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(2) Any funds that are specifically or functionally related to providing services and benefits to the Tribe/Consortium or its members by the Secretary without regard to the organizational level within BIA where such functions are carried out; and
(3) Any funds otherwise available to Indian Tribes or Indians for which appropriations are made to agencies other than the Department of the Interior;
(b) Examples of the funds referred to in paragraphs (a)(1) and (a)(2) of this section are:
(1) A Tribe's/Consortium's Pub. L. 93–638 contract amounts;
(2) Negotiated amounts of agency, regional and central office funds, including previously undistributed funds or new programs on the same basis as they are made available to other Tribes;
(3) Other recurring funding;
(4) Non-recurring funding;
(5) Special projects, if applicable;
(6) Construction;
(7) Wildland firefighting accounts;
(8) Competitive grants; and
(9) Congressional earmarked funding.
(c) An example of the funds referred to in paragraph (a)(3) of this section is Federal Highway Administration funds.
§ 1000.92 What funds may not be included in an AFA?
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Funds associated with programs prohibited from inclusion under section 403(b)(4) of the Act may not be included in an AFA.
§ 1000.93 May the Secretary place any requirements on programs and funds that are otherwise available to Tribes/Consortia or Indians for which appropriations are made to agencies other than DOI?
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No, unless the Secretary is required to develop terms and conditions that are required by law or that are required by the agency to which the appropriation is made.
§ 1000.94 What are BIA residual funds?
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BIA residual funds are the funds necessary to carry out BIA residual functions. BIA residual functions are those functions that only BIA employees could perform if all Tribes were to assume responsibilities for all BIA programs that the Act permits.
§ 1000.95 How is BIA's residual determined?
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(a) Generally, residual information will be determined through a process that is consistent with the overall process used by the BIA. Residual information will consist of residual functions performed by the BIA, brief justification why the function is not compactible, and the estimated funding level for each residual function. Each regional office and the central office will compile a single document for distribution each year that contains all the residual information of that respective office. The development of the residual information will be based on the following principles. The BIA will:
(1) Develop uniform residual information to be used to negotiate residuals;
(2) Ensure functional consistency throughout BIA in the determination of residuals;
(3) Make the determination of residuals based upon the functions actually being performed by BIA at the respective office;
(4) Annually consult with Tribes on a region-by-region basis as requested by Tribes/Consortia; and
(5) Notify Tribal leaders each year by March 1 of the availability of residual information.
(b) BIA shall use the residual information determined under subparagraph (a) as the basis for negotiating with individual Tribes.
(c) In accordance with the appeals procedures in subpart R of this part, if BIA and a participating Tribe/Consortium disagree over the content of residual functions or amounts, Tribe/Consortium can appeal as shown in the following table.
------------------------------------------------------------------------
the Tribe/Consortium
If a Tribe/Consortium . . . may . . . and . . .
------------------------------------------------------------------------
(1) Disagrees with BIA's appeal to the Deputy the Deputy
determination. Commissioner. Commissioner must
make a written
determination
within 30 days of
receiving the
request.
(2) Disagrees with the appeal to the the Assistant
Deputy Commissioner's Assistant Secretary's
determination. Secretary_Indian determination is
Affairs. final for the
Department.
------------------------------------------------------------------------
(d) Information on residual functions may be amended if programs are added or deleted, if statutory or final judicial determinations mandate or if the Deputy Commissioner makes a determination that would alter the residual information or funding amounts. The decision may be appealed to the Assistant Secretary in accordance with subpart R of this part. The Assistant Secretary shall make a written determination within 30 days.
§ 1000.96 May a Tribe/Consortium continue to negotiate an AFA pending an appeal of residual functions or amounts?
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Yes, pending appeal of a residual function or amount, any Tribe/Consortium may continue to negotiate an AFA using the residual information that is being appealed. The residual information will be subject to later adjustment based on the final determination of a Tribe's/Consortium's appeal.
§ 1000.97 What is a Tribal share?
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A Tribal share is the amount determined for a particular Tribe/Consortium for a particular program at BIA regional, agency and central office levels under section 403(g)(3) and 405(d) of the Act.
§ 1000.98 How does BIA determine a Tribe's/Consortium's share of funds to be included in an AFA?
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There are typically two methods for determining the amount of funds to be included in the AFA:
(a) Formula-driven. For formula-driven programs, a Tribe's/Consortium's amount is determined by first identifying the residual funds to be retained by BIA and second, by applying the distribution formula to the remaining eligible funding for each program involved.
(1) Distribution formulas must be reasonably related to the function or service performed by an office, and must be consistently applied to all Tribes within each regional and agency office.
(2) The process in paragraph (a) of this section for calculating a Tribe's funding under self-governance must be consistent with the process used for calculating funds available to non-self-governance Tribes.
(b) Tribal-specific. For programs whose funds are not distributed on a formula basis as described in paragraph (a) of this section, a Tribe's funding amount will be determined on a Tribe-by-Tribe basis and may differ between Tribes. Examples of these funds may include special project funding, awarded competitive grants, earmarked funding, and construction or other one-time or non-recurring funding for which a Tribe is eligible.
§ 1000.99 Can a Tribe/Consortium negotiate a Tribal share for programs outside its region/agency?
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Yes, where BIA services for a particular Tribe/Consortium are provided from a location outside its immediate agency or region, the Tribe may negotiate its share from BIA location where the service is actually provided.
§ 1000.100 May a Tribe/Consortium obtain discretionary or competitive funding that is distributed on a discretionary or competitive basis?
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Funds provided for Indian services/programs that have not been mandated by Congress to be distributed on a competitive/discretionary basis may be distributed to a Tribe/Consortium under a formula-driven method. In order to receive such funds, a Tribe/Consortium must be eligible and qualified to receive such funds. A Tribe/Consortium that receives such funds under a formula-driven methodology would no longer be eligible to compete for these funds.
§ 1000.101 Are all funds identified as Tribal shares always paid to the Tribe/Consortium under an AFA?
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No, at the discretion of the Tribe/Consortium, Tribal shares may be left, in whole or in part, with BIA for certain programs. This is referred to as a “retained Tribal share”.
§ 1000.102 How are savings that result from downsizing allocated?
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Funds that are saved as a result of downsizing in BIA are allocated to Tribes/Consortia in the same manner as Tribal shares as provided for in §1000.98.
§ 1000.103 Do Tribes/Consortia need Secretarial approval to reallocate funds between programs that the Tribe/Consortium administers under the AFA?
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No, unless otherwise required by law, the Secretary does not have to approve the reallocation of funds between programs that a Tribe/Consortium administers under an AFA.
§ 1000.104 Can funding amounts negotiated in an AFA be adjusted during the year it is in effect?
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Yes, funding amounts negotiated in an AFA may be adjusted under the following circumstances:
(a) Congressional action. (1) Increases/decreases as a result of Congressional appropriations and/or a directive in the statement of managers accompanying a conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied consistently to BIA, self-governance Tribes/Consortia, and Tribes/Consortia not participating in self-governance.
(3) General increases due to Congressional appropriations must be applied consistently, except where used to achieve equitable distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify and document substantive errors in calculations, the parties will renegotiate the amounts and make every effort to correct such errors.
(c) Mutual Agreement. Both the Tribe/Consortium and the Secretary may agree to renegotiate amounts at any time.
Establishing Self-Governance Base Budgets
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§ 1000.105 What are self-governance base budgets?
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(a) A Tribe/Consortium self-governance base budget is the amount of recurring funding identified in the President's annual budget request to Congress. This amount must be adjusted to reflect subsequent Congressional action. It includes amounts that are eligible to be base transferred or have been base transferred from BIA budget accounts to self-governance budget accounts. As allowed by Congress, self-governance base budgets are derived from:
(1) A Tribe's/Consortium's Pub. L. 93–638 contract amounts;
(2) Negotiated agency, regional, and central office amounts;
(3) Other recurring funding;
(4) Special projects, if applicable;
(5) Programmatic shortfall;
(6) Tribal priority allocation increases and decreases;
(7) Pay costs and retirement cost adjustments; and
(8) Any other inflationary cost adjustments.
(b) Self-governance base budgets must not include any non-recurring program funds, construction and wildland firefighting accounts, Congressional earmarks, or other funds specifically excluded by Congress. These funds are negotiated annually and may be included in the AFA but must not be included in the self-governance base budget.
(c) Self-governance base budgets may not include other recurring type programs that are currently in Tribal priority allocations (TPA) such as general assistance, housing improvement program (HIP), road maintenance and contract support. Should these later four programs ever become base transferred to Tribes, then they may be included in a self-governance Tribe's base budget.
§ 1000.106 Once a Tribe/Consortium establishes a base budget, are funding amounts renegotiated each year?
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No, unless otherwise requested by the Tribe/Consortium, these amounts are not renegotiated each year. If a Tribe/Consortium renegotiates funding levels:
(a) It must negotiate all funding levels in the AFA using the process for determining residuals and funding amounts on the same basis as other Tribes; and
(b) It is eligible for funding amounts of new programs or available programs not previously included in the AFA on the same basis as other Tribes.
§ 1000.107 Must a Tribe/Consortium with a base budget or base budget-eligible program amounts negotiated before January 16, 2001 negotiate new Tribal shares and residual amounts?
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No, if a Tribe/Consortium negotiated amounts before January 16, 2001, it does not need to renegotiate new Tribal shares and residual amounts.
(a) At Tribal option, a Tribe/Consortium may retain funding amounts that:
(1) Were either base eligible or in the Tribe's base; and
(2) Were negotiated before this part is promulgated.
(b) If a Tribe/Consortium desires to renegotiate the amounts referred to in paragraph (a) of this section, the Tribe/Consortium must:
(1) Negotiate all funding included in the AFA; and
(2) Use the process for determining residuals and funding amounts on the same basis as other Tribes.
(c) Self-governance Tribes/Consortia are eligible for funding amounts for new or available programs not previously included in the AFA on the same basis as other Tribes/Consortia.
§ 1000.108 How are self-governance base budgets established?
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At the request of the Tribe/Consortium, a self-governance base budget identifying each Tribe's funding amount is included in BIA's budget justification for the following year, subject to Congressional appropriation.
§ 1000.109 How are self-governance base budgets adjusted?
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Self-governance base budgets must be adjusted as follows:
(a) Congressional action. (1) Increases/decreases as a result of Congressional appropriations and/or a directive in the statement of managers accompanying a conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied consistently to BIA, self-governance Tribes/Consortia, and Tribes/Consortia not participating in self-governance.
(3) General increases due to Congressional appropriations must be applied consistently, except where used to achieve equitable distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify and document substantive errors in calculations, the parties will renegotiate such amounts and make every effort to correct the errors.
(c) Mutual agreement. Both the Tribe/Consortium and the Secretary may agree to renegotiate amounts at any time.
Subpart F—Non-BIA Annual Self-Governance Compacts and Funding Agreements
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Purpose
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§ 1000.120 What is the purpose of this subpart?
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This subpart describes program eligibility, funding, terms, and conditions of AFAs for non-BIA programs.
§ 1000.121 What is an annual funding agreement for a non-BIA program?
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Annual funding agreements for non-BIA programs are legally binding and mutually enforceable agreements between a bureau and a Tribe/Consortium participating in the self-governance program that contain:
(a) A description of that portion or portions of a bureau program that are to be performed by the Tribe/Consortium; and
(b) Associated funding, terms and conditions under which the Tribe/Consortium will assume a program, or portion of a program.
Eligibility
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§ 1000.122 What non-BIA programs are eligible for inclusion in an annual funding agreement?
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Programs authorized by sections 403(b)(2) and 403(c) of the Act are eligible for inclusion in AFAs. The Secretary will publish annually a list of these programs in accordance with section 405(c)(4).
§ 1000.123 Are there non-BIA programs for which the Secretary must negotiate for inclusion in an AFA subject to such terms as the parties may negotiate?
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Yes, those programs, or portions thereof, that are eligible for contracting under Pub. L. 93–638.
§ 1000.124 What programs are included under Section 403(b)(2) of the Act?
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Those programs, or portions thereof, that are eligible for contracting under Pub. L. 93–638.
§ 1000.125 What programs are included under Section 403(c)?
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Department of the Interior programs of special geographic, historical, or cultural significance to participating Tribes, individually or as members of a Consortium, are eligible for inclusion in AFAs under section 403(c).
§ 1000.126 What does “special geographic, historical or cultural” mean?
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(a) Geographic generally refers to all lands presently “on or near” an Indian reservation, and all other lands within “Indian country,” as defined by 18 U.S.C. 1151. In addition, “geographic” includes:
(1) Lands of former reservations;
(2) Lands on or near those conveyed or to be conveyed under the Alaska Native Claims Settlement Act (ANCSA);
(3) Judicially established aboriginal lands of a Tribe or a Consortium member or as verified by the Secretary; and
(4) Lands and waters pertaining to Indian rights in natural resources, hunting, fishing, gathering, and subsistence activities, provided or protected by treaty or other applicable law.
(b) Historical generally refers to programs or lands having a particular history that is relevant to the Tribe. For example, particular trails, forts, significant sites, or educational activities that relate to the history of a particular Tribe.
(c) Cultural refers to programs, sites, or activities as defined by individual Tribal traditions and may include, for example:
(1) Sacred and medicinal sites;
(2) Gathering of medicines or materials such as grasses for basket weaving; or
(3) Other traditional activities, including, but not limited to, subsistence hunting, fishing, and gathering.
§ 1000.127 Under Section 403(b)(2), when must programs be awarded non-competitively?
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Programs eligible for contracts under Pub. L. 93–638 must be awarded non-competitively.
§ 1000.128 Is there a contracting preference for programs of special geographic, historical, or cultural significance?
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Yes, if there is a special geographic, historical, or cultural significance to the program or activity administered by the bureau, the law affords the bureau the discretion to include the programs or activities in an AFA on a non-competitive basis.
§ 1000.129 Are there any programs that may not be included in an AFA?
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Yes, section 403(k) of the Act excludes from the program:
(a) Inherently Federal functions; and
(b) Programs where the statute establishing the existing program does not authorize the type of participation sought by the Tribe/Consortium, except as provided in §1000.134.
§ 1000.130 Does a Tribe/Consortium need to be identified in an authorizing statute in order for a program or element of a program to be included in a non-BIA AFA?
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No, the Act favors the inclusion of a wide range of programs.
§ 1000.131 Will Tribes/Consortia participate in the Secretary's determination of what is to be included on the annual list of available programs?
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Yes, the Secretary must consult each year with Tribes/Consortia participating in self-governance programs regarding which bureau programs are eligible for inclusion in AFAs.
§ 1000.132 How will the Secretary consult with Tribes/Consortia in developing the list of available programs?
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(a) On, or as near as possible to, October 1 of each year, the Secretary must distribute to each participating self-governance Tribe/Consortium the previous year's list of available programs in accordance with section 405(c)(4) of the Act. The list must include:
(1) All of the Secretary's proposed additions and revisions for the coming year with an explanation; and
(2) Programmatic targets and an initial point of contact for each bureau.
(b) The Tribes/Consortia receiving the proposed list will have 30 days from receipt to comment in writing on the Secretary's proposed revisions and to provide additions and revisions of their own for the Secretary to consider.
(c) The Secretary will carefully consider these comments before publishing the list as required by section 405(c)(4) of the Act.
(d) If the Secretary does not plan to include a Tribal suggestion or revision in the final published list, he/she must provide an explanation of his/her reasons if requested by a Tribe.
§ 1000.133 What else is on the list in addition to eligible programs?
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The list will also include programmatic targets and an initial point of contact for each bureau. Programmatic targets will be established as part of the consultation process described in §1000.132.
§ 1000.134 May a bureau negotiate with a Tribe/Consortium for programs not specifically included on the annual section 405(c) list?
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Yes, the annual list will specify that bureaus will negotiate for other programs eligible under section 403(b)(2) when requested by a Tribe/Consortium. Bureaus may negotiate for section 403(c) programs whether or not they are on the list.
§ 1000.135 How will a bureau negotiate an annual funding agreement for a program of special geographic, historical, or cultural significance to more than one Tribe?
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(a) If a program is of special geographic, historical, or cultural significance to more than one Tribe, the bureau may allocate the program among the several Tribes/Consortia or select one Tribe/Consortium with whom to negotiate an AFA.
(b) In making a determination under paragraph (a) of this section, the bureau will, in consultation with the affected Tribes, consider:
(1) The special significance of each Tribe's or Consortium member's interest; and
(2) The statutory objectives being served by the bureau program.
(c) The bureau's decision will be final for the Department.
§ 1000.136 When will this determination be made?
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It will occur during the pre-negotiation process, subject to the timeframes in §1000.171 and §1000.172.
Funding
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§ 1000.137 What funds are included in an AFA?
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Bureaus determine the amount of funding to be included in the AFA using the following principles:
(a) 403(b)(2) programs. In general, funds are provided in an AFA to the Tribe/Consortium in an amount equal to the amount that it is eligible to receive under section 106 of Pub. L. 93–638.
(b) 403(c) programs. (1) The AFA will include:
(i) Amounts equal to the direct costs the bureau would have incurred were it to operate that program at the level of work mutually agreed to in the AFA; and
(ii) Allowable indirect costs.
(2) A bureau is not required to include management and support funds from the regional or central office level in an AFA, unless:
(i) The Tribe/Consortium will perform work previously performed at the regional or central office level;
(ii) The work is not compensated in the indirect cost rate; and
(iii) Including management and support costs in the AFA does not result in the Tribe/Consortium being paid twice for the same work when negotiated indirect cost rate is applied.
(c) Funding Limitations. The amount of funding must be subject to the availability and level of Congressional appropriations to the bureau for that program or activity. As the various bureaus use somewhat differing budgeting practices, determining the amount of funds available for inclusion in the AFA for a particular program or activity is likely to vary among bureaus or programs.
(1) The AFA may not exceed the amount of funding the bureau would have spent for direct operations and indirect support and management of that program in that year.
(2) The AFA must not include funding for programs still performed by the bureau.
§ 1000.138 How are indirect cost rates determined?
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The Department's Office of the Inspector General (OIG) or other cognizant Federal agency and the Tribe/Consortium negotiate indirect cost rates. These rates are based on the provisions of the Office of Management and Budget (OMB) Circular A–87 or other applicable OMB cost circular and the provisions of Title I of Pub. L. 93–638 (See §1000.142). These rates are used generally by all Federal agencies for contracts and grants with the Tribe/Consortium, including self-governance agreements.
§ 1000.139 Will the established indirect cost rates always apply to new AFAs?
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No, the established indirect cost rates will not always apply to new AFAs.
(a) A Tribe's/Consortium's existing indirect cost rate should be reviewed and renegotiated with the inspector general or other cognizant agency if:
(1) Using the previously negotiated rate would include the recovery of indirect costs that are not reasonable, allocable, or allowable to the relevant program; or
(2) The previously negotiated rate would result in an under-recovery by the Tribe/Consortium.
(b) If a Tribe/Consortium has a fixed amount indirect cost agreement under OMB Circular A–87, then:
(1) Renegotiation is not required and the duration of the fixed amount agreement will be that provided for in the fixed amount agreement; or
(2) The Tribe/Consortium and bureau may negotiate an indirect cost amount or rate for use only in that AFA without the involvement of the inspector general or other cognizant agency.
§ 1000.140 How does the Secretary determine the amount of indirect contract support costs?
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The Secretary determines the amount of indirect contract support costs by:
(a) Applying the negotiated indirect cost rate to the appropriate direct cost base;
(b) Using the provisional rate; or
(c) Negotiating the amount of indirect contract support.
§ 1000.141 Is there a predetermined cap or limit on indirect cost rates or a fixed formula for calculating indirect cost rates?
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No, indirect cost rates vary from Tribe to Tribe. The Secretary should refer to the appropriate negotiated indirect cost rates for individual Tribes, that apply government-wide. Although this cost rate is not capped, the amount of funds available for inclusion is capped at the level available under the relevant appropriation.
§ 1000.142 Instead of the negotiated indirect cost rate, is it possible to establish a fixed amount or another negotiated rate for indirect costs where funds are limited?
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Yes, OMB Circular A–87 encourages agencies to test fee-for-service alternatives. If the parties agree to a fixed price, fee-for-service agreement, then they must use OMB Circular A–87 as a guide in determining the appropriate price (OMB circulars are available at http://www.whitehouse.gov/omb/ or see 5 CFR 1310.3).Where limited appropriated funds are available, negotiating the fixed cost option or another rate may facilitate reaching an agreement with that Tribe/Consortium.
Other Terms and Conditions
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§ 1000.143 May the bureaus negotiate terms to be included in an AFA for non-Indian programs?
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Yes, as provided for by section 403(b)(2) and 403(c) and as necessary to meet program mandates.
Reallocation, Duration, and Amendments
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§ 1000.144 Can a Tribe reallocate funds for a non-BIA non-Indian program?
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Yes, section 403(b) permits such reallocation upon joint agreement of the Secretary and the Tribe/Consortium.
§ 1000.145 Do Tribes/Consortia need Secretarial approval to reallocate funds between Title-I eligible programs that the Tribe/Consortium administers under a non-BIA AFA?
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No, unless otherwise required by law, the Secretary does not have to approve the reallocation of funds with the exception of construction projects.
§ 1000.146 Can a Tribe/Consortium negotiate an AFA with a non-BIA bureau for which the performance period exceeds one year?
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Yes, subject to the terms of the AFA, a Tribe/Consortium and a non-BIA bureau may agree to provide for the performance under the AFA to extend beyond the fiscal year. However, the Department may not obligate funds in excess and advance of available appropriations.
§ 1000.147 Can the terms and conditions in a non-BIA AFA be amended during the year it is in effect?
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Yes, terms and conditions in a non-BIA AFA may be amended during the year it is in effect as agreed to by both the Tribe/Consortium and the Secretary.
§ 1000.148 What happens if an AFA expires before the effective date of the successor AFA?
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If the effective date of a successor AFA is not on or before the expiration of the current AFA, subject to terms mutually agreed upon by the Tribe/Consortium and the Department at the time the current AFA was negotiated or in a subsequent amendment, the Tribe/Consortium may continue to carry out the program authorized under the AFA to the extent resources permit. During this extension period, the current AFA shall remain in effect, including coverage of the Tribe/Consortium under the Federal Tort Claims Act (FTCA) 28 U.S.C. 2671–2680 (1994); and the Tribe/Consortium may use any funds remaining under the AFA, savings from other programs or Tribal funds to carry out the program. Nothing in this section authorizes an AFA to be continued beyond the completion of the program authorized under the AFA or the amended AFA. This section also does not entitle a Tribe/Consortium to receive, nor does it prevent a Tribe from receiving, additional funding under any successor AFA. The successor AFA must provide funding to the Tribe/Consortium at a level necessary for the Tribe/Consortium to perform the programs, functions, services, and activities (PFSA) or portions thereof for the full period they were or will be performed.
Subpart G—Negotiation Process for Annual Funding Agreements
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Purpose
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§ 1000.160 What is the purpose of this subpart?
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This subpart provides the process and timelines for negotiating a self-governance compact with the Department and an AFA with any bureau.
(a) For a newly selected or currently participating Tribe/Consortium negotiating an initial AFA with any bureau, see §§1000.173 through 1000.179.
(b) For a participating Tribe/Consortium negotiating a successor AFA with any bureau, see §§1000.180 through 1000.182.
Negotiating a Self-Governance Compact
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§ 1000.161 What is a self-governance compact?
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A self-governance compact is an executed document that affirms the government-to-government relationship between a self-governance Tribe and the United States. The compact differs from an AFA in that parts of the compact apply to all bureaus within the Department of the Interior rather than a single bureau.
§ 1000.162 What is included in a self-governance compact?
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A model format for self-governance compacts appears in appendix A. A self-governance compact should generally include the following:
(a) The authority and purpose;
(b) Terms, provisions, and conditions of the compact;
(c) Obligations of the Tribe and the United States; and
(d) Other provisions.
§ 1000.163 Can a Tribe/Consortium negotiate other terms and conditions not contained in the model compact?
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Yes, the Secretary and a self-governance Tribe/Consortium may negotiate into the model compact contained in appendix A additional terms relating to the government-to-government relationship between the Tribe(s) and the United States. For BIA programs, a Tribe/Consortium and the Secretary may agree to include any term in a contract and funding agreement under Title I in the model compact contained in appendix A to this part.
§ 1000.164 Can a Tribe/Consortium have an AFA without entering into a compact?
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Yes, at the Tribe's/Consortium's option.
§ 1000.165 Are provisions in compacts negotiated before January 16, 2001, effective after implementation?
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(a) Yes, all provisions in compacts that were negotiated with BIA before January 16, 2001, shall remain in effect for BIA programs only after January 16, 2001, provided that each compact contains provisions:
(1) That are authorized by the Tribal Self-Governance Act of 1994;
(2) Are in compliance with other applicable Federal laws; and,
(3) Are consistent with this part.
(b) BIA will notify the Tribe/Consortium in writing when BIA asserts that a provision or provisions of that Tribe's/Consortium's previously negotiated compact is not in compliance with the terms and conditions of this part. BIA and the Tribe/Consortium will renegotiate the provision within 60 days of the Tribe's/Consortium's receipt of the notification.
(c) If renegotiation is not successful within 60 days of the notice being provided, BIA's determination is final for the bureau and enforceability of the provisions shall be subject to the appeals process described in subpart R of this part. Pending a final appeal through the appeals process, BIA's determination shall be stayed.
Negotiation of Initial Annual Funding Agreements
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§ 1000.166 What are the phases of the negotiation process?
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There are two phases of the negotiation process:
(a) The information phase; and
(b) The negotiation phase.
§ 1000.167 Who may initiate the information phase?
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Any Tribe/Consortium that has been admitted to the program or to the applicant pool may initiate the information phase.
§ 1000.168 Is it mandatory to go through the information phase before initiating the negotiation phase?
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No, a Tribe/Consortium may go directly to the negotiation phase.
§ 1000.169 How does a Tribe/Consortium initiate the information phase?
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A Tribe/Consortium initiates the information phase by submitting a letter of interest to the bureau administering a program that the Tribe/Consortium may want to include in its AFA. A letter of interest may be mailed, telefaxed, or hand-delivered to:
(a) The Director, OSG, if the request is for information about BIA programs;
(b) The non-BIA bureau's self-governance representative identified in the Secretary's annual section 405(c) listing in the Federal Register, if the request is for information concerning programs of non-BIA bureaus.
§ 1000.170 What is the letter of interest?
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A letter of interest is the initial indication of interest submitted by the Tribe/Consortium informing the bureau of the Tribe's/Consortium's interest in seeking information for the possible negotiation of one or more bureau programs. For non-BIA bureaus, the program and budget information request should relate to the program and activities identified in the Secretary's section 405(c) list in the Federal Register or a section 403(c) request. A letter of interest should identify the following:
(a) As specifically as possible, the program a Tribe/Consortium is interested in negotiating under an AFA;
(b) A preliminary brief explanation of the cultural, historical, or geographic significance to the Tribe/Consortium of the program, if applicable;
(c) The scope of activity that a Tribe/Consortium is interested in including in an AFA;
(d) Other information that may assist the bureau in identifying the programs that are included or related to the Tribe's/Consortium's request;
(e) A request for information that indicates the type and/or description of information that will assist the Tribe/Consortium in pursuing the negotiation process;
(f) A designated Tribal contact;
(g) A request for information on any funds that may be available within the bureau or other known possible sources of funding for planning and negotiating an AFA;
(h) A request for information on any funds available within the bureau or from other sources of funding that the Tribe/Consortium may include in the AFA for planning or performing programs or activities; and
(i) Any requests for technical assistance to be provided by the bureau in preparing documents of materials that may be required for the Tribe/Consortium in the negotiation process.
§ 1000.171 When should a Tribe/Consortium submit a letter of interest?
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A letter of interest may be submitted at any time. To meet the negotiation deadlines below, letters should be submitted to the appropriate non-BIA bureaus by March 1; letters should be submitted to BIA by April 1 for fiscal year Tribes/Consortia or May 1 for calendar year Tribes/Consortia.
§ 1000.172 What steps does the bureau take after a letter of interest is submitted by a Tribe/Consortium?
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(a) Within 15 calendar days of receipt of a Tribe's/Consortium's letter of interest, the bureau will notify the Tribe/Consortium about who will be designated as the bureau's representative to be responsible for responding to the Tribal requests for information. The bureau representative shall act in good faith in fulfilling the following responsibilities:
(1) Providing all budget and program information identified in paragraph (b) of this section, from each organizational level of the bureau(s); and
(2) Notifying any other bureau requiring notification and participation under this part.
(b) Within 30 calendar days of receipt of the Tribe's/Consortium's letter of interest:
(1) To the extent that such reasonably related information is available, the bureau representative is to provide the information listed in paragraph (c) of this section, if available and consistent with the bureau's budgetary process;
(2) A written explanation of why the information is not available or not being provided to the Tribe's/Consortium's contact and the date by which other available information will be provided; or
(3) If applicable, a written explanation of why the program is unavailable for negotiation.
(c) Information to be made available to the Tribe's/Consortium's contact, subject to the conditions of paragraph (b) of this section, includes:
(1) Information regarding program, budget, staffing, and locations of the offices administering the program and related administrative support program identified by the Tribe/Consortium,
(2) Information contained in the previous year, present year, and next year's budget proposed by the President at the national program level and the regional/local level.
(3) When appropriate, the bureau will be available to meet the Tribal representatives to explain the budget information provided.
(4) Information used to support budget allocations for the programs identified (e.g., full time equivalents and other relevant factors).
(5) Information used to operate and/or evaluate a program, such as statutory and regulatory requirements and program standards.
(6) If applicable, information regarding how a program is administered by more than one bureau, including a point of contact for information for the other bureau(s); and
(7) Other information requested by the Tribe/Consortium in its letter of interest.
(d) If a bureau fails to provide reasonably related information requested by a Tribe/Consortium, the Tribe/Consortium may appeal the failure in accordance with subpart R of this part. These requests shall be considered for a fee waiver under the Freedom of Information Act.
§ 1000.173 How does a newly selected Tribe/Consortium initiate the negotiation phase?
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(a) To initiate the negotiation phase, an authorized official of the newly selected Tribe/Consortium submits a written request to negotiate an AFA as indicated in the following table:
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the Tribe/Consortium and the request
For a . . . should submit the should identify . .
request to . . . .
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(1) BIA program............. the Director, OSG... the lead
negotiator(s) for
the Tribe/
Consortium.
(2) Non-BIA program......... the bureau the lead
representative negotiator(s) for
designated to the Tribe/
respond to the Consortium and the
Tribe's/ specific program(s)
Consortium's that the Tribe/
request for Consortium seeks to
information. negotiate.
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(b) The Tribal/Consortium official must submit the information required by paragraph (a) of this section by the deadline shown in the following table:
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Type of tribe/ Submission
Type of program consortium deadline
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(1) BIA....................... Fiscal year........... April 1.
(2) BIA....................... Calendar year......... May 1.
(3) Non-BIA................... Fiscal year or May 1*.
calendar year.
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* The request may be submitted later than this date where the bureau and
the Tribe/Consortium agree that administration for a partial year
funding agreement is feasible.
§ 1000.174 How and when does the bureau respond to a request to negotiate?
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(a) Within 15 days of receiving a Tribe's/Consortium's request to negotiate, the bureau will take the steps in this section. If more than one bureau is involved, a lead bureau must be designated to conduct negotiations.
(b) If the program is contained on the section 405(c) list, the bureau will identify the lead negotiator(s) and awarding official(s) for executing the AFA.
(c) If the program is potentially of a special geographic, cultural, or historic significance to a Tribe/Consortium, the bureau will schedule a pre-negotiation meeting with the Tribe/Consortium as soon as possible. The purpose of the meeting is to assist the bureau in determining if the program is available for negotiation.
(d) Within 10 days after convening a meeting under paragraph (c) of this section:
(1) If the program is available for negotiation, the bureau will identify the lead negotiator(s) and awarding official(s); or
(2) If the program is unavailable for negotiation, the bureau will give to the Tribe/Consortium a written explanation of why the program is unavailable for negotiation.
§ 1000.175 What is the process for conducting the negotiation phase?
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(a) Within 30 days of receiving a written request to negotiate, the bureau and the Tribe/Consortium will agree to a date to conduct an initial negotiation meeting. Subsequent meetings will be held with reasonable frequency at reasonable times.
(b) Tribe/Consortium and bureau lead negotiators must:
(1) Be authorized to negotiate on behalf of their government; and
(2) Involve all necessary persons in the negotiation process.
(c) Once negotiations have been successfully completed, the bureau and Tribe/Consortium will prepare and either execute or disapprove an AFA within 30 days or by a mutually agreed upon date.
§ 1000.176 What issues must the bureau and the Tribe/Consortium address at negotiation meetings?
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The negotiation meetings referred to in §1000.175 must address at a minimum the following:
(a) The specific Tribe/Consortium proposal(s) and intentions;
(b) Legal or program issues that the bureau or the Tribe/Consortium identify as concerns;
(c) Options for negotiating programs and related budget amounts, including mutually agreeable options for developing alternative formats for presenting budget information to the Tribe/Consortium;
(d) Dates for conducting and concluding negotiations;
(e) Protocols for conducting negotiations;
(f) Responsibility for preparation of a written summary of the discussions; and
(g) Who will prepare an initial draft of the AFA.
§ 1000.177 What happens when the AFA is signed?
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(a) After all parties have signed the AFA, a copy is sent to the Tribe/Consortium.
(b) The Secretary forwards copies of the AFA to:
(1) The House Subcommittee on Native Americans and Insular Affairs; and
(2) The Senate Committee on Indian Affairs;
(c) For BIA programs, the AFA is also forwarded to each Indian Tribe/Consortium served by the BIA Agency that serves any Tribe/Consortium that is a party to the AFA.
§ 1000.178 When does the AFA become effective?
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The effective date is not earlier than 90 days after the AFA is submitted to the Congressional committees under §1000.177(b).
§ 1000.179 What happens if the Tribe/Consortium and bureau negotiators fail to reach an agreement?
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(a) If the Tribe/Consortium and bureau representatives do not reach agreement during the negotiation phase by the mutually agreed to date for completing negotiations, the Tribe/Consortium and the bureau may each make a last and best offer to the other party.
(b) If a last and best offer is not accepted within 15 days, the bureau will provide a written explanation to the Tribe/Consortium explaining its reasons for not entering into an AFA for the requested program, together with the applicable statement prescribed in subpart R of this part, concerning appeal or review rights.
(c) The Tribe/Consortium has 30 days from receipt of the bureau's written explanation to file an appeal. Appeals are handled in accordance with subpart R of this part.
Negotiation Process for Successor Annual Funding Agreements
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§ 1000.180 What is a successor AFA?
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A successor AFA is a funding agreement negotiated after a Tribe's/Consortium's initial agreement with a bureau for continuing to perform a particular program. The parties to the AFA should generally use the terms of the existing AFA to expedite and simplify the exchange of information and the negotiation process.
§ 1000.181 How does the Tribe/Consortium initiate the negotiation of a successor AFA?
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Although a written request is desirable to document the precise request and date of the request, a written request is not mandatory. If either party anticipates a significant change in an existing program in the AFA, it should notify the other party of the change at the earliest possible date so that the other party may plan accordingly.
§ 1000.182 What is the process for negotiating a successor AFA?
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The Tribe/Consortium and the bureau use the procedures in §§1000.173—1000.179.
Subpart H—Limitation and/or Reduction of BIA Services, Contracts, and Funds
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§ 1000.190 What is the purpose of this subpart?
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This subpart prescribes the process that the Secretary uses to determine whether a BIA self-governance funding agreement causes a limitation or reduction in the services, contracts, or funds that any other Tribe/Consortium or Tribal organization is eligible to receive under self-determination contracts, other self-governance compacts, or direct services from BIA. This type of limitation is prohibited by section 406(a) of Pub. L. 93–638. For the purposes of this subpart, Tribal organization means an organization eligible to receive services, contracts, or funds under section 102 of Pub. L. 93–638.
§ 1000.191 To whom does this subpart apply?
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Participating and non-participating Tribes/Consortia and Tribal organizations are subject to this subpart. It does not apply to the general public and non-Indians.
§ 1000.192 What services, contracts, or funds are protected under section 406(a)?
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Section 406(a) protects against the actual reduction or limitations of services, contracts, or funds.
§ 1000.193 Who may raise the issue of limitation or reduction of services, contracts, or funding?
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BIA or any affected Tribe/Consortium or Tribal organization may raise the issue that a BIA self-governance AFA limits or reduces particular services, contracts, or funding for which it is eligible.
§ 1000.194 When must BIA raise the issue of limitation or reduction of services, contracts, or funding?
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(a) From the beginning of the negotiation period until the end of the first year of implementation of an AFA, BIA may raise the issue of limitation or reduction of services, contracts, or funding. If BIA and a participating Tribe/Consortium disagree over the residual information, a participating Tribe/Consortium may ask the Deputy Commissioner—Indian Affairs to reconsider residual levels for particular programs. [See §1000.95(d)]
(b) After the AFA is signed, BIA must raise the issue of any undetermined funding amounts within 30 days after the final funding level is determined. BIA may not raise this issue after this period has elapsed.
§ 1000.195 When must an affected Tribe/Consortium or Tribal organization raise the issue of a limitation or reduction of services, contracts, or funding for which it is eligible?
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(a) A Tribe/Consortium or Tribal organization may raise the issue of limitation or reduction of services, contracts, or funding for which it is eligible during:
(1) Region-wide Tribal shares meetings occurring before the first year of implementation of an AFA;
(2) Within the 90-day review period before the effective date of the AFA; and
(3) The first year of implementation of an AFA.
(b) Any Tribe/Consortium or Tribal organization claiming a limitation or reduction of contracts, services, or funding for which it is eligible must notify, in writing, both the Department and negotiating Tribe/Consortium. Claims may only be filed within the periods specified in paragraph (a) of this section.
§ 1000.196 What must be included in a finding by BIA or in a claim by an affected Tribe/Consortium or Tribal organization regarding the issue of a limitation or reduction of services?
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An affected Tribe/Consortium must include in its claim a written explanation identifying the alleged limitation or reduction of services, contracts, or funding for which it is eligible. A finding by BIA must likewise identify the limitation or reduction. (continued)