25 C.F.R. Subpart M—Reassumption
Title 25 - Indians
This subpart explains when the Secretary can reassume a program without the consent of a Tribe/Consortium. The Secretary may reassume any Federal program operated by a Tribe/Consortium upon a finding of imminent jeopardy to: (a) A physical trust asset; (b) A natural resource; or (c) Public health and safety. Imminent jeopardy means an immediate threat and likelihood of significant devaluation, degradation, damage, or loss of a trust asset, or the intended benefit from the asset caused by the actions or inactions of a Tribe/Consortium in performing trust functions. This includes disregarding Federal trust standards and/or Federal law while performing trust functions if the disregard creates such an immediate threat. The standard for natural resources is the same as for a physical trust asset, except that a review for compliance with the specific mandatory statutory provisions related to the program as reflected in the funding agreement must also be considered. Imminent jeopardy to public health and safety means an immediate and significant threat of serious harm to human well-being, including conditions that may result in serious injury, or death, caused by Tribal action or inaction or as otherwise provided in an AFA. In an imminent jeopardy situation, the Secretary must: (a) The Secretary must immediately notify the Tribe/Consortium in writing following discovery of imminent jeopardy; or (b) If there is an immediate threat to human health, safety, or welfare, the Secretary may immediately reassume operation of the program regardless of the timeframes specified in this subpart. Yes, the Secretary must reassume a program within 60 days of a finding of imminent jeopardy, unless the Secretary's designated representative determines that the Tribe/Consortium is able to mitigate the conditions. The Secretary will proceed with the reassumption in accordance with this subpart by sending the Tribe/Consortium a written notice of the Secretary's intent to reassume. The notice of reassumption under §1000.307 will include all of the following items. In addition, if resources are available, the Secretary may offer technical assistance to mitigate the imminent jeopardy. (a) A statement of the reasons supporting the Secretary's finding. (b) To the extent practical, a description of specific measures that must be taken by the Tribe/Consortium to eliminate imminent jeopardy. (c) A notice that funds for the management of the trust asset, natural resource, or public health and safety found to be in imminent jeopardy may not be reallocated or otherwise transferred without the Secretary's written consent. (d) A notice of intent to invoke the return of property provision of the AFA. (e) The effective date of the reassumption if the Tribe/Consortium does not eliminate the imminent jeopardy. If the deadline is less than 60 days after the date of receipt, the Secretary must include a justification. (f) The amount of funds, if any, that the Secretary believes the Tribe/Consortium should refund to the Department for operation of the reassumed program. This amount cannot exceed the amount provided for that program under the AFA and must be based on such factors as the time or functions remaining in the funding cycle. The Tribe/Consortium will have 5 days to respond to a notice of imminent jeopardy. The response must be written and may be mailed, telefaxed, or sent by electronic mail. If sent by mail, it must be sent by certified mail, return receipt requested; the postmark date will be considered the date of response. (a) The Tribe's/Consortium's response must indicate the specific measures that the Tribe/Consortium will take to eliminate the finding of imminent jeopardy. (b) If the Tribe/Consortium proposes mitigating actions different from those prescribed in the Secretary's notice of imminent jeopardy, the response must explain the reasons for deviating from the Secretary's recommendations and how the proposed actions will eliminate imminent jeopardy. The Secretary will make a written determination within 10 days of the Tribe's/Consortium's written response as to whether the proposed measures will eliminate the finding of imminent jeopardy. The Secretary must notify the Tribe/Consortium in writing of the acceptance and suspend the reassumption process. (a) If the Secretary finds that the Tribes/Consortia proposed measures will not mitigate imminent jeopardy, he/she will notify the Tribe/Consortium in writing of this determination and of the Tribe's/Consortium's right to appeal (b) After the reassumption, the Secretary is responsible for the reassumed program, and will take appropriate corrective action to eliminate the imminent jeopardy which may include sending Department employees to the site. On the effective date of reassumption, the Tribe/Consortium must, at the request of the Secretary, deliver all property and equipment, and title thereto: (a) That the Tribe/Consortium received for the program under the AFA; and (b) That has a per item value in excess of $5,000, or as otherwise provided in the AFA. The Tribe/Consortium must repay funds to the Department as soon as practical after the effective date of the reassumption. Yes, the Tribe/Consortium may be reimbursed for actual and reasonable “wind up costs” to the extent that funds are available. A reassumption action taken by the Secretary does not affect the Tribe's/Consortium's ability to negotiate an AFA for programs not affected by the reassumption. A reassumed program may be included in future AFAs, but the Secretary may include conditions in the terms of the AFA to ensure that the circumstances that caused jeopardy to attach do not reoccur.
Title 25: Indians
PART 1000—ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-GOVERNMENT ACT AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND EDUCATION ACT
Subpart M—Reassumption
§ 1000.300 What is the purpose of this subpart?
§ 1000.301 When may the Secretary reassume a Federal program operated by a Tribe/Consortium under an AFA?
§ 1000.302 “What is imminent jeopardy” to a trust asset?
§ 1000.303 What is imminent jeopardy to natural resources?
§ 1000.304 What is imminent jeopardy to public health and safety?
§ 1000.305 In an imminent jeopardy situation, what must the Secretary do?
§ 1000.306 Must the Secretary always reassume a program, upon a finding of imminent jeopardy?
§ 1000.307 What happens if the Secretary's designated representative determines that the Tribe/Consortium cannot mitigate the conditions within 60 days?
§ 1000.308 What will the notice of reassumption include?
§ 1000.309 How much time will a Tribe/Consortium have to respond to a notice of imminent jeopardy?
§ 1000.310 What information must the Tribe's/Consortium's response contain?
§ 1000.311 How will the Secretary reply to the Tribe's/Consortium's response?
§ 1000.312 What happens if the Secretary accepts the Tribe's/Consortium's proposed measures?
§ 1000.313 What happens if the Secretary does not accept the Tribe's/Consortium's proposed measures?
§ 1000.314 What must a Tribe/Consortium do when a program is reassumed?
§ 1000.315 When must the Tribe/Consortium return funds to the Department?
§ 1000.316 May the Tribe/Consortium be reimbursed for actual and reasonable “wind up costs” incurred after the effective date of retrocession?
§ 1000.317 Is a Tribe's/Consortium's general right to negotiate an AFA adversely affected by a reassumption action?
§ 1000.318 When will the Secretary return management of a reassumed program?
