[Federal Register Volume 84, Number 191 (Wednesday, October 2, 2019)]
[Proposed Rules]
[Pages 52706-52733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21464]
[[Page 52705]]
Vol. 84
Wednesday,
No. 191
October 2, 2019
Part IV
Department of Transportation
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49 CFR Part 29
Tribal Transportation Self-Governance Program; Proposed Rule
Federal Register / Vol. 84 , No. 191 / Wednesday, October 2, 2019 /
Proposed Rules
[[Page 52706]]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 29
[Docket No. DOT-OST-2018-0104]
2105-AE71
Tribal Transportation Self-Governance Program
AGENCY: Office of the Secretary (OST), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The U.S. Department of Transportation (DOT or Department)
requests comments on a proposed rule to establish and implement the
Tribal Transportation Self-Governance Program (TTSGP or Program), as
authorized by Section 1121 of the Fixing America's Surface
Transportation (FAST) Act. The proposed rule was negotiated among
representatives of Tribes and the Federal Government. The Program would
provide to participating Tribes greater control and decision-making
authority over their use of certain DOT funding for which they are
eligible recipients while reducing associated administrative burdens.
These proposed regulations include eligibility criteria, describe the
contents of and process for negotiating self-governance compacts and
funding agreements with the Department, and set forth the roles,
responsibilities, and limitations on the Department and Tribes that
participate in the TTSGP.
DATES: Written comments on this notice must be received on or before
December 2, 2019. The Department will consider late comments to the
extent practicable.
ADDRESSES: You may submit comments by any of the following methods:
[ssquf] Electronically through the Federal eRulemaking Portal:
www.regulations.gov. Follow the online instructions for submitting
comments.
[ssquf] Mail: U.S. Department of Transportation, Docket Operations,
M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue
SE, Washington, DC 20590.
[ssquf] Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
[ssquf] Fax: 1-202-493-2251.
All comment submissions must include the agency name, docket name,
and docket number (DOT-OST-2018-0104) or Regulation Identifier Number
(RIN) for this rulemaking (2105- AE71). Note that all comments received
will be posted without change to www.regulations.gov, including any
personal information provided. Physical access to the Docket is
available at the Hand Delivery address noted above.
This document may be viewed online under the docket number noted
above through the Federal eRulemaking portal, www.regulations.gov. An
electronic copy of this document may also be downloaded from the Office
of the Federal Register's website, www.archives.gov/federal-register,
and the Government Publishing Office's website, www.gpo.gov/fdsys. In
accordance with 5 U.S.C. 553(c), DOT solicits comments from the public
to better inform its rulemaking process. The DOT posts these comments,
without edit, including any personal information the commenter
provides, to www.regulations.gov, as described in the system of records
notice (DOT/ALL-14 FDMS), which can be viewed at www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Mr. Ronald Jackson, Designated Federal
Officer, Office of the Secretary, (202) 366-9151 or via email at
[email protected], or Ms. Krystyna Bednarczyk, Office of the
General Counsel, (202) 366-5283, or via email at
[email protected]. Office hours are from 8 a.m. to 5 p.m.,
EST, Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
I. Background
A. Tribal Consultation
Consistent with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, the Department will hold
four public information, education, and consultation meetings during
the public comment period to explain the rule, answer questions, and
take oral testimony. While a court reporter will document these
meetings, attendees are encouraged to submit written public comments.
Three meetings will be held in or near Indian country at the locations
listed below and a fourth meeting will be held virtually. Additional
information on the meetings may be found at www.transportation.gov/self-governance. The Department will hold meetings on the following
dates and locations:
1. October 21, 2019, 8:30 a.m.-1 p.m. MDT, National Congress of
American Indians Annual Convention, Albuquerque, NM.
2. November 5, 2019, 8:30 a.m.-12 p.m. CST, United Southern and
Eastern Tribes Annual Meeting, Choctaw, MS.
3. November 19, 2019, Seattle, WA.
4. November 21, 2019, 1 p.m.-5 p.m. EST, Virtual Listening Session
by Webinar, https://connectdot.connectsolutions.com/sr500ausdot/.
Telephone: 800-683-4564; Access Code: 027757.
B. Authority for This Rulemaking
These proposed regulations would implement Section 1121 of the
Fixing America's Surface Transportation (FAST) Act, Public Law (Pub.
L.) 114-94, which was enacted on December 4, 2015, and is codified at
23 U.S.C. 207 (Section 207). This section directs the Secretary of
Transportation (Secretary) to establish and carry out the Tribal
Transportation Self-Governance Program (TTSGP). It also directed the
Department to develop regulations to implement the program pursuant to
the Negotiated Rulemaking Act, 5 U.S.C. 561 et seq. The purpose of
Section 207 is to transfer Federal funding for transportation-related
programs to participating Tribes and to facilitate Tribal control over
the delivery of transportation programs, services, functions and
activities (PSFAs). Section 207 incorporates by reference select
provisions of the Indian Self- Determination and Education Assistance
Act of 1975, Public Law 93-638, as amended (ISDEAA).\1\ Congress
enacted the ISDEAA to promote effective and meaningful participation by
Tribes in the planning, conduct, and administration of Federal programs
and services for Tribes. The ISDEAA authorizes Tribes to enter into
self-determination contracts and self-governance compacts with the
Departments of the Interior and Health and Human Services to assume
operation of direct services for Tribes and administrative functions
that support the delivery of these services by these Departments.
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\1\ Following enactment of the FAST Act, Congress transferred
the ISDEAA provisions within Title 25 of the U.S. Code. The docket
contains a table that provides the relevant provisions and their
current citations.
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Implementation of the TTSGP through this rule would maintain and
improve the Federal Government's unique and continuing relationship
with and responsibility to Tribes, without a diminishment in any way of
the trust responsibility of the United States to Indian Tribes and
individual Indians that exists under treaties, Executive orders, or
other laws and court decisions, and permit each eligible Tribe to
choose the extent of its participation in the TTSGP. It would
[[Page 52707]]
provide Tribes with control over the implementation of covered
programs, implement a process for negotiating and seeking approval of
an alternative funding mechanism by executing a compact and funding
agreement with the Department, and authorize Tribes to plan, conduct,
redesign, and administer, as appropriate and consistent with other
statutory authorities, PSFAs that meet the needs of the individual
Tribal communities. Finally, the TTSGP would provide a reduction in
administrative burdens.
Section 207 is self-effectuating. It sets forth the following:
[ssquf] To participate in the TTSGP, a Tribe's governmental body
must authorize its participation in self-governance, and the Tribe must
demonstrate, for the previous three fiscal years, financial stability
and financial management capacity, and transportation program
management capability.
[ssquf] The Department and an eligible Tribe negotiate and enter
into a written funding agreement that allows the Tribe to plan,
conduct, consolidate, and administer programs that the Department would
otherwise administer.
[ssquf] A Tribe may redesign or consolidate certain programs and
reallocate funds to best meet a Tribe's transportation needs.
[ssquf] A Tribe may suspend performance under a compact and funding
agreement in the absence of funding or, at the Tribe's election,
retrocede all or a portion of the programs that are included in a
funding agreement for any reason.
[ssquf] Funding agreements must provide for advance payments to the
participating Tribes for amounts equal to what the Tribe would be
eligible to receive under contracts and grants under Section 207.
[ssquf] Except as otherwise provided by law, the Secretary must
interpret laws and regulations in a manner that will facilitate the
inclusion of programs and funds in, and the implementation of, compacts
and funding agreements.
[ssquf] Each provision of Section 207, a compact, or a funding
agreement must be liberally construed for the benefit of Tribes
participating in self-governance and any ambiguity must be resolved in
favor of Tribes.
[ssquf] The Department has 90 days from the receipt of a request to
waive the TTSGP regulations in which to approve or deny the request or
the waiver request is deemed automatically approved.
C. Negotiated Rulemaking Process
Section 207(n) directs the Secretary to develop the regulations
consistent with the Negotiated Rulemaking Act and to adapt the
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the
United States and Indian Tribes. Section 207(n) restricts membership of
the negotiated rulemaking committee (committee) to Federal and Tribal
government representatives. The Federal Highway Administration, on
behalf of the Department, published a Federal Register notice (81 FR
24158) on April 25, 2016, announcing the intent to establish a
committee and soliciting nominations for membership on the committee.
The Department published a Federal Register notice (81 FR 49193) on
July 27, 2016, announcing the formation of the committee and
identifying 23 Tribal representatives, and 7 Federal representatives.
The first committee meeting was held in Sterling, VA on August 16-
18, 2016, during which the committee negotiated Protocols, a set of
written procedures under which the committee would operate.\2\ A total
of 11 meetings of the full committee were then held in different
locations throughout the country.\3\ The committee members and
technical advisors organized themselves into two work groups and used
the scheduled committee meetings to develop draft materials and
exchange information. The committee's meeting minutes and any materials
approved by the full committee were made a part of the official record.
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\2\ Documents adopted by the committee, including the Protocols
and meeting minutes, are available at flh.fhwa.dot.gov/programs/ttp/ttsgp/.
\3\ The December 2016 meeting did not achieve a quorum of
committee members due to inclement weather and subsequent air travel
flight cancellations. Those present participated in the established
work groups to continue to develop and review proposed regulatory
language, and the committee adopted that work product at the January
2018 meeting.
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There were no committee meetings between December 2016 and January
2018, during which time, the Office of the Secretary assumed
responsibility for the rulemaking. The Department published a Federal
Register notice (82 FR 60571) on December 21, 2017, announcing a
committee meeting in January 2018. The full committee reconvened in
Sterling, VA on January 8-12, 2018. The committee discussed a draft
document that consolidated the products of the committee work groups.
The January 2018 meeting was followed by a one-day committee meeting in
February 2018. These meetings were intended to gather information from
the full committee to clarify areas of disagreement, identify the
issues for which the committee had yet to discuss or propose text, and
ensure the Federal members clearly understood how the negotiated
provisions on which the committee previously reached consensus
reflected statutory mandates.
Next, the committee met in Washington, DC at Department
headquarters on June 18-19, 2018. In advance of the meeting, the
Department distributed a revised discussion draft, and a crosswalk
comparison of the January and June 2018 drafts, for consideration by
the full committee. The Tribal representatives attended the June 2018
committee meeting but raised several objections. They believed that the
draft being submitted to the committee had not been prepared mutually
through a negotiated process involving both the Department and Tribal
representatives. On June 19, 2018, the Tribal representatives suspended
negotiations based on their objections. As such, the committee did not
approve any meeting minutes or documents.
Concurrent with its decision to suspend negotiations, the Tribal
representatives submitted a letter \4\ to the Department proposing new
timelines to conclude negotiations, setting forth a number of requests
and conditions that must be met before the Tribal representatives would
agree to resume negotiations. In order to meet the statutory time frame
for publication of a draft and final rule, the Department declined the
request of Tribal committee representatives to delay publication of the
draft rule. However, negotiations resumed after enactment, on the
August 14, 2018 of Public Law 115-235, which extended the statutory
deadline to issue the proposed and final rule.
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\4\ The letter is available in the docket.
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At the request of the Tribal representatives, the Department
retained the services of the Federal Mediation and Conciliation Service
(FMCS), a neutral third-party, to facilitate subsequent negotiations.
The Department and the Tribal representatives subsequently worked
through their differences with the assistance of FMCS.
In October 2018, the Tribal representatives submitted to the
Department a revised discussion draft for the committee's
consideration. With assistance from FMCS, the committee resumed
negotiations in Washington, DC, between October 29-November 3, 2018. At
the recommendation of FMCS, the committee appointed a drafting
[[Page 52708]]
subcommittee, composed of nominated committee members and technical
advisors, to develop recommendations and draft regulatory text for
consideration by the committee. The committee directed the work of the
drafting subcommittee.
Between November 2018 and February 2019, the FMCS convened the
drafting subcommittee virtually and in Washington, DC to develop
recommendations and proposed regulatory text for the committee's
negotiation. After consulting with the Designated Federal Officer (DFO)
and the Tribal Co-Chairs, the FMCS convened the committee in Shawnee,
Oklahoma on March 18-19, 2019, followed by a two-day drafting
subcommittee meeting on March 20-21, 2019. During the committee
meeting, the committee reached tentative agreement on several proposed
regulatory sections and provided additional direction to the drafting
subcommittee. Finally, the committee authorized FMCS and the drafting
subcommittee to continue to negotiate additional recommendations and to
propose regulatory language addressing the remaining topics.
FMCS convened the drafting subcommittee in Washington, DC on April
1-4, April 23-26, and May 20-23, 2019, to develop the remaining
provisions of the draft rule for the committee's consideration. After
consulting with the DFO and the Tribal Co-Chairs, FMCS convened the
committee in Scottsdale, Arizona on June 3-6, 2019. At the meeting, the
drafting subcommittee presented the proposed regulatory language to the
committee, identified a limited number of non-consensus items that
remained outstanding, and provided recommendations and preferred
language addressing these areas of disagreement. The committee reached
tentative agreement on most of the rule and provided additional
direction to the drafting subcommittee on the outstanding provisions.
The committee authorized the drafting subcommittee to complete the
draft rule for the committee's review and agreement.
The drafting subcommittee met in Washington, DC on June 25-26,
2019, to complete its work. On June 26, 2019, FMCS facilitated the
subcommittee's briefing of the committee on the draft rule. The
committee reached consensus on the draft rule, including the
description of the disagreement items discussed below. The Tribal Co-
Chairs and the DFO confirmed the committee's consensus determination to
submit the draft rule to the Department.
II. Summary of the Proposed Regulations
The following summary describes the Department's proposed
regulations to implement the TTSGP. Except for four areas of
disagreement discussed below, the proposed regulations are the product
of consensus. The Department seeks public comment on the proposed rule
and the non-consensus items noted below.
Subpart A--General Provisions
This subpart would set forth the purpose and authority of these
regulations, Departmental policy, effect of these regulations on
existing Tribal rights, the Department's obligation to consult with
self-governance Tribes, and definitions. It would clarify the
prospective effect of these regulations and address the status of a
participating Tribe's existing Tribal Transportation Program (TTP)
Agreement entered into under the authority of 23 U.S.C. 202 to a
compact and funding agreement. Finally, it would clarify the effect of
23 U.S.C. 207 on requirements contained in Federal program guidelines,
manuals, or policy directives.
The definition provision would define the phrase ``programs,
services, functions, and activities'' or ``PSFAs.'' The Department does
not deliver PSFAs on behalf of Tribes; Tribes instead carry out PSFAs
using the five categories of funding eligible to be include in a
funding agreement between the Department and the Tribe.
Subpart B--Eligibility and the Negotiation Process
This subpart would identify the eligibility requirements for a
Tribe or Tribal consortium (collectively ``Tribe'') to participate in
the Program. Tribes must demonstrate financial stability and financial
management capability, and transportation program management capability
to be eligible to participate in the TTSGP. The regulation would
provide three means by which Tribes may demonstrate financial stability
and financial management capacity. First, the regulation would set
forth Section 207's conclusive evidence standard. This regulation would
also set forth a new, sufficient evidence standard for Tribes subject
to the Single Audit Act that currently conduct business with DOT
through the TTP or a DOT grant award and have no uncorrected
significant and material audit exceptions in their required single
audits. Finally, the regulation would introduce a standard for Tribes
without a mandate to comply with the Single Audit Act that currently
conduct business with DOT to request eligibility in DOT's discretion.
Tribes that would meet the sufficient evidence standard are well
placed to participate in the DOT self-governance program--they conduct
audits under the Single Audit Act, demonstrate that they do not have
material and significant audit exceptions, and demonstrate
transportation program capability. While TTP Agreements are ``in
accordance with the ISDEAA,'' Tribes are subject to Federal Highway
Administration (FHWA) oversight when they administer TTP funds. Tribes
plan, budget, prioritize, and otherwise manage their Tribal
transportation programs. The sufficient evidence standard recognizes
that Tribes that successfully work with the FHWA under TTP Agreements
and successfully manage grants for the maintenance, rehabilitation, and
construction of transportation facilities should receive the benefits
Congress intended in enacting the TTSGP.
The regulation would also provide a discretionary standard under
which Tribes that do not meet the audit threshold of the Single Audit
Act may participate in the Program if the necessary financial
assurances are in place. This option is consistent with FHWA practice
in administering the TTP provided the Tribe demonstrates financial
capacity. FHWA has long permitted Tribes not subject to the Single
Audit Act to participate, provided they undergo an independent audit
and provide evidence demonstrating no uncorrected significant and
material audit findings. DOT has determined that some smaller-funded
Tribes have worked well with DOT under TTP Agreements as well as under
the Federal Transit Administration's Tribal Transit Program. The
Department does not want to compel those Tribes to join a consortium to
be eligible for the DOT self-governance program.
The regulation also would provide for technical assistance, to the
extent the Department has the resources and expertise, to Tribes that
do not meet the criteria for financial stability and financial
management capacity due to uncorrected significant and material audit
exceptions. While the Department will not substitute its judgement for
that of another agency where the audit reveals findings related to a
non-DOT program, the Department may provide technical assistance for
audit exceptions related to DOT programs. In these instances, a Tribe
can work with the Department to correct those exceptions so that they
come into compliance and demonstrate financial stability and
[[Page 52709]]
financial management capacity under the conclusive, sufficient, or
discretionary evidence standards.
This regulation also would describe the evidence the Department
would consider in making the discretionary determination that a Tribe
has demonstrated transportation program management capability to be
eligible to participate in the Program. The Department will use these
criteria to evaluate the totality of the evidence presented in support
of the eligibility application. Finally, this subpart would describe
the negotiation process a Tribe must follow to enter into a compact and
funding agreement with the Department to participate in the TTSGP.
The United States Department of the Interior (DOI) operates the DOI
Tribal Self-Governance Program pursuant to Title IV of ISDEAA, as
amended (codified at 25 U.S.C. 5301 et seq.) and jointly administers
with FHWA the TTP. This subpart does not alter, affect, modify or
otherwise change the eligibility requirements under 25 U.S.C. 5362, or
implementing regulations at 25 CFR part 1000, for a Tribe or Tribal
consortium seeking to participate in the DOI Tribal Self-Governance
Program. Nothing in this proposed rule shall be construed to diminish
or otherwise affect the authority of the Secretary of the Interior to
carry out and administer the DOI Tribal Self-Governance Program.
Additionally, this subpart does not alter or otherwise effect existing
TTP contracting options available to Tribes with DOI.
Subpart C--Final Offer Process
This subpart would set forth the final offer process that a Tribe
may invoke during negotiation with the Department of a compact and
funding agreement. It is the Department's intent that a Tribe should
only use the final offer process when there is a negotiation impasse
and not before the parties have fully explored an area of disagreement.
This subpart also would set forth the Department's responsibilities in
processing a final offer, the grounds for rejecting the Tribe's final
offer, and the Tribe's rights to challenge an adverse decision related
to the final offer.
Subpart D--Contents of Compacts and Funding Agreements
This subpart would identify what is included in a compact, funding
agreements and amendments, the duration of such agreements, and the
rights and responsibilities of the Department and a Tribe. It would
clarify that, notwithstanding the effect of 23 U.S.C. 207(n)(4), the
compacts and funding agreements must include the requirements related
to public health and safety associated with the funding under the
relevant programs.
Subpart E--Rules and Procedures for Transfer of Funds
This subpart would set forth the five categories of Department
funds that a Tribe may elect to include in its funding agreement and,
with agreement of a State, the transfer of Federal-aid funds. This
subpart also describes responsibilities of the Department with respect
to transfer of such funds, including the time to transfer the funds,
and other issues related to the funding provided to Tribes through
their TTSGP compact and funding agreements, including the use of such
funds via the funding agreement. This subpart also would address how
these funds may be used for matching or cost participation purposes and
investment standards. Finally, while Sec. 29.401(c)(2) sets forth the
requirement from Section 207(h)(2) that the Department include in a
funding agreement amounts equal to the project-related administrative
expenses (PRAE) incurred by the Bureau of Indian Affairs (BIA) that the
Department would have withheld under the Tribal Transportation Program,
the Department notes that it does not presently provide to the BIA any
funds for PRAE.
Subpart F--Program Operations
This subpart includes information and instructions to Tribes that
participate in the TTSGP. Topics covered in this subpart include: (1)
Audits and cost principles; (2) management systems and standards; (3)
procurement management systems and standards; (4) property management
systems and standards; (5) recordkeeping requirements; (6) reporting;
(7) technical assistance; (8) prevailing wages; (9) Indian preference;
(10) environmental and cultural resource compliance; (11) Federal Tort
Claims Act applicability, and (12) waiver of Program regulations. The
technical assistance provision would clarify that the Department is
committed to carrying out the principles of self-governance while also
ensuring proper stewardship and oversight of Federal funds.
With respect to rights-of-way on Tribal lands, these regulations
would not affect the Department of the Interior's (DOI's) authority.
DOI will continue to exercise its authority relating to the
application, review, grant, administration, and oversight of rights-of-
way on Tribal lands under 25 U.S.C. 323-328 and 25 CFR part 169.
Subpart G--Withdrawal
This subpart would describe the process for a Tribe to withdraw
from a consortium's TTSGP compact or funding agreement with the
Department, including distribution of the Tribe's shares of TTSGP
funding. It would clarify that the Department is not a party to
internal consortium disputes and would provide notice to consortia that
seek to participate in the TTSGP that its agreements should adequately
address the circumstances under which a member Tribe may withdraw.
Subpart H--Retrocession
This subpart would clarify that a Tribe may voluntarily discontinue
performing a portion or all of the PSFAs under its compact and funding
agreement, and may return remaining funds to the Department in
accordance with the process set forth in this subpart. It also would
clarify the effect of a Tribe's retrocession on its eligibility, and
sets forth how funds must be distributed when the retrocession takes
effect.
Subpart I--Termination and Reassumption
This subpart would describe when and under what circumstances the
Department may terminate a Tribe's compact and funding agreement.
Subpart J--Dispute Resolution and Appeals
This subpart would set forth procedures, including various
alternative dispute resolution mechanisms, that a Tribe may use to
resolve disputes with the Department arising before or after execution
of a compact or funding agreement, as well as the appeal rights and
procedures Tribes must use to appeal the Department's decisions to
terminate a Tribe's compact and funding agreement. It would provide the
process for filing and processing appeals from adverse decisions and
the applicable burden of proof.
III. Key Areas of Disagreement
The committee did not reach consensus on four issues. These
include: (1) Whether to establish an Office of Self-Governance in the
Department and create a Self-Governance Advisory committee prior to or
simultaneous with issuance of the final rule; (2) whether the title I
ISDEAA provision, 25 U.S.C. 5325(a), relating to contract support costs
(CSCs), is in conflict with Section 207; (3) whether the title I ISDEAA
provision, 25 U.S.C. 5324(l), relating to lease payments to a Tribe for
facilities a Tribe makes
[[Page 52710]]
available to the Program, is in conflict with Section 207; and (4)
whether the Department may require in this rule that a Tribe must
exhaust administrative remedies for pre-award decisions, other than
final offers, as a pre-condition to the Tribe filing suit in Federal
court.
Each area of disagreement is presented below, in order, by subpart
and section, as appropriate. To the extent a disagreement could not be
resolved, the Department has incorporated its language proposal into
the proposed regulatory text, and the Tribal and Department views on
these areas of disagreement are set forth below. The Department
solicits comments on these areas of disagreement.
During the negotiated rulemaking, the committee addressed over two
dozen general subject matter areas: (1) Congressional and Secretarial
policy; (2) definitions; (3) technical assistance; (4) eligibility; (5)
negotiating funding agreements and compacts, including final offer; (6)
contents of compacts and funding agreements; (7) regulatory waivers and
streamlining; (8) transfer of funds; (9) requirements, limitations, and
uses of funding; (10) financial management, property management and
procurement management systems and standards, and disposition of
Federal property; (11) retrocession, termination and assumption; (12)
withdrawal from a Tribal consortium; (13) appeals and dispute
resolution, and Equal Access to Justice Act (EAJA); (14) applicability
to the Program of ISDEAA provisions; (15) CSCs; (16) facility lease
payments under 25 U.S.C. 5324(l); (17) limitations on Secretarial
action related to transfer of funds; (18) environmental review; (19)
Federal Tort Claims Act (FTCA) applicability; (20) reporting and
auditing; (21) applicability of certain Federal laws and regulations,
prevailing wages, and Indian preference; (22) respective roles and
functions to implement the Program: Office of Self-Governance,
officials, consultations, and advisory councils; (23) effect of the
Program on Department authority concerning formula and discretionary or
competitive grants and consolidation and redesign authority; (24)
effect of Program on Tribal Transportation Program (TTP) agreements,
Tribal rights and current agreements; and (25) Federal sources of
supply and excess, surplus Federal property. The committee broke each
area into questions and answers, and the vast majority of these topics
were agreed to by the Federal and Tribal representatives, and are
reflected in the NPRM.
A. Establishing an Office of Self-Governance and Establishing an
Advisory Committee
1. Tribal View
Tribal representatives believe that the Department should establish
an Office of Self-Governance in order to successfully administer the
Program. This office would act as the point of contact for Tribes to
learn about the Program and their eligibility to participate, and, over
time, to provide knowledge and expertise to the Department relating to
Indian Tribes and the TTSGP. Tribes believe this Office should be
created as soon as practicable. The regulations do contemplate a Chief
Self Governance Official who will handle all matters related to the
TTSGP. It is the Tribal representatives' view that staffing an Office
of Self-Governance and meeting with Indian Tribes, Tribal elected
officials, and Tribal transportation, transit and highway safety staff
prior to the rule taking effect would be indispensable to the Program
and the Department, and would better guarantee the Department's
successful implementation of the TTSGP. With respect to the
establishment of a TTSGP Self-Governance Advisory Committee, Tribal
representatives believe that Tribal advisory committees have proven for
years to be indispensable assets to Tribes and the Department of the
Interior's (DOI) Bureau of Indian Affairs (BIA), the Department of
Health and Human Services' (HHS) Indian Health Service (IHS), and the
Department's Federal Highway Administration. These committees provide
recommendations to the agencies and information to their respective
Tribes and regions to better administer these programs that are
critical to the Indian Tribes and their citizens. These bodies were
established by and are referenced in agency regulations. See 25 CFR
170.135-170.137 (Tribal Transportation Program Coordinating Committee),
1000.102 (DOI Self-Governance Advisory Committee), 42 CFR 137.25,
137.10, and 137.204 (IHS Self-Governance Committee). Tribal
representatives feel that the Department will lose a valuable resource
of Tribal knowledge and expertise by not establishing an advisory body
to assist the Department in implementing the Program.
2. Department View
Section 207 does not require the establishment of an Office of
Self-Governance, and it is not Federal agency practice to establish new
offices in regulation. Establishing an office within the Department is
a matter of internal organization and management. These regulations are
not the appropriate mechanism for resolving the Tribal representatives'
recommendation.
The Department does not foreclose the possibility of establishing
an Office of Self-Governance. The proposed regulations provide for a
Chief Self-Governance Official, a flexible structure that may
accommodate an office in the future. In the interim, the Deputy
Assistant Secretary for Tribal Affairs liaises with Tribal
representatives by providing information, making technical assistance
available, and coordinating policy across the Department in support of
self-governance activities.
The Department does not disagree that an advisory committee may
provide important information to the Department as it begins to carry
out the TTSGP. However, this regulation is not the appropriate
mechanism for establishing an advisory committee. In addition, the
Department may avail itself of other processes, such as the Tribal
consultation provision in Subpart A, to solicit feedback and
information from Tribes and self-governance experts as it begins the
process of implementing the TTSGP.
B. Applicability of Contract Support Costs
1. Tribal View
Tribal representatives assert that section 207(l)(8) makes 25
U.S.C. 5325(a) applicable to the Program, and is not in conflict with
Section 207 as a matter of law and policy. Section 207 requires payment
of contract support costs (CSCs), which are primarily administrative
costs, in support of funds transferred to Tribes under the TTSGP. The
ISDEAA requires CSCs to be added to program funds otherwise made
available by an agency to a Tribe ``for the reasonable costs of
activities which must be carried out by a Tribal organization as a
contractor to ensure compliance with the terms of the contract and
prudent management, but which . . . normally are not carried on by the
respective Secretary in his direct operation of the program; or . . .
are provided by the Secretary in support of the contracted program from
resources other than those under contract.'' 25 U.S.C. 5325(a)(2)(A)
and (B). The Tribal Representatives contend that the Department should
only find an ISDEAA provision ``in conflict'' with Section 207 if it
would take away from the effectiveness of the Program and the statutory
scheme established by Section 207. The Tribal position is that these
provisions apply to the Department and are not in conflict with Section
207.
[[Page 52711]]
CSCs are an eligible expense that should be included in and paid in
addition to the funds made available to a Tribe under the Program. The
absence of appropriations specifically for CSCs in annual
appropriations for the Department's formula-based and discretionary and
competitive grant programs is not a legal basis to find 25 U.S.C.
5325(a) in conflict with Section 207. Tribal representatives believe
that Section 207 requires the Department to fully fund CSCs.
Based on their experience with ISDEAA programs, Tribes believe that
Tribal success in implementing ISDEAA agreements, especially with
regard to financial management systems integrity, compliance with
annual audits, and the good stewardship of Federal funds, depends on
Federal agencies requesting the full level of Tribal need for CSC
funds. These same principles apply to the TTSGP just as they do to
health care, social services, and other programs Tribes administer
under self-governance programs.
The basis for payment of CSCs is not whether the Department
provided direct services to Tribes prior to Tribes carrying out ISDEAA
agreements. Newly recognized Indian Tribes that seek to enter into
ISDEAA contracts and funding agreements with the BIA and the IHS are
eligible for full CSCs on the same basis as other Tribes even though
the Federal agencies may never have provided direct services to these
Tribes or their members. ISDEAA's CSC requirement is based on a Tribe's
administrative needs associated with the Tribe performing PSFAs with
Federal funds, not the agency funding history or structure for
providing such funds.
Tribes carrying out self-governance programs face challenges paying
for administrative costs that come along with running programs when
CSCs are not fully funded. Administrative overhead costs are
``mandatory'' costs that Tribes must incur to properly account for and
expend Federal funds. Tribes should not have to use their formula
program funds or limited Tribal funds to cover such mandatory costs;
this reduces the funds available to operate the programs Tribes
administer under self-governance.
If the Department does not authorize the addition of CSC funds to
assist the Tribe in carrying out the Tribe's PSFAs, Tribal
representatives assert that the final rule should remain silent on the
issue so that, should CSCs be determined to apply to the Program in the
future, such funds can be added without changes to the rule.
2. Department View
The Department acknowledges that, except to the extent there are
conflicts, 25 U.S.C. 5325(a) is made applicable to the Program by
operation of Section 207(l)(8). However, pursuant to Section 207(l),
the Department has preliminarily determined that 25 U.S.C. 5325(a)
conflicts with Section 207(h), which mandates that the Secretary
provide funds to Tribes in ``an amount equal to'' (1) the sum of funds
the Tribes would receive under a funding formula or other allocation
method established under title 23 and chapter 53 of title 49 of the
U.S. Code added to ``(2) such additional amounts as the Secretary
determines equal the amounts that would have been withheld for the
costs of the Bureau of Indian Affairs for administration of the program
or project.'' \5\ The plain language of 23 U.S.C. 207(h) is a funding
limitation, because the provision uses the phrase ``an amount equal
to.'' This limitation conflicts with the mandate in 25 U.S.C.
5325(a)(1) to provide to Tribes funds in an amount ``not . . . less
than'' the agency would have provided to operate the program for the
contract period, including supportive administrative functions.'' The
limitation in 23 U.S.C. 207(h) also conflicts with the mandate in 25
U.S.C. 5325(a)(2) that requires the agency to ``add[ ]'' contract
support costs (CSCs) to the amount provided under 25 U.S.C. 5325(a)(1).
Accordingly, the Department is not obligated to pay CSCs to supplement
the five categories of funds set forth in Sec. 29.400.
---------------------------------------------------------------------------
\5\ The Department does not withhold funds for the costs of the
Bureau of Indian Affairs for project or program administration, and
therefore anticipates that this amount will always be zero.
---------------------------------------------------------------------------
Even absent a conflict, Tribes carrying out compacts and funding
agreements under the Program would not incur CSCs. CSCs ensure that a
Tribe does not experience diminution in program resources when PSFAs
are transferred from the Federal Government to Tribal operation. Tribes
carrying out their Tribal PSFAs with Department funding do not risk
diminishing their program resources due to their participation in the
Program because the Department never administered the activities to
begin with. When Tribes enter the Program, they will not assume
operation of a transportation program from the Federal Government and
will not incur additional expenses associated with activities
previously performed by the Federal Government for the benefit of
Tribes or on their behalf. In the context of DOT's formula funding for
Tribes, the funds appropriated for transfer to Tribes are either Tribal
shares or residual agency funds to perform inherent Federal functions
such as program management and oversight. The competitive and
discretionary grant programs are not programs that the Department
previously performed and therefore CSC funding is not necessary to
prevent a diminution in the competitive and discretionary grant
program. Rather, these programs contemplate that Tribes would use a
portion of the funds to cover administrative obligations, and the
funding limitation in 23 U.S.C. 207(h) requires that the funds
allocated to Tribes be used to offset any administrative obligations.
The Department administers two programs that solely benefit Tribes
and that allocate funds to Tribes under a funding formula: The Tribal
Transportation Program and the Tribal Transit Program. The Department
does not plan, conduct, and administer a program or service that the
Federal Government would have otherwise provided directly. Rather, the
Department transfers funds to Tribes and authorizes them to plan,
conduct, and administer the funds to deliver Tribal programs and
services in accordance with their needs and priorities. The
Department's administration of these programs is limited to program
management and oversight, and other inherent Federal functions. The
vast majority of other Departmental funding programs are non-formula,
competitive and discretionary grant programs that are not solely for
the benefit of Tribes and do not provide CSCs for non-Tribal
recipients. Therefore, CSCs would not apply even if 25 U.S.C. 5325(a)
were not in conflict with Section 207.
Nevertheless, Tribes may be able to recover some funding for the
indirect costs they incur while administering a grant from the
Department transferred in a funding agreement on the same basis as any
other grantee. The payment of indirect costs would be governed by the
Federal cost principles that apply to grants programs, as well as any
applicable caps on indirect cost funding. To be clear, certain costs
that Tribes seek to recover as CSCs under the TTSGP are generally
available as an eligible and allocable expense of both DOT formula
programs. Under these programs, Tribal recipients may use Federal
financial assistance for eligible planning, operating, and capital
expenses. Tribes may also use program funds for pre-award, startup,
direct, indirect, and program oversight costs. However, this does not
mean that additional funds have been authorized or appropriated for
these expenses, and
[[Page 52712]]
there are no additional funds to provide to Tribes for CSCs. Based on
the Department's preliminary determination, the funding limitation in
Section 207(h) does not allow any other outcome.
C. Facility Leases and Facility Support Costs (Sec. 29.420)
1. Tribal View
The Tribal representatives and the Department disagree on whether
the Department must enter into a lease with a Tribe when it requests to
use a facility for the administration and delivery of services under a
TTSGP funding agreement. Section 207(l)(8) incorporates by reference 25
U.S.C. 5324(l), which directs the Department to pay Tribes for the
costs of leasing a facility that a Tribe (1) owns, leases, or holds a
trust interest in; and (2) uses to carry out an ISDEAA agreement.
Tribal representatives disagree with the preliminary finding that
ISDEAA provisions regarding facility leaseback options conflict with
Section 207. Tribes assert that the lack of appropriations to the
Department to give effect to the leasing provision of 25 U.S.C. 5324(l)
of the ISDEAA is not a legal or policy basis for finding the provision
to be ``in conflict'' with the purposes of the TTSGP. The proper
question to ask is whether it advances the purposes and goals of the
TTSGP for the Department to compensate a Tribe for the Tribe's use of a
facility leased or otherwise made available by the Tribe to carry out
the PSFAs that are eligible for inclusion in a compact and funding
agreement under the Program. By covering necessary facilities costs,
lease payments would free up funding for construction, maintenance, and
other transportation projects, furthering the goals of the Program. Far
from conflicting with the TTSGP, the 25 U.S.C. 5324(l) leasing
provisions empower the Program to do more.
2. Department View
The Department acknowledges that Section 207(l)(8) incorporates by
reference 25 U.S.C. 5324(l), which directs the Department to compensate
Tribes for the use of a facility for the administration and delivery of
services under ISDEAA. However, pursuant to Section 207(l), the
Department has preliminarily determined that 25 U.S.C. 5324(l)
conflicts with the funding limitation in Section 207(h). If the
Department provided additional funding under 25 U.S.C. 5324(l), the
amount of funds would never equal the amount contemplated by Section
207(h).
Currently, the Tribal Transportation Program and the Tribal Transit
Program makes the construction or leasing of transportation facilities,
including certain facility support costs, an eligible cost of each
program's funds. Finally, the Department notes that additional funds
have not been authorized or appropriated for these expenses, and there
are no additional funds to provide to Tribes with facility lease-back
and facility support costs. This is consistent with the funding mandate
of Section 207(h).
D. Exhaustion of Administrative Remedies (Sec. 29.906)
1. Tribal View
The Tribal representatives object to the Department's inclusion of
a requirement to exhaust administrative remedies for pre-award
decisions (except appeals of the rejection of a final offer) before
initiating a civil action against the Department in the U.S. District
Courts. Tribal representatives argue that there is no statutory mandate
in Section 207 or the incorporated provisions of the ISDEAA that
requires a Tribe to exhaust administrative remedies before a Tribe may
bring suit in Federal court. Regulations of the DOI and IHS, which
implement titles I, IV and V of the ISDEAA, do not include an
exhaustion provision; Tribes assert the Program should operate in the
same way. Tribal representatives assert that Tribes may incorporate
section 110 of the ISDEAA, 25 U.S.C. 5331, in a compact or funding
agreement by operation of section 207(l) and 25 U.S.C. 5396, which
allows for a direct appeal to U.S. District Courts of an adverse agency
decision without the need to exhaust administrative remedies. Tribal
representatives assert that while some Tribes may choose to exhaust
administrative remedies before considering further recourse, the
decision of whether to pursue additional administrative remedies is an
act of self-determination and self-governance that a Tribe should make
and that the Department should defer to the principles of self-
governance on this issue.
2. Department View
In negotiating the disputes and administrative appeal provisions,
the committee requested the drafters to develop a simple, easy to
follow dispute resolution process. Accordingly, the Department proposes
a two-step process for pre-award disputes by which all initial
decisions would be made by a Chief Self-Governance Official and
appealed to a hearing official appointed by the Office of the General
Counsel. This requirement does not apply to appeals of the Department's
denial of a final offer because Section 207 provides that a Tribe may
proceed directly to U.S. District Courts, in lieu of an administrative
appeal. The Department devised an efficient, timely, and responsive
process that would ensure a proper record for certain pre-award
disputes. While Section 207 does not include an express exhaustion
requirement, the Department interprets the Administrative Procedure Act
and Supreme Court precedent to grant the Department discretion to
impose a requirement that Tribes exhaust their administrative remedies
before proceeding to the U.S. district courts. Additionally, the
Department disagrees that 25 U.S.C. 5331 provides direct review in U.S.
District Courts. Instead, 25 U.S.C. 5331 addresses the proper venue and
relief that can be granted for civil actions filed pursuant to this
section, but does not address timing of when these civil actions may be
brought.
E. Tribal Concerns Related To Transfer of Funds
While not a disagreement issue, the Tribal representatives want to
solicit public comment on three sections in Subpart E addressing the
timing for the transfer of funds. The committee agreed that the rule
would require the Department to transfer funds included in a funding
agreement within 30 days of the apportionment of funds from the Office
of Management and Budget to the Department or, for discretionary and
competitive grants, within 30 days of inclusion of the grant in a
funding agreement. See Sec. 29.403 (initial transfer), Sec. 29.404
(funds not paid as part of the initial lump sum or initial periodic
payment), and Sec. 29.404 (discretionary and competitive grants).
Tribes initially asserted that the transfers should occur within 10
days of the apportionment of funds by the Office of Management and
Budget to the Department, or 10 days after execution of the funding
agreement covering grants, unless the funding agreement provides
otherwise, in accordance with 25 U.S.C. 5388(a). The Tribal
representatives agreed to the 30-day requirements because in some
instances the Department may be able to make such transfers within 10
days if the Department's financial management systems permit, but could
not do so in all instances. Tribes urge the Department to identify any
limitations in the Department's financial management systems that would
prevent the timely transfer of funds to
[[Page 52713]]
Tribes under the Program. The success of a Tribe's transportation
project or program may depend on the expeditious transfer of Federal
funds because many Tribes operate with very short construction seasons.
It is the Tribes' view that the Department should improve its transfer
process so that the vast majority of fund transfers occur within 10
days.
IV. Regulatory Analyses and Notices
A. Executive Order 12866, Regulatory Planning and Review, Executive
Order 13563, Improving Regulation and Regulatory Review, Executive
Order 13771, Reducing Regulation and Controlling Regulatory Costs, and
USDOT Regulatory Policies and Procedures
The DOT, in consultation with the Office of Management and Budget,
has determined that this action does not constitute a significant
regulatory action within the meaning of Executive Order (E.O.) 12866 or
within the meaning of DOT regulatory policies and procedures. In
addition, this action complies with the principles of E.O. 13563. After
evaluating the costs and benefits of these proposed amendments, DOT
anticipates that the economic impact of this rulemaking would be
minimal. Tribes would not be required to participate in the TTSGP, so
any costs associated with implementation would be voluntarily assumed
by the Tribes. The proposed rule would enable Indian Tribes to exert
greater control and decision-making authority over the administration
of funds awarded under other statutorily authorized formula fund and
competitive or discretionary grant programs eligible for inclusion in
the program. The rule describes the process and procedures for
negotiating compacts and annual funding agreements with Tribes and
intertribal consortia. The rule would not impose a compliance burden on
the economy generally, does not introduce any new funds into the stream
of commerce, and does not adversely affect in any material way the
economy, productivity, competition, jobs, the environment, public
health or safety. Finally, this proposed rule is not expected to be an
E.O. 13771 regulatory action because this proposed rule is not
significant under E.O. 12866. For additional information about the
costs and benefits of this rulemaking, please see the Regulatory Impact
Analysis, which is available in the Docket.
B. Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354;
5 U.S.C. 60l-612), DOT has evaluated the effects of this proposed rule
on small entities, such as local governments and businesses. Based on
the evaluation, the Department anticipates that this action would not
have a significant economic impact on small entities. The Department
only foresees this rule having an impact on the Federal Government and
Indian Tribes, which are not considered to be small entities for
purposes of this Act. The DOT certifies that this document will not
have a significant economic effect on a substantial number of small
entities.
C. Unfunded Mandates Reform Act
The DOT has determined that this proposed rule would not impose
unfunded mandates as defined by the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The actions
proposed in this NPRM would not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $151 million or more in any one year (when adjusted for
inflation) in 2012 dollars. In addition, the definition of ``Federal
mandate'' in the Unfunded Mandates Reform Act excludes financial
assistance of the type in which State, local, or Tribal governments
have the authority to adjust their participation in the program in
accordance with changes made in the program by the Federal Government.
The funding programs subject to this rulemaking permit this type of
flexibility.
D. Executive Order 12630, Taking of Private Property
The DOT has analyzed this NPRM under E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights. The DOT does not anticipate that this proposed action would
affect taking of private property interests or otherwise have taking
implications under E.O. 12630.
E. Executive Order 13132, Federalism Assessment
The DOT has analyzed this NPRM in accordance with the principles
and criteria contained in E.O. 13132. This NPRM would impact Tribal
governments, but there is no federalism impact on the relationship or
balance of power between the United States and Indian Tribes affected
by this action. The DOT has determined that this action would not have
sufficient federalism implications to warrant the preparation of a
federalism assessment. The DOT has also determined that this action
would not preempt any State law or regulation, or affect the States'
ability to discharge traditional State governmental functions.
F. Executive Order 12988, Civil Justice Reform
This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988 to minimize litigation, eliminate ambiguity, and reduce
burden.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The DOT has determined that
the proposed rule does not contain collection of information
requirements for the purposes of the PRA.
H. National Environmental Policy Act
The Department has analyzed the environmental impacts of this final
rule pursuant to the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321, et seq.) and has determined preliminarily that it is
categorically excluded pursuant to DOT Order 5610.1C, Procedures for
Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979).
Categorical exclusions are actions identified in an agency's NEPA
implementing procedures that do not normally have a significant impact
on the environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS). See 40 CFR
1508.4. In analyzing the applicability of a categorical exclusion, the
agency must also consider whether extraordinary circumstances are
present that would warrant the preparation of an EA or EIS. Id. The
purpose of this rulemaking is to establish a departmental Tribal
transportation self-governmental program. The Department does not
anticipate any environmental impacts, and there are no extraordinary
circumstances present in connection with this rulemaking, but the
Department invites comment on this determination.
I. Executive Order 13175, Tribal Consultation
The Department has analyzed this NPRM under E.O. 13175, and has
determined that because the NPRM would uniquely affect Tribal
governments, it would follow departmental and Administration procedures
in consulting with Tribal governments on the NPRM. We have
[[Page 52714]]
evaluated this action for potential effects on federally recognized
Indian Tribes and have determined that the NPRM would not impose
substantial direct compliance costs on Indian Tribal governments, would
not preempt Tribal law, would not have any potentially adverse effects,
economic or otherwise, on the viability of Indian Tribes. Rather, this
action will reduce the administrative burden of Indian Tribes
participating in this program. Therefore, a Tribal summary impact
statement is not required.
The Department initiated a negotiated rulemaking process, with both
Tribal and Federal representatives, which the Department asserts
fulfills its obligations to consult, as appropriate. The results of
these ongoing negotiated rulemaking meetings were periodically reported
and discussed in other Federal and Tribal fora. The Tribal and Federal
representatives reached consensus on the rule text and Preamble, except
for the four areas of disagreement discussed above. The DOT will
continue to seek the input of Tribes through the comment period and
until publication of the Final Rule.
J. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
The DOT has analyzed this proposed action under E.O. 13045. The DOT
certifies that this proposed action would not cause an environmental
risk to health or safety that may disproportionately affect children.
K. Regulation Identifier Number
A Regulation Identifier Number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 29:
Grant programs--transportation, Grant programs--Indians, Indians.
Issued on: September 27, 2019.
Elaine L. Chao,
Secretary of Transportation.
0
For the reasons set out in the preamble, the Department of
Transportation proposes to add part 29 to title 49 of the Code of
Federal Regulations to read as follows:
PART 29--TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM
Subpart A--General Provisions
Sec.
29.1 What is the purpose and authority for this part?
29.2 What is the Department's policy for the Program?
29.3 What is the effect of this part on existing Tribal rights?
29.4 How do Departmental circulars, policies, manuals, guidance, or
rules apply to a Tribe's performance under the Program?
29.5 Who is responsible for carrying out the functions connected
with the Program?
29.6 Must the Department consult with Tribes regarding matters that
affect the Program?
29.7 What is the effect of this Program on existing Tribal
Transportation Program agreements?
29.8 What happens if more than one party purports to be the
authorized representative of a Tribe?
29.9 What definitions apply to this part?
Subpart B--Eligibility and Negotiation Process
Eligibility
29.100 What are the criteria for eligibility to participate in the
Program?
Negotiations
29.101 How does a Tribe commence negotiations for a compact, funding
agreement, or amendment?
29.102 What information should the Tribe provide to the Department
when it expresses its interest in negotiating a compact, funding
agreement, or amendment?
29.103 How will the Department respond to the Tribe's written
request?
29.104 Must the Department and the Tribe follow a specific process
when negotiating compacts, funding agreements, and amendments?
29.105 Will negotiations commence or conclude within a specified
time period?
29.106 What are best practices to pursue negotiations?
29.107 What recourse does the Department or the Tribe have if the
negotiations reach an impasse?
29.108 May the Department and the Tribe continue to negotiate after
the Tribe submits a final offer?
29.109 Who is responsible for drafting the compact or funding
agreement?
Subpart C--Final Offer Process
29.200 What is covered by this subpart?
29.201 In what circumstances should a Tribe submit a final offer?
29.202 How does a Tribe submit a final offer?
29.203 What must a final offer contain?
29.204 How long does the Department have to respond to a final
offer?
29.205 How does the Department acknowledge receipt of a final offer?
29.206 May the Department request and obtain an extension of time of
the 45-day review period?
29.207 What happens if the Department takes no action within the 45-
day review period (or any extensions thereof)?
29.208 What happens once the Department accepts the Tribe's final
offer or the final offer is accepted by operation of law?
Rejection of Final Offers
29.209 On what basis may the Department reject a Tribe's final
offer?
29.210 How does the Department reject a final offer?
29.211 Is technical assistance available to a Tribe to overcome
rejection of a final offer?
29.212 May a Tribe appeal the rejection of a final offer?
29.213 If a Tribe appeals a final offer, do the remaining provisions
of the compact, funding agreement, or amendment not in dispute go
into effect?
Subpart D--Contents of Compacts and Funding Agreements
Compacts
29.300 What is included in a compact?
29.301 Is a compact required to participate in the Program?
29.302 What is the duration of a compact?
29.303 May more than one Tribe enter into a single compact and
funding agreement?
29.304 May a compact be amended?
Funding Agreements
29.305 When can a Tribe initiate negotiation of a funding agreement?
29.306 What is the duration of a funding agreement?
29.307 What terms must a funding agreement include?
29.308 May the funding agreement include additional terms?
29.309 Will a funding agreement include provisions pertaining to
flexible or innovative financing?
29.310 May a Tribe redesign, consolidate, reallocate, or redirect
the funds included in a funding agreement?
29.311 How is a funding agreement amended?
29.312 Is a subsequent funding agreement retroactive to the end of
the term of the preceding funding agreement?
Subpart E--Rules and Procedures for Transfer of Funds
29.400 What funds may a Tribe elect to include in a funding
agreement?
29.401 What funds must the Department transfer to a Tribe in a
funding agreement?
29.402 Which entity is responsible for the funds included in a
funding agreement?
29.403 When must the Department transfer to a Tribe the funds
identified in a funding agreement?
29.404 When must the Department transfer funds that were not paid as
part of the initial lump sum payment (or initial periodic payment)?
29.405 When must the Department transfer funds for a discretionary
or competitive grant?
29.406 Does the award of funds for a discretionary or competitive
grant entitle a Tribe to receive the same amount in subsequent
years?
[[Page 52715]]
29.407 Does the award of funds for discretionary or competitive
grants entitle the Tribe to receive contract support costs?
29.408 How may a Tribe use interest earned on funds included in a
funding agreement?
29.409 May a Tribe carry over from one fiscal year to the next any
funds that remain at the end of the funding agreement?
29.410 May a Tribe use remaining funds from a competitive or
discretionary grant included in a funding agreement?
29.411 Are funds included in a compact and funding agreement non-
Federal funds for purposes of meeting matching or cost participation
requirements under any other Federal or non-Federal program?
29.412 May the Department increase the funds included in the funding
agreement if necessary to carry out the Program?
29.413 How will the Department assist a Tribe with its credit
requests?
29.414 What limitations apply to Department actions related to
transfer of funds associated with PSFAs?
29.415 Does the Prompt Payment Act apply to funds transferred to a
Tribe in a funding agreement?
29.416 What standard applies to a Tribe's management of funds
included in a funding agreement?
29.417 Must a Tribe continue performance of the Tribal
Transportation Program or the Tribal Transit Program under a compact
and funding agreement if the Department does not transfer sufficient
funds?
29.418 May a funding agreement include transfers of State funds?
29.419 Does the award of formula funds entitle a Tribe to receipt of
contract support costs?
29.420 Is a Tribe entitled to enter into facility leases from the
Department and to receive facility support costs?
SUBPART F--PROGRAM OPERATIONS
Audits and Cost Principles
29.500 Must a Tribe undertake an annual audit?
29.501 Must a Tribe submit any required audits to the Federal Audit
Clearinghouse and the Department?
29.502 How long must a Tribe keep and make records available for
Federal examination or audit?
29.503 Who is responsible for compiling, copying, and paying for
materials for any audit or examination?
29.504 How may the Federal Government make a claim against a Tribe
relating to any disallowance of costs based on an audit conducted
under this part?
29.505 What cost principles must a Tribe apply in compacts and
funding agreements under this part?
Management Systems and Standards
29.506 What are the general financial management system standards
that apply to a Tribe when carrying out a compact and funding
agreement under this part?
29.507 What general minimum standards apply to a Tribe's financial
management systems when carrying out a compact and funding
agreement?
29.508 What specific minimum requirements must a Tribe's financial
management system include to meet general minimum standards?
29.509 What procurement standards apply to contracts carried out
using funds included in a funding agreement?
29.510 What property management systems and standards must a Tribe
maintain?
Records
29.511 Must a Tribe maintain a recordkeeping system?
29.512 Are Tribal records subject to the Freedom of Information Act
and Federal Privacy Act?
29.513 Must a Tribe make its records available to the Department?
29.514 How long must a Tribe keep management system records?
Procurement
29.515 When procuring property or services with funds included in a
funding agreement, can a Tribe follow its own procurement standards?
29.516 What are the minimum procurement standards that a Tribe must
follow when procuring property or services with funds included in a
funding agreement?
29.517 Do Federal laws and regulations apply to a Tribe's
contractors or subcontractors?
29.518 Can a Tribe use Federal supply sources in the performance of
a compact and funding agreement?
Reporting
29.519 What reporting must a Tribe provide?
Property
29.520 How may a Tribe use existing Department facilities,
equipment, or property?
29.521 How may a Tribe acquire surplus or excess Federal property
for use under the Program?
29.522 How must a Tribe use surplus or excess Federal property
acquired under the Program?
29.523 If a compact or funding agreement (or portion thereof) is
retroceded, reassumed, terminated, or expires, may the Department
reacquire title to property purchased with funds under any compact
and funding agreement or excess or surplus Federal property that was
donated to the Tribe under the Program?
Technical Assistance
29.524 What technical assistance is available from the Department?
Prevailing Wages
29.525 Do the wage and labor standards in the Davis-Bacon Act apply
to employees of a Tribe?
Tribal Preference
29.526 Does Indian preference apply to PSFAs under the Program?
29.527 When do Tribal employment law and contract preference laws
govern?
Environmental and Cultural Resource Compliance
29.528 What compliance with environmental and cultural resource
statutes is required?
Federal Tort Claims Act
29.529 Is the Federal Tort Claims Act applicable to a Tribe when
carrying out a compact and funding agreement under the Program?
29.530 What steps should a Tribe take after becoming aware of a
Federal Tort Claim?
29.531 Is it necessary for a compact or funding agreement to include
any terms about FTCA coverage?
29.532 Does FTCA cover employees of the Tribe who are paid by the
Tribe from funds other than those provided through the compact and
funding agreement?
29.533 May persons who are not Indians assert claims under FTCA?
29.534 Does the year PSFAs are funded affect FTCA coverage?
Waiver of Program Regulations
29.535 What is the process for regulation waivers under this part?
Subpart G--Withdrawal
29.600 May a Tribe withdraw from a consortium?
29.601 When does a withdrawal become effective?
29.602 How are funds redistributed when a Tribe fully or partially
withdraws from a compact and funding agreement and elects to enter
into a compact with the Department?
29.603 How are funds distributed when a Tribe fully or partially
withdraws from a compact and funding agreement administered by a
consortium serving more than one Tribe, and the withdrawing Tribe
elects not to or is ineligible to enter into a compact under this
part?
Subpart H--Retrocession
29.700 May a Tribe retrocede a PSFA and the associated funds?
29.701 How does a Tribe notify the Department of its intention to
retrocede?
29.702 What happens if the Department of the Interior determines
that it provides the transportation services the Tribe intends to
retrocede?
29.703 What happens if the Department of the Interior determines
that it does not provide the transportation services the Tribe
intends to retrocede?
29.704 What is the effective date of a retrocession?
29.705 What effect will a retrocession have on a Tribe's right to
compact under the Program?
29.706 Will retrocession adversely affect future funding available
for the retroceded program?
Subpart I--Termination and Reassumption
29.800 When can the Department reassume a compact or funding
agreement?
29.801 Can the Department reassume a portion of a compact or funding
agreement and the associated funds?
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29.802 What process must the Department follow before termination of
a compact or funding agreement (or portion thereof)?
29.803 What happens if the Department determines that the Tribe has
not corrected the conditions that the Department identified in the
notice?
29.804 When may the Department reassume?
29.805 When can the Department immediately terminate a compact or
funding agreement (or portion thereof)?
29.806 Upon termination, what happens to the funds associated with
the terminated portions of the compact or funding agreement?
Subpart J--Dispute Resolution and Appeals
29.900 What is the purpose of this subpart?
29.901 Can a Tribe and the Department resolve disputes using
alternative dispute resolution processes?
29.902 Does the Equal Access to Justice Act apply to the Program?
29.903 What determinations may not be appealed under this subpart?
Pre-Award Decisions
29.904 What are pre-award decisions that a Tribe may appeal?
29.905 To whom does a Tribe appeal a pre-award decision?
29.906 Must a Tribe exhaust its administrative remedies before
initiating a civil action against the Department in the U.S.
District Courts for a pre-award decision?
29.907 When and how must a Tribe appeal a pre-award decision?
29.908 May a Tribe request an extension of time to file an
administrative appeal to the hearing official?
29.909 When and how must the hearing official respond to the Tribe's
appeal?
29.910 What is the Department's burden of proof for appeals of pre-
award decisions?
29.911 What is the effect of a pending appeal on negotiations?
Post-Award Disputes
29.912 What is a post-award dispute?
29.913 What is a claim under the Contract Disputes Act?
29.914 How does a Tribe file a Contract Disputes Act claim?
29.915 Must a Tribe certify a Contract Disputes Act claim?
29.916 Who bears the burden of proof in a Contract Disputes Act
claim?
29.917 What is the Department's role in processing the Contract
Disputes Act claim?
29.918 What information must the Chief Self-Governance Official's
decision contain?
29.919 When must the Chief Self-Governance Official issue a written
decision on the claim?
29.920 Is a decision of the Chief Self-Governance Official final?
29.921 Where may a Tribe appeal the Chief Self-Governance Official's
decision on a Contract Disputes Act claim?
29.922 May a party appeal a Civilian Board of Contract Appeals
decision?
29.923 What is the effect of a pending appeal?
Termination Appeals
29.924 May a Tribe appeal the Department's decision to terminate a
compact or funding agreement?
29.925 Is a Tribe entitled to a hearing on the record?
29.926 What rights do the parties have in an appeal of a termination
decision?
29.927 What notice and service must the parties provide?
29.928 What is the Department's burden of proof for a termination
decision?
29.929 How will the Department communicate its decision following a
hearing on a termination decision?
29.930 May a party appeal the decision of an administrative law
judge?
29.931 What is the effect of an appeal on negotiations?
Authority: 23 U.S.C. 207.
Subpart A--General Provisions
Sec. 29.1 What is the purpose and authority for this part?
(a) The regulations in this part implement the Tribal
Transportation Self Governance Program required by 23 U.S.C. 207 and
set forth rules for compacts and funding agreements negotiated between
the Department and eligible Tribes under the Program. Funding
agreements may contain funds as set forth in 23 U.S.C. 207(d)(2)(A) and
Sec. 29.400.
(b) The Department prepared and issued these rules pursuant to 23
U.S.C. 207(n) with the active participation and representation of
Tribes, consortia, Tribal organizations, and individual Tribal members,
consistent with the negotiated rulemaking procedures.
Sec. 29.2 What is the Department's policy for the Program?
It is the Department's policy to:
(a) Recognize the unique government-to-government relationship with
Tribes, including the right of Tribes to self-government, and to
support Tribal sovereignty and self-determination;
(b) Encourage Tribes to participate in the Program;
(c) Affirm and enable the United States to fulfill its obligations
to Tribes under treaties and other laws, and to ensure the continuation
of the trust responsibility of the United States to Tribes and Indians
that exist under treaties, other laws, and Executive orders;
(d) Interpret Federal laws and regulations to facilitate the
inclusion of eligible funds in funding agreements under the Program to
carry out Tribal PSFAs, except as otherwise provided by law;
(e) Consult with Tribes directly and meaningfully on policies that
have Tribal implications and affect the Program;
(f) Acknowledge that PSFAs performed by Tribes are an exercise of
Tribal self-determination and self-governance; and that Tribes are
responsible for day-to-day operation of PSFAs carried out under the
Program, and accept responsibility and accountability for the use of
funds and satisfactory performance consistent with the terms of funding
agreements; and
(g) Liberally construe this part to effectuate 23 U.S.C. 207 for
the benefit of Tribes participating in the Program.
Sec. 29.3 What is the effect of this part on existing Tribal rights?
(a) Nothing in this part requires a Tribe to apply to participate
in the Program.
(b) A Tribe's decision to participate in the Program does not:
(1) Affect, modify, diminish, or otherwise impair the sovereign
immunity from suit enjoyed by the Tribe;
(2) Terminate, waive, modify, or reduce the trust responsibility of
the United States to the Tribe or individual Indians; or
(3) Reduce the amount of the Tribe's formula or discretionary
funding from the Department or impair the Tribe's ability to obtain
funding from another Federal program.
Sec. 29.4 How do Departmental circulars, policies, manuals, guidance,
or rules apply to a Tribe's performance under the Program?
A Tribe's performance under the Program is not subject to any
Departmental circular, policy, manual, guidance, or rule, except for
this part, unless the Tribe and Department otherwise negotiate and
agree in the compact or funding agreement.
Sec. 29.5 Who is responsible for carrying out the functions connected
with the Program?
The Department will carry out the Program, including making
eligibility determinations; negotiating compacts and funding agreements
with Tribes; overseeing compliance with Department requirements; and
otherwise administering and implementing the Program consistent with
this Part. As provided in Sec. 29.402, Tribes are responsible for day-
to-day management of the Tribe's PSFAs consistent with the compact and
funding agreement.
Sec. 29.6 Must the Department consult with Tribes regarding matters
that affect the Program?
Yes. The Department must consult with Tribes on matters relating to
the Program. The Department will carry out
[[Page 52717]]
consultations in accordance with Executive Order 13175 and applicable
Department policies, including the Department's Tribal Consultation
Plan.
Sec. 29.7 What is the effect of this Program on existing Tribal
Transportation Program agreements?
This Program does not terminate existing authority for a Tribe to
enter into agreements with the Federal Highway Administration, or
contracts or agreements with the Department of the Interior, for the
Tribal Transportation Program. A Tribe may maintain its current
contracts or agreements, or include Tribal Transportation Program funds
in a funding agreement under this Program. A Tribe may only have one
agreement at a time for the same funds.
Sec. 29.8 What happens if more than one party purports to be the
authorized representative of a Tribe?
If more than one party purports to be the authorized representative
of a Tribe during the negotiation of a compact, funding agreement, or
amendment, the Department will notify the parties, consult with the
Department of the Interior, defer negotiation or execution of any
documents until such authority is clarified, and provide written notice
to the parties of the Department's decision to defer.
Sec. 29.9 What definitions apply to this part?
Unless otherwise provided in this part:
Appeal means a request by a Tribe for an administrative or judicial
review of a decision by the Department.
Chief Self-Governance Official means a Department official
responsible for overseeing the Program and carrying out the
responsibilities set forth in this part.
Compact means a legally binding and mutually enforceable written
agreement between the Department and a Tribe entered into pursuant to
23 U.S.C. 207(c) that sets forth the general terms that will govern the
Tribe's participation in the Program and affirms the government-to-
government relationship.
Consortium means an organization or association of Tribes that is
authorized by those Tribes to participate in the Program under this
part and is responsible for negotiating, executing, and implementing
compacts and funding agreements on behalf of its member Tribes.
Consultation means the process by which the Department and a Tribe
engage in timely, substantive, and meaningful government-to-government
communication, collaboration and participation, and exchange views in
furtherance of the Federal trust responsibility and the principles of
self-governance, before any action is taken that will have Tribal
implications as defined by Executive Order 13175, in accordance with
the Department's Tribal Consultation Plan, Executive Order 13175, all
subsequent Presidential Memoranda regarding Tribal consultation, and
applicable Federal law.
Contractor means a third party who has entered into a legally
binding agreement with a Tribe to provide goods or services.
Days means calendar days, except where the last day of any time
period specified in this part falls on a Saturday, Sunday, or Federal
holiday, the period shall carry over to the next business day unless
otherwise prohibited by law.
Department means the U.S. Department of Transportation.
Discretionary or competitive grant means a grant in which the
Federal awarding agency may select the award amount and recipients from
among all eligible applicants in light of the legislative and
regulatory requirements and published selection criteria established
for a program.
Excess property is real or personal property under the control of a
Federal agency, which is not required for the agency's needs and the
discharge of its responsibilities.
Funding agreement means a legally binding and mutually enforceable
written agreement between the Department and a Tribe entered into
pursuant to 23 U.S.C. 207(d) that identifies the funds the Tribe will
use to carry out its PSFAs, and sets forth the terms and conditions
under which the Tribe will receive the funds.
Gross mismanagement means a significant, clear, and convincing
violation of a compact, funding agreement, or regulatory or statutory
requirements applicable to Federal funds included in a compact and
funding agreement that results in a significant reduction of funds
available for a PSFA carried out by a Tribe.
Imminent jeopardy means an immediate threat to a trust asset,
natural resource, or public health and safety that is caused by the act
or omission of a Tribe and that arises out of a failure by the Tribe to
carry out the compact or funding agreement.
Indian means a person who is a member or citizen of a Tribe.
Indian Tribe or Tribe means any Indian or Alaska Native tribe,
band, nation, pueblo, village, or community (including colonies and
rancherias) that is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians. In any case in which an Indian Tribe has authorized
another Indian Tribe, an intertribal consortium, or a Tribal
organization to plan for or carry out PSFAs on its behalf under this
part, the authorized Indian Tribe, intertribal consortium, or Tribal
organization shall have the rights and responsibilities of the
authorizing Indian Tribe (except as otherwise provided in the
authorizing resolution or in Title 23 U.S. Code). In such event, the
term Indian Tribe or Tribe as used in this part shall include such
other authorized Indian Tribe, intertribal consortium, or Tribal
organization.
Inherent Federal functions means those Federal functions that
cannot legally be delegated to a non-Federal entity, including a Tribe.
Operating Administration means a component administration of the
U.S. Department of Transportation.
Program means the Tribal Transportation Self-Governance Program
established by 23 U.S.C. 207.
Project means any activity determined as being eligible under the
U.S. Code title and program for which funds are being provided.
Programs, services, functions, and activities or PSFAs means
programs, services, functions, and activities, or portions thereof,
that a Tribe carries out using funds included in a funding agreement
under the Program.
Real property means any interest in land together with the
improvements, structures, and fixtures and appurtenances.
Reassumption means the termination, in whole or part, of a funding
agreement and assuming or resuming the remaining funds included in the
compact and funding agreement pursuant to 23 U.S.C. 207(f)(2)(A).
Receipt means the actual date on which a submission is received.
With respect to the Department, receipt is the date on which the
authorized Department official specified in this part receives the
submission. Demonstration of receipt includes a date stamp, postal
return receipt, express delivery service receipt, or any other method
that provides receipt, including electronic mail.
Retrocession means the voluntary return of a Tribe's PSFA and
associated remaining funds for any reason, before or on the expiration
of the term of the funding agreement.
Secretary means the Secretary of Transportation.
Self-Determination Contract means a contract (or grant or
cooperative agreement) entered into pursuant to Title I of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 5321)
between a Tribe and the
[[Page 52718]]
appropriate Secretary for the planning, conducting and administration
of programs or services that are otherwise provided to Tribes.
Self-governance means the Federal policy of Indian self-
determination and self-government rooted in the inherent sovereignty of
Tribes, reflected in the government-to-government relationship between
the United States and Tribes, and expressed in the Indian Self-
Determination and Education Assistance Act, Public Law 93-638, as
amended, and the program of self-governance established under the
Program.
State means any of the 50 States, the District of Columbia, or
Puerto Rico.
Surplus government property means excess real or personal property
that is not required for the needs of and the discharge of the
responsibilities of all Federal agencies that has been declared surplus
by the General Services Administration.
Technical assistance means the process by which the Department
provides targeted support to a Tribe with a development need or
problem.
Transit means regular, continuing shared ride surface
transportation services that are open to the general public or open to
a segment of the general public defined by age, disability, or low
income, excluding the transportation services set forth in 49 U.S.C.
5302(14)(B).
Tribal Transportation Program (TTP) means a program established in
Section 1119 of Moving Ahead for Progress in the 21st Century (MAP-21),
Public Law 112-141 (July 6, 2012), and codified in 23 U.S.C. 201 and
202. This program was continued under Fixing America's Surface
Transportation Act (FAST Act), Public Law 114-94 (December 4, 2015).
TTP Agreement means an agreement between a Tribe and either the
Federal Highway Administration or the Bureau of Indian Affairs pursuant
to 23 U.S.C. 202 that authorizes a Tribe to carry out all but the
inherently Federal functions of the TTP.
Tribal Organization means the recognized governing body of any
Tribe; any legally established organization of Indians that is
controlled, sanctioned, or chartered by such governing body or is
democratically elected by the adult members of the Indian community to
be served by such organization and includes the maximum participation
of Indians in all phases of its activities.
Subpart B--Eligibility and Negotiation Process
Eligibility
Sec. 9.100 What are the criteria for eligibility to participate in
the Program?
(a) Eligibility. A Tribe is eligible to participate in the Program
if--
(1) The Tribe requests participation in the Program by resolution
or other official action by the governing body of the Tribe; and
(2) The Department determines that, over the 3 most recent fiscal
years, the Tribe has demonstrated financial stability and financial
management capability, and transportation program management capability
in accordance with the criteria specified in 23 U.S.C. 207(b) and this
section.
(b) Financial stability and financial management capability--(1)
Conclusive evidence. A Tribe subject to the Single Audit Act
demonstrates financial stability and financial management capability by
providing evidence establishing that, during the preceding 3 fiscal
years, the Tribe had no uncorrected significant and material audit
exceptions in the required annual audit of the Tribe's self-
determination contracts or self-governance funding agreements with any
Federal agency. This will be conclusive evidence of the required
financial stability and financial management capability.
(2) Sufficient evidence. A Tribe subject to the Single Audit Act
that has a TTP Agreement or a grant award provided by the Department
may provide evidence establishing that, during the preceding 3 fiscal
years, the Tribe had no uncorrected significant and material audit
exceptions in its required single audit of the Tribe's Federal award
programs. This will be sufficient evidence of the required financial
stability and financial management capability.
(3) Evidence without a mandate to comply with the Single Audit Act.
If a Tribe is not subject to the Single Audit Act, the Department will
consider the following evidence to determine if the Tribe demonstrates
financial stability and financial management capability:
(i) Evidence demonstrating that the Tribe has financial management
systems and standards that meet or exceed the standards set forth in
Sec. Sec. 29.506-29.508 of this part; and
(ii) An independent audit containing no uncorrected significant and
material audit exceptions that covers the preceding 3 fiscal years of
the Tribe's self-determination contracts or self-governance funding
agreements with any Federal agency, TTP agreements, or a grant award
from the Department.
(4) Evidence of management systems. As part of the Department's
eligibility determination under paragraph (b)(3) of this section, the
Department may require a Tribe to demonstrate that it has the
management systems in place that meet or exceed the standards required
in Sec. Sec. 29.506 through 29.511 and 29.516 of this part. The
Department will confirm in writing within 90 days of receipt of any
such submission by the Tribe whether the Tribe's management systems are
or are not sufficient to meet the required standards.
(5) Technical assistance. At a Tribe's request, the Department will
provide, to the extent feasible, technical assistance, such as feedback
on management systems and standards or review of internal controls, to
a Tribe with one or more uncorrected significant and material audit
exceptions with the goal of assisting the Tribe to establish
eligibility for the Program.
(c) Transportation program management capability. (1) In making the
eligibility determination under 23 U.S.C. 207(b), the Department also
must determine that a Tribe demonstrates transportation program
management capability, including the capability to manage and complete
projects eligible under title 23 and chapter 53 of title 49.
(2) To assist the Department in determining transportation program
management capability, a Tribe may submit evidence including, but not
limited to:
(i) Documentation showing that the Tribe has previously or is
currently directing or carrying out transportation services, projects,
or programs under a self-determination, self-governance, or TTP
Agreement, or a grant award with the Department.
(ii) Documentation showing the extent to which the Tribe previously
received Federal funding and carried out management responsibilities
relating to the planning, design, delivery, construction, maintenance,
or operation of transportation-related projects, and whether they were
completed;
(iii) Documentation that the Tribe has established and maintains,
as appropriate, a staffed and operational transportation or transit
program, department, commission, board, or official of any Tribal
government charged by its laws with the responsibility for
transportation-related responsibilities, including but not limited to,
administration, planning, maintenance, and construction activities.
This documentation should identify the Tribal personnel, job
descriptions, and expertise necessary to administer or implement PSFAs
that the Tribe proposes to assume under the
[[Page 52719]]
Program. The documentation may also include resolutions, other
authorizations, or proposed budgets demonstrating that the Tribe has
taken steps to organize a Tribal office or department to address the
transportation-related needs of the Tribe and how that entity has or
will demonstrate transportation program management capacity; and
(iv) Documentation showing the completion of one or more
transportation projects or operation of a program that is related to or
similar to the PSFA the Tribe requests to include in a funding
agreement negotiated between the Tribe and the Department. The
Department will consider the number, complexity, and type of projects
or programs that the Tribe describes as part of this determination.
This documentation should address the substantive involvement of the
Tribe in operating a transportation program, which may be demonstrated
by:
(A) Involvement in the development of a completed and approved
highway safety plan;
(B) Involvement in the development of a completed and approved
plans, specifications and estimates design package for one or more
transportation projects to be carried out with available funding;
(C) Involvement in the delivery of a completed and approved
transportation construction project using Federal or non-Federal funds;
(D) Oversight or operation of a public transit project or public
transit system;
(E) Oversight or operation of a transportation maintenance system;
or
(F) Other information that evidences the transportation program
management capabilities of the Tribe.
(4) Other indicia of program management capability. In determining
transportation program management capability, the Department will
consider any other criteria and evidence that a Tribe may submit,
including the operation by the Tribe of non-transportation programs of
similar complexity, size, administrative need, staffing requirement, or
budget.
(d) Program eligibility determination. (1) Within 15 calendar days
of receipt of a Tribe's submission seeking an eligibility determination
under this section to participate in the Program, the Department will
notify the Tribe in writing to confirm that it has received the
submission and notify the Tribe whether any evidence necessary to make
the determination is missing.
(2) Within 90 days of receipt of a Tribe's submission of its
financial management systems and standards pursuant to paragraphs
(b)(3)(i) and (b)(4)(i), the Department will notify the Tribe whether
the systems and standards are sufficient to meet the standards set
forth in Sec. Sec. 29.506 through 29.508 of this part.
(3) Within 120 days of receipt of an initial submission, the
Department will issue its determination of a Tribe's eligibility to
participate in the Program. If the Tribe provides additional evidence
at the Department's request to complete the application, the Department
will have up to an additional 45 days to issue its determination of the
Tribe's eligibility to participate in the Program. The determination
will constitute final agency action which the Tribe may appeal in
accordance with Sec. Sec. 29.904 through 29.911.
Negotiations
Sec. 29.101 How does a Tribe commence negotiations for a compact,
funding agreement, or amendment?
After the Department notifies a Tribe in writing that it is
eligible to participate in the Program pursuant to Sec. 29.100, the
Tribe must submit a written request to the Chief Self-Governance
Official to begin negotiating a compact, funding agreement, or
amendment. The Tribe may send the request to [email protected] or use any
other method that provides receipt.
Sec. 29.102 What information should the Tribe provide to the
Department when it expresses its interest in negotiating a compact,
funding agreement, or amendment?
When a Tribe expresses its interest in negotiating a compact,
funding agreement, or amendment, the written request need only request
that the Department enter into negotiations for a compact, funding
agreement, or amendment. To the degree the Tribe has the following
information available to it, the request may include, as appropriate:
(a) Whether the Tribe wants to negotiate a compact, funding
agreement, or amendment;
(b) The funding programs that the Tribe wants to include in the
funding agreement or amendment;
(c) The terms the Tribe wants to include in the compact, funding
agreement, or amendment;
(d) Any information or technical assistance the Tribe needs from
the Department to assist in pursuing the negotiation process; and
(e) The Tribal official with authority to negotiate on behalf of
the Tribe, the designated Tribal contact, relevant contact information,
and, if applicable, the name and contact information of an attorney
authorized to represent the interests of the Tribe in the negotiation.
Sec. 29.103 How will the Department respond to the Tribe's written
request?
Within 15 days of receipt of a Tribe's written request, the
Department will notify the Tribe in writing of the identity of the
designated representative(s) of the Department who will conduct the
negotiation and, to the extent feasible, will provide to the Tribe the
information requested by the Tribe consistent with Sec. 29.102(d).
Sec. 29.104 Must the Department and the Tribe follow a specific
process when negotiating compacts, funding agreements, and amendments?
The Department and the Tribe do not have to follow a specific
process when negotiating compacts, funding agreements, and amendments.
The Department and the Tribe should cooperate to develop a plan to
address each issue subject to negotiation and provide the
representatives an opportunity to address the Tribal proposals, legal
or program issues of concern, the time needed to complete the
negotiations, and the development of a term sheet.
Sec. 29.105 Will negotiations commence or conclude within a specified
time period?
Unless the Department and the Tribe agree otherwise, negotiations
will commence within 60 days of the Department's receipt of the Tribe's
written request to negotiate a compact, funding agreement, or
amendment. The Department and the Tribe should make every effort to
conclude negotiations within 90 days from the date on which
negotiations commence, unless the parties agree to extend the time
period for negotiations. Negotiations may proceed by electronic mail,
teleconferences, or in-person meetings.
Sec. 29.106 What are best practices to pursue negotiations?
(a) The parties should collaborate and provide a clear explanation
of their positions and interests. Each party should provide timely and
specific responses to proposals presented during negotiations in order
to conclude negotiations as soon as possible within the period provided
in Sec. 29.105.
(b) In negotiating the applicable construction, design, monitoring,
or health and safety requirements that apply to the PSFAs the Tribe
carries out using funds included in a funding agreement, along with the
other terms set forth in Sec. 29.307, the parties should cooperate and
will prioritize the reduction of administrative requirements on the
Tribe when
[[Page 52720]]
negotiating the terms of the compact, funding agreement, or amendment
to effectuate the purposes of self-governance.
(c) The parties should conduct the negotiations in order to reach
agreement on as many items as possible, and to refine unresolved issues
in order to avoid disputed terms. The negotiations should conclude with
mutually agreed upon terms and conditions. If any unresolved issues
remain, a Tribe may submit a final offer to the Department under
subpart C of this part.
Sec. 29.107 What recourse does the Department or the Tribe have if
the negotiations reach an impasse?
The Department and the Tribe should resolve disagreements by mutual
agreement whenever possible. If the Tribe and the Department are unable
to reach agreement by the agreed upon date for completing negotiations,
the Tribe may request to participate in an alternative dispute
resolution process pursuant to Sec. 29.901, or it may submit a final
offer to the designated Department representative in accordance with
subpart C of this part.
Sec. 29.108 May the Department and the Tribe continue to negotiate
after the Tribe submits a final offer?
The parties may continue negotiations after the Tribe submits a
final offer by mutual agreement, and may execute the remaining parts of
the compact, funding agreement, or amendment consistent with Sec.
29.213.
Sec. 29.109 Who is responsible for drafting the compact or funding
agreement?
It is the mutual obligation of the Department and the Tribe to
draft the compact, funding agreement, or amendment. Either party may
offer to prepare the initial draft for the other party's review.
Subpart C--Final Offer Process
Sec. 29.200 What is covered by this subpart?
This subpart explains the final offer process for resolving, within
a specific timeframe, disputes that may develop in negotiation of a
compact, funding agreement, or amendment.
Sec. 29.201 In what circumstances should a Tribe submit a final
offer?
If the Department and the Tribe are unable to agree, in whole or in
part, on the terms of a compact, funding agreement, or amendment, the
Tribe may submit a final offer to the Department.
Sec. 29.202 How does a Tribe submit a final offer?
(a) A Tribe must submit a written final offer to the Department's
designated representative and the Chief Self-Governance Official to
[email protected] or send the final offer using any other method that
provides receipt to: Chief Self-Governance Official, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.
(b) The document should be separate from the compact, funding
agreement, or amendment and clearly identified as a ``Final Offer--
Response due within 45 days of receipt.''
Sec. 29.203 What must a final offer contain?
A final offer must contain a description of the disagreement
between the Department and the Tribe, the Tribe's final proposal to
resolve the disagreement, including any draft proposed terms to be
included in a compact, funding agreement or amendment, and the name and
contact information for the person authorized to act on behalf of the
Tribe. If the final offer is insufficient for the Department to make a
decision, the Department will notify the Tribe and request additional
information. A request for more information has no effect on deadlines
for response.
Sec. 29.204 How long does the Department have to respond to a final
offer?
The Department has 45 days to respond to the final offer. The 45-
day review period begins on the date the Chief Self-Governance Official
receives the final offer.
Sec. 29.205 How does the Department acknowledge receipt of a final
offer?
Within 10 days of the Chief Self-Governance Official receiving the
final offer, the Department will send the Tribe an acknowledgement of
the final offer, together with documentation that indicates the date on
which the Chief Self-Governance Official received the final offer. The
Department's failure to send the acknowledgement does not constitute
approval of the final offer.
Sec. 29.206 May the Department request and obtain an extension of
time of the 45-day review period?
The Department may request an extension of time before the
expiration of the 45-day review period. The Tribe may either grant or
deny the Department's request for an extension. Any grant of extension
of time must be in writing and signed by a person authorized by the
Tribe to grant the extension before the expiration of the 45-day review
period.
Sec. 29.207 What happens if the Department takes no action within the
45-day review period (or any extensions thereof)?
The final offer is accepted by operation of law if the Department
takes no action within the 45-day review period (or any extensions
thereof).
Sec. 29.208 What happens once the Department accepts the Tribe's
final offer or the final offer is accepted by operation of law?
Once the Department accepts the Tribe's final offer or the final
offer is accepted by operation of law, the Department must add the
terms of the Tribe's final offer to the compact, funding agreement, or
amendment and transfer funds, if appropriate, no later than 30 days
after the apportionment of such funds by the Office of Management and
Budget to the Department.
Rejection of Final Offers
Sec. 29.209 On what basis may the Department reject a Tribe's final
offer?
The Department may reject a Tribe's final offer for any of the
following reasons:
(a) The amount of funds proposed in the final offer exceeds the
applicable funding level to which the Tribe is entitled;
(b) The subject of the final offer is an inherent Federal function
that cannot legally be delegated to a Tribe;
(c) Carrying out the PSFA would result in significant danger or
risk to public health or safety; or
(d) The Tribe is not eligible to participate in self-governance
under section 23 U.S.C. 207(b).
Sec. 29.210 How does the Department reject a final offer?
The Department must reject a final offer by providing written
notice to the Tribe based on the criteria in Sec. 29.209 no more than
45 days after receipt of a final offer by the Chief Self-Governance
Official, or within a longer time period as agreed to by the Tribe
consistent with this subpart. The notice must explain the basis for the
rejection of the final offer.
Sec. 29.211 Is technical assistance available to a Tribe to overcome
rejection of a final offer?
Upon receiving a final offer, the Department must provide technical
assistance to overcome the objections stated in the Department's
rejection of a final offer.
Sec. 29.212 May a Tribe appeal the rejection of a final offer?
A Tribe may appeal the rejection of a final offer in accordance
with Sec. Sec. 29.904 through 29.911.
[[Page 52721]]
Sec. 29.213 If a Tribe appeals a final offer, do the remaining
provisions of the compact, funding agreement, or amendment not in
dispute go into effect?
If a Tribe appeals the rejection of a final offer, the parties may
execute and make effective the remaining provisions of the compact,
funding agreement, or amendment that are not subject to appeal.
Subpart D--Contents of Compacts and Funding Agreements
Compacts
Sec. 29.300 What is included in a compact?
A compact only includes the general terms that govern a Tribe's
participation in the Program and such other terms as the parties
mutually agree that will continue to apply from year to year, and
affirms the government-to-government relationship between the Tribe and
the Department. Such terms include the authority, purpose, and
obligations of the Tribe and the Department. The written compact
memorializes matters on which the Department and the Tribe agree.
Language addressing disagreement between the Department and the Tribe
will not be included in the compact.
Sec. 29.301 Is a compact required to participate in the Program?
A Tribe must have a compact in place to participate in the Program.
A compact must be in effect between the Department and the Tribe before
the Tribe may enter into a funding agreement with the Department. The
Tribe may negotiate a compact at the same time it is negotiating a
funding agreement, so long as the compact is executed prior to or
concurrent with the funding agreement.
Sec. 29.302 What is the duration of a compact?
A compact remains in effect until it is terminated by mutual
written agreement, retrocession, or reassumption under this part.
Sec. 29.303 May more than one Tribe enter into a single compact and
funding agreement?
A consortium of two or more Tribes may participate in the Program
on the same basis as an individual Tribe. A consortium may comprise a
combination of one or more Tribes that may or may not be independently
eligible under Sec. 29.100, so long as the consortium is eligible.
Sec. 29.304 May a compact be amended?
A compact may be amended at any time by the mutual written
agreement of the Tribe and the Department.
Funding Agreements
Sec. 29.305 When can a Tribe initiate negotiation of a funding
agreement?
Concurrent with or after a Tribe has entered into a compact with
the Department, the Department and Tribe will negotiate a funding
agreement, consistent with Sec. Sec. 29.101 through 29.109. The
funding agreement is the legally binding written agreement that
identifies the funds a Tribe will use to carry out its PSFAs, and sets
forth the terms and conditions under which the Tribe will receive the
funds.
Sec. 29.306 What is the duration of a funding agreement?
(a) The duration of a funding agreement is one year unless the
parties negotiate a multiyear funding agreement or, for an initial
funding agreement, a partial year agreement.
(b) Each funding agreement will remain in full force and effect
until the parties execute a subsequent funding agreement, except when:
(1) A Tribe provides notice to the Department that it is
withdrawing or retroceding funds for the operation of one or more PSFAs
(or portions thereof) identified in the funding agreement;
(2) The Department terminates the funding agreement under 23 U.S.C.
207(f)(2); or
(3) The parties agree otherwise.
Sec. 29.307 What terms must a funding agreement include?
A funding agreement must set forth the following:
(a) The funds the Department will provide, including those funds
provided on a recurring basis;
(b) The PSFAs the Tribe intends to carry out using the funds;
(c) The general budget category assigned to the funds;
(d) The time and method of transfer of funds;
(e) The responsibilities of the Department and the Tribe;
(f) Any applicable statutory limitations on the use of funds;
(g) Any statutory or negotiated reporting requirements;
(h) Any applicable Federal or federally approved design,
construction, and monitoring standards, unless the Tribe's design,
construction, and monitoring standards are consistent with or exceed
such standards;
(i) Other Federal health and safety requirements that apply to the
funds included in the funding agreement, unless the Tribe provides
adequate assurance that its relevant health and safety requirements are
consistent with or exceed such requirements;
(j) Any other provision agreed to by the Tribe and the Department;
and
(k) Provisions authorizing the Department to terminate the funding
agreement (in whole or in part) and reassume the remaining funding for
transfer as appropriate.
Sec. 29.308 May the funding agreement include additional terms?
At a Tribe's request, the parties may incorporate into a compact or
funding agreement any other provision of Title I of the Indian Self-
Determination and Education Assistance Act, unless the Department
determines there is a conflict between the provision and 23 U.S.C. 207.
The Department will make the determination consistent with 23 U.S.C.
207(j).
Sec. 29.309 Will a funding agreement include provisions pertaining to
flexible or innovative financing?
If the Department and a Tribe agree, a funding agreement will
include provisions pertaining to flexible financing and innovative
financing. In that event, the Department and Tribe will establish terms
and conditions relating to the flexible and innovative financing
provisions that are consistent with 23 U.S.C. 207(d)(2)(C).
Sec. 29.310 May a Tribe redesign, consolidate, reallocate, or
redirect the funds included in a funding agreement?
A Tribe may redesign, consolidate, reallocate, or redirect funds
included in the Tribe's funding agreement in any manner it considers to
be in the best interest of the Indian community being served, subject
to any statutory requirements specific to the funding program, provided
that the funds are expended on projects identified in a transportation
improvement program approved by the Department, where statutorily
required, and used in accordance with the requirements in
appropriations acts, title 23 of the U.S. Code, chapter 53 of title 49
of the U.S. Code, and any other applicable law. However, a Tribe must
use any discretionary or competitive grant funds or 23 U.S.C. 202(a)(9)
funds included in the funding agreement, for the purpose for which the
funds were originally authorized.
Sec. 29.311 How is a funding agreement amended?
A funding agreement may be amended by the mutual written agreement
of the Department and the Tribe as provided for in the funding
agreement. The Department will not revise, amend, or require additional
terms in a new or subsequent funding agreement without the consent of
the
[[Page 52722]]
Tribe, unless such terms are required by Federal law.
Sec. 29.312 Is a subsequent funding agreement retroactive to the end
of the term of the preceding funding agreement?
When the Department and a Tribe execute a subsequent funding
agreement, the provisions of such a funding agreement are retroactive
to the end of the term of the preceding funding agreement.
Subpart E--Rules and Procedures for Transfer of Funds
Sec. 29.400 What funds may a Tribe elect to include in a funding
agreement?
A Tribe may elect to include in a funding agreement the following
funds:
(a) Funds provided to the Tribe under the Tribal Transportation
Program identified in 23 U.S.C. 202 in accordance with the statutory
formula set forth in 23 U.S.C. 202(b);
(b) Any transit funds provided to the Tribe under 49 U.S.C. 5311;
(c) Funds for any discretionary and competitive grant administered
by the Department awarded to the Tribe for a transportation program
under title 23 of the U.S. Code or chapter 53 of title 49 of the U.S.
Code;
(d) Funds for any other discretionary and competitive grant for a
transportation-related purpose administered by the Department otherwise
available to the Tribe; and
(e) Federal-aid funds apportioned to a State under chapter 1 of
title 23 of the U.S. Code if the State elects to provide a portion of
such funds to the Tribe for a project eligible under 23 U.S.C.
202(a)(9) or formula funds awarded to a State under 49 U.S.C. 5311 that
are allocated to the Tribe by the State, and at the election of both
the Tribe and State are designated for the direct obligation of funds
to the Tribe.
Sec. 29.401 What funds must the Department transfer to a Tribe in a
funding agreement?
(a) Subject to the terms of a funding agreement, the Department
must transfer to a Tribe all the funds provided for in the funding
agreement.
(b) The Department must provide funds for periods covered by a
joint resolution adopted by Congress making continuing appropriations
and authorization extensions, to the extent permitted by such
resolutions. The Department will defer payment of funds to the Tribe if
the period of continuing appropriations is less than 35 days.
(c) The Department will include funds in a funding agreement in the
amount equal to:
(1) The sum of the funds that the Tribe would otherwise receive in
accordance with a funding formula or other allocation method set forth
in title 23 U.S.C. or 49 U.S.C. chapter 53; and
(2) Such additional amounts as the Department determines equal the
amounts that would have been withheld, if any, for the costs of the
Bureau of Indian Affairs to administer the program or project on behalf
of the Tribe.
Sec. 29.402 Which entity is responsible for the funds included in a
funding agreement?
The Tribe is responsible for implementing the Tribe's PSFAs using
the funds included in a funding agreement and for administering the
funds in accordance with this part. In addition, the Tribe must carry
out its PSFAs in accordance with the funding agreement, and all
applicable statutes and regulations identified in the funding
agreement.
Sec. 29.403 When must the Department transfer to a Tribe the funds
identified in a funding agreement?
When a funding agreement requires an annual transfer of funds to be
made by the Department at the beginning of a fiscal year, or requires
semiannual or other periodic transfers of funds to be made to the
Tribe, the Department will make the first transfer no later than 30
days after the apportionment of such funds by the Office of Management
and Budget to the Department, unless the funding agreement provides
otherwise.
Sec. 29.404 When must the Department transfer funds that were not
paid as part of the initial lump sum payment (or initial periodic
payment)?
The Department must transfer any funds that were not paid in the
initial lump sum payment (or initial periodic payment) within 30 days
after the apportionment of such funds by the Office of Management and
Budget to the Department, and the Department has determined any
distribution methodologies, as applicable, and made other decisions
regarding payment of those funds.
Sec. 29.405 When must the Department transfer funds for a
discretionary or competitive grant?
If the Department selects a Tribe for a discretionary or
competitive grant, and the Tribe elects to include the grant funds in
its funding agreement, the Department will transfer the funds to a
Tribe in accordance with the terms of the Notice of Funding Opportunity
or as the Department and the Tribe may agree. The Department will
transfer these funds no later than 30 days after the Department and the
Tribe execute a funding agreement or an amendment covering the grant.
Sec. 29.406 Does the award of funds for a discretionary or
competitive grant entitle a Tribe to receive the same amount in
subsequent years?
The award of funds for a discretionary or competitive grant does
not entitle a Tribe to receive the same amount of funds in subsequent
years.
Sec. 29.407 Does the award of funds for discretionary or competitive
grants entitle the Tribe to receive contract support costs?
Funds awarded for discretionary and competitive grants do not
entitle the Tribe to receive contract support costs, are not part of
the amount required to be transferred by the Department pursuant to 25
U.S.C. 5325, and are not subject to the prohibition on the Department's
ability to reduce funds in Sec. 29.413(a)(4). However, a Tribe may use
grant funds to cover overhead and administrative expenses associated
with operation of the grant, as provided in the grant award.
Sec. 29.408 How may a Tribe use interest earned on funds included in
a funding agreement?
A Tribe may retain interest earned on funds included in a funding
agreement to carry out governmental or transportation purposes.
Sec. 29.409 May a Tribe carry over from one fiscal year to the next
any funds that remain at the end of the funding agreement?
The period of availability for funds transferred to a Tribe in a
funding agreement does not lapse, except where the Tribe receives funds
pursuant to a discretionary or competitive grant award for which
Congress authorizes a defined period of availability. After transfer to
the Tribe, such funds will remain available until expended. If a Tribe
elects to carry over funds from one fiscal year to the next, such
carryover funds will not diminish the amount of formula funds the Tribe
is authorized to receive under its funding agreement in that or any
subsequent fiscal year.
Sec. 29.410 May a Tribe use remaining funds from a competitive or
discretionary grant included in a funding agreement?
A Tribe may use remaining funds from a competitive or discretionary
grant included in a funding agreement, but only with written approval
from the Department. The Department must determine that the use of such
funds is consistent with the statutory requirements of the grant
program, including purpose and time, and is for the project for which
the grant was provided.
[[Page 52723]]
Sec. 29.411 Are funds included in a compact and funding agreement
non-Federal funds for purposes of meeting matching or cost
participation requirements under any other Federal or non-Federal
program?
Notwithstanding any other provision of law, funds included in a
compact and funding agreement are non-Federal funds for purposes of
meeting matching or cost participation requirements under any other
Federal or non-Federal program.
Sec. 29.412 May the Department increase the funds included in the
funding agreement if necessary to carry out the Program?
The Department may increase the funds included in the funding
agreement if necessary to carry out the Program. However, the Tribe and
the Department must agree to any transfer of funds to the Tribe unless
otherwise provided for in the funding agreement.
Sec. 29.413 How will the Department assist a Tribe with its credit
requests?
At the request of a Tribe that has applied for a loan or other
credit assistance from a State infrastructure bank or other financial
institution to complete an eligible transportation-related project with
funds included in a funding agreement, the Department will provide
documentation in its possession or control to assist the Tribe.
Sec. 29.414 What limitations apply to Department actions related to
transfer of funds associated with PSFAs?
The Department will not:
(a) Fail or refuse to transfer to a Tribe its full share of funds
due under the program, except as required by Federal law;
(b) Withhold portions of such funds for transfer over a period of
years;
(c) Reduce the amount of funds identified for transfer in a funding
agreement to make funding available for self-governance monitoring or
administration by the Department;
(d) Reduce the amount of funds required under the program in
subsequent years, except pursuant to:
(1) A reduction in appropriations or change in the funding formula
results from the previous fiscal year for the funds included in a
funding agreement;
(2) A congressional directive in legislation or accompanying
report;
(3) A Tribal authorization;
(4) A change in the amount of pass-through funds included in the
funding agreement;
(5) A termination of the funding agreement (or portion thereof) due
to a finding of gross mismanagement or imminent jeopardy pursuant to
subpart I;
(6) Completion of a project, activity, or program for which
competitive or discretionary grant funds were provided or expenditure
of all competitive or discretionary grant funds authorized by the
Department under separate statutory authorities for an eligible
project, activity, or program; or
(7) A final decision by the Department pursuant to subpart I to
terminate a compact and funding agreement (or portions thereof) due to
gross mismanagement or imminent jeopardy.
(e) Reduce the amount of funds identified in a funding agreement to
pay for Federal functions, including Federal pay costs, Federal
employee retirement benefits, automated data processing, technical
assistance, and monitoring of activities under the program, except that
such prohibition is inapplicable when Congress authorizes the
Department to set aside a portion of the funds for project monitoring
and oversight related functions; or
(f) Reduce the amount of funds required under the Program to pay
for costs of Federal personnel displaced by compacts and funding
agreements.
Sec. 29.415 Does the Prompt Payment Act apply to funds transferred to
a Tribe in a funding agreement?
The Prompt Payment Act, 39 U.S.C. 3901 et seq., applies to the
transfer of funds under this program.
Sec. 29.416 What standard applies to a Tribe's management of funds
included in a funding agreement?
(a) A Tribe must invest and manage funds included in a funding
agreement as a prudent investor would, in light of the purpose, terms,
distribution requirements, and applicable provisions in the compact and
funding agreement. This duty requires the exercise of reasonable care,
skill, and caution, and is to be applied to investments not in
isolation, but in the context of the investment portfolio and as a part
of an overall investment strategy, which should incorporate risk and
return objectives reasonably suited to the Tribe. In making and
implementing investment decisions, the Tribe has a duty to diversify
the investments unless, under the circumstances, it is prudent not to
do so.
(b) The Tribe must:
(1) Conform to fundamental fiduciary duties of loyalty and
impartiality;
(2) Act with prudence in deciding whether and how to delegate
authority and in the selection and supervision of agents; and
(3) Incur only costs that are reasonable in amount and appropriate
to the investment responsibilities of the Tribe.
Sec. 29.417 Must a Tribe continue performance of the Tribal
Transportation Program or the Tribal Transit Program under a compact
and funding agreement if the Department does not transfer sufficient
funds?
A Tribe does not have to continue performance of the Tribal
Transportation Program (23 U.S.C. 202(b)) or the Tribal Transit Program
(49 U.S.C. 5311(c)(1)) that requires an expenditure of funds in excess
of the amount of funds included in a funding agreement. If at any time
the Tribe has reason to believe that the total amount included in a
funding agreement is insufficient, the Tribe must provide reasonable
notice of such insufficiency to the Chief Self-Governance Official. If
the Department does not increase the amount of funds included in the
funding agreement for the Tribal Transportation Program or Tribal
Transit Program, the Tribe may suspend performance of the program
activity until such time as the Department transfers additional funds.
Sec. 29.418 May a funding agreement include transfers of State funds?
(a) A State may elect to provide a portion of Federal-aid funds
apportioned to the State under chapter 1 of title 23 of the U.S. Code
to an eligible Tribe for a project eligible under 23 U.S.C. 202(a).
(b) If a State provides such funds, the transfer may occur in
accordance with 23 U.S.C. 202(a)(9), or the State may transfer the
funds back to the Department, and the Department will transfer the
funds to the participating Tribe through the Tribe's funding agreement.
(c) If a State provides such funds, the Tribe (and not the State)
will be responsible for constructing and maintaining any projects
carried out using the funds and for administering and supervising the
projects and funds in accordance with 23 U.S.C. 207 during the
applicable statute of limitations period related to the construction of
the project.
(d) Contract support costs will not be made available to a Tribe in
connection with any State funds transferred at the election of a State
to the Tribe pursuant to 23 U.S.C. 202(a)(9) or funds awarded to a
State pursuant to 49 U.S.C. 5311 that are transferred at the election
of a State to FTA for the benefit of a Tribe. However, overhead and
administrative expenses may be an eligible use of such funds.
[[Page 52724]]
Sec. 29.419 Does the award of formula funds entitle a Tribe to
receipt of contract support costs?
The award of formula funds does not entitle a Tribe to receipt of
contract support costs under 25 U.S.C. 5325(a). A funding agreement
under this part will not provide additional funds for contract support
costs to carry out PSFAs. While a Tribe is not entitled to additional
funds for contract support costs, a Tribe may use a portion of its
formula funds (Sec. 29.400(a) and (b)) for overhead and administrative
expenses if such costs are reasonable, allowable, and allocable in
accordance with 2 CFR part 200 and the applicable statutory and
regulatory program requirements.
Sec. 29.420 Is a Tribe entitled to enter into facility leases from
the Department and to receive facility support costs?
A Tribe is not entitled to enter into facility leases with the
Department and receive facility support costs. A funding agreement
under this part will not provide additional funds for facility leases
and facility support costs to carry out PSFAs. However, facility leases
and facility support costs may be an eligible and allowable use of
funds a Tribe receives under a funding agreement.
Subpart F--Program Operations
Audits and Cost Principles
Sec. 29.500 Must a Tribe undertake an annual audit?
A Tribe that meets the applicable thresholds under 2 CFR 200.501
must undertake an annual audit pursuant to the regulations set forth in
2 CFR part 200, Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards, except to the extent that
part exempts a Tribe from complying with the audit requirements.
Sec. 29.501 Must a Tribe submit any required audits to the Federal
Audit Clearinghouse and the Department?
A Tribe must submit any required audits to the Federal Audit
Clearinghouse pursuant to the Office of Management and Budget
procedures and provide prompt notice to the Department it has done so.
Sec. 29.502 How long must a Tribe keep and make records available for
Federal examination or audit?
A Tribe must keep books, documents, papers, and records of funding,
grants, and State-provided funds for 3 years from the date of
submission of the Single Audit Act audit and provide access to the
Department or the Comptroller General for audit and examination related
to grants, contracts, compacts subcontracts, sub-grants, or other
arrangements.
Sec. 29.503 Who is responsible for compiling, copying, and paying for
materials for any audit or examination?
The agency or entity undertaking the examination or audit will be
responsible for all costs associated with an audit or examination of
Tribal records. Tribes are responsible to make records available during
regular business hours, and may prevent removal of the records from
Tribal offices. If an agency or entity undertaking the examination or
audit requests that the Tribe make copies of records for its use, the
Tribe may charge the examining agency reasonable per-page fees for
photocopying or scanning of documents and records.
Sec. 29.504 How may the Federal Government make a claim against a
Tribe relating to any disallowance of costs based on an audit conducted
under this part?
(a) Disallowance of costs. Any claim by the Federal Government
against a Tribe relating to funds included in a funding agreement based
on any audit conducted pursuant to this part is subject to 25 U.S.C.
5325(f).
(1) Any right of action or other remedy (other than those relating
to a criminal offense) relating to any disallowance of costs is barred
unless the Department provides notice of such a disallowance within 365
days from receiving any required annual audit report. The notice must
set forth the right of appeal and hearing in accordance with Sec. Sec.
29.912 through 29.923.
(2) To calculate the 365-day period, an audit report is deemed
received by the Department on the date of electronic submission to the
Federal Audit Clearinghouse. The Department has 60 days after receiving
the audit report to give notice to the Tribe of its determination to
reject an audit report as insufficient due to non-compliance with the
applicable provisions of 2 CFR part 200 or any applicable statute.
(b) Criminal penalties. Any person, officer, director, agent,
employee, or person otherwise connected with a recipient of a contract,
subcontract, grant, or sub-grant who embezzles, willfully misapplies,
steals, or obtains by fraud any of the money, funds, assets, or
property provided to the recipient will be fined not more than $10,000
or imprisoned for not more than 2 years, or both. If the amount of
funds in question does not exceed $100, then the fine will be no more
than $1,000 and imprisonment not more than 1 year, or both.
Sec. 29.505 What cost principles must a Tribe apply in compacts and
funding agreements under this part?
(a) A Tribe must apply the applicable cost principles of the Office
of Management and Budget's Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards, 2 CFR part 200,
except as modified by:
(1) 25 U.S.C. 5325(k), which sets forth certain categories of
allowable uses of funds that a Tribe may include in a funding agreement
provided that such use supports implementation of the PSFA.
(2) Other provisions of Federal law; or
(3) Any subsequent exemptions granted by the Office of Management
and Budget.
(b) The Department may not require other audit or accounting
standards.
Management Systems and Standards
Sec. 29.506 What are the general financial management system
standards that apply to a Tribe when carrying out a compact and funding
agreement under this part?
(a) Generally. A Tribe carrying out a compact and funding agreement
under this part must develop, implement, and maintain systems that meet
the minimum financial standards set forth in this section, unless one
or more of the standards have been waived, in whole or in part.
(b) Applicability to Tribal contractors. A Tribe may require that
its contractors comply with some or all of the standards in this
section when the Tribe retains contractors to assist in carrying out
the requirements of a funding agreement.
(c) Evaluation. When required under 2 CFR part 200, an independent
auditor retained by a Tribe must evaluate the financial management
systems of the Tribe through an annual audit report in accordance with
the Single Agency Audit Act, 31 U.S.C. 7501-7506.
(d) Financial management systems standards. The general financial
management system standards that apply to a Tribe carrying out a
funding agreement under this part must expend and account for funds
provided to the Tribe through a funding agreement in accordance with
all statutory requirements applicable to the receipt and use of the
funds being provided, as well as the requirements set forth in the
applicable compact and funding agreement, and applicable provisions of
2 CFR part 200.
[[Page 52725]]
Sec. 29.507 What general minimum standards apply to a Tribe's
financial management systems when carrying out a compact and funding
agreement?
The following general minimum standards apply to a Tribe's
financial management systems when carrying out a compact and funding
agreement. The fiscal control and accounting procedures of a Tribe must
be sufficient to:
(a) Permit preparation of reports required by the compact, funding
agreement, and this part; and
(b) Permit the tracing of program funds to a level of expenditure
adequate to establish that the funds have not been used in violation of
any restrictions or prohibitions contained in any statute or provision
of 2 CFR part 200 that applies to the receipt and use of the funds
included in the compact and funding agreement.
Sec. 29.508 What specific minimum requirements must a Tribe's
financial management system include to meet general minimum standards?
To meet the general minimum standards of Sec. 29.507, the
financial management system of a Tribe must include the following
specific minimum requirements:
(a) Financial reports. The financial management system must provide
for accurate, current, and complete disclosure of the financial results
of activities carried out by the Tribe under a compact and funding
agreement;
(b) Accounting records. The financial management system must
maintain records sufficiently detailed to identify the source and
application of funding transferred to the Tribe in a funding agreement.
The system must contain sufficient information to identify contract
awards, obligations and unobligated balances, assets, liabilities,
outlays, or expenditures and income;
(c) Internal controls. The financial management system must
maintain effective control and accountability for all funds transferred
to the Tribe in the funding agreement and for all Federal real
property, personal property, and other assets furnished for use by the
Tribe under its compact and funding agreement;
(d) Budget controls. The financial management system must permit
the comparison of actual expenditures or outlays with the amounts
budgeted by the Tribe for each funding agreement; and
(e) Allowable costs. The financial management system must be
sufficient to determine that the expenditure of funds is reasonable,
allowable, and allocable based upon the terms of the funding agreement
and applicable provisions of 2 CFR part 200.
Sec. 29.509 What procurement standards apply to contracts carried out
using funds included in a funding agreement?
(a) Each contract carried out using funds included in a funding
agreement must, at a minimum:
(1) Be in writing;
(2) Identify the interested parties, their respective roles and
responsibilities, and the purposes of the contract;
(3) State the work to be performed under the contract;
(4) State the process for making any claim, the payments to be
made, and the terms of the contract; and
(5) State that it is subject to 25 U.S.C. 5307(b) to the extent
identified in Sec. 29.525.
(b) A Tribe that chooses to use a procurement method that is not
provided for in its established procurement management standards in the
delivery of a Tribal transportation project must submit the request to
deviate from these standards to the Department for review and approval
in accordance with Sec. 29.515. The deviation request must specify the
procurement method that the Tribe proposes to use and the project to
which such method will be applied.
Sec. 29.510 What property management systems and standards must a
Tribe maintain?
(a) Property management system. A Tribe must maintain a property
management system to account for all property acquired with funds
included in a funding agreement, acquired with Federal funds awarded by
the Department or the Department of the Interior, or obtained as excess
or surplus Federal property to be used for activities under the
Program. The property management system must contain requirements for
the use, care, maintenance, and disposition of such property as
follows:
(1) Where title vests in the Tribe, in accordance with Tribal law
and procedures; or
(2) In the case of a consortium, according to the internal property
procedures of the consortium.
(b) Transit asset management. In addition to the property
management system and standards in this section, property acquired with
transit funds (chapter 53 of Title 49 U.S. Code) is subject to the
property management requirements set forth in 49 U.S.C. 5326 concerning
the transit asset management plan, performance targets, and reports.
(c) Tracking requirements under a property management system. The
property management system of the Tribe relating to property used under
the Program must track:
(1) Personal property and rolling stock with an acquisition value
in excess of $5,000 per item;
(2) Sensitive personal property, which is all personal property
that is subject to theft and pilferage, as defined by the Tribe; and
(3) Real property.
(d) Records. The property management system must maintain records
that accurately describe the property, including any serial number,
vehicle identification number, or other identification number. These
records should contain current information such as the source,
titleholder, acquisition date, acquisition cost, share of Federal
participation in the cost, location, use and current condition of the
property, and the date of disposal and sale price, if any.
(e) Internal controls. The property management system must maintain
effective internal controls that include, at a minimum, procedures for
the Tribe to:
(1) Conduct periodic, physical inventories at least once every 2
years and reconcile such inventories with the Tribal internal property
and accounting records;
(2) Prevent loss or damage to property; and
(3) Ensure that property is used by the Tribe to carry out
activities under a funding agreement until the Tribe declares the
property excess to the needs of the PSFAs carried out by the Tribe
under the funding agreement, consistent with the property management
system of the Tribe.
(f) Maintenance requirements. Required maintenance includes the
performance of actions necessary to keep the property in good working
condition, the procedures recommended by equipment manufacturers, and
steps necessary to protect the interests of the Tribe and the
Department in any express warranties or guarantees covering the
property.
(g) Disposition of personal property acquired under a funding
agreement. Prior to disposition of any personal property, including
rolling stock, the Tribe must report to the Chief Self-Governance
Official in writing of the property's status (e.g., worn out, lost,
stolen, damaged beyond repair, or no longer needed to carry out
activities under a funding agreement). The Department will provide
disposition instructions in accordance with 2 CFR 200.313. A Tribe may
retain, sell or otherwise dispose of personal property with a current
per unit fair market value
[[Page 52726]]
of $5,000 or less with no further obligation to the Department.
(h) Disposition of real property acquired under a funding
agreement. Prior to disposition of any real property acquired under a
funding agreement, the Tribe must report to the Chief Self-Governance
Official, who will ensure the Department provides disposition
instructions in accordance with 2 CFR 200.311.
Records
Sec. 29.511 Must a Tribe maintain a recordkeeping system?
A Tribe must maintain records and provide Federal agency access to
those records as provided in 25 U.S.C. 5386(d) and the statutory
requirements of the funds included in a funding agreement.
Sec. 29.512 Are Tribal records subject to the Freedom of Information
Act and Federal Privacy Act?
(a) Except to the extent that a Tribe specifies otherwise in its
compact or funding agreement, the records of the Tribe retained by the
Tribe will not be considered Federal records for purposes of chapter 5
of title 5, U.S. Code.
(b) Tribal records submitted to the Department are considered
Federal records for the purposes of the Freedom of Information Act and
Federal Privacy Act. If a Tribe provides information to the Department
that the Tribe considers to be trade secret, or confidential commercial
or financial information, the Tribe must identify it as such. The
Department will not disclose the information to the public, except to
the extent required by law. In the event the Department receives a FOIA
request for the information, the Department will follow the procedures
described in its FOIA regulations at 49 CFR part 7.
Sec. 29.513 Must a Tribe make its records available to the
Department?
After 30 days advance written notice from the Department, a Tribe
must provide the Department with reasonable access to such records to
enable the Department to meet its minimum legal recordkeeping system
and audit requirements.
Sec. 29.514 How long must a Tribe keep management system records?
A Tribe must keep books, documents, papers, and records of funding,
grants, and State-provided funds for 3 years from the date of
submission of the Single Audit Act audit such that the Department or
the Comptroller General may have access to the records for audit and
examination related to grants, contracts, compacts subcontracts, sub-
grants, or other arrangements.
Procurement
Sec. 29.515 When procuring property or services with funds included
in a funding agreement, can a Tribe follow its own procurement
standards?
When procuring property or services with funds included in a
funding agreement, a Tribe must have standards that conform to the
procurement standards in this subpart. If a Tribe relies upon
procurement standards different than those described in Sec. 29.516,
it must identify the standards it will use in a proposed waiver in the
initial negotiation of a funding agreement or as a waiver request to an
existing funding agreement. The Tribe must submit the request to the
Department in accordance with Sec. 29.535.
Sec. 29.516 What are the minimum procurement standards that a Tribe
must follow when procuring property or services with funds included in
a funding agreement?
A Tribe must follow the minimum procurement standards set forth
below when procuring property or services with funds included in a
funding agreement.
(a) Minimum procurement standards. (1) A Tribe must ensure that its
vendors and contractors perform in accordance with the terms,
conditions, and specifications of their contracts or purchase
agreements or orders.
(2) A Tribe must maintain written standards of conduct governing
the performance of its employees who award and administer contracts
paid for using funds transferred to the Tribe under a funding
agreement.
(i) An employee, officer, elected official, or agent of a Tribe
must not participate in the selection, award, or administration of a
procurement supported by Federal funds if a conflict of interest, real
or apparent, as defined in the conflict of interest policies of the
Tribe, would be involved.
(ii) Employees, officers, elected officials, or agents of a Tribe,
or of a subcontractor of the Tribe, must not solicit or accept
gratuities, favors, or anything of monetary value from contractors,
potential contractors, or parties to sub-agreements, except that the
Tribe may exempt a financial interest that is not substantial or a gift
that is an unsolicited item of nominal value.
(iii) The standards must also provide for penalties, sanctions, or
other disciplinary actions for violations of the procurement standards.
(3) A Tribe must review proposed procurements to avoid buying
unnecessary or duplicative items and ensure the reasonableness of the
price. The Tribe should consider consolidating or breaking out
procurement to obtain more economical purchases. Tribes are encouraged
to realize economies of scale in the procurement of goods, services,
and supplies under this part, including the negotiation of cooperative
agreements with other public authorities. Where appropriate, the Tribe
must compare leasing and purchasing alternatives to determine which is
more economical.
(4) A Tribe must conduct all major procurement transactions that
exceed the simplified acquisition threshold set forth in 2 CFR 200.88
by providing full and open competition, to the extent necessary to
assure efficient expenditure of contract funds and to the extent
feasible in the local area.
(i) Consistent with 2 CFR 200.88, a Tribe may develop its own
definition for a simplified acquisition threshold.
(ii) A Tribe may apply to any procurement award the Indian
preference requirements for wages and grants contained in 25 U.S.C.
5307(b).
(5) A Tribe must make procurement awards only to responsible
entities with the ability to perform successfully under the terms and
conditions of the proposed procurement. In making this judgment, the
Tribe will consider such matters as the contractor's integrity, its
compliance with public policy, its record of past performance, and its
financial and technical resources.
(6) A Tribe must maintain records on the significant history of all
major procurement transactions. These records must include, but are not
limited to, the rationale for the method of procurement, the selection
of contract type, the contract selection or rejection, and the basis
for the contract price.
(7) A Tribe is solely responsible, using good administrative
practice and sound business judgment, for processing and settling all
contractual and administrative issues arising out of a procurement.
These issues include, but are not limited to, source evaluation,
protests, disputes, and claims.
(i) The settlement of any protest, dispute, or claim will not
relieve the Tribe of any obligations under a funding agreement.
(ii) Violations of law must be referred to the Tribal or Federal
authority having proper jurisdiction.
(b) Conflicts of interest. A Tribe participating in the program
must ensure that internal measures and controls are in place to address
conflicts of interest in the administration of compacts and funding
agreements under this part.
[[Page 52727]]
Sec. 29.517 Do Federal laws and regulations apply to a Tribe's
contractors or subcontractors?
A Tribe's contractors are responsible for complying with Federal
laws and regulations. Contracts between a Tribe and its contractors
should inform contractors that the contract is carried out using funds
transferred to the Tribe in a funding agreement, and that the
contractors and its subcontractors are responsible for identifying and
ensuring compliance with applicable Federal laws and regulations. The
Department and the Tribe may, through negotiation, identify all or a
portion of such requirements in the funding agreement and, if so
identified, these requirements should be identified in the contracts
the Tribe awards using funds included in a funding agreement.
Sec. 29.518 Can a Tribe use Federal supply sources in the performance
of a compact and funding agreement?
A Tribe and its employees may use Federal supply sources (including
lodging, airline, interagency motor pool vehicles, and other means of
transportation) to the same extent as if the Tribe were a Federal
agency. The Department will assist the Tribes, to the extent feasible,
to resolve any barriers to full implementation.
Reporting
Sec. 29.519 What reporting must a Tribe provide?
(a) A Tribe must provide reports mandated by statute associated
with the funds included in the funding agreement. In accordance with
Sec. 29.307, the funding agreement will list these reporting
requirements. A Tribe will cooperate with the Department to assist it
in complying with its statutory reporting requirements. No additional
reporting will be required.
(b) Notwithstanding paragraph (a) of this section, if the Tribe
includes funds for a discretionary or competitive grant in a funding
agreement, the parties will negotiate the appropriate reporting
requirements to include in the funding agreement.
Property
Sec. 29.520 How may a Tribe use existing Department facilities,
equipment, or property?
At the request of a Tribe, the Department will permit a Tribe to
use and maintain existing facilities, equipment therein or appertaining
thereto, and other personal property, if applicable, owned by the
Government within the Department's jurisdiction, subject to terms and
conditions agreed to by the Department and the Tribe. The requested
facilities, equipment, or property must be used to carry out the
Tribe's PSFAs under the compact and funding agreement. Such facilities,
equipment, or other personal property will be eligible for replacement,
maintenance, and improvement using funds included in a funding
agreement, or the Tribe may expend its own funds. The Department does
not have any additional funding sources for replacement, maintenance,
or improvement of such facilities, equipment, other personal property.
The Department will exercise discretion in a way that gives the maximum
effect to the request of a Tribe to use such facilities, equipment, or
property.
Sec. 29.521 How may a Tribe acquire surplus or excess Federal
property for use under the Program?
A Tribe may acquire any surplus or excess property for use in the
performance of the compact and funding agreement consistent with the
procedures established by the General Services Administration. The
Tribe must notify the Chief Self-Governance Official of the surplus or
excess property it proposes to acquire and the purpose for which it
will be used in the performance of the compact or funding agreement. If
the Department participates in the acquisition by the Tribe of any
excess or surplus Federal property, the Department will expeditiously
process the request and assist the Tribe in its acquisition to the
extent feasible and exercise discretion in a way that gives maximum
effect to the Tribe's request for donation of the excess or surplus
Federal property. When the Department's participation is required, the
Department should expeditiously request acquisition of the property
from General Services Administration or the holding agency, as
appropriate, by submitting the necessary documentation prior to the
expiration of any ``freeze'' placed on the property by the Tribe or the
Department on the Tribe's behalf. The Tribe must take title to any
property acquired pursuant to this section. Such surplus or excess
property will be eligible for replacement, maintenance, and improvement
using funds included in a funding agreement, or the Tribe may expend
its own funds. The Department does not have any additional funding
sources for replacement, maintenance, or improvement of such surplus or
excess property.
Sec. 29.522 How must a Tribe use surplus or excess Federal property
acquired under the Program?
The Tribe must use any property acquired under this section in a
manner consistent with the justification submitted at acquisition. The
Tribe should notify the Chief Self-Governance Official whenever use of
the property changes significantly and upon disposal or sale.
Sec. 29.523 If a compact or funding agreement (or portion thereof) is
retroceded, reassumed, terminated, or expires, may the Department
reacquire title to property purchased with funds under any compact and
funding agreement or excess or surplus Federal property that was
donated to the Tribe under the Program?
If a compact or funding agreement (or portion thereof) is
retroceded, reassumed, terminated, or expires, the Tribe retains title
to the property purchased with funds under any compact or funding
agreement or excess for surplus Federal property donated under the
Program if it is valued at $5,000 or less. If the value of the property
is over $5,000 at the time of retrocession, withdrawal, or
reassumption, title to such property may revert to the Department at
the Department's discretion.
Technical Assistance
Sec. 29.524 What technical assistance is available from the
Department?
Upon the written request of a Tribe, and to the extent feasible,
the Department will provide technical assistance, including periodic
program reviews, to assist a Tribe improve its performance in carrying
out the Program.
Prevailing Wages
Sec. 29.525 Do the wage and labor standards in the Davis-Bacon Act
apply to employees of a Tribe?
Wage and labor standards of the Davis-Bacon Act do not apply to
employees of a Tribe. However, Davis Bacon wage rates apply to all
Tribal contractors and subcontractors.
Tribal Preference
Sec. 29.526 Does Indian preference apply to PSFAs under the Program?
To the greatest extent feasible, any contract, subcontract, grant,
or subgrant under a compact and funding agreement must give preference
for employment and training, and the award of subcontracts and sub-
grants, to Indians, Indian organizations, and Indian-owned economic
enterprises, as defined in 25 U.S.C. 1452.
[[Page 52728]]
Sec. 29.527 When do Tribal employment law and contract preference
laws govern?
To the extent provided in applicable Federal law, Tribal law
governs Indian preference policies in the performance of a compact and
funding agreement under the Program. When a compact or funding
agreement is intended to benefit one Tribe, the Tribal employment or
contract preference laws adopted by such Tribe will govern with respect
to the administration of the compact and funding agreement.
Environmental and Cultural Resource Compliance
Sec. 29.528 What compliance with environmental and cultural resource
statutes is required?
(a) The Department must meet the requirements of applicable Federal
environmental and cultural resource laws, such as the National
Environmental Policy Act and the National Historic Preservation Act,
for a proposed project under the Program.
(b) The Secretary has delegated environmental and cultural resource
compliance responsibilities to the Operating Administrations, as
appropriate. As such, an Operating Administration will serve as the
lead agency responsible for final review and approval of environmental
documents, and any associated environmental determinations and findings
for a proposed project under the Program. The Secretary, as delegated
to the Operating Administrations, is also responsible for making
determinations and issuing approvals in accordance with Section 4(f)
(23 U.S.C. 138 and 49 U.S.C. 303), as applicable. Tribes may consult
with the Chief Self-Governance Official to determine which Operating
Administration should serve as the lead agency.
(c) If the Department is conducting the environmental review
process for a proposed project under the Program, the Tribe must assist
the Department to satisfy the requirements of applicable Federal
environmental and cultural resource laws.
(d) A Tribe may manage or conduct the environmental review process
for a proposed project under the Program and may prepare drafts of the
appropriate environmental review documents for submission to the
Department.
(1) A Tribe may follow its own environmental review procedures if
the procedures and documentation also satisfy the Federal environmental
review requirements applicable to the project. A Tribe should work with
the Operating Administration serving as lead agency to ensure the
Tribal process will satisfy all applicable Federal environmental review
requirements.
(2) The Operating Administration serving as lead agency must
determine that the process and documentation satisfy the applicable
Federal environmental review requirements.
(e) As resources permit and at the request of a Tribe, the
Department will provide advice and technical assistance to the Tribe to
assist in the management of the Federal environmental review process
and preparation of environmental documents.
(f) Unless prohibited by law, a Tribe may use funds included in a
funding agreement to pay for environmental review activities.
Federal Tort Claims Act
Sec. 29.529 Is the Federal Tort Claims Act applicable to a Tribe when
carrying out a compact and funding agreement under the Program?
(a) Section 314 of Public Law 101-512 and 25 U.S.C. 5396(a)
incorporated by 23 U.S.C. 207(l)(8) make the Federal Tort Claims Act
(FTCA), 28 U.S.C. 1346(b), 2401, 2671-2680, applicable to a Tribe
carrying out a compact and funding agreement under the Program.
(b) Contractors, subcontractors, or sub-recipients of a Tribe are
not subject to the terms and conditions of FTCA. The Tribe may use the
regulations set forth in 25 CFR part 900, subpart M, as guidance on the
Tribe's rights and responsibilities under the FTCA. Accordingly, the
Tribe must include, in any contract entered into with funds provided
under a compact and funding agreement, a requirement that contractors,
sub-contractors, or sub-recipients maintain applicable insurance
coverage, such as workers compensation, auto, and general liability
insurance, consistent with statutory minimums and local industry
standards.
Sec. 29.530 What steps should a Tribe take after becoming aware of a
Federal Tort Claim?
(a) Immediately after receiving a claim or a summons and complaint
filed under the FTCA, the Tribe must notify the Chief Self-Governance
Official at [email protected] or use any other method that provides
receipt.
(b) The Tribe, through a designated tort claims liaison assigned by
the Tribe, must assist the Department in preparing a comprehensive and
factually based report, which will inform the Department's report to
the U.S. Department of Justice.
(c) The Tribe's designated tort claims liaison must immediately
provide the following significant details of the event and include, as
appropriate and to the extent within their knowledge, possession, or
control:
(1) The date, time, and exact place of the accident or incident;
(2) A concise and complete statement of the circumstances of the
accident or incident;
(3) The names and addresses of Tribal or Federal employees involved
as participants or witnesses;
(4) The names and addresses of all other eyewitnesses;
(5) An accurate description of all Federal, Tribal, and privately
owned property involved, and the nature and amount of damage, if any;
(6) A statement as to whether any person involved was cited for
violating a Federal, State, or Tribal law, ordinance, or regulation;
(7) The Tribe's determination as to whether any of its employees
(including Federal employees assigned to the Tribe) involved in the
incident giving rise to the tort claim were acting within the scope of
their employment in carrying out the funding agreement at the time the
incident occurred;
(8) Copies of all relevant documentation, including available
police reports, statements of witnesses, newspaper accounts, weather
reports, plats, and photographs of the site or damaged property, that
may be necessary or useful for the Department to determine the claim;
and
(9) Insurance coverage information, copies of medical bills, and
relevant employment records.
(d) The Tribe must cooperate with and provide all necessary
assistance to the U.S. Department of Justice and the Department's
attorneys assigned to defend the tort claim including, but not limited
to, case preparation, discovery, and trial.
(e) If requested by the Department, the Tribe must make an
assignment and subrogation of all the Tribe's rights and claims (except
those against the Federal Government) arising out of a tort claim
against the Tribe.
(f) If requested by the Department, the Tribe must authorize
representatives of the Department to settle or defend any claim and to
represent the Tribe in or take charge of any action. If the Federal
Government undertakes the settlement or defense of any claim or action,
the Tribe must provide all reasonable additional assistance in reaching
a settlement or asserting a defense.
Sec. 29.531 Is it necessary for a compact or funding agreement to
include any terms about FTCA coverage?
Terms about FTCA coverage are optional in a compact or funding
[[Page 52729]]
agreement, and the FTCA applies even if terms regarding FTCA are not
included in a compact or funding agreement.
Sec. 29.532 Does FTCA cover employees of the Tribe who are paid by
the Tribe from funds other than those provided through the compact and
funding agreement?
Subject to FTCA limitations, the FTCA covers employees of the Tribe
who are not paid from compact and funding agreement funds as long as
the services out of which the claim arose were performed in carrying
out a compact and funding agreement under the Program.
Sec. 29.533 May persons who are not Indians assert claims under FTCA?
Any aggrieved person may assert claims for alleged torts arising
from activities performed in carrying out compacts and funding
agreements under the Program.
Sec. 29.534 Does the year PSFAs are funded affect FTCA coverage?
The year the funding was provided has no effect on the application
of the FTCA.
Waiver of Program Regulations
Sec. 29.535 What is the process for regulation waivers under this
part?
(a) A Tribe may request a waiver of a regulation promulgated under
this part with respect to a compact or funding agreement. The Tribe
must submit the request in writing to the Chief Self-Governance
Official to [email protected] or use any other method that provides
receipt, at the following address: Chief Self-Governance Official, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC
20590. The request must be marked with the words ``REQUEST TO WAIVE
REGULATIONS'' on the first page of the request and on the envelope
enclosing the request (or in the subject line if by electronic mail).
The request must identify the regulation subject to the waiver request,
the language the Tribe seeks to waive, and the basis for the request.
(b) Within 10 days of receipt of the waiver request, the Chief
Self-Governance Official will send the Tribe an acknowledgement of the
waiver request, together with a date-stamped cover sheet that indicates
the date on which the Department received the waiver request.
(c) No later than 90 days after the date of receipt of a written
request under paragraph (a) of this section, the Department must
approve or deny the request in writing. If the application for a waiver
is denied, the Department must provide the Tribe with the reasons for
the denial as part of the written response.
(d) The Department will consider the following factors in making
its decision on a waiver request:
(1) The extent to which the waiver provides flexibility to
facilitate the implementation of the Program at the Tribal level;
(2) The extent to which the Tribe will benefit from the waiver;
(3) Whether the waiver is contrary to Federal law; and
(4) Whether the waiver is consistent with Federal transportation
policy.
(e) If the Department does not approve or deny a request submitted
under paragraph (a) of this section on or before the last day of the
90-day period, the request will be deemed approved by operation of law.
(f) A decision by the Department on a waiver request is a final
agency action subject to judicial review under the Administrative
Procedure Act.
Subpart G--Withdrawal
Sec. 29.600 May a Tribe withdraw from a consortium?
A Tribe may fully or partially withdraw from a consortium in
accordance with any applicable terms and conditions of a consortium
agreement with the Tribe. The withdrawing Tribe must provide written
notification to the consortium and the Department of its decision to
withdraw.
Sec. 29.601 When does a withdrawal become effective?
A withdrawal becomes effective within the time frame specified in
the resolution that authorizes the Tribe to withdraw from the
consortium. In the absence of a specific time frame set forth in the
resolution, such withdrawal becomes effective on:
(a) The earlier of 1 year after the date of submission of such
request, or the date on which the funding agreement expires; or
(b) Such date as may be mutually agreed upon by the Department, the
withdrawing Tribe, and the consortium that has signed the compact and
funding agreement.
Sec. 29.602 How are funds redistributed when a Tribe fully or
partially withdraws from a compact and funding agreement and elects to
enter into a compact with the Department?
A withdrawing Tribe that is eligible for the Program under 23
U.S.C. 207(b) and Sec. 29.100 may enter into a compact and funding
agreement for its share of funds supporting those PSFAs that the Tribe
will carry out, calculated on the same basis as the funds were
initially allocated in the funding agreement of the consortium, unless
otherwise agreed to by the consortium and the Tribe.
Sec. 29.603 How are funds distributed when a Tribe fully or partially
withdraws from a compact and funding agreement administered by a
consortium serving more than one Tribe, and the withdrawing Tribe
elects not to or is ineligible to enter into a compact under this part?
Unless otherwise agreed to by the consortium and the Tribe, the
consortium must return to the Department all funds not obligated and
expended by the consortium associated with the withdrawing Tribe when
the withdrawing Tribe elects not to or is ineligible to enter into a
compact under this part.
Subpart H--Retrocession
Sec. 29.700 May a Tribe retrocede a PSFA and the associated funds?
A Tribe may voluntarily retrocede (fully or partially) its PSFA
under a compact and funding agreement under this Part. A Tribe may
retrocede for any reason.
Sec. 29.701 How does a Tribe notify the Department of its intention
to retrocede?
(a) Notice. A Tribe must submit a written notice of its intent to
retrocede to the Chief Self-Governance Official to [email protected] or by
any other method that provides receipt. The notice must specifically
identify those PSFAs the Tribe intends to retrocede.
(b) Notice to the Department of the Interior. The Department will
send the Tribe's notice of its intention to retrocede to the Department
of the Interior and request that the Department of the Interior
determine whether the PSFA is associated with transportation services
provided by the Department of the Interior.
Sec. 29.702 What happens if the Department of the Interior determines
that it provides the transportation services the Tribe intends to
retrocede?
If the Department of the Interior determines that it provides the
transportation services the Tribe intends to retrocede, the Department
will notify the Tribe. The Tribe must return all remaining funds, less
closeout costs, associated with those transportation services to the
Department for transfer to the Department of the Interior.
Sec. 29.703 What happens if the Department of the Interior determines
that it does not provide the transportation services the Tribe intends
to retrocede?
If the Department of the Interior determines that it does not
provide the
[[Page 52730]]
transportation services the Tribe intends to retrocede, the Tribe may
withdraw its notice to retrocede or return all remaining funds, less
closeout costs, associated with the retroceded PSFA, and the Department
will distribute those funds in accordance with applicable law.
Sec. 29.704 What is the effective date of a retrocession?
The retrocession becomes effective within the timeframe specified
in the funding agreement. In the absence of a specified date, the
retrocession becomes effective:
(a) On the earlier of 1 year after the date of the Tribe's
submission of the request, or the date on which the funding agreement
expires; or
(b) Such date mutually agreed upon by the Departments and the
retroceding Tribe when the Department of the Interior has agreed to
assume a retroceded PSFA.
Sec. 29.705 What effect will a retrocession have on a Tribe's right
to compact under the Program?
Provided that a Tribe is eligible under Sec. 29.100, retrocession
will not adversely affect any future request by the Tribe to include
funds from the same program in a compact or funding agreement.
Sec. 29.706 Will retrocession adversely affect future funding
available for the retroceded program?
Retrocession will not adversely affect future funding for the
retroceded program. Future funding will be available to the Tribe at
the same level of funding as if there had been no retrocession.
Subpart I--Termination and Reassumption
Sec. 29.800 When can the Department reassume a compact or funding
agreement?
The Department may terminate and reassume a compact or funding
agreement (or portion thereof) when the Department makes a specific
finding, in writing, to a Tribe, that the Department has found that
there is:
(a) Imminent jeopardy to a trust asset, natural resources, or
public health and safety that is caused by an act or omission of the
Tribe and that arises out of a failure by the Tribe to carry out the
compact or funding agreement; or
(b) Gross mismanagement with respect to funds transferred to the
Tribe under the compact and funding agreement, as determined by the
Department in consultation with the Office of the Inspector General, as
appropriate. Gross mismanagement means a significant, clear, and
convincing violation of compact, funding agreement, or regulatory or
statutory requirements applicable to Federal funds included in a
compact and funding agreement that results in a significant reduction
of funds available for the PSFA carried out by the Tribe.
Sec. 29.801 Can the Department reassume a portion of a compact or
funding agreement and the associated funds?
The Department may reassume a portion of a compact or funding
agreement and the associated funds if the Department has sufficient
grounds to do so. The Department must identify the narrowest portion of
the compact or funding agreement for reassumption.
Sec. 29.802 What process must the Department follow before
termination of a compact or funding agreement (or portion thereof)?
Except as provided in Sec. 29.805, prior to a termination becoming
effective, the Department must:
(a) Notify the Tribe in writing by any method that provides receipt
of the findings required under Sec. 29.800;
(b) Request specific corrective action within a reasonable period
of time, no less than 45 days, to correct the conditions that may
result in the Department's termination of a compact or funding
agreement (or portion thereof);
(c) To the extent feasible and if requested, offer and provide
technical assistance to assist the Tribe in overcoming the conditions
that led to the findings described under paragraph (a) of this section.
Technical assistance may take the form of feedback, review, and other
assistance requested, as appropriate; and
(d) Provide an opportunity for a hearing on the record in
accordance with Subpart J of this part.
Sec. 29.803 What happens if the Department determines that the Tribe
has not corrected the conditions that the Department identified in the
notice?
(a) If the Department determines that the Tribe has not corrected
the conditions that the Department identified in the notice, the
Department must provide a second written notice by any method that
provides receipt to the Tribe that the Department will terminate the
compact or funding agreement, in whole or in part.
(b) The second notice must include:
(1) The effective date of the termination;
(2) The details and facts supporting the termination; and
(3) Instructions that explain the Tribe's right to a hearing
pursuant to Sec. 29.925.
Sec. 29.804 When may the Department reassume?
Except as provided inSec. 29.805, the Department may not reassume
until 30 days after the final resolution of the hearing and any
subsequent appeals to provide the Tribe with an opportunity to take
corrective action in response to any adverse final ruling.
Sec. 29.805 When can the Department immediately terminate a compact
or funding agreement (or portion thereof)?
(a) The Department may immediately terminate a compact or funding
agreement (or a portion thereof) if:
(1) The Department makes a finding of imminent substantial and
irreparable jeopardy to a trust asset, natural resource, or public
health and safety; and
(2) The jeopardy arises out of a failure to carry out the compact
or funding agreement.
(b) The Department must provide notice of immediate termination by
any method that provides receipt. The notice must set forth the
findings that support the Department's determination, advise the Tribe
whether it will be reimbursed for any closeout costs incurred after the
termination, request the return of any property, and advise the Tribe
of its right to a hearing pursuant to Sec. 29.925. Concurrently, the
Department must notify the Office of Hearings that the Department
intends to immediately terminate a compact or funding agreement.
Pursuant to Sec. 29.928, the Department has the burden of proof in any
hearing or appeal of an immediate termination.
Sec. 29.806 Upon termination, what happens to the funds associated
with the terminated portions of the compact or funding agreement?
Upon termination, the Department will reassume the remaining funds
associated with the terminated portions of the compact or funding
agreement. The Department may:
(a) Transfer funds associated with transportation services provided
by the Department of the Interior to the Department of the Interior; or
(b) Distribute any funds not transmitted to the Department of the
Interior in accordance with applicable law.
Subpart J--Dispute Resolution and Appeals
Sec. 29.900 What is the purpose of this subpart?
This subpart sets forth procedures that a Tribe may use to resolve
disputes with the Department arising before or after the execution of a
compact or
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funding agreement under the Program. It also sets forth the process for
filing and processing administrative appeals.
Sec. 29.901 Can a Tribe and the Department resolve disputes using
alternative dispute resolution processes?
At any time, a Tribe or the Department may request an informal
process or an alternate dispute resolution procedure, such as
mediation, conciliation, or arbitration, to resolve disputes. The goal
of any such process (which may involve a third party) is to provide an
inexpensive and expeditious mechanism to resolve disputes by mutual
agreement instead of an administrative or judicial proceeding. The
parties should resolve disputes at the lowest possible staff level
whenever possible.
Sec. 29.902 Does the Equal Access to Justice Act apply to the
Program?
The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28 U.S.C.
2414, and the relevant implementing regulations (48 CFR 6101.30 and
6101.31; 49 CFR part 6) will apply if the Tribe's compact or funding
agreement make these provisions applicable.
Sec. 29.903 What determinations may not be appealed under this
subpart?
The following determinations may not be appealed under this
subpart:
(a) Waiver determination. A waiver determination made pursuant to
Sec. 29.535 is a final agency action subject to judicial review under
the Administrative Procedure Act.
(b) Disputes or appeals arising under other Federal laws. Decisions
made under other Federal statutes, such as the Freedom of Information
Act and the Privacy Act. Such decisions may be appealable under those
statutes and their implementing regulations.
(c) Selection and award decisions for competitive or discretionary
grants. The Department's selection and level of award decisions for
competitive or discretionary grants administered by the Department are
not subject to appeal.
Pre-Award Decisions
Sec. 29.904 What are pre-award decisions that a Tribe may appeal?
A Tribe may appeal pre-award decisions, which include:
(a) A decision whether to include a Department program in a funding
agreement;
(b) A decision whether an activity is an inherent Federal function;
(c) A decision on a final offer before the Department and the Tribe
enter into a compact or funding agreement;
(d) A decision on a final offer before the Department and the Tribe
execute an amendment modifying the terms of an existing compact or
funding agreement; and
(e) An eligibility determination.
Sec. 29.905 To whom does a Tribe appeal a pre-award decision?
A Tribe appeals a pre-award decision to a hearing official, who was
not involved in the initial decision, appointed by the General Counsel.
Sec. 29.906 Must a Tribe exhaust its administrative remedies before
initiating a civil action against the Department in the U.S. District
Courts for a pre-award decision?
A Tribe must exhaust its administrative remedies before initiating
a civil action against the Department in the U.S. District Courts
except a Tribe may appeal the rejection of a final offer directly to
the U.S. District Courts in lieu of an administrative appeal.
Sec. 29.907 When and how must a Tribe appeal a pre-award decision?
(a) A pre-award decision becomes final 30 days after receipt by the
Tribe. To appeal the pre-award decision, a Tribe must submit the
written request to the Office of the General Counsel and the official
whose decision the Tribe is appealing within 30 days of receiving the
decision. The request must include a statement describing the reasons
for appeal and any supporting documentation.
(b) The Tribe may request to resolve the dispute using an
alternative dispute resolution process before the hearing official
issues a decision.
Sec. 29.908 May a Tribe request an extension of time to file an
administrative appeal to the hearing official?
If a Tribe needs additional time, it may request an extension of
time to file an appeal of a pre-award decision. Within 30 days of
receiving a decision, a Tribe must request the extension from the
Office of the General Counsel, which has the discretion to grant the
extension. The request must be in writing and give a reason for not
filing its administrative appeal within the 30-day period. The
Department may accept an appeal after the 30-day period for good cause.
Sec. 29.909 When and how must the hearing official respond to the
Tribe's appeal?
(a) The hearing official must issue a decision in writing within 60
days of the receipt of the appeal. If the Tribe requests an informal
hearing, the hearing official must issue a decision within 60 days of
the hearing.
(b) All decisions issued by the hearing official must include a
statement describing the rights of a Tribe to appeal the decision to
the U.S. District Courts. The Department must provide the decision by
any method that provides a receipt.
Sec. 29.910 What is the Department's burden of proof for appeals of
pre-award decisions?
The Department must demonstrate by clear and convincing evidence
the validity of a pre-award decision, and that the decision is
consistent with 23 U.S.C. 207.
Sec. 29.911 What is the effect of a pending appeal on negotiations?
A pending appeal of a pre-award decision will not prevent the
Department from negotiating and executing the non-disputed, severable
portions of a compact or funding agreement or prevent the Department
from awarding funds to the Tribe that may be included in a funding
agreement.
Post-Award Disputes
Sec. 29.912 What is a post-award dispute?
A post-award dispute is a claim that arises under the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. 7101-7109. Such disputes arise
once a compact or funding agreement is executed. Post-award disputes
include:
(a) Disputed interpretation of a provision of an executed compact
or funding agreement;
(b) Disallowance of costs under a funding agreement;
(c) Suspension of payments under a funding agreement;
(d) Allocation, distribution, or reduction of funds when a dispute
arises between a consortium and a withdrawing Tribe;
(e) Failure to comply with the terms of a funding agreement; and
(f) Any other claim arising out of a compact or funding agreement.
Sec. 29.913 What is a claim under the Contract Disputes Act?
A Contract Disputes Act claim is a written demand filed by a Tribe
that seeks one or more of the following:
(a) Payment of a specific sum of money under the funding agreement;
(b) Adjustment or interpretation of terms in a funding agreement;
(c) Payment that is disputed as to liability or amount;
(d) Payment that the Department has not acted upon in a reasonable
time following a demand for payment; or
(e) Any other claim relating to the terms of the compact or funding
agreement.
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Sec. 29.914 How does a Tribe file a Contract Disputes Act claim?
A Tribe must submit its claim in writing to the Chief Self-
Governance Official, who serves as the Department's awarding official
for the purposes of Contract Disputes Act claims. The Chief Self-
Governance Official will document the receipt of the claim.
Sec. 29.915 Must a Tribe certify a Contract Disputes Act claim?
A Tribe must certify a claim for more than $100,000 in accordance
with the Contract Disputes Act. The Tribe must certify that:
(a) The claim is made in good faith;
(b) Supporting documents or data are accurate and complete to the
best of the Tribe's knowledge and belief;
(c) The amount claimed accurately reflects the amount the Tribe
believes is owed; and
(d) The individual making the certification is authorized to make
the claim on behalf of the Tribe and bind the Tribe with respect to the
claim.
Sec. 29.916 Who bears the burden of proof in a Contract Disputes Act
claim?
The Tribe bears the burden of proof to demonstrate, by a
preponderance of the evidence, the validity of a Contract Disputes Act
claim.
Sec. 29.917 What is the Department's role in processing the Contract
Disputes Act claim?
(a) The Department must document the date that the Chief Self-
Governance Official received the claim.
(b) The Chief Self-Governance Official must provide the Tribe with
an opportunity to resolve the claim informally with assistance from
Department officials who have not substantially participated in the
disputed matter. Such informal mechanisms may include participating in
dispute resolution pursuant to Sec. 29.901.
(c) If the Department and the Tribe do not agree on a settlement,
the Chief Self-Governance Official must issue a written decision on the
claim by any method that provides a receipt.
Sec. 29.918 What information must the Chief Self-Governance
Official's decision contain?
(a) The Chief Self-Governance Official's decision must:
(1) Describe the claim or dispute;
(2) Reference the relevant terms of the compact and funding
agreement;
(3) Set forth the factual areas of agreement and disagreement; and
(4) Set forth the Chief Self-Governance Official's decision, and
provide the facts and reasons that support the decision.
(b) The Chief Self-Governance Official must provide the decision to
the Tribe and describe the Tribe's appeal rights in language similar to
the following:
This is a final decision. You may appeal this decision to the
Civilian Board of Contract Appeals (CBCA), 1800 F Street NW,
Washington, DC 20245. If you decide to appeal, you must provide written
notice within 90 days of receipt of this decision to the CBCA and
provide a copy to the Chief Self-Governance Official. The notice must
indicate that an appeal is intended, and refer to the decision and
contract number. Instead of appealing to the CBCA, you may bring an
action in the U.S. Court of Federal Claims or U.S. District Courts
within 12 months of the date you receive this notice. If you do not
appeal a decision within one of these time periods, it is not subject
to further review.
Sec. 29.919 When must the Chief Self-Governance Official issue a
written decision on the claim?
(a) If the claim is for less than $100,000, the Tribe may request
that the Chief Self-Governance Official issue a decision within 60 days
of the date of receipt of the claim. If the Tribe does not request that
the Chief Self-Governance Official issue a decision within 60 days of
the date of receipt of the claim, the Chief Self-Governance Official
must issue a decision within a reasonable time, which will depend on
the size and complexity of the claim and the adequacy of the
information provided in support of the claim. The Tribe must request a
decision by the Chief Self-Governance Official before seeking an appeal
in accordance with paragraph (c) of this section.
(b) If the claim is for more than $100,000, the Chief Self-
Governance Official must issue a decision within 60 days of the date of
receipt of the claim or notify the Tribe of the time within which the
Chief Self-Governance Official will issue a decision. Such timeframe
must be reasonable, which will depend on the size and complexity of the
claim and the adequacy of the information provided in support of the
claim.
(c) If the Chief Self-Governance Official does not issue a decision
within these time frames, a Tribe may treat the delay as a denial and
appeal the decision in accordance with Sec. 29.921.
Sec. 29.920 Is a decision of the Chief Self-Governance Official
final?
(a) A decision of the Chief Self-Governance Official is final and
conclusive, and not subject to review, unless the Tribe timely
commences an appeal or suit pursuant to the Contract Disputes Act.
(b) Once the Chief Self-Governance Official issues a decision, the
decision may not be changed except by agreement of the parties or under
the following limited circumstances:
(1) Evidence is discovered that could not have been discovered
through due diligence before the Chief Self-Governance Official issued
the decision;
(2) The Chief Self-Governance Official learns that there has been
fraud, misrepresentation, or other misconduct by a party;
(3) The decision is beyond the scope of the Chief Self-Governance
Official's authority;
(4) The claim has been satisfied, released, or discharged; or
(5) Any other reason justifying relief from the decision.
(c) If the Chief Self-Governance Official withdraws a decision and
issues a new decision that is not acceptable to the Tribe, the Tribe
may appeal the new decision in accordance with Sec. 29.921. If the
Chief Self-Governance Official does not issue a new decision, the Tribe
may proceed under Sec. 29.919(c).
(d) If a Tribe files an appeal or suit, the Chief Self-Governance
Official may modify or withdraw the final decision before a decision is
issued in the pending appeal.
Sec. 29.921 Where may a Tribe appeal the Chief Self-Governance
Official's decision on a Contract Disputes Act claim?
A Tribe may appeal the Chief Self-Governance Official's decision on
a Contract Disputes Act claim in one of the following forums:
(a) The Civilian Board of Contract Appeals. The appeal must be in
accordance with the Board's implementing regulations in 48 CFR part
6101;
(b) The U.S. Court of Federal Claims; or
(c) The U.S. District Courts.
Sec. 29.922 May a party appeal a Civilian Board of Contract Appeals
decision?
A party may appeal a decision of the Civilian Board of Contract
Appeals within 120 days to the U.S. Court of Appeals for the Federal
Circuit.
Sec. 29.923 What is the effect of a pending appeal?
(a) A Tribe must continue performance in accordance with the
compact and funding agreement during the appeal of any claims to the
same extent the Tribe would have performed had there been no dispute.
(b) A pending dispute will not affect or prevent the negotiation or
award of any subsequent compact or funding
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agreement between the Department and the Tribe.
Termination Appeals
Sec. 29.924 May a Tribe appeal the Department's decision to terminate
a compact or funding agreement?
A Tribe may appeal the Department's decision to terminate a compact
or funding agreement to the Department's Office of Hearings.
Sec. 29.925 Is a Tribe entitled to a hearing on the record?
(a) The Department must provide a Tribe with a hearing on the
record for a non-immediate termination prior to or in lieu of the
corrective action period set forth in the termination notice as
described in Sec. 29.802.
(b) The Department must provide a Tribe with a hearing on the
record for an immediate termination. The Department and the Tribe will
work together to determine a mutually acceptable time and place for the
hearing. The hearing on the record must commence no later than 10 days
after the date of such termination or a later date upon mutual
agreement. If feasible, the hearing may occur virtually or
telephonically. If requested by the Tribe, the Department may arrange
for an in-person hearing.
(c) The Tribe may decline a hearing in writing.
Sec. 29.926 What rights do the parties have in an appeal of a
termination decision?
(a) During the appeal of a termination decision, a Tribe and the
Department have the right to:
(1) A designated representative;
(2) Present the testimony of witnesses, orally or in writing, who
have knowledge of the relevant issues;
(3) Cross-examine witnesses;
(4) Introduce oral or documentary evidence, or both;
(5) Receive, upon request and payment of reasonable costs, a copy
of the transcript of the hearing, and copies of all documentary
evidence that is introduced at the hearing;
(6) Take depositions, request the production of documents, serve
interrogatories on other parties, and request admissions; and
(7) Any other procedural rights established under the
Administrative Procedure Act.
(b) An administrative law judge assigned by the chief
administrative law judge of the Department's Office of Hearings must
conduct hearings on the record for a termination decision unless the
Tribe waives the hearing.
Sec. 29.927 What notice and service must the parties provide?
(a) The parties must file each document with U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.
(b) The parties must serve copies of each document with:
(1) The Chief Self-Governance Official; and
(2) The authorized Tribal representative.
Sec. 29.928 What is the Department's burden of proof for a
termination decision?
The Department must demonstrate by clear and convincing evidence
the validity of the grounds for the termination.
Sec. 29.929 How will the Department communicate its decision
following a hearing on a termination decision?
After the hearing or any post-hearing briefing schedule established
by the Department's Office of Hearings, the administrative law judge
must send all parties the decision by any method that provides a
receipt. The decision must contain the administrative law judge's
findings of fact and conclusions of law on all the issues.
Sec. 29.930 May a party appeal the decision of an administrative law
judge?
The decision of an administrative law judge is a final agency
action subject to judicial review under the Administrative Procedure
Act, and a party may appeal it to the U.S. District Courts.
Sec. 29.931 What is the effect of an appeal on negotiations?
A pending appeal of a termination decision will not affect or
prevent the award of another funding agreement or TTP agreement.
However, if the Department terminates all or a portion of a compact or
funding agreement due to a finding of gross mismanagement or imminent
jeopardy, which is sustained on appeal, and the Tribe has not corrected
the adverse findings, the Department has discretion to reject a
proposal to award the Tribe a new funding agreement or provide new
funds in an existing funding agreement.
[FR Doc. 2019-21464 Filed 10-1-19; 8:45 am]
BILLING CODE 4910-9X-P