(d) Where the Secretary determines that a grantee's performance under a grant awarded under this subpart poses an immediate threat to the safety of any person, he may immediately rescind the grant in whole or in part and if he deems it appropriate, assume or resume control or operation of the program, activity, or service involved. Upon such recission he will immediately notify the grantee of such action and the basis or reasons therefor; and offer the grantee an opportunity for a hearing to be held within 10 days of such action. If the grantee requests such a hearing, the Secretary will designate three officers or employees of the Department to serve as a hearing panel. No officer or employee from the immediate office of the official who made the decision to rescind the grant under this paragraph may be designated to serve on the hearing panel.

(1) The hearing shall be commenced within 10 days after the recission of the grant, shall be held on the record and shall afford the grantee the right:

(i) To notice of the issues to be considered;

(ii) To be represented by counsel; (iii) To present witnesses on grantee's behalf; and

(iv) To cross-examine other witnesses either orally or through written interrogatories.

(2) The hearing panel shall, within 25 days after the conclusion of the hearing, notify all parties in writing of its decision.

(3) Such decision shall not be subject to further hearing under 42 CFR part 50, subpart D or 45 CFR part 16.

(e) In any case where the Secretary has rescinded a grant under paragraph (b) or (d) of this section, he may decline to enter into a new grant agreement with the grantee until such time as he is satisfied that the basis for the recission has been corrected. Nothing in this section shall be construed as contravening the Occupational Safety and Health Act of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651).

(f) In any case where the Secretary has rescinded a grant for the delivery of health services under this subpart, the grantee shall, upon the request of the Secretary, transfer to the Sec

retary all medical records compiled in the operation of the supported project.

NOTE: This section is an exception to 45 CFR part 74, subpart M required by section 109 of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1855, Jan. 14, 1985]

§36.116 Reports.

In addition to the reporting and information requirements provided in subpart J of 45 CFR part 74 made applicable to grants under this subpart by §36.114, each recipient of Federal financial assistance shall make such reports and information available to the Indian people served or represented by such recipient as and in a manner determined by the Secretary to be adequate.

NOTE: This section is a requirement in addition to 45 CFR part 74 and is required by section 5(c) of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1855, Jan. 14, 1985]

§ 36.117 Amendment of regulations.

Before revising or amending the regulations in this subpart, 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 the proposed revisions or amendments in the FEDERAL REGISTER as proposed rulemaking to provide adequate notice to 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.

§ 36.118 Effect on existing 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;

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

(c) Permit significant reduction in services to Indian people as a result of this subpart.

$36.119 Penalties.

Section 6 of Pub. L. 93-638, 25 U.S.C. 450(d) provides:

Whoever, being an officer, director, agent, or employee of, or connected in any capacity with, any recipient of a contract, subcontract, grant, or subgrant pursuant to this Act or the Act of April 16, 1934 (48 Stat. 596), as amended, embezzles, willfully misapplies, steals, or obtains by fraud any of the money, funds, assets, or property which are the subject of such a grant, subgrant, contract, or subcontract, shall be fined not more than $10,000 or imprisoned for not more than two years, or both, but if the amount so embezzled, misapplied, stolen, or obtained by fraud does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

§ 36.120 Use of Indian business con

cerns.

Grants awarded pursuant to this subpart will incorporate the following:

Use of Indian business concerns.

(a) As used in this clause, the term "Indian organizations of an Indianowned economic enterprise" as defined in section 102(g) of this subpart.

(b) The grantee agrees to give preference to qualified Indian business concerns in the awarding of any contracts, subcontracts or subgrants entered into under the grant consistent with the efficient performance of the grant. The grantee shall comply with any preference requirements regarding Indian business concerns established by the tribe(s) receiving services under the grant to the extent that such requirements are consistent with the purpose and intent of this paragraph.

NOTE: This section is an exception to 45 CFR part 74, required by section 7(b) of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1855, Jan. 14, 1985]

§ 36.121 Indian preference in training and employment.

(a) Any grant made under this subpart, or a contract or subgrant made

under such a grant shall require that, to the greatest extent feasible preferences and opportunities for training and employment in connection with the administration of such grant, or contract or subgrant made under such grant, shall be given to Indians.

(b) The grantee shall include the requirements of paragraph (a) of this section in all contracts and subgrants made under a grant awarded under this subpart.

Subpart I-Contracts Under the Indian Self-Determination Act

AUTHORITY: Secs. 103, 107, 25 U.S.C. 450g, 450k; sec. 3, Pub. L. 83-568, 42 U.S.C. 2003.

SOURCE: 40 FR 53147, Nov. 14, 1975, unless otherwise noted.

§36.201 Policy and applicability.

(a) Policy. (1) The Congress has recognized the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.

(2) The Congress has declared its commitment to the maintenance of the Federal Government's unique and continuing relationship with the responsibilities to the Indian people through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.

(3) It is the policy of the Secretary of the Department of Health and Human Services to facilitate the efforts of Indian tribes to plan, conduct, and administer programs, or portions thereof, which the Indian Health Service is authorized to administer for the benefit of Indians.

(4) It is the policy of the Secretary to continually encourage Indian tribes to become increasingly knowledgeable

about Indian Health Service programs and the opportunities Indian tribes have regarding them; however, it is the policy of the Indian Health Service to leave to Indian tribes the initiative in making requests for contracts and to regard self-determination as including the decision of an Indian tribe not to request contracts.

(5) It is the policy of the Indian Health Service not to impose sanctions on Indian tribes with regard to contracting or not contracting; however, the special resources made available to facilitate the efforts of those Indian tribes which do wish to contract should be made known to all tribes, as should the current realities of funding and Federal personnel limitations.

(6) Contracting is one of several mechanisms by which Indian tribes can exercise their right to plan, conduct, and administer programs or portions thereof which the Secretary is authorized to administer for the benefit of Indians. Another mechanism afforded Indian tribes is the use of a grant, as provided in subpart H of this part, or other resources, to plan the manner in which it wishes the Indian Health Service to operate a program or portion thereof.

(7) The regulations in this subpart are not meant to and do not change the eligibility criteria which individuals must meet to be eligible for any program currently operated by the Indian Health Service.

(b) The regulations of this subpart are applicable to contracts awarded pursuant to section 103 of Pub. L. 93638, 25 U.S.C. 450g to carry out any or all of the functions, authorities, and responsibilities of the Secretary of Health and Human Services under the Act of August 5, 1954 (68 Stat. 674), as amended, 42 U.S.C. 2001 et seq.

§ 36.202 Effect on existing rights.

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

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

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

(c) Permit significant reduction in services to Indian people as a result of this subpart.

(d) Nothing in these regulations shall be construed to require a tribe to apply for a contract or contracts with the Secretary to carry out under the Indian Self-Determination Act any of the Secretary's functions, authorities and responsibilities under the Act of August 5, 1954, as amended, 42 U.S.C. 2001, et seq. Such applications under these regulations are voluntary.

(e) Nothing in these regulations shall be construed to preclude the making of contracts under any other authority of law nor to restrict contracts with Indian tribes or tribal organizations to contracts entered into under section 103 of the Act.

§ 36.203 Amendment of regulations.

Before revising or amending the regulations in this subpart, the Secretary will 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 the proposed revisions or amendments in the FEDERAL REGISTER as proposed rulemaking to provide adequate notice to 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 60 days before the date they are made effective.

§ 36.204 Definitions.

(a) Act means Title I of the Indian Self-Determination and Education Assistance Act, Pub. L. 93-638 (25 U.S.C. 450f et seq.).

(b) Secretary means the Secretary of Health and Human Services and any other officer or employee of the Department of Health and Human Services to whom the authority involved has been delegated.

(c) Director means the Director, Indian Health Service, Health Services Administration, Public Health Service, Department of Health and Human Services (IHS) who is the official to whom the Secretary has delegated full responsibility and authority to implement and administer those aspects of the Act related to the health and wellbeing of the Indian people.

(d) Area Director means the official in charge of an Indian Health Service Area, or Program Office.

(e) Contracting Officer means the person executing the contract on behalf of the Government and any other officer or employee who is properly designated Contracting Officer; and the term includes, except as otherwise provided in the contract, the authorized representative of the Contracting Officer acting within the limits of his authority.

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

(g) 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 recognized as eligible by the United States Government for the special programs and services provided by the United States to Indians because of their status as Indians.

(h) Tribal organization means: (1) The recognized governing body of any Indian tribe; or

(2) Any legally established organization of Indians which is:

(i) Controlled, sanctioned or chartered by such governing body or bodies;

or

(ii) Democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities.

(i) An Indian Owned Economic Enterprise means any commercial industrial, or business activity established or organized for the purpose of profit which is not less than 51 percent Indian owned.

(j) An Indian Self-Determination Contract Proposal is the name of the document to be utilized by Indian Tribal or

ganizations to forward to the Indian Health Service, their requests to enter into contracts for health programs or services.

(k) 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 any Indian individual or which is held by any Indian tribe or Indian individual subject to a restriction on alienation imposed by the United States.

(1) Trust Responsibility means the responsibility assumed by the Government, by virtue of treaties, statutes and other means, legally associated with the role of trustee, to recognize, protect and preserve tribal sovereignty and to protect, manage, develop and approve authorized transfers of interests in trust resources held by Indian tribes and Indian individuals to a standard of the highest degree of fiduciary responsibility.

(m) Retrocession is the voluntary return of a contracted program, or portion thereof, to the Indian Health Service pursuant to section 106(d) of the Act.

(n) The Contract Proposal Declination Appeals Board (CPDAB) is a body established to review Indian Self-Determination Contract Proposals which have been disapproved.

CONTRACT PROPOSALS, REVIEW, AND APPEAL

$36.205 Eligibility and application.

(a) Any tribal organization upon the request of the Indian tribe to be served, is eligible to apply for a contract with the Secretary to carry out any or all of the functions, authorities and responsibilities of the Secretary under the Act of August 5, 1954.

(b) All such contracts shall be based upon Indian Self-Determination Contract proposals which will be specific and, as a minimum, include the following:

(1) Date submitted.

(2) Full name and address of the Indian tribal organization submitting the proposal.

(3) Full name and tribe(s) which the tribal organization is affiliated with.

(4) Narrative description of the functions, IHS programs, or portions thereof which the tribal organization wants to contract for.

(5) Type of contract proposed (cost reimbursement, fixed price, etc.).

(6) Proposed contract starting and completion dates.

(7) Equipment and facilities needed to carry out the contract and how the tribal organization intends to obtain such.

(8) Narrative indicating the tribal organization's knowledge of the program or function or portion thereof to be contracted for and the relation of such to the mission of the Indian Health Service. Where tribal organizations have already been involved in a contract for such programs, this narrative may be in the form of an updated version of the scope of work under that contract. In any case, the following items should be described in the narrative:

(i) Experience and training of personnel performing under the contract; (ii) Familiarity with Federal Regulations and procedures involved;

(iii) Experience in operating a similar or related tribal program;

(iv) Extent of subcontracting contemplated and, where such information is available, identification of proposed subcontractors;

em

(v) Identification of Federal ployee transfers contemplated; (vi) Personnel system and key personnel;

(vii) The work plan for carrying out the contract including the timetable for delivery of optimum services.

(9) Evidence of community support for or lack of opposition to the contract.

(10) Information concerning training to be given to personnel who will perform under the contract.

(11) Estimate of the number of Indians to be served.

(12) A budget, including separate cost estimates for salaries and wages, equipment, supplies, services, travel, subcontracts, other direct costs and overhead.

(13) Justification and request for advance payments.

(14) Names and telephone numbers of the tribal organization's business and technical personnel who may be contacted during the evaluation and negotiation process.

(15) A description of the tribal organization including:

(i) The legal and organizational relationship of the tribal organization to the Indians in the area to be served or effected by the contract.

(ii) A description of the participation of Indians in all phases of the tribal organization.

(iii) Whether the tribal organization is controlled, sanctioned or chartered by the governing body of Indians to be served, and, if so, evidence of such fact.

(iv) And, if elected, a description of the election process, voting criteria, and extent of voter participation.

(16) Evidence of adequate liability insurance coverage or an explanation of why such insurance cannot or should not be obtained. Such insurance shall provide that prior to cancellation the Secretary must be notified and must further provide that each such policy of insurance shall contain a provision that the insurance carrier shall waive any right it may have to raise as a defense the tribe's sovereign immunity from suit but such waiver shall extend only to claims the amount and nature of which are within the coverage and limits of the policy and shall not authorize or empower such insurance carrier to waive or otherwise limit the Tribe's sovereign immunity outside or beyond the coverage and limits of the policy of insurance.

(17) The intended financial participation, if any, of the tribal organization or the tribes to be served specifying the type of contributions such as cash or services, loans of full or part-time staff, equipment, space, materials, or facilities, or other contributions.

(18) Specifically include any requests for waivers to 41 CFR chapter 1 and 3 in accordance with 36.216.

(c) The Indian Self-Determination Contract Proposal shall be executed by a person or persons authorized to act on behalf of the tribal organization and shall be accompanied by evidence that such person or persons are authorized to bind the tribal organization.