
grant?
1000.48   What must a Tribe do if it does not wish to receive a 
negotiation grant?

Advance Planning Grant Funding

1000.49   Who can apply for an advance planning grant?
1000.50   What must a Tribe/Consortium seeking a planning grant 
submit in order to meet the planning phase requirements?
1000.51   How will Tribes/Consortia know when and how to apply for 
planning grants?
1000.52   What criteria will the Director use to award advance 
planning grants?
1000.53   Can Tribes/Consortia that receive advance planning grants 
also apply for a negotiation grant?
1000.54   How will a Tribe/Consortium know whether or not it has 
been selected to receive an advance planning grant?
1000.55   Can a Tribe/Consortium appeal within DOI the Director's 
decision not to award a grant under this subpart?
Subpart D--Other Financial Assistance for Planning and Negotiations 
Grants for Non-BIA Programs

Purpose and Eligibility

1000.60   What is the purpose of this subpart?
1000.61   Are other funds available to self-governance Tribes/
Consortia for planning and negotiating with non-BIA bureaus?

Eligibility and Application Process

1000.62   Who can apply to OSG for grants to plan and negotiate non-
BIA programs?
1000.63   Under what circumstances may planning and negotiation 
grants be awarded to Tribes/Consortia?
1000.64   How does the Tribe/Consortium, know when and how to apply 
to OSG for a planning and negotiation grant?
1000.65   What kinds of activities do planning and negotiation 
grants support?
1000.66   What must be included in the application?
1000.67   How will the Director award planning and negotiation 
grants?
1000.68   May non-BIA bureaus provide technical assistance to a 
Tribe/Consortium in drafting its planning grant application?
1000.69   How can a Tribe/Consortium obtain comments or selection 
documents received or utilized after OSG has made a decision on a 
planning grant application?
1000.70   What criteria will the Director use to rank the 
applications and how many maximum points can be awarded for each 
criterion?
1000.71   Can an applicant appeal a decision not to award a grant?
1000.72   Will OSG notify Tribes/Consortia and affected non-BIA 
bureaus of the results of the selection process?
1000.73   Once a Tribe/Consortium has been awarded a grant, may the 
Tribe/Consortium obtain information from a non-BIA bureau?
Subpart E--Annual Funding Agreements for Bureau of Indian Affairs 
Programs
1000.80   What is the purpose of this subpart?
1000.81   What is an annual funding agreement (AFA)?

Contents and Scope of Annual Funding Agreements

1000.82   What types of provisions must be included in a BIA AFA?
1000.83   Can additional provisions be included in an AFA?
1000.84   Does a Tribe/Consortium have the right to include 
provisions of Title I of Pub. L. 93-638 in an AFA?
1000.85   Can a Tribe/Consortium negotiate an AFA with a term that 
exceeds one year?

Determining What Programs May Be Included in an AFA

1000.86   What types of programs may be included in an AFA?
1000.87   How does the AFA specify the services provided, functions 
performed, and responsibilities assumed by the Tribe/Consortium and 
those retained by the Secretary?
1000.88   Do Tribes/Consortia need Secretarial approval to redesign 
BIA programs that the Tribe/Consortium administers under an AFA?
1000.89   Can the terms and conditions in an AFA be amended during 
the year it is in effect?
1000.90   What happens if an AFA expires before the effective date 
of the successor AFA?

Determining AFA Amounts

1000.91   What funds must be transferred to a Tribe/Consortium under 
an AFA?
1000.92   What funds may not be included in an AFA?
1000.93   May the Secretary place any requirements on programs and 
funds that are otherwise available to Tribes/Consortia or Indians 
for which appropriations are made to agencies other than DOI?
1000.94   What are BIA residual funds?
1000.95   How is BIA's residual determined?
1000.96   May a Tribe/Consortium continue to negotiate an AFA 
pending an appeal of residual functions and amounts?
1000.97   What is a Tribal share?
1000.98   How does BIA determine a Tribe's/Consortium's share of 
funds to be included in an AFA?
1000.99   Can a Tribe/Consortium negotiate a Tribal share for 
programs outside its region/agency?
1000.100   May a Tribe/Consortium obtain funding that is distributed 
on a discretionary or competitive basis?
1000.101   Are all funds identified as Tribal shares always paid to 
the Tribe/Consortium under an AFA?
1000.102   How are savings that result from downsizing allocated?
1000.103   Do Tribes/Consortia need Secretarial approval to 
reallocate funds between programs that the Tribe/Consortium 
administers under the AFA?
1000.104   Can funding amounts negotiated in an AFA be adjusted 
during the year it is in effect?

Establishing Self-Governance Base Budgets

1000.105   What are self-governance base budgets?
1000.106   Once a Tribe/Consortium establishes a base budget, are 
funding amounts renegotiated each year?
1000.107   Must a Tribe/Consortium with a base budget or base 
budget-eligible program amounts negotiated before January 16, 2001 
negotiate new Tribal shares and residual amounts?
1000.108   How are self-governance base budgets established?
1000.109   How are self-governance base budgets adjusted?
Subpart F--Non-BIA Annual Self-Governance Compacts and Funding 
Agreements

Purpose

1000.120   What is the purpose of this subpart?
1000.121   What is an annual funding agreement for a non-BIA 
program?

Eligibility

1000.122   What non-BIA programs are eligible for inclusion in an 
AFA?
1000.123   Are there non-BIA programs for which the Secretary must 
negotiate for inclusion in an AFA subject to such terms as the 
parties may negotiate?
1000.124   What programs are included under section 403(b)(2) of the 
Act?

[[Page 78705]]

1000.125   What programs are included under section 403(c)?
1000.126   What does ``special geographic, historical or cultural'' 
mean?
1000.127   Under section 403(b)(2), when must programs be awarded 
non-competitively?
1000.128   Is there a contracting preference for programs of special 
geographic, historical, or cultural significance?
1000.129   Are there any programs that may not be included in an 
AFA?
1000.130   Does a Tribe/Consortium need to be identified in an 
authorizing statute in order for a program or element of a program 
to be included in a non-BIA AFA?
1000.131   Will Tribes/Consortia participate in the Secretary's 
determination of what is to be included on the annual list of 
available programs?
1000.132   How will the Secretary consult with Tribes/Consortia in 
developing the list of available programs?
1000.133   What else is on the list in addition to eligible 
programs?
1000.134   May a bureau negotiate with a Tribe/Consortium for 
programs not specifically included on the annual section 405(c) 
list?
1000.135   How will a bureau negotiate an annual funding agreement 
for a program of special geographic, historical, or cultural 
significance to more than one Tribe?
1000.136   When will this determination be made?

Funding

1000.137   What funds are included in an AFA?
1000.138   How are indirect cost rates determined?
1000.139   Will the established indirect cost rate always apply to 
new AFAs?
1000.140   How does the Secretary determine the amount of indirect 
contract support costs?
1000.141   Is there a predetermined cap or limit on indirect cost 
rates or a fixed formula for calculating indirect cost rates?
1000.142   Instead of the negotiated indirect cost rate, is it 
possible to establish a fixed amount or another negotiated rate for 
indirect costs where funds are limited?

Other Terms and Conditions

1000.143   May the bureaus negotiate terms to be included in an AFA 
for non-Indian programs?

Reallocation, Duration and Amendments

1000.144   Can a Tribe reallocate funds for a non-BIA non-Indian 
program?
1000.145   Do Tribes/Consortia need Secretarial approval to 
reallocate funds between Title-I eligible programs that the Tribe/
Consortium administers under a non-BIA AFA?
1000.146   Can a Tribe/Consortium negotiate an AFA with a non-BIA 
bureau for which the performance period exceeds one year?
1000.147   Can the terms and conditions in a non-BIA AFA be amended 
during the year it is in effect?
1000.148   What happens if an AFA expires before the effective date 
of the successor AFA?
Subpart G--Negotiation Process for Annual Funding Agreements

Purpose

1000.160   What is the purpose of this subpart?

Negotiating a Self-Governance Compact

1000.161   What is a self-governance compact?
1000.162   What is included in a self-governance compact?
1000.163   Can a Tribe negotiate other terms and conditions not 
contained in the model compact?
1000.164   Can a Tribe/Consortium have an AFA without entering into 
a compact?
1000.165   Are provisions in compacts negotiated before January 16, 
2001, effective after implementation?

Negotiation of Initial Annual Funding Agreements

1000.166   What are the phases of the negotiation process?
1000.167   Who may initiate the information phase?
1000.168   Is it mandatory to go through the information phase 
before initiating the negotiation phase?
1000.169   How does a Tribe/Consortium initiate the information 
phase?
1000.170   What is the letter of interest?
1000.171   When should a Tribe/Consortium submit a letter of 
interest?
1000.172   What steps does the bureau take after a letter of 
interest is submitted by a Tribe/Consortium?
1000.173   How does a newly selected Tribe/Consortium initiate the 
negotiation phase?
1000.174   How and when does the bureau respond to a request to 
negotiate?
1000.175   What is the process for conducting the negotiation phase?
1000.176   What issues must the bureau and the Tribe/Consortium 
address at negotiation meetings?
1000.177   What happens when the AFA is signed?
1000.178   When does the AFA become effective?
1000.179   What happens if the Tribe/Consortium and bureau 
negotiators fail to reach an agreement?

Negotiation Process for Successor Annual Funding Agreements

1000.180   What is a successor AFA?
1000.181   How does the Tribe/Consortium initiate the negotiation of 
a successor AFA?
1000.182   What is the process for negotiating a successor AFA?
Subpart H--Limitation and/or Reduction of Services, Contracts, and 
Funds
1000.190   What is the purpose of this subpart?
1000.191   To whom does this subpart apply?
1000.192   What services, contracts, or funds are protected under 
section 406(a)?
1000.193   Who may raise the issue of limitation or reduction of 
services, contracts, or funding?
1000.194   When must BIA raise the issue of limitation or reduction 
of services, contracts, or funding?
1000.195   When must an affected Tribe/Consortium or Tribal 
organization raise the issue of a limitation or reduction of 
services, contracts, or funding for which it is eligible?
1000.196   What must be included in a finding by BIA or in a claim 
by or an affected Tribe/Consortium or Tribal organization regarding 
the issue of a limitation or reduction of services?
1000.197   How will BIA resolve a claim?
1000.198   How must a limitation or reduction in services, 
contracts, or funds be remedied?
Subpart I--Public Consultation Process
1000.210   When does a non-BIA bureau use a public consultation 
process related to the negotiation of an AFA?
1000.211   Will the bureau contact the Tribe/Consortium before 
initiating public consultation process for a non-BIA AFA under 
negotiation?
1000.212   What is the role of the Tribe/Consortium when a bureau 
initiates a public meeting?
1000.213   What should the bureau do if it is invited to attend a 
meeting with respect to the Tribe's/Consortium's proposed AFA?
1000.214   Will the bureau and the Tribe/Consortium share 
information concerning inquiries about the Tribes/Consortia and the 
AFA?
Subpart J--Waiver of Regulations
1000.220   What regulations apply to self-governance Tribes?
1000.221   Can the Secretary grant a waiver of regulations to a 
Tribe/Consortium?
1000.222   How does a Tribe/Consortium obtain a waiver?
1000.223   When can a Tribe/Consortium request a waiver of a 
regulation?
1000.224   How can a Tribe/Consortium expedite the review of a 
regulation waiver request?
1000.225   Are meetings or discussions mandatory?
1000.226   On what basis may the Secretary deny a waiver request?
1000.227   What happens if the Secretary denies the waiver request?
1000.228   What are examples of waivers prohibited by law?
1000.229   May a Tribe/Consortium propose a substitute for a 
regulation it wishes to be waived?
1000.230   How is a waiver approval documented for the record?
1000.231   How does a Tribe/Consortium request a reconsideration of 
the Secretary's denial of a waiver?
1000.232   When must DOI respond to a request for reconsideration?

[[Page 78706]]

Subpart K--Construction
1000.240   What construction programs included in an AFA are subject 
to this subpart?
1000.241   Does this subpart create an agency relationship?
1000.242   What provisions relating to a construction program may be 
included in an AFA?
1000.243   What special provisions must be included in an AFA that 
contains a construction program?
1000.244   May the Secretary suspend construction activities under 
an AFA?
1000.245   May a Tribe/Consortium continue work with construction 
funds remaining in an AFA at the end of the funding year?
1000.246   Must an AFA that contains a construction project or 
activity incorporate provisions of Federal construction standards?
1000.247   May the Secretary require design provisions and other 
terms and conditions for construction programs or activities 
included in an AFA under section 403(c) of the Act?
1000.248   What is the Tribe's/Consortium's role in a construction 
program included in an AFA?
1000.249   What is the Secretary's role in a construction program in 
an AFA?
1000.250   How are property and funding returned if there is a 
reassumption for substantial failure to carry out an AFA?
1000.251   What happens when a Tribe/Consortium is suspended for 
substantial failure to carry out the terms of an AFA without good 
cause and does not correct the failure during the suspension?
1000.252   Do all provisions of other subparts apply to construction 
portions of AFAs?
1000.253   When a Tribe withdraws from a Consortium, is the 
Secretary required to award to the withdrawing Tribe a portion of 
funds associated with a construction project if the withdrawing 
Tribe so requests?
1000.254   May a Tribe/Consortium reallocate funds from a 
construction program to a non-construction program?
1000.255   May a Tribe/Consortium reallocate funds among 
construction programs?
1000.256   Must the Secretary retain project funds to ensure proper 
health and safety standards in construction projects?
Subpart L--Federal Tort Claims
1000.270   What does this subpart cover?
1000.271   What other statutes and regulations apply to FTCA 
coverage?
1000.272   Do Tribes/Consortia need to be aware of areas which FTCA 
does not cover?
1000.273   Is there a deadline for filing FTCA claims?
1000.274   How long does the Federal government have to process a 
FTCA claim after the claim is received by the Federal agency, before 
a lawsuit may be filed?
1000.275   Is it necessary for a self-governance AFA to include any 
clauses about FTCA coverage?
1000.276   Does FTCA apply to a self-governance AFA if FTCA is not 
referenced in the AFA?
1000.277   To what extent shall the Tribe/Consortium cooperate with 
the Federal government in connection with tort claims arising out of 
the Tribe's/Consortium's performance?
1000.278   Does this coverage extend to subcontractors of self-
governance AFAs?
1000.279   Is FTCA the exclusive remedy for a tort claim, including 
a claim concerning personal injury or death, resulting from the 
performance of a self-governance AFA?
1000.280   What employees are covered by FTCA for medical-related 
claims?
1000.281   Does FTCA cover employees of the Tribe/Consortium who are 
paid by the Tribe/Consortium from funds other than those provided 
through the self-governance AFA?
1000.282   May persons who are not Indians or Alaska Natives assert 
claims under FTCA?
1000.283   If the Tribe/Consortium or the Tribe's/Consortium's 
employee receives a summons and/or complaint alleging a tort covered 
by FTCA, what should a Tribe/Consortium do?
Subpart M--Reassumption
1000.300   What is the purpose of this subpart?
1000.301   When may the Secretary reassume a Federal program 
operated by a Tribe/Consortium under an AFA?
1000.302   What is ``imminent jeopardy'' to a trust asset?
1000.303   What is imminent jeopardy to natural resources?
1000.304   What is imminent jeopardy to public health and safety?
1000.305   In an imminent jeopardy situation, what must the 
Secretary do?
1000.306   Must the Secretary always reassume a program, upon a 
finding of imminent jeopardy?
1000.307   What happens if the Secretary's designated representative 
determines that the Tribe/Consortium cannot mitigate the conditions 
within 60 days?
1000.308   What will the notice of reassumption include?
1000.309   How much time will a Tribe/Consortium have to respond to 
a notice of imminent jeopardy?
1000.310   What information must the Tribe's/Consortium's response 
contain?
1000.311   How will the Secretary reply to the Tribe's/Consortium's 
response?
1000.312   What happens if the Secretary accepts the Tribe's/
Consortium's proposed measures?
1000.313   What happens if the Secretary does not accept the 
Tribe's/Consortium's proposed measures?
1000.314   What must a Tribe/Consortium do when a program is 
reassumed?
1000.315   When must the Tribe/Consortium return funds to the 
Department?
1000.316   May the Tribe/Consortium be reimbursed for actual and 
reasonable ``wind up costs'' incurred after the effective date of 
retrocession?
1000.317   Is a Tribe's/Consortium's general right to negotiate an 
AFA adversely affected by a reassumption action?
1000.318   When will the Secretary return management of a reassumed 
program?
Subpart N--Retrocession
1000.330   What is the purpose of this subpart?
1000.331   Is a decision by a Tribe/Consortium not to include a 
program in a successor agreement considered a retrocession?
1000.332   Who may retrocede a program in an AFA?
1000.333   How does a Tribe/Consortium retrocede a program?
1000.334   When will the retrocession become effective?
1000.335   How will retrocession affect the Tribe's/Consortium's 
existing and future AFAs?
1000.336   Does the Tribe/Consortium have to return funds used in 
the operation of a retroceded program?
1000.337   Does the Tribe/Consortium have to return property used in 
the operation of a retroceded program?
1000.338   What happens to a Tribe's/Consortium's mature contractor 
status if it has retroceded a program that is also available for 
self-determination contracting?
1000.339   How does retrocession affect a bureau's operation of the 
retroceded program?
Subpart O--Trust Evaluation Review
1000.350   What is the purpose of this subpart?
1000.351   Does the Tribal Self-Governance Act of 1994 alter the 
trust responsibility of the United States to Indian Tribes and 
individuals under self-governance?
1000.352   What are ``trust resources'' for the purposes of the 
trust evaluation process?
1000.353   What are ``trust functions'' for the purposes of the 
trust evaluation process?

Annual Trust Evaluations

1000.354   What is a trust evaluation?
1000.355   How are trust evaluations conducted?
1000.356   May the trust evaluation process be used for additional 
reviews?
1000.357   May the parties negotiate standards of review for 
purposes of the trust evaluation?
1000.358   Can an initial review of the status of the trust asset be 
conducted?
1000.359   What are the responsibilities of the Secretary's 
designated representative(s) after the annual trust evaluation?
1000.360   Is the trust evaluation standard or process different 
when the trust asset is held in trust for an individual Indian or 
Indian allottee?
1000.361   Will the annual review include a review of the 
Secretary's residual trust functions?
1000.362   What are the consequences of a finding of imminent 
jeopardy in the annual trust evaluation?
1000.363   What if the trust evaluation reveals problems that do not 
rise to the level of imminent jeopardy?

[[Page 78707]]

1000.364   Who is responsible for corrective action?
1000.365   What are the requirements of the review team report?
1000.366   Can the Department conduct more than one trust evaluation 
per Tribe per year?
1000.367   Will the Department evaluate a Tribe's/Consortium's 
performance of non-trust related programs?
Subpart P--Reports
1000.380   What is the purpose of this subpart?
1000.381   How is information about self-governance developed and 
reported?
1000.382   What may the Tribe's/Consortium's annual report on self-
governance address?
Subpart Q--Miscellaneous Provisions
1000.390  How can a Tribe/Consortium hire a Federal employee to help 
implement an AFA?
1000.391   Can a Tribe/Consortium employee be detailed to a Federal 
service position?
1000.392   How does the Freedom of Information Act apply?
1000.393   How does the Privacy Act apply?
1000.394   What audit requirements must a self-governance Tribe/
Consortium follow?
1000.395   Do OMB circulars and revisions apply to self-governance 
funding agreements?
1000.396   Does a Tribe/Consortium have additional ongoing 
requirements to maintain minimum standards for Tribe/Consortium 
management systems?
1000.397   Are there any restrictions on how AFA funds may be spent?
1000.398   May a Tribe/Consortium invest funds received under a 
self-governance agreement?
1000.399   How may interest or investment income that accrues on 
AFAs be used?
1000.400   Can a Tribe/Consortium retain savings from programs?
1000.401   Can a Tribe/Consortium carry over funds not spent during 
the term of the AFA?
1000.402   After a non-BIA AFA has been executed and the funds 
transferred to a Tribe/Consortium, can a bureau request the return 
of funds?
1000.403   How can a person or group appeal a decision or contest an 
action related to a program operated by a Tribe/Consortium under an 
AFA?
1000.404   Must self-governance Tribes/Consortia comply with the 
Secretarial approval requirements of 25 U.S.C. 81, 82a, and 476 
regarding professional and attorney contracts?
1000.405   Are AFA funds non-Federal funds for the purpose of 
meeting matching requirements?
1000.406   Does Indian preference apply to services, activities, 
programs and functions performed under a self-governance AFA?
1000.407   Do the wage and labor standards in the Davis-Bacon Act 
apply to Tribes and Tribal Consortia?

Supply Sources

1000.408   Can a Tribe/Consortium use Federal supply sources in the 
performance of an AFA?

Prompt Payment Act

1000.409   Does the Prompt Payment Act (31 U.S.C. 3901) apply to a 
non-BIA, non-Indian program AFA?

Subpart R--Appeals

1000.420   What does ``Title-I eligible programs'' mean in this 
subpart?
1000.421   What is the purpose of this subpart?
1000.422   How must disputes be handled?
1000.423   Are there any decisions that are not administratively 
appealable under this subpart?
1000.424   Does a Tribe/Consortium have a right to an informal 
conference to resolve any disputes?
1000.425   How does a Tribe/Consortium request an informal 
conference?
1000.426   How is an informal conference held?
1000.427   What happens after the informal conference?
1000.428   How may a Tribe/Consortium appeal a decision made after 
the AFA or compact or amendment to an AFA or compact has been 
signed?
1000.429   What statutes and regulations govern resolution of 
disputes concerning signed AFAs or compacts that are appealed to 
IBCA?
1000.430   To whom are appeals directed regarding reassumption for 
imminent jeopardy?
1000.431   Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?
1000.432   To whom may a Tribe appeal a decision made before the AFA 
or an amendment to the AFA or compact is signed?
1000.433   When and how must a Tribe/Consortium appeal an adverse 
pre-award decision?
1000.434   When must the bureau head (or appropriate Assistant 
Secretary) issue a final decision in the pre-award appeal?
1000.435   When and how will the Assistant Secretary respond to an 
appeal by a Tribe/Consortium?
1000.436   How may a Tribe/Consortium seek reconsideration of the 
Secretary's decision involving a self-governance compact?
1000.437   When will the Secretary respond to a request for 
reconsideration of a decision involving a self-governance compact?
1000.438   May Tribes/Consortia appeal Department decisions to a 
Federal court?

Subpart S--Conflicts of Interest

1000.460   What is an organizational conflict of interest?
1000.461   What must a Tribe/Consortium do if an organizational 
conflict of interest arises under an AFA?
1000.462   When must a Tribe/Consortium regulate its employees or 
subcontractors to avoid a personal conflict of interest?
1000.463   What types of personal conflicts of interest involving 
Tribal officers, employees or subcontractors would have to be 
regulated by a Tribe/Consortium?
1000.464   What personal conflicts of interest must the standards of 
conduct regulate?
1000.465   May a Tribe/Consortium negotiate AFA provisions on 
conflicts of interest to take the place of this subpart?
Appendix A--to Part 1000--Model Compact of Self-Governance Between 
the Tribe and the Department of the Interior

    Authority: 25 U.S.C. 458aa-gg.

Subpart A--General Provisions


Sec. 1000.1  Authority.

    This part is prepared and issued by the Secretary of the Interior 
under the negotiated rulemaking procedures in 5 U.S.C. 565.


Sec. 1000.2  Definitions.

    403(c) Program means a non-BIA program eligible under section 
403(c) of the Indian Self-Determination and Education Assistance Act of 
1975, as amended, 25 U.S.C. 450 et seq. and, specifically, a program, 
function, service, or activity that is of special geographic, 
historical or cultural significance to a self-governance Tribe/
Consortium. These programs may be referred to, also, as ``nexus'' 
programs.
    Act means the Tribal Self-Governance Act, Title IV of the Indian 
Self-Determination and Education Assistance Act of 1975, Pub. L. 93-
638, as added by Pub. L. 103-413, amended by Pub. L. 104-109, as 
amended.
    Applicant pool means Tribes/Consortia that the Director of the 
Office of Self-Governance has determined are eligible to participate in 
self-governance in accordance with Sec. 1000.16 of these regulations.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BIA Program means any program, service, function, or activity, or 
portion thereof, that is performed or administered by the Department 
through the Bureau of Indian Affairs.
    Bureau means a bureau or office of the Department of the Interior.
    Compact means an executed document that affirms the government-to-
government relationship between a self-governance Tribe and the United 
States. The compact differs from an annual funding agreement (AFA) in 
that parts of the compact apply to all bureaus within the Department of 
the Interior rather than a single bureau.
    Consortium means an organization of Indian Tribes that is 
authorized by those Tribes to participate in self-governance under this 
part and is responsible for negotiating, executing, and implementing 
annual funding agreements and compacts.
    Construction management services (CMS) means activities limited to

[[Page 78708]]

administrative support services, coordination, oversight of engineers 
and construction activities. CMS services include services that precede 
project design: all project design and actual construction activities 
are subject to Subpart K of these regulations whether performed by a 
Tribe subcontractor, or consultant.
    Days means calendar days, except where the last day of any time 
period specified in this part falls on a Saturday, Sunday, or a Federal 
holiday, the period must carry over to the next business day unless 
otherwise prohibited by law.
    Director means the Director of the Office of Self-Governance (OSG).
    DOI or Department means the Department of the Interior.
    Funding year means either fiscal or calendar year.
    Indian means a person who is a member of an Indian Tribe.
    Indian Tribe or Tribe means any Indian Tribe, band, nation or other 
organized group or community, including pueblos, rancherias, colonies 
and any Alaska Native village, or regional or village corporations as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act, that is recognized as eligible for special programs and 
services provided by the United States to Indians because of their 
status as Indians.
    Indirect cost rates means the rate(s) arrived at through 
negotiation between an Indian Tribe/Consortium and the appropriate 
Federal agency.
    Indirect costs means costs incurred for a common or joint purpose 
benefitting more than one program and that are not readily assignable 
to individual programs.
    Nexus Program means a 403(c) Program as defined in this section.
    Non-BIA Bureau means any bureau or office within the Department of 
the Interior other than the Bureau of Indian Affairs.
    Non-BIA programs means those programs administered by bureaus or 
offices other than the Bureau of Indian Affairs within the Department 
of the Interior.
    Office of Self-Governance (OSG) means the office within the Office 
of the Assistant Secretary-Indian Affairs responsible for the 
implementation and development of the Tribal Self-Governance Program.
    Program means any program, service, function, or activity, or 
portions of programs administered by a bureau within the Department of 
the Interior.
    Pub. L. 93-638 means sections 1-9 and Title I of the Indian Self-
Determination and Education Assistance Act of 1975, as amended.
    Reassumption means that the Secretary reassumes control or 
operation of a program under Sec. 1000.300 et seq.
    Retained Tribal shares means those funds that were available as a 
Tribal share but under the AFA were left with BIA to administer.
    Retrocession means the voluntary return by a Tribe/Consortium to a 
bureau of a program operated under an AFA before the agreement expires.
    Secretary means the Secretary of the Interior (DOI) or his or her 
designee authorized to act on the behalf of the Secretary as to the 
matter at hand.
    Self-governance Tribe/Consortium means a Tribe or Consortium that 
participates in permanent self-governance through application and 
selection from the applicant pool or has participated in the Tribal 
self-governance demonstration project. May also be referred to as 
``participating Tribe/Consortium.''
    Successor AFA means a funding agreement negotiated after a Tribe's/
Consortium's initial agreement with a bureau for continuing to perform 
a particular program. The parties to the AFA should generally use the 
terms of the existing AFA to expedite and simplify the exchange of 
information and the negotiation process.
    Tribal share means the amount determined for that Tribe/Consortium 
for a particular program at BIA region, agency, and central office 
levels under sec. 403(g)(3) and 405(d) of the Act.


Sec. 1000.3  Purpose and scope.

    (a) General. This part codifies uniform and consistent rules for 
the Department of the Interior (DOI) in implementing Title IV of the 
Indian Self-Determination and Education Assistance Act (ISDEA) Public 
Law 93-638, 25 U.S.C. 450 et seq., as amended by Title II of Pub. L. 
103-413, the Tribal Self-Governance Act of 1994 (108 Stat. 4250, 
October 25, 1994).
    (b) Information Collection. The information provided by the Tribes 
will be used by the Department for a variety of purposes. The first 
purpose will be to ensure that qualified applicants are admitted into 
the applicant pool consistent with the requirements of the Act. In 
addition, Tribes seeking grant assistance to meet the planning 
requirements for admission into the applicant pool, will provide 
information so that grants can be awarded to Tribes meeting basic 
eligibility (i.e. Tribal resolution indicating that the Tribe wants to 
plan for Self-Governance and has no material audit exceptions for the 
last three years of audits). There is no confidential information being 
solicited and confidentiality is not extended under the law. Other 
documentation is required to meet the reporting requirements as called 
for in section 405 of the Act. The information being provided by the 
Tribes is required to obtain a benefit, however, no person is required 
to respond to an information collection request unless the form or 
regulation requesting the information has a currently valid OMB control 
(clearance) number. Comments were solicited from the Tribes and the 
general public with respect to this collection. No adverse comments 
were received. The information collection has been cleared by OMB. The 
number is OMB control #1076-0143. The approval expires on April 30, 
2003.


Sec. 1000.4  Policy statement.

    (a) Congressional findings. In the Tribal Self-Governance Act of 
1994, the Congress found that:
    (1) The Tribal right of self-governance flows from the inherent 
sovereignty of Indian Tribes and nations;
    (2) The United States recognizes a special government-to-government 
relationship with Indian Tribes, including the right of the Tribes to 
self-governance, as reflected in the Constitution, treaties, Federal 
statues, and the course of dealings of the United States with Indian 
Tribes;
    (3) Although progress had been made, the Federal bureaucracy, with 
its centralized rules and regulations, had eroded Tribal self-
governance and dominated Tribal affairs;
    (4) The Tribal Self-Governance Demonstration Project was designed 
to improve and perpetuate the government-to-government relationship 
between Indian Tribes and the United States and to strengthen Tribal 
control over Federal funding and program management; and
    (5) Congress has reviewed the results of the Tribal Self-Governance 
demonstration project and finds that:
    (i) Transferring control over funding and decision making to Tribal 
governments, upon Tribal request, for Federal programs is an effective 
way to implement the Federal policy of government-to-government 
relations with Indian Tribes; and
    (ii) Transferring control over funding and decision making to 
Tribal governments, upon request, for Federal programs strengthens the 
Federal policy of Indian self-determination.
    (b) Congressional declaration of policy. It is the policy of the 
Tribal Self-Governance Act to permanently establish and implement self-
governance:

[[Page 78709]]

    (1) To enable the United States to maintain and improve its unique 
and continuing relationship with, and responsibility to, Indian Tribes;
    (2) To permit each Tribe to choose the extent of its participation 
in self-governance;
    (3) To coexist with the provisions of the Indian Self-Determination 
and Education Assistance Act relating to the provision of Indian 
services by designated Federal agencies;
    (4) To ensure the continuation of the trust responsibility of the 
United States to Indian Tribes and Indian individuals;
    (5) To permit an orderly transition from Federal domination of 
programs and services to provide Indian Tribes with meaningful 
authority to plan, conduct, redesign, and administer programs, 
services, functions, and activities that meet the needs of the 
individual Tribal communities; and
    (6) To provide for an orderly transition through a planned and 
measurable parallel reduction in the Federal bureaucracy.
    (c) Secretarial self-governance policies. (1) It is the policy of 
the Secretary to fully support and implement the foregoing policies to 
the full extent of the Secretary's authority.
    (2) It is the policy of the Secretary to recognize and respect the 
unique government-to-government relationship between Tribes, as 
sovereign governments, and the United States.
    (3) It is the policy of the Secretary to have all bureaus of the 
Department work cooperatively and pro-actively with Tribes and Tribal 
Consortia on a government-to-government basis within the framework of 
the Act and any other applicable provision of law, so as to make the 
ideals of self-determination and self-governance a reality.
    (4) It is the policy of the Secretary to have all bureaus of the 
Department actively share information with Tribes and Tribal Consortia 
to encourage Tribes and Tribal Consortia to become knowledgeable about 
the Department's programs and the opportunities to include them in an 
annual funding agreement.
    (5) It is the policy of the Secretary that all bureaus of the 
Department will negotiate in good faith, interpret each applicable 
Federal law and regulation in a manner that will facilitate the 
inclusion of programs in each annual funding agreement authorized, and 
enter into such annual funding agreements under Title IV, whenever 
possible.
    (6) It is the policy of the Secretary to afford Tribes and Tribal 
Consortia the maximum flexibility and discretion necessary to meet the 
needs of their communities consistent with their diverse demographic, 
geographic, economic, cultural, health, social, religious, and 
institutional needs. These policies are designed to facilitate and 
encourage Tribes and Tribal Consortia to participate in the planning, 
conduct, and administration of those Federal programs, included, or 
eligible for inclusion in an annual funding agreement.
    (7) It is the policy of the Secretary, to the extent of the 
Secretary's authority, to maintain active communication with Tribal 
governments regarding budgetary matters applicable to programs subject 
to the Act, and that are included in an individual self-governance 
annual funding agreement.
    (8) It is the policy of the Secretary to implement policies, 
procedures, and practices at the Department to ensure that the letter, 
spirit, and goals of the Tribal Self-Governance Act are fully and 
successfully implemented.
    (9) Executive Order 13084 on Consultation and Coordination with 
Indian Tribal Governments and any subsequent Executive Orders regarding 
consultation will apply to the implementation of these regulations.

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

Purpose and Definitions


Sec. 1000.10  What is the purpose of this subpart?

    This subpart describes the selection process and eligibility 
criteria that the Secretary uses to decide that Indian Tribes may 
participate in Tribal self-governance as authorized by section 402 of 
the Tribal Self-Governance Act of 1994.


Sec. 1000.11  What is the ``applicant pool''?

    The applicant pool is the pool of Tribes/Consortia that the 
Director of the Office of Self-Governance has determined are eligible 
to participate in self-governance.


Sec. 1000.12  What is a ``signatory''?

    A signatory is a Tribe or Consortium that meets the eligibility 
criteria in Sec. 1000.16 and directly signs the agreements. A signatory 
may exercise all of the rights and responsibilities outlined in the 
compact and annual funding agreement and is legally responsible for all 
financial and administrative decisions made by the signatory.


Sec. 1000.13  What is a ``nonsignatory Tribe''?

    (a) A nonsignatory Tribe is a Tribe that either:
    (1) Does not meet the eligibility criteria in Sec. 1000.16 and, by 
resolution of its governing body, authorizes a Consortium to 
participate in self-governance on its behalf.
    (2) Meets the eligibility criteria in Sec. 1000.16 but chooses to 
be a member of a Consortium and have a representative of the Consortium 
sign the compact and AFA on its behalf.
    (b) A non-signatory tribe under paragraph (a)(1) of this section:
    (1) May not sign the compact and AFA. A representative of the 
Consortium must sign both documents on behalf of the Tribe.
    (2) May only become a ``signatory Tribe'' if it independently meets 
the eligibility criteria in Sec. 1000.16.

Eligibility


Sec. 1000.14  Who is eligible to participate in Tribal self-governance?

    Two types of entities are eligible to participate in Tribal self-
governance:
    (a) Indian Tribes; and
    (b) Consortia of Indian Tribes.


Sec. 1000.15  How many additional Tribes/Consortia may participate in 
self-governance per year?

    (a) Sections 402(b) and (c) of the Act authorize the Director to 
select up to 50 additional Indian Tribes per year from an ``applicant 
pool''. A Consortium of Indian Tribes counts as one Tribe for purposes 
of calculating the 50 additional Tribes per year.
    (b) Any signatory Tribe that signed a compact and AFA under the 
Tribal Self-Governance Demonstration project may negotiate its own 
compact and AFA in accordance with this subpart without being counted 
against the 50-Tribe limitation in any given year.


Sec. 1000.16  What criteria must a Tribe/Consortium satisfy to be 
eligible for admission to the ``applicant pool''?

    To be admitted into the applicant pool, a Tribe/Consortium must 
either be an Indian Tribe or a Consortium of Indian Tribes and comply 
with Sec. 1000.17.


Sec. 1000.17  What documents must a Tribe/Consortium submit to OSG to 
apply for admission to the applicant pool?

    In addition to the application required by Sec. 1000.23, the Tribe/
Consortium must submit to OSG documentation that shows all of the 
following:
    (a) Successful completion of a planning phase and a planning 
report. The requirements for both of these are described in 
Sec. 1000.19 and Sec. 1000.20. A Consortium's planning activities 
satisfy this requirement for all its member Tribes for the purpose of 
the Consortium meeting this requirement;

[[Page 78710]]

    (b) A request for participation in self-governance by a Tribal 
resolution and/or a final official action by the Tribal governing body. 
For a Consortium, the governing body of each Tribe must authorize its 
participation by a Tribal resolution and/or a final official action by 
the Tribal governing body that specifies the scope of the Consortium's 
authority to act on behalf of the Tribe.
    (c) A demonstration of financial stability and financial management 
capability for the previous 3 fiscal years. This will be done by 
providing, as part of the application, an audit report prepared in 
accordance with procedures promulgated under the Single Audit Act 
Amendments of 1996, 31 U.S.C. 7501, et seq., for the previous 3 years 
of the self-determination contracts. These audits must not contain 
material audit exceptions as defined in Sec. 1000.21.


Sec. 1000.18  May a Consortium member Tribe withdraw from the 
Consortium and become a member of the applicant pool?

    In accordance with the expressed terms of the compact or written 
agreement of the Consortium, a Consortium member Tribe (either a 
signatory or nonsignatory Tribe) may withdraw from the Consortium to 
directly negotiate a compact and AFA. The withdrawing Tribe must do the 
following.
    (a) Independently meet all of the eligibility criteria in 
Secs. 1000.14 through 1000.20. If a Consortium's planning activities 
and report specifically consider self-governance activities for a 
member Tribe, that planning activity and report may be used to satisfy 
the planning requirements for the member Tribe if it applies for self-
governance status on its own.
    (b) Submit a notice of withdrawal to OSG and the Consortium as 
evidenced by a resolution of the Tribal governing body.


Sec. 1000.19  What is done during the ``planning phase''?

    The Act requires that all Tribes/Consortia seeking to participate 
in Tribal self-governance complete a planning phase. During the 
planning phase, the Tribe/Consortium must conduct legal and budgetary 
research and internal Tribal government and organizational planning. 
The availability of BIA grant funds for planning activities will be in 
accordance with subpart C. The planning phase may be completed without 
a planning grant.


Sec. 1000.20  What is required in a planning report?

    As evidence that the Tribe/Consortium has completed the planning 
phase, the Tribe/Consortium must prepare and submit to the Secretary a 
final planning report.
    (a) The planning report must:
    (1) Identify BIA and non-BIA programs that the Tribe/Consortium may 
wish to subsequently negotiate for inclusion in a compact and AFA;
    (2) Describe the Tribe's/Consortium's planning activities for both 
BIA and non-BIA programs that may be negotiated;
    (3) Identify the major benefits derived from the planning 
activities;
    (4) Identify the process that the Tribe/Consortium will use to 
resolve any complaints by service recipients;
    (5) Identify any organizational planning that the Tribe/Consortium 
has completed in anticipation of implementing Tribal self-governance; 
and
    (6) Indicate if the Tribe's/Consortium's planning efforts have 
revealed that its current organization is adequate to assume programs 
under Tribal self-governance.
    (b) In supplying the information required by paragraph (a)(5) of 
this section:
    (1) For BIA programs, a Tribe/Consortium should describe the 
process that it will use to debate and decide the setting of priorities 
for the funds it will receive from its AFA.
    (2) For non-BIA programs that the Tribe/Consortium may wish to 
negotiate, the report should describe how the Tribe/Consortium proposes 
to perform the programs.


Sec. 1000.21  When does a Tribe/Consortium have a ``material audit 
exception''?

    A Tribe/Consortium has a material audit exception if any of the 
audits that it submitted under Sec. 1000.17(c) identifies:
    (a) A material weakness, that is a condition in which the design or 
operation of one or more of the internal control components does reduce 
to a relatively low level the risk that misstatements in amounts that 
would be material in relation to the financial statements being audited 
may occur and not be detected within a timely period by employees in 
the normal course of performing their assigned functions;
    (b) a single finding of known questioned costs subsequently 
disallowed by a contracting officer or awarding official that exceeds 
$10,000. If the audits submitted under Sec. 1000.17(c) identify any of 
the conditions described in this section, the Tribe/Consortium must 
also submit copies of the contracting officer's findings and 
determinations.


Sec. 1000.22  What are the consequences of having a material audit 
exception?

    If a Tribe/Consortium has a material audit exception, the Tribe/
Consortium is ineligible to participate in self-governance until the 
Tribe/Consortium meets the eligibility criteria in Sec. 1000.16.

Admission Into the Applicant Pool


Sec. 1000.23  How is a Tribe/Consortium admitted to the applicant pool?

    To be considered for admission in the applicant pool, a Tribe/
Consortium must submit an application to the Director, Office of Self-
Governance, 1849 C Street NW; MS 2542-MIB; Department of the Interior; 
Washington, DC 20240. The application must contain the documentation 
required in Sec. 1000.17.


Sec. 1000.24  When does OSG accept applications to become a member of 
the applicant pool?

    OSG accepts applications to become a member of the applicant pool 
at any time.


Sec. 1000.25  What are the deadlines for a Tribe/Consortium in the 
applicant pool to negotiate a compact and annual funding agreement 
(AFA)?

    (a) To be considered for negotiations in any year, a Tribe/
Consortium must be a member of the applicant pool on March 1 of the 
year in which the negotiations are to take place.
    (b) An applicant may be admitted into the applicant pool during one 
year and selected to negotiate a compact and AFA in a subsequent year. 
In this case, the applicant must, before March 1 of the negotiation 
year, submit to OSG updated documentation that permits OSG to evaluate 
whether the Tribe/Consortium still satisfies the application criteria 
in 1000.17.


Sec. 1000.26  Under what circumstances will a Tribe/Consortium be 
removed from the applicant pool?

    Once admitted into the applicant pool, a Tribe/Consortium will only 
be removed if it:
    (a) Fails to satisfy the audit criteria in Sec. 1000.17(c); or
    (b) Submits to OSG a Tribal resolution and/or official action by 
the Tribal governing body requesting removal.


Sec. 1000.27  How does the Director select which Tribes in the 
applicant pool become self-governance Tribes?

    The Director selects up to the first 50 Tribes from the applicant 
pool in any given year ranked according to the earliest postmark date 
of complete applications. If multiple complete applications have the 
same postmark

[[Page 78711]]

date and there are insufficient slots available for that year, the 
Director will determine priority through random selection. A 
representative of each Tribe/Consortium that has submitted an 
application subject to random selection may, at the option of the 
Tribe/Consortium, be present when the selection is made.


Sec. 1000.28  What happens if an application is not complete?

    (a) If OSG determines that a Tribe's/Consortium's application is 
deficient, OSG will immediately notify the Tribe/Consortium of the 
deficiency by letter, certified mail, return receipt requested. The 
letter will explain what the Tribe/Consortium must do to correct the 
deficiency.
    (b) The Tribe/Consortium will have 20 working days from the date of 
receiving the letter to mail or telefax the corrected material and 
retain the applicant's original postmark.
    (c) If the corrected material is deficient, the date of entry into 
the applicant pool will be the date the complete application is 
postmarked.
    (d) If the postmark or date on the applicant's response letter or 
telefax is more than 20 working days after the date the applicant 
received the notice-of-deficiency letter, the date of entry into the 
applicant pool will be the date of full receipt of a completed 
application.


Sec. 1000.29  What happens if a Tribe/Consortium is selected from the 
applicant pool but does not execute a compact and an AFA during the 
calendar year?

    (a) The Tribe/Consortium remains eligible to negotiate a compact 
and annual funding agreement at any time unless:
    (1) It notifies the Director in writing that it no longer wishes to 
be eligible to participate in the Tribal Self-Governance Program;
    (2) Fails to satisfy the audit requirements of Sec. 1000.17(c); or
    (3) Submits documentation evidencing a Tribal resolution requesting 
removal from the application pool.
    (b) The failure of the Tribe/Consortium to execute an agreement has 
no effect on the selection of up to 50 additional Tribes/Consortia in a 
subsequent year.


Sec. 1000.30  May a Tribe/Consortium be selected to negotiate an AFA 
under section 403(b)(2) without having or negotiating an AFA under 
section 403(b)(1)?

    Yes, a Tribe/Consortium may be selected to negotiate an AFA under 
section 403(b)(2) without having or negotiating an AFA under section 
403(b)(1).


Sec. 1000.31  May a Tribe/Consortium be selected to negotiate an AFA 
under section 403(c) without negotiating an AFA under section 403(b)(1) 
and/or section 403(b)(2)?

    No, section 403(c) of the Act states that any programs of special 
geographic, cultural, or historical significance to the Tribe/
Consortium must be included in AFAs negotiated under section 403(a) 
and/or section 403(b). A Tribe may be selected to negotiate an AFA 
under section 403(c) at the same time that it negotiates an AFA under 
section 403(b)(1) and/or section 403(b)(2).

Withdrawal From a Consortium Annual Funding Agreement


Sec. 1000.32  What happens when a Tribe wishes to withdraw from a 
Consortium annual funding agreement?

    (a) A Tribe wishing to withdraw from a Consortium's AFA must notify 
the Consortium, bureau, and OSG of the intent to withdraw. The notice 
must be:
    (1) In the form of a Tribal resolution or other official action by 
the Tribal governing body; and
    (2) Received no later than 180 days before the effective date of 
the next AFA.
    (b) The resolution referred to in paragraph (a)(1) of this section 
must indicate whether the Tribe wishes the withdrawn programs to be 
administered under a Title IV AFA, Title I contract, or directly by the 
bureau.
    (c) The effective date of the withdrawal will be the date on which 
the current agreement expires, unless the Consortium, the Tribe, OSG, 
and the appropriate bureau agree otherwise.


Sec. 1000.33  What amount of funding is to be removed from the 
Consortium's AFA for the withdrawing Tribe?

    When a Tribe withdraws from a Consortium, the Consortium's AFA must 
be reduced by the portion of funds attributable to the withdrawing 
Tribe. The Consortium must reduce the AFA on the same basis or 
methodology upon which the funds were included in the Consortium's AFA.
    (a) If there is not a clear identifiable methodology upon which to 
base the reduction for a particular program, the Consortium, Tribe, 
OSG, and the bureau must negotiate an appropriate amount on a case-by-
case basis.
    (b) If a Tribe withdraws in the middle of a funding year, the 
Consortium agreement must be amended to reflect:
    (1) A reduction based on the amount of funds passed directly to the 
Tribe, or already spent or obligated by the Consortium on behalf of the 
Tribe; and
    (2) That the Consortium is no longer providing those programs 
associated with the withdrawn funds.
    (c) Carryover funds from a previous fiscal year may be factored 
into the amount by which the Consortium agreement is reduced if:
    (1) The Consortium, Tribe, OSG, and bureau agree it is appropriate; 
and
    (2) The funds are clearly identifiable.


Sec. 1000.34  What happens if there is a dispute between the Consortium 
and the withdrawing Tribe?

    (a) At least 15 days before the 90-day Congressional review period 
of the next AFA, the Consortium, OSG, bureau, and the withdrawing Tribe 
must reach an agreement on the amount of funding and other issues 
associated with the program or programs involved.
    (b) If agreement is not reached:
    (1) For BIA and OIEP programs, at least 5 days before the 90-day 
Congressional review, the Director must make a decision on the funding 
or other issues involved.
    (2) For non-BIA programs, the bureau head will make a decision on 
the funding or other issues involved.
    (c) A copy of the decision made under paragraph (b) of this section 
must be distributed in accordance with the following table.

------------------------------------------------------------------------
                                           then a copy of the decision
        If the program is . . .               must be sent to . . .
------------------------------------------------------------------------
(1) A BIA program......................  BIA regional director, the
                                          Deputy Commissioner of Indian
                                          Affairs, the withdrawing
                                          Tribe, and the Consortium.
(2) An OIEP program....................  the OIEP line officer, the
                                          Director of OIEP, the
                                          withdrawing Tribe, and the
                                          Consortium.
------------------------------------------------------------------------

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


Sec. 1000.35  When a Tribe withdraws from a Consortium, is the 
Secretary required to award to the withdrawing Tribe a portion of funds 
associated with a construction project if the withdrawing Tribe so 
requests?

    Under Sec. 1000.32 of this part, a Tribe may withdraw from a 
Consortium and request that the Secretary award the Tribe its portion 
of a construction project's funds. The Secretary may decide not to 
award these funds if the Secretary determines that the award of the 
withdrawing Tribe's portion of funds would affect the ability of the 
remaining members of the Consortium to complete a severable or non-
severable phase of the project within available funding.

[[Page 78712]]

    (a) An example of a non-severable phase of a project would be the 
construction of a single building to serve all members of a Consortium.
    (b) An example of a severable phase of a project would be the 
funding of a road in one village where the Consortium would be able to 
complete the roads in other villages that were part of the project 
approved initially in the AFA.
    (c) The Secretary's decision under this section may be appealed 
under Sec. 1000.428 of these regulations.

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

Purpose and Types of Grants


Sec. 1000.40  What is the purpose of this subpart?

    This subpart describes the availability and process of applying for 
planning and negotiation grants authorized by section 402(d) of the Act 
to help Tribes meet costs incurred in:
    (a) Meeting the planning phase requirement of the Act, including 
planning to negotiate for non-BIA programs; and
    (b) Conducting negotiations.


Sec. 1000.41  What types of grants are available?

    Three categories of grants may be available:
    (a) Negotiation grants may be awarded to the Tribes/Consortia that 
have been selected from the applicant pool as described in subpart B of 
this part;
    (b) Planning grants may be available to Tribes/Consortia requiring 
advance funding to meet the planning phase requirement of the Act; and
    (c) Financial assistance may be available to Tribes/Consortia to 
plan for negotiating for non-BIA programs, as described in subpart D 
and Secs. 1000.42-1000.45 of this subpart.

Availability, Amount, and Number of Grants


Sec. 1000.42  Will grants always be made available to meet the planning 
phase requirement as described in section 402(d) of the Act?

    No, grants to cover some or all of the planning costs that a Tribe/
Consortium may incur, depend upon the availability of funds 
appropriated by Congress. Notice of availability of grants will be 
published in the Federal Register as described in Sec. 1000.45.


Sec. 1000.43  May a Tribe/Consortium use its own resources to meet its 
self-governance planning and negotiation expenses?

    Yes, a Tribe/Consortium may use its own resources to meet these 
costs. Receiving a grant is not necessary to meet the planning phase 
requirement of the Act or to negotiate a compact and an AFA.


Sec. 1000.44  What happens if there are insufficient funds to meet the 
Tribal requests for planning/negotiation grants in any given year?

    If appropriated funds are available but insufficient to meet the 
total requests from Tribes/Consortia:
    (a) First priority will be given to Tribes/Consortia that have been 
selected from the applicant pool to negotiate an AFA; and
    (b) Second priority will be given to Tribes/Consortia that require 
advance funds to meet the planning requirement for entry into the self-
governance program.


Sec. 1000.45  How many grants will the Department make each year and 
what funding will be available?

    The number and size of grants awarded each year will depend on 
Congressional appropriations and Tribal interest. By no later than 
January 1 of each year, the Director will publish a notice in the 
Federal Register that provides relevant details about the application 
process, including the funds available, timeframes, and requirements 
for negotiation grants, advance planning grants, and financial 
assistance as described in subpart D of this part.

Selection Criteria


Sec. 1000.46  Which Tribes/Consortia may be selected to receive a 
negotiation grant?

    Any Tribe/Consortium that has been accepted into the applicant pool 
and has been accepted to negotiate a self-governance AFA may apply for 
a negotiation grant. By March 15 of each year, the Director will 
publish a list of additional Tribes/Consortia that have been selected 
for negotiation along with information on how to apply for negotiation 
grants.


Sec. 1000.47  What must a Tribe/Consortium do to receive a negotiation 
grant?

    If funds are available, a grant will be awarded to help cover the 
costs of preparing for and negotiating a compact and an AFA. These 
grants are not competitive. To receive a negotiation grant, a Tribe/
Consortium must:
    (a) Be selected from the applicant pool to negotiate an AFA;
    (b) Be qualified as eligible to receive a negotiation grant in the 
Federal Register notice discussed in Sec. 1000.45;
    (c) Not have received a negotiation grant within the 3 years 
preceding the date of the latest Federal Register announcement;
    (d) Submit a letter affirming its readiness to negotiate; and
    (e) Formally request a negotiation grant to prepare for and 
negotiate an AFA.


Sec. 1000.48  What must a Tribe do if it does not wish to receive a 
negotiation grant?

    A selected Tribe/Consortium may elect to negotiate without applying 
for a negotiation grant. In such a case, the Tribe/Consortium should 
notify OSG in writing so that funds can be reallocated for other 
grants.

Advance Planning Grant Funding


Sec. 1000.49  Who can apply for an advance planning grant?

    Any Tribe/Consortium that is not a self-governance Tribe and needs 
advance funding to complete the planning phase requirement may apply. 
Tribes/Consortia that have received a planning grant within 3 years 
preceding the date of the latest Federal Register announcement are not 
eligible.


Sec. 1000.50  What must a Tribe/Consortium seeking a planning grant 
submit in order to meet the planning phase requirements?

    A Tribe/Consortium must submit the following material:
    (a) A Tribal resolution or other final action of the Tribal 
governing body indicating a desire to plan for Tribal self-governance.
    (b) Audits from the last 3 years that document that the Tribe/
Consortium is free from material audit exceptions. In order to meet 
this requirement, a Tribe/Consortium may use the audit currently being 
conducted on its operations if this audit is submitted before the 
Tribe/Consortium completes the planning activity.
    (c) A proposal that includes:
    (1) The Tribe's/Consortium's plans for conducting legal and 
budgetary research;
    (2) The Tribe's/Consortium's plans for conducting internal Tribal 
government and organizational planning;
    (3) A timeline indicating when planning will start and end, and;
    (4) Evidence that the Tribe/Consortium can perform the tasks 
associated with its proposal (i.e., resumes and position descriptions 
of key staff or consultants to be used).


Sec. 1000.51  How will Tribes/Consortia know when and how to apply for 
planning grants?

    The number and size of grants awarded each year will depend on 
Congressional appropriations. By no later than January 1 of each year, 
the Director will publish in the Federal Register a notice concerning 
the availability of planning grants for

[[Page 78713]]

additional Tribes. This notice must identify the specific details for 
applying.


Sec. 1000.52  What criteria will the Director use to award advance 
planning grants?

    Advance planning grants are discretionary and based on need. The 
Director will use the following criteria to determine whether or not to 
award a planning grant to a Tribe/Consortium before the Tribe/
Consortium is selected into the applicant pool.
    (a) Completeness of application as described in Sec. 1000.50.
    (b) Financial need. The Director will rank applications according 
to the percent of Tribal resources that comprise total resources 
covered by the latest A-133 audit. Priority will be given to 
applications that have a lower level of Tribal resources as a percent 
of total resources.
    (c) Other factors that the Tribe may identify as documenting its 
previous efforts to participate in self-governance and demonstrating 
its readiness to enter into a self-governance agreement.


Sec. 1000.53  Can Tribes/Consortia that receive advance planning grants 
also apply for a negotiation grant?

    Yes, Tribes/Consortia that successfully complete the planning 
activity and are selected may apply to be included in the applicant 
pool. Once approved for inclusion in the applicant pool, the Tribe/
Consortium may apply for a negotiation grant according to the process 
in Secs. 1000.46-1000.48.


Sec. 1000.54  How will a Tribe/Consortium know whether or not it has 
been selected to receive an advance planning grant?

    No later than June 1, the Director will notify the Tribe/Consortium 
by letter whether it has been selected to receive an advance planning 
grant.


Sec. 1000.55  Can a Tribe/Consortium appeal within DOI the Director's 
decision not to award a grant under this subpart?

    No, the Director's decision to award or not to award a grant under 
this subpart is final for the Department.

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

Purpose and Eligibility


Sec. 1000.60  What is the purpose of this subpart?

    This subpart describes the availability and process of applying for 
other financial assistance that may be available for planning and 
negotiating for a non-BIA program.


Sec. 1000.61  Are other funds available to self-governance Tribes/
Consortia for planning and negotiating with non-BIA bureaus?

    Yes, Tribes/Consortia may contact OSG to determine if OSG has funds 
available for the purpose of planning and negotiating with non-BIA 
bureaus under this subpart. A Tribe/Consortium may also ask a non-BIA 
bureau for information on any funds that may be available from that 
bureau.

Eligibility and Application Process


Sec. 1000.62  Who can apply to OSG for grants to plan and negotiate 
non-BIA programs?

    Any Tribe/Consortium that is in the applicant pool, or has been 
selected from the applicant pool or that has an existing AFA.


Sec. 1000.63  Under what circumstances may planning and negotiation 
grants be awarded to Tribes/Consortia?

    At the discretion of the Director, grants may be awarded when 
requested by the Tribe. Tribes/Consortia may submit only one 
application per year for a grant under this section.


Sec. 1000.64  How does the Tribe/Consortium know when and how to apply 
to OSG for a planning and negotiation grant?

    When funds are available, the Director will publish a notice in the 
Federal Register announcing their availability and a deadline for 
submitting an application.


Sec. 1000.65  What kinds of activities do planning and negotiation 
grants support?

    The planning and negotiation grants support activities such as, but 
not limited to, the following:
    (a) Information gathering and analysis;
    (b) Planning activities, that may include notification and 
consultation with the appropriate non-BIA bureau and identification 
and/or analysis of activities, resources, and capabilities that may be 
needed for the Tribe/Consortium to assume non-BIA programs; and
    (c) Negotiation activities.


Sec. 1000.66  What must be included in the application?

    The application for a planning and negotiation grant must include:
    (a) Written notification by the governing body or its authorized 
representative of the Tribe's/Consortium's intent to engage in 
planning/negotiation activities like those described in Sec. 1000.65;
    (b) Written description of the planning and/or negotiation 
activities that the Tribe/Consortium intends to undertake, including, 
if appropriate, documentation of the relationship between the proposed 
activities and the Tribe/Consortium;
    (c) The proposed timeline for completion of the planning and/or 
negotiation activities to be undertaken; and
    (d) The amount requested from OSG.


Sec. 1000.67  How will the Director award planning and negotiation 
grants?

    The Director must review all grant applications received by the 
date specified in the announcement to determine whether or not the 
applications include the required elements outlined in the 
announcement. OSG must rank the complete applications submitted by the 
deadline using the criteria in Sec. 1000.70.


Sec. 1000.68  May non-BIA bureaus provide technical assistance to a 
Tribe/Consortium in drafting its planning grant application?

    Yes, upon request from the Tribe/Consortium, a non-BIA bureau may 
provide technical assistance to the Tribe/Consortium in the drafting of 
its planning grant application.


Sec. 1000.69  How can a Tribe/Consortium obtain comments or selection 
documents received or utilized after OSG has made a decision on a 
planning grant application?

    A Tribe/Consortium may request comments or selection documents 
under the Freedom of Information Act.


Sec. 1000.70  What criteria will the Director use to rank the 
applications and how many maximum points can be awarded for each 
criterion?

    The Director will use the following criteria and point system to 
rank the applications:
    (a) The application contains a clear statement of objectives and 
timelines to complete the proposed planning or negotiation activity and 
demonstrates that the objectives are legally authorized and achievable. 
(20 points)
    (b) The proposed budget expenses are reasonable. (10 points)
    (c) The proposed project demonstrates a new or unique approach to 
Tribal self-governance or broadens self-governance to include new 
activities within the Department. (5 points)


Sec. 1000.71  Can an applicant appeal a decision not to award a grant?

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


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

    Yes, OSG will notify all applicant Tribes/Consortia and affected 
non-BIA

[[Page 78714]]

bureaus in writing as soon as possible after completing the selection 
process.


Sec. 1000.73  Once a Tribe/Consortium has been awarded a grant, may the 
Tribe/Consortium obtain information from a non-BIA bureau?

    Yes, see Sec. 1000.169.

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


Sec. 1000.80  What is the purpose of this subpart?

    This subpart describes the components of annual funding agreements 
for BIA programs.


Sec. 1000.81  What is an annual funding agreement (AFA)?

    Annual funding agreements are legally binding and mutually 
enforceable written agreements negotiated and entered into annually 
between a self-governance Tribe/Consortium and BIA.

Contents and Scope of Annual Funding Agreements


Sec. 1000.82  What types of provisions must be included in a BIA AFA?

    Each AFA must specify the programs and it must also specify the 
applicable funding:
    (a) Retained by BIA for ``inherently Federal functions'' identified 
as ``residuals'' (See Sec. 1000.94);
    (b) Transferred or to be transferred to the Tribe/Consortium (See 
Sec. 1000.91); and
    (c) Retained by BIA to carry out functions that the Tribe/
Consortium could have assumed but elected to leave with BIA. (See 
Sec. 1000.101).


Sec. 1000.83  Can additional provisions be included in an AFA?

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


Sec. 1000.84  Does a Tribe/Consortium have the right to include 
provisions of Title I of Pub. L. 93-638 in an AFA?

    Yes, under Pub. L. 104-109, a Tribe/Consortium has the right to 
include any provision of Title I of Pub. L. 93-638 in an AFA.


Sec. 1000.85  Can a Tribe/Consortium negotiate an AFA with a term that 
exceeds one year?

    Yes, at the option of the Tribe/Consortium, and subject to the 
availability of Congressional appropriations, a Tribe/Consortium may 
negotiate an AFA with a term that exceeds one year in accordance with 
section 105(c)(1) of Title I of Pub. L. 93-638.

Determining What Programs May Be Included in an AFA


Sec. 1000.86  What types of programs may be included in an AFA?

    A Tribe/Consortium may include in its AFA programs administered by 
BIA, without regard to the BIA agency or office that administers the 
program, including any program identified in section 403(b)(1) of the 
Act.


Sec. 1000.87  How does the AFA specify the services provided, functions 
performed, and responsibilities assumed by the Tribe/Consortium and 
those retained by the Secretary?

    (a) The AFA must specify in writing the services, functions, and 
responsibilities to be assumed by the Tribe/Consortium and the 
functions, services, and responsibilities to be retained by the 
Secretary.
    (b) Any division of responsibilities between the Tribe/Consortium 
and BIA should be clearly stated in writing as part of the AFA. 
Similarly, when there is a relationship between the program and BIA's 
residual responsibility, the relationship should be in writing.


Sec. 1000.88  Do Tribes/Consortia need Secretarial approval to redesign 
BIA programs that the Tribe/Consortium administers under an AFA?

    No, the Secretary does not have to approve a redesign of a program 
under the AFA, except when the redesign involves a waiver of a 
regulation.
    (a) The Secretary must approve any waiver, in accordance with 
subpart J of this part, before redesign takes place.
    (b) This section does not authorize redesign of programs where 
other prohibitions exist.
    (c) Redesign shall not result in the Tribe/Consortium being 
entitled to receive more or less funding for the program from BIA.
    (d) Redesign of construction project(s) included in an AFA must be 
done in accordance with subpart K of this part.


Sec. 1000.89  Can the terms and conditions in an AFA be amended during 
the year it is in effect?

    Yes, terms and conditions in an AFA may be amended during the year 
it is in effect as agreed to by both the Tribe/Consortium and the 
Secretary.


Sec. 1000.90  What happens if an AFA expires before the effective date 
of the successor AFA?

    If the effective date of the successor AFA is not on or before the 
expiration of the current AFA, subject to terms mutually agreed upon by 
the Tribe/Consortium and the Department at the time the current AFA was 
negotiated or in a subsequent amendment, the Tribe/Consortium may 
continue to carry out the program authorized under the AFA to the 
extent adequate resources are available. During this extension period, 
the current AFA shall remain in effect, including coverage of the 
Tribe/Consortium under the Federal Tort Claims Act (FTCA) 28 U.S.C. 
2671-2680 (1994), and the Tribe/Consortium may use any funds remaining 
under the AFA, savings from other programs or Tribal funds to carry out 
the program. Nothing in this section authorizes an AFA to be continued 
beyond the completion of the program authorized under the AFA or the 
amended AFA. This section also does not entitle a Tribe/Consortium to 
receive, nor does it prevent a Tribe from receiving, additional funding 
under any successor AFA. The successor AFA must provide funding to the 
Tribe/Consortium at a level necessary for the Tribe/Consortium to 
perform the programs, functions, services, and activities or portions 
thereof (PFSAs) for the full period it was or will be performed.

Determining AFA Amounts


Sec. 1000.91  What funds must be transferred to a Tribe/Consortium 
under an AFA?

    (a) At the option of the Tribe/Consortium, the Secretary must 
provide the following program funds to the Tribe/Consortium through an 
AFA:
    (1) An amount equal to the amount that the Tribe/Consortium would 
have been eligible to receive under contracts and grants for direct 
programs and contract support under Title I of Pub. L. 93-638, as 
amended;
    (2) Any funds that are specifically or functionally related to 
providing services and benefits to the Tribe/Consortium or its members 
by the Secretary without regard to the organizational level within BIA 
where such functions are carried out; and
    (3) Any funds otherwise available to Indian Tribes or Indians for 
which appropriations are made to agencies other than the Department of 
the Interior;
    (b) Examples of the funds referred to in paragraphs (a)(1) and 
(a)(2) of this section are:
    (1) A Tribe's/Consortium's Pub. L. 93-638 contract amounts;
    (2) Negotiated amounts of agency, regional and central office 
funds, including previously undistributed funds or new programs on the 
same basis as they are made available to other Tribes;
    (3) Other recurring funding;
    (4) Non-recurring funding;
    (5) Special projects, if applicable;
    (6) Construction;

[[Page 78715]]

    (7) Wildland firefighting accounts;
    (8) Competitive grants; and
    (9) Congressional earmarked funding.
    (c) An example of the funds referred to in paragraph (a)(3) of this 
section is Federal Highway Administration funds.


Sec. 1000.92  What funds may not be included in an AFA?

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


Sec. 1000.93  May the Secretary place any requirements on programs and 
funds that are otherwise available to Tribes/Consortia or Indians for 
which appropriations are made to agencies other than DOI?

    No, unless the Secretary is required to develop terms and 
conditions that are required by law or that are required by the agency 
to which the appropriation is made.


Sec. 1000.94  What are BIA residual funds?

    BIA residual funds are the funds necessary to carry out BIA 
residual functions. BIA residual functions are those functions that 
only BIA employees could perform if all Tribes were to assume 
responsibilities for all BIA programs that the Act permits.


Sec. 1000.95  How is BIA's residual determined?

    (a) Generally, residual information will be determined through a 
process that is consistent with the overall process used by the BIA. 
Residual information will consist of residual functions performed by 
the BIA, brief justification why the function is not compactible, and 
the estimated funding level for each residual function. Each regional 
office and the central office will compile a single document for 
distribution each year that contains all the residual information of 
that respective office. The development of the residual information 
will be based on the following principles. The BIA will:
    (1) Develop uniform residual information to be used to negotiate 
residuals;
    (2) Ensure functional consistency throughout BIA in the 
determination of residuals;
    (3) Make the determination of residuals based upon the functions 
actually being performed by BIA at the respective office;
    (4) Annually consult with Tribes on a region-by-region basis as 
requested by Tribes/Consortia; and
    (5) Notify Tribal leaders each year by March 1 of the availability 
of residual information.
    (b) BIA shall use the residual information determined under 
subparagraph (a) as the basis for negotiating with individual Tribes.
    (c) In accordance with the appeals procedures in subpart R of this 
part, if BIA and a participating Tribe/Consortium disagree over the 
content of residual functions or amounts, Tribe/Consortium can appeal 
as shown in the following table.

------------------------------------------------------------------------
                              the Tribe/Consortium
 If a Tribe/Consortium . . .        may . . .             and . . .
------------------------------------------------------------------------
(1) Disagrees with BIA's      appeal to the Deputy  the Deputy
 determination.                Commissioner.         Commissioner must
                                                     make a written
                                                     determination
                                                     within 30 days of
                                                     receiving the
                                                     request.
(2) Disagrees with the        appeal to the         the Assistant
 Deputy Commissioner's         Assistant             Secretary's
 determination.                Secretary--Indian     determination is
                               Affairs.              final for the
                                                     Department.
------------------------------------------------------------------------

    (d) Information on residual functions may be amended if programs 
are added or deleted, if statutory or final judicial determinations 
mandate or if the Deputy Commissioner makes a determination that would 
alter the residual information or funding amounts. The decision may be 
appealed to the Assistant Secretary in accordance with subpart R of 
this part. The Assistant Secretary shall make a written determination 
within 30 days.


Sec. 1000.96  May a Tribe/Consortium continue to negotiate an AFA 
pending an appeal of residual functions or amounts?

    Yes, pending appeal of a residual function or amount, any Tribe/
Consortium may continue to negotiate an AFA using the residual 
information that is being appealed. The residual information will be 
subject to later adjustment based on the final determination of a 
Tribe's/Consortium's appeal.


Sec. 1000.97  What is a Tribal share?

    A Tribal share is the amount determined for a particular Tribe/
Consortium for a particular program at BIA regional, agency and central 
office levels under section 403(g)(3) and 405(d) of the Act.


Sec. 1000.98  How does BIA determine a Tribe's/Consortium's share of 
funds to be included in an AFA?

    There are typically two methods for determining the amount of funds 
to be included in the AFA:
    (a) Formula-driven. For formula-driven programs, a Tribe's/
Consortium's amount is determined by first identifying the residual 
funds to be retained by BIA and second, by applying the distribution 
formula to the remaining eligible funding for each program involved.
    (1) Distribution formulas must be reasonably related to the 
function or service performed by an office, and must be consistently 
applied to all Tribes within each regional and agency office.
    (2) The process in paragraph (a) of this section for calculating a 
Tribe's funding under self-governance must be consistent with the 
process used for calculating funds available to non-self-governance 
Tribes.
    (b) Tribal-specific. For programs whose funds are not distributed 
on a formula basis as described in paragraph (a) of this section, a 
Tribe's funding amount will be determined on a Tribe-by-Tribe basis and 
may differ between Tribes. Examples of these funds may include special 
project funding, awarded competitive grants, earmarked funding, and 
construction or other one-time or non-recurring funding for which a 
Tribe is eligible.


Sec. 1000.99  Can a Tribe/Consortium negotiate a Tribal share for 
programs outside its region/agency?

    Yes, where BIA services for a particular Tribe/Consortium are 
provided from a location outside its immediate agency or region, the 
Tribe may negotiate its share from BIA location where the service is 
actually provided.


Sec. 1000.100  May a Tribe/Consortium obtain discretionary or 
competitive funding that is distributed on a discretionary or 
competitive basis?

    Funds provided for Indian services/programs that have not been 
mandated by Congress to be distributed on a competitive/discretionary 
basis may be distributed to a Tribe/Consortium under a formula-driven 
method. In order to receive such funds, a Tribe/Consortium must be 
eligible and qualified to receive

[[Page 78716]]

such funds. A Tribe/Consortium that receives such funds under a 
formula-driven methodology would no longer be eligible to compete for 
these funds.


Sec. 1000.101  Are all funds identified as Tribal shares always paid to 
the Tribe/Consortium under an AFA?

    No, at the discretion of the Tribe/Consortium, Tribal shares may be 
left, in whole or in part, with BIA for certain programs. This is 
referred to as a ``retained Tribal share''.


Sec. 1000.102  How are savings that result from downsizing allocated?

    Funds that are saved as a result of downsizing in BIA are allocated 
to Tribes/Consortia in the same manner as Tribal shares as provided for 
in Sec. 1000.98.


Sec. 1000.103  Do Tribes/Consortia need Secretarial approval to 
reallocate funds between programs that the Tribe/Consortium administers 
under the AFA?

    No, unless otherwise required by law, the Secretary does not have 
to approve the reallocation of funds between programs that a Tribe/
Consortium administers under an AFA.


Sec. 1000.104  Can funding amounts negotiated in an AFA be adjusted 
during the year it is in effect?

    Yes, funding amounts negotiated in an AFA may be adjusted under the 
following circumstances:
    (a) Congressional action. (1) Increases/decreases as a result of 
Congressional appropriations and/or a directive in the statement of 
managers accompanying a conference report on an appropriations bill or 
continuing resolution.
    (2) General decreases due to Congressional action must be applied 
consistently to BIA, self-governance Tribes/Consortia, and Tribes/
Consortia not participating in self-governance.
    (3) General increases due to Congressional appropriations must be 
applied consistently, except where used to achieve equitable 
distribution among regions and Tribes.
    (4) A Tribe/Consortium will be notified of any decrease and be 
provided an opportunity to reconcile.
    (b) Mistakes. If the Tribe/Consortium or the Secretary can identify 
and document substantive errors in calculations, the parties will 
renegotiate the amounts and make every effort to correct such errors.
    (c) Mutual Agreement. Both the Tribe/Consortium and the Secretary 
may agree to renegotiate amounts at any time.

Establishing Self-Governance Base Budgets


Sec. 1000.105  What are self-governance base budgets?

    (a) A Tribe/Consortium self-governance base budget is the amount of 
recurring funding identified in the President's annual budget request 
to Congress. This amount must be adjusted to reflect subsequent 
Congressional action. It includes amounts that are eligible to be base 
transferred or have been base transferred from BIA budget accounts to 
self-governance budget accounts. As allowed by Congress, self-
governance base budgets are derived from:
    (1) A Tribe's/Consortium's Pub. L. 93-638 contract amounts;
    (2) Negotiated agency, regional, and central office amounts;
    (3) Other recurring funding;
    (4) Special projects, if applicable;
    (5) Programmatic shortfall;
    (6) Tribal priority allocation increases and decreases;
    (7) Pay costs and retirement cost adjustments; and
    (8) Any other inflationary cost adjustments.
    (b) Self-governance base budgets must not include any non-recurring 
program funds, construction and wildland firefighting accounts, 
Congressional earmarks, or other funds specifically excluded by 
Congress. These funds are negotiated annually and may be included in 
the AFA but must not be included in the self-governance base budget.
    (c) Self-governance base budgets may not include other recurring 
type programs that are currently in Tribal priority allocations (TPA) 
such as general assistance, housing improvement program (HIP), road 
maintenance and contract support. Should these later four programs ever 
become base transferred to Tribes, then they may be included in a self-
governance Tribe's base budget.


Sec. 1000.106  Once a Tribe/Consortium establishes a base budget, are 
funding amounts renegotiated each year?

    No, unless otherwise requested by the Tribe/Consortium, these 
amounts are not renegotiated each year. If a Tribe/Consortium 
renegotiates funding levels:
    (a) It must negotiate all funding levels in the AFA using the 
process for determining residuals and funding amounts on the same basis 
as other Tribes; and
    (b) It is eligible for funding amounts of new programs or available 
programs not previously included in the AFA on the same basis as other 
Tribes.


Sec. 1000.107  Must a Tribe/Consortium with a base budget or base 
budget-eligible program amounts negotiated before January 16, 2001 
negotiate new Tribal shares and residual amounts?

    No, if a Tribe/Consortium negotiated amounts before January 16, 
2001, it does not need to renegotiate new Tribal shares and residual 
amounts.
    (a) At Tribal option, a Tribe/Consortium may retain funding amounts 
that:
    (1) Were either base eligible or in the Tribe's base; and
    (2) Were negotiated before this part is promulgated.
    (b) If a Tribe/Consortium desires to renegotiate the amounts 
referred to in paragraph (a) of this section, the Tribe/Consortium 
must:
    (1) Negotiate all funding included in the AFA; and
    (2) Use the process for determining residuals and funding amounts 
on the same basis as other Tribes.
    (c) Self-governance Tribes/Consortia are eligible for funding 
amounts for new or available programs not previously included in the 
AFA on the same basis as other Tribes/Consortia.


Sec. 1000.108  How are self-governance base budgets established?

    At the request of the Tribe/Consortium, a self-governance base 
budget identifying each Tribe's funding amount is included in BIA's 
budget justification for the following year, subject to Congressional 
appropriation.


Sec. 1000.109  How are self-governance base budgets adjusted?

    Self-governance base budgets must be adjusted as follows:
    (a) Congressional action. (1) Increases/decreases as a result of 
Congressional appropriations and/or a directive in the statement of 
managers accompanying a conference report on an appropriations bill or 
continuing resolution.
    (2) General decreases due to Congressional action must be applied 
consistently to BIA, self-governance Tribes/Consortia, and Tribes/
Consortia not participating in self-governance.
    (3) General increases due to Congressional appropriations must be 
applied consistently, except where used to achieve equitable 
distribution among regions and Tribes.
    (4) A Tribe/Consortium will be notified of any decrease and be 
provided an opportunity to reconcile.
    (b) Mistakes. If the Tribe/Consortium or the Secretary can identify 
and document substantive errors in calculations, the parties will 
renegotiate such amounts and make every effort to correct the errors.

[[Page 78717]]

    (c) Mutual agreement. Both the Tribe/Consortium and the Secretary 
may agree to renegotiate amounts at any time.

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

Purpose


Sec. 1000.120  What is the purpose of this subpart?

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


Sec. 1000.121  What is an annual funding agreement for a non-BIA 
program?

    Annual funding agreements for non-BIA programs are legally binding 
and mutually enforceable agreements between a bureau and a Tribe/
Consortium participating in the self-governance program that contain:
    (a) A description of that portion or portions of a bureau program 
that are to be performed by the Tribe/Consortium; and
    (b) Associated funding, terms and conditions under which the Tribe/
Consortium will assume a program, or portion of a program.

Eligibility


Sec. 1000.122  What non-BIA programs are eligible for inclusion in an 
annual funding agreement?

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


Sec. 1000.123  Are there non-BIA programs for which the Secretary must 
negotiate for inclusion in an AFA subject to such terms as the parties 
may negotiate?

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


Sec. 1000.124  What programs are included under Section 403(b)(2) of 
the Act?

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


Sec. 1000.125  What programs are included under Section 403(c)?

    Department of the Interior programs of special geographic, 
historical, or cultural significance to participating Tribes, 
individually or as members of a Consortium, are eligible for inclusion 
in AFAs under section 403(c).


Sec. 1000.126  What does ``special geographic, historical or cultural'' 
mean?

    (a) Geographic generally refers to all lands presently ``on or 
near'' an Indian reservation, and all other lands within ``Indian 
country,'' as defined by 18 U.S.C. 1151. In addition, ``geographic'' 
includes:
    (1) Lands of former reservations;
    (2) Lands on or near those conveyed or to be conveyed under the 
Alaska Native Claims Settlement Act (ANCSA);
    (3) Judicially established aboriginal lands of a Tribe or a 
Consortium member or as verified by the Secretary; and
    (4) Lands and waters pertaining to Indian rights in natural 
resources, hunting, fishing, gathering, and subsistence activities, 
provided or protected by treaty or other applicable law.
    (b) Historical generally refers to programs or lands having a 
particular history that is relevant to the Tribe. For example, 
particular trails, forts, significant sites, or educational activities 
that relate to the history of a particular Tribe.
    (c) Cultural refers to programs, sites, or activities as defined by 
individual Tribal traditions and may include, for example:
    (1) Sacred and medicinal sites;
    (2) Gathering of medicines or materials such as grasses for basket 
weaving; or
    (3) Other traditional activities, including, but not limited to, 
subsistence hunting, fishing, and gathering.


Sec. 1000.127  Under Section 403(b)(2), when must programs be awarded 
non-competitively?

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


Sec. 1000.128  Is there a contracting preference for programs of 
special geographic, historical, or cultural significance?

    Yes, if there is a special geographic, historical, or cultural 
significance to the program or activity administered by the bureau, the 
law affords the bureau the discretion to include the programs or 
activities in an AFA on a non-competitive basis.


Sec. 1000.129  Are there any programs that may not be included in an 
AFA?

    Yes, section 403(k) of the Act excludes from the program:
    (a) Inherently Federal functions; and
    (b) Programs where the statute establishing the existing program 
does not authorize the type of participation sought by the Tribe/
Consortium, except as provided in Sec. 1000.134.


Sec. 1000.130  Does a Tribe/Consortium need to be identified in an 
authorizing statute in order for a program or element of a program to 
be included in a non-BIA AFA?

    No, the Act favors the inclusion of a wide range of programs.


Sec. 1000.131  Will Tribes/Consortia participate in the Secretary's 
determination of what is to be included on the annual list of available 
programs?

    Yes, the Secretary must consult each year with Tribes/Consortia 
participating in self-governance programs regarding which bureau 
programs are eligible for inclusion in AFAs.


Sec. 1000.132  How will the Secretary consult with Tribes/Consortia in 
developing the list of available programs?

    (a) On, or as near as possible to, October 1 of each year, the 
Secretary must distribute to each participating self-governance Tribe/
Consortium the previous year's list of available programs in accordance 
with section 405(c)(4) of the Act. The list must include:
    (1) All of the Secretary's proposed additions and revisions for the 
coming year with an explanation; and
    (2) Programmatic targets and an initial point of contact for each 
bureau.
    (b) The Tribes/Consortia receiving the proposed list will have 30 
days from receipt to comment in writing on the Secretary's proposed 
revisions and to provide additions and revisions of their own for the 
Secretary to consider.
    (c) The Secretary will carefully consider these comments before 
publishing the list as required by section 405(c)(4) of the Act.
    (d) If the Secretary does not plan to include a Tribal suggestion 
or revision in the final published list, he/she must provide an 
explanation of his/her reasons if requested by a Tribe.


Sec. 1000.133  What else is on the list in addition to eligible 
programs?

    The list will also include programmatic targets and an initial 
point of contact for each bureau. Programmatic targets will be 
established as part of the consultation process described in 
Sec. 1000.132.


Sec. 1000.134  May a bureau negotiate with a Tribe/Consortium for 
programs not specifically included on the annual section 405(c) list?

    Yes, the annual list will specify that bureaus will negotiate for 
other programs eligible under section 403(b)(2) when requested by a 
Tribe/Consortium. Bureaus may negotiate for section 403(c) programs 
whether or not they are on the list.

[[Page 78718]]

Sec. 1000.135  How will a bureau negotiate an annual funding agreement 
for a program of special geographic, historical, or cultural 
significance to more than one Tribe?

    (a) If a program is of special geographic, historical, or cultural 
significance to more than one Tribe, the bureau may allocate the 
program among the several Tribes/Consortia or select one Tribe/
Consortium with whom to negotiate an AFA.
    (b) In making a determination under paragraph (a) of this section, 
the bureau will, in consultation with the affected Tribes, consider:
    (1) The special significance of each Tribe's or Consortium member's 
interest; and
    (2) The statutory objectives being served by the bureau program.
    (c) The bureau's decision will be final for the Department.


Sec. 1000.136  When will this determination be made?

    It will occur during the pre-negotiation process, subject to the 
timeframes in Sec. 1000.171 and Sec. 1000.172.

Funding


Sec. 1000.137  What funds are included in an AFA?

    Bureaus determine the amount of funding to be included in the AFA 
using the following principles:
    (a) 403(b)(2) programs. In general, funds are provided in an AFA to 
the Tribe/Consortium in an amount equal to the amount that it is 
eligible to receive under section 106 of Pub. L. 93-638.
    (b) 403(c) programs. (1) The AFA will include:
    (i) Amounts equal to the direct costs the bureau would have 
incurred were it to operate that program at the level of work mutually 
agreed to in the AFA; and
    (ii) Allowable indirect costs.
    (2) A bureau is not required to include management and support 
funds from the regional or central office level in an AFA, unless:
    (i) The Tribe/Consortium will perform work previously performed at 
the regional or central office level;
    (ii) The work is not compensated in the indirect cost rate; and
    (iii) Including management and support costs in the AFA does not 
result in the Tribe/Consortium being paid twice for the same work when 
negotiated indirect cost rate is applied.
    (c) Funding Limitations. The amount of funding must be subject to 
the availability and level of Congressional appropriations to the 
bureau for that program or activity. As the various bureaus use 
somewhat differing budgeting practices, determining the amount of funds 
available for inclusion in the AFA for a particular program or activity 
is likely to vary among bureaus or programs.
    (1) The AFA may not exceed the amount of funding the bureau would 
have spent for direct operations and indirect support and management of 
that program in that year.
    (2) The AFA must not include funding for programs still performed 
by the bureau.


Sec. 1000.138  How are indirect cost rates determined?

    The Department's Office of the Inspector General (OIG) or other 
cognizant Federal agency and the Tribe/Consortium negotiate indirect 
cost rates. These rates are based on the provisions of the Office of 
Management and Budget (OMB) Circular A-87 or other applicable OMB cost 
circular and the provisions of Title I of Pub. L. 93-638 (See 
Sec. 1000.142). These rates are used generally by all Federal agencies 
for contracts and grants with the Tribe/Consortium, including self-
governance agreements.


Sec. 1000.139  Will the established indirect cost rates always apply to 
new AFAs?

    No, the established indirect cost rates will not always apply to 
new AFAs.
    (a) A Tribe's/Consortium's existing indirect cost rate should be 
reviewed and renegotiated with the inspector general or other cognizant 
agency if:
    (1) Using the previously negotiated rate would include the recovery 
of indirect costs that are not reasonable, allocable, or allowable to 
the relevant program; or
    (2) The previously negotiated rate would result in an under-
recovery by the Tribe/Consortium.
    (b) If a Tribe/Consortium has a fixed amount indirect cost 
agreement under OMB Circular A-87, then:
    (1) Renegotiation is not required and the duration of the fixed 
amount agreement will be that provided for in the fixed amount 
agreement; or
    (2) The Tribe/Consortium and bureau may negotiate an indirect cost 
amount or rate for use only in that AFA without the involvement of the 
inspector general or other cognizant agency.


Sec. 1000.140  How does the Secretary determine the amount of indirect 
contract support costs?

    The Secretary determines the amount of indirect contract support 
costs by:
    (a) Applying the negotiated indirect cost rate to the appropriate 
direct cost base;
    (b) Using the provisional rate; or
    (c) Negotiating the amount of indirect contract support.


Sec. 1000.141  Is there a predetermined cap or limit on indirect cost 
rates or a fixed formula for calculating indirect cost rates?

    No, indirect cost rates vary from Tribe to Tribe. The Secretary 
should refer to the appropriate negotiated indirect cost rates for 
individual Tribes, that apply government-wide. Although this cost rate 
is not capped, the amount of funds available for inclusion is capped at 
the level available under the relevant appropriation.


Sec. 1000.142  Instead of the negotiated indirect cost rate, is it 
possible to establish a fixed amount or another negotiated rate for 
indirect costs where funds are limited?

    Yes, OMB Circular A-87 encourages agencies to test fee-for-service 
alternatives. If the parties agree to a fixed price, fee-for-service 
agreement, then they must use OMB Circular A-87 as a guide in 
determining the appropriate price (OMB circulars are available at 
http://www.whitehouse.gov/omb/ or see 5 CFR 1310.3).Where limited 
appropriated funds are available, negotiating the fixed cost option or 
another rate may facilitate reaching an agreement with that Tribe/
Consortium.

Other Terms and Conditions


Sec. 1000.143  May the bureaus negotiate terms to be included in an AFA 
for non-Indian programs?

    Yes, as provided for by section 403(b)(2) and 403(c) and as 
necessary to meet program mandates.

Reallocation, Duration, and Amendments


Sec. 1000.144  Can a Tribe reallocate funds for a non-BIA non-Indian 
program?

    Yes, section 403(b) permits such reallocation upon joint agreement 
of the Secretary and the Tribe/Consortium.


Sec. 1000.145  Do Tribes/Consortia need Secretarial approval to 
reallocate funds between Title-I eligible programs that the Tribe/
Consortium administers under a non-BIA AFA?

    No, unless otherwise required by law, the Secretary does not have 
to approve the reallocation of funds with the exception of construction 
projects.


Sec. 1000.146  Can a Tribe/Consortium negotiate an AFA with a non-BIA 
bureau for which the performance period exceeds one year?

    Yes, subject to the terms of the AFA, a Tribe/Consortium and a non-
BIA bureau may agree to provide for the performance under the AFA to 
extend beyond the fiscal year. However, the

[[Page 78719]]

Department may not obligate funds in excess and advance of available 
appropriations.


Sec. 1000.147  Can the terms and conditions in a non-BIA AFA be amended 
during the year it is in effect?

    Yes, terms and conditions in a non-BIA AFA may be amended during 
the year it is in effect as agreed to by both the Tribe/Consortium and 
the Secretary.


Sec. 1000.148  What happens if an AFA expires before the effective date 
of the successor AFA?

    If the effective date of a successor AFA is not on or before the 
expiration of the current AFA, subject to terms mutually agreed upon by 
the Tribe/Consortium and the Department at the time the current AFA was 
negotiated or in a subsequent amendment, the Tribe/Consortium may 
continue to carry out the program authorized under the AFA to the 
extent resources permit. During this extension period, the current AFA 
shall remain in effect, including coverage of the Tribe/Consortium 
under the Federal Tort Claims Act (FTCA) 28 U.S.C. 2671-2680 (1994); 
and the Tribe/Consortium may use any funds remaining under the AFA, 
savings from other programs or Tribal funds to carry out the program. 
Nothing in this section authorizes an AFA to be continued beyond the 
completion of the program authorized under the AFA or the amended AFA. 
This section also does not entitle a Tribe/Consortium to receive, nor 
does it prevent a Tribe from receiving, additional funding under any 
successor AFA. The successor AFA must provide funding to the Tribe/
Consortium at a level necessary for the Tribe/Consortium to perform the 
programs, functions, services, and activities (PFSA) or portions 
thereof for the full period they were or will be performed.

Subpart G--Negotiation Process for Annual Funding Agreements

Purpose


Sec. 1000.160  What is the purpose of this subpart?

    This subpart provides the process and timelines for negotiating a 
self-governance compact with the Department and an AFA with any bureau.
    (a) For a newly selected or currently participating Tribe/
Consortium negotiating an initial AFA with any bureau, see 
Secs. 1000.173 through 1000.179.
    (b) For a participating Tribe/Consortium negotiating a successor 
AFA with any bureau, see Secs. 1000.180 through 1000.182.

Negotiating a Self-Governance Compact


Sec. 1000.161  What is a self-governance compact?

    A self-governance compact is an executed document that affirms the 
government-to-government relationship between a self-governance Tribe 
and the United States. The compact differs from an AFA in that parts of 
the compact apply to all bureaus within the Department of the Interior 
rather than a single bureau.


Sec. 1000.162  What is included in a self-governance compact?

    A model format for self-governance compacts appears in appendix A. 
A self-governance compact should generally include the following:
    (a) The authority and purpose;
    (b) Terms, provisions, and conditions of the compact;
    (c) Obligations of the Tribe and the United States; and
    (d) Other provisions.


Sec. 1000.163  Can a Tribe/Consortium negotiate other terms and 
conditions not contained in the model compact?

    Yes, the Secretary and a self-governance Tribe/Consortium may 
negotiate into the model compact contained in appendix A additional 
terms relating to the government-to-government relationship between the 
Tribe(s) and the United States. For BIA programs, a Tribe/Consortium 
and the Secretary may agree to include any term in a contract and 
funding agreement under Title I in the model compact contained in 
appendix A to this part.


Sec. 1000.164  Can a Tribe/Consortium have an AFA without entering into 
a compact?

    Yes, at the Tribe's/Consortium's option.


Sec. 1000.165  Are provisions in compacts negotiated before January 16, 
2001, effective after implementation?

    (a) Yes, all provisions in compacts that were negotiated with BIA 
before January 16, 2001, shall remain in effect for BIA programs only 
after January 16, 2001, provided that each compact contains provisions:
    (1) That are authorized by the Tribal Self-Governance Act of 1994;
    (2) Are in compliance with other applicable Federal laws; and,
    (3) Are consistent with this part.
    (b) BIA will notify the Tribe/Consortium in writing when BIA 
asserts that a provision or provisions of that Tribe's/Consortium's 
previously negotiated compact is not in compliance with the terms and 
conditions of this part. BIA and the Tribe/Consortium will renegotiate 
the provision within 60 days of the Tribe's/Consortium's receipt of the 
notification.
    (c) If renegotiation is not successful within 60 days of the notice 
being provided, BIA's determination is final for the bureau and 
enforceability of the provisions shall be subject to the appeals 
process described in subpart R of this part. Pending a final appeal 
through the appeals process, BIA's determination shall be stayed.

Negotiation of Initial Annual Funding Agreements


Sec. 1000.166  What are the phases of the negotiation process?

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


Sec. 1000.167  Who may initiate the information phase?

    Any Tribe/Consortium that has been admitted to the program or to 
the applicant pool may initiate the information phase.


Sec. 1000.168  Is it mandatory to go through the information phase 
before initiating the negotiation phase?

    No, a Tribe/Consortium may go directly to the negotiation phase.


Sec. 1000.169  How does a Tribe/Consortium initiate the information 
phase?

    A Tribe/Consortium initiates the information phase by submitting a 
letter of interest to the bureau administering a program that the 
Tribe/Consortium may want to include in its AFA. A letter of interest 
may be mailed, telefaxed, or hand-delivered to:
    (a) The Director, OSG, if the request is for information about BIA 
programs;
    (b) The non-BIA bureau's self-governance representative identified 
in the Secretary's annual section 405(c) listing in the Federal 
Register, if the request is for information concerning programs of non-
BIA bureaus.


Sec. 1000.170  What is the letter of interest?

    A letter of interest is the initial indication of interest 
submitted by the Tribe/Consortium informing the bureau of the Tribe's/
Consortium's interest in seeking information for the possible 
negotiation of one or more bureau programs. For non-BIA bureaus, the 
program and budget information request should relate to the program and 
activities identified in the Secretary's section 405(c) list in the 
Federal Register or a section 403(c) request. A letter of interest 
should identify the following:

[[Page 78720]]

    (a) As specifically as possible, the program a Tribe/Consortium is 
interested in negotiating under an AFA;
    (b) A preliminary brief explanation of the cultural, historical, or 
geographic significance to the Tribe/Consortium of the program, if 
applicable;
    (c) The scope of activity that a Tribe/Consortium is interested in 
including in an AFA;
    (d) Other information that may assist the bureau in identifying the 
programs that are included or related to the Tribe's/Consortium's 
request;
    (e) A request for information that indicates the type and/or 
description of information that will assist the Tribe/Consortium in 
pursuing the negotiation process;
    (f) A designated Tribal contact;
    (g) A request for information on any funds that may be available 
within the bureau or other known possible sources of funding for 
planning and negotiating an AFA;
    (h) A request for information on any funds available within the 
bureau or from other sources of funding that the Tribe/Consortium may 
include in the AFA for planning or performing programs or activities; 
and
    (i) Any requests for technical assistance to be provided by the 
bureau in preparing documents of materials that may be required for the 
Tribe/Consortium in the negotiation process.


Sec. 1000.171  When should a Tribe/Consortium submit a letter of 
interest?

    A letter of interest may be submitted at any time. To meet the 
negotiation deadlines below, letters should be submitted to the 
appropriate non-BIA bureaus by March 1; letters should be submitted to 
BIA by April 1 for fiscal year Tribes/Consortia or May 1 for calendar 
year Tribes/Consortia.


Sec. 1000.172  What steps does the bureau take after a letter of 
interest is submitted by a Tribe/Consortium?

    (a) Within 15 calendar days of receipt of a Tribe's/Consortium's 
letter of interest, the bureau will notify the Tribe/Consortium about 
who will be designated as the bureau's representative to be responsible 
for responding to the Tribal requests for information. The bureau 
representative shall act in good faith in fulfilling the following 
responsibilities:
    (1) Providing all budget and program information identified in 
paragraph (b) of this section, from each organizational level of the 
bureau(s); and
    (2) Notifying any other bureau requiring notification and 
participation under this part.
    (b) Within 30 calendar days of receipt of the Tribe's/Consortium's 
letter of interest:
    (1) To the extent that such reasonably related information is 
available, the bureau representative is to provide the information 
listed in paragraph (c) of this section, if available and consistent 
with the bureau's budgetary process;
    (2) A written explanation of why the information is not available 
or not being provided to the Tribe's/Consortium's contact and the date 
by which other available information will be provided; or
    (3) If applicable, a written explanation of why the program is 
unavailable for negotiation.
    (c) Information to be made available to the Tribe's/Consortium's 
contact, subject to the conditions of paragraph (b) of this section, 
includes:
    (1) Information regarding program, budget, staffing, and locations 
of the offices administering the program and related administrative 
support program identified by the Tribe/Consortium,
    (2) Information contained in the previous year, present year, and 
next year's budget proposed by the President at the national program 
level and the regional/local level.
    (3) When appropriate, the bureau will be available to meet the 
Tribal representatives to explain the budget information provided.
    (4) Information used to support budget allocations for the programs 
identified (e.g., full time equivalents and other relevant factors).
    (5) Information used to operate and/or evaluate a program, such as 
statutory and regulatory requirements and program standards.
    (6) If applicable, information regarding how a program is 
administered by more than one bureau, including a point of contact for 
information for the other bureau(s); and
    (7) Other information requested by the Tribe/Consortium in its 
letter of interest.
    (d) If a bureau fails to provide reasonably related information 
requested by a Tribe/Consortium, the Tribe/Consortium may appeal the 
failure in accordance with subpart R of this part. These requests shall 
be considered for a fee waiver under the Freedom of Information Act.


Sec. 1000.173  How does a newly selected Tribe/Consortium initiate the 
negotiation phase?

    (a) To initiate the negotiation phase, an authorized official of 
the newly selected Tribe/Consortium submits a written request to 
negotiate an AFA as indicated in the following table:

------------------------------------------------------------------------
                              the Tribe/Consortium
         For a . . .            should submit the      and the request
                                request to . . .     should identify . .
--------------------------------------------------------------.---------
(1) BIA program.............  the Director, OSG...  the lead
                                                     negotiator(s) for
                                                     the Tribe/
                                                     Consortium.
(2) Non-BIA program.........  the bureau            the lead
                               representative        negotiator(s) for
                               designated to         the Tribe/
                               respond to the        Consortium and the
                               Tribe's/              specific program(s)
                               Consortium's          that the Tribe/
                               request for           Consortium seeks to
                               information.          negotiate.
------------------------------------------------------------------------

    (b) The Tribal/Consortium official must submit the information 
required by paragraph (a) of this section by the deadline shown in the 
following table:

------------------------------------------------------------------------
                                    Type of tribe/         Submission
        Type of program               consortium            deadline
------------------------------------------------------------------------
(1) BIA.......................  Fiscal year...........  April 1.
(2) BIA.......................  Calendar year.........  May 1.
(3) Non-BIA...................  Fiscal year or          May 1*.
                                 calendar year.
------------------------------------------------------------------------
* The request may be submitted later than this date where the bureau and
  the Tribe/Consortium agree that administration for a partial year
  funding agreement is feasible.


[[Page 78721]]

Sec. 1000.174  How and when does the bureau respond to a request to 
negotiate?

    (a) Within 15 days of receiving a Tribe's/Consortium's request to 
negotiate, the bureau will take the steps in this section. If more than 
one bureau is involved, a lead bureau must be designated to conduct 
negotiations.
    (b) If the program is contained on the section 405(c) list, the 
bureau will identify the lead negotiator(s) and awarding official(s) 
for executing the AFA.
    (c) If the program is potentially of a special geographic, 
cultural, or historic significance to a Tribe/Consortium, the bureau 
will schedule a pre-negotiation meeting with the Tribe/Consortium as 
soon as possible. The purpose of the meeting is to assist the bureau in 
determining if the program is available for negotiation.
    (d) Within 10 days after convening a meeting under paragraph (c) of 
this section:
    (1) If the program is available for negotiation, the bureau will 
identify the lead negotiator(s) and awarding official(s); or
    (2) If the program is unavailable for negotiation, the bureau will 
give to the Tribe/Consortium a written explanation of why the program 
is unavailable for negotiation.


Sec. 1000.175  What is the process for conducting the negotiation 
phase?

    (a) Within 30 days of receiving a written request to negotiate, the 
bureau and the Tribe/Consortium will agree to a date to conduct an 
initial negotiation meeting. Subsequent meetings will be held with 
reasonable frequency at reasonable times.
    (b) Tribe/Consortium and bureau lead negotiators must:
    (1) Be authorized to negotiate on behalf of their government; and
    (2) Involve all necessary persons in the negotiation process.
    (c) Once negotiations have been successfully completed, the bureau 
and Tribe/Consortium will prepare and either execute or disapprove an 
AFA within 30 days or by a mutually agreed upon date.


Sec. 1000.176  What issues must the bureau and the Tribe/Consortium 
address at negotiation meetings?

    The negotiation meetings referred to in Sec. 1000.175 must address 
at a minimum the following:
    (a) The specific Tribe/Consortium proposal(s) and intentions;
    (b) Legal or program issues that the bureau or the Tribe/Consortium 
identify as concerns;
    (c) Options for negotiating programs and related budget amounts, 
including mutually agreeable options for developing alternative formats 
for presenting budget information to the Tribe/Consortium;
    (d) Dates for conducting and concluding negotiations;
    (e) Protocols for conducting negotiations;
    (f) Responsibility for preparation of a written summary of the 
discussions; and
    (g) Who will prepare an initial draft of the AFA.


Sec. 1000.177  What happens when the AFA is signed?

    (a) After all parties have signed the AFA, a copy is sent to the 
Tribe/Consortium.
    (b) The Secretary forwards copies of the AFA to:
    (1) The House Subcommittee on Native Americans and Insular Affairs; 
and
    (2) The Senate Committee on Indian Affairs;
    (c) For BIA programs, the AFA is also forwarded to each Indian 
Tribe/Consortium served by the BIA Agency that serves any Tribe/
Consortium that is a party to the AFA.


Sec. 1000.178  When does the AFA become effective?

    The effective date is not earlier than 90 days after the AFA is 
submitted to the Congressional committees under Sec. 1000.177(b).


Sec. 1000.179  What happens if the Tribe/Consortium and bureau 
negotiators fail to reach an agreement?

    (a) If the Tribe/Consortium and bureau representatives do not reach 
agreement during the negotiation phase by the mutually agreed to date 
for completing negotiations, the Tribe/Consortium and the bureau may 
each make a last and best offer to the other party.
    (b) If a last and best offer is not accepted within 15 days, the 
bureau will provide a written explanation to the Tribe/Consortium 
explaining its reasons for not entering into an AFA for the requested 
program, together with the applicable statement prescribed in subpart R 
of this part, concerning appeal or review rights.
    (c) The Tribe/Consortium has 30 days from receipt of the bureau's 
written explanation to file an appeal. Appeals are handled in 
accordance with subpart R of this part.

Negotiation Process for Successor Annual Funding Agreements


Sec. 1000.180  What is a successor AFA?

    A successor AFA is a funding agreement negotiated after a Tribe's/
Consortium's initial agreement with a bureau for continuing to perform 
a particular program. The parties to the AFA should generally use the 
terms of the existing AFA to expedite and simplify the exchange of 
information and the negotiation process.


Sec. 1000.181  How does the Tribe/Consortium initiate the negotiation 
of a successor AFA?

    Although a written request is desirable to document the precise 
request and date of the request, a written request is not mandatory. If 
either party anticipates a significant change in an existing program in 
the AFA, it should notify the other party of the change at the earliest 
possible date so that the other party may plan accordingly.


Sec. 1000.182  What is the process for negotiating a successor AFA?

    The Tribe/Consortium and the bureau use the procedures in 
Secs. 1000.173--1000.179.

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


Sec. 1000.190  What is the purpose of this subpart?

    This subpart prescribes the process that the Secretary uses to 
determine whether a BIA self-governance funding agreement causes a 
limitation or reduction in the services, contracts, or funds that any 
other Tribe/Consortium or Tribal organization is eligible to receive 
under self-determination contracts, other self-governance compacts, or 
direct services from BIA. This type of limitation is prohibited by 
section 406(a) of Pub. L. 93-638. For the purposes of this subpart, 
Tribal organization means an organization eligible to receive services, 
contracts, or funds under section 102 of Pub. L. 93-638.


Sec. 1000.191  To whom does this subpart apply?

    Participating and non-participating Tribes/Consortia and Tribal 
organizations are subject to this subpart. It does not apply to the 
general public and non-Indians.


Sec. 1000.192  What services, contracts, or funds are protected under 
section 406(a)?

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


Sec. 1000.193  Who may raise the issue of limitation or reduction of 
services, contracts, or funding?

    BIA or any affected Tribe/Consortium or Tribal organization may 
raise the issue that a BIA self-governance AFA

[[Page 78722]]

limits or reduces particular services, contracts, or funding for which 
it is eligible.


Sec. 1000.194  When must BIA raise the issue of limitation or reduction 
of services, contracts, or funding?

    (a) From the beginning of the negotiation period until the end of 
the first year of implementation of an AFA, BIA may raise the issue of 
limitation or reduction of services, contracts, or funding. If BIA and 
a participating Tribe/Consortium disagree over the residual 
information, a participating Tribe/Consortium may ask the Deputy 
Commissioner--Indian Affairs to reconsider residual levels for 
particular programs. [See Sec. 1000.95(d)]
    (b) After the AFA is signed, BIA must raise the issue of any 
undetermined funding amounts within 30 days after the final funding 
level is determined. BIA may not raise this issue after this period has 
elapsed.


Sec. 1000.195  When must an affected Tribe/Consortium or Tribal 
organization raise the issue of a limitation or reduction of services, 
contracts, or funding for which it is eligible?

    (a) A Tribe/Consortium or Tribal organization may raise the issue 
of limitation or reduction of services, contracts, or funding for which 
it is eligible during:
    (1) Region-wide Tribal shares meetings occurring before the first 
year of implementation of an AFA;
    (2) Within the 90-day review period before the effective date of 
the AFA; and
    (3) The first year of implementation of an AFA.
    (b) Any Tribe/Consortium or Tribal organization claiming a 
limitation or reduction of contracts, services, or funding for which it 
is eligible must notify, in writing, both the Department and 
negotiating Tribe/Consortium. Claims may only be filed within the 
periods specified in paragraph (a) of this section.


Sec. 1000.196  What must be included in a finding by BIA or in a claim 
by an affected Tribe/Consortium or Tribal organization regarding the 
issue of a limitation or reduction of services?

    An affected Tribe/Consortium must include in its claim a written 
explanation identifying the alleged limitation or reduction of 
services, contracts, or funding for which it is eligible. A finding by 
BIA must likewise identify the limitation or reduction.


Sec. 1000.197  How will BIA resolve a claim?

    All findings and claims timely made in accordance with 
Secs. 1000.194 through 1000.195 will be resolved in accordance with 25 
CFR part 2.


Sec. 1000.198  How must a limitation or reduction in services, 
contracts, or funds be remedied?

    (a) If funding a participating Tribe/Consortium will limit or 
reduce services, contracts, or funds for which another Tribe/Consortium 
or Tribal organization is eligible, BIA must remedy the reduction as 
follows:
    (1) In the current AFA year BIA must use shortfall funding, 
supplemental funding, or other available BIA resources; and
    (2) In a subsequent AFA year, BIA may adjust the AFA funding in an 
AFA to correct a finding of actual reduction in services, contracts, or 
funds for that subsequent year.
    (b) All adjustments under this section must be mutually agreed 
between BIA and the participating Tribe/Consortium.

Subpart I--Public Consultation Process


Sec. 1000.210  When does a non-BIA bureau use a public consultation 
process related to the negotiation of an AFA?

    When required by law or when appropriate under bureau discretion, a 
bureau may use a public consultation process in negotiating an AFA.


Sec. 1000.211  Will the bureau contact the Tribe/Consortium before 
initiating public consultation process for a non-BIA AFA under 
negotiation?

    Yes, the bureau and the Tribe/Consortium will discuss the 
consultation process to be used in negotiating a non-BIA AFA.
    (a) When public consultation is required by law, the bureau will 
follow the required process and will involve the Tribe/Consortium in 
that process to the maximum extent possible.
    (b) When public consultation is a matter of bureau discretion, at 
Tribal request the Tribe/Consortium and the bureau, unless prohibited 
by law, will jointly develop guidelines for that process, including the 
conduct of any future public meetings. The bureau and the Tribe/
Consortium will jointly identify a list of potential project 
beneficiaries, third-party stakeholders, or third-party users (affected 
parties) for use in the public consultation process.


Sec. 1000.212  What is the role of the Tribe/Consortium when a bureau 
initiates a public meeting?

    When a bureau initiates a public meeting with affected parties it 
will take the following actions:
    (a) The bureau will notify the Tribe/Consortium of the meeting 
time, place, and invited parties:
    (1) Ten days in advance, if possible; or
    (2) If less than 10 days in advance, at the earliest practical 
time.
    (b) When the bureau notifies the Tribe/Consortium, the bureau will 
invite the Tribe/Consortium to participate in and, unless prohibited by 
law, to co-sponsor or co-facilitate the meeting.
    (c) When possible, the bureau and the Tribe/Consortium should meet 
to plan and discuss the conduct of the meeting, meeting protocols, and 
general participation in the proposed consultation meeting.
    (d) The bureau and the Tribe/Consortium will conduct the meeting in 
a manner that facilitates and does not undermine the government-to-
government relationship and self-governance;
    (e) The Tribe/Consortium may provide technical support to the 
bureau to enhance the consultation process, as mutually agreed.


Sec. 1000.213  What should the bureau do if it is invited to attend a 
meeting with respect to the Tribe's/Consortium's proposed AFA?

    If the bureau is invited to participate in meetings, hearings, 
etc., held or conducted by other parties, where the subject matter of 
the AFA under negotiation is expected to be raised, the bureau:
    (a) Shall notify the Tribe/Consortium at the earliest practical 
time; and
    (b) Should encourage the meeting sponsor to invite the Tribe/
Consortium to participate.


Sec. 1000.214  Will the bureau and the Tribe/Consortium share 
information concerning inquiries about the Tribes/Consortia and the 
AFA?

    Yes, the bureau and the Tribe/Consortium will exchange information 
about inquiries from affected or interested parties relating to the AFA 
under negotiation.

Subpart J--Waiver of Regulations


Sec. 1000.220  What regulations apply to self-governance Tribes?

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


Sec. 1000.221  Can the Secretary grant a waiver of regulations to a 
Tribe/Consortium?

    Yes, a Tribe/Consortium may ask the Secretary to grant a waiver of 
some or all Department of the Interior regulation(s) applicable to a 
program, in whole or in part, operated by a Tribe/Consortium under an 
AFA.

[[Page 78723]]

Sec. 1000.222  How does a Tribe/Consortium obtain a waiver?

    To obtain a waiver, the Tribe/Consortium must:
    (a) Submit a written request from the designated Tribal official to 
the Director for BIA programs or the appropriate bureau/office director 
for non-BIA programs;
    (b) Identify the regulation to be waived and the reasons for the 
request;
    (c) Identify the programs to which the waiver would apply;
    (d) Identify what provisions, if any, would be substituted in the 
AFA for the regulation to be waived; and
    (e) When applicable, identify the effect of the waiver on any trust 
programs or resources.


Sec. 1000.223  When can a Tribe/Consortium request a waiver of a 
regulation?

    A Tribe/Consortium may request a waiver of a regulation:
    (a) As part of the negotiation process; or
    (b) After an AFA has been executed.


Sec. 1000.224  How can a Tribe/Consortium expedite the review of a 
regulation waiver request?

    A Tribe/Consortium may request a meeting or other informal 
discussion with the appropriate bureau officials before submitting a 
waiver request.
    (a) To set up a meeting, the Tribe/Consortium should contact:
    (1) For BIA programs, the Director, OSG; or
    (2) For non-BIA programs, the designated representative of the 
bureau.
    (b) The meeting or discussion is intended to provide:
    (1) A clear understanding of the nature of the request;
    (2) Necessary background and information; and
    (3) An opportunity for the bureau to offer appropriate technical 
assistance.


Sec. 1000.225  Are meetings or discussions mandatory?

    No, a meeting with the bureau officials is not necessary to submit 
a waiver request.


Sec. 1000.226  On what basis may the Secretary deny a waiver request?

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


Sec. 1000.227  What happens if the Secretary denies the waiver request?

    If the Secretary denies a waiver request, the Secretary issues a 
written decision stating:
    (a) The basis for the decision;
    (b) The decision is final for the Department; and
    (c) The Tribe/Consortium may request reconsideration of the denial.


Sec. 1000.228  What are examples of waivers prohibited by law?

    Examples of when a waiver is prohibited by Federal law include:
    (a) When the effect would be to waive or eliminate express 
statutory requirements;
    (b) When a statute authorizes civil and criminal penalties;
    (c) When it would result in a failure to ensure that proper health 
and safety standards are included in an AFA (section 403(e)(2));
    (d) When it would result in a reduction of the level of trust 
services that would have been provided by the Secretary to individual 
Indians (section 403(g)(4));
    (e) When it would limit or reduce the services, contracts, or funds 
to any other Indian Tribe or Tribal organization (section 406(a));
    (f) When it would diminish the Federal trust responsibility to 
Tribes, individual Indians or Indians with trust allotments (Section 
406(b)); or
    (g) When it would violate Federal case law.


Sec. 1000.229  May a Tribe/Consortium propose a substitute for a 
regulation it wishes to be waived?

    Yes, where a Tribe/Consortium wishes to replace the waived 
regulation with a substitute that otherwise maintains the requirements 
of the applicable Federal law, the Secretary may be able to approve the 
waiver request. The Tribe/Consortium and bureau officials must 
negotiate to develop a suggested substitution.


Sec. 1000.230  How is a waiver approval documented for the record?

    The waiver decision is made part of the AFA by attaching a copy of 
it to the AFA and by mutually executing any necessary conforming 
amendments to the AFA. The decisions announcing the waiver also will be 
posted on the Office of Self-Governance web site and all such decisions 
shall be made available on request.


Sec. 1000.231  How does a Tribe/Consortium request reconsideration of 
the Secretary's denial of a waiver?

    (a) The Tribe/Consortium may request reconsideration of a waiver 
denial. To do so, the Tribe/Consortium must submit a request to:
    (1) The Director, OSG, for BIA programs; or
    (2) The appropriate bureau head, for non-BIA programs.
    (b) The request must be filed within 30 days of the day the 
decision is received by certified mail (return receipt requested) or by 
hand delivery. A request submitted by mail will be considered filed on 
the postmark date.
    (c) The request must identify the issues to be addressed, including 
a statement of reasons supporting the request.


Sec. 1000.232  When must DOI respond to a request for reconsideration?

    The Secretary must issue a written decision within 30 days of the 
Department's receipt of a request for reconsideration. This decision is 
final for the Department and no administrative appeal may be made.

Subpart K--Construction


Sec. 1000.240  What construction programs included in an AFA are 
subject to this subpart?

    (a) All BIA and non-BIA construction programs included in an AFA 
are subject to this subpart. This includes design, construction, 
repair, improvement, expansion, replacement or demolition of buildings 
or facilities, and other related work for Federal, or Federally funded 
Tribal, facilities and projects.
    (b) The following programs and activities are not construction 
programs and activities:
    (1) Activities limited to providing planning services, 
administrative support services, coordination, responsibility for the 
construction project, day-to-day on-site management on site-management 
and administration of the project, which may include cost management, 
project budgeting, project scheduling and procurement except that all 
project design and actual construction activities are subject to all 
the requirements of subpart K, whether performed by a Tribe/Consortium, 
subcontractor, or consultant.
    (2) Housing Improvement Program or road maintenance program 
activities of BIA;
    (3) Operation and maintenance programs; and
    (4) Non-403(c) programs that are less than $100,000, subject to 
section 403(e)(2) of the Act, other applicable Federal law, and 
Sec. 1000.256 of this subpart.


Sec. 1000.241  Does this subpart create an agency relationship?

    No, a BIA or non-BIA construction program does not automatically 
create

[[Page 78724]]

an agency relationship. However, Federal law, provisions of an AFA, or 
Federal actions may create an agency relationship.


Sec. 1000.242  What provisions relating to a construction program may 
be included in an AFA?

    The Secretary and the Tribe/Consortium may negotiate to apply 
specific provisions of the Office of Federal Procurement and Policy Act 
and Federal Acquisition Regulations to a construction part of an AFA. 
Absent a negotiated agreement, such provisions and regulatory 
requirements do not apply.


Sec. 1000.243  What special provisions must be included in an AFA that 
contains a construction program?

    An AFA that contains a construction program must address the 
requirements listed in this section.
    (a) The AFA must specify how the Secretary and the Tribe/Consortium 
must ensure that proper health and safety standards are provided for in 
the implementation of the AFA, including but not limited to:
    (1) The use of architects and engineers licensed to perform the 
type of construction involved in the AFA;
    (2) Applicable Federal, state, local or Tribal building codes and 
applicable engineering standards, appropriate for the particular 
project; and
    (3) Necessary inspections and testing by the Tribe.
    (b) The AFA must comply with applicable Federal laws, program 
statutes and regulations.
    (c) The AFA must specify the services to be provided, the work to 
be performed, and the responsibilities of the Tribe/Consortium and the 
Secretary under the AFA.
    (d) The Secretary may require the Tribe/Consortium to provide brief 
progress reports and financial status reports. The parties may 
negotiate in the AFA the frequency, format and content of the reporting 
requirement. As negotiated, these reports may include:
    (1) A narrative of the work accomplished;
    (2) The percentage of the work completed;
    (3) A report of funds expended during the reporting period; and
    (4) The total funds expended for the project.


Sec. 1000.244  May the Secretary suspend construction activities under 
an AFA?

    (a) The Secretary may require a Tribe/Consortium to suspend certain 
work under a construction portion of an AFA for up to 30 days only if:
    (1) Site conditions adversely affect health and safety; or
    (2) Work in progress or completed fails to substantially carry out 
the terms of the AFA without good cause.
    (b) The Secretary may suspend only work directly related to the 
criteria specified in paragraph (a) of this section unless other 
reasons for suspension are specifically negotiated in the AFA.
    (c) Unless the Secretary determines that a health and safety 
emergency requiring immediate action exists, before suspending work the 
Secretary must provide:
    (1) A 5 working days written notice; and
    (2) An opportunity for the Tribe/Consortium to correct the problem.
    (d) The Tribe/Consortium must be compensated for reasonable costs 
due to any suspension of work that occurred through no fault of the 
Tribe/Consortium. Project funds will not be used for this purpose. 
However, if suspension occurs due to the action or inaction of the 
Tribe/Consortium, then project funds will be used to cover suspension 
related activities.


Sec. 1000.245  May a Tribe/Consortium continue work with construction 
funds remaining in an AFA at the end of the funding year?

    Yes, any funds remaining in an AFA at the end of the funding year 
may be spent for construction under the terms of the AFA.


Sec. 1000.246  Must an AFA that contains a construction project or 
activity incorporate provisions of Federal construction standards?

    No, the Secretary may provide information about Federal standards 
as early as possible in the construction process. If Tribal 
construction standards are consistent with or exceed applicable Federal 
standards, then the Secretary must accept the Indian Tribe/Consortium's 
proposed standards. The Secretary may accept commonly accepted industry 
construction standards.


Sec. 1000.247  May the Secretary require design provisions and other 
terms and conditions for construction programs or activities included 
in an AFA under section 403(c) of the Act?

    Yes, the relevant bureau may provide to the Tribe/Consortium 
project design criteria and other terms and conditions that are 
required for such a project. The project must be completed in 
accordance with the terms and conditions set forth in the AFA.


Sec. 1000.248  What is the Tribe's/Consortium's role in a construction 
program included in an AFA?

    The Tribe/Consortium has the following role regarding a 
construction portion of an AFA:
    (a) Under the Act, the Indian Tribe/Consortium must successfully 
complete the project in accordance with the terms and conditions in the 
AFA.
    (b) The Tribe/Consortium must give the Secretary timely notice of 
any proposed changes to the project that require an increase to the 
negotiated funding amount or an increase in the negotiated performance 
period or any other significant departure from the scope or objective 
of the project. The Tribe/Consortium and Secretary may negotiate to 
include timely notice requirements in the AFA.


Sec. 1000.249  What is the Secretary's role in a construction program 
in an AFA?

    The Secretary has the following role regarding a construction 
program contained in an AFA:
    (a) Except as provided in Sec. 1000.256, the Secretary may review 
and approve planning and design documents in accordance with terms 
negotiated in the AFA to ensure health and safety standards and 
compliance with Federal law and other program mandates;
    (b) Unless otherwise agreed to in an AFA, the Secretary reserves a 
royalty-free, nonexclusive, and irrevocable license to reproduce, 
publish, or otherwise use for Federal Government purposes, designs 
produced in the construction program that are funded by AFA monies, 
including:
    (1) The copyright to any work developed under a contract or 
subcontract; and
    (2) Any rights of copyright that an Indian Tribe/Consortium or a 
Tribal contractor purchases through the AFA;
    (c) The Secretary may conduct on-site monitoring visits as 
negotiated in the AFA;
    (d) The Secretary must approve any proposed changes in the 
construction program or activity that require an increase in the 
negotiated AFA funding amount or an increase in the negotiated 
performance period or are a significant departure from the scope or 
objective of the construction program as agreed to in the AFA;
    (e) The Secretary may conduct final project inspection jointly with 
the Indian Tribe/Consortium and may accept the construction project or 
activity as negotiated in the AFA;
    (f) Where the Secretary and the Tribe/Consortium share construction 
program activities, the AFA may provide for the exchange of 
information;

[[Page 78725]]

    (g) The Secretary may reassume the construction portion of an AFA 
if there is a finding of:
    (1) A significant failure to substantially carry out the terms of 
the AFA without good cause; or
    (2) Imminent jeopardy to a physical trust asset, to a natural 
resource, or that adversely affects public health and safety as 
provided in subpart M of this part.


Sec. 1000.250  How are property and funding returned if there is a 
reassumption for substantial failure to carry out an AFA?

    If there is a reassumption for substantial failure to carry out an 
AFA, property and funding will be returned as provided in subparts M 
and N of this part.


Sec. 1000.251  What happens when a Tribe/Consortium is suspended for 
substantial failure to carry out the terms of an AFA without good cause 
and does not correct the failure during the suspension?

    (a) Except when the Secretary makes a finding of imminent jeopardy 
to a physical trust asset, a natural resource, or public health and 
safety as provided in subpart M of these regulations a finding of 
substantial failure to carry out the terms of the AFA without good 
cause must be processed under the suspension of work provision of 
Sec. 1000.244.
    (b) If the substantial failure to carry out the terms of the AFA 
without good cause is not corrected or resolved during the suspension 
of work, the Secretary may initiate a reassumption at the end of the 
30-day suspension of work if an extension has not been negotiated. Any 
unresolved dispute will be processed in accordance with the Contract 
Disputes Act of 1978, 41 U.S.C. 601, et seq.


Sec. 1000.252  Do all provisions of other subparts apply to 
construction portions of AFAs?

    Yes, all provisions of other subparts apply to construction 
portions of AFAs unless those provisions are inconsistent with this 
subpart.


Sec. 1000.253  When a Tribe withdraws from a Consortium, is the 
Secretary required to award to the withdrawing Tribe a portion of funds 
associated with a construction project if the withdrawing Tribe so 
requests?

    Under Sec. 1000.35 of this part, a Tribe may withdraw from a 
Consortium and request its portion of a construction project's funds. 
The Secretary may decide not to award these funds if the award will 
affect the Consortium's ability to complete a non-severable phase of 
the project within available funding. An example of a non-severable 
phase of a project would be the construction of a single building 
serving all members of the Consortium. An example of a severable phase 
of a project would be the funding for a road in one village where the 
Consortium would be able to complete the roads in the other villages 
that were part of the project approved initially in the AFA. The 
Secretary's decision under this section may be appealed under subpart R 
of this part.


Sec. 1000.254  May a Tribe/Consortium reallocate funds from a 
construction program to a non-construction program?

    No, a Tribe/Consortium may not reallocate funds from a construction 
program to a non-construction program unless otherwise provided under 
the relevant appropriation acts.


Sec. 1000.255  May a Tribe/Consortium reallocate funds among 
construction programs?

    Yes, a Tribe/Consortium may reallocate funds among construction 
programs if permitted by appropriation law or if approved in advance by 
the Secretary.


Sec. 1000.256  Must the Secretary retain project funds to ensure proper 
health and safety standards in construction projects?

    Yes, the Secretary must retain project funds to ensure proper 
health and safety standards in construction projects. Examples of 
purposes for which bureaus may retain funds include:
    (a) Determining or approving appropriate construction standards to 
be used in AFAs;
    (b) Verifying that there is an adequate Tribal inspection system 
utilizing licensed professionals;
    (c) Providing for sufficient monitoring of design and construction 
by the Secretary; and
    (d) Requiring corrective action during performance when 
appropriate.

Subpart L--Federal Tort Claims


Sec. 1000.270  What does this subpart cover?

    This subpart explains the applicability of the Federal Tort Claims 
Act (FTCA). This section covers:
    (a) Coverage of claims arising out of the performance of functions 
under Self-Governance AFA's; and
    (b) Procedures for filing claims under FTCA.


Sec. 1000.271  What other statutes and regulations apply to FTCA 
coverage?

    A number of other statutes and regulations apply to FTCA coverage, 
including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-
2680) and related Department of Justice regulations in 28 CFR part 14.


Sec. 1000.272  Do Tribes/Consortia need to be aware of areas which FTCA 
does not cover?

    Yes, there are claims against Self-Governance Tribes/Consortia 
which are not covered by FTCA, claims which may not be pursued under 
FTCA, and remedies that are excluded by FTCA. The following general 
guidance is not intended as a definitive description of coverage, which 
is subject to review by the Department of Justice and the courts on a 
case-by-case basis.
    (a) What claims are expressly barred by FTCA and therefore may not 
be made against the United States, a Tribe or Consortium? Any claim 
under 28 U.S.C. 2680, including claims arising out of assault, battery, 
false imprisonment, false arrest, malicious prosecution, abuse of 
process, libel, slander, misrepresentation, deceit, or interference 
with contract rights, unless otherwise authorized by 28 U.S.C. 2680(h).
    (b) What claims may not be pursued under FTCA?
    (1) Claims against subcontractors arising out of the performance of 
subcontracts with a Self-Governance Tribe/Consortium;
    (2) Claims for on-the-job injuries which are covered by workmen's 
compensation;
    (3) Claims for breach of contract rather than tort claims; or
    (4) Claims resulting from activities performed by an employee which 
are outside the scope of employment.
    (c) What remedies are expressly excluded by FTCA and therefore are 
barred?
    (1) Punitive damages, unless otherwise authorized by 28 U.S.C. 
2674; and (2) Other remedies not permitted under applicable state law.


Sec. 1000.273  Is there a deadline for filing FTCA claims?

    Yes, claims shall be filed within 2 years of the date of accrual. 
(28 U.S.C. 2401).


Sec. 1000.274  How long does the Federal government have to process a 
FTCA claim after the claim is received by the Federal agency, before a 
lawsuit may be filed?

    The Federal government has 6 months to process a FTCA claim after 
the claim is received by the Federal agency, before a lawsuit may be 
filed.


Sec. 1000.275  Is it necessary for a self-governance AFA to include any 
clauses about FTCA coverage?

    No, clauses about FTCA coverage are optional. At the request of 
Tribes/Consortia, self-governance AFA's shall include the following 
clause to clarify the scope of FTCA coverage:


[[Page 78726]]


    For purposes of Federal Tort Claims Act coverage, the Tribe/
Consortium and its employees (including individuals performing 
personal services contracts with the tribe/consortium) are deemed to 
be employees of the Federal government while performing work under 
this AFA. This status is not changed by the source of the funds used 
by the Tribe/Consortium to pay the employee's salary and benefits 
unless the employee receives additional compensation for performing 
covered services from anyone other than the Tribe/Consortium.


Sec. 1000.276  Does FTCA apply to a self-governance AFA if FTCA is not 
referenced in the AFA?

    Yes, FTCA applies even if the AFA does not mention it.


Sec. 1000.277  To what extent shall the Tribe/Consortium cooperate with 
the Federal government in connection with tort claims arising out of 
the Tribe's/Consortium's performance?

    (a) The Tribe/Consortium shall designate an individual to serve as 
tort claims liaison with the Federal government.
    (b) As part of the notification required by 28 U.S.C. 2679(c), the 
Tribe/Consortium shall notify the Secretary immediately in writing of 
any tort claim (including any proceeding before an administrative 
agency or court) filed against the Tribe/Consortium or any of its 
employees that relates to performance of a self-governance AFA or 
subcontract.
    (c) The Tribe/Consortium, through its designated tort claims 
liaison, shall assist the appropriate Federal agency in preparing a 
comprehensive, accurate, and unbiased report of the incident so that 
the claim may be properly evaluated. This report should be completed 
within 60 days of notification of the filing of the tort claim. The 
report should be complete in every significant detail and include as 
appropriate:
    (1) The date, time and exact place of the accident or incident;
    (2) A concise and complete statement of the circumstances of the 
accident or incident;
    (3) The names and addresses of Tribal and/or Federal employees 
involved as participants or witnesses;
    (4) The names and addresses of all other eyewitnesses;
    (5) An accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;
    (6) A statement as to whether any person involved was cited for 
violating a Federal, State or tribal law, ordinance, or regulation;
    (7) The Tribe's/Consortium's determination as to whether any of its 
employees (including Federal employees assigned to the Tribe/
Consortium) involved in the incident giving rise to the tort claim were 
acting within the scope of their employment in carrying out the 
contract at the time the incident occurred;
    (8) Copies of all relevant documentation, including available 
police reports, statements of witnesses, newspaper accounts, weather 
reports, plats and photographs of the site or damaged property, such as 
may be necessary or useful for purposes of claim determination by the 
Federal agency; and
    (9) Insurance coverage information, copies of medical bills, and 
relevant employment records.
    (d) The Tribe/Consortium shall cooperate with and provide 
assistance to the U.S. Department of Justice attorneys assigned to 
defend the tort claim, including, but not limited to, case preparation, 
discovery, and trial.
    (e) If requested by the Secretary, the Tribe/Consortium shall make 
an assignment and subrogation of all the Tribe's/Consortium's rights 
and claims (except those against the Federal government) arising out of 
a tort claim against the Tribe/Consortium.
    (f) If requested by the Secretary, the Tribe/Consortium shall 
authorize representatives of the Secretary to settle or defend any 
claim and to represent the Tribe/Consortium in or take charge of any 
action.
    (g) If the Federal government undertakes the settlement or defense 
of any claim or action, the Tribe/Consortium shall provide all 
reasonable additional assistance in reaching a settlement or asserting 
a defense.


Sec. 1000.278  Does this coverage extend to subcontractors of self-
governance AFAs?

    No, subcontractors or subgrantees providing services to a Pub. L. 
93-638 Tribe/Consortium are generally not covered.


Sec. 1000.279  Is FTCA the exclusive remedy for a tort claim, including 
a claim concerning personal injury or death, resulting from the 
performance of a self-governance AFA?

    Yes, except as explained in Sec. 1000.272(b). No claim may be filed 
against a self-governance Tribe/Consortium or employee based upon 
performance of functions under a self-governance AFA. All claims shall 
be filed against the United States and are subject to the limitations 
and restrictions of FTCA.


Sec. 1000.280  What employees are covered by FTCA for medical-related 
claims?

    The following employees are covered by FTCA for medical-related 
claims:
    (a) Permanent employees;
    (b) Temporary employees;
    (c) Persons providing services without compensation in carrying out 
a contract;
    (d) Persons required because of their employment by a self-
governance Tribe/Consortium to serve non-IHS beneficiaries (even if the 
services are provided in facilities not owned by the Tribe/Consortium; 
and,
    (e) Federal employees assigned to the AFA.


Sec. 1000.281  Does FTCA cover employees of the Tribe/Consortium who 
are paid by the Tribe/Consortium from funds other than those provided 
through the self-governance AFA?

    Yes, FTCA covers employees of the Tribe/Consortium who are not paid 
from AFA funds as long as the services out of which the claim arose 
were performed in carrying out the self-governance AFA.


Sec. 1000.282  May persons who are not Indians or Alaska Natives assert 
claims under FTCA?

    Yes, non-Indian individuals served under the self-governance AFA, 
may assert claims under this Subpart.


Sec. 1000.283  If the Tribe/Consortium or Tribe's/Consortium's employee 
receives a summons and/or a complaint alleging a tort covered by FTCA, 
what should the Tribe/Consortium do?

    As part of the notification required by 28 U.S.C. 2679(c), if the 
Tribe/Consortium or Tribe's/Consortium's employee receives a summons 
and/or complaint alleging a tort covered by FTCA, the Tribe/Consortium 
should immediately:
    (a) Inform the Assistant Solicitor, Procurement and Patents, Office 
of the Solicitor, Department of the Interior, Room 6511, 1849 C Street 
NW., Washington, DC 20240,
    (b) Inform the Tribe's/Consortium's tort claims liaison, and
    (c) Forward all of the materials identified in Sec. 1000.277(c) to 
the contacts given in Sec. 1000.283 (a) and (b).

Subpart M--Reassumption


Sec. 1000.300  What is the purpose of this subpart?

    This subpart explains when the Secretary can reassume a program 
without the consent of a Tribe/Consortium.

[[Page 78727]]

Sec. 1000.301  When may the Secretary reassume a Federal program 
operated by a Tribe/Consortium under an AFA?

    The Secretary may reassume any Federal program operated by a Tribe/
Consortium upon a finding of imminent jeopardy to:
    (a) A physical trust asset;
    (b) A natural resource; or
    (c) Public health and safety.


Sec. 1000.302  ``What is imminent jeopardy'' to a trust asset?

    Imminent jeopardy means an immediate threat and likelihood of 
significant devaluation, degradation, damage, or loss of a trust asset, 
or the intended benefit from the asset caused by the actions or 
inactions of a Tribe/Consortium in performing trust functions. This 
includes disregarding Federal trust standards and/or Federal law while 
performing trust functions if the disregard creates such an immediate 
threat.


Sec. 1000.303  What is imminent jeopardy to natural resources?

    The standard for natural resources is the same as for a physical 
trust asset, except that a review for compliance with the specific 
mandatory statutory provisions related to the program as reflected in 
the funding agreement must also be considered.


Sec. 1000.304  What is imminent jeopardy to public health and safety?

    Imminent jeopardy to public health and safety means an immediate 
and significant threat of serious harm to human well-being, including 
conditions that may result in serious injury, or death, caused by 
Tribal action or inaction or as otherwise provided in an AFA.


Sec. 1000.305  In an imminent jeopardy situation, what must the 
Secretary do?

    In an imminent jeopardy situation, the Secretary must:
    (a) The Secretary must immediately notify the Tribe/Consortium in 
writing following discovery of imminent jeopardy; or
    (b) If there is an immediate threat to human health, safety, or 
welfare, the Secretary may immediately reassume operation of the 
program regardless of the timeframes specified in this subpart.


Sec. 1000.306  Must the Secretary always reassume a program, upon a 
finding of imminent jeopardy?

    Yes, the Secretary must reassume a program within 60 days of a 
finding of imminent jeopardy, unless the Secretary's designated 
representative determines that the Tribe/Consortium is able to mitigate 
the conditions.


Sec. 1000.307  What happens if the Secretary's designated 
representative determines that the Tribe/Consortium cannot mitigate the 
conditions within 60 days?

    The Secretary will proceed with the reassumption in accordance with 
this subpart by sending the Tribe/Consortium a written notice of the 
Secretary's intent to reassume.


Sec. 1000.308  What will the notice of reassumption include?

    The notice of reassumption under Sec. 1000.307 will include all of 
the following items. In addition, if resources are available, the 
Secretary may offer technical assistance to mitigate the imminent 
jeopardy.
    (a) A statement of the reasons supporting the Secretary's finding.
    (b) To the extent practical, a description of specific measures 
that must be taken by the Tribe/Consortium to eliminate imminent 
jeopardy.
    (c) A notice that funds for the management of the trust asset, 
natural resource, or public health and safety found to be in imminent 
jeopardy may not be reallocated or otherwise transferred without the 
Secretary's written consent.
    (d) A notice of intent to invoke the return of property provision 
of the AFA.
    (e) The effective date of the reassumption if the Tribe/Consortium 
does not eliminate the imminent jeopardy. If the deadline is less than 
60 days after the date of receipt, the Secretary must include a 
justification.
    (f) The amount of funds, if any, that the Secretary believes the 
Tribe/Consortium should refund to the Department for operation of the 
reassumed program. This amount cannot exceed the amount provided for 
that program under the AFA and must be based on such factors as the 
time or functions remaining in the funding cycle.


Sec. 1000.309  How much time will a Tribe/Consortium have to respond to 
a notice of imminent jeopardy?

    The Tribe/Consortium will have 5 days to respond to a notice of 
imminent jeopardy. The response must be written and may be mailed, 
telefaxed, or sent by electronic mail. If sent by mail, it must be sent 
by certified mail, return receipt requested; the postmark date will be 
considered the date of response.


Sec. 1000.310  What information must the Tribe's/Consortium's response 
contain?

    (a) The Tribe's/Consortium's response must indicate the specific 
measures that the Tribe/Consortium will take to eliminate the finding 
of imminent jeopardy.
    (b) If the Tribe/Consortium proposes mitigating actions different 
from those prescribed in the Secretary's notice of imminent jeopardy, 
the response must explain the reasons for deviating from the 
Secretary's recommendations and how the proposed actions will eliminate 
imminent jeopardy.


Sec. 1000.311  How will the Secretary reply to the Tribe's/Consortium's 
response?

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


Sec. 1000.312  What happens if the Secretary accepts the Tribe's/
Consortium's proposed measures?

    The Secretary must notify the Tribe/Consortium in writing of the 
acceptance and suspend the reassumption process.


Sec. 1000.313  What happens if the Secretary does not accept the 
Tribe's/Consortium's proposed measures?

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


Sec. 1000.314  What must a Tribe/Consortium do when a program is 
reassumed?

    On the effective date of reassumption, the Tribe/Consortium must, 
at the request of the Secretary, deliver all property and equipment, 
and title thereto:
    (a) That the Tribe/Consortium received for the program under the 
AFA; and
    (b) That has a per item value in excess of $5,000, or as otherwise 
provided in the AFA.


Sec. 1000.315  When must the Tribe/Consortium return funds to the 
Department?

    The Tribe/Consortium must repay funds to the Department as soon as 
practical after the effective date of the reassumption.


Sec. 1000.316  May the Tribe/Consortium be reimbursed for actual and 
reasonable ``wind up costs'' incurred after the effective date of 
retrocession?

    Yes, the Tribe/Consortium may be reimbursed for actual and 
reasonable

[[Page 78728]]

``wind up costs'' to the extent that funds are available.


Sec. 1000.317  Is a Tribe's/Consortium's general right to negotiate an 
AFA adversely affected by a reassumption action?

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


Sec. 1000.318  When will the Secretary return management of a reassumed 
program?

    A reassumed program may be included in future AFAs, but the 
Secretary may include conditions in the terms of the AFA to ensure that 
the circumstances that caused jeopardy to attach do not reoccur.

Subpart N--Retrocession


Sec. 1000.330  What is the purpose of this subpart?

    This subpart explains what happens when a Tribe/Consortium 
voluntarily returns a program to a bureau.


Sec. 1000.331  Is a decision by a Tribe/Consortium not to include a 
program in a successor agreement considered a retrocession?

    No, a decision by a Tribe/Consortium not to include a program in a 
successor agreement is not a retrocession because the Tribe/Consortium 
is under no obligation beyond an existing AFA.


Sec. 1000.332  Who may retrocede a program in an AFA?

    A Tribe/Consortium may retrocede a program. However, the right of a 
Consortium member to retrocede may be subject to the terms of the 
agreement among the members of the Consortium.


Sec. 1000.333  How does a Tribe/Consortium retrocede a program?

    The Tribe/Consortium must submit:
    (a) A written notice to:
    (1) The Office of Self-Governance for BIA programs; or
    (2) The appropriate bureau for non-BIA programs; and
    (b) A Tribal resolution or other official action of its governing 
body.


Sec. 1000.334  When will the retrocession become effective?

    Unless subsequently rescinded by the Tribe/Consortium, a 
retrocession is only effective on a date mutually agreed upon by the 
Tribe/Consortium and the Secretary, or as provided in the AFA.


Sec. 1000.335  How will retrocession affect the Tribe's/Consortium's 
existing and future AFAs?

    Retrocession does not affect other parts of the AFA or funding 
agreements with other bureaus. A Tribe/Consortium may request to 
negotiate for and include retroceded programs in future AFAs or through 
a self-determination contract.


Sec. 1000.336  Does the Tribe/Consortium have to return funds used in 
the operation of a retroceded program?

    The Tribe/Consortium and the Secretary must negotiate the amount of 
funding to be returned to the Secretary for the operation of the 
retroceded program. This amount must be based on such factors as the 
time remaining or functions remaining in the funding cycle or as 
provided in the AFA.


Sec. 1000.337  Does the Tribe/Consortium have to return property used 
in the operation of a retroceded program?

    On the effective date of any retrocession, the Tribe/Consortium 
must return all property and equipment, and title thereto:
    (a) That was acquired under the AFA for the program being 
retroceded; and
    (b) That has a per item value in excess of $5,000 at the time of 
the retrocession, or as otherwise provided in the AFA.


Sec. 1000.338  What happens to a Tribe's/Consortium's mature contract 
status if it has retroceded a program that is also available for self-
determination contracting?

    Retrocession has no effect on mature contract status, provided that 
the 3 most recent audits covering activities administered by the Tribe 
have no unresolved material audit exceptions.


Sec. 1000.339  How does retrocession affect a bureau's operation of the 
retroceded program?

    The level of operation of the program will depend upon the amount 
of funding that is returned with the retrocession.

Subpart O--Trust Evaluation Review


Sec. 1000.350  What is the purpose of this subpart?

    This subpart describes how the trust responsibility of the United 
States is legally maintained through a system of trust evaluations when 
Tribes/Consortia perform trust functions through AFAs under the Tribal 
Self-Governance Act of 1994. It describes the principles and processes 
upon which trust evaluations will be based.


Sec. 1000.351  Does the Tribal Self-Governance Act of 1994 alter the 
trust responsibility of the United States to Indian Tribes and 
individuals under self-governance?

    No, the Act does, however, permit a Tribe/Consortium to assume 
management responsibilities for trust assets and resources on its own 
behalf and on behalf of individual Indians. Under the Act, the 
Secretary has a trust responsibility to conduct annual trust 
evaluations of Tribal performance of trust functions to ensure that 
Tribal and individual trust assets and resources are managed in 
accordance with the legal principles and standards governing the 
performance of trust functions if trust assets or resources are found 
to be in imminent jeopardy.


Sec. 1000.352  What are ``trust resources'' for the purposes of the 
trust evaluation process?

    (a) Trust resources include property and interests in property:
    (1) That are held in trust by the United States for the benefit of 
a Tribe or individual Indians; or
    (2) That are subject to restrictions upon alienation.
    (b) Trust assets include:
    (1) Other assets, trust revenue, royalties, or rental, including 
natural resources, land, water, minerals, funds, property, assets, or 
claims, and any intangible right or interest in any of the foregoing;
    (2) Any other property, asset, or interest therein, or treaty right 
for which the United States is charged with a trust responsibility. For 
example, water rights and off-reservation treaty rights.
    (c) This definition defines trust resources for purposes of the 
trust evaluation process only.


Sec. 1000.353  What are ``trust functions'' for the purposes of the 
trust evaluation process?

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

Annual Trust Evaluations


Sec. 1000.354  What is a trust evaluation?

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


Sec. 1000.355  How are trust evaluations conducted?

    (a) Each year the Secretary's designated representative(s) will 
conduct trust evaluations for each self-governance AFA. The Secretary's 
designated representative(s) will coordinate with the designated 
Tribe's/Consortium's representative(s)

[[Page 78729]]

throughout the review process, including the written report required by 
Sec. 1000.365.
    (b) This section describes the general framework for trust reviews. 
However, each Tribe/Consortium may develop, with the appropriate 
bureau, an individualized trust evaluation process to allow for the 
Tribe's/Consortium's unique history and circumstances and the terms and 
conditions of its AFA. An individualized trust evaluation process must, 
at a minimum, contain the measures in paragraph (d) of this section.
    (c) To facilitate the review process so as to mitigate costs and 
maximize efficiency, each Tribe/Consortium must provide access to all 
records, plans, and other pertinent documents relevant to the 
program(s) under review not otherwise available to the Department.
    (d) The Secretary's designated representative(s) will:
    (1) Review trust transactions;
    (2) Conduct on-site inspections of trust resources, as appropriate;
    (3) Review compliance with applicable statutory and regulatory 
requirements;
    (4) Review compliance with the trust provisions of the AFA;
    (5) Ensure that the same level of trust services is provided to 
individual Indians as would have been provided by the Secretary;
    (6) Document deficiencies in the performance of trust functions 
discovered during the review process; and
    (7) Ensure the fulfillment of the Secretary's trust responsibility 
to Tribes and individual Indians by documenting the existence of:
    (i) Systems of internal controls;
    (ii) Trust standards; and
    (iii) Safeguards against conflicts of interest in the performance 
of trust functions.
    (e) At the request of a Tribe/Consortium, at the time the AFA is 
negotiated, the standards will be negotiated, except where standards 
are otherwise provided for by law.


Sec. 1000.356  May the trust evaluation process be used for additional 
reviews?

    Yes, if the parties agree.


Sec. 1000.357  May the parties negotiate standards of review for 
purposes of the trust evaluation?

    Yes, unless standards are otherwise provided by Federal treaties, 
statutes, case law or regulations not waived, the Secretary's 
designated representative will negotiate standards of review at the 
request of the Tribe/Consortium.


Sec. 1000.358  Can an initial review of the status of the trust asset 
be conducted?

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


Sec. 1000.359  What are the responsibilities of the Secretary's 
designated representative(s) after the annual trust evaluation?

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


Sec. 1000.360  Is the trust evaluation standard or process different 
when the trust asset is held in trust for an individual Indian or 
Indian allottee?

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


Sec. 1000.361  Will the annual review include a review of the 
Secretary's residual trust functions?

    Yes, if the annual evaluation reveals that deficient performance of 
a trust function is due to the action or inaction of a bureau, the 
evaluation report will note the deficiency and the appropriate 
Department official will be notified of the need for corrective action. 
The review of the Secretary's trust functions shall be based on the 
standards in this subpart, other applicable law, and other Federal law.


Sec. 1000.362  What are the consequences of a finding of imminent 
jeopardy in the annual trust evaluation?

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


Sec. 1000.363  What if the trust evaluation reveals problems that do 
not rise to the level of imminent jeopardy?

    Where problems not rising to the level of imminent jeopardy are 
caused by Tribal action or inaction, the conditions must be:
    (a) Documented in the annual trust evaluation report;
    (b) Reported to the Secretary; and
    (c) Reported in writing to:
    (1) The governing body of the Tribe; and
    (2) In the case of a Consortium, to the governing body of each 
Tribe on whose behalf the Consortium is performing the trust functions.


Sec. 1000.364  Who is responsible for corrective action?

    The Tribe/Consortium is primarily responsible for identifying and 
implementing corrective actions for matters contained in the AFA, but 
the Department may also suggest possible corrective measures for Tribal 
consideration.


Sec. 1000.365  What are the requirements of the review team report?

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


Sec. 1000.366  Can the Department conduct more than one trust 
evaluation per Tribe per year?

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

[[Page 78730]]

Sec. 1000.367  Will the Department evaluate a Tribe's/Consortium's 
performance of non-trust related programs?

    This depends on the terms contained in the AFA.

Subpart P--Reports


Sec. 1000.380  What is the purpose of this subpart?

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


Sec. 1000.381  How is information about self-governance developed and 
reported?

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


Sec. 1000.382  What may the Tribe's/Consortium's annual report on self-
governance address?

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

Subpart Q--Miscellaneous Provisions


Sec. 1000.390  How can a Tribe/Consortium hire a Federal employee to 
help implement an AFA?

    If a Tribe/Consortium chooses to hire a Federal employee, it can 
use one of the arrangements listed in this section:
    (a) The Tribe can use its own Tribal personnel hiring procedures. 
Federal employees hired by the Tribe/Consortium are separated from 
Federal service.
    (b) The Tribe can ``direct hire'' a Federal employee as a Tribal 
employee. The employee will be separated from Federal service and work 
for the Tribe/Consortium, but maintain a negotiated Federal benefit 
package that is paid for by the Tribe/Consortium out of AFA program 
funds; or
    (c) The Tribe can negotiate an agreement under the 
Intergovernmental Personnel Act, 25 U.S.C. 48, or other applicable 
Federal law. The employee will remain a Federal employee during the 
term of the agreement.


Sec. 1000.391  Can a Tribe/Consortium employee be detailed to a Federal 
service position?

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


Sec. 1000.392  How does the Freedom of Information Act apply?

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


Sec. 1000.393  How does the Privacy Act apply?

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


Sec. 1000.394  What audit requirements must a self-governance Tribe/
Consortium follow?

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


Sec. 1000.395  Do OMB circulars and revisions apply to self-governance 
funding agreements?

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


Sec. 1000.396  Does a Tribe/Consortium have additional ongoing 
requirements to maintain minimum standards for Tribe/Consortium 
management systems?

    Yes, the Tribe/Consortium must maintain management systems that are 
determined to be adequate by an independent audit through the annual 
single agency audit report that is required by the Act and OMB Circular 
A-133.


Sec. 1000.397  Are there any restrictions on how AFA funds may be 
spent?

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


Sec. 1000.398  May a Tribe/Consortium invest funds received under a 
self-governance agreement?

    Yes, self-governance funds may be invested if such investment is 
in:
    (a) Obligations of the United States;
    (b) Obligations or securities that are within the limits guaranteed 
or insured by the United States or mutual (or other) funds registered 
with the Securities and Exchange Commission and that only invest in 
obligations of the United States or securities that are guaranteed or 
insured by the United States; or
    (c) Deposits insured by an agency or instrumentality of the United 
States or are fully collateralized to ensure protection of the funds 
even in the event of a bank failure.


Sec. 1000.399  How may interest or investment income that accrues on 
AFAs be used?

    Unless restricted by the AFA, interest or income earned on 
investments or deposits of self-governance awards may be:
    (a) Placed in the Tribe's general fund and used for any purpose 
approved by the Tribe; or
    (b) Used to provide expanded services under the self-governance AFA 
and to

[[Page 78731]]

support some or all of the costs of investment services.


Sec. 1000.400  Can a Tribe/Consortium retain savings from programs?

    Yes, for BIA programs, the Tribe/Consortium may retain savings for 
each fiscal year during which an AFA is in effect. A Tribe/Consortium 
must use any savings that it realizes under an AFA, including a 
construction contract:
    (a) To provide additional services or benefits under the AFA; or
    (b) As carryover; and
    (c) For purposes of this subpart only, programs administered by BIA 
using appropriations made to other Federal agencies, such as the 
Department of Transportation, will be treated in accordance with 
paragraph (b) of this section.


Sec. 1000.401  Can a Tribe/Consortium carry over funds not spent during 
the term of the AFA?

    This section applies to BIA programs, services, functions, or 
activities, notwithstanding any other provision of law. Any funds 
appropriated under the Snyder Act of 1921 (42 Stat. 208), for any 
fiscal year that are not obligated or spent by the end of the fiscal 
year for which they were appropriated shall remain available for 
obligation or expenditure during the following fiscal year. In the case 
of amounts made available to a Tribe/Consortium under an AFA, if the 
funds are to be expended in the succeeding fiscal year for the purpose 
for which they were originally appropriated, contracted or granted, or 
for which they are authorized to be used under the provisions of 
Sec. 106(a)(3) of the Act, no additional justification or documentation 
of such purposes need be provided by the Tribe/Consortium to the 
Secretary as a condition of receiving or expending such funds.


Sec. 1000.402  After a non-BIA AFA has been executed and the funds 
transferred to a Tribe/Consortium, can a bureau request the return of 
funds?

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


Sec. 1000.403  How can a person or group appeal a decision or contest 
an action related to a program operated by a Tribe/Consortium under an 
AFA?

    (a) BIA programs. A person or group who is aggrieved by an action 
of a Tribe/Consortium with respect to programs that are provided by the 
Tribe/Consortium under an AFA must follow Tribal administrative 
procedures.
    (b) Non-BIA programs. Procedures will vary depending on the 
program. Aggrieved parties should initially contact the local program 
administrator (the Indian program contact). Thereafter, appeals will 
follow the relevant bureau's appeal procedures.


Sec. 1000.404  Must self-governance Tribes/Consortia comply with the 
Secretarial approval requirements of 25 U.S.C. 81; 82a; and 476 
regarding professional and attorney contracts?

    No, for the period that an agreement entered into under this part 
is in effect, the provisions of 25 U.S.C. 81, 82a, and 476, do not 
apply to attorney and other professional contracts by participating 
Tribes/Consortia.


Sec. 1000.405  Are AFA funds non-Federal funds for the purpose of 
meeting matching requirements?

    Yes, self-governance AFA funds can be treated as non-Federal 
funding for the purpose of meeting matching requirements under Federal 
law.


Sec. 1000.406  Does Indian preference apply to services, activities, 
programs, and functions performed under a self-governance AFA?

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


Sec. 1000.407  Do the wage and labor standards in the Davis-Bacon Act 
apply to Tribes and Tribal Consortia?

    No, wage and labor standards of the Davis-Bacon Act do not apply to 
employees of Tribes and Tribal Consortia. They do apply to all other 
laborers and mechanics employed by contractors and subcontractors in 
the construction, alteration, and repair (including painting or 
redecorating of buildings or other facilities) in connection with an 
AFA.

Supply Sources


Sec. 1000.408  Can a Tribe/Consortium use Federal supply sources in the 
performance of an AFA?

    A Tribe/Consortium and its employees may use Federal supply sources 
(including lodging, airline, interagency motor pool vehicles, and other 
means of transportation) that must be available to the Tribe/Consortium 
and to its employees to the same extent as if the Tribe/Consortium were 
a Federal agency. While implementation of this provision is the 
responsibility of the General Services Administration, the Department 
shall assist the Tribe/Consortium to resolve any barriers to full 
implementation that may arise. While implementation of this provision 
is the responsibility of the General Services Administration, the 
Department shall assist the Tribes/Consortia to resolve any barriers to 
full implementation that may arise to the fullest extent possible.

Prompt Payment Act


Sec. 1000.409  Does the Prompt Payment Act (31 U.S.C. 3901) apply to a 
non-BIA, non-Indian program AFA?

    Yes, upon mutual agreement of the parties, an AFA may incorporate 
the Prompt Payment Act.

Subpart R--Appeals


Sec. 1000.420  What does ``Title-I eligible programs'' mean in this 
subpart?

    Throughout this subpart, the phrase ``Title I-eligible programs'' 
is used to refer to all programs, functions, services, and activities 
that the Secretary provides for the benefit of Indians because of their 
status as Indians without regard to the agency or office of the 
Department within which the programs, functions, services, and 
activities have been performed.


Sec. 1000.421  What is the purpose of this subpart?

    This subpart prescribes the process Tribes/Consortia may use to 
resolve disputes with the Department arising before or after execution 
of an AFA or compact and certain other disputes related to self-
governance. It also describes the administrative process for reviewing 
disputes related to compact provisions. This subpart describes the 
process for administrative appeals to:
    (a) The Interior Board of Indian Appeals (IBIA) for certain pre-AFA 
disputes;
    (b) The Interior Board of Contract Appeals (IBCA) for certain post-
AFA disputes;
    (c) The Assistant Secretary for the bureau responsible for certain 
disputed decisions;
    (d) The Secretary for reconsideration of decisions involving self-
governance compacts; and
    (e) The agency head for certain pre-award AFA disputes.


Sec. 1000.422  How must disputes be handled?

    (a) The Department encourages its Bureaus to seek all means of 
dispute resolution before the Tribe/Consortium files a formal 
appeal(s).
    (b) Disputes shall be addressed through government-to-government

[[Page 78732]]

discourse. This discourse must be respectful of government-to-
government relationships and relevant Federal-Tribal agreements, 
treaties, judicial decisions, and policies pertaining to Indian Tribes.
    (c) Title I-eligible program disputes may use an informal 
conference as set forth in 25 CFR 900.153-157.
    (d) All disputes arising under this rule, including but not limited 
to Title I-eligible program disputes may use non-binding informal 
alternative dispute resolution at the option of the Tribe/Consortium, 
as prescribed in Sec. 402 of this subpart. The Tribe/Consortium may ask 
for this alternative dispute resolution any time before the issuance of 
an initial decision of a formal appeal(s). The appeals timetable will 
be suspended while alternative dispute resolution is pending.


Sec. 1000.423  Are there any decisions that are not administratively 
appealable under this subpart?

    Yes, the following types of decisions are not administratively 
appealable under this subpart but may be appealable under other 
substantive provisions of the Code of Federal Regulations:
    (a) Decisions relating to planning and negotiation grants (subparts 
C and D of this part) and certain discretionary grants not awarded 
under Title IV (25 CFR part 2);
    (b) Decisions involving a limitation and/or reduction of services 
for BIA programs (subpart H of this part)(25 CFR part 2);
    (c) Decisions regarding requests for waivers of regulations 
(subpart J of this part);
    (d) Decisions regarding construction (subpart K of this part) 
addressed in Sec. 1000.251(b); and
    (e) Decisions under any other statute, such as the Freedom of 
Information Act and the Privacy Act (see 43 CFR part 2).


Sec. 1000.424  Does a Tribe/Consortium have a right to an informal 
conference to resolve any disputes?

    Yes, the Tribe/Consortium may request an informal conference (a 
non-binding alternative dispute resolution process). An informal 
conference is a way to resolve both Title I-eligible program and other 
disputes as quickly as possible, without the need for a formal appeal.


Sec. 1000.425  How does a Tribe/Consortium request an informal 
conference?

    The Tribe/Consortium shall file its request for an informal 
conference with the office of the person whose decision it is 
appealing, within 30 days of the day it receives the decision.
    (a) The Tribe/Consortium may either hand-deliver the request for an 
informal conference to that person's office, fax the request with 
confirmation or mail it by certified mail, return receipt requested.
    (b) If the Tribe/Consortium mails the request, it will be 
considered filed on the date the Tribe/Consortium mailed it by 
certified mail.


Sec. 1000.426  How is an informal conference held?

    For all purposes relating to these informal conference procedures, 
the parties are the designated representatives of the Tribe/Consortium 
and the bureau.
    (a) The informal conference shall be held within 30 days of the 
date the request was received, unless the parties agree on another 
date.
    (b) Where practicable, at the option of the Tribe/Consortium, the 
informal conference will be held at the Tribe's/Consortium's office. If 
the meeting cannot be held at the Tribe's/Consortium's office, the 
parties must agree on an alternative meeting place.
    (c) The informal conference shall be conducted by a designated 
representative of the Secretary.
    (d) Only the parties may make presentations at the informal 
conference.
    (e) The informal conference is not a hearing on the record. Nothing 
said during an informal conference may be used by either party in 
litigation.


Sec. 1000.427  What happens after the informal conference?

    (a) Within 10 business days of the informal conference, the person 
who conducted the informal conference shall mail to the Tribe/
Consortium a brief summary of the informal conference. The summary must 
include any agreements reached or changes from the initial position of 
the bureau or the Tribe/Consortium.
    (b) If in its judgment no agreement was reached, the Tribe/
Consortium may choose to appeal the initial decision, as modified by 
any changes made as a result of the informal conference, under 
Sec. 1000.421 of this subpart to the IBIA, bureau head/Assistant 
Secretary, or IBCA.


Sec. 1000.428  How may a Tribe/Consortium appeal a decision made after 
the AFA or compact or amendment to an AFA or compact has been signed?

    With the exception of certain decisions concerning reassumption for 
imminent jeopardy (see Sec. 1000.408 of this subpart), the Tribe/
Consortium may appeal post-award administrative decisions to the IBCA.


Sec. 1000.429  What statutes and regulations govern resolution of 
disputes concerning signed AFAs or compacts that are appealed to IBCA?

    Section 110 of Pub. L. 93-638 (25 U.S.C. 450 m-1) and the 
regulations at 25 CFR 900.216-900.230 apply to disputes concerning 
signed AFAs and compacts that are appealed to the IBCA, except that any 
references to the Department of Health and Human Services are 
inapplicable. For the purposes of such appeals:
    (a) The terms ``contract'' and ``self-determination contract'' mean 
compacts and AFAs under the Tribal Self-Governance Act; and
    (b) The term ``Tribe'' means ``Tribe/Consortium'.


Sec. 1000.430  To whom are appeals directed regarding reassumption for 
imminent jeopardy?

    Appeals regarding reassumption of Title I-eligible PFSAs are 
handled by the IBIA under those procedures set out in 25 CFR 900.171 
through 900.176. Appeals regarding reassumption of PFSAs that are not 
Title I-eligible are handled by the IBCA under those procedures set out 
in 43 CFR part 4.


Sec. 1000.431  Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?

    Yes, EAJA claims against the DOI will be heard by IBIA or IBCA, as 
appropriate, under 43 CFR 4.601 through 4.619, Equal Access to Justice 
Act (Pub. L. No. 96-481, 92 Stat. 2325, as amended), section 504 of 
Title 5 U.S.C. and Section 2412 of Title 28 U.S.C.


Sec. 1000.432  To whom may a Tribe appeal a decision made before the 
AFA or an amendment to the AFA or compact is signed?

    (a) Title I-eligible PFSA pre-award disputes. For Title I--eligible 
PFSA disputes, appeal may only be filed with IBIA under the provisions 
set forth in 25 CFR 900.150(a) through (h), 900.152 through 900.169.
    (b) Other pre-award disputes. For all other pre-award disputes, 
including those involving PFSAs that are not Title I-eligible, appeals 
may be filed with the bureau head/Assistant Secretary or IBIA as noted 
below. However, the Tribe/Consortium may not avail itself of both paths 
for the same dispute.
    (1) Bureau head/Assistant Secretary appeal. Unless the initial 
decision being appealed is one that was made by the bureau head (those 
appeals are forwarded to the appropriate Assistant Secretary--see 
Sec. 1000.433(c) of this subpart), the bureau head will decide appeals 
relating to these pre-award

[[Page 78733]]

matters, that include but are not limited to disputes regarding:
    (i) PFSAs that are not Title 1-eligible;
    (ii) Eligibility for the applicant pool of self-governance Tribes;
    (iii) BIA residual functions;
    (iv) Decisions declining to provide requested information as 
addressed in Sec. 1000.172 of this part;
    (v) Allocations of program funds when a dispute arises between a 
Consortium and a withdrawing Tribe; and
    (vi) Inherently Federal functions.
    (2) IBIA appeal. The Tribe/Consortium may choose to forego the 
administrative appeal through the bureau or the Assistant Secretary, as 
described in the paragraph (b)(1) of this section, and instead appeal 
directly to IBIA. The standard of review for such IBIA appeals will be 
an ``abuse of discretion'' standard.


Sec. 1000.433  When and how must a Tribe/Consortium appeal an adverse 
pre-award decision?

    (a) If a Tribe/Consortium wishes to exercise its appeal rights 
under Sec. 1000.432(b)(1), it must make a written request for review to 
the appropriate bureau head within 30 days of receiving the initial 
adverse decision. In addition, the Tribe/Consortium may request the 
opportunity to have a meeting with appropriate bureau personnel in an 
effort to clarify the matter under dispute before a formal decision by 
the bureau head.
    (b) The written request for review should include a statement 
describing its reasons for a review, with any supporting documentation, 
or indicate that such a statement or documentation will be submitted 
within 30 days. A copy of the request must also be sent to the Director 
of the Office of Self-Governance.
    (c) If the initial decision was made by the bureau head, any appeal 
shall be directed to the appropriate Assistant Secretary. If a Tribe 
does not request a review within 30 days of receipt of the decision, 
the initial decision will be final for the Department.


Sec. 1000.434  When must the bureau head (or appropriate Assistant 
Secretary) issue a final decision in the pre-award appeal?

    Within 30 days of receiving the request for review and the 
statement of reasons described in Sec. 1000.433, the bureau head or, 
where applicable, the appropriate Assistant Secretary must:
    (a) Issue a written final decision stating the reasons for the 
decision; and
    (b) Send the decision to the Tribe/Consortium.


Sec. 1000.435  When and how will the Assistant Secretary respond to an 
appeal by a Tribe/Consortium?

    The appropriate Assistant Secretary will decide an appeal of any 
initial decision made by a bureau head (see Sec. 1000.433). If the 
Tribe/Consortium has appealed the bureau's initial adverse decision of 
the bureau to the bureau head and the bureau head's decision on initial 
appeal is contrary to the Tribe's/Consortium's request for relief, or 
the bureau head fails to make a decision within 30 days of receipt by 
the bureau of the Tribe's/Consortium's initial request for review and 
any accompanying statement and documentation, the Tribe's/Consortium's 
appeal will be sent automatically to the appropriate Assistant 
Secretary for decision. The Assistant Secretary must either concur with 
the bureau head's decision or issue a separate decision within 60 days 
of receipt by the bureau of the Tribe's/Consortium's initial request 
for review and any accompanying statement and documentation. The 
decision of the Assistant Secretary is final for the Department.


Sec. 1000.436  How may a Tribe/Consortium seek reconsideration of the 
Secretary's decision involving a self-governance compact?

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


Sec. 1000.437  When will the Secretary respond to a request for 
reconsideration of a decision involving a self-governance compact?

    The Secretary must respond in writing to the Tribe/Consortium 
within 30 days of receipt of the Tribe's/Consortium's request for 
reconsideration.


Sec. 1000.438  May Tribes/Consortia appeal Department decisions to a 
Federal court?

    Yes, Tribes/Consortia may appeal decisions of Department officials 
relating to the self-governance program to an appropriate Federal 
court, as authorized by section 110 of Pub. L. 93-638 (25 U.S.C. 405m-
1), or any other applicable law.

Subpart S--Conflicts of Interest


Sec. 1000.460  What is an organizational conflict of interest?

    (a) An organizational conflict of interest arises when there is a 
direct conflict between the financial interests of the self-governance 
Tribe/Consortium and:
    (1) The financial interests of beneficial owners of Indian trust 
resources;
    (2) The financial interests of the United States relating to trust 
resources, trust acquisitions, or lands conveyed or to be conveyed 
under the Alaska Native Claims Settlement Act 43 U.S. C. 1601 et seq.; 
or
    (3) An express statutory obligation of the United States to third 
parties. This section only applies if the conflict was not addressed 
when the AFA was first negotiated.
    (b) This section only applies where the financial interests of the 
Tribe/Consortium are significant enough to impair the Tribe's/
Consortium's objectivity in carrying out the AFA, or a portion of the 
AFA.


Sec. 1000.461  What must a Tribe/Consortium do if an organizational 
conflict of interest arises under an AFA?

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


Sec. 1000.462  When must a Tribe/Consortium regulate its employees or 
subcontractors to avoid a personal conflict of interest?

    A Tribe/Consortium must maintain written standards of conduct to 
govern officers, employees, and agents (including subcontractors) 
engaged in functions related to the management of trust assets.


Sec. 1000.463  What types of personal conflicts of interest involving 
tribal officers, employees or subcontractors would have to be regulated 
by a Tribe/Consortium?

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


Sec. 1000.464  What personal conflicts of interest must the standards 
of conduct regulate?

    The personal conflicts of interest standards must:
    (a) Prohibit an officer, employee, or agent (including a 
subcontractor) from

[[Page 78734]]

participating in the review, analysis, or inspection of trust 
transactions involving an entity in which such persons have a direct 
financial interest or an employment relationship;
    (b) Prohibit such officers, employees, or agents from accepting any 
gratuity, favor, or anything of more than nominal value, from a party 
(other than the Tribe/Consortium) with an in the trust transactions 
under review; and
    (c) Provide for sanctions or remedies for violation of the 
standards.


Sec. 1000.465  May a Tribe/Consortium negotiate AFA provisions on 
conflicts of interest to take the place of this subpart?

    (a) A Tribe/Consortium and the Secretary may agree to AFA 
provisions, concerning either personal or organizational conflicts, 
that:
    (1) Address the issues specific to the program and activities 
contracted; and
    (2) Provide equivalent protection against conflicts of interest to 
these regulations.
    (b) Agreed-upon AFA provisions shall be followed, rather than the 
related provisions of this subpart. For example, the Tribe/Consortium 
and the Secretary may agree that using the Tribe's/Consortium's own 
written code of ethics satisfies the objectives of the personal 
conflicts provisions of subpart, in whole or in part.

Appendix A to Part 1000--Model Compact of Self-Governance Between The 

Tribe and the Department of the InteriorArticle I--Authority and 
Purpose

Section 1--Authority

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

Section 2--Purpose

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

Article II--Terms, Provisions and Conditions

Section 1--Term

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

Section 2--Funding Amount

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

Section 3--Reports to Congress

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

Section 4--Regulatory Authority

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

Section 5--Tribal Administrative Procedure

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

Article III--Obligations of the Tribe

Section 1--AFA Programs

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

Section 2--Trust Services for Individual Indians

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

Article IV--Obligations of the United States

Section 1--Trust Responsibility

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

Section 2--Trust Evaluations

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

Article V--Other Provisions

Section 1--Facilitation

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

[[Page 78735]]

act in good faith in upholding such trust responsibility.

Section 2--Officials Not To Benefit

    No Member of Congress, or resident commissioner, shall be 
admitted to any share or part of any annual funding agreement or 
contract thereunder executed under this compact, or to any benefit 
that may arise from such compact. This paragraph may not be 
construed to apply to any contract with a third party entered into 
under an annual funding agreement under this compact if such 
contract is made with a corporation for the general benefit of the 
corporation.

Section 3--Covenant Against Contingent Fees

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

Section 4--Sovereign Immunity

    Nothing in this compact or any AFA shall be construed as--
    (1) affecting, modifying, diminishing, or otherwise impairing 
the sovereign immunity from suit enjoyed by the Tribe; or
    (2) authorizing or requiring the termination of any existing 
trust responsibility of the United States with respect to the Indian 
people.
    In witness whereof, the parties have executed, delivered and 
formed this compact, effective the ________ day of ____________, 
20____.

THE ________________ Tribe

The Department of the Interior.

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

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

[FR Doc. 00-31647 Filed 12-14-00; 8:45 am]
BILLING CODE 4310-02-P