Notice of Proposed Rulemaking This notice is published in exercise of authority delegated by the Secretary of the Interior to the Commissioner of Indian Affairs by 230 DM 2. Notice is hereby given that it is proposed to amend Chapter I of Title 25 of the Code of Tederal Regulations by revoking Part 33 under Subchapter E and by adding new Parts 401, 402, 403, 404, 405, 406 and 407 under a new Subchapter Y. This amendment is proposed under the authority in the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638; 88 Stat. 2203). Assistance The purpose of the amendment is to Implement the Indian Self-Determination and Education Act (Pub. L. 93-638; 88 Stat. 2203). Part 401 contains regulations under which tribal organizations, upon the request of an Indian tribe, can contract for the operation of all or parts of authorized Bureau of Indian Affairs programs for the benefit of Indians, and Alaska Natives. Under Part 402, tribal governing bodies may receive grants for strengthening tribal and Alaska Native governments; planning. training, evaluation, or other activities to improve a tribal organization's capacity to contract; acquiring land for those purposes; and planning, designing, monitoring, and evaluating Federal programs serving the tribe or Alaska Native group. Under Part 403, a State, school district, or Indian corporation may contract for supplemental programs or operational support for education. The regulations in Part 403 replace the regulations in Part 33 and reflect the changes made to the Johnson-O'Malley Act (the Act of April 16, 1934 (48 Stat. 596), as amended by the Act of June 4, 1936 (49 Stat. 1458, 25 U.S.C. 452-456) by the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638; 88 Stat. 2203). Tribal organizations can contract for supplemental programs or operational support for education under Part 401 upon the request of an Indian tribe. Part 404 contains regulations under which tribal organizations may receive contracts or services for school construction for previously private schools that are controlled or managed by an Indian tribe or tribal organization. Part 405 informs the Indian tribes of ways in which they can obtain the use of Government employees in operating all or parts of Bureau of Indian Affairs programs under contract. Part 406 contains the administrative requirements for grants available under Part 402. These administrative requirements are basically the same as those in Federal Management Circular 74-7 1 Under Part 407, a State education agency or school district may contract for acquiring sites for, or for constructing, acquiring, or renovating, school facilities needed for educating Indians residing on an Indian reservation or other trust land. The proposed regulations have been developed in consultation with national, regional, tribal, and Alaska Native organizations served by the Bureau of Indian Affairs. written comments, suggestions, or objections regarding the proposed amendment to the Bureau on or before October 4, 1975, as follows: 1. By mail addressed to the Commissloner of Indian Affairs, Attention: Publlc Law 93-638 Task Force (Code 101A), Washington, D.C. 20245. 2. Or by hand delivery to the Commissioner of Indian Affairs, Attention: Public Law 93-638 Task Force, Room 4620. 18th and C Streets, NW., Washington, D.C. Comments, suggestions, or objections received on or before October 4 will be considered in preparing the final regulations. It is proposed to amend Chapter I of Title 25 of the Code of Federal Regulations by revoking Part 33 under Subchapter E and by adding new Parts 401, 402. 403, 404, 405, 406, and 407 under a new Subchapter Y to read as follows: SUBCHAPTER Y-INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT PROGRAMS 401-CONTRACTS UNDER INDIAN SELF-DETERMINATION ACT Based on two series of nationwide Indian and Alaska Native consultation sessions, the Bureau of Indian Affairs has attempted to spell out clearly the regulatory requirements necessary to implement Pub. L. 93-638. A concerted effort has been made to incorporate into the regulations three principal perspectives: The intent of Congress and the Presi- PART dent as reflected in the legislation; the continuing Federal responsibility and trust relationships toward Indian tribes; and the expressed wishes and desires of tribal and Alaska Native leaders and members. The Bureau of Indian Affairs believes that such a posture has been achieved in these proposed regulations. Public Law 93-638 is a significant piece of legislation for Indian and Alaska Native people. The proposed implementing regulations buttress the spirit and substance of this legislation by emphasizing the following elements: The role of tribal and Alaska Native governments as the key decision-makers in the self-determination process; the expanded powers and responsibilities of Indian Education Committees in public school assistance programs serving Indian and Alaska Native children; the recognition of the desirability of tribally-controlled and operated schools as an alternative to Federal and public learning systems; the availability of grants to strengthen tribal and Alaska Native governments and to enhance their eventual capability to operate a Bureau program under contract or to redesign a Bureau program for operation by the Bureau; and the use of Federal personnel for expanding the human resource base of tribal and Alaska Native governing bodies. Subpart A-General Provisions Purpose and scope. Bec. 401.1 401.2 Definitions. 401.8 Revision or amendment of regulations Statement of policy. 401.4 401.11 401.12 401.13 401.14 401.15 401.16 401.17 401.18 401.19 401.20 401.21 401.22 An important feature of the legislation is the change it makes in the contract relationship by directing the Bureau to contract a program to a tribal organization upon the request of a tribe unless the Bureau can make a finding to support declination in accordance with criteria set out in the Act. Unlike the ordinary relationship between the government and a prospective contractor, under this legislation the burden of proof is on the Bureau to show that the contract should 401.49 not be entered into. It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit 401.74 401.75 401.76 401.77 401.81 Pull retrocession procedures. Tribal assumption of retroceded contracts. Reassumption. Cancellation for cause. Bureau operation of retroceded and Subpart G-Hearings and Appeals 401.82 Appeals from decision or action by 401.83 Appeals from decision or action by Commissioner. 401.84 Appeals from Bureau decision to canoel contract for cause. AUTHORITY: Sec. 102, Public Law 93-638, 88 Btat. 2203, unless otherwise noted. Subpart A-General Provisions 401.1 Purpose and scope. (a) The purpose of the regulations in this Part is to give the application and approval process for non-profit contracts with the Bureau under section 102 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. Contracts under the Act include "tribal governmental functions" as defined in 401.2(s), "business related functions" as defined in § 401.2(t), and certain contractable trust resources programs or parts of programs as set forth in 401.32. The nature of contracts with Indian entities which do not fall within the purview of the Act, including contracts which may provide for profit, and the conditions for entering into such contracts, are set forth in the regulations implementing the Act of June 25, 1910 (36 Stat. 861, 25 U.S.C. 47), commonly referred to as the "Buy Indian" Act. (b) Section 104 of Title I of the Act provides authority for making grants for certain purposes. It is the Bureau's policy to make grants for the purpose specified in Section 104 of the Act in lieu of contracts. Part 402 of this chapter gives the procedures and requirements for obtaining grants under section 104 of the Act. (c) Nothing in these regulations shall be construed as: (1) Affecting, modifying, diminishing. or otherwise impairing the sovereign immunity from sult enjoyed by an Indian tribe; (2) Authorizing or requiring the termination of any trust responsibility of As used in this part: (a) "Act" means the Indian Self-Determination and Education Assistance Act (Public Law 93638, 88 Stat. 2203). (b) "Area Director" means the official in charge of a Bureau of Indian Affairs Area Office. (c) "Bureau" means the Bureau of Indian Affairs. (d) "Business related function" means all programs and activities authorized to be administered by the Bureau for the benefit of Indians enumerated as line items in the Bureau's annual budget request under Tribal Resources Development as the Sub-activities of Business Enterprise Development, Credit and Indian Action Teams and also programs or parts of programs connected with construction projects but exclusive of the actual construction of the project. (e) "Commissioner" means the Com- (f) "Days" means calendar days. (h) "Indian" means a person who is (i) "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 Secretary for the special programs and services provided by the Secretary to Indians because of their status as Indians. (J) "Previously private school" means a school (other than a Federal school formerly operated by the Bureau) that is operated primarily for Indian students in any grade or grades from early childhood through grade 12; and, which at the time of application is controlled, and sanctioned or chartered by the governing body (s) of an Indian tribe(s). Where a former mission school is in volved, the title to the school facility and the land on which it is situated must (k) "Recontracting" means the enter- (1) "Resolution" means the formal manner in which the tribal government 40983 expresses its legislative will in accordance with its organic documents. In the absence of formal organization, a written expression adopted pursuant to current practices will be acceptable. (m) "Secretary" means the Secretary of the Interior. (n) "Superintendent" means the offcial in charge of a Bureau of Indian Affairs Agency Office. (o) "Tribal Chairman" means tribal chairman, governor, chief or other person recognized by the tribal government as its chief executive officer. (p) Tribal government" and "tribal council" means the recognized governing body of an Indian tribe. (q) "Tribal governmental function" means all programs and activities authorized to be administered by the Bureau for the benefit of Indians enumerated as line items in the Bureau's annual budget requests under the Activities of Education and Indian Services, the Subactivities of Direct Employment and Road Maintenance, and the program elements of Irrigation and Power Operation and Maintenance under the Activity of Tribal Resources Development. (r) "Tribal organization" means the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is 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; Provided, That a request for a contract must be made by the tribe that will receive services under the contract; Provided further, That in any case where a contract is let to an or ganization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting of such contract. (8) "Trust resources" means land, water, minerals, funds or property, asset. or claim, and any 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. (t) "Trust responsibility" means the right or power vested by law in the United States, or any official or employee thereof, to approve or otherwise regulate the alienation, disposition, encumberance, management, development, or use of trust resources. FEDERAL REGISTER, VOL 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 40984 (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, and receive comments from, all interested parties. (d) After consideration of all oomments received, publish the regulations in the FEDERAL REGISTER in final form not less than 30 days before the date they are made effective. § 401.4 Statement of policy. (a) 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. (b) The Congress has declared its commitment to the maintenance of the Federal Government's unique and continuing relationship with and 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. (e) It is the policy of the Bureau to facilitate the efforts of Indian tribes to plan, conduct, and administer programs, or portions thereof, which the Bureau is authorized to administer for the benefit of Indians and to facilitate the coordination of all Federal and other programs on Indian reservations. (d) It is the policy of the Bureau to continually encourage Indian tribes to become Increasingly knowledgeable about Bureau programs and the opportunities Indian tribes have regarding them; however, it is the policy of the Bureau 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. (e) It is the policy of the Bureau 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. (f) 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 Part 402 of this chapter, or other resources, to plan the manner in FROPOSED RULES which it wishes the Bureau to operate a (g) Contracting by its very nature Subpart B-Application Process tribe is eligible to apply for a contract § 401.12 Contractable Bureau grams. pro Tribal organizations are entitled to program which the Bureau is authorized (a) Any part of a Bureau program serves more than one tribe, the benefits (b) A single employee position only (c) Programs or parts of programs or services that are authorized but not currently operated or provided by the Bureau. (d) Operation of, or services provided by, previously private schools. (e) All of the foregoing paragraphs of this section apply to trust resources programs or portions thereof. Additional criteria for contractable trust resources programs, or portions thereof, are given in § 401.32. Part shall contain the following inforApplication for a contract under this uation of the application in light of the mation in sufficient detail to permit evaldeclination criteria set forth in 401.15. No further detail is, or shall be, required. (a) Full name, address and telephone number of the tribal organization which is applying for the contract. (b) Full name of tribe(s) with which the tribal organization is affiliated. (c) Full name of tribe(s) directly benefiting or receiving services from the proposed contract. (d) Documentation of the tribal request to contract as required in § 401.18. (e) Date of submission to the Bureau and the name of the office where the application was submitted. (f) Signature by the authorized representative of the tribal organization and the date thereof. (g) Estimated number of Indian people who will receive benefits or services from the contract, based on available data including tribal records. (h) functions, Bureau programs, or portions of programs the tribal organization wants to contract for. Descriptive narrative of what (D) Plan of operations, which shall include but is not limited to: (1) A statement of tribal goals and objectives to be obtained by the contract. (2) The organization, methods and Procedures to be used to accomplish the tribal goals and objectives. (3) The means to measure progress and accomplishment. (4) The budget showing the amount and sources of funding, staffing and other resources required for the contract. (5) The evaluation criteria and control systems the tribal organization will use to assure that the quality and quantity of actual performance conforms to the requirements of the plan. (1) Statement of tribal organization's substantive knowledge of the program, part of a program or functions to be contracted. (k) Description of personnel system and position descriptions for key personnel. (1) Listing of equipment, facilities, and buildings needed to carry out the contract and how the tribal organization intends to obtain them. (m) Certification by a licensed accountant that the bookkeeping and accounting procedures the tribal organization presently uses meet the standards of Appendix B of Part 406 of this chapter. In place of the certification, the tribal organization may submit a written agree FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 ment to establish a bookkeeping and accounting system that meets the standards of Appendix B of Part 406 of this chapter and to have the bookkeeping and accounting system certified before the Bureau disburses any funds under a contract awarded as a result of the application. When a certification has been submitted in connection with a previous application, the applicant may state this fact instead of submitting a new certification. (n) Proposed system for managing property and keeping records or agree ment to establish within 90 days of contract execution, a satisfactory system for managing property and keeping records. (0) Advance payment required by the tribal organization for contract. (p) Term of contract requested and proposed starting date of contract. 401.15 Criteria for declining to con tract. (a) The Commissioner may decline to contract only for the specific causes given in paragraph (b) of this section. The burden of proof is on the Commissioner to demonstrate, through substantial evidence, that one of the specific grounds for declination exists and that, therefore, the application must be declined. (b) The Commissioner may decline to contract when: (1) The services to be provided to the intended Indian beneficiaries of the particular program or function to be contracted will not be satisfactory. (1) It will be presumed by the Bureau that the program plan and budget set forth by the tribal organization provides a basis for the delivery of satisfactory services to the Indian people unless it can be demonstrated by the Bureau by substantial evidence that the program will yield results which will be deleterious to the welfare of the Indian people to be served. (11) The service to be provided shall be deemed satisfactory if the contract application indicates that the applicant has or will establish procedures to assure that services and assistance shall be provided to the Indians affected by the contract in a fair and uniform manner. Buch procedures include eligibility criteria for a tribal member to receive services; recordkeeping adequate to verify the fairness and uniformity of services in case of formal complaints; an adequate complaint procedure available to all Indians affected; and those rights the individual following will retain the complaint. (2) Adequate protection of trust resources is not assured. Criteria for determining if there is adequate protection of trust resources are given in § 401.34. (3) The proposed project or function to be contracted cannot be properly completed or maintained by the proposed contract. (c) In arriving at his finding, the Commissioner shall consider whether the tribal organization would be deficient in performance under the contract with respect to the factors listed in this paragraph. PROPOSED RULES (1) Equipment, buildings and facilities. No higher standards with regard to buildings, facilities, or equipment shall be applied to tribal organizations than have previously been applied to the Bureau. As provided in § 401.42, the Bureau shall make available the use of all equipment which has been allocated to the operation of the program by the Bureau in the past, unless the Bureau proves the provision of the equipment will seriously interfere with the Bureau's ability to provide services to Indian people in non-contracted programs. Where equip ment is shared by the programs to be contracted and other non-contracted programs, equipment-sharing or other suitable arrangements shall be stated in the contract. (2) Bookkeeping and accounting procedures. It must be clearly demonstrated by the Bureau that the tribal organization which will undertake the contract does not have or cannot set in place, using the contract funds, an accounting and bookkeeping system which will be adequate. (3) Substantive knowledge of the program to be contracted. (1) Where the tribal organization proposing to contract is the tribal governing body and the program or function to be contracted is a tribal governmental function, there shall be an absolute presumption that the tribal governing body has substantive knowledge of the program or function to be contracted. (11) Where the tribal organization proposing to contract is not the tribal governing body or the program or function to be contracted is not a tribal governmental function, the tribal organization shall be presumed to have substantive knowledge of the program to be contracted if the tribal organization meets one or more of the following conditions: (A) The tribal organization has adequately managed a similar program before through grant or contract. (B) The tribal organization which is to manage the project possesses by virtue of its knowledge and/or experience substantive knowledge of the program to be contracted. (C) The tribal organization has been a consumer of such services in the past and thus has developed an understanding of the issues involved with the program sufficient to enable it to effectively carry out the contract operation; and, the tribal organization can secure through the resources of the contract, Bureau staff or other resources, the training in the particular subject area which will develop its substantive knowledge of the program. (4) Lack of community support. Before the Bureau can enter into a contract there must be a request made in accordance with $401.18. The tribal governing body's resolution under 401.18 shall be presumed to demonstrate that there is not a lack of community support for the proposed contract. Unless it can be demonstrated by substantial evidence that there is a lack of community support for the contract and the lack of support will result in unsatisfactory services, inade 40985 quate protection of trust resources or impossibility of service maintenance, the tribal governing body's resolution shall be deemed conclusive. In any event, there will be no finding by the Bureau of a lack of community support that would result in deficiencies in performance under the contract until those asserting it have exhausted all their tribal remedies. (5) Adequacy of trained personnel. The adequacy of trained personnel available to the tribal organization to carry out the proposed contract will be presumed if any of the following conditions exist: (1) If the tribal organization has a personnel system that prescribes minimum qualification standards, occupational procedures for the selection of personnel on the basis of such standards, and the personnel to be used under the proposed contract are to be employed under the personnel system. (11) If there is no tribal personnel system, it will be assumed that the personnel to be employed under the proposed contract are adequately trained if the tribal organization has established position descriptions for key personnel to be employed under the contract and establishes a personnel system similar to the one described in paragraph (c)(5) (1) of this section. (6) Other necessary components of contract performance. (1) All other necessary components of contract performance will be deemed to be met unless a tribal organization: (A) Does not have an adequate personnel system that provides selection standards which insure equal access to all qualified tribal members; (B) Has not agreed to establish and maintain a property management system which will adequately account for and protect government property. (C) Has not agreed to keep such records as required pursuant to § 401.46, make reports required by 401.49, or to make such reports and information available to Indian clients as required by § 401.48. (D) Has not submitted a completed contract application. (11) All "other necessary components" have been specifically identified in this section. No other components shall be defined which may serve as a basis for declination unless they are added to these regulations by revision or amendment of the regulations. (d) Program plans and designs of tribal organizations for contract operation of Bureau programs or parts may be inconsistent with other Parts of this chapter if a waiver is obtained from the Commissioner. Inconsistencies between such plans and designs and Bureau manuals, guidelines or other procedures that are appropriate to programs or parts of programs operated by the Bureau are not grounds for declination. (e) Tribes may request a waiver from the Commissioner of regulations in this chapter as given in 1.2 of this chapter. (f) Bureau officials may not decline to enter into a contract with a tribal organization because of any objection that could be overcome through the contract. FEDERAL REGISTER, VOL 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 |