(1) The reasons why the Area Director or Commissioner is considering cancelling the contract.

(2) That the tribal organization will be given at least 45 days to present an acceptable plan to overcome the deficiencies in its contract performance.

(3) That the Bureau will furnish technical advice and assistance to help overcome the deficiencies in the contract performance, when requested.

(c) When the contract is with other than the governing body of the Indian tribe, the tribe(s) receiving services or benefits under the contract will be notified when a cancellation for cause is contemplated. The notice shall include the reasons why a cancellation for cause is contemplated and any supporting documents used by the Area Director to reach his conclusions. The notice shall also offer to held a meeting with the tribe(s) to discuss the issues and explore any options available to the tribe(s). The Area Director and the tribe(s) will mutually consider the relevant issues before the Area Director proceeds with any cancellation action.

(d) If the tribal organization does not present an acceptable plan to overcome the deficiencies in its contract performance within 45 days of its receipt of the notice of deficiencies or does not request the Commissioner to review the Area Director's decision as provided in paragraphs (e) and (f) of this section, the Area Director will cancel the contract for cause. The contracting officer will notify the tribal organization, in writing, of the cancellation. The notice shall give the reasons for the cancellation and the right of the tribal organization to appeal under § 271.84.

(e) When the Area Director determines the contract should be cancelled for cause the decision shall state as a minimum: The reasons for the decision; the actions that must be taken to achieve satisfactory performance; the technical assistance the Bureau will provide; notice that the tribal organization will be given at least 60 days to correct its performance deficiencies; and the tribal organization's right of appeal under § 271.84. The decision shall also advise the tribal organiza

tion that it may request the Commissioner to review the decision and that such request must be made within 30 days of receipt of the decision.

(f) The Commissioner's review will be conducted and the tribal organization advised of the results within 30 days of receiving the request. If the Commissioner concurs in the Area Director's decision, the tribal organization will be so advised in writing and of its right to appeal the Area Director's decision pursuant to § 271.84. If the Commissioner decides that the Area Director's decision is not supported by the record, he will so advise both the Area Director and the tribal organization and the cancellation action will cease. In no case shall an Area Director cancel a contract until the review requested by a tribal organization has been completed by the Commissioner and results thereof have been received.

(g) When a contract is cancelled for cause, the Bureau will either perform the work with its own forces or by another contract, as appropriate. When the Bureau does not have sufficient forces on hand to immediately perform the work, it may, for temporary periods of the shortest duration possible, contract with a contractor that is not a tribal organization. However, in such cases, the advice of the tribe(s) will be obtained to determine how they desire the services to be rendered.

(h) Excess costs resulting from a cancellation that are required to operate the program will be provided by the Bureau to the extent that funds are available for that fiscal year. However, if current funds are not sufficient to maintain the program at its planned level, the program may be reduced until funds become available for the remainder of the fiscal year, at which time the program will be resumed at its planned level.

(i) Any tribal organization that has a contract cancelled for cause must demonstrate that the causes which led to the cancellation have been cured before it will be considered for another contract. In addition, there must be a new resolution and a new request from the Indian tribe(s) that will re

ceive services or benefits under the contract.

[40 FR 51286, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976]

§ 271.76 Bureau operation of retroceded, reassumed or cancelled for cause contracts.

(a) The Bureau shall provide to the tribe(s) and Indians served by a contract which is retroceded, reassumed or cancelled for cause not less than the same quantity and quality of service that would have been provided at the level intended by the contract or operated previously by the Bureau.

(b) The Bureau shall provide to the tribe(s) and Indians served by a contract which is retroceded, reassumed, or cancelled for cause not less than the same quantity and quality of permanent and temporary personnel that meet the U.S. Civil Service qualifications that would have been provided at the level intended by the contract or previously operated by the Bureau. The procedures in § 271.77 will be followed to obtain personnel to operate programs or parts of programs previously under contract with a tribal organization but returned for operation by the Bureau because the contract was either retroceded, reassumed or cancelled for cause.

(c) This section does not apply to contracts for the operation of Bureau programs or parts of programs previously entered into under the authority of the Buy Indian Act (25 U.S.C. 47) and in effect on the effective date of the regulations, since ceiling and positions were not reserved at the time those contracts were awarded. However, the Bureau will provide, as nearly as possible, the same quantity and quality of service and permanent and temporary personnel that meet the U.S. Civil Service qualifications that would have been provided at the level intended by the Buy Indian Act contract or as operated previously by the Bureau

(d) Actions under this section shall not cause a reduction in the quality and quantity of services to tribe(s) or Indians not served by contracts which are retroceded, reassumed or cancelled for cause.

[40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37445, Aug. 23, 1978]

§ 271.77 Authorized position and end-ofyear employment ceiling reserve for Bureau operation of retroceded, reassumed or cancelled contracts.

(a) When authorized permanent and other positions and permanent and other end-of-year employment ceiling are not required for the operation of all or parts of a Bureau program because the program or parts of a program are under contract with a tribal organization under this Part, the positions and ceilings shall be reserved. The positions and ceiling reserved shall be available only for the same program or parts of a program at the same locations if the Bureau must operate the program or parts of a program because a tribe has retroceded the contract or becuse the Bureau has reassumed or cancelled the contract for cause.

(b) The Bureau shall establish a position and ceiling reserve for all contracts for the operation of all or parts of Bureau programs initially entered into on or after the effective date of these regulations.

Subpart G-Hearings and Appeals § 271.81 Hearings.

Hearings required by §§ 271.25, 271.74, and 271.82 shall be conducted as follows:

(a) The tribal organization and the Indian tribe(s) shall be notified, in writing, of the hearing. The notice shall give the date, time, place, and purpose of the hearing.

(b) A written record of the hearing shall be made. The record shall include written statements submitted at the hearing or within 5 days following the hearing.

(c) Within 30 days of the hearing, the Commissioner or Area Director as appropriate shall issue a written decision on the issues considered during the hearing.

[40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37445, Aug. 23, 1978]

§ 271.82 Appeals from decision or action by Area Director.

A tribal organization (unless restricted by the tribal resolution under § 271.18(c)(2) or subsequent resolutions) or tribal governing body may appeal any decision made or action taken by an Area Director under this Part. Such appeal shall be made to the Commissioner as provided in Part 2 of this chapter.

§ 271.83 Appeals from decision or action by Commissioner.

(a) A tribal organization (unless restricted by the tribal resolution under § 271.18(c)(2) or subsequent resolutions) or tribal governing body may appeal the Commissioner's decision to decline to contract or to decline to amend a contract under §§ 271.25 or 271.64 to the Director, Office of Hearings and Appeals, Department of the Interior, as provided in Subpart G of 43 CFR Part 4.

(b) A tribal organization (unless restricted by the tribal resolution under § 271.18(c)(2) or subsequent resolutions) or tribal governing body may appeal any other decision made, action taken, or action not taken within the time limits required by this Part, by the Commissioner if authorized and as provided in Part 2 of this chapter. A decision by the Commissioner concerning funding levels for a program or part of a program to be contracted is considered to be an exercise of the Commissioner's discretionary authority and, therefore, is final for the Secretary.

§ 271.84 Appeals from Bureau decision to cancel contract for cause.

A tribal organization (unless restricted by the tribal resolution under § 271.18(c)(2) or subsequent resolutions) may appeal the Bureau's decision to cancel for cause any contract made under this Part. Such appeal shall be made to the Director of the Office of Hearings and Appeals as provided in Subpart G of 43 CFR Part 4.

272.11

Subpart B-Application Process

Eligibility requirements. 272.12 Purpose of grants.

272.13 Obtaining application instructions and materials.

272.14 Content of application.

272.15 Assistance in developing and completing grant applications.

272.16 Request from tribal governing body. 272.17 Grant approval limitations.

272.18 Submitting application to Agency Office.

272.19 Agency Office review and recommendation.

272.20 Deadline for Agency Office action. 272.21 Area Office review and action. 272.22 Deadline for Area Office action. 272.23 Central Office review and decision. 272.24 Deadline for Central Office action. 272.25 Grant execution and administration.

272.26 Subgrants and subcontracts. 272.27 Acceptance of tribal plans for the operation of Bureau programs.

Subpart C-General Grant Requirements 272.31 Applicability.

272.32 Reports and availability of information to Indians.

272.33 Matching share.

272.34 Performing personal services. 272.35 Fair and uniform services. 272.36 Penalties.

AUTHORITY: Section 104, Pub. L. 93-638, 88 Stat. 2207 (25 U.S.C. 450h).

SOURCE: 40 FR 51300, Nov. 4, 1975, unless otherwise noted.

Subpart A-General Provisions

§ 272.1 Purpose and scope.

The purpose of the regulations in this Part is to provide the application and approval procedures for the award by the Bureau of grants under section 104(a) of Title I of the Indian Self-Determination and Education Assistance Act (Public Law 93-638, 88 Stat. 2203). Title I is known as the Indian Self-Determination Act.

§ 272.2 Definitions.

As used in this Part:

(a) "Act" means the Indian Self-Determination and Education Assistance Act (Public Law 93-638, 88 Stat. 2203).

(b) "Applicant" means a tribal governing body applying for a grant under this Part.

(c) "Area Director" means the official in charge of a Bureau of Indian Affairs Area Office.

(d) "Bureau" means the Bureau of Indian Affairs.,

(e) "Commissioner," in the absence of a Commissioner of Indian Affairs appointed by the President pursuant to 25 U.S.C. 1, means the Assistant Secretary for Indian Affairs, or his designee.

(f) "Days" means calendar days.

(g) "Economic enterprise" means any commercial, industrial, agricultural, or business activity that is at least 51 percent Indian owned, established, or organized for the purpose of profit.

(h) "Grant" means a written agreement between the Bureau and a tribal governing body where the Bureau provides funds to carry out specified programs, services, or activities and where the administrative and programmatic provisions are specified.

(i) "Grantee" means the tribal governing body which is responsible for administration of the grant.

(j) "Indian tribe" means any Indian Tribe, Band, Nation, Rancheria, Pueblo, Colony, or Community, including any Alaska Native village or regional or village corporation as defined

in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is federally recognized as eligible by the United States Government through the Secretary for the special programs and services provided by the Secretary to Indians because of their status as Indians.

(k) "Indian" means a person who is a member of an Indian tribe.

(1) "Resolution" means the formal manner in which the tribal government expresses its legislative will pursuant to its organic documents. In the absence of such organic documents a written expression adopted pursuant to tribal (current) practices will be acceptable.

(m) "Secretary" means the Secretary of the Interior.

(n) "Superintendent" means the official in charge of a Bureau of Indian Affairs Agency Office.

(0) "Subcontracts" means contracts undertaking some of the obligations of primary grants.

(p) "Subgrants" means secondary grants undertaking some of the obligations of primary grants.

(q) "Tribal government," "tribal governing body," and "tribal council" means the recognized governing body of an Indian tribe.

(r) "Trust resources" means natural resources, land, water, minerals, funds or property, asset, or claim, including any intangible right or interest in any of the foregoing, which is held by the United States in trust for any Indian tribe or Indian individual subject to a restriction on alienation imposed by the United States.

(s) "Trust responsibility" means for the purposes of this Part only the responsibility assumed by the United States Government, by virtue of treaties, statutes and other means, legally associated with the role of trustee, to protect, manage, develop, and approve authorized transfers of interest in trust resources held by Indian tribes and Indian individuals to a standard of the highest degree of fiduciary responsibility.

[40 FR 51300, Nov. 4, 1975, as amended at 43 FR 37445, Aug. 23, 1978]

§ 272.3 Effect on existing Indian rights.

The regulations in this Part are not meant to and do not:

(a) Affect, modify, diminish, or otherwise impair the sovereign immunity from suit enjoyed by an Indian tribe;

or

(b) Authorize, require or permit the termination of any existing trust responsibility of the United States with respect to the Indian people.

§ 272.4 Revision or amendment of regulations.

Before making any substantive revisions or amendments to the regulations in this Part, the Secretary shall take the following actions:

(a) Consult with Indian tribes and national and regional Indian organizations to the extent practicable about the need for revision or amendment and consider their views in preparing the proposed revision or amendment.

(b) Present the proposed revision or amendment to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives.

(c) Publish any proposed revisions or amendments in the FEDERAL REGISTER as proposed rulemaking to provide adequate notice to, and receive comments from all interested parties.

(d) After consideration of all comments received, publish the regulations in the FEDERAL REGISTER in final form not less than 30 days before the date they are made effective.

(e) Annually consult with Indian tribes and national and regional Indian organizations about the need for revision or amendment, and consider their views in preparing the revision or amendment.

(f) Nothing in this section shall preIclude Indian tribes or national or regional organizations from initiating requests for revisions or amendments, subject to paragraphs (a), (b), (c) and (d) of this section.

means through which they may plan, conduct, and administer programs and services to Indian people. These programs and services are essentially those authorized by the Act of April 16, 1934 (Johnson-O’Maley Act); the Act of November 2, 1921 (Snyder Act) and other subsequent Acts.

(b) A most important aid available to assist Indians in achieving this objective of increased self-determination is the grant authority provided in section 104 of the Act. This grant authority will assist Indian tribes in improving their governing capabilities, increase their ability to effectively administer programs under contract, and enable them to provide direction to the Federal programs intended to serve Indian people.

(c) Under this grant authority the Bureau of Indian Affairs will administer a program of Indian self-determination grants which shall be subject to Parts 272 and 276 of this chapter. In the administration of this grant program, it shall be the Bureau's policy that approval of applications for these grants shall include a determination that there is a direct and reasonable relationship between the applicant's proposal and the provisions of section 104a of the Act and of § 272.12.

(d) In accordance with this policy, it shall be the responsibility of the applicant to establish that such a grant will improve the tribe's governing capabilities, enhance the tribe's ability to administer Federal programs under contract, or enable the tribe to provide direction to Bureau programs and to other Federal programs serving it.

(e) Emphasis on planning and training in relation to the purposes of a grant given in paragraph (d) of this section is considered in keeping with the intent of section 104(a) of the Act. Applications which include these elements are encouraged.

Subpart B-Application Process

§ 272.11 Eligibility requirements.

The governing body of any Indian tribe or tribes may apply for a grant under this Part.