Confidentiality

    The Federal position is that a provision relating to the 
confidentiality of information obtained by Indian tribes and tribal 
organizations relating to trust resources needs to be included in this 
subpart, consistent with the Federal government's trust obligation to 
individual Indians to keep such information confidential. The following 
paragraph is proposed to address this issue:

    A contractor shall hold confidential all information obtained 
from any person relating to the financial affairs of individual 
Indians, lessees, or permittees, and shall not release this 
information without the individual's consent or as otherwise 
required by law.

    Tribal committee members note that tribes have long maintained 
their own confidentiality procedures. Tribal committee members believe 
the proposed Federal language is offensive, and an unnecessary issue to 
be regulated.

Secretarial Policy

    The committee has not reached a consensus in two Secretarial policy 
areas.
    First, the provision regarding Federal program guidelines, manuals, 
or policy directives is drawn largely from paragraph 1(b)(11) of the 
model contract in section 108(c)of the Act. Tribal committee members 
are of the view that the statutory provision is a non-exclusive list of 
the types of Federal documents or issuances that may not be imposed 
upon tribes, and point to the statement in the Senate and House reports 
that other ``unpublished requirements'' may not be imposed upon tribes. 
They therefore seek the addition of other similar documents such as 
``advisories, notices, letters, correspondence and reporting 
requirements.'' Federal representatives oppose adding any other items 
to the statutory list.
    The Regulation does not include a provision advanced by tribal 
committee members that would adopt, as a Secretarial policy, the policy 
that Federal laws and regulations will be interpreted in a manner that 
will facilitate the inclusion of programs in contracts authorized by 
the Act. Tribal committee members view such a policy as within the 
Secretary's legal authority and consistent with the strong policy of 
the Act promoting tribal contracting activities.
    Federal committee members are of the view such a policy may be 
contrary to 

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law and beyond the Secretary's authority, since the laws being 
interpreted may not necessarily be for the benefit of Indians, and 
since specific authority for such a provision is included in Titles III 
and IV (self-governance) of the Act, but not Title I.
    Other areas of disagreement are noted in the summary of regulations 
below.

Summary of Regulations

    The narrative below is keyed to specific subparts of the proposed 
rule.

Subpart A--Policy

    This subpart contains key congressional policies contained in the 
Act and adds several Secretarial policies that will guide the 
Secretaries' implementation of the Act.

Subpart B--Definitions

    Subpart B sets forth definitions for key terms used in the balance 
of the regulations. Terms unique to one subpart are generally defined 
in that subpart, rather than in subpart B.

Subpart C--Contract Proposal Contents

    Subpart C contains provisions relating to initial contract proposal 
contents. In this area, the committee opted to have minimal 
regulations. The proposed regulation governing initial contract 
proposal contents essentially consists of a checklist of 13 items that 
must be addressed in a proposal. In addition, the proposed regulation 
contains a provision relating to the availability of technical 
assistance to assist Indian tribes and tribal organizations in 
preparing a contract proposal, and a provision relating to the 
identification of Federal property that the tribe or tribal 
organization intends to use during contract performance.

Subpart D--Review and Approval of Contract Proposals

    Although this topic is part of the declination process, it has been 
pulled out for separate treatment to facilitate a clearer understanding 
of the entire contracting process. In this area, the committee opted to 
have minimal regulations. The proposed regulation governing review and 
approval of contract proposals details what the Secretary must do upon 
receiving a contract proposal, the time frames applicable to 
Secretarial review, how the 90-day review period can be extended, and 
what happens if a proposal is not declined within the 90-day period.

Subpart E--Declination Procedures

    The proposed regulation governing declination procedures implements 
Section 102 (a)(2), (a)(4), (b) and (d) of the Act. The proposed 
regulation restates the statutory grounds for declining a contract 
proposal, clarifies that a proposal cannot be declined based on any 
objection that will be overcome through the contract, and details 
procedures applicable for partial declinations. The proposed regulation 
also informs Indian tribes and tribal organizations of the requirements 
applicable to the Secretary when a declination finding is made, 
contains provisions for technical assistance to Indian tribes and 
tribal organizations to avoid a declination finding, and to overcome 
stated declination grounds after a declination finding is made.
    The advisory committee did not reach consensus on how to address 
contract renewal proposals. Tribal representatives on the advisory 
committee proposed to exempt an Indian tribe's or tribal organization's 
contract renewal proposal from being subjected to declination if the 
renewal proposal is substantially similar to the Indian tribe's or 
tribal organization's prior contract. Tribal representatives are of the 
view that if the Secretary wishes to take back control of a program, 
the Secretary should follow the Act's ``reassumption'' procedures set 
forth in section 109 of the Act.
    It is the Federal position that section 102(a)(2) of the Act was 
amended in 1994 to specifically subject contract renewal proposals to 
the declination criteria, and that nowhere in the Act, as amended, is 
there a specific declination exemption for contract renewal proposals 
that are substantially similar to an expiring contract.
    With respect to the declination document disclosure provisions of 
Sec. 900.27(c), tribal committee members are of the view the disclosure 
obligation should extend to documents that do not support the decision, 
in addition to documents that do. Federal committee members oppose such 
an expansion and note that, if an appeal is taken, such documents will 
eventually be produced in the discovery process.
    Nothing in this regulation is intended to change the IHS's current 
practice of not reviewing the renewal of a term contract for 
declination issues where no material or significant changes to the 
scope or funding of a program, service, activity, or function has been 
proposed by the tribe or tribal organization.