DATES: This rule will become final 30 days after publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Questions concerning this rule should be directed to: William Sinclair, Director, Office of Self-Governance, MS-2542 MIB, 1849 C Street NW, Washington, DC, 20240; telephone: 202-219-0240; electronic mail: William__Sinclair@IOS.DOI.GOV

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

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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

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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 with the 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. Pursuant to 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 pursuant to 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. pertaining to Property Donation. pertains to Conflicts of Interest in the final rule. Property Donation was discussed in Subpart S of the proposed rule and 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 same section numbers from proposed to final rule.

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 findings and Secretarial self-governance policies on regarding 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.

There were many comments concerning the definition of inherently Federal functions. While no definition of inherently Federal functions is included in these regulations, 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, 1996. 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 § 1000.95.

The Title IV statute limits the authority of the Secretary to enter agreements with respect to functions which are "inherently Federal." § 403(k). Absent a regulatory definition of what functions are inherently federal, federal negotiators the agency may try to might interpret this imprecise term to exclude refuse to negotiate agreements for programs, functions, services and activities which, upon any fair that upon scrutiny, would fall within the scope of the Act's mandatory inclusion requirements. We think that the ideal solution would be to include a definition of specific and limited "inherent federal functions" in the regulations.

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 § 1000.93. Several other comments suggested that annual funding agreements 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 §§ 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, amount 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 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 § 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)). Additional terms were inserted to reflect the fact that tribes administering contracts under $300,000 are exempted from the requirements of the Single Audit Act.

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 21^st 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 § 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, § 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 § 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 § 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 §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."

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 the 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 § 1000.70. Over Tribal objections, the Secretary chose to use only a selection criteria/point system and not establish a review committee. Several comments indicated that a Tribe should have a right to appeal the decision of the Director of the 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 the 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 the BIA. It specifies the programs that are to be performed by the BIA as inherently Federal functions identified as residuals, programs transferred to the Tribe/Consortium, and programs retained by the BIA to be carried out for the self-governance Tribe. The division of the responsibilities between the Tribe/Consortium and the 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 the 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 where prohibited by law, for construction or when a waiver of regulations is involved, a Tribe/Consortium may redesign a program without approval from the 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 the 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 the BIA , which should include the appropriate downsizing, restructuring and reorganization of the 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 the 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 §§ 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 § 1000.82 implies that residuals are limited to inherently Federal functions. However, § 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 interchangeable throughout the Act. This would also be consistent with § 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 § 1000.85 allows Tribes to negotiate an AFA that exceeds one year, this only applies to BIA programs, 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. [Note: This section deals with BIA only, not non-BIA. No need to mention here.]

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 21^st 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 (emphasis added) 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. (emphasis added)

Pub. L. No., 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 § 1000.93 that defers to the requirements of funding agencies other than the Department of the Interior.

In § 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 §§ 1000.91 and 1000.97. Should the Congressional prohibition be lifted, then the BIA would be willing to negotiate a portion of central office operations that are not a part of BIA residual or inherently Federal responsibilities functions 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. The Committee believes that BIA reorganization, restructuring and downsizing is an integral part of identifying residual amounts. This is consistent with the Congressional policy "to provide for an orderly transition through a planned and measurable parallel reduction in the federal bureaucracy".

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.

Section 1000.96 was modified by removing reference to an "annual list of residual activities" to be consistent with the changes made in § 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 § 1000.97.

A comment identified confusion in § 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". [Note: Reference to a typo in the regulation is necessary to include in this summary.] Another A 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 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.

A comment suggested that the word "between" be changed to "among" in the answer of § 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 § 1000.109(a)(3). Another comment suggested that prior to 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, § 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 because the Secretary has begun a separate process, in consultation with the tribes, to resolve contract support costs issues. Pursuant to this process, the Tribal team supports the opportunity to have contract support cost included in the base. . An item (c) was added to § 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.

Several comments regarding §§ 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 §§ 1000.106 and 1000.107 as the best way to handle the issue of re-negotiation of base amounts.

Another comment suggested that § 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 the answer is clear enough regarding clearly limits BIA's discretion for allocating general funding increases/decreases 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 [Note: This narrative in this subpart is structured and written differently than previous sections.

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 programs that are only available because of a special geographic, historical, or cultural significance eligible under section 403(c) of the Act 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 Allowable indirect costs 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 Committee did come to agreement on most some 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 and Federal views are outlined below.

The Tribal team views that the Act was intended to provide a meaningful process for implementing Self-Governance with non-BIA programs. 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 stressed the view that Congress clearly intended this phrase as to meaning any (removal of emphasis) Federal non-BIA 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 §§1000.122 through 1000.136, in the spirit with the policies of self-governance.

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 §§1000.122 through 1000.136 again, in keeping with the spirit of self-governance..

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 stressed that Congress intended 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 §§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. Changes to Section 144-145 have been made to reflect tribes' discretion to reallocate between Title I-eligible programs.

With respect to successor agreements, Tribal comments noted that successor agreements should be "more or less" automatic if negotiations have not been completed. 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 §§1000.182-1000.184.

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 §1000.126.

It was evident in reviewing Tribal and Federal comments that the notion of "indirect costs" is a confusing complicated 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 funding 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 §§1000.138-1000.142. Section 404 of the Act (and the accompanying regulation) also provide a mechanism for addressing funding issues. See Subpart G - Negotiation Process

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 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 §§1000.182 through 1000.184, 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 Title I-eligible 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.

A comment noted that the wording of §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 §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 for Title I-eligible programs the Tribe/Consortium may include any provision of Title I in the model compact. The regulations at §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 §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 prior to the promulgation of final regulations should be validated after final regulations are in place. The Committee agreed and included a process in §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 federal law . Disputes that might arise from this process are further provided for in subpart R of this part.

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 §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 §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 §1000.170 and §1000.176. 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 §1000.177 of these regulations.

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 pursuant to that Act's provisions.

Pursuant to Section 404 of the Act, question and answers have been included which outline a method for tribes to participate in the budget development process of federal agencies.

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.

The 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 notification that specifies the alleged limitation or reduction of services, contracts, or funding. If a limitation and/or reduction exists, then the BIA must use shortfall funding, supplemental funding, or other available BIA resources to prevent the reduction during the existing AFA year. The 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 the BIA or a non-BIA bureau. The Tribal team concluded that this subpart should apply to both BIA and non-BIA. The Committee took great care to ascertain The Federal team concluded 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 compact 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 disagreed and 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

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 Title 1-eligible or non-eligible or non-BIA program. For a BIA Title 1-eligible program, denial of a requested waiver must be predicated on a prohibition of Federal law. For a non-BIA non Title1-eligible 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.

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 Federal team 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 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 concluded that a waiver request for non Title I-eligible programs 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 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. All other subpart provisions in these regulations apply to construction activities, unless they conflict 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. Unless FARS are included in an AFA, they do not apply. 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 the AFA must specify what tribal and federal standards are applicable 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 § 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 §§1000.35 and 1000.253.

A comment regarding §1000.82 (now § 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.

In response to comments in regarding BIA reallocation of funds in § 1000.100 (now § 1000.103), two new questions and answers were added to the final regulation, as §§ 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. The Tribal team has proposed a definition (included in Section 1000.240(b)(1).

Comments regarding the lack of clarity in § 1000.241 as to the meaning of "an agency relationship" were accepted and this section was modified in the final regulation.

The Committee adopted a comment recommending that § 1000.244 should be changed to delete the 5-day notice to a Tribe before suspending work in a emergency.

The comment that § 1000.223(e) of the proposed rule should be made into a separate section was adopted and is now § 1000.244.

A comment was made concerning the last sentence of § 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 § 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 § 1000.249, did not require clarification because § 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 § 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 § 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 § 1000.243 are not complied with in the AFA proposed by a Tribe/Consortium.

Summary of Subpart

This subpart explains the applicability of the Federal Tort Claims Act.

In response to a comment, former § 1000.242(a), § 1000.272 in the final rule, subsection (a) was changed to a list, for clarification and consistency. A comment was received suggesting changing "must" to "may" in §1000.245, since the action is not mandatory. The change was accepted by the Committee and is now part of § 1000.275 in the final 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 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 programs. 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. A comment was received supporting tribal participation on the Trust Evaluation team. The federal team rejected this comment. After much discussion, the federal view prevailed.

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 may 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. No changes were made, therefore, on this issue in the regulation. Consistent with the Act, Annual Tribal reports to Congress were made discretionary rather than mandatory.

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. Subpart L (dealing with Federal Tort Claims Act) was deleted and a single question and answer on FTCA was included in this subpart. This question makes FTCA coverage as under Title I regulations.

Comments

Cash Management

As to cash management, there was considerable discussion on the investment of funds transferred to the Tribe/Consortium pursuant to 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 could potentially 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 utilize the Congressional limitations for allow limited investment in secured transactions. This decision is as reflected in the regulations at §1000.398. The Tribal team believes that limitation on investments apply as a matter of federal appropriations law for FY2000 and not beyond. Therefore, it is inappropriate to include those limitations in these regulations.

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 §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 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 pursuant to 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. [Note: This is deleted since portions of subpart R do apply to construction. Further, this statement is redundant and already covered under subpart K.]

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.

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.

Executive Order 12988

The Department has certified to the Office of Management and Budget (OMB) that these regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 12866

This rule is a significant regulatory action and has been reviewed by the Office of Management and Budget under Executive Order 12866.

This rule will not have a significant economic impact on a substantial number of small entities as the term is defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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

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.

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), the OSG submitted the information collection and recordkeeping 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 developed 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.

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.

(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 the 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.

Unfunded Mandates Act of 1995

This rule imposes no unfunded mandates on any governmental or private entity and is in compliance with the provisions of the Unfunded Mandates Act of 1995.

List of Subjects in 25 CFR Part 1000

Grant programs--Indians, Indians.

For the reasons set out in the preamble, the Department of the Interior proposes to establish a new part 1000 in chapter VI of title 25 of the Code of Federal Regulations as set forth below.

Dated:, 1999.

Bruce Babbitt,

Secretary of the Interior.

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?

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 annual funding agreement during the calendar year?

1000.30 May a Tribe/Consortium be selected to negotiate an annual funding agreement pursuant to section 403(b)(2) without having or negotiating an annual funding agreement pursuant to section 403(b)(1)?

1000.31 May a Tribe/Consortium be selected to negotiate an annual funding agreement pursuant to section 403(c) without negotiating an annual funding agreement under section 403(b)(1) and/or section 403(b)(2)?

Withdrawal From a Consortium Annual Funding Agreement

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

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

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

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

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

Purpose and Types of Grants

1000.40 What is the purpose of this subpart?

1000.41 What types of grants are available?

Availability, Amount, and Number of Grants

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

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

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

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

Selection Criteria

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

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

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

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 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 Is there an appeal within DOI of a decision by the Director not to award a grant under this subpart?

1000.72 Will the 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 the residual list?

1000.97 What is a Tribal share?

1000.98 How is a Tribe's/Consortium's share of funds to be included in an AFA determined?

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 the implementation of this part negotiate new Tribal shares and residual amounts?

1000.108 How are self-governance base budgets established?

1000.109 How are self-governance base budgets adjusted?

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

Purpose

1000.120 What is the purpose of this subpart?

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

Eligibility

1000.122 What non-BIA programs are eligible for inclusion in an AFA?

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

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

1000.125 What programs are included under section 403(c)?

1000.126 What does "special geographic, historical or cultural" mean?

1000.127 Under Section 403(b)(2), when mus