of the written application to recontract to each tribal governing body 75 days before the original contract expires. The tribal organization shall promptly notify the Bureau office, where the application is to be submitted under 401.21, in writing of the date the tribal governing bodies received copies of the application. If, within 45 days after receiving copies of the application, none of the tribal governing bodies provide the appropriate Bureau office with a formal resolution objecting to the application to recontract, the absence of receipt of such resolutions shall constitute the tribe's request to recontract. If one or more of the tribal governing bodies involved object to the contract, the contract will not be made until all of the tribal governing bodies have approved the request and the matter is resolved.

§ 401.21 Submission of requests to con

tract.

Tribal requests to contract and contract applications shall be submitted to the Bureau, as follows:

(a) To the Superintendent when the tribe(s) or Indians to be served by the contract are within the jurisdiction of that Agency office.

(b) To the Area Director when the tribe(s) or Indians to be served by the contract are within the jurisdiction of more than one Agency office in the same Bureau Area.

(c) To the Commissioner when the tribe(s) or Indians to be served by the contract are within the jurisdiction of more than one Area Office.

§ 401.22 Review and action by Superintendent.

The Superintendent shall take the following actions after receiving the contract application:

(a) Within five days, the Superintendent shall notify the applicant and the tribal governing body, if different from the applicant, that the application was received.

(b) Within 15 days, the Superintendent shall review the application for completeness and request any additional information from the applicant or from the requesting tribe that is needed to satisfy the requirements of § 401.14.

(c) Within 30 days, the Superintendent shall make recommendations in writing to the applicant and the tribal governing body which he feels are needed to avoid possible declination and shall indicate the technical assistance available from the Agency Office to correct any deficiences.

(d) The Superintendent shall provide the technical assistance offered in the written recommendation as requested by the tribal organization and tribal governing body.

(e) The Superintendent shall forward the application to the Area Office with his comments and recommendations as follows:

(1) Within 30 days after receiving the application when the Superintendent has no recommendations to make to the applicant.

PROPOSED RULES

(2) Within 10 days after making written recommendations to the applicant when the applicant does not respond or refuses the technical assistance offered § 401.23 Review and action by Area Di

rector.

Upon receipt of the contract application, the Area Director will review the application and the Superintendent's recommendations or, where the application was submitted directly to the Area Director as provided for in § 401.21, obtain the Superintendents' recomappropriate mendations and then proceed as follows: (a) Notify the applicant and the tribal governing body, if different from the applicant, that the application was received, within five days of its receipt.

(b) Within 15 days, review the contract application, the recommendations of the Superintendent, any responses from the contract applicant or the tribal governing body and the criteria for declination set forth in § 401.15 to determine if there are any declination issues that must be addressed, and at the completion of the review, take one of the following actions as appropriate:

(1) If there are no declination issues, the Area Director will notify the contract applicant in writing of this fact, and offer to enter into contract negotiations within 30 days of advising the applicant or at the applicant's convenience, and furnish a copy of any documents to be used by the Bureau during negotiations.

(2) If it is felt that there are declination issues that must be resolved, the Area Director will notify the applicant and/or tribal governing body of this fact in writing. The notice shall include a list of the declination issues identified by the Area Director, the reason(s) for such identification, a copy of any documents used in arriving at the issues, recommendations for resolving the issues and the technical assistance available for this purpose. The notice shall also request a meeting with the applicant and/ or tribal governing body to discuss the issues and seek agreement on a course of action to resolve them. The meeting shall be held within 15 days of the applicant's and/or tribal governing body's receipt of the notice or at a time mutually agreed to by the parties.

(1) If the applicant accepts the technical assistance, it shall be provided in accordance with the applicant's request. At such time as the issues are thus resolved, the Area Director will so advise the applicant and offer to enter into negotiations within 15 days of resolution or at the applicant's convenience.

(ii) If the applicant declines the Area Director's offer of technical assistance and the matter is not otherwise resolved, the Area Director shall proceed in accordance with § 401.24.

(ii) If the applicant does not respond within 30 days of receipt of the Area Director's recommendations and offer of assistance, and does not request additional time in which to respond, the Area Director shall proceed in accordance with 401.24.

(a) If the Area Director, the applicant and the tribal governing body fail to resolve the declination issues, the Area Director shall prepare a written recommendation to decline.

(b) This recommendation shall contain, at a minimum, the following information:

(1) Identification of specific objections, categorized under one or more of the declination factors set forth in § 401.15.

(2) Specific recommendations on actions required by the applicant or tribe to overcome objections.

(3) Description of the nature, scope, and source of the technical assistance which has been provided or offered by the Bureau to assist the tribal organization to overcome declination objections.

(4) Copies of all correspondence between the Agency, Area and applicant and/or tribe, and all responses thereto, including any reports of meetings between the parties relative to the application.

(5) Copy of original application.

(c) The Area Director shall send the written recommendation to the Commissioner within 15 days after the time periods provided in § 401.23(b) (2) (iii) and (iv). At the same time, he shall send a copy of the written recommendation to the tribal organization and tribal governing body.

(d) Within 15 days of receipt of the Area Director's recommendation to decline, the applicant may notify the Commissioner and the Area Director that it accepts the offer of technical assistance described in paragraph (b) (3) of this section, thereby staying the declination process. To reconstitute the application process the applicant must notify the Area Director, at which time the Area Director shall proceed in accordance with § 401.23.

§ 401.25

Review and action by Commis

sioner. (a) Within five days after receiving a contract application submitted directly under § 401.21 or a contract application and the Area Director's recommendations to decline, the Commissioner shall notify the applicant and the tribal governing body (s) in writing of the receipt of the application.

(b) Within 15 days after an application is received by the Commissioner under § 401.21, the Commissioner shall obtain the written recommendations of the appropriate Area Directors. The Area Directors shall send copies of their recommendations to the applicant and the tribal governing bodies involved.

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(c) Within 15 days after receiving the Area Directors' recommendations, the Commissioner shall review the application, the Area Directors' recommendations, and the declination criteria in § 401.15.

(d) Within 15 days after receiving the Area Directors' recommendations, the Commissioner shall notify the applicant, the appropriate tribal governing bodies, and the Area Director(s) of one of the following:

(1) When the Commissioner does not accept the Area Director's recommendations to decline, notice shall be given that the recommendations are not accepted and that the Bureau shall enter into a contract with the applicant.

(2) When the Commissioner accepts the Area Directors' recommendations and believes that the Bureau should not contract as requested, notice shall be given that the Commissioner plans to issue a declination notice and that the applicant has the following rights:

(i) The applicant may submit a written rebuttal to the Commissioner's plan to issue a declination notice.

(ii) The applicant may request to appear before the Commissioner or his representative under paragraph (e) of this

section.

(iii) The applicant must use these rights within 30 days after receiving the notice required in paragraph (d) (2) of this section.

(e) If the applicant requests to appear before the Commissioner under paragraph (d) (2) (ii) of this section, the Commissioner shall:

(1) Select a site for a meeting between the applicant and the Commissioner or his representative from the Bureau's headquarters.

(2) Authorize payment of transporta tion costs and per diem under terms he may make to allow adequate representation of the applicant and the appropriate tribe(s), if the meeting is more than 50 miles from the office of the applicant.

(3) Notify the applicant and the appropriate tribe(s) of the time, location and other terms of the meetings.

(4) Hold the meeting within 30 days of the request, unless the applicant requests a later date.

(f) (1) The Commissioner shall issue a declination notice as follows:

(1) Within 15 days after receiving the applicant's rebuttal submitted under paragraph (d) (2) (1) of this section or after the conclusion of the meeting under paragraph (e) of this section.

(ii) Within 45 days after notifying the applicant under paragraph (d) (2) of this section when the applicant has not used the rights under paragraph (d) (2) of this section.

(2) The declination notice shall be in writing and shall contain:

(1) Identification of specific objectives, categorized under one or more of the declination criteria set forth in § 401.15. (1) Specific recommendations on actions required by the applicant or tribe(s) to overcome objections.

(iii) Description of the nature, scope, and source of the technical assistance

PROPOSED RULES

which has been provided to overcome declination objections.

(iv) Copies of all correspondence between the Bureau, applicant and/or tribe (s), and all responses thereto, including any reports or meetings between the parties relative to the application.

(v) Copy of original application. (vi) The appeal rights of the applicant and/or the tribal governing body under § 401.83.

§ 401.26 Appeals of Commissioner's decision to decline.

The tribal organization and/or the tribal governing body shall have 60 days to appeal to the Board of Indian Appeals, Department of Interior, Washington, D.C., the decision by the Commissioner to decline to contract. The appeal shall be made as provided in § 401.83.

§ 401.27 Failure of Bureau Agency or Area Office to act.

Whenever a Bureau Agency or Area Office official fails to take action on a limits established in this Part, the tribal contract application within the time organization that submitted the application, may, at its option, request action by the next higher Bureau official. In such cases, the official that failed to act shall immediately forward the application and all material pertinent thereto to the official to whom the request for action was made.

Subpart C-Additional Requirements for Trust Responsibilities

(d) (1) Real estate: maintenance of land records; preparation of abstracts of title, research programs to determine heirship and inventory of estates, collection of technical data and studies to be used in determinations of tribal claims to real property, collection of data leading to ascertainment of surface and subsurface resources, administration of leases.

(2) Advice and technical assistance provided individual landowners in connection with lease negotiations initially will be made concurrently by a contractor and an appropriately designated Federal official. Depending upon Indian community reaction to tribal involvement in this area, contracts subsequently may be modified to increase tribal participation progressively.

(e) Forestry: forest management and planning, including the making of inventories, management plans and maintenance, tribal or individual Indian consultation services, administration of timber sales and Indian permit cutting, projects, protection of the forest against conduct of timber stand improvement wildlife, trespass, disease, or insect infestation, and participation in cooperative programs with other Federal, State, or tribal organizations similar to programs of the Bureau. Activities which already are provided Indian forests from non-Bureau sources, as part of the management of a forested area larger than the reservation, are not contractable under provisions of this Part.

(f) Range management: development of contract stipulations for agricultural leases/permits (land use stipulations or conservation standards necessary to define each use shall be incorporated in and made a part of such lease or permit); supervision of compliance, fee collection, watershed management, game and fish management, outdoor recreation, wildfire prevention and control.

(g) Wildlife and parks: conservation, use, and development of wildlife (including fisheries resources), and preservation of natural beauty, historical sites, and archeological remains.

(h) Water inventories for protection of water rights.

(i) Hunting and fishing: programs to implement court decisions affecting onand off-reservation hunting and fishing rights and programs to provide biological data supporting litigation concerning hunting and fishing issues.

§ 401.33 Content of application.

In addition to the information required in 401.14, the following additional information shall be included in the contract application when a trust resource or responsibility is involved:

(a) A statement of the impact of proposed activity on trust resources related to:

(1) Maintenance of inventory levels and values to tribes and to individuals; and,

(2) Income to individuals and tribe. The statement must also demonstrate a

thorough assessment of the trust resources issues, positive steps to protect the trust resources, provisions that limit

or eliminate potential for conflicts-ofinterest, and that no delegation of trust responsibility is requested.

(b) A statement of the special skills and qualifications required of personnel attached to program activity impacting on trust resources and trust responsibility. Criteria for declining to con§ 401.34

tract.

(a) If a contract application includes a project or function which is related to the Bureau's performance of a trust responsibility in the area of natural resources as given in § 401.32, the Commissioner shall decline to contract if he finds that:

(1) The contract application provides for or would necessarily require the delegation to the tribal organization of a trust responsibility vested by law in the Secretary or the Commissioner.

(2) The contract application provides for the termination of a trust responsibility.

(b) The contract application provides for completion or maintenance of the project or function to a lesser standard than under Bureau administration. However, a tribal proposal to raise performance standards shall not be used as a reason for declination.

(c) The proposed activity requires special skills for its performance and the proposed key staff does not meet Civil Service Commission or excepted qualification standards, other accepted professional standards appropriate to the discipline involved, or are not otherwise recognized as technically qualified.

Subpart D-General Contract
Requirements

§ 401.41 Advance payments.

(a) At the request of a tribal contractor, the Bureau contracting officer shall make advance payments under contracts as provided in this section. The requirements given in this section and in Chapter 2000 of the Treasury Fiscal Requirements Manual apply to making the advance payments.

(b) Any request for advance payment by a tribal contractor shall specify the amount(s) required and the dates such advance(s) will be required and shall be supported by a schedule of estimated expenditures.

(c) An initial advance will be limited to the amount of estimated expenditures for a period of time required to effect payment, based on experience in the locality. The initial advance may be made in amounts and at times determined suitable to satisfy the minimum essential needs of the contractor.

(d) Later advances may be made at times and in amounts determined necessary to insure availability of funds for timely payment of the tribal contractor's obligations and to minimize the time between withdrawal from the Treasury and expenditure. Requests for advances after an initial advance shall be accompanied and supported by a report of expenditures to date and the amount of funds on hand.

(1) When the annual advance to a tribal contractor is expected to exceed $250,000 in the aggregate and the contract term is for at least one year, the letter-of-credit method normally shall be used. The requirements contained in Chapter 2000 of the Treasury Fiscal Requirements Manual shall apply to making these advance payments.

(2) Except as provided in paragraph (e) (1) of this section, advance payments shall be made by check made payable to the tribal contractor and handled as follows:

(i) Advance payments may be made directly to the tribal contractor when the contractor is a tribal governing body, a non-profit Indian organization serving as a governmental instrumentality of an Indian tribe or an intertribal council. However, when the contractor is not one of the above, the advance payment may be made directly if all of the following conditions exist:

(A) The advance payment does not exceed $2500.

(B) It is the only advance payment involved in the contract.

(C) The performance time is less than 90 days.

(D) The advance payment does not exceed 85% of the amount of the contract.

(ii) Checks for advance payments which cannot be made directly to the tribal contractor, as given in paragraph (e) (2) (i) of this section, shall be marked for deposit in a special bank account established for the contract. No part of the funds deposited in the special bank account shall be mingled with other funds of the tribal contractor before the funds are withdrawn to meet obligations under the contract.

(f) Tribal contractors shall not be held accountable for interest earned on funds advanced pending disbursement. However, bank balances must be maintained at the minimum level consistent with program requirements. Requests for advances shall be reviewed to insure that excess funds are not advanced.

(g) Sub-advances may be made when predetermined as a part of contracted programs or when specifically authorized in writing by the contracting officer. Sub-advances will not be made to individuals except for approved travel. In such cases, the sub-advances shall not exceed the minimum required for one trip and shall be settled by voucher or repayment within 30 days.

§ 401.42 Use of Government property.

(a) In carrying out a contract made under this Part, the Superintendent, Area Director or Commissioner shall, wherever possible, permit a tribal contractor to use existing buildings, facilities, and related equipment and other personal property owned by the Bureau within his jurisdiction. To the extent possible, arrangements on the use of Bureau property shall be provided for in the contract agreement. In determining whether real or personal property can

whether it can provide comparable services for any of the uncontracted part(s) of the program.

(b) Requests for the use of Bureau property which arise after signing of the contract shall be submitted to the relevant Bureau official by the tribal organization. Such requests should be granted and the contract appropriately amended unless such use will seriously interfere with the administration of existing Bureau programs. The property must conform to the minimum standards established by the Occupational Safety and Health Act of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651).

§ 401.43 Wage and labor standards.

(a) All laborers and mechanics employed by tribal contractors or subcontractors in the construction, alteration, or repair of buildings or other facilities in connection with contracts under this Part shall be paid wages not less than those on similar construction in the locality as determined by the Secretary of Labor in accordance with the DavisBacon Act of March 3, 1931 (46 Stat. 1494), as amended. However, this requirement doees not apply where the tribal contractor is the recognized governing body of the tribe or a non-profit Indian organization serving as a governmental instrumentality of an Indian tribe and the construction, alteration, or repair work is being performed by the tribal organization or the tribe with its own employees.

§ 401.44 Indian preference.

(a) Any contract made by the Bureau with a tribal organization shall provide that the tribal contractor shall, to the greatest extent feasible, give preference in and opportunities for employment and training to Indians.

(b) Any contract made by the Bureau with a tribal organization shall provide that the tribal contractor shall, to the greatest extent feasible, give preference in the award of subcontract to Indian organizations and to Indian-owned economic enterprises.

(c) All subcontractors employed by the tribal organization shall, to the extent possible, give preference to Indians for employment and training and shall be required to include in their bid submission a plan to achieve maximum use of Indian personnel.

§ 401.45 Liability and motor vehicle in

surance.

(a) Tribal organizations shall obtain public liability and motor vehicle insurance under contracts entered with the Bureau under this Part. However, where the contracting officer determines that the risk of death, personal injury or property damage under the contract is small and that the time and cost of procuring the insurance is great in relation to the risk, the contract may be exempted from this requirement.

(b) Notwithstanding paragraph (a) of this section, any contract which requires or authorizes, either expressly or by im

A tribal contractor will be required to develop and maintain a recordkeeping system which will:

(a) Fully reflect all financial transactions involving the receipt and expenditure of funds provided under the contract in a manner which will provide accurate, current and complete disclosure of financial status; correlation with budget or allowable cost schedules; and clear audit facilitating data.

(b) Reflect the amounts and sources of funds other than contract funds which may be included in the operation of a program.

(c) Provide for the creation, maintenance and safeguarding of records of lasting value, including those involving individual rights, such as permanent student records and transcripts.

(d) Provide for orderly retirement of permanent records in accordance with General Records Schedules and the Bureau Records Control Schedule.

§ 401.47 Records-access to and retention.

(a) During the term of a contract under this Part and for three years after the project or undertaking is completed, the Comptroller General, the Secretary and the Commissioner or any of their ,duly authorized representatives shall have access, for audit and examination purposes, to any of the tribal contractor's books, documents, papers, and records which, in their opinion, may be related or pertinent to the contract or any subcontract, with the following exceptions:

(1) The records shall be retained beyond the three year period if audit findings have not been resolved.

(2) When records are transferred to or maintained by the Bureau, the three year retention requirement does not pertain to the contractor for those records.

(b) The tribal contractor will be responsible for maintaining all documents such as invoices, purchase orders, cancelled checks, balance sheets and all other records relating to financial transactions in a manner which will facilitate auditing. The tribal contractor will be responsible for maintaining files of correspondence and other documents relating to the administration of the program or project properly separated from general records or cross-referenced to general files.

§ 401.48 Freedom of information.

(a) Unless otherwise required by law, the Bureau shall not place restrictions on tribal contractors which will limit public access to the tribal contractors' records except when records must remain confidential.

(b) A tribal contractor under this Part shall make all reports and information concerning the contract, including the report required under § 401.49,

PROPOSED RULES

available to the Indian people which the contractor serves or represents. Reports and information may be withheld from disclosure only when both of the following conditions exist:

(1) The reports and information fall within one of the following exempt categories:

(1) Specifically required by statute or Executive Order to be kept secret.

(ii) Related solely to internal personnel rules and practices of the Bureau.

(iii) Commercial or financial information obtained from a person or firm on a privileged or confidential basis.

(iv) Memoranda or letters between agencies of the Federal Government which would not be available by law to a party other than the Federal Government in litigation with the Federal Government.

(v) Personnel, medical, and similar files where disclosure would be a clearly unwarranted invasion of personal privacy.

(vi) Investigatory records compiled for law enforcement purposes when production of the records would:

(A) Interfere with enforcement proceedings;

missioner. The report shall include, but not be limited to, an accounting of the amounts and purposes for which the contract funds were expended, the tribe's evaluation of the contract performance using the criteria submitted in the contract application, and information on the conduct of the program or services involved. The report shall include any other information requested by the Commissioner and may be submitted as follows:

(1) When the contract is with the governing body of an Indian tribe, the tribe shall submit the report to the Area Director.

(2) When the contract is with a tribal organization other than the governing body of the tribe, the tribe has the option of having the tribal organization prepare the report and submit it to the tribe for review and approval before the tribe submits it to the Area Director or Commissioner as appropriate.

(3) When the contract benefits more than one tribe, the tribal organization shall prepare and submit the report to each of the tribes benefiting under the contract. Each tribe shall endorse the report before submitting it to the Area

(C) Be an unwarranted invasion of personal privacy;

(D) Disclose the identity of a confidential source and confidential information furnished only by the confidential source;

(E) Disclose investigative techniques and procedures; or

(F) Endanger the life or physical safety of law enforcement personnel.

(vii) Contained in or related to examination, operating, or condition reports prepared for the use of an agency of the Federal Government responsible for the regulation or supervision of financial institutions.

(viii) Geological and geophysical information and data concerning wells.

(2) Disclosure is prohibited by statute or Executive Order or sound grounds exist for using the exemption given in paragraph (b)(1) of this section.

(c) A request to inspect or copy reports and information shall be in writing and must reasonably describe the reports and information requested. The request may be delivered or mailed to the tribal contractor. Within ten working days after receiving the request, the tribal contractor shall determine whether to grant or deny the request. The requester shall be notified immediately of the determination.

(d) The time limit for making a determination may be extended up to an additional ten working days for good reason. The requester shall be notified in writing of the extension, reasons for the extension, and date on which the determination is expected to be made. § 401.49 Annual reporting.

(a) For each fiscal year during which a tribal organization receives or expends funds pursuant to a contract under this Part, the tribe which requested the contract must submit a report to the Com

(b) The annual report shall be submitted to the Area Director or Commissioner as appropriate within 90 days after the end of the fiscal year in which the contract was performed. However, upon receipt of a written request, the period for submitting the report may be extended by the Area Director or the Commissioner if there is just cause for such extension.

(c) In addition to the yearly reporting requirement given in paragraphs (a) and (b) of this section, the contract shall provide that the tribal contractor will make available monthly, to members of the tribe(s) affected, an accouting of the amounts and the purposes for which the contract funds were expended during the previous monthly period in the following

manner:

(1) By posting a notice containing such information on or before the tenth of each month, at a conspicuous place readily accessible to members of the tribe(s) affected; or,

(2) By such other means as is mutually agreed to by the tribal contractor and the Bureau.

(d) In addition to the requirements contained in paragraphs (a), (b) and (c) of this section, the tribal contractor shall furnish other reports when and as required by the Area Director or Commissioner.