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1103430
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Self-Determination Act
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1103430
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Self-Determination Act
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Bradley H. Patterson Files (Ford Administration)
Bradley Patterson's Native American Programs Files
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1975-10-01
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The original documents are located in Box 5, folder "Self-Determination Act" of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library. Copyright Notice The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections. Works prepared by U.S. Government employees as part of their official duties are in the public domain. The copyrights to materials written by other individuals or organizations are presumed to remain with them. If you think any of the information displayed in the PDF is subject to a valid copyright claim, please contact the Gerald R. Ford Presidential Library. 51282 RULES AND REGULATIONS Title 25-Indians F. Part 406 is redesignated as Part 276. Based on two series of nationwide In- CHAPTER I-BUREAU OF INDIAN AF- Sections 406.1 through 406.16 are redes- dian and Alaska Native consultation ses- FAIRS, DEPARTMENT OF THE INTERIOR ignated as §§ 276.1 through 276.16. sions, the Bureau of Indian Affairs has G. Part 407 is redesignated as Part 277. SUBCHAPTER Y-INDIAN SELF-DETERMINATION attempted to spell out clearly the regu- AND EDUCATION ASSISTANCE ACT PROGRAMS Sections 407.1 through 407.53 are redes- latory requirements necessary to imple- ignated as §§ 277.1 through 277.53. CONTRACTS AND GRANTS UNDER INDIAN ment Pub. L 93-638. A concerted effort The purpose of the regulations is to SELF-DETERMINATION AND EDUCA- has been made to incorporate into the implement the Indian Self-Determina- TION ASSISTANCE ACT; EDUCATION regulations three principal perspectives: CONTRACTS UNDER JOHNSON- tion and Education Assistance Act. (Pub. The intent bLCongress and the President O'MALLEY ACT L. 93-638; 88 Stat. 2203). Part 271 (for- as reflected in the legislation; the con- merly Part 401) contains regulations tinuing Federal responsibility and trust Revocation, Redesignation and Issuance under which tribal organizations, upon relationships toward Indian tribes; and of Regulations the request of an Indian tribe, can con- the expressed wishes and desires of tribal OCTOBER 24, 1975. tract for the operation of all or parts of and Alaska Native leaders and members. authorized Bureau of Indian Affairs pro- This notice is published in the exer- The Bureau of Indian Affairs believes grams for the benefit of Indians and cise of rulemaking authority delegated that such a posture has been achieved Alaska Natives. Under Part 272 (for- by the Secretary of the Interior to the in these regulations. merly Part 402), tribal governing bodies Commissioner of Indian Affairs by 230 Public Law 93-638 is a significant piece may receive grants for strengthening DM 2. The authority to issue regulations of legislation for Indian and Alaska Na- tribal governments; planning, training, is vested in the Secretary of the Interior tive people. The implementing regula- evaluation, or other activities to improve by 5 U.S.C. 301 and sections 463 and 465 tions buttress the spirit and substance a tribe's capacity to contract; acquiring of the Revised Statutes (25 U.S.C. 2 and of this legislation by emphasizing the land for those purposes; and planning, following elements: The role of tribal 9). designing, monitoring. and evaluating and Alaska Native governments as the Beginning on page 40982 of the Sep- Federal programs serving the tribe or key decision-makers in the self-deter- tember 4, 1975, FEDERAL REGISTER (40 FR Alaska Native group. mination process; the expanded powers 40982), there was published a notice of Under Part 273 (formerly Part 403), a and responsibilities of Indian Education proposed rulemaking to amend Chapter State, school district, or Indian corpo- Committees in public school assistance I of Title 25 of the Code of Federal Reg- ration may contract for supplemental programs serving Indian and Alaska Na- ulations by revoking Part 33 under Sub- programs or operational support for tive-thildren; the recognition of the de- chapter E and by adding new Parts 401 education. The regulaitons in Part 273 sirability of tribally-controlled and op- through 407 under a new Subchapter Y. replace the regulations in Part 33 and erated schools as an alternative to Fed- The amendment was proposed under the reflect the changes made to the Johnson- authority in the Indian Self-Determina- eral and public learning systems; the O'Malley Act (the Act of April 16, 1934 availability of grants to strengthen tribal tion and Education Assistance Act (Pub. (48 Stat. 596), as amended by the Act and Alaska Native governments and to L 93-638; 88 Stat. 2203) of June 4, 1936 (49 Stat. 1458, 25 U.S.C. enhance their eventual capability to op- I. REDESIGNATION 452-456) by the Indian Self-Determina- erate a Bureau program under contract tion and Education Assistance Act (Pub. or to redesign a Bureau program for op- Parts 401 through 407 are being. re- L. 93-638; 88 Stat. 2203). Tribal organi- eration by the Bureau; and the use of designated upon the request of the Of- zations can contract for supplemental Federal personnel for expanding the hu- fice of the FEDERAL REGISTER because programs or operational support for edu- man resource base of tribal and Alaska these Parts were incorrectly numbered cation under Part 271 upon the request Native governing bodies. when published as proposed regulations. of an Indian tribe. An important feature of the legislation The Office of the Federal Register has Part 274 (formerly Part 404) con- is the change it makes in the contract assigned only Parts 1 through 299 to tains regulations under which tribal or- relationship by directing the Bureau to Chapter I of Title 25 of the Code of Fed- ganizations may receive contracts or contract a program to a tribal organiza- eral Regulations which can be issued by services for school construction for pre- tion upon the request of a tribe unless the Bureau of Indian Affairs. The Parts viously private schools that are con- the Bureau can make a finding to sup- beginning with 300 on up are assigned trolled or managed by an Indian tribe or port declination in accordance with cri- to other Chapters and other offices. Since tribal organization. teria set out in the Act. Unlike the or- the Bureau cannot use Part numbers 401 Part 275 (formerly Part 405) informs linary relationship between the govern- through 407, these Parts are redesignated the Indian tribes of ways in which they ment and a prospective contractor, un- as follows: can obtain the use of Government em- der this legislation the burden of proof A. Part 401 is redesignated as Part 271. ployees in operating all or parts of Bu- is on the Bureau to show that the con- Sections 401.1 through 401.26 are redes- reau of Indian Affairs programs under tract should not be entered into. Both ignated as §§ 271.1 through 271.26. A new contract the statute and the regulations stipulate, § 271.27 is added and $ 401.27 is redesig- -Part 276 (formerly Part 406) contains unless substantial evidence in support of nated as § 271.28. Remaining §§ 401.31 the administrative requirements for a specific declination criteria exists, the through 401.84 are redesignated as grants available under Part 272. These Bureau will enter into the proposed §§ 271.31 through 271.84. administrative requirements are basi- contract. B. Part 402 is redesignated as Part 272. cally the same as those in Federal Man- The public was given until October 4, Sections 402.1 through 402.55 are redes- agement Circular 74-7 which applies to 1975, to submit written comments, sug- ignated as §§ 272.1 through 272.55. the administration of grants with States gestions, or objections regarding the pro- C. Part 403 is redesignated as Part 273. and local governments. Federal Manage- posed amendment. All comments re- Sections 403.1 through 403.44 are redes- ment Circular 74-7 is being revised to ceived with respect to the proposed ignated as §§ 273.1 through 273.44. Sec- also apply to Indian tribes. amendment were given due considera- tion 403.45 is deleted. Sections 403.46 Under Part 277 (formerly Part 407), a tion. through 403.54 are redesignated as State education agency or school district II. CHANGES MADE DUE TO COMMENTS §§ 273.45 through 273.53. Remaining may contract for acquiring sites for, or RECEIVED §§ 403.61 through 403.73 are redesignated for constructing, acquiring, or renovat- as §§ 273.61 through 273.73. ing, school facilities needed for educating As a result of comments received, the D. Part 404 is redesignated as Part 274. Indians residing on an Indian reserva- following changes in the regulations are Sections 404.1 through 404.53 are redes- tion or other trust land. made in addition to language changes ignated as §§ 274.1 through 274.53. for clarification: The regulations have been developed E. Part 405 is redesignated as Part 275. in consultation with national, regional, A. PART 271: Sections 405.1 through 405.4 are redes- tribal, and Alaska Native organizations 1. The phrase "Revolving Funds for ignated as §§ 275.1 through 275.4. served by the Bureau of Indian Affairs. Loans; Indian Loan Guarantee and In- FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 Digitized from Box 5 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library RULES AND REGULATIONS 51283 surance Funds" is added to § 271.2(d) 19. Several changes are made in 34. Section 271.49(a) (3) is revised to to make it clear that programs and ac- § 271:20 to permit recontracting applica- permit a tribal organization- to submit tivities enumerated as line items in the tions to go directly to the Area Director, its report when, in a multi-tribal situa- Bureau's budget under those subactiv- to permit more time to consider such ap- tion, all of the tribes have not endorsed ities are considered a "business related plications and to make it clear that the report within a certain time. function". tribes may withdraw from multi-tribal 35. Section 271.54(a) is revised to 2. The definition of "Indian tribe" in contracts. clarify what is included in the Bureau's § 271.2(i) is changed to make clear the 20. An additional paragraph (b) is direct operational costs and that such involvement of the United States Gov- added to § 271.21 which requires applica- costs do not form a basis for reducing a ernment. tions for contracts to be submitted at tribal organization's allowable indirect 3. The definition of "previously private least 120 days in advance of the proposed costs. school" in $ 271.2(j) is revised to con- contract starting date when the pro- 36. Section 271.55(c) is revised to re- form to the definition in Part 273. posed contract may result in the dis- quire savings under a retroceded con- 4. In § 271.2(p), the phrase "tribal gov- placement of Bureau personnel, to give tract to be carried over to provide serv- erning body" is added for clarification. the Bureau sufficient time to comply with ices and benefits by the Bureau. 5. Section 271.2(q). is changed to appropriate Civil Service Commission 37. A new $ 271.56 is added to con- make it clear that the subactivity of requirements. form the regulations to the requirements "minerals, mining, irrigation, and 21. Section 271.22(e) (2) is revised to of the Privacy Act (5 U.S.C. 552a). power" is included in the definition of permit applicants to request additional 38. Section 271.65(c) is revised to pro- "Tribal governmental function." time to respond to the-Superintendent's 6. Section 271.2(r). is revised to make written recommendations to avoid pos- vide for the appeal under this section to it clear that intertribal organizations are sible declination. be sent to the Director, Office of Hear- considered "tribal" organizations." 22. Section 271.23(1 (1) is revised to ings and Appeals. 7. Section 271.2(s) is revised to clarify set a limit on the time the Bureau can 39. Section 271.72 is revised to per- what is a resource" take to negotiate a contract. mit. tribes that so desire to retrocede 8. Section 271.2(t) is revised to 23. Section 271.23(b) (2) is revised to from a multi-tribal contract, to delineate strengthen the definition of "trust re- make both the time and the place of the the conditions under which such retro- sponsibility." and limit the definition to meeting under that section at the mutual cession may occur, and to state the the purposes of the regulations. agreement of the parties. rights of both the retroceding and non- 9. Paragraphs (e) and (f) are added 24. Section 271.25(b) is revised to retroceding tribes. to $ 271.3 to insure consultation with clarify when, how and to whom recom- 40. Section 271.73 is revised to permit cognizant Indian organizations and give mendations are to be furnished. a tribal governing body to submit its tribal groups and opportunity to sug- 25. Section 271.25(d) (1) is revised to application to contract for a retroceded gest. changes annually or at their own set a time limitation on negotiating a program directly to the Area Director or initiative contract when an Area Director's rec- Commissioner, as appropriate. 10. An additional paragraph (h): is ommendation to decline is not accepted 41. Section 271.74 is revised to make it added to § 271.4 to make it clear that the by the Commissioner. clear that when reassumption of a pro- eligibility: criteria for services for in- 26. Former § 401.27 is redesignated as gram is contemplated because of viola- dividuals is: not changed by the regula- $ 271.28 and a new § 271.27 is added to tion of rights there must be a pattern or tions, but that there is a means by which provide a mechanism for the Commis- practice of such violation. eligibility criteria may be waived. sioner to extend technical assistance to 42. Section 271.74(b) and (c) are re- 11. Section 271.13 is changed to tribes in the event of declination. vised to emphasize a tribal organization's eliminate the need for an application 27. Section 271.32 is revised to more right to a hearing and decision and to form. clearly delineate what are considered provide for the Commissioner reviewing 12. An additional paragraph is contractable trust resources programs an Area Director's decision to reassume added to $ 271.14 which requires staffing or portions thereof. a contract before the reassumption can information to be given in the applica- 28. Paragraphs (a) and (e) (1) of $271.4F are revised to take into consid- take place. tion. eration modifications or supplements to 43. Section 271.75 is revised to require 13. An additional paragraph (b) (4) is added to 271.15 to make it clear that Chapter 2000 of the Treasury Fiscal Re- the Bureau to give a tribal organization applications. recontracts that are not quirements Manual that might occur an opportunity to present a plan to over- within the purview. of $271.1(a) may be and to permit letters of credit to be used come deficiencies in contract perform- declined when the advance payment requirement ance before action to cancel can be taken 14. Section: 27115(c) (4) is revised: to Is $120,000 rather than $250,000. and the right to have an Area Director's emphasize the positive effectiof a tribal 29. Section 271.42() is revised to make decision reviewed by the Commissioner it clear that when equipment is trans- before any proposed cancellation action governing body's resolution on the matter ferred to & contractor itmust meet cer- can occur. In addition, paragraph (h) of community support. tairr standards the time of transfer. (formerly $ 401.75(e)) is revised to 15. Section 271.15(c) (5)-(i) and 30. An additional paragraph (d) is clarify the funding level for a program $ 271.15(c) (i)?(A) are revised to per- mit an agreement to develop a personnel added to $ 271.44 to: make it clear that a under a contract cancelled for cause. tribal governing body establish its 44. Section 271.76(a) is revised to per- system rather than requiring the system to be in place: own Indian preference requirements to mit the Bureau to operate the program the extent. that such requirements are under a retroceded contract at either the 16. Sections 271:16(a) 271.20; 271.62, 271.82, 271.83 (a) and (b), and 271.84 not inconsistent with the intent of the level intended by, the contract or as oper- are revised to recognize any limitations regulations. ated previously by the Bureau. that a: tribal governing body might in- 31. Section 271.46 is revised to con- 45. Section 271.77(b) is revised to clude in its resolution requesting a form. to the requirements of the Federal make the position and ceiling reserve contract. Records Act and to require that records applicable only to those contracts ini- 17. A new paragraph. (b) (3) is added used or created under the contract are tially entered into on or after the effec- to $ 271.16 to permit Bureaue records to returned to the Bureau for proper tive date of the regulations. be physically located at the contract site disposition. 46. Section 271.81 (c): is revised to when copying such records is not prac- 32. Section 271.47(a) is revised to require the hearing official to issue a ticable or feasible due to their volume. make it clear that examination of rec- decision within 30 days of the hearing. 18. Paragraph (c) (2) (vii)- of & 271.18 ords are restricted to those that are 47. Section 271.83 (a) is changed to is expanded to emphasize the rights of contract-related. 33. Section 271.49(a) and (b) is re- provide for an appeal to the Director, the tribal governing body to set limita- tions. on. tribal organizations by vised to make reports, required there- Office of Hearings and Appeals, as. pro- resolution under, contract-related. vided in Subpart G of 43 CFR Dart 4. FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51284 RULES AND REGULATIONS B. PART 272 3 years" is substituted to establish a base students in programs contracted under 1. The definition of "tribal govern- age. The term "except those who are en- Part 273. ment", "tribal governing body", and rolled in Bureau or sectarian operated 18. Section 273.35 is completely revised "tribal council" is added as paragraph schools" is added after "grade(s) 12" to to provide for meeting the full costs of (q) of § 272.2. Existing paragraphs (q) denote that these educational facilities peripheral dormitory students attend- and (r) of former § 402.2 are redesig- are not included as eligible applicants. ing local public schools. nated as paragraphs (r) and (s) of 7. Section 273.13(b) (1) (iv) is cor- 19. Additions are made to $ 273.38 to § 272.2. This change is made for consis- rected to read "70%" instead of "75%," assure equal treatment of Indian chil- tency with Part 271. due to a misprint. Also, the last sentence dren. The additions are at the end of the 2. The definitions of "Indian tribe," of this paragraph, referring to the 51% first sentence and at the end of the sec- "resolution," "trust resources," and eligible Indian enrollment, is deleted as tion. "trust responsibilities" given in para- the Commissioner has the delegated au- 20. A new phrase is added at the end graphs (j), (1), (r), and (s) of 272.2 thority to waive any part(s) of these of § 273.44(a) and in § 273.44(b) after are revised to be consistent with the regulations. the word "may" to emphasize the role of definitions in Part 271. 8. A change is made to § 273.13(b) (1) tribal governing bodies on their reserva- 3. Comments were received pertain- by adding (v), (vi) and (vii) to tions. ing to the need for more specific proce- strengthen the basis for contractor ac- 21. Former § 403.45 on wage and labor dures in § 272.4 which provides for re- countability. standards is deleted as not being appli- vising or amending the regulations in 9. Sections 273.15(a), 273.16(c) and cable to contracts under this part. Part 272. As a result, new paragraphs 273.17(d) are deleted. The deleted para- 22. A new paragraph (d) is added to (e) and (f) are added to this section to graphs related to the matter of estab- § 273.45 on Indian preference to con- provide for more extensive and far- lishing Indian Education Committees form to 25 CFR 271.44. reaching consultation with tribes and where majority Indian school boards al- 23. Section 273.47 is revised to refer to Indian organizations in this regard. ready exist. Since the Act was silent on- Federal Records Act requirements. 4. Comments expressing concern about this issue, i.e. it neither required nor pro- 24. The term "and to the tribe(s) is potential but unintentional limitations hibited an Indian Education Committee added in § 273.50(c) after the phrase on the use of grants were received. Ac- where a majority Indian school board "Indian Education Committee(s)" to cordingly, language changes are made in already existed, the Bureau is not in- assure tribal notification. paragraphs (a), (b), and (d) of § 272.12 cluding this element in the regulations. 25. A new § 273.54 is added to include providing "sight examples" rather than Majority Indian school boards may make the Privacy Act requirements in the reg- using phrases such as "this includes but provisions for such parental involvement. ulations. is not limited to". 10. Section 273.16(a) (4) is changed by D. PART 274: 5. Many comments received expressed inserting "Commissioner through the" concern about § 272.15(b) (2) and (3). before the word "appropriate" and by in- 1. The definition of "average daily The major concern in this regard was serting "or suspension" after the word membership" in former § 404.3(a) is de- "cancellation." This change is made to leted as the term is not used in the text. the $20,000 maximum limitation on int- permit suspension of a program as an Subsequent paragraphs in the section tial planning grants to be used to develop alternative to cancellation under certain are redesignated. larger grant applications. Accordingly, circumstances. 2. The definitions of "Indian tribe" and language is added to clarify the source of funds for these initial planning 11. Section 273.18(j), which requires "tribal organization" in paragraphs (j) that the education plan list special pro- and (r) of § 274.3 are revised to be con- grants. Also, it should be noted that this $20,000 limitation does not apply to the grams which are or will be operated and sistent with the definitions in Part 271: which gives examples of such-programs, 3. A definition of "tribal government," final grant application itself but rather is deleted and will be considered for in- "tribal governing body," and "tribal to the cost of developing such an appli- cation. Another change is that the ap- clusion in the program guidelines to be council" is added as $ 274.3(q) to con- proving officer shall take action on an developed. Subsequent paragraphs are form to the definition in Part 271. redesignated. 4. The definition in $ 274.3(n) for "pre- initial planning grant application within 12. Section 273.18(g), which requires viously private school" is changed by de- 30 days instead of "with a minimum of certain written information be provided leting the phrase "early childhood" and delay." as part of the education plan, is revised substituting "age 3 years" to establish C. PART 273: to clarify the material that is to be pro- a specific base age that is less ambiguous 1. The definitions of "Indian tribe" vided as part of the plan. than the deleted term. Also deleted from this section is the last sentence to clar- and "tribal organization" in paragraphs 13. The term "February 1" is substi- ify that such schools could be other than (g) and (v) of § 273.2 are revised to be tuted in § 273.21 in place of "January 15" former sectarian facilities. consistent with the definitions in Part to give consideration for election to 5. New paragraphs (d) and (e) are 271. Pueblo Councils. The same change is added to § 274.5 to conform to 25 CFR 2. The definition for "previously pri- made in §§ 273.25(b) and 273.28(b) 271.3. vate school" in § 273.2(n) is changed by 14. Section 273.24(b) is amended by 6. Section 274.11(b) is changed by add- deleting the phrase "early childhood" deleting the word "promptly" and insert- ing new language for this paragraph as and substituting "age 3 years" to estab- ing the phrase "within 20 days" after the a condition of eligibility so Federal lish a specific base age that is less am- word "request" to specify the response monies for construction are used only biguous than the deleted term. Also time allowed. for facilities on tribal or government deleted from this section is the last sen- 15. In § 273.25(a), the phrase "and any land. The term "early childhood" is also tence to clarify that such schools could additional information requested in deleted in § 274.11(c) for consistency be other than former sectarian facilities. § 273.24(b)" is inserted in place of the with § 274.3(n). 3. The definition of "reservation" in phrase "except as given in paragraph (b) 7. The term "No later than" is inserted § 273.2(o) is revised to give statutory of this section." This change is made to to begin the sentence in $ 274.22(a) to reference for Alaska Native regions and clarify the change made in § 273.24(b). provide flexibility of operations. to delete the restrictive words "public The same change is made to $ 273.28(a). 8. Section 274.34 is revised to assure domain." 16. Section 273.31 is completely revised compliance and that funds are used for 4. A definition of "tribal government," to establish a policy for gradual phase- the purpose of the Act. "tribal governing body," and "tribal out of operational support and add a 9. A new phrase is added at the end of council" is added as § 273.2(u) to con- hold-harmless provision for supplemental § 274.36(a) and in § 274.36(b) after the form to the definitions in Part 271. assistance. word "may" to emphasize the role of 5. Paragraphs (d) and (e) are added 17. The last sentence of $ 273.32 is tribal governing bodies on their reserva- to § 273.3 to conform to 25 CFR 271.3. added to provide some flexibility for tions. 6. The term "early childhood" is also Indian Education Committees to approve -10. A new paragraph (d) (4) is added deleted in § 273.12 and the phrase "age de minimus participation by non-eligible to § 274.36 to allow records to be physi- FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS: 51285 cally located at the contract site where vised to conform to the same definition tribal governing body does not request copying is not practical or feasible be- in Part 271. a contract. Although the Bureau recog- cause a large volume is involved. 5. A definition of "tribal government," nizes that other contracting authorities 11. A new paragraph (d) is added to "tribal governing body," and "tribal are available to it, it does not believe § 274.38 on Indian preference to conform council" is added as § 277.3(o) to conform that the mandate of the Act would be to 25 CFR 271.44. to the definition in Part 271. served if it contracts for Bureau pro- 6. New paragraphs (d) and (e) are grams under these other authorities be- E. PART 275: added to § 277.4 to conform to 25 CFR cause the tribal governing body involved 1. The definition of "tribal govern- 271.3. does not request the contract under the ment" and "tribal council" in paragraph 7. Section 274.11(a) is amended by regulations promulgated to implement (j) of § 275.2 is changed to include "tri- deleting the term "State education the Act. bal governing body" to comply with the agency or" and that portion of the sen- 3. Comments were received that were definition in Part 271. tence after the word "Indians." These critical of the Bureau's restricting con- 2. The definitions of "Indian tribe' changes-are in conformity with the cur- tracting under the Act to non-profit cost and "tribal organization" in paragraphs rent regulations for Pub. L. 81-815 issued reimbursable contracts. The Bureau be- (f) and (k) are revised to be, consistent by the Department of Health, Education, lieves that the requirements found in with the definitions in Part 271 and Welfare section 106 of the Act concerning the 3. In § 275.3(a)(1) (formerly $405.3 8. In 277.12(a), the term Indian amount of funds to be provided under a (a)), the word "shall" is changed to Education Committee" is substituted for contract and how savings under a con- "may" in the second sentence to make the term 'public school officials", as tract can be utilized, can best be served it clear that the agreement is optional stated in the Act. Further, in 277.12 through non-profit cost reimbursable and not required. (c), the term "and the Indian Education contracts. 4. The paragraphs in $ 275.3 are re- Committee". is inserted after the word 4. One commentator objected to the designated because the requirements in "officials" to maintain consistency with Bureau's perception of the role of the paragraph (c) (4) relate to more than paragraph (a) of that section. tribal governing body in the contracting agreements under the 1834 Act. 9. The word "Regional" is deleted in process and felt the role of the Indian 5. Section 275.3(b) (formerly § 405.3 $ 277.13(a) in consultation with the De- people and community was being sub- (c) (4) is revised to clarify that the partment of Health, Education, and Wel- verted thereby, citing the language in contracts referred to are contracts under fare as is the phrase in (277.13(b) (1) section 102 of the Act whereby requests Part 271 and that the application must (1) after the word "purposes" for contracts must be submitted by In- be submitted, instead of notifying the 10. Deletions are made in § 277.22(e) dian tribes in support of this contention. Area Director, at least 120 days in ad- The term "local education agency" is The Bureau does not agree with this vance. substituted for the phrase "tribe to ob- analysis and feels that the Act clearly PART 276: tain its approval". Also deleted is the mandates the role of the tribal governing 1. The definitions of Indian tribe" phrase after the word "adequacy". These body in the contracting process. and "tribal organization" in paragraphs changes are in conformity with Pub. L. 5. One commentator observed that in (i) and (r) of § 276.2 are revised. to be 81-815 regulations issued by the Depart- certain States only Certified Public Ac- consistent with the definitions in Part ment of Health, Education, and Welfare. countants can be licensed under State 271. The definition of letter of credit" 11. Section 277.24 is revised to assure law and suggested that provision be in paragraph this section is re compliance and that funds are used for made in the regulations for the certifi- vised to reflects memorandum of un- the purposes of the Act. cation of accountants in such States un- 12. A new phrase is added at the end derstanding between the Departments der rules and regulations that would be of $ 277.26(a) and in -§ 277.26(b) after of Interior and Treasury developed by the Secretary. The Bureau the word "may" to emphasize the role of 2. A definition of "tribal government," does not believe that such action would. tribal governing bodies on their reserva- "tribal governing body;" and "tribal be feasible or practical and, therefore. tions council" is added as 276.2(q) to con- has taken no action on this comment. 13. A new paragraph (d) is added to form to the definition in Part 271. 6. One commentator felt that the ret- $ 277.28 on Indian preference to conform 3. A new paragraph (c) is added to rocession procedure of the regulations, to 25 CFR 271.44. 276.13 to further clarify Indian prefer as they relate to a tribal governing body's 14. The last sentence of § 277.31(e) is ence procedures. right to request retrocession of a con- deleted and new language inserted upon 4. Section 276 revised by adding tract when the contractor is not the trib- the:advice of the Department of Health, procedures for grant rescission as recom- al governing body, violates the contrac- Education, and Welfare regarding pub- mended by the Library of Congress tor's right to due process. The Bureau be- lic school policies. lieves that the tribe that requests a con- 277: III CHANGES Nor ADOPTED tract also has the right to request retro- 1. The lastssentence of $ 277.2(b) is Certain other comments have been cession of the contract and that the pro- amended to clarify-the language. In ad- carefully considered but have not been cedures set forth in the regulations con- dition, the phrase "designated by the accepted. The following suggestions were cerning the tribal organization's rights Commissioner" is inserted after "officer" not adopted for the reasons given: in this situation do not violate due to denote that authority for construc- process. tion contracts for school facilities will A. PART 271 7. Several commentators suggested not be delegated to Bureau of Indian Af- Various comments were received re- that the regulations should provide for fairs Area Directors but will remain garding the definition of "Indian," "In- the payment of a tribal. organization's vested in the Commissioner. dian tribe." "tribal organization" and legal expenses when a hearing or appeal 2. The definition of "arerage daily 'trust responsibility". Although the defi- is involved. The Bureau feels that these membership" in former $ 407.3(a) is de- finitions contained in the regulations may suggestions were well made, but does not leted as the term does not appear in the not resolve each commentator's concern, believe it is authorized to provide for text. Subsequent paragraphs in the sec- it is felt that the definitions are consist- such payments. tion are redesignated ent with the Act and generally in con- 8. Several commentators took excep- 3. The definitions in $ 407.3 (h), (k) formity with what was expressed during tion to the requirement for contractors and (1) are deleted as they presently the consultation sessions required by the to make a monthly report regarding the appear in the Pub. L 81-815 regulations Act. contract to the members of the tribe(s) issued by the Department of Health, Education, and Welfare and are not re- 2. Two commentators expressed the being served under the contract. The Bureau believes that the people receiving quired here. opinion that tribal organizations should contract services should receive this in- 4. The definition of "Indian tribe" in be allowed to contract for Bureau pro- formation on a regular basis without § 277.3(g) (formerly 407.3(j)) is re- grams under other authorities when the having to make a specific request for it. FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51286 RULES AND REGULATIONS 9. Some concern was expressed over erational support taken off the top will Health Service, Department of Health, the regulations dealing with appeals. The be phased-out, as stated in § 273.31, over Education and Welfare, to implement Bureau is giving this matter further con- a three year period. The allocation of Pub. L. 93-638 be the same. Since the sideration and will utilize the comments funds for supplementary programs or early planning stages of the regulations, submitted in its consideration. operational support will be determined Bureau of Indian Affairs and Indian 10. Several commentators expressed so as to assure an equitable distribution Health Service staffs have consulted con- the opinion that the equal opportunity for eligible Indian students with the pro- tinually on making both sets of regula- provisions of the regulations were not viso that each State in FY 1977 will re- tions as consistent as possible. We will not applicable to Indian tribes in view ceive no less than 75 percent of its FY work further with the Indian Health of Title VII-of the Civil Rights Act. The 1975 supplementary program assistance. Service and other Department of Health, Bureau does not believe that the argu- 4. Some commentators raised issues- Education and Welfare representatives ments submitted in support of this posi- regarding the internal operation of tribal on possible revisions and amendments to tion are so clear as to require a change governing bodies relating to such matters the regulations to achieve greater uni- in the regulations at this time. Counsel as Indian preference, the Indian Educa- formity and consistency. No amendments has, however, been sought and the results tion Committee, etc. The Bureau of In- will be made without appropriate Indian will be considered when received. dian Affairs takes the position that these consultation or which would detract B. PART 272: issues fall within the purview of the gov- from the legislative intent or statutory erning bodies of tribes to be resolved in provisions of the Act. 1. Many comments pertained to "tribal their dealings with their constituents. Accordingly, Chapter I of Title 25 of organizations" and recommended that "tribal organizations" be permitted to D. PART 274: the Code of Federal Regulations is apply for or request grants on the same amended by revoking Part 33 under Sub- 1. Several comments were received re- basis as tribal governing bodies as per chapter E and by adding new Parts 271 garding the requirement of vesting land §§ 272.11 and 272.16. The Bureau's posi- through 277 under a new Subchapter Y title in the tribe or in the United States as set forth below. tion in this regard is that a tribal gov- in order to qualify for construction erning body should be the prime grantee monies. The Bureau of Indian Affairs de- IV. EFFECT ON OTHER DOCUMENTS with all of the authority and respon- clares this requirement is a policy de- A. On the effective date of these regu- sibility this designation infers. In effect, cision to protect the integrity and ex- lations, the tribal contracting guidelines the Bureau believes that "tribal orga- penditure of Federal funds. published beginning on page 6377 of the nizations" should not have equal status 2. Some commentators raised ques- February 11, 1975, FEDERAL REGISTER (40 with tribal governing bodies in this grant tions related to the minimum or pro- FR 6377) are hereby revoked. These program and that the regulations as jected enrollment figure of 25 pupils in guidelines are no longer needed since all written reaffirm the basic authority and elementary grades. The Bureau believes contracting with tribal organizations for responsibility of tribal governing bodies an enrollment figure lower than this the operation of.all parts of Bureau pro- for tribal business affairs. Tribal govern- number would not prove economically grams will be done in accordance with ing bodies may, of course, subgrant or feasible in construction. 25 CFR Part 271 and 41 CFR Part 14H- subcontract with tribal organizations as 70. per § 272.26. E. PART 275: B. On the effective date of these regu- 2. Other comments recommended that There were no major suggestions re- lations, the All Purpose Tribal Contract authority for the approval, execution ceived regarding Part 275 which were not issued by memorandum dated May 7, and administration of grants be ex- adopted. 1974, is hereby revoked. tended to the Agency or Superintendent F. PART 276: C. Part 20 of the Bureau of Indian level. The Bureau agrees that input at the Affairs Manual on Indian involvement the Agency or Superintendent level is 1. Some comments were received which programs will be revoked by a release and has provided for this input in § 272.- pertained to Part 276, Uniform Admin- memorandum to be issued in the near 15 and § 272.18. However, the Bureau istrative Requirements for Grants. With future. The revocation will be made has determined that it is administra- the exception of changes to §§ 276.13 and effective on the effective date of these tively and technically difficult for any 276.15, no significant changes were made regulations. given Agency or Superintendent to as- in Part 276. This is because the stand- sume these responsibilities and that the ards and requirements contained in Part D. Except for Part 14H-70, Chapter 276, including Appendices A and B, con- 14H of. Title 41 of the Code of Federal Area or Commissioner levels are better form with Federal Management Circular Regulations which contains the Bureau equipped by virtue of available staff and technical expertise to function in this re- 74-7 "Uniform administrative require- of Indian Affairs procurement regula- gard. Also, this is consistent with the ments for grants-in-aid to State and tions will be revised as-soon as possible approval, execution and administration local governments". These administra- after the effective date of the regulations procedures prescribed in Part 271 on tive standards and requirements are in 25 CFR Parts 271 through 277. contracts. minimal and are in use government- Effective date. The revocation of Part wide, including grant programs provided 33 and the addition of Parts 271 through C. PART 273 to Indians by other Federal agencies. 277 shall become effective on December 1. Several respondents objected to the 4, 1975. G. PART 277: inclusion of "previously private schools" MORRIS THOMPSON, as participants under this Part. The 1. Several comments were received re- Commissioner of Indian Affairs. Bureau of Indian Affairs does not agree garding language directly affecting SUBCHAPTER Y-INDIAN SELF-DETERMINATION with these respondents as the Act re- either Pub. L. 81-815 or its regulations. AND EDUCATION ASSISTANCE ACT PROGRAMS quires that such schools be included, as The Bureau of Indian Affairs takes the PART 271-CONTRACTS UNDER INDIAN stated in Title II, Section 208. position that the regulations for Pub. L. SELF-DETERMINATION ACT 2. Various comments were also re- 93-638 affecting public school construc- celved regarding the composition, scope tion, i.e. Part 277, in no way modify the Subpart A-General Provisions Sec. of duties, powers, and responsibilities of procedures, criteria, and regulatory 271.1 Purpose and scope. the Indian Education Committee. The mechanisms inherent in Pub. L. 81-815 271.2 Definitions. Bureau takes the position that the pres- as administered by the Department of 271.3 Revision or amendment of regula- Health, Education and Welfare. tions. ent regulations reflect the legislative in- 271.4 Statement of policy. tent and statutory provisions of the Act H. GENERAL COMMENTS APPLYING TO ALL Subpart B-Application Process relative to this Committee. PARTS: 271.11 Eligible applicants. 3. Suggestions were made to alter, in 1. Several comments were received 271.12 Contractable functions or programs. one form or another, the allocation and suggesting that the regulations issued by 271.13 Application information. distribution of funds under this Part. 271.14 the Bureau of Indian Affairs, Depart- Content of application. 271.15 The Bureau takes the position that op- Criteria for declining to contract. ment of Interior, and by the Indian 271.16 Access to Bureau records. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51287 Sec. Subpart A-General Provisions Funds; and also programs or parts of 271.17 Pre-application technical assistance. 271.18 Tribal request for initial contracts. § 271.1 Purpose and scope. programs connected with construction 271.19 Status of contracts in effect before projects but exclusive of the actual con- (a) The purpose of the regulations in effective date of regulations struction of the project. this Part is to give the application and 271.20 Recontracting. (e) "Commissioner" means the Com- 271.21 Submission of requests to contract. approval process for non-profit contracts missioner of Indian Affairs. 271.22 Review and action by Superintend- with the Bureau under section 102 of (f) "Days" means calendar days. ent. Title I of the Indian Self-Determination (g) "Economic enterprise" means any 271.23 Review and action by Area Director. and Education Assistance Act (Public commercial, industrial, agricultural, or 271.24 Area Office recommendation to de- Law 93-638, 88 Stat. 2203). Title I is business activity that is at least 51 per- cline. known as the Indian Self-Determination cent Indian owned, established or or- 271.25 Review and action by Commissioner. Act. Contracts under the Act include 271.26 Appeal of Commissioner's decision to ganized for the purpose of profit. "tribal governmental functions" as de- decline. (h) "Indian tribe" means any Indian 271.27 Technical assistance after declina- fined in § 271.2(q), "business related Tribe, Band, Nation, Rancheria, Pueblo, tion. functions" as defined in § 271.2(d), and Colony or Community, including any 271.28 Failure of Bureau Agency or Area Of- certain contractable trust resources pro- Alaska Native village or regional or vil- fice officials to act. grams or parts of programs as set forth lage corporation as defined in or estab- Subpart C-Additional Requirements for Trust in § 271.32. The nature of contracts with lished pursuant to the Alaska Native Responsibilities Indian entities which do not fall within Claims Settlement Act (85 Stat. 688) 271.31 Applicability. the purview of the Act, including con- which is federally recognized as eligible 271.32 Contractable functions or programs. tracts which may provide for profit, and by the United States Government 271.33 Content of application. the conditions for entering into such con- through the Secretary for the special 271.34 Criteria for declining to contract. tracts, are set forth in the regulations programs and services provided by the Subpart D-General Contract Requirements implementing the Act of June 25, 1910 Secretary to Indians because of their (36 Stat. 861, 25 U.S.C. 47), commonly status as Indians. 271.41 Advance payments. 271.42 Use of government property referred to as the "Buy Indian" Act. (i) "Indian" means a person who is 271.43 Wage and labor standards. (b) Section 104 of Title I of the Act a member of an Indian tribe. 271.44 Indian preference. provides authority for making grants for (j) "Previously private school" means 271.45 Liability and motor vehicle in- certain purposes. It is the Bureau's pol- a school (other than a Federal school surance. icy to make grants for the purpose spec- formerly operated by the Bureau) that 271.46 Recordkeeping. ified in Section 104 of the Act in lieu of is operated primarily for Indian stu- 271.47 Records-access to and retention. contracts. Part 272 of this chapter gives 271.48 Freedom of information. dents in any grade or grades from age 3 the procedures and requirements for ob- 271.49 Annual reporting years through grade(s) 12; and. which 271.50 Penalties. taining grants under section 104 of the at the time of application is controlled, 271.51 Federal contracting laws and regula- Act. and sanctioned or chartered by the gov- tions. (c) Nothing in these regulations shall erning body(s) of. an Indian tribe(s). 271.52 Term of contract. be construed as: (k) "Recontracting" means the enter- 271.53 Performing personal services (1) Affecting, modifying, diminishing, ing into a contract with a tribal organi- 271.54 Contract funds. or otherwise impairing the sovereign zation which holds a contract for the 271.55 Savings under contract. immunity from suit enjoyed by an In- 271.56 Privacy Act requirements, same program. dian tribe; (1) "Resolution" means the formal Subpart E-Contract Revision or Amendment (2) Authorizing or requiring the ter- manner in which the tribal government Sec. mination of any-trust responsibility of expresses its legislative will in accord- 271.61 Requesting revision or amendment. the United States with respect to the ance with its organic documents. In the 271.62 Review and-action by contracting Indian people; or absence of such organic document, a officer (3) Permitting significant reduction 271.63 Contracting officer's recommenda- written expression adopted pursuant to in services to Indian people as a result tion to decline. tribal practices will be acceptable. of this Part. 271.64 Review and action by Area Director (m) "Secretary" means the Secretary or Commissioner. (d) Nothing in these regulations shall of the Interior. 271.65 Appeal of Area Director's or Com- be construed to mandate a tribe to apply (n) "Superintendent" means the offi- missioner's decision to decline. for a contract or contracts with the Bu- cial in charge of a Bureau of Indian Af- 271.66 Revisions or amendments proposed reau to plan, conduct, and administer fairs Agency Office. by Bureau. all or parts of any Bureau program. Such (o) "Tribal Chairman" means tribal Subpart F-Retrocession and Reassumption applications under these regulations are chairman, governor, chief or other per- 271.71 Retrocession strictly voluntary son recognized by the tribal government 271.72 Full retrocession procedures. § 271.2 Definitions. as its chief executive officer. 271.73 Tribal assumption of retroceded con- (p) "Tribal government, "tribal gov- tracts. As used in this part: (a) "Act" means erning body" and tribal council" means 271.74 Reassumption. the Indian Self-Determination and Edu- the recognized governing body of an In- 271.75 Cancellation for cause. cation Assistance Act (Public Law 93- dian tribe. 271.76 Bureau operation of retroceded and 638, 88 Stat. 2203) reassumed contracts. (q) "Tribal governmental function" (b) "Area Director" means the official 271.77 Authorized position and end-of-year means all programs authorized to be ad- in charge of a Bureau of Indian Affairs employment ceiling reserve for Bu- ministered by the Bureau for the benefit Area Office. reau operation of retroceded, reas- of Indians enumerated as line items in sumed or cancelled contracts. (c) "Bureau" means the Bureau of the Bureau's annual budget requests un- Indian Affairs. der the Activities of Education and In- Subpart G-Hearings and Appeals (d) "Business related function" means dian Services, the Subactivities of Di- 271.81 Hearings all programs authorized to be adminis- rect Employment and Road Mainte- 271.82 Appeals from decision or action by tered by the Bureau for the benefit of nance, and those programs related to Area Director. Indians enumerated as line items in the Irrigation and Power Operation and 271.83 Appeals from decision or action by Bureau's annual budget request under Maintenance identified as a part of the Commissioner. Tribal Resources Development as the subactivity minerals, mining, irrigation 271.84 Appeals from Bureau decision to can- Sub-activities of Business Enterprise De- and power under the Activity of Tribal cel contract for cause. velopment, Credit and Indian Action Resources Development. AUTHORITY: Sec. 102, Public Law 98-638, 88 Teams; Revolving Funds for Loans; In- (r) "Tribal organization" means the Stat. 2203, unless otherwise noted. dian Loan Guaranty and Insurance recognized governing body of any In- FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51288 RULES AND REGULATIONS dian tribe; or any legally established or- dian. people for self-determination by ganization of Indians or tribes which is (h) The regulations in this Part are assuring maximum Indian participation controlled, sanctioned, or chartered by in the direction of educational as well as not meant to and do not change the such governing body or bodies or which is eligibility criteria which individuals must other Federal services to Indian com- democratically elected by the adult meet to be eligible any program cur- munities so as to render such services members of the Indian community to be rently operated by the Bureau. The eligi- more responsive to the needs and desires served by such organization and which of those communities. bility criteria for each Bureau program includes the maximum participation of (b) The Congress has declared its is given in the Part of Chapter I, Title Indians in all phases of its activities; 25 of the Code of Federal Regulations commitment to the maintenance of the Provided, That a request for a contract which deals with that program. A con- Federal Government's unique and con- must be made by the tribe that will re- tractor shall use the existing Bureau tinuing relationship with and responsi- ceive services under the contract: Pro- bilities to the Indian people through the eligibility criteria in operating all or vided further, That in any case where a parts of a Bureau program under a con- establishment of a meaningful Indian contract is let to an organization to per- tract under this part unless a waiver is self-determination policy which will per- form services benefiting more than one obtained from the Commissioner. The mit an orderly transition from Federal Indian tribe, the approval of each such domination of programs for and services Commissioner may not waive eligibility Indian tribe shall be a prerequisite to the criteria established by statute. The Com- to Indians to effective and meaningful letting of such contract missioner may waive eligibility criteria participation by the Indian people in the (s) "Trust resources" means natural planning, conduct, and administration established by regulation in Chapter I, resources, land, water, minerals, funds of those programs and services. Title 25 of the Code of Federal Regu- lations. or property, asset, or claim, including (c) It is the policy of the Bureau to any intangible right or interest on any facilitate the efforts of Indian tribes to Subpart B-Application Process of the foregoing, which is held by the plan, conduct, and administer programs, United States in trust for any Indian § 271.11 Eligible applicants. or portions thereof, which the Bureau is tribe or any Indian individual or which authorized to administer for the benefit Any tribal organization is eligible to is held by any Indian tribe or Indian in- of Indians and to facilitate the coordina- apply for a contract or contracts with dividual subject to a restriction on alien- tion of all Federal and other programs the Bureau to plan, conduct, and admin- ation imposed by the United States. on Indian reservations. ister all or parts of Bureau programs (t) "Trust responsibility" means, for (d) It is the policy of the Bureau to under section 102 of the Act. However, the purposes of this part only, the re- continually encourage Indian tribes to before the Bureau can enter into a con- tect, manage. develop and approve au- become increasingly knowledgeable tract with a tribal organization, it must thorized transfers of interests in trust about Bureau programs and the oppor- be requested to do so by the Indian tribe resources held by Indian tribes and In- tunities Indian tribes have regarding or tribes to be served by the contract in dian individuals to a standard of the them; however, it is the policy of the accordance with § 271.18. highest degree of fiduciary responsibility. Bureau to leave to Indian tribes the ini- § 271.12 Contractable Bureau pro- & 271.3 Revision or amendment of tiative in making requests for contracts grams. regulations. and to regard self-determination as in- In order to make any substantive re- cluding the decision of an Indian tribe Tribal organizations are entitled to visions or amendments to the regulations not to request contracts. contract with the Bureau to plan, con- duct, and administer all or parts of any in this Part, the Secretary shall take the (e) It is the policy of the Bureau not program which the Bureau is authorized following actions: to impose sanctions on Indian tribes to administer for the benefit of Indians. (a) Consult with Indian tribes and with regard to contracting or not con- All or parts of any program include: national and regional Indian organiza- tracting; however, the special resources made available to facilitate the efforts (a) Any part of a Bureau program tions to the extent practicable about the need for revision or amendment and con- of those Indian tribes which do wish to which is divisible from the remainder of sider their views in preparing the pro- contract should be made known to all the program so long as the contract does posed revision or amendment tribes, as should the current realities of not significantly reduce benefits to (b) Present the proposed revision or funding and Federal personnel limi- Indians served by the non-contracted tations. part(s) of the program. However, to the amendment to the Committees on In- extent that it is within the Bureau's terior and Insular Affairs of the United (f) Contracting is one of several existing authority and the program OF States Senate and House of Representa- mechanisms by which Indian tribes can part thereof involves only one tribe and tives. exercise their right to plan, conduct, one Bureau Agency or Area Office, the (c) Publish the proposed revisions or and administer programs or portions benefits provided to Indians by the non- amendments in the Federal Register as thereof which the Secretary is author- ized to administer for the benefit of contracted part(s) of the program may proposed rulemaking to provide adequate be reduced at the request of the tribe. Indians Another mechanism afforded notice to, and receive comments from, all When the program or part thereof interested parties. Indian tribes is the use of a grant, as serves more than one tribe, the benefits provided in Part 272 of this chapter, or (d) After consideration of all com- provided by the non-contracted part(s) other resources, to plan the manner in ments received, publish the regulations of the program may be reduced when all which It wishes the Bureau to operate a in the FEDERAL REGISTER in final form of the tribes served consent to a reduc- program or portion thereof tion. not less than 30 days before the date they are made effective (g) Contracting by its very nature (b) A single employee position only places Bureau officials in the dual posi- (e) Annually consult with Indian when the functions to be performed pro- tion of assisting Indian tribes, in many tribes and national and regional Indian vide a direct service to Indians and instances, by furnishing technical assist- organizations about the need for revision meets the criteria in paragraph (a) of ance in preparation of contract propo- this section. or amendment, and consider their views sals, and of carrying out their fiscal and in preparing the revision or amendment. administrative responsibilities as officials (c) Programs or parts of programs or (f) Nothing in this section shall of the Federal Government It is recog- services that are authorized but not cur- preclude Indian tribes or national or nized that very often these two posi- rently operated or provided by the Bureau. regional Indian organizations from initi- tions are in opposition to each other. ating request for revisions or amend- The Act and these regulations are de- (d) Operation of, or services provided ments subject to paragraphs (a), (b), signed to address this problém to the by, previously private schools. (c) and (d) of this section. degree practicable. The Commissioner, (e) All of the foregoing paragraphs of § 271.4 Statement of policy. Area Directors and Superintendents, as this section apply to trust resources pro- line officers of the Bureau, are expected grams or portions thereof. Additional (a) The Congress has recognized the to balance these two positions within the criteria for contractable trust resources obligation of the United States to re- framework of the regulations in this spond to the strong expression of the In programs, or portions thereof, are given Part in 271.32. FEDERAL REGISTER, VOL. 40, NO. 213-JUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS § 271.13 Application information. organization may submit a written agree- performance under the contract with re- ment to establish a bookkeeping and ac- spect to the factors listed in this para- Application instructions and related counting system that meets the standards graph. materials may be obtained from Super- of Appendix B of Part 276 of this chapter (1) Equipment, buildings and facil- intendents, Area Directors, and the and to have the bookkeeping and ac-- ities. No higher standards with regard Commissioner. counting system certified before the Bu- to buildings, facilities, or equipment shall § 271.14 Contents of contract applica- reau disburses any funds under a contract be applied to tribal organizations than awarded as a result of the application. have previously been applied to the Bu- tion. When a certification has been submitted reau. As provided in § 271.42, the Bureau Application for a contract under this in connection with a previous application, shall make available the use of all equip- Part shall contain the following infor- mation in sufficient detail to permit eval- the applicant may state this fact instead ment which has been allocated to the uation of the application in light of the of submitting a new certification. operation of the program by the Bureau (n) Proposed system for managing in the past, unless the Bureau proves declination criteria set forth in § 271.15. property and keeping records or agree- the provision of the equipment will seri- No further detail is, or shall be, required. ment to establish within 90 days of con- ously interfere with the Bureau's ability (a) Full name, address and telephone- tract execution, a satisfactory system for to provide services to Indian people in number of the tribal organization which managing property and keeping records. non-contracted programs. Where equip- is applying for the contract. (o) Advance payment required by the ment is shared by the programs to be (b) Full name of tribe(s) with which tribal organization for contract contracted and other non-contracted the tribal organization is affiliated. (p) Term of contract requested and programs, equipment-sharing or other (c) Full name of tribe(s) directly ben- efiting or receiving cervices from the pro- proposed starting date of contract. suitable arrangements shall be stated. in the contract. posed contract. 271.15 Criteria for declining to con- (2) Bookkeeping-and accounting pro- (d) Documentation of the tribal re- tract. cedures. It must be clearly demonstrated quest to contract as required in § 271.18. (a) The Commissioner may decline to by the Bureau that the tribal organiza- (e) Date of submission to the Bureau. contract only for the specific causes given- tion which will undertake the contract. and the name of the office where the ap- in paragraph (b) of this section. The does not have or cannot set in place, plication was submitted. burden of proof is on the Commissioner using the contract funds, an accounting (f) Signature by the authorized repre- to demonstrate, through substantial evi- and bookkeeping system which will be sentative of the tribal organization and dence, that one: of the specific grounds adequate. the date thereof. for declination exists and that, therefore, (3) Substantive knowledge of the pro- (g) Estimated number of Indian people the application must be declined. gram to be contracted. who will receive benefits or services from (b) The Commissioner may decline to (i) Where the tribal organization pro- the contract, based on available data in- contract when: posing to contract is the tribal govern- cluding tribal records. (1) The services to be provided to the ing body and the program or functions (h) Descriptive narrative of what intended Indian beneficiaries of the par- to be contracted is a tribal governmental functions, Bureau programs, or portions. ticular program. or function to be: con- function, there shall be an absolute pre-- of programs the tribal organization. tracted will not be satisfactory. sumption that the tribal governing body: wants to contract for. (i) It will be presumed by the Bureau has substantive knowledge of the pro-, (i) Plan of operations, which shall in- that the program plan and budget set gram or function to be contracted. clude but is not limited to: forth by the tribal organization provides (ii) Where the tribal organization pro- (1) A statement of tribal goals and ob- a basis for the delivery of. satisfactory posing to contract is not the tribal gov- jectives to be obtained by the contract services to the Indian people unless it erning body or the program or function (2) The organization, methods and can be demonstrated by the Bureau by to be contracted is not a tribal govern-: procedures to be used to accomplish the substantial evidence that the program mental function, the tribal organiza- tribal goals and objectives. will yield results which will be deleterious tion shall be presumed to have substan- (3) The means to. measure progress to the welfare of the Indian people to be tive knowledge of the program to be con- and accomplishment tracted. if the tribal organization meets served. (4) The budget showing the amount (ii) The service to be provided shall one or more of the following conditions: and sources. of funding and other re- be deemed satisfactory if the contract (A) The tribal organization has ade- sources required for the contract. application indicates that the applicant quately managed a similar program be-t (5) Staffing plan, including extent, if has or will establish procedures to as- fore through grant or contract. any, that Bureau personnel may be sure that services and assistance shall be (B) The tribal organization which is utilized. (See Part 275 of this chapter for provided to the Indians affected by the to manage the project possesses by virtue staffing options the applicant may wish contract in a fair and uniform manner. of its-knowledge and/or experience sub-, to consider). Such procedures include eligibility cri- stantive knowledge of the program to be contracted. (6) The evaluation criteria and-con- teria for a tribal member to receive serv- trol systems the tribal organization will (C) The tribal organization has been ices; recordkeeping adequate to verify a consumer of such services in the past. use to assure that the quality and quan- the fairness and uniformity of services in and thus has developed an understanding tity of actual performance conforms to case of formal complaints; an adequate of the issues involved with the program the requirements of the plan. complaint procedure available to all In- sufficient to enable it to effectively carry (j) Statement of tribal organization's dians affected; and those rights the out the contract operation; and, the substantive knowledge of the program, individual will retain following the tribal organization can secure through part of a program or functions to be complaint. the resources of the contract, Bureau contracted. (2) Adequate protection of trust re- staff or other resources, the training in (k) Description of personnel system sources is not assured. Criteria for de- the particular subject area. which will and position descriptions for key per- termining if there is adequate, protec- develop its substantive knowledge of the tion of trust resources are given in sonnel. program. (1) Listing of equipment, facilities, and § 271.34. (4) Community support Before the buildings needed to carry out the con- (3) The proposed project or function Bureau can enter into a contract there tract and how the tribal organization in- to be contracted cannot be properly com- must be a request made in accordance tends to obtain them. pleted or maintained by the proposed with § 271.18. The tribal governing contract. (m) Certification by a licensed ac- body's resolution under § 271.18 shall be countant that the bookkeeping and ac- (4) The application is not within the presumed to demonstrate that there is counting procedures the tribal organiza- purview of § 271.1(a). community support for the proposed tion presently uses meet the standards of (c) In arriving at his finding, the contract. Unless it can be demon- Appendix B of Part 276 of this chapter. Commissioner shall consider whether the strated by substantial evidence that In place of the certification, the tribal tribal organization would be deficient in there is a lack of community support for FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51290 RULES AND REGULATIONS the contract and the lack of support will (e) Tribes may request a waiver from (3) Preparing technical parts of the result in unsatisfactory services, inade- the Commissioner of regulations in this contract application. quate protection of trust resources or im-7 chapter as given in $ 1.2 of this chapter. (4) Such other ways as may be re possibility of service maintenance, the (f) Bureau officials may not decline to quested. tribal governing body's resolution shall enter into a contract with a tribal orga- (b) Upon the request of a tribe, to the be deemed conclusive. Those asserting nization because of any objection that extent that funds are available, the that there is a lack of community sup- could be overcome through the contract. Bureau may make technical assistance port for a proposed contract must dem- § 271.16 Access to Bureau records. available to the tribal organizations from onstrate that they have exhausted their sources including, but not limited to: tribal remedies before the matter is con- (a) Upon the request of a tribal orga- (1) Technical assistance organizations sidered by the Bureau. In any event, nization, the Superintendent or Area under contract with the Bureau. there will be no finding by the Bureau of Director shall make available any infor- (2) Grants under Part 272 of this a lack of community support that would mation requested and such other infor- chapter. result in deficiencies in performance mation as the tribal organization may (3) Other technical assistance re- under the contract until those asserting need to prepare a contract application sources funded by the Bureau. it have exhausted all their tribal or carry out a contract. Tribal organiza- (c) Upon the request of a tribe, the remedies. tions, other than the governing body of Bureau will also assist tribal organiza- (5) Adequacy of trained personnel. The an Indian tribe (except when operating tions in obtaining technical assistance adequacy of trained personnel available under a contract authorized under the from other Federal agencies. to the tribal organization to carry out Act), shall seek such information the proposed contract will be presumed through that tribe's chairman or other § 271.18 Tribal request for initial con- tract. if any of the following conditions exist: official(s) designated by the tribal gov- (i) If the tribal organization has a per- erning body, unless the tribal resolution (a) Before the Bureau can enter into sonnel system that prescribes minimum under $ 271.18(d) (1) or subsequent reso- a contract with a tribal organization, it occupational qualification standards, lution sets forth another procedure. Re- must be requested to do so by the tribe procedures for the selection of personnel quests for information are subject only to be served under the contract. The on the basis of such standards, and the to the limits of the Freedom of Informa- tribe's request shall be in the form of a personnel to be used under the proposed tion Act (5 U.S.C. 552) as amended by resolution by the tribal governing body. contract are to be employed under the the Act of November 21, 1974 (Public Law If the tribal organization is applying for personnel system. 93-502, 88 Stat. 1561), the Privacy Act a contract to perform services benefiting (ii) If there is no tribal personnel sys- (5 U.S.C. 552a) and other applicable more than one tribe, an authorizing res- tem, it will be assumed that the person- laws. Information to be made available olution from each tribal governing body nel to be employed under the proposed shall include, but not be limited to: must be obtained before submitting the contract are adequately trained if the (1) Data on program services to in- application to the Bureau for approval. A tribal organization has established po- tended beneficiaries; tribal governing body may pass a single sition descriptions for key personnel to (2) Reports on Bureau program opera- resolution authorizing a tribal organiza- be employed under the contract and tions for the past three years; tion to apply for, negotiate, and execute agrees to establish a personnel system (3) Present Bureau staffing pattern more than one contract if the resolution similar to the one described in paragraph and grade levels, existing vacancies and specifies for each contract the same in- (c) (5) (i) of this section. position descriptions; formation required in paragraphs (b) (6) Other necessary components of (4) Data on the amount of funds which and (c) of this section. contract performance. have been provided for the direct opera- (b) The resolution of the tribal gov- (i) All other necessary components of tion of the specific program(s) or por- erning body shall authorize the applicant contract performance will be deemed to tions thereof by the Bureau during the tribal organization to apply for, negoti- be met unless a tribal organization past fiscal year and proposed contract ate and contract with the Bureau, sub- (A) Does not agree to develop an ade- period; ject to the specific terms, conditions and quate personnel system that provides (5) Existing appraisals, inventories, limitations of the resolution and appli- selection standards which insure equal and assessment of trust resources. cable tribal laws, codes, and regulations. access to all qualified tribal members; (b) The tribal organization shall have The resolution shall include the results (B) Has not agreed to establish and access to Bureau records as follows: of the vote (the number for and against), maintain a property management sys- (1) The tribal organization shall have the date the resolution was approved, tem which will adequately account for access to needed Bureau records at the and signature of the person authorized and protect government property. appropriate Bureau office for review and to certify the accuracy of the informa- (C) Has not agreed to keep such rec- making copies of selected records. tion contained in the resolution. ords: as required pursuant to § 271.46, (2) If the tribal contractor needs a (c) The tribal governing body's re- make reports required by 8 271.49, or to reasonable volume of identifiable Bureau quest (resolution) should include the make such reports and information records, the Bureau will furnish the following: available to Indian clients as required by copies to the tribal organization. (1) When the tribal organization is $ 271.48. (3) Where a large volume of records the tribal governing body: (D) Has not submitted a completed are needed and copying is not practical (1) A brief statement of the contract contract application or feasible, the records may be physically scope. (ii) All "other necessary components located at the contract site provided that (ii) The tribal official authorized to have been specifically identified in this Bureau official is designated by the Com- negotiate the contract and any amend- section. No other components shall be missioner or Area Director as custodian ments thereto. defined which may serve as a basis for of the records. (iii) The tribal official authorized to declination unless they are added to (c) Failure of the Bureau to provide execute the contract and any amend- these regulations by revision or amend- such access may be appealed under the ments thereof. ment of the regulations. provisions set out in 43 CFR 2.17. (iv) The expiration date of the au- (d) Program plans and designs of thorities granted by the resolution. § 271.17 application technical as- tribal organizations for contract opera- (v) The extent and procedure, if any, sistance. tion of Bureau programs or parts may for review of the contract and any be inconsistent with other Parts of this (a) Upon the request of a tribe, Bureau amendments thereto by the tribal gov- chapter if a waiver is obtained from the Agency and Area Offices shall provide erning body before execution. Commissioner. Inconsistencies between technical assistance to a tribal organiza- (vi) The proposed date for contract such plans and designs-and Bureau man- tion to assist them in: commencement. uals, guidelines or other procedures that (1) Determining the appropriateness of (vii) The proposed term of the con- are appropriate to programs or parts of contracting. tract programs operated by the Bureau are not (2) Developing an effective program (2) When the tribal organization is grounds for declination. design and plan of operations. other than the tribal governing body: FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51291 (1) The name of the tribal organiza- (a) If the original contract provided official at least 120 days before the con- tion: services to only one Indian tribe, written tract's proposed starting date so the (ii) A brief statement of the contract applications to recontract shall be sent Bureau can comply with all Civil Service by the tribal organization to the Area Commission requirements which apply to scope. (iii) The extent and procedure for re- Office as follows: separation and/or reassignment of Fed- view by the tribal governing body of the (1) Directly, when the tribal organi- eral employees. contract and any amendments thereto zation involved is the governing body of § 271.22 Review and action by Superin- prior to execution by the tribal orga- the tribe tendent. nization. (2) Through the governing body of the (iv) The tribal office or official to tribe for review when the tribal organiza- The Superintendent shall take the fol- which the Bureau should send copies of tion is not the governing body of the lowing actions after receiving the con- contract documents and correspondence. tribe. Submission shall be made to the tract application: (v) The proposed term of the contract. governing body at least 120 days before (a) Within five days of receipt, the (vi) The proposed date for contract the original contract expires. Copies of Superintendent shall notify the appli- commencement. the submision shall be sent to the Super- cant and the tribal governing body, if (vii) Any limitations on authorities intendent and Area Director at the time different from the applicant, that the granted the tribal organization, includ- of submission to the tribal governing application was received. ing authorities granted to or vested in body. The tribal organization shall (b) Within 15 days of receipt, the the tribal organization and/or tribal gov- promptly notify the Area Director in Superintendent shall review the applica- erning body in regard to: writing of the date the tribal governing tion for completeness and request any (A) Access to Bureau records under body received the application. If, within additional information from the appli- $ 271.16. 45 days after receiving the application, cant or from the requesting tribe that (B) Recontracting under 271.20. the tribal governing body does not pro- is needed to satisfy the requirements of (C) Appeals of a decision of the Com- vide the Area Director with a formal § 271.14. missioner under $ 271.26, resolution objecting to the application to (c) Within 30 days of receipt, the Su- (D) Requests revise or amend a recontract, the absence of receipt of such perintendent shall make recommenda- contract under §§ 271.61 and 271.62. resolution shall constitute the tribe's re- tions in writing to the applicant and the (E) Requests for contract retrocession quest to recontract. tribal governing body which he feels are under 11 271.71 and 271.72. (b) If the original contract provided needed to avoid possible declination and (P) Right to appeal-under § 271.82 services to more than one Indian tribe, shall indicate the technical assistance § 271.83 or § 271.84. the tribal organization must give a copy available from the Agency Office to cor- (d) Any procedures given in this sec- of the written application to recontract rect any deficiencies. tion concerning the manner in which a to each tribal governing body 120 days (d) The Superintendent shall provide tribal governing body passes a tribal res- before the original contract expires. The the technical assistance offered in the olution shall apply except where incon- tribal organization shall promptly notify written recommendation as requested by sistent with the tribe's organic docu- the Bureau office, where the application the tribal organization and tribal govern- ments or in the absence of such organic is to be submitted under 271.21, in ing body. documents the tribal practice. writing of the date the tribal governing (e) The Superintendent shall forward bodies received copies of the application. the application to the Area Office with § 271.19 Status of contracts in effect be- fore effective date: of regulations If, within 45 days after receiving copies his comments and recommendations as of the application, none of the tribal gov- follows: Contracts: between the Bureau erning bodies provide the appropriate (1) Within 30 days after receiving the and tribal organizations, which were en- Bureau office with a formal resolution application when the Superintendent has tered into before the effective date of objecting to the application to recontract, no recommendations to make to the ap- these regulations and are still in effect, the absence of receipt of such resolutions plicant. shall continue until expiration of that shall constitute the tribe's request to re- (2) Within 10 days after making writ- Contract Any revisions OK amendments contract. If one or more of the tribal ten. recommendations to the applicant requested during the contract period governing bodies involved object to the when the applicant does not respond, or shall be subject/to the provisions of Sub- contract, they may withdraw from the request additional time in which to part E of this Partner contract. In such case those withdrawing respond or refuses the technical assist- (b) Upon completion of contracts in can stipulate how they wish the previ- ance offered. effect) before the effective date of the ously contracted services to be rendered § 271.23 Review and action by Area Di- regulations, one of the following: will and the remainder may be recontracted rector. occur: at the option of the tribes involved Upon receipt of the contract applica- (1) Where the tribal organization was § 271.21 Submission of requests to con- tion, the Area Director will review the ap- authorized to enter into its existing con- tract. plication and the Superintendent's rec- tractsby a triball resolutions even if the (a) Tribal requests to contract and ommendations or, where the application resolution was passed before the effec- contract applications shall be submitted was submitted directly to the Area Direc- tive date of these regulations, the tribal to the Bureau, as follows: tor as provided for in § 271.21, obtain the organization shall have the right to re- contract subject to the provisions given (1) To the Superintendent when the appropriate Superintendents' recom- tribe(s) or Indians to be served by the mendations within 10 days and then pro- in $ 271.20. (2) Where the tribal organization did contract are within the jurisdiction of ceed as follows: that Agency office. (a) Notify the applicant and the tribal not have a tribar resolution authorizing it to enter into the existing contract, it (2) To the Area Director when the governing body, if different from the ap- shall not be entitled to recontract, but tribe(s) OF Indians to be served by the plicant, that the application was received, contract are within the jurisdiction of within five days of its receipt. must obtain a tribal request as provided more than one Agency office in the same (b) Within 30 days, review the con- in § 271.18 and submit application as Bureau Area. tract application, the recommendations provided in § 271.14 (3) To the Commissioner- when the of the Superintendent, any responses § 271.20 Recontractings tribe(s) or Indians to be served by the from the contract applicant or the tribal The Bureau will recontract for the contract are within the jurisdiction of governing body and the criteria for dec- same function(s) or programs as the more than one Area Office. lination set forth in § 271.15 to deter- original contract at the written request (b) An application for a contract mine if there are any declination issues of the tribal organization designated in under this Part may be submitted at any that must be addressed, and at the com, the tribal resolution. Requests for re- time: However, when the proposed con- pletion of the review, take one of the Tol- contracting shall be made as follows un- tract may result in the displacement of lowing actions as appropriate: less restricted by the resolution under Bureau personnel, the application must (1) If there are no declination issues, 8 271.18(c) (2) or subsequent resolutions: be submitted to the appropriate Bureau the Area Director will notify the contract FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51292 RULES AND REGULATIONS applicant in writing of this fact, and tween the Agency, Area and applicant (iii) The applicant must use these shall negotiate and award the contract and/or tribe, and all responses thereto, rights within 30 days after receiving the within 30 days of notifying the applicant, including any reports of meetings be- notice required in paragraph (d) (2) of unless a later date is requested by the tween the parties relative to the applica- this section. applicant, and furnish a copy of any tion. (e) If the applicant requests a meet- documents to be used by the Bureau dur- (5) Copy of original application. ing with the Commissioner under para- ing negotiations. (c) The Area Director shall send the graph (d) (2) (ii) of this section, the (2) If it is felt that there are declina- written recommendation to the Com- Commissioner shall: tion issues that must be resolved, the missioner within 15 days after the time (1) Select a site for a meeting between Area Director will notify the applicant periods provided in § 271.23(b) (2) (iii) the applicant and the Commissioner or and/or tribal governing body of this fact and (iv) At the same time, he shall send his representative from the Bureau's in writing. The notice shall include a list a copy of the written recommendation headquarters. of the declination issues identified by the to the tribal organization and tribal (2) Authorize payment of transporta- Area Director, the reason(s) for such erning body. tion costs and per diem under terms he identification, a copy of any documents (d) Within 15 days of receipt of the may make to allow adequate representa- used in arriving at the issues, recom- Area Director's recommendation to de- tion of the applicant and the appropriate mendations for resolving the issues and cline, the applicant may notify the Com- tribe(s), if the meeting is more than 50 the technical assistance available for missioner and the Area Director that it miles from the office of the applicant. this purpose. The notice shall also re- accepts the offer of technical assistance (3) Notify the applicant and the ap- quest a meeting with the applicant and/ described in paragraph (b) (3) of this or tribal governing body to discuss the propriate tribe(s) of the time, location section, thereby staying the declination issues and seek agreement on a course and other terms of the meetings. process. To reconstitute the application (4) Hold the meeting within 30 days of action to resolve them. The meeting process the applicant must notify the shall be held within 15 days of the ap- of the request, unless the applicant re- Area Director, at which time the Area quests a later date. plicant's and/or tribal governing body's Director shall proceed in accordance with (f) (1) If the Commissioner deter- receipt of the notice or at a time and § 271.23. place mutually agreed to by the parties. mines the application should be declined, (i) If the applicant accepts the tech- § 271.25 Review and action by Commis- the declination notice shall be issued as sioner. follows: nical assistance, it shall be provided in (i) Within 15 days after receiving the accordance with the applicant's request. (a) Within five days after receiving a applicant's rebuttal submitted under At such time as the issues are thus re- contract application submitted directly paragraph (d) (2) (1) of this section or solved, the Area Director will so advise under § 271.21 or a contract application (ii) After the conclusion of the meet- the applicant and offer to enter into and the Area Director's recommendations ing under paragraph (e) of this section. negotiations within 15 days of resolution to decline, the Commissioner shall notify or at the applicant's convenience. (iii) Within 45 days after notifying the applicant and the tribal governing the applicant under paragraph (d) (2) of (ii) If the applicant declines the Area body(s) in writing of the receipt of the this section when the applicant has not Director's offer of technical assistance application. used the rights under paragraph (d) (2) and the matter is not otherwise resolved, (b) Within 20 days after an applica- of this section. the Area Director shall proceed in ac- tion is received by the Commissioner (2) The declination notice shall be in cordance with § 271.24. under § 271.21, the Commissioner shall writing and shall contain: (iii) If the applicant does not respond direct and the appropriate Area Direc- within 30 days of receipt of the Area (i) Identification of specific objec- tor(s) shall furnish written recom- tions, categorized under one or more of Director's recommendations and offer of mendations to the Commissioner, the the declination criteria set forth in assistance, and does not request addi- tribal governing body(s) and the § 271.15. tional time in which to respond, the Area applicant. (ii) Specific recommendations on ac- Director shall proceed in accordance (c) Within 15 days after receiving the tions required by the applicant to over- with § 271.24. Area Directors' recommendations, the (iv) If the applicant does not agree come objections and a description of the Commissioner shall review the applica- nature, scope, and source of the tech- with the Area Director's recommenda- tion, the Area Directors' recommenda- nical assistance which will be available tions and the matter is not resolved tions, and the declination criteria in to overcome declination objections. within 30 days of the Area Director's § 271.15. receipt of the applicant's response to the (iii) Copies of all correspondence be- (d) Within 15 days after receiving the Area Director's recommendations, the tween the Bureau, applicant and/or Area Directors' recommendations, the Area Director shall proceed in accord- tribe(s), and all responses thereto, in- Commissioner shall notify the applicant, ance with § 271.24. cluding any reports of meetings between the appropriate tribal governing bodies, the parties relative to the application. § 271.24 Area Director's recommenda- and the Area Director(s) of one of the (iv) Copy of original application. tion to decline. following: (1) When the Commissioner does not (v) The appeal rights of the appli- (a) If the Area Director, the applicant accept the Area Director's recommenda- cant and/or-the tribal governing body and the tribal governing body fail to under § 271.83. resolve the declination issues, the Area tions to decline, notice shall be given that the recommendations are not accepted § 271.26 Appeals of Commissioner's de- Director shall prepare a written recom- and that the Bureau shall negotiate and cision to decline. mendation to decline. (b) This recommendation shall con- award the contract within 45 days, un- The tribal organization and/or the tain, at a minimum, the following in- less the applicant requests additional tribal governing body shall have 60 days time. formation: to appeal to the Board of Indian Appeals, (2) When the Commissioner accepts (1) Identification of specific objec- Department of Interior, Washington, the Area Directors' recommendations tions, categorized under one or more of D.C., the decision by the Commissioner to and believes that the Bureau should not the declination factors set forth in decline to contract. Provided, that the contract as requested, notice shall be § 271.15. tribal organization is authorized by the given that the Commissioner plans to (2) Specific recommendations on ac- tribal governing body in the request issue a declination notice and that the tions required by the applicant or tribe under § 271.18(c) (2) or subsequent applicant has the following rights: to overcome objections. resolution to make such an appeal. The (i) The applicant may submit a writ- appeal shall be made as provided in (3) Description of the nature, scope, ten rebuttal to the Commissioner's plan § 271.83. and source of the technical assistance to issue a declination notice. which has been provided or offered by (ii) The applicant may request a § 271.27 Technical assistance after the Bureau to assist the tribal organiza- meeting with the Commissioner or his declination. tion to overcome declination objections. representative under paragraph (e) of If the Commissioner's decision to de- (4) Copies of all correspondence be- this section. cline to contract is not appealed or is FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51293 upheld on appeal, the Commissioner projects, protection of the forest against (b) The contract application provides shall immediately offer technical assist- wildfire, trespass, disease. or insect in- for the termination of a trust respon- ance to the tribal governing body for the festation, and participation in cooper- sibility. purpose of overcoming the declination ative programs with other Federal, State, (c) The contract application provides issues. Within 30 days of the tribal gov- or tribal organizations related to pro- for completion or maintenance of the erning body's acceptance of this offer, grams of the Bureau. Activities which project or function to a lesser standard the Commissioner will make technical already are provided Indian forests from than under Bureau administration. How- assistance available to the tribal govern- non-Bureau sources, as part of the man- ever, a tribal proposal to raise perform- ing body for the development of a plan agement of a forested area larger than ance standards shall not be used as a for overcoming the objections that re-, the reservation, are not contractable un- reason for declination. sulted in the decision to decline. der provisions of this Part. Advice and (d) The proposed activity requires technical assistance provided individual special skills for its performance and the § 271.28 Failure of Bureau Agency or landowners in connection with forestry proposed key staff does not meet Civil Area Office to act. programs will be made concurrently by Service Commission or excepted qualifi- Whenever a Bureau Agency or Area the contractor and an appropriately des- cation standards, other accepted profes- Office official fails to take action on a ignated Federal official. sional standards appropriate to the dis- contract application within the time (f) Range management: development cipline involved, or are not otherwise limits established in this Part, the tribal of contract stipulations for agricultural recognized as technically qualified. organization that submitted the applica- leases/permits (land use stipulations or conservation standards necessary to de- Subpart D-General Contract tion, may, at its option, request action Requirements by the next higher Bureau official. In fine each use shall be incorporated in and such cases, the official that failed to act made a part of such lease or permit); $ 271.41 Advance payments. shall immediately forward the applica- supervision of compliance, fee collection, (a) At the request of a tribal contrac- tion and all material pertinent thereto watershed management, game and fish tor, the Bureau contracting officer shall to the official to whom the request for management, outdoor recreation, wild- make advance payments under contracts action was made. fire prevention and control. as provided in this section. The require- (g) Wildlife and parks: conservation, Subpart C-Additional Requirements for ments given in this section and in Chap- use, and development of wildlife (in- Trust Responsibilities ter 2000 of the Treasury Fiscal Require- cluding fisheries resources), and preser- ments Manual, as modified or supple- $ 271.31 Applicability. vation of natural beauty, historical sites, mented, apply to making the advance This Subpart gives additional require- and archeological remains. payments. ments applicable to the application and (h) Water inventories and other ap- (b) Any request for advance payment approval process for contracts under this propriate programs for protection of by a tribal contractor shall specify the Part which involve the Bureau's trust water rights. amount(s) required and the dates such responsibilities in the area of natural (i) Hunting and fishing: programs to advance(s) will be required and shall be resources, such as assessments, irriga- regulate and enforce on- and off-reser- supported by a schedule of estimated vation hunting and fishing and programs tion; real estate, forestry, range manage- expenditures. ment, wildlife and parks, water inven- to provide data supporting litigation con- (c) An initial advance will be limited tories, and hunting and fishing. cerning hunting and fishing issues. to the amount of estimated expenditures § 271.33 Content of application. for a sufficient period of time required to § 271.32 Contractable functions or pro- In addition to the information re- effect payment, based on experience in grams. quired in § 271.14, the following addi- the locality. The initial advance may be Contractable trust resources programs, made in amounts and at times deter- or portions thereof, include the follow- tional information shall be included in mined suitable to satisfy the minimum the contract application when a trust ing: essential needs of the contractor. (a) Assessments; inventories of exist- resource or responsibility is involved: ing resources in trust for individuals and (a) A statement of the impact of pro- (d) Later advances may be made at posed activity on trust resources related times and in amounts determined neces- for tribes. sary to insure availability of funds for (b) Soil and moisture conservation: to: (1) Maintenance of inventory levels timely payment of the tribal contractor's basic soil and water conservation, water- and values to tribes and to individuals; obligations and to minimize the time be- shed protection, flood prevention, coop- tween withdrawal from the Treasury and erative surveys and investigations, and and, resource conservation and development. (2) Income to individuals and tribe. expenditure. Requests for advances after an initial advance shall be accompanied (c) Irrigation: development, con- The statement must also demonstrate a struction, recordkeeping, rehabilitation; thorough assessment of the trust re- and supported by a report of expendi- operations and maintenance. sources issues, positive steps to protect tures to date and the amount of funds the trust resources, provisions that limit on hand. (d) (1) Real estate: land use planning or eliminate potential for conflicts-of- (e) Advance payments shall be made and zoning, maintenance of land records, interest, and that no delegation of trust as follows: preparation of abstracts of title, research (1) When the annual advance to a programs to determine heirship and in- responsibility is requested. tribal contractor is expected to exceed ventory of estates, collection of technical (b) A statement of the special skills data and studies to be used in determi- and qualifications required of personnel $120,000 in the aggregate and the con- tract term is for at least one year, the nations of tribal claims to real property, attached to program activity impacting letter-of-credit method normally shall collection of data leading to ascertain- on trust resources and trust responsibility. be used. The requirements contained in ment of surface and subsurface re- § 271.34 Criteria for declining to con- Chapter 2000 of the Treasury Fiscal Re- sources, administration of leases. tract. quirements Manual, as modified or sup- (2) Advice and technical assistance provided individual landowners in con- If a contract application includes plemented, shall apply to making these a project or function which is related to advance payments. nection with lease negotiations initially the Bureau's performance of a trust (2) Except as provided in paragraph will be made concurrently by the con- responsibility in the area of natural re- (e) (1) of this section, advance payments tractor and an appropriately designated Federal official. sources as given in § 271.32, the Com- shall be made by check made payable to (e) Forestry: forest management and missioner shall decline to contract if he the tribal contractor and handled as planning, including the making of in- finds that: follows: ventories, management plans and main- (a) The contract application provides (1) Advance payments may be made tonance, tribal or individual Indian con- for or would necessarily require the dele- directly to the tribal contractor when the sultation services, administration of gation to the tribal organization of a contractor is a tribal governing body, a timber sales and Indian permit cutting, trust responsibility vested by law in the non-profit Indian organization serving as conduct of timber stand improvement Secretary or the Commissioner. a governmental instrumentality of an FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51294 RULES AND REGULATIONS Indian tribe or an intertribal council. tractors in the construction, alteration, (a) Fully reflect all financial tran However, when the contractor is not one or repair of buildings or other facilities actions involving the receipt and of the above, the advance payment may in connection with contracts under this penditure of funds provided under th be made directly if all of the following Part shall be paid wages not less than contract in a manner which will provid conditions exist: those on similar construction in the lo- accurate, current and complete disclo (A) The advance payment does not cality as determined by the Secretary of sure of financial status; correlation with exceed $2500. Labor in accordance with the Davis- budget or allowable cost schedules; and (B) It is the only advance payment Bacon Act of March 3, 1931 (46 Stat. clear audit facilitating data. involved in the contract. 1494), as amended. However, this (b) Reflect the amounts and sources (C) The performance time is less than requirement doees not apply where the of funds other than contract funds 90 days. tribal contractor is the recognized gov- which may be included in the operation (D) The advance payment does not erning body of the tribe or a non-profit of a program. exceed 85% of the amount of the Indian organization serving as a gov- (c) Provide for the creation, mainte contract. ernmental instrumentality of an Indian nance and safeguarding of records of (ii) Checks for advance payments tribe and the construction, alteration, or lasting value, including those involving which cannot be made directly to the repair work is being performed by the individual rights, such as permanent tribal contractor, as given in paragraph tribal organization or the tribe with its student records and transcripts. (e) (2) (i) of this section, shall be marked own employees. (d) Provide for orderly retirement of for deposit in a special bank account § 271.44 Indian preference. records used or created under the con established for the contract. No part of tract. Such records shall be returned to the funds deposited in the special bank (a) Any contract made by the Bureau the Bureau for disposition according to account shall be mingled with -other with a tribal organization shall provide the General Records Schedules and the funds of the tribal contractor before the that the tribal contractor shall, to the Bureau Records Control Schedules. funds are withdrawn to meet obligations greatest extent feasible, give preference under the contract. in and opportunities for employment and § 271.47 Records-access to and reten- (f) Tribal contractors shall not be held training to Indians. tion. accountable for interest earned on funds (b) Any contract made by the Bureau (a) During the term of a contract un- advanced pending disbursement. How- with a tribal organization shall provide der this Part and for three years after ever, bank balances must be maintained that the tribal contractor shall, to the the project or undertaking is completed, at the minimum level consistent with greatest extent feasible, give preference the Comptroller General, the Secretary program requirements. Requests for ad- in the award of subcontracts to Indian and the Commissioner or any of their vances shall be reviewed to insure that organizations and to Indian-owned eco- duly authorized representatives shall excess funds are not advanced. nomic enterprises. have access, for audit and examination (c) All subcontractors employed by the purposes, to any of the tribal contrac- (g) Sub-advances may be made when tribal organization shall, to the extent predetermined as a part of contracted tor's books, documents, papers, and rec- possible, give preference to Indians for ords which, are related or pertinent to programs or when specifically author- employment and training and shall be ized in writing by the contracting officer. the contract or any subcontract, with required to include in their bid submis- the following exceptions: Sub-advances will not be made to indi- sion a plan to achieve maximum use of (1) The records shall be retained be- viduals except for approved travel. In Indian personnel. yond the three year period if audit find- such cases, the sub-advances shall not (d) In the performance of contracts ings have not been resolved. exceed the minimum required for one under this Part 271 and subject to the (2) When records are transferred to trip and shall be settled by voucher or provisions of Part 14 H-70 of Title 41, a or maintained by the Bureau, the three repayment within 30 days. tribal governing body may develop its year retention requirement does not per- § 271.42 Use of Government property. own Indian preference requirements to tain to the contractor for those records. the extent that such requirements are (b) The tribal contractor will be re- (a) In carrying out a contract made not inconsistent with the purpose and sponsible for maintaining all documents under this Part, the Superintendent, intent of paragraphs (a), (b), and (c) such as invoices, purchase orders, can- Area Director or Commissioner shall, of this section. celled checks, balance sheets and all wherever possible, permit a tribal con- § 271.45 Liability and motor vehicle in- other records relating to financial trans- tractor to use existing buildings, facili- actions in a manner which will facilitate ties, and related equipment and other surance. auditing. The tribal contractor will be personal property owned by the Bureau (a) Tribal organizations shall obtain responsible for maintaining files of cor- within his jurisdiction To the extent public liability insurance under con- respondence and other documents re- possible, arrangements on the use of tracts entered with the Bureau under lating to the administration of the pro- Bureau property shall be provided for in this Part. However, where the contract- gram or project properly separated from the contract agreement. In determining ing officer determines that the risk of general records or cross-referenced to whether real or personal property can death, personal injury or property general files. be provided, the Bureau shall determine damage under the contract is small and whether it can provide comparable serv- that the time and cost of procuring the § 271.48 Freedom of information. ices for any of the uncontracted part(s) insurance is great in relation to the risk, (a) Unless otherwise required by law, of the program. the contract may be exempted from this the Bureau shall not place restrictions (b) Requests for the use of Bureau requirement. on tribal contractors which will limit property which arise after signing of (b) Notwithstanding paragraph (a) of public access to the tribal contractors' the contract shall be submitted to the this section, any contract which requires records except when records must re- relevant Bureau official by the tribal or- or authorizes, either expressly or by im- main confidential. ganization. Such requests should be plication, the use of motor vehicles must (b) A tribal contractor under this granted and the contract appropriately contain a provision requiring the tribal Part shall make all-reports and infor- amended unless such use will seriously organization to provide liability insur- mation concerning the contract, includ- interfere with the administration of ance, regardless of how small the risk. ing the report required under § 271.49, existing Bureau programs. The property available to the Indian people which the at the time of transfer must conform to § 271.46 Recordkeeping. contractor serves or represents. Reports the minimum standards established by A tribal contractor will be required to and information may be withheld from the Occupational Safety and Health Act maintain a record-keeping system which disclosure only when both of the follow- of 1970 (84 Stat 1590), as amended (29 will allow the Bureau to meet its legal ing conditions exist: U.S.C. 651). records program requirements under the (1) The reports and information fall $ 271.43 Wage and labor standards. Federal Records Act (44 U.S.C. 3101 et within one of the following exempt seq.) and to facilitate contract retroces- categories: (a) All laborers and mechanics em- sion or reassumption under Subpart F of (1) Specifically required by statute or ployed by tribal contractors or subcon- this part. Such a record system shall: Executive Order to be kept secret. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51295 (ii) Related solely to internal person- quested by the Commissioner and may § 271.51 Federal contracting laws and nel rules and practices of the Bureau. be submitted as follows: regulations. (iii) Commercial or financial infor- (1) When the contract is with the gov- mation obtained from a person or firm erning body of an Indian tribe, the tribe (a) Contracts with a tribal organiza- on a privileged or confidential basis. shall submit the report to the Area tion under this Part shall comply with (iv) Memoranda or letters between Director. the Bureau procurement regulations con- agencies of the Federal Government (2) When the contract is with a tribal tained in 41 CFR Part 14H-70, except as which would not be available by law to organization other than the governing provided in paragraph (b) of this section. a party other than the Federal Govern- body of the tribe, the tribe has the option (b) The Commissioner may waive any ment in litigation with the Federal of having the tribal organization prepare Federal contracting laws, executive or- Government. the report and submit it to the tribe for ders, regulations, rules and other admin- (v) Personnel, medical, and similar review and approval before the tribe istrative requirements which he deter- files where disclosure would be a clearly submits-it to the Area Director or Com- mines are not appropriate for the pur- unwarranted invasion of personal pri- missioner as appropriate. poses of the contract involved or are in- vacy. (3) When the contract benefits more consistent with the Act. Regulations and (vi) Investigatory records compiled than one tribe, the tribal organization clauses which are deemed inconsistent or for law enforcement purposes when pro- shall prepare and submit the report to inappropriate for inclusion in contracts duction of the records would: each of the tribes benefiting under the entered into under the Act may be (A) Interfere with enforcement pro- contract. Each tribe shall endorse the re- waived, modified or supplemented in 41 ceedings; port before submitting it to the Area CFR Part 14H-70 of the Bureau's pro- (B) Deprive a person of a right to a Director or Commissioner as appropriate. curement regulations. Requests for fair trial; Should any of the tribes fail to endorse waivers may be made as follows: (C) Be an unwarranted invasion of the report within 75 days of its receipt, (1) Tribal organizations may submit personal privacy: the tribal organization may submit the written requests for a waiver or modifica- (D) Disclose the identity of a confiden- report with the endorsements that have tion of contract regulations on specific tial source and confidential information been received. contracts to the Commissioner through, furnished only by the confidential source; (b) The annual report shall be sub- or jointly with, the contracting officer. (E) Disclose investigative techniques mitted to the Area Director or Commis- The contracting officer will promptly and procedures; or sioner as appropriate within 90 days transmit the request and his recommen- (F) Endanger the life or physical after the end of the fiscal year in which dations on it to the Commissioner, who safety of law enforcement personnel. the contract was performed. However, shall issue a ruling within 15 days after (vii) Contained in or related to exami- receipt of the request. upon receipt of a written request, the nation, operating, or condition reports (2) When the waiver or modification period for submitting the report may be prepared for the use of an agency of the extended by the Area Director or the requested is determined by the Commis- Federal Government responsible for the Commissioner if there is just cause for sioner to apply in general, it will be made regulation or supervision of financial a part of 41 CFR Part 14H-70. When the such extension. institutions. Commissioner determines that the re- (c) In addition to the yearly reporting (viii) Geological and geophysical infor- quest for modification or waiver should requirement given in paragraphs (a) and mation and data concerning wells not apply in general but is warranted for (b) of this section, the contract shall (2) Disclosure is prohibited by statute provide that the tribal contractor will the contract to which the request per- tains, the tribal organization and the or Executive Order or sound grounds make available monthly. to members of exist for using the exemption given in contracting officer will be so advised in the tribe(s) affected, an accounting of writing. paragraph (b) (1) of this section. the amounts and the purposes for which (3) If the request for waiver or mod- (c) A request to inspect or copy reports the contract funds were expended during ification is determined by the Commis- and information shall be in writing and the previous monthly period in the fol- must reasonably describe the reports and lowing manner: sioner not to be appropriate, the tribal (1) By posting a notice containing organization will be notified in writing. information requested. The request may such information on or before the tenth (c)-Contracts will be negotiated on a be delivered or mailed to the tribal con- non-competitive basis without advertis- tractor. Within ten working days after of each month, at a conspicuous place receiving the request, the tribal contrac- readily accessible to members of the ing when the contracts are requested by tor shall determine whether to grant or tribe(s) affected; or, a tribal governing body in accordance with $ 271.18. deny the request. The requester shall be (2) By such other means as is mu- (d) A tribal organization is not re- notified immediately of the determina- tually agreed to by the tribal contractor tion and the Bureau. quired to furnish performance and pay- ment bonds before carrying out a (d) The time limit for making a deter- (d) In addition to the requirements contract under this Part for the con- mination may be extended up to an ad- contained in paragraphs (a), (b) and (c) struction of public buildings or works as ditional ten working days for good rea- of this section, the tribal contractor shall required by the Miller Act of August 24, son. The requester shall be notified in furnish other contract-related reports 1935 (49 Stat. 793), as amended. How- writing of the extension, reasons for the when and as required by the Area Direc- ever, the tribal organization shall re- extension, and date on which the deter- tor or Commissioner. quire each of its subcontractors to fur- mination is expected to be made. § 271.50 Penalties. nish both performance and payment § 271.49 Annual reporting. bonds as follows: If any officer, director, agent, or em- (1) A performance bond with a surety (a) For each fiscal year during which ployee of, or connected with, any con- a tribal organization receives or expends or sureties satisfactory to the approving tractor or subcontractor under this Part official, and in an amount he deems ade- funds pursuant to a contract under this embezzles, willfully misapplies, steals, or quate, for the protection of the United Part. the tribe which requested the con- obtains by fraud any of the funds or States. tract must submit a report to the Com- property connected with the contract or missioner. The report shall include, but subcontract, he shall be subject to the (2) A payment bond with a surety or not be limited to, an accounting of the following penalties: sureties satisfactory to the approving of- amounts and purposes for which the con- (a) If the amount involved does not ficial for the protection of all persons tract funds were expended, the tribe's exceed $100, he shall be fined not more supplying labor and material in carry- evaluation of the contract performance ing out the contract. Whenever the total than $1,000 or imprisoned not more than using the criteria submitted in the con- amount payable by the terms of the con- one year, or both. tract application, and information on the tract is not more than $1,000,000, the (b) If the amount involved exceeds conduct of the program or services in- payment bond shall be one-half the total $100, he shall be fined not more than volved. The report shall include any amount payable by the terms of the con- $10,000 or imprisoned for not more than tract. Whenever the total amount pay- other contract-related information re- two years, or both. able by the terms of the contract is more FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51296 RULES AND REGULATIONS than $1,000,000 but not more than $5,- (b) Direct costs under contracts for U.S.C. 552a). Examples of the tribal con- 000,000, the payment bond shall be 40 operation of programs or parts operated tractor's responsibilities are: percent of the total amount payable by by the Bureau before contract operations (1) To continue maintaining those sys- the terms of the contract. Whenever the shall be not less than the funds that are tems of records declared by the Bureau total amount payable by the terms of the programmed and available for the pro- to be subject to the Privacy Act as pub- contract is more than $5,000,000, the gram or part at the time of the contract lished in the FEDERAL REGISTER. payment bond shall be $2,500,000. application, except as limited in para- (2) To make such records available to § 271.52 Term of contract. graph (g) of this section. individuals involved. (c) Direct costs under contracts for (3) To disclose an individual's record (a) The term of contracts under this the operation of programs or parts au- Part shall not exceed one year except to third parties only after receiving per- thorized to be operated by the Bureau, mission from the individual to whom the that contracts may be made for a longer but not operated by the Bureau, for the term up to three years, subject to avail- record pertains. 43 CFR 2.56 lists excep- benefit of the Indians to be served under tions to this procedure. ability of funds under the following cir- the contract shall be determined by (4) To establish a procedure to account cumstances: mutual agreement based on a compari- for access, disclosures, denials, and (1) The services provided under the son of similar programs operated by the amendments to records. contract can reasonably be expected to applicant, the requesting tribe, other (5) To provide safeguards for the pro- be continuing in nature and, as a result, tribes, the Bureau, other governmental, tection of the records. a longer contract term would be advan- public or private organizations. (b) The tribal contractor may not: tageous. (d) Direct costs for programs or parts (1) Discontinue or alter any estab- (2) The Indian tribe(s) to be Served to be contracted at the Agency Office lished systems of records without prior by the contract request that the term be level shall be based on the funds avail- approval of the appropriate Bureau sys- more than one year. The tribal organiza- able at that level. tems manager. tion will indicate the desired term of the (e) Direct costs for programs or parts (2) Deny requests for notification or contract on the application form. When to be contracted at the Area Office level access of records without prior approval the Indian tribe(s) request that the con- shall be based on funds available at that of the appropriate Bureau systems man- tract be approved as provided in § 271.18, level. ager. that will also be deemed a request for the (f) Allowability of costs under con- (3) Approve or deny requests for longer term indicated in the application. tracts shall be determined under Appen- amendments of records without prior (b) Contracts made for a term of dix A of Part 276 of this chapter. approval of the appropriate Bureau sys- more than one year may be renegotisted (g) Funds provided under contract for tems manager. annually to reflect factors, including, but direct or indirect costs shall not cause (4) Establish a new system of records not limited to, cost increases beyond the a reduction in funds provided for other without prior approval of the Depart- control of the tribal contractor. Proposed programs or parts not under contract, ment of Interior and the Office of Man- changes in the services provided under except as agreed to by the affected agement and Budget. the contract which reflect changes in tribe(s) and within the existing authori- (5) Collect information about an in- program emphasis may be considered ties of the Bureau. dividual unless it is relevant or necessary during the annual renegotiation if the to accomplish a purpose of the Bureau changes fall within the general scope of § 271.55 Savings under contract. as required by statute or Executive the contract. Such changes may be ini- tiated by either the tribal contractor or (a) If it becomes apparent during the Order. contract term that the estimated amount (c) The tribal contractor is subject to the Bureau but must be agreed to by of a contract under this Part will be in the penalties provided in subsection (i) both. excess of actual expenditures under the of 5 U.S.C. 552a. § 271.53 Performing personal services. contract, the identified savings shall be used to provide additional services or Subpart E-Contract Revision or Any contract made under this Part Amendment benefits under the contract. may include provisions for the perform- (b) When both the tribal organization § 271.61 Requesting revision or amend- ance of personal services which would and the Bureau agree that it is not prac- ment. otherwise be performed by Federal em- ployees. Such services include, but are ticable to spend the savings during the (a) Any contract made under this contract term and the contract funds not limited to, performing the following Part may be revised or amended as functions in accordance with the con- were appropriated pursuant to the Act of deemed necessary to carry out the pur- tract and applicable rules and regula- November 2, 1921 (42 Stat. 208), the poses of the program, project or func- savings may be carried over into the tions: tion being contracted. succeeding fiscal year contract, except as (a) Determining the eligibility of ap- (b) The contractor shall submit pro- otherwise specifically provided in appro- plicants for assistance, benefits, or serv- posed revisions and amendments to the priation acts. Savings carried over into Bureau as follows: ices. a succeeding fiscal year shall be added (1) To the contracting officer in the (b) Determining the extent or amount to the contract amount for that fiscal Area Office when the tribe(s) or Indians of assistance, benefits, or services to be year. The savings shall not reduce the served by the contract are within the provided. amount that would have been made jurisdiction of that-Area Office. (e) Determining the provisions of such available if there had been no savings. (2) To the contracting officer in the assistance, benefits, or services. (c) If there are savings under a con- Bureau's headquarters in Washington, 8 271.54 Contract funds. tract that is retroceded as provided in D.C. when the tribe(s) or Indians served § 271.71, the savings shall be used by the are within the jurisdiction of more than The tribal organization shall be en- Bureau to operate the program or part of one Area Office: titled to be funded for direct and in- a program covered by the retroceded (c) The contractor shall send copies direct costs under the contract as fol- contract. The savings shall be carried of all requests for revisions or amend- lows: over and used for such operations during ments to the designated representative of (a) Direct costs under contracts for the succeeding fiscal year, except as the tribal governing body at the same operations of programs or parts shall otherwise specifically provided in appro- time as they are sent to the appropriate not be less than the Bureau would have priation acts. contracting officer. provided if the Bureau operated the pro- gram or part during the contract. Direct § 271.56 Privacy Act requirements. § 271.62 Review and action by contract- costs shall include the Bureau's direct (a) When & tribal contractor operates ing officer. costs for planning, administering, and a system of records to accomplish a Bu- Upon receipt of the proposed revision evaluating the program or part and shall reau function, the contractor shall com- or amendment from the contractor, the not be used to reduce indirect costs other- ply with Subpart D of 43 CFR Part 2 contracting officer shall, unless the tribal wise allowable to the tribal organization. which implements the Privacy Act (5 resolution under § 271.18(c) (2) or any FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51297 subsequent amendment restricts such contracting officer shall prepare a writ- (1) The contractor and the tribal gov- action. proceed as follows: ten recommendation to decline. erning body(s) may submit a written re- (a) Within five days. notify in writ- (b) This recommendation shall con- buttal to the Area Director's or Commis- ing the contractor and the tribal govern- tain, at a minimum, the following infor- sioner's plan to issue a declination notice. ing body(s) if different from the con-- mation: (ii) The contractor and the tribal gov- tractor, of receipt of the proposed re- (1) Identification of specific objec- erning body(s) may request to appear vision or amendment and that the tribal tions, categorized under one OF more of before the Area Director or Commis- governing body(s) shall have 15 days the declination factors: set forth in sioner or their representatives under par- from receipt of the notice to send any § 271.15. agraph (d) of this section. written objections to the contracting of- (2) Specific recommendations on ac- (iii) The contractor and the tribal gov. ficer. If the tribal governing body(s) ob- tions required by the contractor or erning body(s) must exercise these rights ject to the proposed revision or amend- tribe(s) to overcome objections. within 30 days after receiving the notice ment, the contracting officer shall SO (3) Description of the nature, scope, required in paragraph (c) (2) of this notify the contractor and the proceed- and source of the technical assistance section. ings under this subpart shall cease. which has been provided or offered by (d) If the contractor and the tribal (b) Within 30 days after the tribal the Bureau to assist the contractor and governing body request to appear be- governing body(s) received the notice, if the tribal governing body(s) to overcome fore the Area Director or Commissioner no objections are received, review the the declination objections. under paragraph (c) (ii) of this sec- proposed revision or amendment and the (4) Copies of all correspondence be- tion, the Area Director or Commissioner criteria for declination given in § 271.15. tween the contracting officer and con- shall: At the completion of the review, the fol- tractor and tribal governing body(s) and (1) Select a site for a meeting between lowing action will be taken as appropri- all responses thereto, including any re- the contractor, the tribal governing ate: ports of meetings between the parties body(s), and the Area Director or Com- (1) If there are no declination issues, relative to the proposed revision or missioner. The Area Director or Com- the contracting officer will notify the amendment. missioner may designate a representative contractor and the tribal governing (5) Copy of original proposed revi- from his office to attend the meeting. body(s) in writing of this fact and revise sion or amendment. (2) Authorize payment of transporta- or amend the contract within 30 days (c) The contracting officer shall make tion costs and per diem under terms he- of issuing the notice or at their written recommendations to: may make to allow adequate representa- convenience. (1) The Area Director when the tion of the contractor and the appropri- (2) If it is felt that there are declina- tribe(s) or Indians served by the con- ate tribe(s), if the meeting is more than tion issues that must be resolved, the tract are within the jurisdiction of that 50 miles from the office of the contractor. contracting officer will notify the con- Area Office. (3) Notify the contractor and the ap- tractor and the tribal governing body(s) (2) The Commissioner when the tribes propriate tribe(s) of the time, location of this fact and the extent of the issues, or Indians served are within the jurisdic- and other terms of the meeting. recommend a course of action to resolve tion. of more than one Area Office. (4) Hold the meeting within 30' days the issues and offer technical assistance § 271.64 Review and action by Area Di- of the request, unless the contractor and to resolve the issues within 30 days after rector or Commissioner. the tribal governing body(s) request a issuing the notice. later day. (1) If the contractor and the tribal (a) Within five days after receiving (e) (1) The Area Director or Commis- governing body(s) accept the technical a. proposed revision or amendment and sioner shall issue a declination notice as assistance, it shall continue in accord- the contracting officer's recommenda- follows: ance with their request. At such time as tions to decline, the Area Director or the issues are thus resolved the contract- Commissioner as given in $271.61 shall (1) Within 15 days after receiving the ing officer will so advise the contractor notify the contractor and the tribal gov- contractor's and tribal governing and the tribal governing body(s) and erning body(s) in writing of the receipt body(s)' rebuttal submitted under para- graph (c) (2) (i) of this section or after revise or amend the contract within 15 of the proposed revision or amendment. the conclusion of the meeting under days of resolution or at their conven- (b) Within 15 days after receiving the paragraph (d) of this section. ience. contracting officer's recommendations, (ii) If the contractor and the tribal the Area Director or Commissioner shall (ii) Within 45 days after issuing the notice under paragraph (c) (2) of this governing body(s) decline the contract- review the application, the contracting section when the contractor and tribal: ing officer's offer of technical assistance officer's recommendations, and the dec- governing body(s) have not used the and the matter is not otherwise resolved, lination criteria in $ 271.15. rights under paragraph (c) (2) of this the contracting officer shall proceed in (c) Within 15 days after receiving the section. accordance with for 271.63. contracting officer's recommendations, (2) The declination notice shall be in (iii) If the contractor and the tribal the Area Director or Commissioner shall writing and shall contain: governing body(s) do not respond within notify the contractor, the appropriate (i) Identification of specific objections, 30 days of receipt of the contracting of- tribal governing body(s), and the con- categorized under one or more of the dec- ficer's recommendations and offer of as- tracting office of one of the following: lination criteria set forth in $ 271.15. sistance and do not request additional (1) When the Area Director or Com- (ii) Specific recommendations on ac- time in which to respond the contract- missioner does not accept the contract- tions required by the contractor or tribe ing officer shall proceed in accordance ing officer's recommendations to decline, to overcome the objections. with $ 271.63. notice shall be given that the recommen- (iii) Description of the nature, scope, (iv) If the contractor and the tribal dations are not accepted and that the and source of the technical assistance governing body(s) do not agree with the Bureau shall revise or amend the con- which has been provided or offered by contracting officer's recommendations tract as requested by the contractor and the Bureau to assist the contractor and and the matter is not resolved within 30 the tribal governing body(s). the tribal governing body(s) to overcome days of the contracting officer's receipt of (2) When the Area Director or Com- declination objections. their response to the contracting officer's missioner accepts the contracting offi- (iv) Copies of all correspondence be- recommendations, the contracting officer cer's recommendations and believes the tween the Bureau, the contractor and/ shall proceed in accordance with $ 271.63. Bureau should not revise or amend the or tribe, and all responses thereto. in- § 271.63 Contracting officer's recom- contract as. requested, notice shall be cluding any reports or meetings between mendation to decline. given that the Area Director or Commis- the parties relative to the application. sioner plans to issue a declination notice (w) Copy of original proposed revision (a) If the contracting officer, the con- and that the contractor and the tribal or amendment. tractor, and the tribal governing body governing body(s) have the following (vi) The appeal of rights of the con- fail to resolve the declination issues, the rights: tractor and the tribal governing body(s) FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51298 RULES AND REGULATIONS under $ 271.82 or § 271.83 as given in tribe(s), except when the tribe(s) and outlining the reasons why retrocession 271.65. the Commissioner mutually agree on a was requested. later date. 271.65 Appeal of Area Director's or (g) Retrocession of a contract by an Commissioner's decision to decline. (b) When the contract is with a Indian tribe shall be without prejudice tribal organization other than the tribal to: (a) The contractor and/or the tribal governing body and the tribal resolution (1) Any other contract to which it is toverning body(s) shall have 60 days to required under § 271.18(e) (2) does not a party. appeal the decision by the Area Director vest in the tribal governing body the sole (2) Any other contracts it may re- Commissioner to decline to amend the right to request retrocession, the tribal quest. contract. governing body shall consult with the (3) Any future request to contract for (b) An appeal from an Area Director's tribal organization and, if so requested, the programs or services covered by the decision to decline to amend the con- offer it an opportunity to be heard in retroceded contract, insofar as the con- tract shall be made to the Commissioner accordance with tribal procedures ditions which led to retrocession are no as provided in § 271.82. before requesting retrocession of the longer a factor and the tribal organiza- (c) An appeal from the Commis- contract. tion is the same one that held the retro- sioner's decision to decline to amend the (c) When the contract is with a tribal ceded contract. contract shall be made to Director, Office organization which is performing serv- of Hearings and Appeals, Department of § 271.73 Tribal assumption of retro- ices benefiting more than one Indian ceded contracts. Interior, Washington, D.C., as provided tribe, all or any of the tribes may re- in $ 271.83. Wherever an Indian tribe chooses to quest a retrocession in accordance with $ 271.66 Revisions or amendments pro- the procedures provided for in the tribal retrocede a contract operated by a tribal resolution required for the initial con- organization other than the tribal gov- posed by Bureau. tract § 271.18(c) (2) When all of the erning body, the tribal governing body (a) Where the Bureau proposes a re- tribes request retrocession, the retroces- pursuant to $ 271.18 may contract for vision or amendment to a specific con- sion shall be accomplished as provided the program. In such a case, the tribal tract, it shall notify the contractor and for in this section. When one or more, governing body shall submit a contract the tribal governing body(s) in writing but not all of the tribes request retro- application pursuant to § 271.14; Pro- of the following: cession, the contract will continue until vided, That the tribal governing body (1) The specific revision or amend- the end of the contract term or the fiscal may submit the contract application di- ment which is proposed year, whichever comes first. In such case rectly to the Area Director or Commis- (2) The rationale for the proposal the Bureau shall assess its available re- sioner, as appropriate. (b) All amendments proposed by the sources and capabilities to provide such § 271.74 Reassumption. Bureau must be agreed to, in writing, services independently of and in addi- by the contractor, the tribal governing (a) A contract made under this Part tion to that being provided under the body(s) and the Bureau. If such agree- may be terminated, and control or opera- contract and inform the tribes request- ment cannot be obtained, the proposed tion of the program or function assumed ing retrocession of the level of services amendment shall not be adopted by the by the Commissioner or Area Director as that will be available to them upon Bureau. appropriate, in whole or in part, when retrocession. The fact that these services the Commissioner or Area Director de- Subpart F-Retrocession and may necessarily be at a reduced level termines that the tribal organization's Reassumption will not constitute cause to cancel the performance under the contract involves: § 271.71 Retrocession. existing contract providing services to (1) The violation of the rights of any tribes not retroceding. The existing con- (a) Tribal governing bodies not only persons can be identified as a pattern or tract will be modified as appropriate to practice, or have a right to contract for Bureau pro- reflect the nonparticipation to the tribes (2) The endangerment of the health, grams or portions thereof, as they no longer being served. The Bureau will, safety and welfare of any persons, or choose, but. also have a right to return however, provide sufficient resources to (3) Gross negligence or mismanage- responsibility for the operation of a con- maintain the existing level of services ment in the handling or misuse of funds tracted program or portion thereof to under the contract to the tribes that did provided under the contract. the Bureau for any reason they deem not request retrocession. (b) If the Commissioner or Area DI- appropriate. Retrocession specifically (d) Within 15 days after receipt by the rector as appropriate finds there is an recognizes the Federal Government's Commissioner or Area Director of a re- unique and continuing relationship with immediate threat to safety, he may, upon quest for retrocession. representatives of written notice to the tribal organization. and responsibility to Indian people. the tribe(s), the tribal organization when (b) When a tribal organization ex--- appropriate, and the Commissioner or immediately suspend the contract and periences specific problems with the op- Area Director as appropriate shall meet resume control or operation of the pro- eration of a contract and is considering and take the following actions: gram. In such an event, the Commis- (1) Mutually agree on a plan for or- sioner or Area Director will hold a hear- the possibility of retrocession, it may derly transfer of responsibilities. ing within 10 days. The hearing shall be request the Bureau to assist it to avoid (2) Mutually agree on a plan for in- conducted as provided in § 271.81. The retrocession. In the event of such a re- ventorying and accounting for materials decision issued pursuant to § 271.81(c) quest, the Bureau will: and supplies on hand, equipment, facili- shall include a statement of the correc- (1) Meet with appropriate officials of ties and real property. tive action needed to be taken by the the tribal organization and the tribe, (3) Establish an accounting of funds, tribal organization before it can assume where the tribal governing body is not current and anticipated obligations, and operation of the contract. the contractor, to develop a plan to avoid costs of operation until the retrocession (c) (1) If there is no immediate threat retrocession. date. to safety, the Commissioner or Area Di- (2) Provide, to the extent possible, (4) Identify all records relating to the special technical assistance to assist the rector as appropriate shall provide writ- contract and to the contracted function. ten notice to the tribal organization of tribal organization to satisfactorily op- (e) On the date of retrocession, the intent to terminate the contract. The erate the program and enable it to avoid tribal contractor will deliver to the Bu- retrocession. notice shall give the reasons for the pro- reau all property that was acquired with posed termination, the corrective meas- § 271.72 Full retrocession procedures. contract funds and all materials, supplies ures necessary, and a reasonable time and records of whatever nature which (a) Whenever an Indian tribe requests period in which corrective action must have been identified as necessary for the be taken. The Commissioner or Area Di- retrocession of a contract, retrocession continuation of the program, project or shall be effective upon a date specified by rector shall also hold a hearing in ac- function. cordance with § 271.81 within 10 days of the Commissioner or Area Director as ap- (f) Within 60 days after retrocession, issuance of the notice. propriate but no later than 120 days the tribe(s) and the Bureau will jointly (2) When the decision resulting from after the date of the request from the develop a report to the Commissioner the hearing held pursuant to $ 271.81 is FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51299 adverse to the tribal organization, the the Commissioner to review the Area § 271.76 Bureau operation of retro- decision shall as a minimum state the Director's decision as provided in para- ceded, reassumed or cancelled for corrective action that must be taken, graphs (e) and (f) of this section, the cause contracts. state the technical assistance the Bureau Area Director will cancel the contract will provide the tribal organization and (a) The Bureau shall provide to the for cause. The contracting officer will give the tribal organization at least 60 tribe(s) and Indians served by a contract notify the tribal organization, in writing, days in which to take corrective action. which is retroceded, reassumed, or can- of the cancellation. The notice shall give celled for cause not less than the same Within 30 days of the tribal organiza- the reasons for the cancellation and the quantity and quality of service that tion's receipt of an Area Director's de- right of the tribal organization to appeal would have been provided at the level cision, it may request the Commissioner under $ 271.84. to review the decision. If the Commis- (e) When the Area Director deter- intended by the contract or operated previously by the Bureau. sioner determines that staying the Area mines the contract should be cancelled Director's decision will not result in an for cause the decision shall state as a (b) The Bureau shall provide to the tribe(s) and Indians served by a contract immediate threat to safety, he may pro- minimum: The reasons for the decision; which is retroceded, reassumed, or can- vide additional time for taking correc- the actions that must be taken to achieve celled for cause not less than the same tive action. If the Commissioner deter- satisfactory performance; the technical mines the Area Director's decision is not quantity and quality of permanent and assistance the Bureau will provide 60 temporary personnel that meet the U.S. correct, he may advise the Area Director days to correct its performance deficien- Civil Service qualifications that would to rescind the hearing decision. cies; and the tribal organization's right have been provided at the level intended (d) A decision to terminate the con- of appeal under § 271.84. The decision tract and reassume control or operation by the contract or previously operated shall also advise the tribal organization by the Bureau. The procedures in $ 271.- may be appealed as provided in $271.82 that it may request the Commissioner to or $271.83, as appropriate. 77 will be followed to obtain personnel review the decision and that such re- (e) The Commissioner may decline to to operate programs or parts of programs quest must be made within 30 days of previously under contract with a tribal enter into a new contract and may retain receipt of the decision control of the program or function until (f) The Commissioner's review will be organization but returned for operation he is satisfied that the conditions which by the Bureau because the contract was conducted and the tribal. organization caused the contract to be terminated either retroceded, reassumed or. can- advised of the results within 30 days of celled for cause. have been corrected. receiving the request. If the Commis- (c) This section shall apply to all con- § 271.75 Cancellation of contract for sioner concurs in the Area Director's de- cision, the tribal organization will be so tracts for the operation of Bureau pro- cause grams or parts of programs in effect. at advised in writing and of its right to (a) Any contract with a tribal orga- the time of the effective date of these appeal the Area Director's decision pur- nization entered into under this Part regulations. entered into under the au- suant to § 271.84. If the Commissioner may be cancelled for cause when the decides that the Area Director's decision thority of the Buy Indian Act (25 U.S.C. tribal organization fails to perform 47), and any contracts under this Part. is not supported by the record, he will within the terms and conditions of the (d) Actions under this section shall so advise both the Area Director and the contract. tribal organization and the cancellation not cause a reduction in the quality and (b) Before. cancellation of the con- quantity of services to tribe(s) or Indi- action will cease. In no case shall an tract, the Area Director or Commissioner ans not served by contracts which are Area Director cancel a contract until the shall advise the tribal organization and retroceded, reassumed or cancelled for review requested by a tribal organiza- the tribal governing body(s) if different cause. tion has been completed by the Commis- than the tribal organization in writing sioner and results thereof have been § 271.77 Authorized position and end- of the following: received. of-year employment ceiling reserve (1) The reasons why the Area Director (g) When a contract is cancelled for for Bureau operation of retroceded, or Commissioner is considering cancel- cause, the Bureau will either perform reassumed or cancelled contracts. ling the contract. the work with its own forces or by an- (a) When authorized permanent and (2) That the tribal organization will other contract, as appropriate. When other positions and permanent and be given at least 45 days to present an the-Bureau does not have sufficient forces acceptable plan to overcome the de- other end-of-year employment ceiling on hand to immediately perform the are not required for the operation of all ficiencies in its contract performance. work, it may, for temporary periods of or parts of a Bureau program because (3) That the Bureau will furnish the shortest duration possible, contract the program or parts of a program are: technical advice an assistance to help with a contractor that is not a tribal overcome the deficiencies in the contract under contract with a. tribal organiza- organization. However, in such cases, tion under this Part, the positions and performance, when requested the advice of the tribe(s) will be obtained ceilings shall be reserved. The positions (c) When the contract is with other to determine how they desire the services and ceiling reserved shall be avail- than the governing body of the Indian to be rendered. tribe, the tribe(s) receiving services or able only for the same program or parts. (h) Excess costs resulting from a can- of a program at the same locations if the benefits under the contract will be noti- cellation that are required to operate the fied when a cancellation. for cause is Bureau must operate the program or program will be provided by the Bureau parts of a program because a tribe has contemplated. The notice shall include to the extent that funds are available for retroceded the contract or because the the reasons why a cancellation for cause that fiscal year. However, if current Bureau has reassumed or cancelled the is contemplated and any supporting funds are not sufficient to maintain the contract for cause. documents used by the Area. Director program at its planned level, the pro- to reach his conclusions. The notice (b) The Bureau shall establish a posi- gram may be reduced until funds become shall also offer to hold a meeting with tion and ceiling reserve for all contracts available for the remainder of the fiscal the tribe(s) to discuss the issues and ex- for the operation of all or parts of Bu- year, at which time the program will be plore any options available to the reau programs initially entered into on resumed at its planned level. tribe(s). The Area Director and the or after the effective date of these regu- (i) Any tribal organization that has lations. tribe(s) will mutually consider the rele- a contract cancelled for cause must dem- vant issues before the Area Director onstrate that the causes which led to the Subpart G-Hearings and Appeals proceeds with any cancellation action. cancellation have been cured before it § 271.81 Hearings. (d) If the tribal organization does not will be considered for another contract. present an acceptable plan to overcome Hearings required by § 271.74 shall be In addition, there must be a new resolu- conducted as follows: the deficiencies in its contract perform- tion and a new request from the Indian ance within 45 days of its receipt of the (a) The tribal organization and the tribe(s) that will receive services or ben- notice of deficiencies or does not request Indian tribe(s) shall be notified, in writ- efits under the contract. ing, of the hearing. The notice shall give FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY. NOVEMBER 4,, 1975 51300 RULES AND REGULATIONS the date, time, place, and purpose of the Sec. the administrative and programmatic hearing. 272.15 Assistance in completing form. provisions are specified. (b) A written record of the hearing 272.16 Request from tribal governing body. shall be made. The record shall include 272.17 Grant approval limitations. (i) "Grantee" means the tribal govern- 272.18 written statements submitted at the 272.19 Submitting application to Agency. ing body which is responsible for admin- Agency Office review and recommen- istration of the grant. hearing or within five days following the dation. (j) "Indian tribe" means any Indian hearing. 272.20 Deadline for Agency Office action. Tribe, Band, Nation, Rancheria, Pueblo, (c) Within 30 days of the hearing, the 272.21 Area Office review and action. Colony or Community, including any Commissioner or Area Director as ap- 272.22 Deadline for Area Office action. Alaska Native village or regional or vil- propriate shall issue a written decision 272.23 Central Office review and decision. on the issues considered during the 272.24 Deadline for Central Office action. lage corporation as defined in or estab- 272.25 Grant execution and administration. lished pursuant to the Alaska Native hearing. 272.26 Subgrants and subcontracts. Claims Settlement Act (85 Stat. 688) S 271.82 Appeals from decision or ac- 272.27 Acceptance of tribal plans for the which is federally recognized as eligible tion by Area Director. operation of Bureau programs. by the United States Government Subpart C-General Grant Requirements through the Secretary for the special A tribal organization (unless restricted by the tribal resolution under § 271.18 272.31 Applicability. programs and services provided by the 272.32 Secretary to Indians because of their (c) (2) or subsequent resolutions) or Reports and availability of informa- tribal governing body may appeal any tion to Indians. status as Indians. 272.33 Matching share. (k) "Indian" means a person who is a decision made or action taken by an 272.34 Performing personal services. member of an Indian tribe. Area Director under this Part. Such ap- 273.35 Fair and uniform services. (1) "Resolution" means the formal peal shall be made to the Commissioner 272.36 Penalties. manner in which the tribal government as provided in Part 2. of this chapter Subpart D-Grant Revision, Cancellation, or expresses its legislative will pursuant to S 271.83 Appeals from decision or ac- Assumption its organic documents. In the absence of tion by Commissioner. 272.41 Revisions or amendments of grants. such organic documents a written ex- 272.42 Assumption (a) A tribal organization (unless re- pression adopted pursuant to tribal (cur- stricted by the tribal resolution under Subpart E-Hearings and Appeals rent) practices will be acceptable. $ 271.18(c) (2) or subsequent resolutions) 272.51 Hearings. (m) "Secretary" means the Secretary or tribal governing body may appeal the 272.52 Appeals from decision or action by of the Interior. Commissioner's decision to decline to Superintendent. (n) "Superintendent" means the offi- 272.53 contract or to decline to amend a con- Appeals from decision or action by cial in charge of a Bureau of Indian Af- Area Director. tract under §§ 271.25 or 271.64 to the fairs Agency Office. 272.54 Appeals from decision or action by Director, Office of Hearings and Appeals, (o) "Subcontracts" means contracts Commissioner Department of the Interior, as provided 272.55 Failure of Agency or Area Office to undertaking some of the obligations of in Subpart G of 43 CFR Part 4. act. primary grants. (b) A tribal organization (unless re- (p) "Subgrants" means secondary. AUTHORITY: Sec. 104, Pub. L. 93-638, 88 tricted by the tribal resolution under Stat. 2203, unless otherwise noted grants undertaking some of the obliga- $ 271.18(c) (2) or subsequent resolutions) tions of primary grants. or tribal governing body may appeal any Subpart A-General Provisions (q) "Tribal government", "tribal gov- other decision made, action taken, or ac- § 272.1 Purpose and scope. erning body" and "tribal council" means tion not taken within the time limits re- the recognized governing body of an The purpose of the regulations in this Indian tribe. quired by this Part, by the Commissioner Part is to provide the application and ap- if authorized and as provided in Part 2 of (r) "Trust resources" means natural proval procedures for the award by the this chapter. A decision by the Commis- resources, land, water, minerals, funds or Bureau of grants under section 104(a) sioner concerning funding levels for a property, asset, or claim, including any of Title I of the Indian Self-Determina- program or part of a program to be con- intangible right or interest in any of the tion and Education Assistance Act (Pub- tracted is considered to be an exercise foregoing, which is held by the United lic Law 93-638, 88 Stat. 2203). Title I is of the Commissioner's discretionary au-, States in trust for any Indian tribe or known as the Indian Self-Determination thority and, therefore, is final for the Indian individual subject to a restriction Act. Secretary. on alienation imposed by the United § 271.84 Appeals from Bureau decision § 272.2 Definitions. States. (s) "Trust responsibility" means for to cancel contract for cause. As used in this Part: the purposes of this Part only the respon- A tribal organization (unless restricted (a) "Act" means the Indian Self- sibility assumed by. the United States by the tribal resolution under § 271.18 Determination and Education Assistance Government, by virtue of treaties, stat- (c) (2) or subsequent resolutions) may Act (Public Law 93-638, 88 Stat. 2203) utes and other means, legally associated appeal the Bureau's decision to cancel (b) "Applicant" means a tribal gov- with the role of trustee, to protect, man- for cause any contract made under this erning body applying for a grant under age, develop and approve authorized Part. Such appeal shall be made to the this Part. transfers of interest in trust resources Director of the Office of Hearings and (c) "Area Director" means the official held by Indian tribes and Indian individ- Appeals as provided in Subpart G of 43 in charge of a Bureau of Indian Affairs uals to a standard of the highest degree CFR Part 4. Area Office. of fiduciary responsibility. (d) "Bureau" means the Bureau of § 272.3 Effect on existing Indian rights. PART 272-GRANTS UNDER INDIAN Indian Affairs. SELF-DETERMINATION ACT The regulations in this Part are not (e) "Commissioner" means the Com- meant to and do not: Subpart A-General Provisions missioner of Indian Affairs. Sec. (a) Affect, modify, diminish, or other- 272.1 Purpose and scope. (f) "Days" means calendar days. wise impair the sovereign immunity from 272.2 Definitions. (g) "Economic enterprise" means any suit enjoyed by an Indian tribe; or 272.3 Effect on existing Indian rights. commercial, industrial, agricultural or 272.4 Revision or amendment of regula- business activity that is at least 51 per (b) Authorize, require or permit the tions. 272.5 cent Indian owned, established or orga- termination of any existing trust respon- Statement of policy. nized for the purpose of profit. sibility of the United States with respect Subpart B-Application Process (h) "Grant" means a written agree- to the Indian people. 272.11 Eligibility requirements. ment between the Bureau and a tribal 272.12 Purpose of grants. § 272.4 Revision or amendment of reg- 272.13 Obtaining application instructions governing body where the Bureau pro- ulations. and materials. vides funds to carry out specified pro- Before making any substantive revi- 272.14 Content of application. grams, services or activities and where sions or amendments to the regulations FEDERAL. REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51301 in this part, the Secretary shall take the administer Federal programs under con- (3) Training of tribal officials and em- following actions: tract, or enable the tribe to provide di- ployees in areas related to the conduct (a) Consult with Indian tribes and rection to Bureau programs and to other and administration of programs of the national and regional Indian organiza- Federal programs serving it. Bureau which the Indian tribe may wish tions to the extent practicable about the (e) Emphasis on planning and train- to operate under contract. need for revision or amendment and ing in relation to the purposes of a grant (4) Costs associated with contracting consider their views in preparing the given in paragraph (d) of this section to enable tribal contracting. Examples proposed revision or amendment. is considered in keeping with the intent of such costs include curriculum develop- (b) Present the proposed revision or of section 104(a) of the Act. Applica- ment in support of tribal contracting of amendment to the Committees on In- tions which include these elements are schools, in-service training programs to terior and Insular Affairs of the United encouraged. develop the skills of employees of the States Senate and House of Represent- atives. Subpart B-Application Process Indian tribe on a continuing basis, special on-the-job training activities in support (c) Publish any proposed revisions or § 272.11 Eligibility requirements. of tribal members being prepared to amendments in the FEDERAL REGISTER as The governing body of any Indian tribe assume program responsibilities. proposed rulemaking to provide adequate or tribes may apply for a grant under (c) Acquisition of land in connection notice to, and receive comments from this Part. with paragraphs (a) and (b) of this sec- all interested parties. tion. Procedures for acquisition of land (d) After consideration of all com- § 272.12 Purposes of grants. are prescribed in § 276.11 of this chapter. ments received, publish the regulations Grants are for the purpose of (a) (d) Planning, designing, monitoring, in the FEDERAL REGISTER in final form Strengthening and improving adminis- and evaluating Federal programs serving not less than 30 days before the date tration of tribal government. Examples the Indian tribe. An example of this re- they are made effective. in this specific regard are as follows: gard is assisting the tribal government to (e) Annually consult with Indian (1) Developing the capability of the influence Federal programs presently tribes and national and regional Indian executive, legislative, and judicial offered or those that could be offered to organizations about the need for revi- branches of tribal government in such the tribe to assure that they are respon- sion or amendment, and consider their areas as administration of planning, fi- sive to the needs of Indian tribes. A tribal views in preparing the revision or nancial management, or merit personnel government may monitor and evaluate amendment. systems. the operations of such programs which (f) Nothing in this section shall pre- (2) Improvement of tribally funded now serve tribal members and replan clude Indian tribes or national or re- programs or activities. and redesign those programs to better gional organizations from initiating re- (3) Development. construction, im- respond to their needs. Bureau programs quests for revisions or amendments, provement, maintenance, preservation, or which are planned, replanned, designed subject to paragraphs (a), (b), (c) and operation of tribal facilities or resources. or redesigned in accordance with this (d) of this section. (4) Training of tribal officials and em- paragraph shall be implemented by the § 272.5 Statement of policy. ployees in areas relating to the planning. Bureau as prescribed in § 272.27. conduct and administration of tribal (e) Funds made available for grants (a) The Indian Self-Determination programs. for the purposes described above may and Education Assistance Act (Pub. L (5) Design and implementation of new be applied as matching shares for other 93-638) is intended to facilitate in- Federal or non-Federal grant programs creased self-determination for American tribal government operations. Indians by providing a means through (6) Development of policy-making, as prescribed in $ 272.33. which they may plan, conduct and ad- legislative and judicial skills. $ 272.13 Obtaining application instrue- minister programs and services to In- (b) Planning, training, evaluation or tions and materials. dian people. These programs and serv- other activities designed to improve the ices are essentially those authorized by capacity of an Indian tribe to enter into Application instructions and related the Act of April 16, 1934 (Johnson- a contract or contracts pursuant to sec- application materials may be obtained O'Malley Act) the Act of November 2, tion 102 of the Act and the additional from Superintendents, Area Directors, and the Commissioner. 1921 (Snyder Act) and other subsequent costs associated with the initial years of Acts. operation under such a contract or con- § 272.14 Content of application. (b) A most important aid available to tracts. Examples of use of grants by In- assist Indians in achieving this objective dian tribes, as indicated in this para- Application for a grant under this Part shall include: of increased self-determination is the graph, are as follows: grant authority provided in section 104 (1) Evaluation of programs and serv- (a) Name and address of Indian tribal of the Act. This grant authority will as- ices currently being provided directly by governing body(s) applying for a grant. sist Indian tribes in improving their gov- the Bureau in order to determine: (b) Descriptive name of project. (i) Whether it is appropriate for the (c) Federal funding needed. erning capabilities, increase their ability Indian tribe to enter into a contract pur- (d) Population directly benefiting to effectively administer programs under from the project. contract, and enable them to provide di-- suant to section 102 of the Act for a pro- gram or a portion of a program. (e) Length of project. rection to the Federal programs intended (f) Beginning date. to serve Indian people. (ii) Whether the Indian tribe can im- (g) Project budget categories or items. (c) Under this grant authority the prove the quality or quantity of the serv- (h) Program narrative statement. Bureau of Indian Affairs will administer ice now available. (i) Certification or evidence of request a program of Indian self-determination (iii) Whether certain components by Indian tribe. grants which shall be subject to Parts should be redesigned but the program (j) Name and address of Bureau office 272 and 276 of this chapter. In the ad- should continue to be operated by the to which application is submitted. ministration of this grant program, it Bureau. (k) Date application is submitted to shall be the Bureau's policy that ap- (iv) Whether the program as currently Bureau. proval of applications for these grants administered by the Bureau is adequate shall include a determination that there (1) Additional information pertaining to meet tribal needs and, therefore, the to grant applications for funds to be is a direct and reasonable relationship Indian tribal organization does not wish between the applicant's proposal and the used as matching shares will be requested to contract or modify the program. as prescribed in § 272.33. provisions of section 104a of the Act and (2) Planning or redesigning a Bureau of $ 272.12. program before the Indian tribe con- § 272.15 Assistance in developing and (d) In accordance with this policy, it tracts for it, and development of an oper- completing grant applications. shall be the responsibility of the appli- ational plan for carrying out the antici- (a) Technical assistance and support cant to establish that such a grant will pated contract in order to facilitate the necessary to develop and complete grant improve the tribe's governing capabili- transition of the program from Bureau applications under this Part shall be pro- ties, enhance the tribe's ability to to tribal operation. vided by the Superintendents, Area Di- FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51302 RULES AND REGULATIONS rectors and their designated representa- § 272.18 Submitting application to (1) Review the application following tives upon request of the applicant. Agency Office. the applicable review procedure pre- (b) Applicants may apply for initial An application for a grant under this scribed in § 272.19. planning grants to cover the costs of Part shall be initially submitted to the (2) Review the Superintendent's rec- developing and completing larger grant appropriate Superintendent for review ommendation as pertains to the appli- applications. Such initial planning grants and recommendation as prescribed in cation. will be made from funds which may be § 272.19. This does not include applica- (3) Approve or disapprove the appli- budgeted for grants under this part for tions for initial planning grants to de- cation. tribal governing bodies. Applications for velop and complete larger grant appli- (b) In instances where a joint appli- these initial planning grants shall be cations. Such initial planning grant cation is made by tribes representing made as follows: applications are submitted and acted more than one Area Office administra- (1) An application for an initial plan- ning grant may be accomplished by sub- upon as prescribed in § 272.15(b). tive jurisdiction, the Area Director shall add his recommendation for approval or mission of a tribal request as prescribed § 272.19 Agency Office review and rec- disapproval to that of the Superintend- in § 272.16, together with an accompany- ommendation. ent and shall forward the application and ing letter from the tribal governing (a) Recommendation for approval or recommendations to the Commissioner body requesting an initial planning grant disapproval of a grant under this Part for further action. in a specific amount. This letter shall in- shall be made by the Superintendent (c) Upon taking action as prescribed clude a brief description of the proposed when the intent, purpose and scope of in paragraph (a) or (b) of this section, initial planning project, its purpose or the grant proposal pertains to or involves the Area Director shall promptly notify objective as related to development or an Indian tribe or tribes located within the applicant in writing as to the action completion of a larger grant application, that Superintendent's administrative taken. If the action taken is disapproval and the initial planning project budget jurisdiction. or recommendation for disapproval of categories or items. (b) Upon receipt of an application for the application, the Area Director will (2) This initial planning grant shall a grant under this Part, the Superintend- include in the written notice the specific be no more than 10% of total grant ent shall: reasons therefor. funds which may be budgeted for grants (1) Acknowledge in writing receipt of under this part for the tribal governing § 272.22 Deadline for Area Office ac- the application within 10 days of its tion. body, up to a maximum of $20,000. arrival at the Agency Office. (3) An application for an initial plan- (2) Review the application for com- Within 30 days of receipt of an appli- ning grant shall be submitted directly pleteness of information and promptly cation for a grant under this Part, the to the appropriate officer having grant request any additional information which Area Director shall take action as pre- approval authority as prescribed in may be required to make a recommen- scribed in § 272.21. Extension of this § 272.17(a) or (b) and shall be acted dation. deadline will require consultation with upon by that officer within 30 days. (3) Assess the completed application and written consent of the applicant. § 272.16 Request from tribal governing for appropriateness of purpose as pre- § 272.23 Central Office review and de- body. scribed in $ 272.12, and for overall cision. feasibility. The Bureau shall not make a grant Upon receipt of an application for a (4) Inform the applicant, in writing under this Part unless specifically and and before any final recommendation, of grant requiring Central Office approval, officially requested to do so by a tribal the Commissioner shall: any special problems or impediments governing body. This request may be in which may result in a recommendation (a) Review the application following the form of a tribal resolution, an en- for disapproval; offer any available tech- the applicable review procedures pre- dorsement included in the grant appli- scribed in § 272.19. nical assistance required to overcome cation or such other forms as the tribal (b) Review Agency and Area Office such problems or impediments; and constitution or current practice requires. solicit the applicant's written response. recommendations as pertain to the ap- plication. § 272.17 Grant approval limitations. (5) Recommend approval or disap- proval following full assessment of the (c) Approve or disapprove the appli- (a) Area Office approval. Authority cation. completed application and forward the for approval of a grant application under (d) Promptly notify the applicant in application and recommendation to the this Part shall be with the Area Director Area Director for further action. writing as to the approval or disapproval when the intent, purpose and scope of of the application. If the application is (6) Promptly notify the applicant in the grant proposal pertains solely to an. disapproved, the Commissioner will in- writing as to the final recommendation. Indian tribe or tribes located within that If the recommendation is for disapproval, clude in the written notice the specific Area Director's administrative jurisdic- reasons therefor. the Superintendent will include in the tion. written notice to the applicant the spe- § 272.24 Deadline for Central Office ac- (b) Central Office approval. Authority cific reasons therefor. tion. for approval of a grant application under (7) In instances where a joint appli- Within 30 days of receipt of an appli- this Part shall be with the Commissioner cation is made by tribes representing cation for a grant under this Part the when the intent, purpose and scope of more than one Agency Office adminis- the grant proposal pertains to Indian Commissioner shall take action as pre- trative jurisdiction, copies of the applica- scribed in § 272.23. Extension of this tribes representing different Area Office tion shall be provided by the applicants deadline will require consultation with administrative jurisdictions but located to each involved Superintendent for re- within the Commissioner's overall ad- and written consent of the applicant. view and recommendation as prescribed ministrative jurisdiction. in this section. § 272.25 Grant execution and adminis- (c) Grant approvals under this sec- tration. tion shall be subject to availability of § 272.20 Deadline for Agency Office (a) Grants approved pursuant to funds. These funds will include those action. § 272.17(a) shall be executed and admin- which are: Within 30 days of receipt of an appli- istered at the Area Office level. (1) Directly appropriated for imple- cation for a grant under this Part, the (b) Grants approved pursuant to mentation of this Act. Superintendent shall take action as pre- $ 272.17(b) shall be-executed and admin- (2) Appropriated under other Acts for scribed in § 272.19. Extension of this istered at the Central Office level pro- Bureau programs which are related to deadline will require consultation with vided that the Commissioner may desig- the purposes prescribed in § 272.12. How- and written consent of the applicant. nate an Area Office to execute or admin- ever, this does not include funds appro- § 272.21 Area Office review and action. ister such a grant. priated for Indian Business Development (a) Upon receipt of an application for § 272.26 Subgrants and subcontracts. Fund grants which are administered a grant requiring Area Office approval, The grantee may make subgrants or under Part 80 of this chapter. the Area Director shall: subcontracts under this part provided FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51303 that such subgrants or subcontracts are (b) Superintendents, Area Directors, celled for cause, the Bureau may decline for the purpose for which the grant was and their designated representatives will, to enter into a new grant agreement until made and that the grantee retains ad- upon tribal request, assist tribes in ob- satisfied that the cause for cancellation ministrative and financial responsibility taining information concerning other has been corrected. over the activity and the funds. Federal grantor agencies with matching fund programs and will, upon tribal re- Subpart E-Hearings and Appeals § 272.27 Acceptance of tribal plans for quest, provide technical assistance to § 272.51 Hearings- the operation of Bureau programs. tribes in developing applications for sub- Hearings referred to in § 276.15 of this Any Bureau program, excluding any mission to those Federal grantor chapter shall be conducted as follows: trust resources program, which is agencies. (a) The grantee and the Indian planned, replanned, designed or rede- signed by a tribe under a grant provided § 272.34 Performing personal services. tribe(s) affected shall be notified, in under this part, or from any other re- Any grant provided under this Part writing, at least 10 days before the hear- source, shall be implemented by the Bu- may include provisions for the perform- ing. The notice should give the date, time, reau if requested by the tribe through ance of personal services- which would place, and purpose of the hearing. resolution. However, before implemen- otherwise be performed by Federal (b) A written record of the hearing shall be made. The record shall include tation the program shall meet the fol- employees. written statements submitted at the lowing requirements: § 272.35 Fair and uniform services. hearing or within 5 days following the (a) Funding. staffing and other re- Any grant provided under this Part hearing. sources are available to implement the plan. shall include provisions to assure the fair (c) The hearing will be conducted on and uniform provision by the grantee of as informal a basis as possible. (b) The implementation of the plan would not cause a reduction in the qual- services and assistance to all Indians in- § 272.52 Appeals from decision or ac- ity or quantity of services to Indians. cluded within or affected by the intent, tion by Superintendent. (c) The plan meets the administrative purpose and scope of that grant. (a) A grantee may appeal any decision planning requirements of the Bureau. § 272.36 Penalties. made or action taken by a Superinten- However, the plan need not meet the planning requirements for the particular If any officer, director, agent, or em- dent under this Part. Such appeal shall ployee of, or connected with, any recipi- be made to the Area Director as provided program. ent of a grant, subgrant, contract or sub- in Part 2 of this chapter. (d) The plan provides a basis for the contract under this Part, embezzles, will- (b) The appellant shall provide its delivery of satisfactory services to Indian people, unless it can be demonstrated by fully misapplies, steals, or obtains by own attorney or other advocates to rep- the Bureau by substantial evidence that fraud any of the money, funds, assets, or resent it during the appeal process. the plan will yield results which will be property which are the subject of such a § 272.53 Appeals from decision or ac- deleterious to the welfare of the Indian grant, subgrant, contract, or subcontract, tion by Area Director. people to be served. he shall be subject to the following (a) A grantee may appeal any decision (e) The Commissioner may waive any penalties: made or action taken by an Area Director regulatory requirements given elsewhere (a) If the amount involved does not under this Part. Such appeal shall be in this chapter or any other requirements exceed $100, he shall be fined not more than $1,000 or imprisoned not more than made to the Commissioner as provided not inconsistent with law. Inconsisten- in Part 2 of this chapter. cles between tribal plans and Bureau one year, or both. (b) If the amount involved exceeds (b) The appellant shall provide its own manual, guidelines, or other non-regula- tory procedures are not constraints on $100, he shall be fined not more than attorney or other advocates to represent $10,000 or imprisoned for not more than it during the appeal process. the tribal plans. two years, or both. § 272.54 Appeals from decision or ac- Subpart C-General Grant Requirements tion by Commissioner. Subpart D-Grant Revision, Cancellation, § 272.31 Applicability. or Assumption (a) A grantee may appeal any decision The general requirements for grant ad- § 272.41 Revisions or amendments of made or action taken by the Commis- sioner under this Part only as provided ministration in this Subpart are appli- grants. in Part 2 of this chapter. cable to all Bureau grants provided to (a) Requests for budget revisions or (b) The appellant shall provide its tribal governing bodies under this Part, amendments to grants awarded under own attorney or other advocates to rep- except to the extent inconsistent with an this Part shall be made as provided in resent it during the appeal process. applicable Federal statute or regulation. $ 276.14 of this chapter. § 272.32 Reports and availability of in- (b) Requests for revisions or amend- § 272.55 Failure of Agency or Area Of- formation to Indians. ments to grants provided under this Part, fice to act. other than budget revisions referred to Whenever a Superintendent or Area Any tribal governing body receiving in paragraph (a) of this section, shall be Director fails to take action on a grant a grant under this Part shall make in- made to the Bureau officer responsible application within the time limits estab- formation and reports concerning that for approving the grant in its original lished in this Part, the applicant may at grant available to the Indian people form. Upon receipt of a request for revi- its option, request action by the next which it serves or represents. Access to sions or amendments to grants, the re- higher Bureau official who has grant ap- these data shall be requested in writing sponsible Bureau officer shall follow pre- proval authority as prescribed in this and shall be made available by the tribe cisely the same review procedures and Part. In such instances, the Superin- within 10 days of receipt of that request, time specified in § 272.19. tendent or Area Director who failed to subject to any exceptions provided for in act shall immediately forward the ap- the Freedom of Information Act (5 U.S.C. § 272.42 Assumption. plication and all related materials to 552), as amended by the Act of No- (a) When the Bureau cancels a grant that next higher Bureau official. vember 21, 1974 (P.L. 93-502; 88 Stat. for cause as specified in § 276.15 of this 1561). chapter, the Bureau may assume control PART 273-EDUCATION CONTRACTS § 272.33 Matching share. or operation of the grant program, ac- UNDER JOHNSON-O'MALLEY ACT tivity or service. However, the bureau (a) Specific Federal laws notwith- shall not assume a grant program, ac- Subpart A-General Provisions standing, grant funds provided to tribal tivity or service that it did not administer Sec. governing bodies under this Part may be before tribal grantee control unless the 273.1 Purpose and scope. used as matching shares for any other 273.2 Definitions. tribal grantee and the Bureau agree to 273.3 Revision or amendment of regula- Federal or non-Federal grant programs the assumption. tions. which contribute to the purposes speci- (b) When the Bureau assumes control 273.4 Policy of maximum Indian partici- fied in $ 272.12. or operation of a grant program can- pation. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51304 RULES AND REGULATIONS Subpart B-Application Process such support is necessary to maintain Stat. 1458, 25 U.S.C. 452-456), and fur- Sec. established State educational standards. ther amended by the Act of January 4, 273.11 Eligible applicants. (b) The application and approval proc- 1975 (88 Stat. 2203). 273.12 Eligible students. ess in this part applies specifically to 273.13 Proposals eligible for contracts. (1) "Operational support" means those 273.14 Preparing the education plan. contracts with a State, school district, expenditures for school operational costs 273.15 Establishment of Indian Education or Indian corporation. in order to meet established State ed- Committee. (c) Contracts with tribal organiza- ucational standards or State-wide re- 273.16 Powers and duties of Indian Educa- tions for supplemental and operational quirements. tion Committee. support will be entered into only upon (m) "Pub. L. 93-638" means the In- 273.17 Programs approved by Indian Educa- the request of an Indian tribe(s), and dian Self-Determination and Education tion Committee. shall be subject to the provisions of Part 273.18 Additional requirements for educa- Assistance Act (Pub. L. 93-638; 88 Stat. 271 of this chapter and 41 CFR Part 2203). tion plan. 273.19 Obtaining application forms. 14H-70, except as provided in § 273.11. (n) "Previously private school" means 273.20 Content of application to contract. (d) Nothing in these regulations shall a school (other than a Federal school 273.21 Tribal request for contract. be construed as: formerly operated by the Bureau) that is 273.22 Application approval officials. (1) Affecting, modifying, diminishing, operated primarily for Indian students 273.23 Submitting application to Area of- or otherwise impairing the sovereign im- from age 3 years through grades 12; and, fice. munity from suit enjoyed by an Indian which at the time of application is con- 273.24 Area Office review and decision. tribe; 273.25 Deadline for Area Office action. trolled, sanctioned, or chartered by the 273.26 Submitting application to Central (2) Authorizing or requiring the ter- government body(s) of an Indian Office. mination of any existing trust respon- tribe(s). 273.27 Central Office review and decision sibility of the United States with re- (o) "Reservation" or "Indian Reserv- 273.28 Deadline for Central Office action. spect to the Indian people; or, ation" means any Indian tribe's reserva- 273.29 Negotiating the contract. (3) Permitting significant reduction in tion, Pueblo, Colony, or Rancheria, Subpart C-Funding Provisions services to Indian people as a result of including former reservations in Okla- this Part. 273.31 Distribution formula. homa, Alaska Natives regions established 273.32 Pro rata requirement. (e) Nothing in these regulations shall pursuant to the Alaska Native Claims 273.33 Use of funds for operational support. be construed to mandate an Indian tribe Settlement Act (85 Stat. 688), and In- 273.34 Use of other Federal, State and local to request a contract or contracts. Such dian allotments. funds. requests are strictly voluntary (p) "School district" or "local educa- 273.35 Capital outlay or debt retirement 273.36 Eligible subcontractors. § 273.2 Definitions. tion agency" means that subdivision of 273.37 Use of funds outside of schools. As used in this Part: the State which contains the public ele- 273.38 Equal quality and standard of edu- mentary and secondary educational in- (a) "Area Director" means the offi- cation. stitutions providing educational services cial in charge of a Bureau of Indian Affairs Area Office. and is controlled by a duly elected board, Subpart D-General Contract Requirements (b) "Bureau" means the Bureau of commission, or similarly constituted 273.41 Special program provisions to be in- assembly. cluded in contract. Indian Affairs. 273.42 Civil Rights Act violations. (c) "Commissioner" means the Com- (q) "Secretary" means the Secretary of the Interior. 273.43 Advance payments. missioner of Indian Affairs. 273.44 Use and transfer of Government (d) "Days" means calendar days. (r) "State" means a State of the property. (e) "Economic enterprise" means any United States of America or any political 273.45 Indian preference. subdivision of a State. 273.46 Liability and motor commercial, industrial, agricultural, or (s) "Superintendent" means the official ance. business activity that is at least 51 per- in charge of a Bureau of Indian Affairs 273.47 Recordkeeping. cent Indian owned, established or or- Agency Office. 273.48 Audit and inspection. ganized for the purpose of profit. 273.49 Freedom of information. (f) "Education plan" means a com- (t) "Supplemental programs" means 273.50 Annual reporting. prehensive plan for the programmatic those programs designed to meet the 273.51 Penalties. and fiscal services of and accountability specialized and unique educational needs 273.52 State school laws. by a contractor for the education of eli- of eligible Indian students which may 273.53 Applicable procurement regulations. 273.54 Privacy Act requirements. gible Indian students under this Part. have resulted from socio-economic con- (g) "Indian tribe" means any Indian ditions of the parents, from cultural or Subpart E-Contract Revision or Cancellation Tribe, Band, Nation Rancheria, Pueb- language differences or other factors, and 273.61 Contract revision or amendment. lo, Colony or Community, including as provided by $ 273.34(b) 273.62 Cancelling a contract for cause. any Alaska Native village or regional or (u) "Tribal government", "tribal gov- Subpart F-Appeals village-corporation as defined in or es- erning body" and "tribal Council" means 273.71 Contract appeal. tablished pursuant to the Alaska Native the recognized governing body of an In- Claims Settlement Act (85 Stat. 688) dian tribe. 273.72 Appeal from decision to cancel con- tract for cause. which is federally recognized as eligible (v) "Tribal organization," means the 273.73 Other appeals. by the United States Government recognized governing body of any Indian AUTHORITY: 25 U.S.C. 452-456; sec. 202, through the Secretary for the special tribe or any legally established organiza- Pub. L. 93-638, 88 Stat. 2203, unless other programs and services provided by the tion of Indians or tribes which is con- wise noted. Secretary to Indians because of their trolled, sanctioned, or chartered by such status as Indians. Subpart A-General Provisions governing body or bodies, or which is (h) "Indian corporation" means a le- democratically elected by the adult mem- § 273.1 Purpose and scope. gally established organization of Indians bers of the Indian community to be (a) The purpose of the regulations in chartered under State or Federal law served by such organization and which this Part is to set forth the application and which is not included within the includes the maximum participation of and approval process for education con- definition of "tribal organization" given Indians in all phases of its activities: tracts under the Johnson-O'Malley Act. in paragraph (u) of this section. Provided, That a request for a contract Such contracts shall be for the purpose (i) "Indian Education Committee" must be made by the Indian tribe that of financially assisting those efforts de- means one of the entities specified by will receive services under the contract; signed to meet the specialized and $ 273.15. Provided further, That in any case where unique educational needs of eligible In- (j) "Indian" means a person who is a contract is let to an organization to a member of an Indian tribe. dian students, including programs sup- perform services benefiting more than (k) "Johnson-O'Malley Act" means one Indian tribe, the approval of each plemental to the regular school program the Act of April 16, 1934 (48 Stat. 596), such Indian tribe shall be a prerequisite and school operational support, where as amended by the Act of June 4, 1936 (49 to the letting of such contract. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51305 § 273.3 Revision or amendment of reg. (2) The requirements in §§ 271.1 without regard to contract funds pur- ulations. through 271.27, 271.41 through 271.52, suant to this part. In order to make any substantive revi- 271.54, 271.61 through 271.68, and 271.81 (vii) It shall not budget or project a through 271.84 shall apply to such con- deficit by using contract funds pursuant sion or amendments to regulations in this part, the Secretary shall take the fol- tracts with tribal organizations. to this Part. (3) The provisions in §§ 271.71 (2) The requirements given in para- lowing actions: (a) Consult with Indian tribes and through 271.77 of this chapter concern- graph (b) (1) of this section do not apply ing retrocession and reassumption of to previously private schools. national and regional Indian organiza- programs do not apply to a tribal orga- (c) At his discretion, the Commissioner tions to the extent practicable about the need for revision or amendment and nization retroceding a contract for sup- may consider as eligible a proposal to consider their views in preparing the plemental programs or operational sup- contract under which a school district proposed revision or amendment. port as the Bureau does not operate will be reimbursed for the full per capita (b) Publish the proposed revisions or education programs authorized to be costs of educating Indian students who contracted under the Johnson-O'Malley meet all of the following: amendments in the Federal Register as proposed rulemaking to provide ade- Act. However, the tribal organization (1) Are members of recognized Indian may retrocede such a contract and the tribes. quate notice to, and receive comments Bureau will then contract with a State, from, all interested parties. (2) Do not normally reside in the State (c) After consideration of all com- school district, or Indian corporation in which the school district is located. under this Part for the supplemental ments received, publish the regulations (3) Are residing in Federal boarding in the Federal Register in final form not programs or operational support. facilities for the purpose of attending (4) The requirements in §§ 273.12 less than 30 days before the date they public schools within the school district. through 273.18, 273.20, 273.21, 273.31 are made effective. through 273.39, 273.41, 273.51 and 273.52 § 273.14 Preparing the education plan. (d) Annually consult with Indian tribes and national and regional Indian shall apply to such contracts with tribal A prospective contractor in consulta- organizations about the need for revi- organizations. tion with its Indian Education Commit- sion or amendment, and consider their (5) The requirements in 41 CFR Part tee(s) shall formulate an education plan 14H-70 shall apply to such contracts and submit it to the appropriate Area Di- views in preparing the revision or with tribal organizations. rector as a. part of the application to amendment (e) Nothing in this section shall pre- § 273.12 Eligible students. contract required by § 273.20. Such plan shall become a part of any contract clude Indian tribes or national or re- Indian students, from age 3 years awarded. The education plan shall con- gional Indian organizations from initiat- through grade(s) 12, except those who tain: ing request for revisions or amendments are enrolled in Bureau or sectarian op- subject to paragraphs (a), (b), and (c) (a) The education programs approved erated schools, shall be eligible for bene- of this section. by the Indian Education Committee(s) fits provided by a contract pursuant to as required in § 273.17. § 273.4 Policy of maximum Indian par- this Part if they are 1/4 or more degree Indian blood and recognized by the (b) Other requirements for the educa- ticipation. Secretary as being eligible for Bureau tion plan given in § 273.18. The meaningful participation in all aspects of educational program develop- services. Priority shall be given to con- § 273.15 Establishment of Indian Edu- ment and implementation by those tracts (a) which would serve Indian cation Committee. affected by such programs is an essential students on or near reservations and (b) (a) When a school district to be requisite for success. Such participation where a majority of such Indian stu- dents will be members of the tribe(s) affected by a contract(s). for the educa- not only enhances program responsive- of such reservations (as defined in tion of Indians pursuant to this Part ness to the needs of those served, but has a local school board not composed of also provides them with the opportunity $ 273.2(o)). a majority of Indians, the tribal govern- to determine and affect the desired level § 273.13 Proposals eligible for contracts. ing body(s) of the Indian tribe(s) of educational achievement and satis- (a) Any proposal to contract for fund- affected by the contract(s) under this faction which education can and should ing a program which meets the definition Part shall specify one of the following provide. Consistent with this concept, of a supplemental program given in entities to serve as the Indian Education maximum Indian participation in the § 273.2(t) will be considered an eligible Committee for the purpose of this Part: development, approval and implementa- proposal under this Part. (1) An Indian Education Committee to tion of all programs contracted under (b) (1) To contract for operational be elected from among the parents (in- this Part shall be required. support, a public school district shall be cluding persons acting in loco parentis Subpart B-Application Process required to establish as part of the pro- except school administrators or officials) posal that: of eligible Indian students enrolled in the § 273.11 Eligible applicants. (1) It cannot meet the applicable min- school(s) affected by a contract(s) under (a) Any State, school district, tribal imum State standards or requirements this Part; or organization or Indian corporation is without such funds. (2) A local Indian committee estab- eligible to apply for contracts for sup- (ii) It has made a reasonable tax effort "lished pursuant to section 305(b) (2) (B) plemental or operational support pro- with a mill levy at least equal to the (ii) of the Act of January 23, 1972 (86 grams. For the purposes of this Part, State average in support of educational Stat. 235) and existing prior to January previously private schools as defined in programs. 4, 1975; or $ 273.2(n) are considered tribal orga- (iii) It has fully utilized all other (3) An Indian advisory school board nizations. sources of financial aid, including all or Indian Education Committee estab- (b) States, school districts, or Indian forms of State aid and Pub. L. 874 pay- lished pursuant to the Johnson-O'Malley corporations shall apply for contracts ments. The State aid contribution per Act and existing prior to January 4, for supplemental or operational support pupil must be at least equal to the State 1975. programs as required in this Part. average. (b) When the local school board is (c) Tribal organizations must comply (iv) There is at least 70 percent eligi- not composed of a majority of Indians with the following requirements to ob- ble Indian enrollment within the school and the tribal governing body(s) of the tain contracts for supplemental pro- district. Indian tribe(s) affected by a contract(s) grams or operational support: (v) It shall clearly identify the edu- under this Part determine which of the (1) The application submitted by the cational needs of the students intended entities provided for in paragraph (a) of tribal organization shall meet the re- to benefit from the contract. this section is to serve as the Indian Edu- quirements in $ 273.20 in addition to (vi) It has made a good faith effort in cation Committee for the purpose of this those in $ 271.14 of this chapter. computing State and local contributions Part, it shall notify the Area Director of FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51307 program results, and dissemination § 273.24 Area Office review and decision. (c) On receiving an application for thereof. Upon receiving a contract application, operational support, make formal writ- (4) Determination of staff and pro- ten determination and findings support- the Area Director shall: gram effectiveness in meeting the stated ing the need for such funds. In arriving (a) Notify the applicant in writing that needs of target students. at such a determination, the Commis- the application has been received. This sioner must be assured that each local § 273.19 Obtaining application forms. notice shall be made within fourteen education agency has made a good faith Application forms, instructions, and (14) days after the Area Office receives effort in computing State and local con- related application materials are avail- the application. tributions without regard to funds re- (b) Review the application for com- able from Agency Superintendents, Area quested pursuant to this Part. Directors and the Commissioner. Use of pleteness and request within 20 days any (d) Assess the completed application additional information from the appli- standard application forms will facilitate to determine if the contract proposal is cant which will be needed to reach a processing of applications. However, feasible and if the proposal and the ap- decision. they are not required if the information plication comply with the appropriate (c) On receiving an application for required by $ 273.20 is given in the ap- requirements of the Johnson-OMalley operational support, make formal written plication to contract. Act and of the regulations in this Part. determination and findings supporting (e) Approve or disapprove the appli- § 273.20 Content of application to con- the need for such funds. In arriving at cation after fully reviewing and assessing tract. such a determination, the Area Director the application and any additional infor- An application for a contract under must be assured that each local educa- mation submitted by the applicant. this Part shall be in writing and shall tion agency has made a good faith effort (f) Promptly notify the applicant in contain the following: in computing State and local contribu- writing of the decision to approve or dis- (a) Name, address, and telephone tions without regard to funds requested approve the application. If the applica- number of the proposed contractor. pursuant to this Part. tion is disapproved, the notice will give (b) Name, address, and telephone (d) Assess the completed application the reasons for disapproval and the ap- number of the tribe(s) to be served by to determine if the contract proposal is plicant's right to appeal pursuant to Part the contract. feasible and if the proposal and the ap- 2 of this chapter. (c) Descriptive narrative of the con- plication comply with the appropriate requirements of the Johnson-O'Malley § 273.28 Deadline for Central Office tract proposal. (d) The education plan required by Act and of the regulations in this Part. action. $ 273.14. (e) Approve or disapprove the applica- (a) The Commissioner shall approve (e) A separate budget outlining the tion after fully reviewing and assessing or disapprove an application for a con- Johnson-O'Malley funds for operational the application and any additional in- tract within sixty (60) days after the support and/or supplemental programs, formation submitted by the applicant. Central Office receives the application, by line item. to facilitate accountability. (f) Promptly notify the applicant in and any additional information re- (f) A clear identification of what edu- writing of the decision to approve or dis- quested in § 273.27(b). The sixty (60) cational needs the Johnson-OMalley approve the application. If the applica- day deadline can be extended after ob- funds requested for operational support tion is disapproved, the notice will give taining the written consent of the ap- will address. the reasons for disapproval and the ap- plicant. (g) Documentation of the require- plicant's right to appeal pursuant to Part (b) An application under this Part ments for operational support in $ 273.13 2 of this chapter. cannot be approved before February 1 (b) (1). § 273.25 Deadline for Area Office action. preceding the school year for which the contract will be let. § 273.21 Tribal request for contract. (a) The Area Director shall approve or (a) An Indian tribal governing disapprove an application for a contract $ 273.29 Negotiating the contract. body(s) that desires that a contract be within sixty (60) days after the Area After the proposal for a contract has entered into with a tribal organization Office receives the application and any been approved by the Area Director or must so notify the Area Director no later additional information requested in Commissioner as provided in $ 273.22, the than February 1 preceding the school s 273.24(b). The sixty (60) day deadline contract will be negotiated by a Bureau year for which the contract will be let. can be. extended after obtaining the contracting officer assisted by Bureau (b) If the tribal governing body's no- written consent of the applicant education personnel. tice is not received by the date given in (b) An application under this Part paragraph (a) of this section, the Area cannot be approved before February 1 Subpart C-Funding Provisions Director may contract with the State, preceding the school year for which the § 273.31 Distribution formula. school district, or Indian corporation contract will be let. (a) Funds for both supplemental pro- under this Part. § 273.26 Submitting application to Cen- grams and operational support shall be § 273.22 Application approval officials. tral Office. apportioned among the States on a sub- When services under the proposed con- stantially equal basis, based upon the (a) Each Area Director is authorized to tract will be provided to Indian children number of eligible Indian students for approve the contract(s) submitted by the State, school district, or Indian corpora- within the jurisdiction of two or more whom funds are sought, with allowances Area Offices, the completed application being made for the actual cost of de- tion under this Part which will provide services to Indian children within the shall be submitted to the Commissioner livering educational services in each through the respective Area Offices. State; except that, any State or con- jurisdiction of that Area Office. tractor who meets criteria in this Part (b) When a proposed contract(s) will § 273.27 Central office review and de- and received operational support in FY provide services to Indian children within cision. 1976 may continue to receive such funds the jurisdiction of more than one Area Upon receiving a contract application, in FY 1977 and FY 1978 in addition to Office, the contract must be approved by the Commissioner shall: those described above. However, the the Commissioner. (a) Notify the applicant in writing amount of such assistance each year will § 273.23 Submitting application to that the application has been received. be equal to that State or contractor's Area Office. This notice shall be made within fourteen prior year operational support allocation When services under the proposed con- (14) days after the Central Office receives reduced by one-third of its FY 1976 oper- tract will be provided to Indian children the application. ational support allocation. Further, in (b) Review the application for com- FY 1977 no State shall receive less than within the jurisdiction of a single Area pleteness and request within 20 days any 75% of the supplemental program assist- Office, the completed application shall be additional information from the appli- ance they received in FY 1975. submitted to the Area Director of that cant which will be needed to reach a (b) Except as described in paragraph Area Office. decision. (a) of this section, all other funds shall FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51308 RULES AND REGULATIONS be distributed among the contractors appropriate individual, organization or within each State so that each contractor and the Department of Health, Educa- corporation. will receive approximately the same tion, and Welfare. If the report of the amount for each eligible Indian student § 273.37 Use of funds outside of schools. investigation conducted by the Depart- to be served under the contract. Nothing in these regulations shall pre- ment of Health, Education, and Welfare discloses a failure or threatened failure (c) The Commissioner may make ex- vent the Commissioner from contracting ceptions to the provisions of paragraphs with Indian corporations who will ex- to comply with this Part, and if the non- (a) and (b) of this section based upon pend all or part of the funds in places compliance cannot be corrected by in- other than the public or private schools formal means, compliance with this Part the special cultural, linquistic, social or educational needs of the communities in the community affected. may be effected by the suspension or termination of or refusal to contract or involved, including the actual cost of education in the community. § 273.38 Equal quality and standard of to continue financial assistance under education. the Johnson-O'Malley Act or by any § 273.32 Pro rata requirement. Contracts with State education agen- other means authorized by law. As de- All monies provided by a contract pur- cies or school districts receiving funds lineated in 43 CFR 17.1, 17.8, and 17.9, suant to this Part, shall be expended only under the provisions of this part shall such other means may include reference for the benefit of eligible Indian stu- provide educational opportunities to all to the Department of Justice with a rec- dents. Where students other than eligible Indian children within that school dis- ommendation that appropriate legal pro- Indian students participate in programs trict on the same terms and under the ceedings be brought by the United States contracted under this part, money ex-- same conditions that apply to all other to secure compliance or by formal hear- pended under such contract shall be pro- students provided that it will not affect ing before the Commissioner or, at his rated to cover the participation of only the rights of eligible Indian children to discretion, before an administrative law the eligible Indian students, except receive benefits from the supplemental judge designated in accordance with sec- where the participation of non-eligible programs as provided for in this part. tion 11 of the Administrative Procedure students is so incidental as to be de School districts receiving funds under Act. The Secretary, may, by agreement minimus. Such de minimus participa- this part must insure that Indian chil- with one or more other Federal depart- tion must be approved by the Indian Ed- dren receive all aid from the State, and- ments, provide for the conduct of con- ucation Committee. other proper sources other than this solidated or joint hearings as prescribed contract, which other schools in the dis- in 43 CFR 17.8(e) § 273.33 Use of funds for operational trict and other school districts similarly support. § 273.43 Advance payments. situated in the State are entitled to All funds for school operational sup- receive. In no: instance shall there be Advance payments to States, school port shall be used to meet established discrimination against Indians or schools districts and Indian corporations will be State educational standards or State- enrolling such Indians. made in accordance with the applicable wide requirements: provisions of 41 CFR 1 as supplemented Subpart D-General Contract by 41 CFR 14 and-4 CFR 14H except § 273.34 Use of other Federal, State and Requirements 41 CFR Part 14H-70. local funds. § 273.41 Special program provisions to be included in contract. $ 273.44 Use and transfer of Govern- (a) Contract funds under this part ment property. shall supplement, and not supplant, Fed- All contracts under this Part shall eral, State and local funds. Each con- (a) The use of Government-owned contain the following: tract shall require that the use of these facilities for school purposes may be (a) The education plan required by contract funds will not result in a de- authorized when not needed for Gov- §§ 273.14 and 273.18 and, as part of the crease in State, local, or Federal funds ernment activities. Transfer of title to education plan, the education programs which would be made available for In- such facilities (except land) may be ar- approved by the Indian Education Com- dian students if there were no funds ranged under the provisions of the Act mittee(s) under § 273.17. under this Part. of June 4, 1953 (67 Stat. 41) subject to (b) Any formal written determination (b) State, local and other Federal the approval of the tribal government if funds must be used to provide compara- and findings made by the Area Director such property is located on a reservation. ble services to non-Indian and Indian or Commissioner supporting the need for (b) In carrying out a contract made students prior to the use of Johnson- operational support as required by under this Part, the Area Director or O'Malley funds for the provision of sup- $$ 273.24(c) and 273.27(c) Commissioner may, with the approval of plementary program services to~Indian (c) The provision that State, local, and the tribal government, permit a con- children. other Federal funds shall be used to pro- tractor to use existing buildings, facili- (c) Funds for operational support shall vide comparable services to non-Indian ties, and related equipment and other be used only as prescribed in § 273.33. and Indian students prior to the use of personal property owned by the Bureau Johnson-O'Malley funds for the provi- within his jurisdiction under terms and $ 273.35 Capital outlay or debtrretire- sion of supplementary program services conditions agreed upon for their use and ment. to Indian children, as required in maintenance. The property at the time In no instance shall contract funds $ 273.34(b) of transfer must conform to the mini- provided under this part be used as pay- § 273.42 Civil Rights Act violations. mum standards established by the Occu- ment for capital outlay or debt retire- pational Safety and Health Act of 1970 ment expenses; except that, such costs In no instance shall there be dis- (84 Stat. 1590), as amended (29 U.S.C. are allowable if they are considered to crimination against Indians or schools 651). Use of Government property is be a part of the full per capita cost of enrolling such Indians. When informed subject to the following conditions: educating eligible Indian students who by a complainant or through its own dis- (1) When nonexpendable Government reside in Federal boarding facilities for covery that possible violation of Title property is turned over to public school the purpose of attending public schools. VI of the Civil Rights Act of 1964 exists authorities or Indian corporations under within a State school district receiving a use permit, the permittee shall insure § 273.36 Eligible subcontractors. funds under this Part, the Department such property against damage by flood, No contract funds under the Johnson- of the Interior shall, in accordance with fire, rain, windstorm, vandalism, snow, O'Malley Act shall be made available by Federal requirements, notify the De- and tornado in amounts and with com- the Bureau directly to other than tribal partment of Health, Education, and Wel- panies satisfactory to the Federal officer organizations, States, school districts and fare of the possible violation of Title VI. in charge of the property. In case of Indian corporations. However, tribal or- The Department of Health, Education, damage or destruction of the property ganizations, States, school districts, and and Welfare will conduct an investiga- by flood, fire, rain, windstorm, vandalism, Indian corporations receiving funds tion into the matters alleged, pursuant snow or tornado, the insurance money under this part may use the funds to sub- to a Memorandum of Understanding be- collected shall be expended only for re- contract for necessary services with any tween the Department of the Interior pair or replacement of property. Other- FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51309 wise, insurance proceeds shall be paid to tractor may be exempted from this re- shall be further maintained until final the Bureau. quirement. determination has been made on the (2) If the public school authority is (b) Notwithstanding paragraph (a) of questioned expenditures. self-insured and can present evidence of this section, any contract which requires (e) All contracts, non-confidential that fact to the Area Director or Com- or authorizes, either expressly or by im- records concerning all students served missioner, insurance for lost or damaged plication, the use of motor vehicles must by the program, reports, budgets, budget property will not be required. However, contain a provision requiring the State, estimates, plans, and other documents the public school authority will be re- school district, or Indian corporation to pertaining to preceding and current year sponsible for replacement of such lost or provide liability insurance, regardless of administration of the contract program damaged property at no cost to the Gov- how small the risk. shall be made available by the contractor ernment or for paying the Government (c) If the public school authority is and local school officials to each member enough to replace the property. self-insured and can present evidence of of the Indian Education Committee and (3) The permittee shall maintain the that fact to the Area Director or Com- to members of the public upon request. property in a reasonable state of repair missioner, liability and motor vehicle in- The contractor or local school official consistent with the intended use and surance will not be required. shall provide, free of charge. single copies educational purposes. of such documents upon request. (c) The contractor may have access § 273.47 Recordkeeping. § 273.49 Freedom of information. to existing Bureau records needed to A contractor will be required to main- carry out a contract under this Part, as tain a recordkeeping system which will (a) Unless otherwise required by law, follows: allow the Bureau to meet its legal records the Bureau shall not place restrictions (1) The Bureau will make the records program requirements under the Federal on contractors which will limit public available subject to the provisions of the Records Act (44 U.S.C. 3101 et seq.). access to the contractor's records except Freedom of Information Act (5 U.S.C. Such a record system shall: when records must remain confidential. 552), as amended by the Act of Novem- (b) A contractor under this Part shall ber 21, 1974 (Pub. L. 93-502, 88 Stat. (a) Fully reflect all financial transac- make all reports and information con- tions involving the receipt and expendi- 1561) cerning the contract available to the In- (2) The contractor may have access ture of funds provided under the contract dian people which the contract affects. to needed Bureau records at the appro- in a manner which will provide accurate; Reports and information may be with- priate Bureau office for review and mak- current and complete disclosure of finan- held from disclosure only when both of cial status; correlation with budget or ing copies of selected records. the following conditions exist: (3) If the contractor needs a small allowable cost schedules; and clear audit (1) The reports and information fall volume of identifiable Bureau records, facilitating data. within one of the following exempt cate- the Bureau will furnish the copies to the (b) Reflect the amounts and sources gories: of funds other than Bureau contract contractor. (i) Specifically required by statute or funds which may be included in the op- Executive Order to be kept secret. § 273.45 Indian preference. eration of the contract. (ii) Commercial or financial infor- (a) Any contract made by the Bureau (c) Provide for the creation, mainte- mation obtained from a person or firm on with a State, school district or Indian nance and safe guarding of records of a privileged or confidential basis. corporation shall provide that the con- lasting value, including those involving (iii) Personnel, medical, social, psy- tractor shall, to the greatest extent fea- individual rights. such as permanent rec- chological, academic achievement and sible, give preference in and opportunities ords and transcripts. similar files where disclosure would be a for employment and training to Indians. (d) Provide for orderly retirement of clearly unwarranted invasion of person- (b) Any contract made by the Bureau permanent records in accordance with al privacy. with a State, school district or Indian General Records Schedules and the Bu- (2) Disclosure is prohibited by statute corporation shall provide that the con- reau Records Control Schedule, when or Executive Order or sound grounds ex- tractor shall, to the greatest extent fea- there is no established system set up by ist for using the exemption given in para- sible, give preference in the award of the State, school district, or Indian graph (b) (1) of this section. subcontracts to Indian organizations and corporation. (c) A request to inspect or copy re- Indian-owned economic enterprises § 273.48 Audit and inspection. ports and information shall be in writ- (c) All subcontractors employed by the ing and must reasonably describe the re- (a) During the term of a contract contractor shall, to the extent possible, ports and information requested. The re- under this Part and for three years after give preference to Indians for employ- quest may be delivered or. mailed to the the project or undertaking is completed, ment and training and shall be required contractor. Within ten (10) working days the Comptroller General and the Secre- to include in their bid submission a plan after receiving the request, the contrac- to achieve maximum use of Indian tary, or any of their duly authorized rep- tor shall determine whether to grant or resentatives, shall have access, for audit personnel. deny the request. The requester shall be (d) In the performance of contracts and examination purposes, to any of the notified immediately of the determina- under this Part 273 and subject to the contractor's books, documents, papers, tion. provisions of Part 14H of Title- 41, a and records which, in their opinion, may be related or pertinent to the contract (d) The time limit for making a de- tribal governing body may develop its own Indian preference requirements to or any subcontract. termination may be extended up to an (b) The contractor will be responsible additional ten (10) working days for good the extent that such requirements are for maintaining all documents such as reason. The requester shall be notified in not inconsistent with the purpose and invoices, purchase orders, cancelled writing of the extension, reasons for the intent of paragraphs (a), (b) and (c) of checks, balance sheets and all other rec- extension, and date on which the de- this section. ords relating to financial transactions termination is expected to be made. § 273.46 Liability and motor vehicle in- in a manner which will facilitate audit- § 273.50 Annual reporting. surance. ing. The contractor will be responsible (a) A contractor under this Part shall (a) States, school districts and Indian for maintaining files of correspondence make a detailed annual report to the ap- corporations shall obtain public liability and other documents relating to the ad- proving official before September 15 of insurance under contracts entered into ministration of the contract properly each year and covering the previous with the Bureau under this Part. How- separated from general records or cross- school year. The report shall include, but ever, where the Bureau contracting referenced to general files. not be limited to, an accounting of the officer determines that the risk of death, (c) The contractor receiving funds amounts and purposes for which the con- personal injury or property damage under this Part shall be responsible for tract funds were expended, information under the contract is small and that the contract compliance. on the conduct of the program, a quanti- time and cost of procuring the insurance (d) The records involved in any claim tative evaluation of the effectiveness of is great in relation to the risk, the con- or expenditure that has been questioned the contract program in meeting the FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51310 RULES AND REGULATIONS stated objectives contained in the appli- (2) To make such records available to right of the contractor to appeal under cant's educational plans, and a complete individuals involved. Subpart C of 43 CFR Part 4. accounting of actual receipts at the end (3) To disclose an individual's record (d) When a contract is cancelled for of the contract period. to third parties only after receiving per- cause, the Bureau will attempt to per- (b) In addition to the yearly reporting mission from the individual to whom the form the work by another contract. requirement given in paragraph (a) of record pertains. 43 CFR 2.56 lists excep- (e) Any contractor that has a con- this section, the contractor shall furnish tions to this procedure. tract cancelled for cause must demon- other contract-related reports when (4) To establish a procedure to ac- state that the cause(s) which led to the and as required by the Area Director or count for access, disclosures, denials, and cancellation have been remedied before Commissioner. amendments to records. it will be considered for another contract. (c) A contractor under this Part shall (5) To provide safeguards for the pro- send copies of the reports required by tection of the records. Subpart F-Appeals paragraphs (a) and (b) of this section (b) The contractor may not: § 273.71 Contract appeal. to the Indian Education Committee(s) (1) Discontinue or alter any estab- A contractor may appeal an adverse and to the tribe(s) under the contract at lished systems of records without prior decision or action of a Bureau contract- the same time as the reports are sent to approval of the appropriate Bureau sys- ing officer regarding a contract under the Bureau. tems manager. this Part as provided in Subpart C of § 273.51 Penalties. (2) Deny requests for notification or 43 CFR Part 4. access of records without prior approval If any officer, director, agent, or em- of the appropriate Bureau systems man- § 273.72 Appeal from decision to can ployee of, or connected with, any con- ager. cel contract for cause. tractor or subcontractor under this Part (3) Approve or deny requests for A contractor may appeal the decision embezzles, willfully misapplies, steals, or amendments of records without prior ap- of a Bureau official to cancel a contract obtains by fraud any of the funds or proval of the appropriate Bureau systems under this Part for cause. The appeal property connected with the contract or manager. shall be made as provided in Subpart C subcontract, he shall be subject to the (4) Establish a new system of records of 43 CFR Part 4. following penalties: without prior approval of the Depart- (a) If the amount involved does not § 273.73 Other appeals. ment of Interior and the Office of Man- exceed $100, he shall be fined not more agement and Budget. Any decision or action taken by a Bu- than $1,000 or imprisoned not more than (5) Collect information about an in- reau official under this Part, other than one year, or both. dividual unless it is relevant or necessary those given in §§ 273.71 and 273.72, may (b) If the amount involved exceeds to accomplish a purpose of the Bureau be appealed as provided in Part 2 of this $100, he shall be fined not more than as required by statute or Executive chapter. $10,000 or imprisoned for not more than Order. two years, or both. (c) The contractor is subject to the PART 274-SCHOOL CONSTRUCTION § 273.52 State school laws. penalties provided in subsection (i) of CONTRACTS OR SERVICES FOR TRIB- 5 U.S.C. 552a. ALLY OPERATED PREVIOUSLY PRIVATE In those States where Public Law 83- SCHOOLS 280, 18 U.S.C. 1162 and 28 U.S.C. 1360 Subpart E-Contract Revision or do not confer civil jurisdiction, State em- Cancellation Subpart A-General Provisions Sec. ployees may be permitted to enter upon § 273.61 Contract revision or amend- 274.1 Purpose. Indian tribal lands, reservations, or allot- ment. 274.2 Scope. ments if the duly-constituted governing 274.3 Definitions. body of the tribe adopts a resolution of Any contract made under this Part 274.4 Effect on existing Indian rights. consent for the following purposes: may be revised or amended as deemed 274.5 Revision or amendment of regula- (a) Inspecting school conditions in the necessary to carry out the purposes of tions. public schools located on Indian tribal the program being contracted. A contrac- Subpart B-Application Process lands, reservations, or allotments. tor may make a written request for a 274.11 revision or amendment of a contract to Eligible applicants. (b) Enforcing State compulsory school 274.12 the Bureau contracting officer. However, Obtaining Application forms. attendance laws against Indian children, 274.13 Contents of application. no program approved by the Indian Ed- parents or persons standing in loco 274.14 Assistance in completing applica- ucation Committee shall be altered from tions. parentis. the time of its original approval to the 274.15 Tribal request. § 273.53 Applicable procurement regu- end of the contract period without the 274.16 Where to submit application. lations. written approval of the Committee. 274.17 When to submit application. 274.18 Agency Office review and action. States, school districts, or Indian cor- § 273.62 Cancelling a contract for cause, 274.19 Area Office review and action. porations wanting to contract with the 274.20 (a) Any contract entered into under Priorities for providing construction Bureau under this part must comply contracts or services. with the applicable requirements in the this Part may be cancelled for cause 274.21 Central Office review and action. Federal Procurement Regulations (41 when the contractor fails to perform the 274.22 On-site inspection and cost estimate. CFR Part 1), as supplemented by the In- work called for under the contract or 274.23 Preparing a commitment-to-fund terior Procurement Regulations (41 CFR fails to permit an Indian Education Com- listing. Part 14), and the Bureau of Indian mittee to perform its duties pursuant to 274.24 Performing construction work. Affairs Procurement Regulations (41 this Part. 274.25 Reapplication. (b) Before cancelling the contract, the 274.26 Funding provisions. CFR Part 14H), except 41 CFR Part 14H-70. Bureau will advise the contractor in Subpart C-General Contract Requirements writing of the following: 274.31 Applicability. § 273.54 Privacy Act requirements. (1) The reasons why the Bureau is 274.32 Architectural design. (a) When a contractor operates a sys- considering cancelling the contract. 274.33 Facilities construction. tem of records to accomplish a Bureau (2) The contractor will be given an 274.34 Selecting initial equipment. 274.35 Payment to contractors. fucntion, the contractor shall comply opportunity to bring its work up to an 274.36 Use and transfer of Government with Subpart D of 43 CFR Part 2 which acceptable level property. implements the Privacy Act (5 U.S.C. (c) If the contractor does not over- 274.37 Wage and labor standards. 552a). Examples of the contractor's re- come the deficiencies in its contract per- 274.38 Indian preference. sponsibilities are: formance, the Bureau shall cancel the 274.39 Liability and motor vehicle in- surance. (1) To continue maintaining those contract for cause. The Bureau will no- 274.40 Recordkeeping. systems of records declared by the Bureau tify the contractor, in writing, of the 274.41 Audit and inspection. to be subject to the Privacy Act as pub- cancellation. The notice shall give the 274.42 Freedom of information. lished in the FEDERAL REGISTER. reasons for the cancellation and the 274.43 Reporting. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51311 Sec. (h) "Economic enterprise" means any contract or from the Bureau by other 274.44 Repayment of funds. commercial, industrial, agricultural, or means; Provided further, That in any 274.45 Penalties. business activity that is at least 51 per- case where a contract or services will 274.16 Applicable procurement regulations. cent Indian owned, established or orga- affect more than one Indian tribe, the 274.47 Contract revision cr amendment. 274.48 Cancelling a contract for cause. nized for the purpose of profit. approval of each such Indian tribe shall 274.49 Privacy Act requirements. (i) "Existing school facilities" means be prerequisite to the approval of the ap- all facilities constructed as school build- plication for the contract or services. Subpart D-Appeals ings and used continuously for classroom 274.51 Contract appeal. § 274.4 Effect on existing Indian rights. purposes. Excluded are basement rooms, 274.52 Appeal from decision to cancel con- hallways, or other space, the use of which Nothing in these regulations shall be tract for cause. for school purposes (in view of the char- construed as: 274.53 Other appeals. acter, inaccessibility or other equally (a) Affecting, modifying, diminishing, AUTHORITY: Sec. 204 and 208, Pub. L. 93- cogent reasons) seriously restricts the or otherwise impairing the sovereign im- 638. 88 Stat. 2203, unless otherwise noted. educational objective, or has impaired or munity from suit enjoyed by an Indian Subpart A-General Provisions will impair the health or safety of the tribe; school children. (b) Authorizing or requiring the § 274.1 Purpose. (j) "Indian tribe" means any Indian termination of any existing trust respon- The purpose of the regulations in this Tribe, Band, Nation, Rancheria, Pueblo, sibility of the United States with respect Part is to give the application and ap- Colony or Community, including any to the Indian people; or proval process for obtaining a contract Alaska Native village or regional or vil- (c) Permitting significant reduction in or services from the Bureau for school lage corporation as defined in or estab- services to Indian people as a result of construction for previously private lished pursuant to the Alaska Native this Part. schools now controlled and operated by Claims Settlement Act (85 Stat. 688) tribes or tribally approved Indian orga- which is federally recognized as eligible § 274.5 Revision or amendment of reg- ulations. nizations under sections 204 and 208 of by the United States Government Title II of the Indian Self-Determination through the Secretary for the special In order to make any substantive re- and Education Assistance Act (Pub. L. programs and services provided by the visions or amendments to regulations in 93-638, 88 Stat. 2203). Secretary to Indians because of their this Part, the Secretary shall take the status as Indians. following actions: § 274.2 Scope. (k) "Indian" means a person who is (a) Consult with Indian tribes and na- The Act authorizes the expenditure of a member of an Indian tribe. tional and regional Indian organizations funds authorized and appropriated un- (1) "Initial equipment" means any to the extent practicable about the need der Part B of the Act to contract or movable equipment necessary and appro- for revision or amendment and consider provide services for school construction priate to equip minimum school facili- their views in preparing the proposed re- for tribally operated previously private ties. Such term does not include equip- vision or amendment. schools. After an application has been ment purchased to replace any equip- (b) Publish the proposed revisions or completed and approved by the tribe, the ment which is obsolete or worn out and amendments in the Federal Register as application is forwarded through Bureau which was purchased with funds under proposed rulemaking to provide adequate channels to the Commissioner for rank- the Act. notice to, and receive comments from, all ing by priority. If a project is within the (m) "Minimum school facilities" interested parties. funding priority, the Bureau contracting means classroom and auxiliary rooms (c) After consideration of all com- officer offers to negotiate a contract with and initial equipment necessary to op- the applicant subject to approval by the ments received, publish the regulations in erate an approved educational program the FEDERAL REGISTER in final form not requesting tribe(s) for architectural- for the membership of the school at engineering design, facilities construc- less than 30 days before the date they are normal capacity in accordance with cri- made effective. tion and purchase of equipment to pro- teria established by the Bureau. vide educational facilities meeting Bu- (d) Annually consult with Indian (n) "Previously private school" means reau space standards and construction tribes and national and regional Indian a school (other than a Federal school code regulations. Subject to approval by organizations about the need for revi- formerly operated by the Bureau), that the requesting tribe(s), the applicant sion or amendment, and consider their is operated primarily for Indian students then has the following options: views in preparing the revision or from age 3 years through grade(s) 12; (a) Enter into a contract with the amendment. and, which at the time of application is Bureau under which the applicant per- controlled, sanctioned, or chartered by (e) Nothing in this section shall pre- forms all or part of the necessary work the governing body(s) of an Indian clude Indian tribes or national or re- with the Bureau performing the rest. tribe(s). gional Indian organizations from initiat- (b) Request that the Bureau perform ing request for revisions or amendments or arrange for the performance of all (o) "Secretary" means the Secretary subject to paragraph (a), (b), and (c), of the Interior. the necessary work. of this section. "Superintendent" means the offi- § 274.3 Definitions. cial in charge of a Bureau of Indian Af- Subpart B-Application Process As used in this Part: fairs Agency Office. § 274.11 Eligible applicants. (a) "Act" means the Indian Self- (q) "Tribal government", "tribal gov- Any tribal organization which meets Determination and Education Assistance erning body", and "tribal council" means all of the following criteria is eligible to Act (Public Law 93-638, 88 Stat. 2203). the recognized governing body of an In- apply for a contract with or services from (b) "Area Director" means the official dian tribe. the Bureau for school construction: in charge of a Bureau of Indian Affairs (r) "Tribal organization" means the Area Office. (a) The tribal organization must con- recognized governing body of any Indian (c) "Attendance area" means, in rela- trol and manage the previously private tribe; or any legally established organi- tion to a particular school, the area in school for which the organization is ap- zation of Indians or tribes which is con- which the children who are normally plying for a contract or services under trolled, sanctioned, or chartered by such served by that school reside. this Part. governing body or bodies or which is (d) "Bureau" means the Bureau of democratically elected by the adult (b) Title to the land on which the con- Indian Affairs. members of the Indian community to be struction for the previously private (e) "Commissioner" means the Com- served by such organization and which school is located must be vested in the missioner of Indian Affairs. includes the maximum participation of tribe or the United States; or, a lease (f) "Contractor" means an applicant Indians in all phases of its activities; for the useful life of the improvement who has been awarded a contract under Provided, That a request for a contract must be entered into with the tribe or this Part. or services must be made by the Indian the United States for the ground on (g) "Days" means calendar days. tribe that will receive services under the which it is located. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51313 intendent having jurisdiction over the (d) Project description and justifica- ments in Subpart C of this Part and with tribe(s) requesting the contract or tion required by § 274.13(j). 41 CFR Part 14H-70. services. § 274.21 Central Office review and (b) To have the Bureau perform or (b) When the contract or services action. arrange for the performance of all the requested in the application will benefit work needed. more than one tribe under the jurisdic- Within 30 days after receiving an ap- tion of more than one Agency Office plication directly or from the Area Di- § 274.25 Reapplication. within one Area, the application and rector, the Commissioner will take the following actions: Once an applicant has applied for a documentation of the tribal requests (a) Notify the applicant in writing contract or services and the project has shall be delivered or mailed to the Area Director involved. that the application was received in the been placed on the Bureauwide priority Central Office. listing, there is no need to reapply. The (c) When the contract or services re- quested in the application will benefit (b) Review each application submit- project will be carried on the priority more than one tribe under the jurisdic- ted directly to the Commissioner as given listing until placed on the commitment- tion of more than one Area Office, the in § 274.16(c) for completeness, request to-fund list. However, if changes occur application and documentation of the any needed information from the appli- which would affect the project's rank cant, and assign the proposed project a and, thus, its priority, the applicant must tribal requests shall be delivered or priority. submit a new application mailed to the Commissioner. (c) Update the Bureauwide priority § 274.26 Funding provisions. § 274.17 When to submit application. listing of all approved projects in order (a) No funds from any contract under Applications may be submitted by a of priority with the project with the this Part shall be made available by the tribal organization to the Bureau atany highest priority listed first. As new appli- Bureau directly to other than Indian time to be placed on the Bureau's prior- cations are received, they will be added tribes and tribal organizations. However, ity listing. to the priority listing according to their Indian tribes and tribal organizations ranking. § 274.18 Agency Office review and assisted under this Part may use funds action. (d) Notify each applicant in writing provided to subcontract for necessary of the project's priority ranking on the services. (a) The Superintendent has 30 days Bureauwide list. The applicant will be (b) Twenty-five (25) per cent of all from receipt of an application to notify notified of any subsequent changes to funds appropriated under Title II, Part the applicant in writing of its receipt, that ranking if new applications were B, section 204 of the-Act shall be ex- review the application for completeness, received with a higher ranking. pended for construction of previously and request any needed information from the applicant. § 274:22 On-site inspection and cost esti- private schools controlled and managed by a tribal organization. Any unobli- (b) When the Superintendent has de- mate. gated funds will be retained until com- termined that the application is com- (a) No later than three months before pletion of the project and unexpended plete, he will forward the completed the new fiscal year begins, the Commis- funds returned to the Bureau. Projects application with documentation of the sioner or his representative shall conduct which are partially funded shall be given tribal request(s) to the Area Director an on-site inspection for projects high first consideration for the additional having jurisdiction over that Agency on the priority listing, beginning with funding necessary to complete such proj- Office with a written statement that the the project ranked highest on the Bu- ects. application is complete. reauwide priority listing. The on-site in- Subpart C-General Contract § 274.19 Area Office review and action. spection is to determine which buildings Requirements are to be retained, demolished or remod- Within 30 days after receiving an ap- eled and to gather initial information re- § 274.31 Applicability. plication directly or from the Superin- tendent, the Area Director will take the quired for development of the planning This Subpart applies only when the document. applicant exercises the option of con- following actions: (a) Notify the applicant in writing (b) From this information, a tentative tracting with the Bureau to perform all cost estimate for design, construction or part of the construction work. that the application was received in the Area Office. and equipment will be made for budget § 274.32 Architectural design. (b) Review each application sub- purposes in cooperation with the tribal mitted directly to the Area Office as pro- organization. (a) Plans and specifications for a proj- ect shall comply with such Federal, State vided in § 274.16(b) for completeness § 274.23 Preparing a commitment-to- and local laws, ordinances and regula- and obtain any needed information from fund listing. tions pertaining to standards or con- the applicant. (c) Assign each proposed project an As each high priority project is given struction and safety requirements as may be applicable. Area Office priority. The Area Office will an on-site inspection and a tentative cost estimate is made, the project will be (b) An Architect/Engineer shall be include an updated priority index with placed on a commitment-to-fund list- selected by the contractor subject to the each application or group of applications ing. Projects will be added as long as the advice and assistance of the Commis- transmitted to the Commissioner for sioner who shall counsel the contractor appropriate action. total of the tentative cost estimates is (d) Forward each application and less than the amount of funds appropri- with respect to professional qualifica- documentation of tribal request(s) to ated for previously private school con- tions and performance history of firms the Commissioner. struction for the new fiscal year. Each so the best qualified firm for the work is applicant will be notified in writing when selected. No Architect/Engineer agree- § 274.20 Priorities for funding construc- the project has been placed on the com- ment shall be entered into by the con- tion. mitment-to-fund listing. tractor until the Commissioner has re- viewed the agreement and consented in As prescribed in §§ 274.19(c) and § 274.24 Performing construction work. writing to its provisions. 274.21(b), the Area Director and Com- (c) Plans and specifications must con- missioner shall evaluate and assign pri- When a project has been placed on form to the project description, with ap- orities on the basis of the application the commitment-to-fund listing, the ap- proved revisions. Such plans and specifi- data submitted as required by $ 274.13 plicant will be given the following op- including: cations must be forwarded for the ap- tions, subject to approval by the request- proval of the Commissioner including (a) Education program required by ing tribe(s) § 274.13(g). schematic design, design development, (a) To negotiate a contract with the and final construction document. (b) Geographic attendance boundaries Bureau to perform all of the work or part given in § 274.13(h). of the work needed for the project with § 274.33 Facilities construction. (c) Enrollment characteristics given the Bureau performing the rest. Such in § 274.13(i). (a) The Commissioner may assist in contracts shall comply with the require- preconstruction and construction activi- FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51314 RULES AND REGULATIONS ties to assure conformity with the re- visions of the Act of June 4, 1953 (67 quirements of the Act. Approval of all structing, altering, or repairing buildings Stat. 41), subject to the approval of the or other facilities in connection with con- proposed preconstruction documents will tribal government if property is located be obtained from the Commissioner. As- tracts under this Part shall be paid on a reservation. wages not less than those on similar con- sistance prior to the preparation of these (b) In carrying out a contract made and similar documents will be provided, struction in the locality as determined under this Part, the Commissioner may, by the Secretary of Labor in accordance upon request, by the Commissioner or with the approval of the tribal govern- his representative. A preliminary confer- with the Davis-Bacon Act of March 3, ment, permit a contractor to use existing ence may be suggested with the project 1931 (46 Stat. 1494), as amended. How- buildings, facilities, and related equip- architect and others if that seems de- ever, this requirement does not apply ment and other personal property owned sirable. The Commissioner will provide where the contractor is the recognized by the Bureau within his jurisdiction un- governing body of the tribe and the con- sufficient copies of all forms used to pre- der terms and conditions agreed upon pare the documents required for the struction, alteration or repair work is for their use and maintenance. The project. being performed by the tribal organiza- property at the time of transfer must (b) The Commissioner will provide, tion or the tribe with its own employees. conform to the minimum standards es- upon request, technical supervision and tablished by the Occupational Safety and $ 274.38 Indian preference. services to the contractor in connection Health Act of 1970 (84 Stat. 1590), as (a) Any contract made by the Bureau with the construction of school facilities. amended (29 U.S.C. 651). with a tribal organization shall provide When appropriate, such services will (c) Use of Government property is sub- that the contractor shall, to the greatest provide assistance with periodic inspec- Ject to the following conditions: extent feasible, give preference in and tion of construction progress and deter- (1) When nonexpendable Government opportunities for employment and train- mine the propriety of making partial property is turned over to the tribal or- ing to Indians. payments as construction progresses. ganization under a use permit, the per- (b) Any contract made by the Bureau § 274.34 Selecting initial equipment. mittee shall insure the property against with a tribal organization shall provide damage by flood, fire, rain, windstorm, that the contractor shall, to the greatest Equipment procured with payments vandalism, snow and tornado in amounts extent feasible, give preference in the under this Part must be approved by the and with companies satisfactory to the award of subcontracts to Indian organi- Commissioner before invitations for bids Federal officer in charge of the property. zations and Indian-owned economic or requests for proposals as to the ac- In case of damage or destruction of the enterprises. quisition of such equipment are issued. property by flood, fire, rain, windstorm, (c) All subcontractors employed by In order to obtain such approval, a list vandalism, snow or tornado, the insur- the contractor shall, to the extent possi- of equipment to be procured (indicating ance money collected shall be expended ble, give preference to Indians for em- quantities, costs, and specifications) only for repair or replacement of the ployment and training and shall be re- shall be provided to the Commissioner property. Otherwise, insurance proceeds quired to include in their bid submission for prior approval. shall be paid to the Bureau. a plan to achieve maximum use of In- § 274.35 Payment to contractors. (2) If the tribal organization is self- dian personnel. insured and can present evidence of that (d) In the performance of contracts (a) At the request of a contractor, the fact to the Commissioner, insurance for under this Part 274 and subject to the Bureau contracting officer may make ad- lost or damaged property will not be re- provisions of Part 14H-70 of Title 41, a vance payments under contracts made quired. However, the tribal organization tribal governing body may develop its under this Part. The requirements given will be responsible for replacement of own Indian preference requirements that in this section and in Chapter 2000 of such lost or damaged property at no cost are not inconsistent with the purpose the Treasury Fiscal Requirements Man- to the Government or for paying the and intent of paragraph (a), (b), and ual apply to making the advance pay- Government enough to replace the (c) of this section. ments. property. (b) Any request for advance payment (3) The permittee shall maintain the § 274.39 Liability and motor vehicle in- by a contractor shall specify the surance. property in a reasonable state of repair amount(s) required and the dates such consistent with the intended use and ed- (a) Tribal organizations shall obtain advance(s) will be required and shall ucational purposes. public liability insurance under contracts be supported by a schedule of estimated (d) The contractor may have access to entered into with the Bureau under this expenditures. existing Bureau records needed to carry Part. However, where the Bureau con- (c) An initial advance shall be limited out a contract under this Part, as tracting officer determines that the risk to the amount of estimated expendi- follows: of death, personal injury or property tures for a period of time required to (1) The Bureau will make the records damage under the contract is small and effect payment, based on experience in available subject to the provisions of the that the time and cost of procuring the the locality. The initial advance shall be Freedom of Information Act (5 U.S.C. insurance is great in relation to the risk, made in amounts and at times deter- 552), as amended by the Act of Novem- the contract may be exempted from this mined suitable to satisfy the minimum ber 21, 1974 (Pub. L. 93-502, 88 Stat. requirement. essential needs of the contractor. 1561). (b) Notwithstanding paragraph (a) (d) Later advances shall be made at (2) The contractors may have access of this section, any contract which re- times and in amounts determined neces- to needed Bureau records at the appro- quires or authorizes, either expressly or sary to insure availability of funds for priate Bureau office for review and mak- by implication, the use of motor vehicles timely payment of the contractor's ob- ing copies of selected records. must contain a provision requiring the ligations and to minimize the time be- (3) If the contractor needs a small vol- tribal organization to provide liability tween withdrawal from the Treasury and insurance, regardless of how small the ume of identifiable Bureau records, the expenditure. Requests for advances after risk. Bureau will furnish the copies to the an Initial advance shall be accompanied contractor. § 274.40 Recordkeeping. and supported by a report of expendi- (4) Where a large volume of records tures to date and the amount of funds A contractor will be required to de- on hand. are needed and copying is not practical velop and maintain a record-keeping or feasible, the records may be physically system which will: S 274.36 Use and transfer of Govern- located at the contract site provided (a) Fully reflect all financial transac- ment property. that a Bureau official is designated by tions involving the receipt and expendi- the Commissioner or Area Director as ture of funds provided under the con- (a) The use of Government-owned fa- custodian of the records. cilities for tribal purposes may be au- tract in a manner which will provide ac- thorized when not needed for Govern- § 274.37 Wage and labor standards. curate, current and complete disclosure of financial status; correlation with- ment activities. Transfer of title to such All laborers and mechanics employed facilities may be arranged under the pro- budget or allowable cost schedules; and by contractors or subcontractors in con- clear audit facilitating data. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS ties to assure conformity with the re- visions of the Act of June 4, 1953 (67 structing, altering, or repairing buildings quirements of the Act. Approval of all Stat. 41), subject to the approval of the or other facilities in connection with con- proposed preconstruction documents will tribal government if property is located tracts under this Part shall be paid obtained from the Commissioner. As- on a reservation. wages not less than those on similar con- istance prior to the preparation of these (b)- In carrying out a contract made struction in the locality as determined ad similar documents will be provided, under this Part, the Commissioner may, by the Secretary of Labor in accordance upon request, by the Commissioner or with the approval of the tribal govern- with the Davis-Bacon Act of March 3, his representative. A preliminary confer- ment, permit a contractor to use existing 1931 (46 Stat. 1494), as amended. How- once may be suggested with the project buildings, facilities, and related equip- ever, this requirement does not apply architect and others if that seems de- ment and other personal property owned where the contractor is the recognized irable. The Commissioner will provide by the Bureau within his jurisdiction un- governing body of the tribe and the con- sufficient copies of all forms used to pre- der terms and conditions agreed upon struction, alteration or repair work is pare the documents required for the for their use and maintenance. The being performed by the tribal organiza- project. property at the time of transfer must tion or the tribe with its own employees. (b) The Commissioner will provide, conform to the minimum standards es- upon request, technical supervision and tablished by the Occupational Safety and § 274.38 Indian preference. services to the contractor in connection Health Act of 1970 (84 Stat. 1590) as (a) Any contract made by the Bureau with the construction of school facilities. amended (29 U.S.C. 651). with a tribal organization shall provide When appropriate, such services will (c) Use of Government property is sub- that the contractor shall, to the greatest provide assistance with periodic inspec- ject to the following conditions: extent feasible, give preference in and tion of construction progress and deter- (1) When nonexpendable Government opportunities for employment and train- mine the propriety of making partial property is turned over to the tribal or- ing to Indians. payments as construction progresses ganization under a use permit, the per- (b) Any contract made by the Bureau mittee shall insure the property against with a tribal organization shall provide § 274.34 Selecting initial equipment. damage by flood, fire, rain, windstorm, that the contractor shall, to the greatest Equipment procured with payments vandalism, snow and tornado in amounts extent feasible, give preference in the under this Part must be approved by the and with companies satisfactory to the award of subcontracts to Indian organi- Commissioner before invitations for bids Federal officer, in charge of the property. zations and Indian-owned economic or requests for proposals as to the ac- In case of damage or destruction of the enterprises. quisition of such equipment are issued. property by flood, fire, rain, windstorm, (c) All subcontractors employed by In order to obtain such approval, a list vandalism; snow or tornado, the insur- the contractor shall, to the extent possi- of equipment to be procured (indicating ance money collected shall be expended ble, give preference to Indians for em- quantities, costs, and specifications) only for repair or replacement of the ployment and training and shall be re- shall be provided to the Commissioner property. Otherwise, insurance proceeds quired to include in their bid submission for prior approval. shall be paid to the Bureau. a plan to achieve maximum use of In- (2) If the tribal organization is self- dian personnel. § 274.35 Payment to contractors. insured and can present evidence of that (d) In the performance of contracts (a) At the request of a contractor, the fact to the Commissioner, insurance for under this Part 274 and subject to the Bureau contracting officer may make ad- lost or damaged property will not be re- provisions of Part 14H-70 of Title 41, a vance payments under contracts made quired. However, the tribal organization tribal governing body may develop its under this Part. The requirements given will be responsible for replacement of own Indian preference requirements that in this section and in Chapter 2000 of such lost or damaged property at no cost are not inconsistent with the purpose the Treasury Fiscal Requirements Man- to the Government or for paying the and intent of paragraph (a), (b), and ual apply to making the advance pay- Government enough to replace the (c) of this section. ments. property. § 274.39 Liability and motor vehicle in- (b) Any request for advance payment (3) The permittee shall maintain the surance. by a contractor shall specify the property in a reasonable state of repair amount(s) required and the dates such consistent with the intended use and ed- (a) Tribal organizations shall obtain advance(s) will be required and shall ucational purposes. public liability insurance under contracts be supported by a schedule of estimated (d) The contractor may have access to entered into with the Bureau under this expenditures. existing Bureau records needed to carry Part. However, where the Bureau con- (c) An initial advance shall be limited out a contract under this Part, as tracting officer determines that the risk to the amount of estimated expendi- follows: of death, personal injury or property tures for a period of time required to (1) The Bureau will make the records damage under the contract is small and effect payment, based on experience in available subject to the provisions of the that the time and cost of procuring the Freedom of Information Act (5 U.S.C. insurance is great in relation to the risk, the locality. The initial advance shall be 552), as amended by the Act of Novem- the contract may be exempted from this made in amounts and at times deter- ber 21, 1974 (Pub. L. 93-502, 88 Stat. requirement. mined suitable to satisfy the minimum 1561). (b) Notwithstanding paragraph (a) essential needs of the contractor. of this section, any contract which re- (d) Later advances shall be made at (2) The contractors may have access quires or authorizes, either expressly or times and in amounts determined neces- to needed Bureau records at the appro- by implication, the use of motor vehicles sary to insure availability of funds for priate Bureau office for review and mak- must contain a provision requiring the timely payment of the contractor's ob- ing copies of selected records. tribal organization to provide liability ligations and to minimize the time be- (3) If the contractor needs a small vol- insurance, regardless of how small the tween withdrawal from the Treasury and ume of identifiable Bureau records, the risk. expenditure. Requests for advances after Bureau will furnish the copies to the an initial advance shall be accompanied contractor. § 274.40 Recordkeeping. and supported by a report of expendi- (4) Where a large volume of records A contractor will be required to de- tures to date and the amount of funds are needed and copying is not practical velop and maintain a record-keeping on hand. or feasible, the records may be physically system which will: located at the contract site provided (a) Fully reflect all financial transac- $ 274.36 Use and transfer of Govern- that a Bureau official is designated by tions involving the receipt and expendi- ment property. the Commissioner or Area Director as ture of funds provided under the con- (a) The use of Government-owned fa- custodian of the records. tract in a manner which will provide ac- cilities for tribal purposes may be au- curate, current and complete disclosure thorized when not needed for Govern- § 274.37 Wage and labor standards. of financial status; correlation with- ment activities. Transfer of title to such All laborers and mechanics employed budget or allowable cost schedules; and facilities may be arranged under the pro- by contractors or subcontractors in con- clear audit facilitating data. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51315 (b) Reflect the amounts and sources ist for using the exemption given in consent of the contractor. A contractor of funds other than Bureau contract paragraph (b) (1) of this section. may make a written request for a revi- funds which may be included in the con- (c) A request to inspect or copy reports sion or amendment of a contract to the struction project. and information shall be in writing and Bureau contracting officer. (c) Provide for the creation, main- must reasonably describe the reports and (b) If the contracting officer disap- tenance and safeguarding of records of information requested. The request may proves the proposed revision or amend- lasting value. be delivered or mailed to the contractor. ment of the contract, he will notify the § 274.41 Audit and inspection. Within ten (10) working days after re- contractor in writing within 30 days af- ceiving the request, the contractor shall ter receiving the request. The notice (a) During the term of a contract un- determine whether to grant or deny the shall state: der this Part and for three years after request. The requester shall be notified (1) The objections to the requested re- the project or undertaking is completed, immediately of the determination. vision or amendment. the Comptroller General and the Sec- (d) The time limit for making a de- (2) The right of the contractor to ap- retary, or any of their duly authorized termination may be extended up to an peal as provided in Subpart C of 43 CFR representatives, shall have access for additional ten (10) working days for good Part 4. audit and examination purposes to any reason. The requester shall be notified of the contractor's books, documents, in writing of the extension, reasons for $ 274.48 Cancelling a contract for cause. papers, and records which, in their opin- the extension, and the date on which the (a) Any contract entered into under ion, may be related or pertinent to the determination is expected to be made. this Part may be cancelled for cause contract or any subcontract (b) The contractor will be responsi- § 274.43 Reporting. when the contractor fails to perform the work called for under the contract. ble for maintaining all documents such (a) A contractor under this Part shall (b) Before cancelling the contract, the as invoices, purchase orders, cancelled make a detailed report to the Commis- Bureau will advise the contractor in checks, balance sheets and all other rec- sioner after construction is completed. writing of the following: ords relating to financial transactions in The report shall include, but not be lim- (1) The reasons why the Bureau is a manner which will facilitate auditing. ited to, an accounting of the amounts considering cancelling the contract. The contractor will be responsible for and purposes for which the contract (2) That the contractor will be given maintaining files of correspondence and funds were expended. an opportunity to bring its work up to other documents relating to the admin- (b) The contractor shall furnish other an acceptable level. istration of the program under the con- contract-related reports when and as re- (3) That the Bureau may furnish tech- tract properly separated from general quired by the Commissioner. nical advice and assistance to help over- records or cross-referenced. to general (c) A contractor under this Part shall come the deficiencies in the contract files. send copies of the reports required by performance, when requested. (c) The contractor receiving funds paragraphs (a) and (b) of this section (c) If the contractor does not over- under this Part shall be primarily re- to the tribal governing body(s) who re- come the deficiencies in its contract per- sponsible for contract compliance. quested the contract at the same time formance, the Bureau will cancel the (d) The records involved in any claim as the reports are sent to the Bureau. contract for cause. The Bureau will noti- or expenditure that has been questioned § 274.44 Repayment of funds. fy the contractor, in writing. of the can- shall be further maintained until final cellation. The notice shall give the rea- determination has been made on the Any funds paid under a contract en- sons for the cancellation and the right questioned expenditure. tered into under this Part which are not of the contractor to appeal under Sub- (e) All contracts, reports, budgets, expended, obligated or used for the pur- part C of 43 CFR Part 4. budget estimates, plans, and other docu- poses of the contract during its term (d) When a contract is cancelled for ments pertaining to administration of shall be returned to the Bureau. cause, the Bureau will either perform the the contract shall be made available by the contractor. The contractor shall pro- § 274.45 Penalties. work with its own forces or by another contract, as appropriate. However, when vide, free of charge, single copies of such If any officer, director, agent, or em- the contract is with other than the gov- documents upon request. ployee of, or connected with, any con- erning body of the Indian tribe, the ad- § 274.42 Freedom of information. tractor or subcontractor under this Part vice of the tribe(s) will be obtained to embezzles, willfully misapplies, steals, or determine how they wish the work to be (a) Unless otherwise required by law, obtains by fraud any of the funds or performed. the Bureau shall not place restrictions property connected with the contract or on contractors which will limit public ac- subcontract, he shall be subject to the § 274.49 Privacy Act requirements. cess to the contractor's records except following penalties: (a) When a contractor operates a sys- when records must remain confidential. (a) If the amount involved does not tem of records to accomplish a Bureau (b) A contractor under this Part shall exceed $100, he shall be fined not more function, the contractor shall comply make all reports and information con- than $1,000 or imprisoned not more than with Subpart D of 43 CFR Part 2 which cerning the contract available to the one year, or both. implements the Privacy Act (5 U.S.C. Indian people which the contractor (b) If the amount involved exceeds 552 a). Examples of the contractor's re- serves or represents. Reports and infor- sponsibilities are: mation may be withheld from disclosure $100, he shall be fined not more than only when both of the following condi- $10,000 or imprisoned for not more than (1) To continue maintaining those tions exist: two years, or both. systems of records declared by the Bu- reau to be subject to the Privacy Act as (1) The reports and information fall § 274.46 Applicable procurement regu- published in the FEDERAL REGISTER. within one of the following exempt cate- lations. (2) To make such records available to gories: individuals involved. (i) Specifically required by statute or 41 CFR Part 14H-70 provides the con- Executive Order to be kept secret. tract clauses which shall be included in (3) To disclose an individual's record contracts made with tribal organizations to third parties only after receiving per- (ii) Commercial or financial informa- under this Part and places some require- mission from the individual to whom the tion obtained from a person or firm on a ments on them in addition to those given record pertains. 43 CFR 2.56 lists excep- privileged or confidential basis. (iii) Personnel, medical, and similar in this Subpart. tions to this procedure. (4) To establish a procedure to ac- files where disclosure would be a clearly § 274.47 Contract revision or amend- count for access, disclosures, denials, and unwarranted invasion of personal pri- ment. amendments to records. vacy. (a) Any contract made under this (5) To provide safeguards for the pro- (iv) Geological and geophysical infor- Part may be revised or amended as tection of the records. mation and data concerning wells. deemed necessary to carry out the pur- (b) The contractor may not: (2) Disclosure is prohibited by statute poses of the contract. No revision or (1) Discontinue or alter any estab- or Executive Order or sound grounds ex- amendment shall be made without the lished systems of records without prior FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51316 RULES AND REGULATIONS, approval of the appropriate Bureau sys- Secretary to Indians because of their (A) whose positions are in the program tems manager. status as Indians. or portion of the program to be con- (2) Deny requests for notification or (g) "Indian" means a person who is a tracted; or access of records without prior approval member of an Indian tribe. (B) in a portion of the program to con- of the appropriate Bureau systems man- (h) "Superintendent" means the of- tinue under Bureau operation in connec- ager. ficial in charge of a Bureau of Indian tion with a contract for other portions of Affairs Agency Office. the program. Subpart D-Appeals (i) "Tribal Chairman" means tribal (iii) The proposed agreement will be s 274.51 Contract appeal. chairman, governor, chief or other per- worked out between the tribe, the Super- A contractor may appeal an adverse son recognized by the tribal government intendent, and the Area Director and for- decision or action of a Bureau contract- as its chief executive officer. warded to the Commissioner for final ing officer regarding a contract under (j) "Tribal government" "tribal gov- approval. this Part as provided in Subpart C of 43 erning body," and "tribal council" means (b) When a contract application CFR Part 4. the recognized governing body of any under Part 271 of this chapter does not Indian tribe. include a proposed agreement for direc- § 274.52 Appeal from decision to can- (k) "Tribal organization" means the tion of Bureau employees, the applica- cel contract for cause. recognized governing body of any Indian tion must be submitted at least 120 days A contractor may appeal the decision tribe; or any legally established organi- in advance of the proposed effective date of a Bureau official to cancel a contract zation of Indians or tribes which is con- of the contract to allow time for place- under this Part for cause. The appeal trolled, sanctioned, or chartered by such ment of affected employees. shall be made as provided in Subpart C governing body or bodies or which is of 43 CFR Part 4. democratically elected by the adult § 275.4 Implementing regulations. members of the Indian community to Regulations to implement section 105 § 274.53 Other appeals. be served by such organization and of the Act will be issued by the Civil Any decision or action taken by a Bu- which includes the maximum participa- Service Commission. The regulations will reau official under this Part, other than tion of Indians in all phases of its cover the situations described in para- those given in §§ 274.51 and 274.52 may activities. graphs (a) (1) and (a) (2) of $ 275.3. be appealed only as provided in Part 2 of this chapter. § 275.3 Methods for staffing. (a) An Iidian tribal organization may PART 276-UNIFORM ADMINISTRATIVE use any of the following three methods REQUIREMENTS FOR GRANTS PART 275-STAFFING to employ or obtain the services of Bu- Sec.- Sec. 275.1 Purpose and scope. reau employees: 276.1 Purpose and scope. 275.2 Definitions. (1) Agreement in accordance with the 276.2 Definitions. 275.3 Methods for staffing. 276.3 Cash depositories. Intergovernmental Personnel Act of 1970 275.4 Implementing regulations. 276.4 Bonding and insurance. (5 U.S.C. 3371-3376). The agreement 276.5 Recordkeeping. AUTHORITY: Sec. 502, 84 Stat. 1909, 1925; may be arranged between the tribal or- 276.6 Program income. Sec. 105, Pub. L. 93-638, 88 Stat. 2203; 25 ganization, the employee, and the Area 276.7 Standards for grantee financial man- U.S.C. 48. Director or Commissioner. Assistance will agement systems. be provided by the Area Personnel Office 276.8 Financial reporting requirements. § 275.1 Purpose and scope. in complying with Civil Service instruc- 276.9 Monitoring and reporting program The purpose of this Part is to outline tions (Federal Personnel Manual Chapter performance. methods available to tribes for utilizing 276.10 Grant payment requirements. 334) for completing an agreement. the services of Bureau employees. These 276.11 Property management standards. (2) Employment of Bureau employees regulations are not intended to prevent 276.12 Procurement standards. on or before December 31, 1985, when 276.13 an Indian tribe or tribal organization Indian preference in grant admin- serving under an appointment not limit- istration. from staffing their programs by other ed to one year or less. A mutual agree- 276.14 Budget revision. methods they feel appropriate. However, ment will be made between a tribal 276.15 Grant closeout. when an Indian tribe or tribal organiza- organization and the employee before 276.16 Subgrants and subcontracts to non- tion decides to provide Bureau employees leaving Federal employment to retain profit organizations. certain Federal benefits, Civil Service coverage for any of the following Federal APPENDIX A-PRINCIPLES FOR DETERMINING Commission regulations must be benefits: COSTS APPLICABLE TO GRANTS adhered to. (i) Compensation for work injuries. APPENDIX B-FINANCIAL REPORTING REQUIRE- § 275.2 Definitions. (ii) Retirement. MENTS As used in this Part: (iii) Health insurance. AUTHORITY: 34 CFR 256; Sec. 104, Public (a) "Act" means the Indian Self-De- (iv) Life insurance. Law 93-638, 88 Stat. 2203, unless otherwise termination and Education Assistance noted. (3) An agreement by an Indian tribe in Act (Public Law 93-638, 88 Stat. 2203). accordance with the 1834 Act (25 U.S.C. § 276.1 Purpose and scope. (b) "Area Director" means the official 48) may be made in connection with con- (a) The purpose of the regulations in in charge of a Bureau of Indian Affairs tracts under section 102 of. the Act. this Part is to give the uniform adminis- Area Office. (i) The agreement may provide for the trative requirements for grants awarded (c) "Bureau" means the Bureau of tribal government to direct the day-to- by the Bureau of Indian Affairs. Indian Affairs. day activities of Bureau employees. Trib- (b) The regulations in this Part shall (d) "Commissioner" means the Com- al government direction of Bureau em- apply to all grants awarded by the Bu- missioner of Indian Affairs. ployees means the tribal chairman or reau of Indian Affairs unless the Part (e) "Days" means calendar days. other tribal official, as designated by the which gives the application process and (f) "Indian tribe" means any Indian tribal governing body, is responsible for special requirements for the specific type Tribe, Band, Nation, Rancheria, Pueblo, the planning, coordination, and comple- of grant states otherwise. Colony, or Community, including any tion of the daily on-the-job assignments Alaska Native village or regional or vil- of Bureau employees. The daily assign- § 276.2 Definitions. lage corporation as defined in or estab- ments of each such Bureau employee are As used in this part: lished pursuant to the Alaska Native limited to those that fall within the gen- (a) "Advance by Treasury check" Claims Settlement Act (85 Stat. 688) eral range of duties prescribed in the means a payment made by a Treasury which is federally recognized as eligible employee's Bureau position. check to a grantee upon its request or by the United States Government (ii) The agreement to direct day-to- through the use of predetermined pay- through the Secretary for the special day activities of Bureau employees shall ment schedules before payments are programs and services provided by the include all employees: made by the grantee. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51317 (b) "Date of completion" means the quest for reimbursement from the commitment such-as a bid bond, certified date when all work under a grant is com- grantee. check, or other negotiable instrument pleted or the date in the grant award (o) "Suspension of a grant" means an accompanying a bid as assurance that document, or any supplement or amend- action by the Bureau which temporarily the bidder will, upon acceptance of his ment thereto, on which Federal assist- suspends assistance under the grant bid, execute such contractual documents ance ends. pending corrective action by the grantee as may be required within the time (c) "Disallowed costs" means those or pending decision to terminate the specified. charges to a grant which the Bureau or grant by the Bureau. (2) A performance bond on the part its representative determines to be unal- (p) "Termination of a grant" means of the contractor for 100 percent of the lowable. the cancellation of Federal assistance, contract price. A performance bond is (d) "Economic enterprise" means any in whole or in part, under a grant at any one executed in connection with a con- commercial, industrial, agricultural or time prior to the date of completion. tract to secure fulfillment of all the con- business activity that is at least 51 per- (q) "Tribal government", "tribal gov- tractor's obligations under the contract. cent Indian owned, established or or- erning body" and "tribal council" means (3) A payment bond on the part of ganized for the purpose of profit. the recognized governing body of an the contractor for 100 per cent of the (e) "Excess property" means property Indian tribe. contract price. payment bond is one under the control of the Bureau which, (r) "Tribal organization" means the executed in connection with a contract as determined by the Commissioner, is no recognized governing body of any Indian to assure payment as required by law of longer required for its needs. tribe or any legally established organiza- all persons supplying labor and material (f) "Expendable personal property" tion of Indians which is controlled, sanc- in the execution of the work provided for means all tangible personal* property tioned, or chartered by such governing in the contract. other than nonexpendable property. body or bodies of which is democratically (b) Where, in connection with a Bu- (g) "Grant closeout" means the proc- elected by the adult members of the In- reau grant, the Bureau also guarantees ess by which the Bureau determines that dian community to be served by such the payment of money borrowed by the all applicable administrative actions and organization and which includes. the grantee, the Bureau may at its discretion all required work of the grant have been maximum participation of Indians in all require adequate bonding and insur- completed by the grantee and the Bureau. phases of its activities. ance if the bonding and insurance re- (h) "Grantee" means the entity which is responsible for administration of the § 276.3 Cash depositories. quirements of the grantee are not deemed to be sufficient to protect adequately the grant. (a) Except for situations described in interests of the Federal Government. (i) "Indian tribe" means any Indian paragraphs (b) and (c) of this section, Tribe, Band, Nation, Rancheria, Pueblo, the Bureau will not: § 276.5 Recordkeeping. Colony or Community, including any (1) Require physical segregation of (a) The Bureau shall not impose rec- Alaska Native village or regional or vil- cash depositories for Bureau grant funds ord retention requirements over and lage corporation as defined in or estab- provided to a grantee. above those established by the grantee lished pursuant to the Alaska Native (2) Establish any eligibility require- except that financial records, supporting Claims Settlement Act (85 Stat. 688) ments for cash depositories. in which documents, statistical records, and all which is federally recognized as eli- Bureau grant funds are deposited by other records pertinent to a Bureau gible by the United States Government grantees or their subgrantees. grant, or to any subgrant (or negotiated through the Secretary for the special (b) A separate bank account shall be contract exceeding $2500) under a grant, programs and services provided by the used when payments under letter of shall be retained for a period of three Secretary to Indians because of their credit are made on a "check-paid" basis years, with the following qualifications: status as Indians. in accordance with agreements entered (1) The records shall be retained be- (j) "Letter of credit" means an instru- into by a grantee, the Bureau, and the yond the three year period if audit find- ment certified by an authorized official banking institutions involved. A check- ings have not been resolved. of the Bureau which authorizes a grantee paid basis letter of credit is one under (2) Records for nonexpendable prop- to draw funds when needed from the which funds are not drawn from the erty which was acquired with Bureau Treasury, through a Regional Disburs- Treasury until the grantee's checks have grant funds shall be retained for three ing Office, in accordance with the pro- been presented to its bank for payment. years after its final disposition. visions of Treasury Circular No. 1075 as (c) Consistent with the national goal (3) When grant records are trans- modified and supplemented by a memo- of expanding the opportunities for mi- ferred to or maintained by the Bureau, randum of understanding between the nority business enterprises, grantees are the three-year retention requirement is Bureau of Government Financial Opera-- encouraged to use minority banks. not applicable to the grantee. tion, Department of the Treasury and § 276.4 Bondings and insurance. (b) The retention period starts from the Department of the Interior. the date of submission of the final ex-. (k) "Nonexpendable personal prop- In administering Bureau grants, penditure report or, for grants which are erty" means tangible personal property grantees shall observe their regular re- renewed annually, from the date of the having useful life of more than one year quirements and practices with respect to submission of the annual expenditure re- and an acquisition cost of $300 or more bonding and insurance. The Bureau will port. per unit. A grantee may use its own defi- not impose additional bonding and in- (c) Grantees are authorized, if they nition of nonexpendable personal prop- surance requirements, including fidelity desire, to substitute microfilm copies in erty provided that such definition would bonds, except as provided in paragraphs lieu of original records. at least include all tangible personal (a) and (b) of this section. (d) The Bureau shall request transfer property as defined above. (a) The recipient of a Bureau grant of certain records to its custody from (1) "Personal property" means prop- which requires contracting for construc- grantees when it determines that the rec- erty of any kind except real property. tion or facility improvement (including ords possess long-term retention value. It may be tangible-having physical any Bureau grant which provides for al- However, in order to avoid duplicate rec- existence, or intangible-having no phys- terations or renovations of real property) ordkeeping the Bureau may make ar- ical existence, such as patents, inven- shall follow its own requirements and rangements with the grantee for the tions, and copyrights. practices relating to bid guarantees, per- grantee to retain any records which are (m) "Real property" means land, land formance bonds, and payment bonds ex- continuously needed for joint use. improvements, structures and appurte- cept for contracts exceeding $100,000. nances thereto, excluding removable per- (e) The Secretary of the Interior and For contracts exceeding $100,000, the sonal property; machinery and equip- the Comptroller General of the United minimum requirements shall be as ment. States, or any of their duly authorized follows: (n) "Reimbursement by Treasury representatives shall have access to any (1) A bid guarantee from each bidder books, documents, papers, and records check" means a payment made to a equivalent to five percent of the bid price. of the grantees and their subgrantees grantee with a Treasury check upon re- The bid guarantee shall consist of a firm which are pertinent to a specific grant FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51318 RULES AND REGULATIONS program for the purpose of making audit, grantees' requirements. Except when ported activities to assure that adequate examination, excerpts, transcripts and specifically required by law, the Bureau progress is being made toward achieving copies at government expense. will not require financial reporting on the goals of the grant. This review shall (f) Unless otherwise required by law, the accrual basis from tribal organiza- be made for each program, function, or the Bureau shall not place restrictions on tions whose records are not maintained activity of each grant as set forth in the grantees which will limit public access on that basis. However, when accrual re- approved grant application. to the grantee's records created as part porting is required by law, tribal organi- (b) Grantees shall submit a perform- of the grant except when records must zations whose records are not maintained ance report for each grant which briefly remain confidential. Following are some on that basis will not be required to con- presents the following for each program, of the reasons for withholding records: vert their accounting systems to the ac- function, or activity involved: (1) Prevent a clearly unwarranted in- crual basis; they may develop the accrual (1) A comparison of actual accom- vasion of personal privacy; information through an analysis of the plishments to the goals established for (2) Specifically required by statute or documentation on hand or on the basis the period. Where the output of grant Executive Order to be kept secret; of best estimates. programs can be readily quantified. such (3) Commercial or financial informa- (2) Records which identify adequately quantitative data should be related to tion obtained from a person or firm on a the source and application of funds for cost data for computation of unit costs. privileged or confidential basis. grant-or subgrant-supported activi- (2) Reasons for slippage in those cases ties. These records shall contain infor- where established goals were not met. § 276.6 Program income. mation pertaining to grant or subgrant (3) Other pertinent information in- (a) No grantee receiving a grant shall awards and authorizations, obligations, cluding, when appropriate, analysis and_ be held accountable for interest earned unobligated balances, assets, liabilities, explanation of cost overruns or high on grant funds, pending their disburse- outlays, and income. unit costs. ment for program purposes. (3) Effective control over and account- (c) Grantees shall submit the perform- (b) Proceeds from the sale of real or ability for all grant or subgrant funds, ance reports to the Bureau with the F1- personal property. either provided by the and real and personal property acquired nancial Status Reports (prescribed in- Federal Government or purchased in with grant or subgrant funds. Grantees Appendix B of this Part) in the fre- whole or in part with Federal funds, shall and subgrantees shall adequately safe- quency established by Appendix B. The be handled in accordance with 276.11. guard all such property and shall assure Bureau shall prescribe the frequency (c) Royalties received from copyrights that it is used solely for authorized with which the performance reports will and patents produced under the grant purposes. be submitted with the Request for Ad- during the grant period shall be retained (4) Comparison of actual with budg- vance or Reimbursement (prescribed in by the grantee and, in accordance with eted amounts for each grant or sub- Appendix B) when that form is used in the grant agreement, be either added to grant, and, when specifically required by lieu of the Financial Status Report. In the funds already committed to the pro- the performance reporting requirements no case shall the performance reports gram or deducted from total allowable of the grant or subgrant, relation of fi- be required more frequently than quar- project costs for the purpose of deter- nancial information with performance terly or less frequently than annually. mining the net costs on which the Bureau or productivity data, including the pro- (d) Between the required performance share of costs will be based. After termi- duction of unit cost information. reporting dates, events may occur which nation or completion of the grant, the (5) Procedures to minimize the time have significant impact upon the proj- Bureau share of royalties in excess of elapsing between the transfer of funds ect or program. In such cases, the $200 received annually shall be returned from the U.S. Treasury and the disburse- grantee shall inform the Bureau as soon to the Bureau in the absence of other ment by the grantee, whenever funds as the following types of conditions be- specific agreements between the Bureau are advanced by the Federal Govern- come known: and the grantee. The Bureau share of ment. When advances are made by a (1) Problems, delays, or adverse con- royalties shall be computed on the same letter-of-credit method, the grantee shall ditions which will materially affect the ratio basis as the Bureau share of the make drawdowns from the U.S. Treasury ability to attain program objectives, pre- total project cost. as close as possible to the time of making vent the meeting of time schedules and (d) All other program income earned the disbursements. Subgrantees shall in- goals, or preclude the attainment of proj- during the grant period shall be retained stitute similar procedures when funds ect work units by established time pe- by the grantee and, in accordance with are advanced by the grantee. riods. This disclosure shall be accom- the grant agreement, shall be either: (6) Procedures for determining the plished by a statement of the action (1) Added to funds committed to the allowability and allocability of costs shall taken, or contemplated, and any Bureau project by the Bureau and the grantee be in accordance with the applicable cost assistance needed to resolve the situa- and be used to further eligible program principles prescribed in Appendix A of tion. this Part. (2) Favorable developments or events objectives, or (7) Accounting records which are sup- which enable meeting time schedules (2) Deducted from the total project ported by source documentation. and goals sooner than anticipated or costs for the purpose of determining the (8) A systematic method to assure producing more work units than orig- net costs on which the Bureau share of timely and appropriate resolution of au- inally projected. costs will be based. (e) Grantees shall record the receipt dit findings and recommendations. (e) If any performance review con- ducted by the grantee discloses the need and expenditures of revenues (such as (b) Grantees shall require subgrantees for change in the budget estimates in taxes, special assessments, levies, fines, (recipients of grants which are passed accordance with the criteria established etc.) as a part of grant project transac- through by the grantee) to adopt all of in § 276.14, the grantee shall submit a tions when such revenues are specifically the standards in paragraph (a) of this request for budget revision. earmarked for a grant project in accord- section. (f) The Bureau shall make site visits ance with grant agreements. § 276.8 Financial reporting require- as frequently as practicable to: S 276.7 Standards for grantee financial ments. (1) Review program accomplishments and management control systems. management systems. Requirements for grantees to report (2) Provide such technical assistance (a) Grantee financial management financial information to the Bureau, and as may be required, or requested. systems for grants and subgrantee fi- to request advances and reimbursement nancial management systems for sub- when a letter of credit method is not § 276.10 Grant payment requirements. grants shall provide for: used, are prescribed in Appendix B of (a) Except for construction grants for (1) Accurate, current, and complete this Part. which the letter-of-credit method is op- tional, the letter-of-credit funding meth- disclosure of the financial results of each § 276.9 Monitoring and reporting pro- od shall be used by the Bureau where all grant program in accordance with Fed- gram performances. of the following conditions exist: eral reporting requirements and for each (a) Grantees shall constantly moni- (1) When there is or will be a con- subgrant in accordance with the tor the performance under grant-sup- tinuing relationship between a grantee FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51319 and the Bureau for at least a 12-month reservation boundaries or adjoins on at (2) The grantee shall obtain approval period and the total amount of advances least two sides other trust or restricted by the Bureau for the use of the real to be received within that period from lands as prescribed in Part 272 of this property in other projects when the the Bureau is $250,000. or more, as pre- chapter. grantee determines that the property is scribed by Treasury Circular No. 1075. (2) Fee title to the acquired real prop- no longer needed for the original grant (2) When the grantee has established erty shall vest in the Indian tribe when- purposes. Use in other projects shall be or demonstrated to the Bureau the will- ever the acquisition does not meet the limited to those under other Federal ingness and ability to establish proce- criteria in paragraph (b) (1) of this sec- grant programs, or programs that have dures that will minimize the time elaps- tion or unless for other reasons a tribe re- purposes consistent with those author- ing between the transfer of funds and quests title to be taken in the name of ized for support by the grantor. their disbursement by the grantee. the United States. In the absence of-ap- (3) When the real property is no (3) When the grantee's financial man- plicable statutory authority governing longer needed as provided in paragraphs agement system meets the standards for the disposition of real property acquired (c) (1) and (2) of this section, the fund control and accountability pre- by a tribe, the tribe shall use the real grantee shall return all real property scribed in § 276.7. property for the authorized purposes furnished or purchased wholly with Bu- (b) The method of advancing funds and in accordance with any other re- reau grant funds to the control of the by Treasury check shall be used, in ac- quirements imposed by the terms and Bureau. In the case of property pur- cordance with the provisions of Treasury conditions of the original grant. chased in part with Bureau grant funds, Circular No. 1075, when the grantee Changes in use compatible to other trib- the grantee may be permitted to take meets all of the requirements specified in al programs may be authorized by the title to the Federal interest therein upon paragraphs (a) (2) and (3) of this sec- Bureau. When no longer needed for the compensating the Federal Government tion. authorized purposes, the real property for its fair share of the property. The (c) The reimbursement by Treasury shall be used in accordance with the Federal share of the property shall be check method shall be the preferred standards set forth in § 276.11(d) (1) for the amount computed by applying the method when the grantee does not meet non-expendable personal property. Ac- percentage of the Federal participation the requirements specified in either para- cordingly, the following priority order in the total cost of the grant program graph (a) (2) or (a) (3) or both. This for use of such property shall be: for which the property was acquired to method may also be used when the ma- (1) Other grants from the Bureau. the current fair market value of the jor portion of the program is accom- (ii) Grants from other Federal agen- property. plished through private market financing cies. (d) Standards and procedures govern- or Federal loans, and when the Bureau (iii) Tribal purposes consistent with ing ownership, use, and disposition of grant assistance constitutes a minor por- those authorized for support by Bureau nonexpendable personal property fur- tion of the program. grants. nished by the Bureau or acquired with (d) Unless otherwise required by law, (iv) Tribal official activities. Bureau funds are set forth below: the Bureau shall not withhold payments (3) In those instances where the In- (1) Nonexpendable personal property for proper charges made by grantees at dian tribe requests, title may be acquired acquired with Bureau funds. When non- any time during the grant period unless: by the United States. Use of these ac- expendable personal property is acquired (1) A grantee has failed to comply quired real property interests will be by a grantee wholly or in part with Bu- with the program objectives, grant award subject to the authorized purposes and reau funds, title will not be taken by the conditions, or Bureau reporting require- in accordance with the provisions of the Bureau except as provided in paragraph ments; or original grant. Upon a determination (d) (1) (iv) of this section but shall be (2) The grantee is indebted to the that the real property is no longer vested in the grantee subject to the fol- United States and collection of the in- needed for the authorized purposes, dis- lowing restrictions on use and disposi- debtedness will not impair accomplish- position may be made by declaring it tion of the property: ment of the objectives of any grant pro- excess under provisions of the Act of (i) The grantee shall retain the prop- gram sponsored by the United States. January 2, 1975 (88 Stat. 1954) and title erty acquired with Bureau funds in the Under such conditions, the Bureau may, transferred to the Secretary to be held grant program as long as there is a need upon reasonable notice, inform the by the United States in trust for the for the property to accomplish the pur- grantee that payments will not be made tribe. Where real property does not meet pose of the grant program whether or for obligations incurred after a specified the requirements under the Act of Jan- not the program continues to be sup- date until the conditions are corrected uary 2, 1975 (88 Stat. 1954), the tribe ported by Bureau funds. When there is or the indebtedness to the Federal gov- may elect to acquire title under appli- no longer a need for the property to ernment is liquidated. cable enabling statutory authorities, or accomplish the purpose of the grant pro- (e) Appendix B of this Part provides in the absence of statutory authority, gram, the grantee shall use the property the procedures for requesting advances request withholding disposition in aid in connection with the other Federal or reimbursements. of legislation, or authorize disposal un- grants it has received in the following der the General Services Administra- order of priority: § 276.11 Property management stand- tion procedures. (A) Other grants from the Bureau ards. (c) The provisions of paragraph (b) needing the property. (a) Grantees may follow their own (2) and (3) of this section shall also ap- (B) Grants of other Federal agencies property management policies and pro- ply when real property is acquired in needing the property. cedures if they observe the require- whole or in part by a Bureau grant other (ii) When the grantee no longer has ments of this section. With respect to than that provided under Part 272 of need for the property in any of its Fed- property covered by this section, the Bu- this Chapter. However, when such prop- eral grant programs, or programs that reau may not impose on grantees any erty is acquired by a grantee other than have purposes consistent with those au- requirements (including property report- an Indian tribe, or a tribal governing thorized for support by the grantor, the mg requirements) not authorized by this body, fee simple title to the property property may be used for its own official Part unless specifically required by Fed- shall vest in the grantee upon acquisi- activities in accordance with the follow- eral law. tion. In the absence of applicable stat- ing standards: (b) Title to real property to be ac- utory provisions governing the use or (A) Nonexpendable property with an quired in whole or in part from a Bureau disposition of such property, it shall be acquisition cost of less than $500 and grant under Part 272 of this Chapter subject to the following requirements, used four years or more. The grantee shall vest in one of the following man- in addition to any other requirements may use the property for its own official ners: imposed by the terms and conditions of activities without reimbursement to the (1) Title may be taken by the United the grant: Federal Government or sell the property States in trust for the Indian tribe upon (1) The grantee shall use the real and retain the proceeds. the request of the tribe and when the property for the authorized purpose of real property to be acquired is within the (B) All other nonexpendable property. the original grant as long as needed. The grantee may retain the property for FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51320 RULES AND REGULATIONS its own use if a fair compensation is made thority to transfer title has been granted and administered in order to protect the to the Bureau for the latter's share of to an agency, title to Federally-owned public interest consistent with "Govern- the property. The amount of compensa- property (property to which the Federal ment Patent Policy" (President's memo- tion shall be computed by applying the Government retains title including ex- randum for heads of executive depart- percentage of Bureau participation in the cess property made available by the Bu- ments and agencies), dated August 23, grant program to the current fair market reau to grantees) remains vested by law 1971, and Statement of Government value of the property. in the Federal Government. Upon ter- Patent Policy as printed in 36 FR 16889. (iii) If the grantee has no need for the mination of the grant or need for the (2) Where the grant results in a book property, disposition of the property property, such property shall be re- or other copyrightable material, the au- shall be made as follows: ported to the Bureau for further Bureau thor or grantee is free to copyright the (A) Nonexpendable property with an use or, if appropriate. for reporting to the work, but the Bureau reserves a royalty- acquisition cost of $1,000 or less. Except General Services Administration for free nonexclusive and irrevocable license for that property which meets the cri- other Federal agency use. Appropriate to reproduce, publish, or otherwise use, teria of paragraph (d) (1) (ii) (A) of this disposition instructions will be issued to and to authorize others to use the work section, the grantee shall sell the prop- the grantee after completion of Bureau for Government purposes. erty and reimburse the Bureau an review. (h) The use of Bureau-owned facili- amount which is computed in accordance (e) The grantee's property manage- ties under the jurisdiction of the Com- with paragraph (d) (1) (iii) of this sec- ment standards for nonexpendable per- missioner by a grantee for purposes of tion. sonal property shall also include the fol- carrying out a grant may be authorized (B) Nonexpendable property with an lowing procedural requirements: when the facilities are not needed for acquisition cost of over $1,000. The (1) Property records shall be main- Bureau purposes. grantee shall request disposition instruc- tained accurately and provide for a de- tions from the Bureau. The Bureau shall scription of the property; manufacturer's § 276.12 Procurement standards. determine whether the property can be serial number or other identification (a) The standards contained tn this used to meet the Bureau's requirement. number; acquisition date and cost; section do not relieve the grantee of the If no requirement exists within the Bu- source of the property: percentage of contractual responsibilities arising under reau, the availability of the property Federal funds used in the purchase of its contracts. The grantee is the respon- shall be reported to the General Serv- property; location, use, and condition of sible authority, without recourse to the ices Administration (GSA) by the Bu- the property; and ultimate disposition Bureau regarding the settlement and reau to determine whether a requirement data including sales price or the method satisfaction of all contractual and ad- for the property exists in other Federal used to determine current fair market ministrative issues arising out of pro- agencies. The Bureau shall issue instruc- value if the grantee reimburses the Bu- curements entered into, in support of a tions to the grantee within 120 days and reau for its share. grant. This includes but is not limited to: the following procedures shall govern: (2) A physical inventory of property disputes, claims, protests of award, (1) If the grantee is instructed to ship shall be taken and the results reconciled source evaluation or other matters of a the property elsewhere, the grantee shall with the property records at least once contractual nature. Matters concerning be reimbursed by the benefiting Federal every two years to verify the existence, violation of law are to be referred to the agency with an amount which is com- current use, and-continued need for the tribal, Federal or other authority which puted by applying the percentage of the property. has proper jurisdiction. grantee's participation in the grant pro- (3) A control system shall be in effect (b) Grantees may use their own pro- gram to the current fair market value to insure adequate safeguards to prevent curement regulations provided that pro- of the property, plus any shipping or in- loss, damage, or theft to the property. curements made with Bureau grant terim storage costs incurred. Any loss, damage, or theft of nonex- funds adhere to the standards set forth (2) If the grantee is instructed to pendable property shall be investigated as follows: otherwise dispose of the property, he and fully documented. (1) The grantee shall maintain a code shall be reimbursed by the Bureau of (4) Adequate maintenance procedures or standards of conduct which shall gov- such costs incurred in its disposition. shall be implemented to keep the prop- ern the performance of its officers, em- (3) If disposition instructions are not erty in good condition. ployees, or agents in contracting with issued within 120 days after reporting. (5) Proper sales procedures shall be and expending Bureau grant funds. the grantee shall sell the property and established for unneeded property which Grantee's officers, employees or agents, reimburse the Bureau an amount which would provide for competition to the ex- shall neither solicit nor accept gratui- is computed by applying the percentage tent practicable and result in the highest ties, favors, or anything of nionetary of Bureau participation in the grant pro- possible return. value from contractors or potential con- gram to the sales proceeds. Further, the (f) When the total inventory value of tractors. To the extent permissible by grantee shall be permitted to retain $100 any unused expendable personal proper- law, rules or regulations, such standards or 10 percent of the proceeds, whichever ty exceeds $500 at the expiration of need shall provide for penalties, sanctions, or is greater, for the grantee's selling and for any grant purposes, the grantee may other disciplinary actions to be applied handling expenses. retain the property or sell the property for violations of such standards by either (iv) Where the Bureau determines as long as he compensates the Bureau the grantee officers, employees, or agents, that property with an acquisition cost of for its share in the cost. The amount or by contractors or their agents. $1,000 or more and financed solely with of compensation shall be computed in (2) All procurement transactions re- Bureau funds is unique, different, or accordance with paragraph (d) (1) (ii) gardless of whether negotiated or adver- costly to replace, it may reserve title to (B) of this section. tised and without regard to dollar value such property, subject to the following (g) Specific standards for control of shall be conducted in a manner so as to provisions: intangible property are provided as fol- provide maximum open and free compe- (A) The property shall be appropriate- lows: tition. The grantee should be alert to ly identified in the grant agreement or (1) If any program produces patent- organizational conflicts of interest or otherwise made known to the grantee. able items, patent rights, processes, or non-competitive practices among con- (B) The Bureau shall issue disposition inventions, in the course of work aided tractors which may restrict or eliminate instructions within 120 days after the by a Bureau grant, such fact shall be competition or otherwise restrain trade. completion of the need for the property promptly and fully reported to the Bu- However, this provision will apply only under the grant for which it was ac- reau. Unless there is prior agreement after the Indian preference requirements quired. If the Bureau fails to issue dis- between the grantee and Bureau on dis- prescribed in § 276.13 have been met. position instructions within 120 days, the position of such items, the Bureau shall (3) The grantee shall establish pro- grantee shall apply the standards of par- determine whether protection on such in- curement procedures which provide for, agraphs (d) (1) (i), (d) (1) (ii) (B), and vention or discovery shall be sought and as a minimum, the following procedural (d) (1) (iii) (B) of this section. how the rights in the invention or dis- requirements: (2) Federally-owned nonexpendable covery-including rights under any pat- (i) Proposed procurement actions personal property. Unless statutory au- ent issued on it-shall be allocated shall be reviewed by grantee officials to FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51321 avoid purchasing unnecessary or dupli- to be rendered by a university, college, or 11246, entitled "Equal Employment Op- cative items. Where appropriate, an other educational institutions; portunity," as amended by Labor Regu- analysis shall be made of lease and pur- (E) No acceptable bids have been re- lations (41 CFR Part 60). However, this chase alternatives to determine which received after formal advertising; Equal Employment Opportunity provi- would be the most economical, practical (F) The purchases are for highly sion will apply only after the Indian procurement. perishable materials or medical supplies; preference requirements prescribed in (ii) Invitations for bids or requests for for material or services where the prices § 276.13 have been met. proposals shall be based upon a clear are established by law; for technical (5) All contracts and subgrants for and accurate description of the techni- items or equipment requiring standard- construction or repair shall include a cal requirements for the material, prod- ization and interchangeability of parts provision for compliance with the Cope- uct, or service to be procured. In com- with existing equipment; for experimen- land "Anti-Kick Back" Act (18 U.S.C. petitive procurements, such description tal, developmental or research work; for 874) as supplemented in Department of shall not contain features which unduly supplies purchased for authorized resale; Labor regulations (29 CFR Part 3). This restrict- competition. "Brand name or and for technical or specialized supplies Act provides that each contractor or sub- equal" description may be used as a requiring substantial initial investment grantee shall be prohibited from induc- means to define the performance or other for manufacture; ing, by any means, any person employed salient requirements of a procurement. (G) Otherwise authorized by law, in the construction, completion, or repair When so used, the specific features of rules or regulations. Notwithstanding the of public work, to give up any part of the the named brand which must be met by existence of circumstances justifying compensation to which he is otherwise offerors should be clearly specified. negotiation, competition shall be ob- entitled. The grantee shall report all (iii) Positive efforts shall be made by tained to the maximum extent practi- suspected or reported violations to -the the grantees to use small business and cable. Bureau. minority-owned business sources of sup- (vii) Contracts shall be made only (6) When required by the Federal plies and services. Such efforts should al- with responsible contractors who possess grant program legislation, all construc- low these sources the maximum feasible the potential ability to perform success- tion contracts awarded by grantees and opportunity to compete for contracts to fully under the terms and conditions of subgrantees over $2,000 shall include a be performed using Bureau grant funds. a proposed procurement. Consideration provision for compliance with the Davis- However, this. provision will apply only shall be given to such matters as con- Bacon Act (40 U.S.C. 276a to a-7) and after the Indian preference requirements tractor integrity, record of past per- as supplemented by Department of La- prescribed in § 276.13 have been met. formance, financial and technical re- bor regulations (29 CFR Part 5). Under (iv) The type of procuring instru- sources, or accessibility to other neces- this Act, contractors shall be required to ments used (i.e., fixed price contracts, sary resources. pay wages to laborers and mechanics at cost reimbursable contracts, etc.) shall (viii) Procurement records or files for a rate not less than the minimum wages be appropriate for the particular pro- purchases in amounts over $10,000 shall specified in a wage determination made curement and for promoting the best in- provide at least the following pertinent by the Secretary of Labor. In addition, terest of the grant program involved, The information: Justification for the use of contractors shall be required to pay "cost-plus-a-percentage-of-cost". method negotiation in lieu of advertising, con- wages not less often than once a week. of contracting shall not be used. tractor selection, and the basis for the The grantee shall place a copy of the (v) Formal advertising, with adequate cost or price negotiation current prevailing wage determination purchase description. sealed bids, and (ix): A system for contract adminis- issued by the Department of Labor in public openings shall be the required tration shall be maintained to assure each solicitation and the award of a con- method of procurement unless negotia- tion pursuant to paragraph (b) (3) (vi) of contractor conformance with terms, con- tract shall be conditioned upon the ac- ditions, and specifications of the contract ceptance of the wage determination. The this section is necessary to accomplish or order, and to assure adequate and grantee shall report all suspected or re- sound procurement. However, precure- timely followup of all purchases. ported violations to the Bureau. ment of $10,000 or less need not be so ad- vertised. Where such advertised bids are (c) In addition to provisions to define (7) Where applicable, all contracts obtained the awards shall be made to the a sound and complete agreement, the awarded by grantees and subgrantees grantee shall include the following pro- over $2,000 for construction contracts responsible bidder whose bid is respon- visions in all contracts and subgrants: and over $2,500 for other contracts sive to the invitation and is most advan- (1) Contracts shall contain such con- which involve the employment of me- tageous to the grantee, price and other factors considered. (Factors such as dis- tractual provisions or conditions which chanics or laborers shall include a provi- will allow for administrative, contractual, sion for compliance with sections 103 counts, transportation costs, taxes may be considered in determining the lowest or legal remedies in instances where con- and 107 of the Contract Work Hours and bid.) Invitations for bids shall clearly tractors violate or breach contract terms, Safety Standards Act. (40 U.S.C. 327- set forth all requirements which the bid- and provide for such sanctions and pen- 330) as supplemented by Department of der must fulfill in order for his bid to be alties as may be appropriate. Labor regulations (29 CFR Part 5). Un- evaluated by the grantee. Any or all bids (2) All contracts, amounts for which der Section 103 of the Act, each contrac- may be rejected when it is in the are over $10,000 shall contain suitable tor shall be required to compute the grantee's interest to do so. provisions for termination by the grantee wages of every mechanic and laborer on (vi) Procurements may be negotiated including the manner by which it will the basis of a standard work day of 8 if it is impracticable and unfeasible to be effected and the basis for settlement. hours and a standard work week of 40 use formal advertising. Generally, pro- In addition, such contracts shall describe hours. Work in excess of the standard curements may be negotiated by the conditions where the contract may be workday or workweek is permissible if grantee if: terminated for default as well as con- the worker is compensated at a rate of (A) The public exigency will not per- ditions where the contract may be ter- not less than 1½ times the basic rate of mit the delay incident to advertising; minated because of circumstances be- pay for all hours worked over 8 hours in (B) The material or service to be pro- yond the control of the contractor. any calendar day or 40 hours in the work cured is available from only one person week. Section 107 of the Act applies to (3) In all contracts for construction or firm; (all contemplated sole source construction work and provides that no or facility improvement awarded over procurements where the aggregate ex- laborer or mechanic shall be required to $100,000, grantees shall observe the penditure is expected to exceed $5,000 work in surroundings or under working bonding requirements provided in shall be referred to the Bureau for prior conditions which are unsanitary, haz- § 276.4. approval). ardous, or dangerous to his health and (4) All construction contracts awarded (C) The total amount involved does safety as determined under construction, by recipients and their contractors or not exceed $10,000; safety, and health standards promul- subgrantees having a value of more than gated by the Secretary of Labor. These (D) The contract is for personal or $10,000, shall contain a provision requir- requirements do not apply to the pur- professional services, or for any service ing compliance with Executive Order No. chases of supplies or materials or articles FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51322 RULES AND REGULATIONS ordinarily available on the open market, (3) The grant budget is over $100,000 or contracts for transportation or trans- grant application. However, grantees and the cumulative amount of transfers mission of intelligence. may request by letter the approvals re- among direct cost object class budget (8) Contracts or agreements, the prin- quired by the provisions of Appendix A categories exceeds or is expected to ex- of this Part. cipal purpose of which is to create, de- ceed $10,000, or five percent of the grant velop, or improve products, processes or (g) Within 30 days from the date of budget, whichever is greater. The same methods: or for exploration into fields receipt of the request for budget revi- criteria apply to cumulative amount of which directly concern public health, sions, the Bureau shall review the request transfers among programs, functions, and notify the grantee whether or not the safety, or welfare; or constraints in the and activities when budgeted separately field of science or technology in which budget revisions have been approved. If for a grant, except that the Bureau shall the Bureau does not reach a decision there has been little significant experi- permit no transfer which would cause ence outside of work funded by Federal prior to the end of the 30 day period or any Federal appropriation, or part should the grantee not be notified of the assistance, shall contain a notice to the thereof, to be used for purposes other effect that matters regarding rights to Bureau's decision by the end of the 30 day than those intended. inventions, and materials generated un- period the grantee may appeal directly to (4) The grant budget is $100,000, or the Commissioner. der the contract or agreement are sub- less, and the cumulative amount of trans- ject to the regulations issued by the fers among direct cost object class budg- § 276.15 Grant closeout. Bureau. The contractor shall be advised et categories exceeds or is expected to (a) In closing out Bureau grants, the as to the source of additional informa- exceed five percent of the grant budget. following shall be observed: tion regarding these matters. The same critèria apply to the cumula- (1) Upon request, the Bureau shall (9) All negotiated contracts (except tive amount of transfers among pro- make prompt payments to a grantee for those of $10,000 or less) awarded by grams, functions, and activities when allowable reimbursable costs under the grantees shall include a provision to the budgeted separately for a grant, except grant being closed out. effect that the grantee, the Bureau, the that the Bureau shall permit no trans- (2) The grantee shall immediately re- Comptroller General of the United fer which would cause any Federal ap- fund to the Bureau any unencumbered States, or any of their duly authorized propriation, or part thereof, to be used balance of cash advanced to the grantee. representatives, shall have access to any for purposes other than those intended. (3) The Bureau shall obtain from the books, documents, papers, and records (5) The revisions involve the transfer grantee within 90 days after the date of of the contractor which are directly per- of amounts budgeted for indirect costs completion of the grant all financial, per- tinent to a specific grant program for to absorb increases in direct costs. formance, and other reports required as a the purpose of making audit, examina- (6) The revisions pertain to the addi- condition of the grant. The Bureau may tion, excerpts, and transcriptions. tion of items requiring approval in ac- grant extensions when requested by the (10) Contracts and subgrants of cordance with the provisions of Appendix grantee. amounts over $100,000 shall contain a A of this Part. (4) The Bureau shall make a settle- provision which requires the recipient to (b) All other changes to nonconstruc- ment for any upward or downward ad- agree to comply with all applicable tion grant budgets, except for the justments to the Federal share of costs standards, orders, or regulations issued changes described in paragraph (d) of after these reports are received. pursuant to the Clean Air Act of 1970 (42 this section do not require approval. (5) The grantee shall account for any U.S.C. 1251 et seq.) as amended. Viola- These changes include (1) the use of property acquired with grant funds, or tions shall be reported to the Bureau and grantee funds in furtherance of program received fom the Government in accord- the Regional Office of the Environmen- objectives over and above the grantee ance with the provisions of $ 276.11. tal Protection Agency. minimum share included in the approved (6) If a final audit has not been per- § 276.13 Indian preference in grant ad- grant budget and (2) the transfer of formed before the closeout of the grant, ministration. amounts budgeted for direct costs to ab- the Bureau shall retain the right to re- sorb authorized increases in indirect Any grant or subgrant shall require cover an appropriate amount after fully costs. that to the greatest extent feasible: considering the recommendations on dis- (c) For construction grants, grantees (a) Preferences and opportunities for allowed costs resulting from the final shall request prior approval promptly. audit. training and employment in connection from the Bureau for budget revisions with the administration of such a grant (b) Suspension. When a grantee has whenever: or subgrant shall be given to Indians. materially failed to comply with the (1) The revision results from changes (b) Preference in the award of a sub- terms and conditions of a grant, the Bu- in the scope or the objective of the grant- grant, contract or subcontract in con- reau may after reasonable notice to the supported programs. grantee, suspend the grant. The notice nection with administration of a grant (2) The revision increases the budg- shall be given to Indian organizations preceding suspension shall include the eted amounts of Bureau funds needed and economic enterprises. effective date of the suspension, the rea- to complete the project. sons for the suspension, the corrective (c) A tribal governing body may de- (d) When the Bureau awards a grant measures necessary for reinstatement of velop its own Indian preference require- which provides support for both con- the grant, and, if there is no immediate ments to the extent that such require- struction and nonconstruction work, the threat to safety, a reasonable time frame ments are not inconsistent with the Bureau may require, in the grant agree- for corrective action prior to actual sus- purpose and intent of paragraphs (a) ment, the grantee to request prior ap- and (b) of this section for grants exe- pension. No obligations incurred by the proval before making any fund or budg- cuted under this Part. grantee during the period of suspension et transfers between the two types of shall be allowable under the suspended § 276.14 Budget revision. work supported. grant, except that the Bureau may at its (e) For both construction and non- Criteria and procedures to be followed discretion allow necessary and proper construction grants, the Bureau shall by grantees in reporting deviations from costs which the grantee could not reason- require tribal grantees to notify the Bu- grant budgets and requesting approval ably avoid during the period of suspen- reau promptly whenever the amount of for budget revisions are as follows: sions if such costs would otherwise be al- Bureau authorized funds is expected to (a) For nonconstruction grants, grant- lowable under the applicable cost prin- exceed the needs of the grantee by more ciples specified in Appendix A of this ees shall request prior approvals prompt- than $5,000 or 5 percent of the Bureau Part. Appropriate adjustments to the ly from the Bureau for budget revisions grant, whichever is greater. This noti- whenever: payments under the suspended grant will fication will not be required when appli- (1) The revision results from changes be made, either by withholding the pay- cations for additional funding are sub- in the scope or the objective of the ments or by not allowing the grantee mitted for continuing grants. grant-supported program. credit for disbursements which he may (f) When requesting approval for (2) The revision indicates the need for make in liquidation of unauthorized ob- budget revisions, grantees shall use the additional Bureau funding. ligations he incurs during the period of budget forms which were used in the suspension. Suspensions shall remain in FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51323 effect until the grantee has taken correc- incurred by the grantee before cancel- the executive branch of the Federal Govern- tive action to the satisfaction of the Bu- lation. ment which makes grants to grantees. reau or given assurances satisfactory to 6. Grant means an agreement between the the Bureau that corrective action will be § 276.16 Subgrants and subcontracts to Bureau and a grantee whereby the Bureau taken, or until the Bureau cancels the non-profit organizations. provides funds or aid in kind to carry out grant. The uniform administrative require- specified programs, services, or activities. The (c) (1) Cancellation for cause. The Bu- ments in this part, including the cost principles and policies stated in this Appen- dix as applicable to grants in general also reau may cancel any grant in whole, or principles in Appendix A, to this part, are apply to any Federally sponsored cost reim- in part, at any time before the date of applicable to all subgrants or subcon- bursement type of agreement performed by a completion, whenever it is determined tracts made by a grantee in accordance grantee, including contracts, subcontracts that the grantee has: with the provisions of this chapter. How- and subgrants. (1) Materially failed to comply with ever, these requirements and cost 7. Grant program means those activities the terms and conditions of the grant; principles are applicable as minimum and operations of the grantee which are nec- (ii) Violated the rights or endangered standards for subgrants or subcontracts essary to carry out the purposes of the grant, the health, safety, or welfare of any made to nonprofit organizations. Ac- including any portion of the program fi- nanced by the grantee. persons; cordingly, the grantee may prescribe 8. Grantee means the entity which is re- (iii) Been grossly negligent in or has additional or more stringent require- sponsible for administration of the grant. mismanaged the handling or use of ments with regard to subgrants or sub- 9. Services, as used herein, means goods funds provided under the grant. contracts made to non-profit organiza- and facilities, as well as services. (2) When it appears that cancellation tions. 10. Supporting services means auxiliary of a grant shall become necessary, the functions necessary to sustain the direct APPENDIX A-PRINCIPLES FOR DETERMINING Bureau shall promptly notify the grantee effort involved in administering a grant pro- COSTS APPLICABLE TO GRANTS gram or an activity providing service to the in writing of this possibility. This writ- PART I-GENERAL grant program. These services may be cen- ten notice shall advise the grantee of tralized in the grantee department or in some the reason for the possible cancellation A. Purpose and scope. 1. Objectives. This at- other agency, and include procurement, pay- and the corrective action necessary to tachment sets forth principles for determin- roll, personnel functions, maintenance and avoid cancellation. The Bureau shall also ing the allowable costs of programs adminis- operation of space, data processing, account- tered by grantees under grants from the offer, and provide if requested by the tng, budgeting, auditing, mail and messenger Bureau. The principles are for the purpose of service, and the like. grantee, any technical assistance which cost determination and are not intended to may be required to effect the corrective C. Basic guidelines. 1. Factors affecting al- identify the circumstances or dictate the ex- lowability of costs. To be allowable under a action. The grantee shall have 60 days tent of Bureau and tribal participation in the grant program. costs must meet the follow- in which to effect this corrective action financing of a particular grant. They are de- ing general criteria: before the Bureau provides notice of signed to provide that Bureau assisted pro- a. Be necessary and reasonable for proper intent to cancel the grant as provided in grams bear their fair share of costs recog- and efficient administration of the grant pro- paragraph (c) (3) of this section. nized under these principles, except where gram, be allocable thereto under these prin- restricted or prohibited by law. No provision (3) Upon deciding to cancel for cause, ciples, and, except as specifically provided for profit or other increment above cost is the Bureau shall promptly notify the herein, not be a general expense required to intended. carry out the overall responsibilities of a grantee in writing of that decision, the 2. Policy guides. The application of these grantee. reasons for the cancellation, and the ef- principles is based on the fundamental prem- b. Be authorized or not prohibited under fective date. The Bureau shall also pro- ises that: applicable laws or regulations. vide a hearing for the grantee before a. Grantees are responsible for the efficient c. Conform to any limitations or exclu- cancellation. However, the Bureau may and effective administration of grant pro- sions set forth in these principles, Federal immediately cancel the grant, upon no- grams through the application of sound man- laws, or other governing limitations as to agement practices. tice to the grantee, if the Bureau deter- types or amounts 0: cost items. b. The grantee assumes the responsibility mines that continuance of the grant d. Be consistent with policies, regulations, for seeing that Bureau assisted program and procedures that apply uniformly to both poses an immediate threat to safety. In funds have been expended and accounted for Federally assisted and other activities of this event, the Bureau shall provide a consistent with underlying agreements and which the grantee is a part. hearing for the grantee within ten (10) program objectives. e. Be accorded consistent treatment days of cancellation. c. Each grantee organization, in recogni- through application of generally accepted ac- (4) Payments made to grantees or re- tion of its own unique combination of staff counting principles appropriate to the cir- coveries- by. the Bureau under grants facilities and experience, will have the pri- cumstances. mary responsibility for employing whatever cancelled for cause shall be in accord- 1. Not be allocable to er included as a cost form of organization and management tech- ance with the legal rights and obliga- of any other Federally financed program in niques may be necessary to assure proper and either the current or a prior period. tions of the parties. efficient administration. g. Be net of all applicable credits. (d) (1) Cancellation on other grounds. 3. Application. These principles will be ap- 2. Allocable costs. a. A cost is allocable to Except as provided in paragraph (c) of plied by the Bureau in determining costs in- a particular cost objective to the extent of this section, grants may be cancelled in curred by grantees under Bureau grants (in- benefits received by such objective. whole or in part only as follows: cluding subgrants, contracts by grantees and b. Any cost allocable to a particular grant subcontracts). (i) By the Bureau with the consent of or cost objective under the principles pro- B. Definitions. 1. Approval or authorization the grantee, in which case the two vided for in this Appendix may not be shifted of the Bureau means documentation evidenc- to other Federal grant programs to overcome parties shall agree upon the cancellation ing consent prior to incurring specific cost. funds deficiencies, avoid restrictions imposed conditions, including the effective date, 2. Cost allocation plan means the docu- by law or grant agreements, or for other and in the case of partial cancellation, mentation identifying, accumulating, and reasons. the portion to be cancelled; or distributing allowable costs under grants and (ii) By the grantee, upon written contracts together with the allocation meth- c. Where an allocation of joint cost will ods used. ultimately result in charges to a grant pro- notice to the Bureau, setting forth the 3. Cost, as used herein, means cost as de- gram, an allocation plan will be required as reasons for the cancellation, the effective prescribed in Section I. termined on a cash, accrual, or other basis date, and, in the case of partial cancel- acceptable to the Bureau as & discharge of 3. Applicable credits. a. Applicable credits lation, the portion to be cancelled. the grantee's accountability for Bureau refer to those receipts or reduction of ex- (2) When a grant is cancelled in ac- funds. penditure-type transactions which offset or cordance with paragraph (d) of this 4. Cost objective means a pool, center, or reduce expense items allocable to grants as section. the grantee shall not incur new area established for the accumulation of cost. direct or indirect costs. Examples of such obligations for the cancelled portion Such areas include organizational units, transactions are: purchase discounts; rebates after the effective date, and shall cancel functions, objects or items of expense as well or allowances; recoveries or indentities on losses; sale of publications, equipment, and as many outstanding obligations as pos- as ultimate cost objectives including specific scrap; income from personal or incidental sible. The Bureau shall allow full credit grants, projects, contracts, and other activi- ties. services; and adjustments of overpayments to the grantee for the Bureau share of or erroneous charges. 5. Federal agency means any department, the noncancellable obligations properly b. Applicable credits may also arise when agency, commission, or instrumentality in Bureau funds are received or are available FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51324 RULES AND REGULATIONS from sources other than the grant program may be negotiated annually in situations in the plan will be supported by formal ac- involved to finance operations or capital where the cost experience and other perti- counting records which will substantiate the items of the grantee. This includes costs nent facts available are deemed sufficient to propriety of eventual charges. arising from the use of depreciation of items enable the contracting parties to reach an in- 2. Requirements. The allocation plan of donated or financed by the Bureau to fulfill formed judgment (1) as to the probable level the grantee should cover all joint costs of the matching requirements under another grant of indirect costs in the grantee department grantees as well as costs to be allocated un- program. These types of credits should like- during the period to be covered by the nego- der plans of other agencies or organizational wise be used to reduce related expenditures tiated rate, and (2) that the amount allow- units which are to be included in the costs in determining the rates or amounts appli- able under the predetermined rate would of federally sponsored programs. The cost cable to a given grant. not exceed actual indirect cost. allocation plans of all the agencies rendering D. Composition of cost. 1. Total cost. The b. Negotiated lump sum for overhead. A services to the grantee, to the extent feasible, total cost of a grant program is comprised negotiated fixed amount in lieu of indirect should be presented in a single document. of the allowable direct cost incident to its costs may be appropriate under circum- The allocation plan should contain but not performance, plus its allocable portion of stances where the benefits derived from a necessarily be limited to, the following: allowable indirect costs, less applicable grantee department's indirect services can- a. The nature and extent of services pro- credits. not be readily determined as in the case of vided and their relevance to the Federally 2. Classification of costs. There is no uni- small, self-contained or isolated activity. sponsored programs. versal rule for classifying certain costs as When this method is used, a determination b. The items of expense to be included. either direct or indirect under every ac- should be made that the amount negotiated c. The methods to be used in distributing counting system. A cost may be direct with will be approximately the same as the actual cost. respect to some specific service or function, indirect cost that may be incurred. Such 3. Instructions for preparation of cost al- but indirect with respect to the grant or amounts negotiated in lieu of indirect costs location plans. The Bureau, in consultation other ultimate cost objective. It is essential, will be treated as an offset to total indirect with the other Federal agencies concerned, therefore, that each item of cost be, treated expenses of the grantee department before will be responsible for developing and issu- consistently either as a direct or an indirect allocation to remaining activities. The base ing the instructions for use by grantees in cost. Specific guides for determining direct on which such remaining expenses are allo- preparation of cost allocation plans. and indirect costs allocable under grant pro- cated should be appropriately adjusted. 4. Negotiation and approval of indirect cost grams are provided in the sections which 3. Limitation on indirect costs. a. Bureau proposals for grantees. a. The Bureau, in col- follow. grants may be subject to laws that limit the laboration with the other Federal agencies E. Direct costs. 1. General. Direct costs are amount of indirect costs that may be al- and offices concerned, will be responsible for those that can be identified specifically with lowed. In this event, the Bureau will establish negotiation, approval, and audit of cost al- a particular cost objective. These costs may procedures which will assure that the amount location plans, which will be submitted to it be charged directly to grants, contracts, or actually allowed for indirect costs under by the grantees. These plans will cover cen- to other programs against which costs are each such grant does not exceed the maxi- tral support service costs of the grantees. finally lodged. Direct costs may also be mum allowable under the statutory limita- b. The Department of the Interior Office of charged to cost objectives used for the other tion or the amount otherwise allowable under Audit and Investigation will have responsibil- ultimate cost objective. this Appendix, whichever is the smaller. ity similar to that set forth in a., above, for 2. Application. Typical direct costs charge- b. When the amount allowable under a the negotiation, approval, and audit of the able to grant programs are: statutory limitation is less than the amount indirect cost proposal. a. Compensation of employees for the time otherwise allocable as indirect costs under c. Questions concerning the cost allocation and effort devoted specifically to the execu- this Appendix the amount not recoverable plans approved under a. and b., above, should tion of grant programs. as indirect costs under a grant may not be be directed to the Bureau. b. Cost of materials acquired, consumed, shifted to another Federally sponsored grant or expended specifically for the purpose of program or contract. PART II-STANDARDS FOR SELECTED ITEMS OF the grant. G. Cost incurred by organizations other COST c. Equipment and other approved capital than the grantee. 1. General. The cost of A. Purpose and applicability. 1. Objective. expenditures. service provided by other organizations may This attachment provides standards for de- d. Other items of expense incurred spe- only include allowable direct costs of the termining the allowability of selected items cifically to carry out the grant agreement. service plus a prorata share of allowable sup- of cost. e. Services furnished specifically for the porting costs and supervision directly re- 2. Application. These standards will apply grant program by other agencies, provided quired in performing the service, but not irrespective of whether a particular item of supervision of a general nature such as that such charges are consistent with criteria cost is treated as direct or indirect cost. Fail- outlined in Section G of these principles. provided by the head of an organization and ure to mention a particular item of cost in his staff assistants not directly involved in F. Indirect costs. 1. General. Indirect costs the standards is not intended to imply that it operations. However, supervision-by the head are those (a) incurred for a common or joint is either allowable or unallowable, rather of an organization whose sole function is pro- purpose benefiting more than one cost ob- determination of allowability in each case viding the service furnished would be an fective, and (b) not readily assignable to should be based on the treatment of stand- eligible cost. Supporting costs include those the cost objectives specifically benefited, ards provided for similar or related items of furnished by other units of the supplying without effort disproportionate to the re- cost. The allowability of the selected items of organizations. sults achieved. The term "indirect costs," cost is subject to the general policies and 2. Alternative methods of determining as used herein, applies to costs of this type principles stated in Part I of this Appendix. indirect cost. In lieu of determining actual originating in the grantee department, as B. Allowable costs. 1. Accounting. The cost indirect cost related to a particular service well as those incurred by other departments of establishing and maintaining accounting furnished by another organization, either of in supplying goods, services, and facilities. and other information systems required for the following alternative methods may be to the grantee department. To facilitate the management of grant programs is allow- used provided only one method is used for equitable distribution of indirect expenses able. This includes cost incurred by central a specific service during the fiscal year to the cost objectives served, it may be nec- involved. service agencies for these purposes. The cost essary to establish a number of pools of in- a. Standard indirect rate. An amount equal of maintaining central accounting records direct cost within a grantee department or to ten percent of direct labor cost in pro- required for overall tribal government pur- in other agencies providing services to a poses, such as appropriation and fund ac- viding the service performed by another orga- grantee department. Indirect cost pools counts by the Treasurer, Comptroller, or sim- nization (excluding overtime, shift, or holi- should be distributed to benefiting cost ob- day premiums and fringe benefits) may be ilar officials, is considered to be a general ex- jectives on bases which will produce an allowed in lieu of actual allowable indirect pense of government and is not allowable. equitable result in consideration or relative cost for that service. 2. Advertising. Advertising media includes benefits derived. b. Predetermined fixed rate. A predeter- newspapers, magazines, radio and television 2. Grantee departmental indirect costs. All mined fixed rate for indirect cost of the unit programs, direct mail, trade papers, and the grantee departmental indirect costs, includ- or activity providing service may be nego- like. The advertising costs allowable are those ing the various levels of supervision, are tiated as set forth in Section F.2.a. which are solely for: eligible for allocation to grant programs H. Cost incurred by grantee for others. 1. a. Recruitment of personnel required for provided they meet the conditions set forth in General. The principles provided in Section the grant program. this Part. In lieu of determining the actual G will also be used in determining the cost b. Solicitation of bids for the procurement amount of grantee departmental indirect cost of services provided by the grantee to another of goods and services required. allocable to a grant program, the following agency. C. Disposal of scrap or surplus materials methods may be used: I. Cost allocation plan. 1. General. A plan acquired in the performance of the grant a. Predetermined fixed rates for indirect for allocation of costs will be required to sup- agreement. costs. A predetermined fixed rate for com- port the distribution of any joint costs re- d. Other purposes specifically provided for puting indirect costs applicable to a grant lated to the grant program. All costs included in the grant agreement. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 3. Advisory councils. Costs incurred by and equipment through use allowances or employees' counseling services, employee in- grantee advisory councils or committees es- depreciation. Use allowances are the means formation publications, and any related ex- tablished pursuant to Bureau requirements of providing compensation in lieu of depreci- penses incurred, are allowable. Income gen- to carry out grant programs are allowable. ation or other equivalent costs. However, a erated from any of these activities will be The cost of like organizations is allowable combination of the two methods may not be offset against expenses. when provided for in the grant agreement. used in connection with a single class of 15. Exhibits. Costs of exhibits relating 4. Audit service. The cost of audits nec- fixed assets. specifically to the grant programs are allow- essary for the administration and manage- b. The computation of depreciation or use able. ment of functions related to grant programs allowance will be based on acquisition cost. 16. Legal expenses. The cost of legal ex- is allowable. Where actual cost records have not been penses required in the administration of 5. Bonding. Costs of premiums on bonds maintained, a reasonable estimate of the or- grant programs is allowable. Legal services covering employees who handle grantee iginal acquisition cost may be used in the furnished by the chief legal officer of a tribal funds are allowable. computation. The computation will exclude government or his staff solely for the purpose 6. Budgeting. Costs incurred for the de- the cost or any portion of the cost of build- of discharging his general responsibilities as velopment, preparation, presentation, and ings and equipment donated or borne di- legal officer are unallowable. Legal expenses execution of budgets are allowable. Costs for rectly or indirectly by the Bureau through for the prosecution of claims against the services of a central budget office are gen- charges to Bureau grant programs or other- Federal Government are unallowable. erally not allowable since these are costs of wise, irrespective of whether title was origi- 17. Maintenance and repair. Costs incurred general government. However, where em- nally vested or where it presently resides. In for necessary maintenance, repair, or upkeep ployees of the central budget office activity addition, the computation will also exclude of property which neither add to the per- participate in the grantee budget process, the cost of land. Depreciation or a use allow- manent value of the property nor appreciably the cost of identifiable services is allowable. ance on idle or excess facilities is not allow- prolong its intended life, but keep it in an 7. Building lease management. The ad- able, except when specifically authorized by efficient operating condition, are allowable. ministrative cost for lease management the Bureau. 18. Materials and supplies. The cost of which includes review of lease proposals, c. Where the depreciation method is fol- materials and supplies necessary to carry out maintenance of a list of available property lowed, adequate property records must be the grant programs is allowable. Purchases for lease, and related activities is allowable. maintained, and any generally accepted made specifically for the grant program 8. Central stores. The cost of maintaining method of computing depreciation must be should be charged thereto at their actual and operating a central e's-organization consistently applied for any specific asset or prices after deducting all cash discounts, for supplies, equipment, and materials used class of assets for all affected Federally spon- trade discounts, rebates, and allowances re- either directly or indirectly for grant pro- sored programs and must result in equitable ceived by the grantee. Withdrawals from gen- grams is allowable. charges considering the extent of the use of eral stores or stockrooms should be charged 9. Communications. Communication costs the assets for benefit of such programs. at cost under any recognized method of pric- incurred for telephone calls or service, tele- d. In lieu of depreciation, a use allowance ing consistently applied. Incoming transpor- graph, teletype service, wide area telephone for buildings and improvements may be tation charges are a proper part of material service (WATS), centrex, telpak (tie lines), computed at an annual rate not exceeding cost. postage, messenger service and similar ex- two percent of acquisition cost. The use al- 19. Memberships, subscriptions and profes- penses are allowable. lowance for equipment (excluding items sional activities. 2. Memberships. The cost 10. Compensation for personal services. a. properly capitalized as building cost) will be of membership in civic, business, technical General Compensation for personal services computed at an annual rate not exceeding and professional organizations is allowable includes all remuneration, paid currently or six and two-thirds percent of acquisition provided: (1) the benefit from the member- accrued, for services rendered during the cost of usable equipment. period of performance under the grant agree- ship is related to the grant program, (2) the e. No depreciation or use charge may be ment, including but not necessarily limited expenditure is for agency membership, (3) allowed on any assets that would be con- to wages, salaries, and supplementary com- the cost of the membership is reasonably sidered as fully depreciated, provided, how- pensation and benefits. The costs of such related to the value of the services or bene- ever, that reasonable use charges may be ne- compensation are allowable to the extent fits received, and (4) the expenditure is not gotiated for any such assets if warranted af- that total compensation for individual em- for membership in an organization which de- ter taking into consideration the cost of the ployees: (1) is responsible for the services votes a substantial part of its activities to facility or item involved, the estimated use- rendered, (2) follows an appointment made influencing legislation. ful life remaining at time of negotiation, the in accordance with tribal government ordi- b. Reference material. The cost of books, effect of any increased maintenance charges nances and rules and which meets Federal and subscriptions to civic, business, profes- or decreased efficiency due to age, and any merit system or other requirements, where sional, and technical periodicals is allowable other factors pertinent to utilization of the applicable; and (3) is determined and sup- when related to the grant program. facility or item for the purpose contemplated. ported as provided in b., below. Compensa- 12. Disbursing service. The cost of disburs- c. Meetings and conferences. Costs are al- tion for employees engaged in federally as- ing grant program funds by the Treasurer or lowable when the purpose of the meeting is sisted activities will be considered reasonable to the extent that it is consistent with that other designated officer is allowable. Disburs- the dissemination of technical information ing services cover the processing of checks or relating to the grant program and they are paid for similar work in other activities of warrants, from preparation to redemption, consistent with regular practices followed the tribal government. In cases where the kinds of employees required for the feder- including the necessary records of accounta- for other activities of the grantee. ally assisted activities are not found in the bility and reconciliation of such records with 20. Motor pools. The costs of a service or- related cash accounts. ganization which provides automobiles to other activities of the tribal government, 13. Employee fringe benefits. Costs iden- grantees at a mileage or fixed rate and/or compensation will be considered reasonable to the extent that it is comparable to that tifled under a. and b. below are allowable to provides vehicle maintenance, inspection and the extent that total compensation for em- repair services are allowable. paid for similar work in the labor market in which the employing government competes ployees is reasonable as defined in Section 21. Payroll preparation. The cost of pre- for the kind of employees involved. Compen- B.10. paring payrolls and maintaining necessary sation surveys providing data representative a. Employee benefits in the form of regular related wage records is allowable. of the labor market involved will be an ac- compensation paid to employees during pe- 22. Personnel administration. Costs for the ceptable basis for evaluating reasonableness. riods of authorized absences from the job, recruitment, examination, certification, clas- b. Payroll and distribution of time. such as for annual leave, sick leave, court sification, training, establishment of pay Amounts charged to grant programs for per- leave, military leave, and the like, if they standards, and related activities for grant sonal services, regardless of whether treated are: (1) provided pursuant to an approved programs, are allowable. as direct or indirect costs, will be based on leave system, and (2) the cost thereof is 23. Printing and reproduction. Cost for payrolls documented and approved in ac- equitably allocated to all related activities, printing and reproduction services necessary cordance with generally accepted practice of including grant programs. for grant administration, including but not the tribal government. Payrolls must be sup- b. Employee benefits in the form of em- limited to forms, reports, manuals, and in- ported by time and attendance or equivalent ployers' contribution or expenses for social formational literature, are allowable. Pub- records for individual employees. Salaries security, employees' life and health insur- lication costs of reports or other media re- and wages of employees chargeable to more ance plans, unemployment insurance COV- lating to grant program accomplishments or than one grant program or other cost objec- erage, workmen's compensation insurance, results are allowable when provided for in tive will be supported by appropriate time pension plans, severance pay, and the like, the grant agreement. distribution records. The method used should provided such benefits are granted under ap- produce an equitable distribution of time proved plans and are distributed equitably 24. Procurement service. The cost of pro- and effort. curement service, including solicitation of to grant programs and in other activities. 11. Depreciation and use allowance. a. bids, preparation and award of contracts, 14. Employee morale, health and welfare Grantees may be compensated for the use of and all phases of contract administration in costs. The costs of health or first-aid clinics their own buildings, capital improvements, providing goods, facilities and services for and/or infirmaries, recreational facilities, grant programs, is allowable. FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51326 RULES AND REGULATIONS 25. Tares. In general, taxes or payments in no longer available for use in a Federally 4. Entertainments. Costs of amusements, lieu of taxes which the grantee is legally re- sponsored program or (c) used for purposes social activities, and incidental costs relat- quired to pay are allowable. not authorized by the Bureau, the Bureau's ing thereto, such as meals, beverages, lodg- 26. Training and education. The cost of equity in the asset will be refunded in the ings, rentals, transportation, and gratuities, in-service training, customarily provided for same proportion as Bureau participation in are unallowable. employee development which directly or in- its cost. In case any assets are traded on new 5. Fines and penalties. Costs resulting directly benefits grant programs is allowable. items, only the net cost of the newly from violations of, or failure to comply with Out-of-service training involving extended acquired assets is allowable. Federal, State and local laws and regulations periods of time is allowable only when spe- 4. Insurance and indemnification. a. Costs are unallowable. cifically authorized by the Bureau. of insurance required. or approved and main- 6. Tribal officer salaries and expenses. The 27. Transportation. Costs incurred for tained pursuant to the grant agreement, is salaries and expenses of tribal government freight. cartage, express, postage and other allowable. officers are considered a cost of general tribal transportation costs relating either to goods b. Costs of other insurance in connection government and are unallowable except as purchased. delivered, or moved from one with the general conduct of activities is al- prescribed in Section C.9. location to another are allowable. lowable subject to the following limitations: 7. Interest and other financial costs. Inter- 28. Travel. Travel costs are allowable for (1) Types and extent and cost of coverage est on borrowing (however requested), expenses for transportation, lodging. sub- will be in accordance with sound business bond discounts, cost of financing and refi- sistence, and related items incurred by em- practice. nancing operations, and legal and profes- ployees who are in travel status on official (2) Costs of insurance or of contributions sional fees paid in connection therewith, are business incident to a grant program. Such to any reserve covering the risk of loss of, or unallowable except when authorized by Fed- costs may be charged on an actual basis, on a damage to, Federal Government property is eral legislation. per diem or mileage basis in lieu of actual unallowable except to the extent that the 8. Underrecovery of costs under grant costs incurred, or on a combination of the Bureau has specifically required or approved agreements. Any excess of cost over the Fed- two, provided the method used is applied to such costs. eral contribution under one grant agreement an entire trip, and results in charges con- c. Contributions to a reserve for a self- is unallowable under other grant agreements. sistent with those normally allowed in like insurance program approved by the Bureau circumstances in non-Federally sponsored are allowable to the extent that. the type of APPENDIX B-FINANCIAL REPORTING activities. The difference in cost between coverage, extent of coverage, and the rates REQUIREMENTS first-class air accommodations and less- and premiums would have been allowed had A. Purpose and scope. This appendix pre- than-first-class. air accommodations is un- insurance-been purchased to cover the risks. scribes requirements for grantees to report allowable except when less-than-first-class d. Actual losses which could have been financial information to-the Bureau and to air accommodations are not reasonably covered by permissible insurance (through request advances and reimbursement when available. an approved self-insurance program or other- a letter-of-credit method is not used. C. Costs. allowable with approval of the wise) are unallowable unless expressly pro- B. Definitions. 1. Accrued expenditures. Ac- Bureau. 1. Automatic data processing. The vided for in the grant agreement. However, crued expenditures are the charges incurred cost of data processing services to grant costs incurred because of losses not covered programs is allowable. This cost may include under nominal deductible insurance cover- by the grantee during a given period requir- age provided in keeping with sound man- ing the provision of funds for: (1) goods rental of equipment or. depreciation on and other tangible property received; (2) grantee-owned equipment. The acquisition agement practice, and minor losses not cov- of equipment, whether by outright purchase, ered by insurance, such as spoilage, break- services performed by employees, contractors, rental-purchase agreement OF other method age and disappearance of small hand tools subgrantees, and other payees; and (3) which occur in the ordinary course of opera- amounts becoming owed under programs for of purchase, is allowable only upon specific tions, are allowable. which no current services or performance are prior approval of the Bureau as provided e.. Indemnification includes securing the required. under the selected item for capital 2. Accrued income. Accrued income is the expeditures. grantee against liabilities to third. persons 2. Building space and related facilities and other losses not compensated by insur- earnings during a, given period which is a The cost of space in privately or publicly ance or otherwise. The Bureau is obligated source of funds resulting from: (1) services owned buildings used for the benefit of the to indemnify the grantee only to the extent performed by the grantee; (2) goods and grant program is allowable subject to the expressly provided for in the grant agree- other tangible property delivered to pur- conditions stated below. The total cost. of ment, except as provided in d. above. chasers; and (3) amounts becoming owed to space, whether in a privately or publicly 5. Management studies. The cost of man- the grantee for which no current services or owned building. may not exceed the rental agement studies to improve the effectiveness performance are required by the grantee. cost of comparable space and facilities. in a and efficiency of grant management for on- 3. Disbursements. Disbursements are pay- privately owned building in the same going programs is allowable except that the ments in cash or by check. locality. The cost of space procured for cost of studies performed by agencies other 4. Bureau funds authorized. Funds author- grant program usage may not be charged to than the grantee or outside consultants is ized represent the total amount of the Bu- the program for periods of nonoccupancy, allowable only when. authorized by the Bu- reau funds authorized for obligations and without authorization of the Bureau. reau. establish the cellings for obligation of a. Rental cost. The rental cost of space in 6. Preagreement costs. Costs incurred prior Bureau funds. This amount may include any a privately owned building is allowable. to the effective date of the grant, whether or authorized carryover of unobligated funds not they would have been allowable there- from prior fiscal years. b. Maintenance and operation. The cost of utilities, insurance, security, janitorial serv- under if incurred after such date, are allow- 5. Obligations. Obligations are the ices, elevator service, upkeep of grounds, able when specifically provided for in the amounts of orders placed, contracts and normal repairs and alterations and the like, grant agreement. grants awarded, services received, and similar are allowable to the extent they are not 7. Professional services. Cost of professional transactions during a given period, which will otherwise included in rental or other charges services rendered by individuals or organiza- require payment during the same or a future for space. tions not a part of the grantee is allowable period. subject to such prior authorization as may 6. Outlays. Outlays represent charges made c. Rearrangements and alterations. Cost be required by the Bureau. to the grant project or program. Outlays can incurred for rearrangement and alteration 8. Proposal costs. Costs of preparing propo- be reported on a cash or accrued expendi- of facilities required specifically for the grant sals on potential Federal Government grant ture basis. program or those that materially increase the agreements are allowable when specifically 7. Program income. Program income rep- value or useful life of the facilities (Section provided for in the grant agreement. resents earnings by the grantee realized from- C.3.) are allowable when specifically ap- 9. Tribal government officer salaries and ex- the grant-supported activities. Such earnings proved by the Bureau penses. Identifiable salary and expense costs exclude interest income and may include, d. Depreciation and use allowances on incurred as a direct result of a tribal gov- but will not be limited to, income from serv- publicly owned buildings. These costs are ernment officer's service to a grant program ice fees, sale of commodities, usage or rental allowable as provided in Section B.11. provided under this chapter are allowable fees, sale of assets purchased with grant e. Occupancy of space under rental-pur- subject to advance agreement with and ap- funds, and royalties on patents and copy- chase or a lease with option-to-purchase proval by the Bureau. A general limitation rights. Program income can be reported on a agreement. The cost of space procured under in this regard is prescribed in section D.6. cash OF accrued income basis. such arrangements is allowable when spe- D. Unallowable costs. 1. Bad debts. Any 8. Unobligated balance. The unobligated cifically approved by the Bureau. losses arising from uncollectible accounts balance is the portion of the funds author- 3. Capital expenditures. The cost of facili- and other claims, and related costs, are un- ized by the Bureau which has not been obli- ties, equipment, other capital assets, and allowable. gated by the grantee and is determined by repairs which materially increase the value 2. Contingencies. Contributions to a con- deducting the cumulative obligations from or useful life of capital assets is allowable tingency reserve or any similar provision for the funds authorized. when such procurement is specifically ap- unforeseen events are unallowable. 9. Unpaid obligations. Unpaid obligations proved by the Bureau. When assets acquired 3. Contributions and donations. Unallow- represent the amount of obligations incurred with Bureau grant funds are (a) sold, (b) able. by the grantee which have not been paid. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51327 C. Standard forms. 1. Only the follow- construction grant programs when letters Sec. ing forms will be authorized for obtaining fi- of credit or predetermined automatic ad- 277.33 Reporting. nancial information from grantees for grant vance methods are not used. The Bureau, 277.34 Repayment of funds. programs: however, has the option of using this form 277.35 Penalties. a. Financial Status Report. (1) The Bu- for construction programs in lieu of an "Out- 277.36 Applicable procurement regulations. reau shall require grantees to use a standard lay Report and Request for Reimbursement Financial Status Report to report the status for Construction Programs" (paragraph 2b) Subpart D-Contract Revision or Cancellation of funds for all nonconstruction grant pro- and shall specify in the grant agreement. 277.41 Contract revision or amendment. grams. The Bureau may, however, have the (2) Grantees shall be authorized to sub- 277.42 Cancelling a contract for cause. bursement (paragraph 2a) is determined to mit requests for advances or reimbursement provide adequate information to meet their Subpart E-Appeals at least monthly when letters of credit are needs, except that a final Financial Status not used. Grantees shall submit the original 277.51 Contract appeal. Report shall be required at the completion of and two copies of a Request for Advance or 277.52 Appeal from decision to cancel con- the grant when the Request for Advance or Reimbursement. tract for cause. Reimbursement form is used only for ad- b. Outlay Report and Request for Reim- 277.53 Other appeals. vances. bursement for Construction Program. (1) (2) The Bureau shall prescribe whether AUTHORITY: Sec. 204, Pub. L. 93-638, 88 The "Outlay Report and Request for Reim- Stat. 2203, unless otherwise noted. the report shall be on a cash or accrual basis. bursement for Construction Programs" form If the Bureau requires accrual information is the standard format to be used for re- Subpart A-General Provisions and the grantee's accounting records are questing reimbursement for construction not normally kept on the accrual basis, the programs. The Bureau may, however, have § 277.1 Purpose. grantee should develop such information the option of substituting a "Request for The purpose of the regulations in this through an analysis of the documentation on Advance or Reimbursement" form (para- hand or on the basis of best estimates. Part is to give the application and ap- graph 2a) in lieu of this form when the (3) The grant agreement shall determine Bureau determines that the former provides proval process for a State or local edu- the frequency of the Financial Status Re- adequate information to meet its needs as cation agency to obtain school construc- port for each grant program considering the stated in the grant agreement. tion contracts from the Bureau under size and complexity of the particular pro- (2) Grantees shall be authorized to submit Section 204 of Title II of the Indian gram. However, the report shall not be re- requests for reimbursement at least monthly Self-Determination and Education As- quired more frequently than quarterly or when letters of credit are not used. Grantees sistance Act (Pub. L 93-638, 88 Stat. less frequently than annually. Also, a final shall submit the original and two copies of 2203), to assist in the education of report shall be required at the completion of an "Outlay Report and Request for Reim- Indians. the grant. bursement for Construction Programs" form. (4) The original and two copies of the F1- 3. When the Bureau needs additional in- § 277.2 Scope. nancial Status Report shall be submitted 30 formation in using these forms, the follow- days after the end of each specified reporting ing shall be observed: (a) The application process for public period. In addition. final reports shall be sub- a. When necessary to comply with future school construction contracts under Sec- mitted 90 days after the end of the grant legislative requirements, the Bureau shall tion 204 of Pub. L 93-638 is given in period or the completion of the project or issue instructions to require grantees to 20 U.S.C. 631-645 and 45 CFR 114. The program. Extensions to reporting due dates submit such information under the Re- application process is administered by may be approved when requested' by the marks section of the reports. and is the responsibility of the Commis- grantee. b. When necessary to meet specific pro- b. Report of federal cash transactions. (1) gram needs, the Bureau shall submit the pro- sioner of Education. The Commissioner When funds are advanced to grantees posed reporting requirements to the General of Indian Affairs participates with the through letters of credit or with Treasury Services Administration for approval under Commissioner of Education in prepara- checks, each grantee shall submit a report of the exception provision of this Appendix. tion of programs, cost estimates and Federal Cash Transactions. The Bureau shall c. The Bureau, in obtaining information other supplemental data which are part use this report to monitor cash advanced to as in paragraphs a and b above, must also of the application and national priority grantees and to obtain disbursement or out- comply with report clearance requirements index. The Commissioner of Education lay information for each grant or project of the Office of Management and Budget Cir- from the grantees. furnishes the national priority index to cular No. A-40, as revised. (2) The grant agreement may require fore- the Bureau at the start of each fiscal casts of Federal cash requirements in the Re- year marks section of the report. PART 277-SCHOOL CONSTRUCTION (b) The Bureau requests and receives (3) When practical and deemed necessary, CONTRACTS FOR PUBLIC SCHOOLS funding for acquisition of sites and for the Bureau may require grantees to report Subpart A-General Provisions architectural-engineering design, facil- in the Remarks section the amount of cash in Sec. excess of three days' requirements in the ities construction and equipment for the 277.1 Purpose. hands of subgrantees or other secondary program. Funds are allocated to proj- 277.2 Scope. recipients and to provide short narrative ex- ects by the Bureau on the basis of fund- 277.3 Definitions. planations of actions taken by the grantees 277.4 Revision or amendment of regula- ing priorities as established by the Com- to reduce the excess balances. tions. missioner of Education. In accordance (4) The Bureau shall accept the identical with the approved program, a contract information from the grantees in a machine- Subpart B-Application Process is negotiated with the applicant by a usable format in lieu of the Report of Fed- 277.11 Eligible applicants. Bureau contracting officer, designated eral Cash Transactions. 277.12 Consultation with Indians. by the Commissioner, for the acquisition (5) Grantees shall submit the original and 277.13 Application procedure for placement of sites and for the design, construction two copies of the Report of Federal Cash on priority list. Transactions no later than 15 working days 277.14 Submitting priority list to Bureau. and purchase of equipment to provide following the end of each quarter. For those 277.15 Preparing a commitment-to-fund educational facilities meeting standards grantees receiving annual grants totalling list. of construction given in Pub. L. 81-815. one million dollars or more, the Bureau shall 277.16 Negotiating a contract. require a monthly report. 277.17 Funding provisions. § 277.3 Definitions. (6) The Bureau shall waive the require- Subpart C-General Contract Requirements As used in this Part: ment for submission of a Report of Fed- 277.21 eral Cash Transactions when monthly ad- Costs included in contracts. (a) "Bureau" mean the Bureau of 277.22 vances do not exceed $10,000 per grantee Architectural design. Indian Affairs. 277.23 Facilities construction. (b) "Commissioner of Education" provided that such advances are monitored 277.24 Selecting initial equipment. means the United States Commissioner through other forms contained in this Ap- 277.25 pendix or the grantee's accounting controls Advance payments. of Education, Department of Health, 277.26 are adequate to minimize excessive Federal Use and transfer of Government Education, and Welfare. advances. property. 277.27 Wage and labor standards. (c) "Commissioner of Indian Affairs" 2. Except as noted below, only the follow- 277.28 Indian preference. means the Commissioner of Indian Af- ing forms will be authorized for the grantees 277.29 Liability and motor vehicle insur- in requesting advances and reimbursements. fairs, Department of the Interior. ance. a. Request for advance or reimbursement. 277.30 Recordkeeping. (d) "Contractor" means an applicant (1) The "Request for Advance or Reimburse- 277.31 Audit and inspection. who has been awarded a contract under ment" form is the standard form for all non- 277.32 Freedom of information. this Part. FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51328 RULES AND REGULATIONS (e) "Days" means calendar days. vision or amendment, and consider their each State education agency. All ques- (f) "Economic enterprise" means any views in preparing the revision or tions pertaining to the preparation and ommercial, industrial, agricultural, or amendment. filing of preapplications, applications, business activity that is at least 51 per- (e) Nothing in this section shall pre- and request for materials should be di- cent Indian owned, established or orga- clude Indian tribes or national or region- lized for the purpose of profit. rected to the State Representative for al Indian organizations from initiating (g) "Indian tribe" means any Indian School Assistance, who will respond or request for revisions or amendments sub- Cribe, Band, Nation, Rancheria, Pueblo, may forward the inquiries, where appro- ject to paragraphs (a), (b) and (c) of 'olony, or Community, including any priate, to the Commissioner of Education. this section. Vlaska Native village or regional or vil- (b) Section 204(b) of Pub. L. 93-638 age corporation as defined in or estab- Subpart B-Application Process assigns responsibility for the application shed pursuant to the Alaska Native processing, determination of eligibility Taims Settlement Act (85 Stat. 688) § 277.11 Eligible applicants. and establishment of project priority to hich is federally recognized as eligible (a) Any school district may apply for the Commissioner of Education. Such ap- the United States Government a contract with the Bureau to assist the plication and review and determination hrough the Secretary for the special agency or district in acquiring sites for, processes includes the following: wograms and services provided by the or in constructing, acquiring, or reno- (1) Field and site review by the Com- Secretary to Indians because of their vating, facilities (including all necessary missioner of Education assisted by the tatus as Indians. equipment) in school districts on or Commissioner of Indian Affairs to (h) "Indian" means a person who is a adjacent to or in close proximity to any determine: member of an Indian tribe. Indian reservation or other lands held in (1) Tentative cost estimate for budget (i) "PL 81-815" means the Act of trust by the United States for Indians. purposes. The Commissioner of Indian September 23, 1950 (P.A. 81-815, 72 Stat (b) The project for which the appli- Affairs or his representative will assist 548), as amended. : cant is requesting funding must meet the Commissioner of Education in con- (j) "P.L. 93-638" means the Indian the eligibility requirements under sub- ducting the on-site inspection to deter- Self-Determination and Education As- sections (a) and (b) of section 14 of mine which buildings need to be retained, sistance Act (PL 93-638,188 Stat. 2203) Pub. L 81-815. demolished or remodeled and to gather (k) "School district" or "local educa- initial information required for develop- tion agency" means that subdivision of § 277.12 Consultation with Indians. ment of the planning document. From the State which contains the public ele- (a) Except where there is a majority this information, a tentative cost esti- mentary and secondary educational in- of Indians on an elected public school mate for design, construction, and stitutions providing educational services board, the Commissioner of Indian Af- equipment will be made for budget pur- and is controlled by a duly elected board, fairs shall consult with the local Indian poses. commission or similarly constituted as- Education Committee and the tribal gov- (ii) Equal quality and standard of edu- sembly. erning body(s) of the local Indian cation. While assisting in the on-site in- (1) "Secretary" means the Secretary tribe(s) affected before the application spection, the Commissioner of Indian Af- of the Interior. for funding public school construction is fairs or his representative must deter- (m) "State" means a State of the submitted to the Commissioner of mine whether the quality and standard United States of America or any political Education. of education (including facilities and ubdivision of a State. (b) This requirement will be deemed auxiliary services) for Indian students (n) "State education agency" means to be met unless the official tribal gov- enrolled in the school are at least equal the State Board of Education or other erning body(s) of the Indian tribe(s) to that provided all other students from gency or office primarily responsible for to be benefited by the application notify resources, other than resources provided upervision by the State of public ele- the Commissioner of Education, in writ- under this Part, which are available to mentary and secondary schools or, if ing. within 60 days after the date of the the local school district. If it is deter- here is no such office or agency, an office consultation that the tribe(s) disapprove mined that the quality and standard of agency designated by the Governor or the application. The notice of disap- education for Indian students is not at by State law. proval must give specific stated objec- least equal to that given all other stu- (o) "Tribal government", "tribal gov- tions to the application. A copy of the dents enrolled in the schools, the Com- erning body" and "tribal council" means notice of disapproval shall be delivered missioner of Indian Affairs or his repre- the recognized governing body of an or mailed to the Commissioner of Indian sentative shall recommend that the proj- Indian tribe. Affairs at the same time as the notice ect not be placed on the priority list. is delivered or mailed to the Commis- Such a project will not be placed on the 277.4 Revision or amendment of reg- sioner of Education. Bureau's commitment-to-fund list which ulations. (c) After being notified that the is prepared under $ 277.15. In order to make any substantive re- tribe(s) disapproved a proposed appli- (2) Discussion and consultation with isions or amendments to regulations in cation, the Commissioner of Indian Af- State and local education agencies to de- his Part, the Secretary shall take the fairs or his designated representatives shall meet with tribal, public school termine the exact nature of the project ollowing actions: to be constructed, including existing (a) Consult with Indian tribes and officials and the Indian Education Com- structure renovation or replacement. national and regional Indian organiza- mittee to provide assistance in resolving ions to the extent practicable about the the stated objectives to the application. (3) Presentation of program develop- need for revision or amendment and con- The Commissioner of Indian Affairs shall ment for review and approval by the notify the Commissioner of Education 15 State and/or local education representa- ider their views in preparing the pro- bosed revision or amendment. days in advance of the date, place, and tives and a current and updated project (b) Publish any proposed revisions or time of such meetings and shall invite the cost estimate. mendments in the FEDERAL REGISTER as Commissioner of Education or his rep- (c) The Commissioner of Indian Af- roposed rulemaking to provide adequate resentatives to attend. fairs participates in the application proc- ess by furnishing technical assistance to otice to, and receive comments from, all § 277.13 Application procedure for iterested parties. the Commissioner of Education. The placement on priority list. Commissioner of Indian Affairs insures (c) After consideration of all com- (a) Applications for public school con- consultation with Indians and assists nents received, publish the regulations struction assistance under this Part will with the preparation of the program, the FEDERAL REGISTER in final form not be submitted and processed in accord- cost estimates, etc. as part of the data CSS than 30 days before the date they ance with procedures outlined in 20 needed in order for the Commissioner of are made effective. U.S.C. 631-645 and 45 CFR 114. Applica- Education to prepare the priority listing (d) Annually consult with Indian tion forms, instructions, advice, and as- of eligible applicants. ribes and national and regional Indian sistance in accordance with 20 U.S.C. 636 (d) The projects will be ranked by organizations about the need for re- and 45 CFR 114 may be obtained from priority based on criteria established by FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51329 the Commissioner of Education as given (d) Funds approved for public school tract. The Commissioner of Indian Af- in 45 CFR 114.16. construction under this Part may not fairs will assist in preconstruction and exceed the Federal share of the total cost construction activities to assure con- § 277.14 Submitting priority list to of the proposed school facilities, as such formity with the requirements of Pub. L. Bureau. facilities are defined within the meaning 93-638. Approval of all proposed pre- Pursuant to Section 204(b) of Pub. L. of Pub. L 81-815, to serve both Indian construction documents will be obtained 93-638, a list of public school projects and non-Indian children, with the def- from the Commissioner of Indian Affairs. eligible for funding under this Part shall inition of children to be as prescribed Assistance prior to the preparation of be submitted to the Commissioner of In- by Pub. L. 81-815. these and similar documents will be pro- dian Affairs by the Commissioner of Edu- (e) When non-Federal funds are in- vided upon request. In this connection, cation at the beginning of each fiscal volved, a local school district shall have the Commissioner of Indian Affairs may year. 120 days from receipt of the notice suggest a preliminary conference with that the project has been placed on the the project architect and others if that § 277.15 Preparing a commitment-to- commitment-to-fund list to assemble the seems desirable. The Bureau shall make fund list. funds from local and/or State sources interim inspections and audits during (a) When the Commissioner of Indian before the contract negotiations are com- construction and participate in the final Affairs receives the priority list from the pleted. An extension may be granted by acceptance inspection. Commissioner of Education, the Commis- the Commissioner of Indian Affairs for sioner of Indian Affairs will place the unusual circumstances. § 277.24 Selecting initial equpment. project highest on the priority list at Equipment procured with payments the top of a commitment-to-fund list. Subpart C-General Contract under this part must be approved by the Projects will be added to the commit- Requirements Commissioner before invitations for bids ment-to-fund list in the same order as § 277.21 Costs included in contracts. or requests for proposals as to the they are on the priority list. Each proj- A contract with a school district un- acquisition of such equipment are issued. ect will be added to the commitment-to- fund list as long as the total of the der this Part may include costs for archi- In order to obtain such approval, a list tentative cost estimates is less than the tectural design, site acquisition, facili- of equipment to be procured (indicating ties construction (including site de- quantities, costs, and specifications) amount of funds appropriated for public shall be provided to the Commissioner for school construction under this Part for velopment and supervision), and equip- prior approval. the new fiscal year. However, a project ment in accordance with the approved shall not be placed on the commitment- project description. § 277.25 Advance payments. to-fund list if the Commissioner of In- § 277.22 Architectural design. Advance payments to State education dian Affairs or his representative has agencies or school districts will be made determined under § 277.13 (b) (1) (iii) (a) Drawings and specifications for a project shall comply with such Federal, in accordance with the applicable pro- that the quality and standard of educa- State, and local laws, codes, ordinances visions of 41 CFR 1 as supplemented by tion-for Indian students enrolled in the schools are not at least equal to that and regulations pertaining to standards 41 CFR 14 and 41 CFR 14H, except 41 CFR Part 14H-70. provided all other students from re- of construction and safety requirements, sources, other than resources provided as may be applicable. § 277.26 Use and transfer of Govern- under this Part, which are available to [16 Comp. Gen 948 (1937) ment property. the local school district. (b) Local education agencies shall (a) The use of Government-owned fa- (b) Each applicant will be notified in give due consideration to excellence of cilities for public school purposes may writing when the project has been placed architecture and design when construct- be authorized when not needed for Gov- on the commitment-to-fund list. ing minimum school facilities under this ernment activities. Transfer of title to Part. such facilities (except land) may be ar- § 277.16 Negotiating a contract. (c) An Architect/Engineer shall be se- ranged under the provisions of the Act When a project has been placed on the lected by the contractor to prepare the of June 4, 1953 (67 Stat. 41), subject to commitment-to-fund list, a contract will plans and specifications with the advice the approval of the tribal government if be negotiated by a Bureau contracting of- and assistance of the Commissioner of property is located on a reservation. ficer with the applicant. The contract Indian Affairs who shall counsel the con- (b) In carrying out a contract made will be developed in accordance with the tractor with respect to professional quali- under this Part, the Commissioner of regulations in 41 CFR 1 as supplemented fications and performance history of Indian Affairs may, with the approval of by 41 CFR 14 and 41 CFR 14H, except 41 firms in order that the best qualified the tribal government, permit a contrac- CFR Part 14H-70. firm be selected. No Architect/Engineer tor to use existing buildings, facilities, agreement involving the expenditures of and related equipment and other person- § 277.17 Funding provisions. Federal funds shall be entered into by al property owned by the Bureau under (a) The Commissioner of Indian Af- the contractor until the Commissioner of terms and conditions agreed upon for fairs will expend not less than 75 per Indian Affairs has reviewed such agree- their use and maintenance. The property cent of appropriated funds authorized ment. at the time of transfer must conform to pursuant to Title II, Part B, Section 204 (d) The drawings and specifications the minimum standards established by of Pub. L. 93-638 on those projects which will conform to the project description the Occupational Safety and Health Act meet the eligibility requirements under as shown in the completed application, of 1970 (84 Stat. 1590>, as amended (29 subsections (a) and (b) of section 14 of or as modified by approved revisions. U.S.C. 651). Pub. L. 81-815. (e) The drawings and specifications (c) Use of Government property is sub- (b) Projects which are partially funded will be sent to the Commissioner of Edu- ject to the following conditions: shall be given first consideration for the cation for review to ensure that the ap- (1) When nonexpendable Government additional funding necessary to complete proved program is followed. The draw- property is turned over to public school such projects. ings and specifications will be reviewed authorities under a use permit, the per- (c) No funds from any contract under with the local education agency. mittee shall insure such property against this Part shall be made available by any damage by flood, fire, rain. windstorm, After approval by the State and other vandalism, snow, and tornado in amounts Federal agency directly to other than regulatory agencies, the final drawings and with companies satisfactory to the public agencies. However, school districts and specifications will be reviewed and Bureau officer in charge of the property and State education agencies assisted by approved by the Bureau for structural In case of damage or destruction of the this Part may use funds provided under and safety adequacy. property by flood, fire, rain, windstorm, this Part to contract for necessary serv- § 277.23 Facilities construction. vandalism, snow or tornado, the insur- ices with any appropriate individual, or- The contractor usually bids, awards ance money collected shall be expended ganization, or corporation. and administers the construction con- only for repair or replacement of prop- FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 51330 RULES AND REGULATIONS erty. Otherwise, insurance proceeds shall must contain a provision requiring the Indian people which the contract affects. be paid to the Bureau. State or school district to provide liabil- Reports and information may be with- (2) If the public school authority is ity insurance, regardless of how small held from disclosure only when both self-insured and can present evidence of the risk. of the following conditions exist: hat fact to the Commissioner of Indian (c) If the State or public school-au- (1) The reports and information fall Affairs, insurance for lost or damaged thority is self-insured and can present within one of the following exempt cate- property will not be required. However, evidence of that fact to the Commissioner gories: the public school authority will be re- of Indian Affairs, liability and motor (i) Specifically required by statute or consible for replacement of such lost or vehicle insurance will not be required. Executive Order to be kept secret. damaged property at no cost to the Gov- § 277.30 Recordkeeping. (ii) Commercial or financial informa- ernment or for paying the Government tion obtained from a person or firm on enough to replace the property. A contractor will be required to de- a privileged or confidential basis. (3) The permittee shall maintain the velop and maintain a recordkeeping sys- (iii) Personnel, medical, and similar property in a reasonable state of repair tem which will: files where disclosure would be a clearly consistent with the intended use and (a) Fully reflect all financial trans- unwarranted invasion of personal pri- educational purposes. actions involving the receipt and ex- vacy. penditure of funds provided under the (iv) Geological and geophysical infor- $ 277.27 Wage and labor standards. contract in a manner which will provide mation and data concerning wells. All laborers and mechanics employed accurate, current and complete disclosure (2) Disclosure is prohibited by statute by contractors or subcontractors in con- of financial status; correlation with or Executive Order or sound grounds structing, altering, or repairing buildings budget or allowable cost schedules; and exist for using the exemption given in or other facilities in connection with clear audit facilitating data. paragraph (b) (1) of this section. contracts under this Part shall be paid (b) Reflect the amounts and sources of funds other than Bureau contract (c) A request to inspect or copy re- wages not less than those on similar construction in the locality as deter- funds which may be included in the con- ports and information shall be in writ- mined by the Secretary of Labor in ac- struction-project. ing and must reasonably describe the cordance with the Davis-Bacon Act of (c) Provide for the creation, mainte- reports and information requested. The nance and safeguarding of records of request may be delivered or mailed to the March 3, 1931 (46 Stat. 1494), as lasting value. contractor. Within ten (10) working days amended. after receiving the request, the contrac- § 277.28 Indian preference. § 277.31 Audit and inspection. tor shall determine whether to grant or deny the request. The requester shall be (a) Any contract made by the Bureau (a) During the term of a contract with a State or school district shall pro- under this Part and for three years after notified immediately of the determina- tion. vide that the contractor shall, to the the project or undertaking is completed, greatest extent feasible, give preference the Comptroller General and the Sec- (d) The time limit for making a de- in employment and training to Indians. retary, or any of their duly authorized termination may be extended up to an (b) Any contract made by the Bureau representatives, shall have access, for additional ten (10) working days for with a State or school district shall pro- audit and examination purposes, to any good reason. The requester shall be noti- vide that the contractor shall, of the contractor's books, documents, fied in writing of the extension, reasons greatest extent feasible, give preference papers, and records which, in their for the extension, and the date on which in the award of subcontracts to Indian opinion, may be related or pertinent to the determination is expected to be made. organizations and to Indian-owned eco- the contract or any subcontract. § 277.33 Reporting. nomic enterprises. (b) The contractor will be responsible for maintaining all documents such as (a) A contractor under this Part shall (c) All subcontractors employed by the contractor shall, to the greatest extent invoices, purchase orders, cancelled make a detailed report to the Commis- feasible, give preference to Indians for checks, balance sheets and all other rec- sioner of Indian Affairs after construc- employment and training and shall be ords relating to financial transactions in tion is completed. The report shall in- a manner which will facilitate auditing. clude, but not be limited to, an account- required to include in their bid submis- The contractor will be responsible for ing of the amounts and purposes for sion a plan to achieve maximum use of Indian personnel. maintaining files of correspondence and which the contract funds were expended. (d) In the performance of contracts other documents relating to the contract (b) The contractor shall furnish other under this Part 277 and subject to the properly separated from general records contract-related reports when and as or cross-referenced to general files. required by the Commissioner of Indian provisions of Part 14 H of Title 41, a tribal governing body may develop its (c) The contractor receiving funds Affairs. own Indian preference requirements to under this Part shall be primarily re- (c) A contractor under this Part shall sponsible for contract compliance. send copies of the reports required by the extent that such requirements are (d) The records involved in any claim paragraphs (a) and (b) of this section to not inconsistent with the purpose and or expenditure that has been questioned the tribe(s) affected by the construction intent of paragraphs (a), (b), and (c) at the same time as the reports are sent of this section. shall be further maintained until final determination has been made on the to the Bureau. § 277.29 Liability and motor vehicle in- questioned expenditure. § 277.34 Repayment of funds. surance. (e) All contracts, reports, budgets, Any funds paid under a contract en- (a) States and school districts shall budget estimates, plans, and other docu- tered into under this Part which are obtain public liability and motor ve- ments pertaining to administration of not expended, obligated or used for the hicle insurance under contracts entered the contract shall be made available by purposes of the contract during its term into with the Bureau under this Part. the contractor. The contractor shall pro- shall be returned to the Bureau. However, where the Bureau contracting vide information in accordance with the officer determines that the risk of death, Freedom of Information Act. § 277.35 Penalties. personal injury or property damage If any officer, director, agent, or em- under the contract is small and that the § 277.32 Fredom of information. ployee of, or connected with, any con- time and cost of procuring the insurance (a) Unless otherwise required by law, tractor or subcontractor under this Part is great in relation to the risk, the con- the Bureau shall not place restrictions on embezzles, willfully misapplies, steals, or tract may be exempted from this re- contractors which will limit public ac- obtains by fraud any of the funds or quirement. cess to the contractor's records except property connected with the contract or (b) Notwithstanding paragraph (a) when records must remain confidential. subcontract, he shall be subject to the of this section, any contract which re- (b) A contractor under this Part shall following penalties: quires or authorizes, either expressly or make all reports and information con- (a) If the amount involved does not by implication, the use of motor vehicles cerning the contract available to the exceed $100, he shall be fined not more FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 RULES AND REGULATIONS 51331 than $1,000 or imprisoned not more than (c) If the contractor does not overcome Commissioner considers such waivers one year, or both. the deficiencies in its contract perform- appropriate. (b) If the amount involved exceeds ance, the Bureau shall cancel the con- The Bureau of Indian Affairs has $100, he shall be fined not more than tract for cause. The Bureau will notify sought to be responsive to the recom- $10,000 or imprisoned for not more than the contractor, in writing, of the cancel- mendations of Indian and Alaska Native two years, or both. lation. The notice shall give the reasons governing bodies who are, or have con- for the cancellation and the right of the § 277.36 Applicable procurement regu- templated, operating Bureau programs contractor to appeal under Subpart C of lations under contract. For some time, these 43 CFR Part 4. groups have been critical of the com- States or school districts wanting to (d) When a contract is cancelled for plexities inherent in negotiating con- contract with the Bureau under this Part cause, the Bureau will either perform the tracts under the standard Federal Pro- must comply with the applicable require- work with its own forces or by another curement Regulations. In many m- ments in the Federal Procurement Regu- contract, as appropriate. stances, an unfavorable psychological lations (41 CFR 1), as supplemented by climate was created that inhibited local the Interior Procurement Regulations Subpart E-Appeals desires for more meaningful expressions (41 CFR 14) and the Bureau of Indian § 277.51 Contract appeal. of self-determination based on their own Affairs Procurement Regulations (41 CFR needs and goals. 14H), except 41 CFR Part 14H-70. A contractor may appeal an adverse decision or action of a Bureau contract- Through experience, the Bureau of In- § 277.37 Privacy Act requirements. ing officer regarding a contract under this dian Affairs and its constituents have (a) When a contractor operates a SYS- Partas provided in Subpart C of 43 CFR found the standard procurement regu- Part 4. lations to contain numerous require- tem of records to accomplish a-Bureau ments that have little if any applicability function, the contractor shall comply § 277.52 Appeal from decision to cancel to contracts. For this reason, the Bureau with Subpart D of 43 CFR Part 2 which contract for cause. has evolved what, in essence, is a set of implements the Privacy Act (5 U.S.C. 552a) Examples of the contractor's re- A contractor may appeal the decision "Indian" Procurement Regulations for sponsibilities are: of a Bureau official to cancel a contract dealing with tribal and Alaska Native (1) To continue maintaining those under this Part for cause. The appeal groups as the new Part 14H-70. shall be made sprovided in subpart C of These regulations reflect the Bureau's systems of records declared by the Bu- 43 Part 4. attempt to follow the recommendations reau to be subject to the Privacy Act as of Indian and Alaska Native people to published in the FEDERAL REGISTER. § 277.53 Other apeals. place in one part all pertinent contract- (2) To make such records available to individuals involved. Any decision or action taken by a ing regulations or references to such reg- ulations affecting contracts with tribal (3) To disclose an individual's record Bureau official under this Part, other to third parties only after receiving per- than those given in §§ 277.51 and 277.52, organizations; to reduce referencing reg- may be appealed only as provided in Part ulations contained in other CFR Parts, mission from the individual to whom 2 of this chapter. if possible; to make the regulations as the record pertains. 43 CFR 2.56-lists comprehensive and clear as possible; to exceptions to this procedure. [FR Doc.75-29301 Filed 11-3-75;8:45 assure that both parties to the contract (4) To establish a procedure to ac- know their rights, roles and responsi- count for access, disclosures, denials, and bilities; and to remove any unnecessary amendments to records. Title 41-Public Contracts and Property Management or inapplicable requirements found in (5) To provide safeguards for the pro- the standard procurement rules which tection of the records. CHAPTER 14H-BUREAU OF INDIAN AF- would not apply to self-determination (b) The contractor may not: FAIRS, DEPARTMENT OF THE INTERIOR contracts with tribal organizations. (1) Discontinue or alter any estab- PART 14H-70-CONTRACTING WITH IN- The contractual approach is one of lished systems of records without prio- DIAN ORGANIZATIONS PURSUANT TO several voluntary options available to approval of the appropriate Bureau THE INDIAN SELF-DETERMINATION Indian and Alaska Native governing systems manager. AND EDUCATION ASSISTANCE ACT bodies to assist them in the self-develop- (2) Deny request for notification or ment process. Depending on their basic access of records without prior approval OCTOBER 24, 1975. needs and goals, they may want to use of the appropriate Bureau systems Beginning on page 41025 of the Sep- the contract mechanism in their self- manager. tember 4, 1975, FEDERAL REGISTER (40 FR development process. If so, Part 14H-70 41025), there was published a notice of Subpart D-Contract Revision or seeks to simplify the contracting pro- proposed rulemaking to amend Chapter cedure for them. Cancellation 14H of Title 41 of the Code of Federal The public was given until October 4, § 277.41 Contract revision or amend- Regulations by adding a new Part 14H- 1975, to submit written comments, sug- ment. 70. This amendment was proposed pur- gestions, or objections regarding the Any contract made under this Part suant to the authority contained in the proposed amendment. All comments may be revised or amended as deemed Indian Self-Determination and Educa- received with respect to the proposed necessary to carry out the purposes of tion Assistance Act (Pub. L. 93-638; 88 amendment were given due considera- the contract. A contractor may make a Stat. 2203). tion. written request for a revision or amend- The purpose of the amendment is to A. Changes made due to comments ment of a contract to the Bureau con- consolidate in one Part all of the con- received. As a result of comments re- tracting officer. tracting requirements which Indian ceived, the following changes in the reg- tribal and Alaska Native organizations § 27.42 Canceling à contract for cause. ulations are made in addition to lan- must follow in contracting with the Bu- guage changes for clarification: (a) Any contract entered into under reau of Indian Affairs under the Indian 1. A new § 14H-70.103 is added to de- this Part may be cancelled for cause Self-Determination and Education As- fine what is considered an Indian reser- when the contractor fails to perform the sistance Act. In preparing the regula- vation and the former §§ 14H-70.103 and work called for under the contract. tions in new Part 14H-70, waivers were 14H-70.104 are redesignated as §§ 14H- (b) Before cancelling the contract, the made of some of the standard Federal 70.104 and 14H-70.105, accordingly. Bureau will advise the contractor in writ- Procurement Regulations as authorized 2. Section 14H-70.402 is revised to ing of the following: by section 106(a) of the Act. Certain re- make it clear that an Indian tribe has (1) The reasons why the Bureau is con- quirements were waived in an attempt to sidering cancelling the contract. simplify contracting procedures for the right to determine the tribal orga- nization that will provide services to it (2) That the contractor will be given Indian tribal and Alaska Native orga- under a contract and that, in such in- an opportunity to bring its work up to nizations. Additional waivers may be stances, the tribe's determination con- an acceptable level. made on a case-by-case basis as the stitutes the Bureau's justification for FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975 FOR IMMEDIATE RELEASE JANUARY 4, 1975 Office of the White House Press Secretary THE WHITE HOUSE STATEMENT BY THE PRESIDENT I have signed into law S. 1017, the Indian Self-Determination and Education Assistance Act. My Administration is committed to furthering the self- determination of Indian communities without terminating the special relationships between the Federal Government and the Indian people. The Congress is to be congratulated for its passage of this legislation. It will enhance our efforts to implement this policy of Indian self-determination. Title I of this act gives the permanence and stature of law to the objective of my Administration of allowing - indeed encouraging -- Indian tribes to operate programs serving them under contract to the Federal Government. Furthermore, with the passage of this act, Indian com munities and their leaders now share with the Federal Government the responsibility for the full realization of this objective. It will be through the initiatives of Indian communities that the authorities provided in this Act will be implemented. I urge these communities to make the fullest possible use of them and pledge the support of this Administration. In addition to making this kind \of contracting a right, the act does much to make it feasible and practical. For example, it authorizes the Bureau of Indian Affairs to make grants to tribal organizations to help them develop the abilities of potential workers -- through training and other means --- to operate these programs. At FORD LIBRAR. the request of the tribe, it also allows Federal employees who work in programs transferred to tribal operation to continue working without losing Federal fringe benefits, thus making it possible for the tribe to begin operation with a nucleus of experienced employees. The granting authority provided in this act can also be used to strengthen tribal governments and tribally funded programs. Title II, the Indian Education Assistance Act, amends the Johnson O'Malley Act to give the Indian community a stronger role in approving or disapproving the use of funds for children in public schools. It also provides for better planning in the use of these funds to meet the educational needs of the Indian students. The enactment of this legislation marks a milestone for Indian people. It will enable this Administration to work more closely and effectively with the tribes for the betterment of all the Indian people by assisting them in meeting goals they themselves have set. # # #