[Federal Register Volume 75, Number 107 (Friday, June 4, 2010)]
[Rules and Regulations]
[Pages 31699-31702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13297]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

25 CFR Part 900

DEPARTMENT OF THE INTERIOR

25 CFR Part 1000

Bureau of Indian Affairs

25 CFR Part 900

Indian Health Service

25 CFR Part 900

RIN 1076-AE86


Indian Self-Determination Act Contracts and Annual Funding 
Agreements--Appeal Procedures

AGENCIES: Bureau of Indian Affairs, Interior; Indian Health Service, 
Health and Human Services.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) in the Department of the 
Interior (DOI) and the Indian Health Service (IHS) in the Department of 
Health and

[[Page 31700]]

Human Services (HHS) are making limited technical amendments to their 
joint regulations governing contracts and annual funding agreements 
under the Indian Self-Determination and Education Assistance Act to 
update the appeals procedures.

DATES: This rule is effective July 6, 2010.

FOR FURTHER INFORMATION CONTACT: 

--Terrence Parks, Acting Chief, Division of Self-Determination, Office 
of Indian Services, Bureau of Indian Affairs, Department of the 
Interior, 1849 C Street, NW., Mail Stop 4513, Washington, DC 20240, 
telephone 202-513-7616;
--Sharee M. Freeman, Director, Office of Self-Governance, Office of the 
Assistant Secretary--Indian Affairs, Department of the Interior, 1951 
Constitution Avenue, NW., Mail Stop 355, Washington, DC 20240, 
telephone 202-219-0240;
--Betty Gould, Regulations Officer, Indian Health Service, Department 
of Health and Human Services, 12300 Twinbrook Parkway, Suite 450, 
Rockville, MD 20857, telephone 301-443-7899.
    Persons who use a telecommunications device for the hearing 
impaired may call the Federal Information Relay Service at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

I. Background

A. Board of Contract Appeals

    In 25 CFR parts 900 and 1000, BIA and IHS have promulgated 
regulations governing contracts and annual funding agreements with 
Indian tribes under the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450f-450n, 458aa-458aaa-18. 
Included in those regulations are procedures allowing for appeals to 
the Interior Board of Contract Appeals, pursuant to 25 U.S.C. 450m-
1(d), 458ff(c), and the Contract Disputes Act, 41 U.S.C. 601-613.
    Effective January 6, 2007, Congress abolished the Interior Board of 
Contract Appeals (IBCA) and transferred its functions--including 
appeals under 25 CFR Parts 900 and 1000--to a new Civilian Board of 
Contract Appeals (CBCA) within the General Services Administration 
(GSA). Public Law 109-163, section 847, 119 Stat, 3391 (2006); see 71 
FR 65825 (Nov. 9, 2006). BIA and IHS are therefore revising their 
regulations to substitute references to CBCA for IBCA in three sections 
in Part 900 and five sections in Part 1000. Procedures applicable to 
appeals to CBCA were published by GSA at 48 CFR part 6101, 72 FR 36794 
(July 5, 2007), and are referenced in revised 25 CFR 900.216(b) and 
1000.430.
    IHS previously published its own final rule amending 25 CFR 900.222 
to change the name and address of the appeals board from IBCA to CBCA 
and amending 25 CFR 900.229 to change references to IBCA to CBCA. 71 FR 
76600 (Dec. 21, 2006). However, the IHS rule failed to change 
references to ``U.S. Department of the Interior'' and ``IBCA'' in Sec.  
900.222(e), and it did not amend Sec. Sec.  900.6 and 900.216, which 
continue to refer to IBCA. This rule completes the changes to Part 900 
that IHS initiated with its December 2006 rule, and it makes similar 
changes to Part 1000.

B. Equal Access to Justice Act

    Additional technical changes are being made to the regulations in 
Parts 900 and 1000 dealing with the Equal Access to Justice Act (EAJA), 
5 U.S.C. 504. First, section 900.177 currently provides that EAJA 
claims against either DOI or HHS will be heard by the Interior Board of 
Indian Appeals (IBIA) under 43 CFR 4.601 through 4.619. This is only 
partially correct. While some EAJA claims against DOI are heard by 
IBIA, most are heard initially by administrative law judges (ALJs) 
within DOI, with a right of appeal to IBIA. Most EAJA claims against 
HHS are also heard initially by ALJs within DOI, with a right of appeal 
to the HHS Departmental Appeals Board.
    To eliminate the apparent inconsistency between section 900.177 and 
the referenced DOI EAJA regulations over who initially decides EAJA 
claims, this rule removes the phrase ``by the IBIA'' from Sec.  
900.177. As a result, EAJA claims against either DOI or HHS will be 
heard initially by the adjudicative officer who decided the merits, 
whether an ALJ or IBIA, consistent with DOI's EAJA regulations. For 
claims against DOI, appeals from an ALJ's decision will be decided by 
IBIA under 43 CFR part 4, subpart D, as provided in 43 CFR 4.626(a). 
For claims against HHS, appeals from an ALJ's decision will be decided 
by the HHS Departmental Appeals Board under 45 CFR part 13.
    In a future rulemaking, HHS will propose applying its EAJA 
regulations at 45 CFR part 13 to an EAJA claim against HHS, so that the 
HHS regulations apply to both the claim and the appeal. Additionally, 
the future rule would delete the reference in Sec.  900.177 to 25 CFR 
900.165(b) because that paragraph merely refers to the statement of the 
appeal option that must be contained in the recommended decision.
    Second, this rule updates the references to DOI's EAJA regulations 
in Sec.  900.177 from 43 CFR 4.601 through 4.619 to 43 CFR 4.601 
through 4.628 to reflect amendments to those EAJA regulations published 
in 2006. See 71 FR 6364 (Feb. 8, 2006).
    Third, this rule updates the references in Sec.  900.216(c) to the 
applicable EAJA regulations. Now that CBCA, rather than IBCA, will be 
deciding EAJA claims in post-award disputes, the CBCA procedural 
regulations at 48 CFR 6101.30 and 6101.31 will apply. But since those 
regulations do not contain provisions regarding eligibility for an 
award, the standards for an award, and allowable fees and expenses, the 
substantive EAJA regulations at 43 CFR 4.602 and 4.604 through 4.606 
(DOI) and 45 CFR 13.4 through 13.7 (HHS) will continue to apply. See 
Tidewater Contractors, Inc. v. Department of Transportation, No. CBCA 
982-C, 2008 WL 2718917 (Civilian B.C.A.) (July 10, 2008), slip op. at 5 
(CBCA looked to Department of Transportation regulations for allowable 
attorney fee rate).
    Corresponding revisions are made to 25 CFR 1000.431.

C. Cross References

    Finally, this rule corrects a number of cross references in Part 
900. The notice of appeal rights in section 900.156(b) refers in two 
places to 25 CFR 900.157, when the correct reference is 25 CFR 900.158 
(compare section 900.152). The notices of appeal rights in section 
900.165(b) and (c) both contain meaningless references to those 
sections, when the correct reference is 25 CFR 900.166.
    The notices of appeal rights in Sec.  900.172(b) and (c) repeat the 
references from Sec.  900.165(b) and (c); but Sec.  900.172 is dealing 
with emergency reassumptions, while Sec.  900.165 is dealing with non-
emergency reassumptions. The correct reference in Sec.  900.172(b) and 
(c) is 25 CFR 900.173.
    Similarly, Sec.  900.253(b) refers to 25 CFR 900.160 and 900.161; 
but Sec.  900.253(b) is dealing with emergency reassumptions, while 
Sec. Sec.  900.160 and 900.161 are dealing with non-emergency 
reassumptions. The correct reference in Sec.  900.253(b) is 25 CFR 
900.171.

II. Procedural Requirements

A. Determination To Issue Final Rule Without Prior Notice and Comment.

    BIA and IHS have determined that the public notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not 
apply to this rulemaking because the changes being

[[Page 31701]]

made relate solely to matters of agency organization, procedure, and 
practice. They therefore satisfy the exemption from notice and comment 
rulemaking in 5 U.S.C. 553(b)(A).

B. Review Under Procedural Statutes and Executive Orders

    BIA and IHS have reviewed this rule under the following statutes 
and executive orders governing rulemaking procedures: the Unfunded 
Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.; the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq.; the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq.; the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq.; the National Environmental 
Policy Act of 1969, 42 U.S.C. 4321 et seq.; the Information Quality 
Act, Public Law 106-554; Executive Order 12630 (Takings); Executive 
Order 12866 (Regulatory Planning and Review); Executive Order 12988 
(Civil Justice Reform); Executive Order 13132 (Federalism); Executive 
Order 13175 (Tribal Consultation); and Executive Order 13211 (Energy 
Impacts). BIA and IHS have determined that this rule does not trigger 
any of the procedural requirements of those statutes and executive 
orders, since this rule merely updates the Indian Self-Determination 
and Education Assistance Act regulations to refer to the correct appeal 
entities and revised EAJA regulations and to correct various cross 
references.

List of Subjects

25 CFR Part 900

    Administrative practice and procedure, Buildings and facilities, 
Claims, Government contracts, Government property management, Grant 
programs-Indians, Health care, Indians, Indians-business and finance.

25 CFR Part 1000

    Grant programs-Indians, Indians.

0
For the reasons stated in the preamble, BIA and IHS amend their 
regulations in 25 CFR parts 900 and 1000 as follows:

PART 900--CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND 
EDUCATION ASSISTANCE ACT

0
1. The authority citation for part 900 continues to read as follows:

    Authority:  25 U.S.C. 450f et seq.

Subpart B--Definitions

0
2. In Sec.  900.6, revise the definition of ``Contract appeals board'' 
to read as follows:


Sec.  900.6  Definitions.

* * * * *
    Contract appeals board means the Civilian Board of Contract Appeals 
(CBCA).
* * * * *

Subpart L--Appeals


Sec.  900.156  [Amended]

0
3. In Sec.  900.156(b), remove the reference ``25 CFR 900.157'' and add 
in its place ``25 CFR 900.158'' wherever it appears.


Sec.  900.165  [Amended]

0
4. In Sec.  900.165(b), remove the reference ``25 CFR 900.165(b)'' and 
add in its place ``25 CFR 900.166''wherever it appears.

0
5. In Sec.  900.165(c), remove the reference ``25 CFR 900.165(c)'' and 
add in its place ``25 CFR 900.166'' wherever it appears.


Sec.  900.172  [Amended]

0
6. In Sec.  900.172(b), remove the reference ``25 CFR 900.165(b)'' and 
add in its place ``25 CFR 900.173'' wherever it appears.

0
7. In Sec.  900.172(c), remove the reference ``25 CFR 900.165(c)'' and 
add in its place ``25 CFR 900.173'' wherever it appears.

0
8. Revise Sec.  900.177 to read as follows:


Sec.  900.177  Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?

    Yes. EAJA claims against DOI or HHS will be heard under 43 CFR 
4.601 through 4.628. For HHS, appeals from an EAJA award will be 
according to 25 CFR 900.165(b).

Subpart N--Post-Award Contract Disputes

0
9. Revise Sec.  900.216(b) and (c) to read as follows:


Sec.  900.216  What other statutes and regulations apply to contract 
disputes?

* * * * *
    (b) If the matter is submitted to the CBCA, 48 CFR part 6101; and
    (c) The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28 
U.S.C. 2412, and regulations at 48 CFR 6101.30, 6101.31 (CBCA), 43 CFR 
4.602, 4.604 through 4.628 (DOI), and 45 CFR 13.4 through 13.7 (HHS).

0
10. Revise Sec.  900.222(e) to read as follows:


Sec.  900.222  What goes into a decision?

* * * * *
    (e) Contain the following language:
    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, within 90 days 
from the date you receive this decision, mail or otherwise furnish 
written notice to the CBCA and provide a copy to the individual from 
whose decision the appeal is taken. 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 in the United States District Court within 
12 months of the date you receive this notice.


Sec.  900.253  [Amended]

0
11. Revise Sec.  900.253(b) to read as follows:
* * * * *
    (b) A statement explaining the contractor's right to a hearing on 
the record under Sec.  900.171 within 10 days of the emergency 
reassumption or such later date as the contractor may approve;
* * * * *

PART 1000--ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-
GOVERNMENT ACT AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND 
EDUCATION ACT

0
12. The authority citation for part 1000 continues to read as follows:

    Authority:  25 U.S.C. 458aa-gg.

Subpart R--Appeals

0
13. Revise Sec.  1000.421(b) to read as follows:


Sec.  1000.421  What is the purpose of this subpart?

* * * * *
    (b) The Civilian Board of Contract Appeals (CBCA) for certain post-
AFA disputes;
* * * * *


Sec.  1000.428  [Amended]

0
14. In Sec.  1000.428, remove ``IBCA'' and add in its place ``CBCA''.

0
15. In Sec.  1000.429, revise the section heading and introductory text 
to read as follows:


Sec.  1000.429  What statutes and regulations govern resolution of 
disputes concerning signed AFAs or compacts that are appealed to the 
CBCA?

    Section 110 of Public Law 93-638 (25 U.S.C. 450m-l) and the 
regulations at 25 CFR 900.216 through 900.230 apply to disputes 
concerning signed AFAs and compacts that are appealed to the CBCA, 
except that any references to the Department of Health and Human

[[Page 31702]]

Services are inapplicable. For purposes of such appeals:
* * * * *

0
16. Revise Sec.  1000.430 to read as follows:


Sec.  1000.430  Who handles appeals regarding reassumption for imminent 
jeopardy?

    Appeals regarding reassumption of Title I-eligible PFSAs are 
handled by the IBIA under the procedures in 25 CFR 900.171 through 
900.176. Appeals regarding reassumption of PFSAs that are not Title I-
eligible are handled by the CBCA under the procedures in 48 CFR part 
6101.

0
17. Revise Sec.  1000.431 to read as follows:


Sec.  1000.431  Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?

    Yes. EAJA claims against the DOI will be heard under 48 CFR 
6101.30, 6101.31 (CBCA) and 43 CFR 4.602, 4.604 through 4.628 (DOI) and 
under the Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412.

    Dated: October 30, 2009.
Larry Echo Hawk,
Assistant Secretary, Indian Affairs, Department of the Interior.
    Dated: May 24, 2010.
Yvette Roubideaux,
Director, Indian Health Service, Department of Health and Human 
Services.
[FR Doc. 2010-13297 Filed 6-3-10; 8:45 am]
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