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Proposed Rule2024-14862

Self-Governance PROGRESS Act Regulations

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Published

July 15, 2024

Issuing agencies

Interior DepartmentIndian Affairs Bureau

Abstract

The U.S. Department of the Interior (Department), Office of the Assistant Secretary for Indian Affairs, proposes to revise the regulations that implement Tribal Self-Governance, as authorized by title IV of the Indian Self Determination and Education Assistance Act. This proposed rule has been negotiated among representatives of Self- Governance and non-Self Governance Tribes and the Department.

Full Text

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<title>Federal Register, Volume 89 Issue 135 (Monday, July 15, 2024)</title>
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[Federal Register Volume 89, Number 135 (Monday, July 15, 2024)]
[Proposed Rules]
[Pages 57524-57577]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14862]

[[Page 57523]]

Vol. 89

Monday,

No. 135

July 15, 2024

Part II

Department of the Interior

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Bureau of Indian Affairs

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25 CFR Part 1000

Self-Governance PROGRESS Act Regulations; Proposed Rule

Federal Register / Vol. 89 , No. 135 / Monday, July 15, 2024 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 1000

[Docket No. BIA-2024-0001; 245A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF62

Self-Governance PROGRESS Act Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Department of the Interior (Department), Office of
the Assistant Secretary for Indian Affairs, proposes to revise the
regulations that implement Tribal Self-Governance, as authorized by
title IV of the Indian Self Determination and Education Assistance Act.
This proposed rule has been negotiated among representatives of Self-
Governance and non-Self Governance Tribes and the Department.

DATES:
<bullet> Proposed Regulations: Please submit your comments on or
before August 22, 2024.
<bullet> Tribal Government-to-Government Consultations: The
Department will conduct in-person consultation sessions with federally
recognized Tribes on July 15, 2024, July 17, 2024, and July 19, 2024.
Additionally, the Department will conduct a virtual consultation
session with federally recognized Tribes on July 22, 2024.
<bullet> Information Collection Requirements: If you wish to
comment on the information collection requirements in this proposed
rule, please note that the Office of Management and Budget (OMB) is
required to make a decision concerning the collection of information
contained in this proposed rule between 30 and 60 days after
publication of this proposed rule in the Federal Register. Therefore,
comments should be submitted to OMB (see ``Information Collection
Requirements'' section below under ADDRESSES) by August 14, 2024.

ADDRESSES: All comments received may be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. You may submit comments by any one of the following methods.
<bullet> Federal eRulemaking Portal: Please visit <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Enter ``RIN 1076-AF67'' in the web page's search
box and follow the instructions for submitting comments.
<bullet> Email: Please send comments to <a href="/cdn-cgi/l/email-protection#80e3efeef3f5ecf4e1f4e9efeec0e2e9e1aee7eff6">[email&#160;protected]</a> and
include ``RIN 1076-AF62--25 CFR part 1000'' in the subject line of your
email.
<bullet> Mail: Please mail comments to Department of the Interior,
Office of Regulatory Affairs and Collaborative Action, 1001 Indian
School Road NW, Suite 229, Albuquerque, NM 87104.
<bullet> Accessibility: On request to the program contact person
listed under FOR FURTHER INFORMATION CONTACT, individuals can obtain
this document in an alternate format, usable by people with
disabilities, at the Office of the Assistant Secretary--Indian Affairs,
Room 4660, 1849 C Street NW, Washington, DC 20240.
<bullet> Information Collection Requirements: Written comments and
recommendations for the proposed information collection request (ICR)
should be sent within 30 days of publication of this notice to the
Office of Information and Regulatory Affairs (OIRA) through <a href="https://www.reginfo.gov/public/do/PRA/icrPublicCommentRequest?ref_nbr=202405-1076-004">https://www.reginfo.gov/public/do/PRA/icrPublicCommentRequest?ref_nbr=202405-1076-004</a> or by visiting <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a> and
selecting ``Currently under Review--Open for Public Comments'' and then
scrolling down to the ``Department of the Interior.''

FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of
Regulatory Affairs and Collaborative Action (RACA), Office of the
Assistant Secretary--Indian Affairs, Department of the Interior,
telephone (202) 738-6065, <a href="/cdn-cgi/l/email-protection#c1a2aeafb2b4adb5a0b5a8aeaf81a3a8a0efa6aeb7">[email&#160;protected]</a>. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services.

SUPPLEMENTARY INFORMATION: This proposed rule is published in exercise
of authority delegated by the Secretary of the Interior (Secretary) to
the Assistant Secretary--Indian Affairs (Assistant Secretary; AS-IA) by
209 Department Manual 8 (209 DM 8).

Table of Contents

I. Background
A. Statutory Authority
B. Negotiated Rulemaking Process
II. Subpart-by-Subpart Summary of the Proposed Rule
A. Subpart A--General Provisions
B. Subpart B--Selection of Additional Tribes for Participation
in Tribal Self-Governance
C. Subpart C--Planning and Negotiation Grants
D. Subpart D--Financial Assistance for Planning and Negotiations
Activities for Non-BIA Programs
E. Subpart E--Compacts
F. Subpart F--Funding Agreements for BIA Programs
G. Subpart G--Funding Agreements for Non-BIA Programs
H. Subpart H--Negotiation Process
I. Subpart I--Final Offer
J. Subpart J--Waiver of Regulations
K. Subpart K--Construction
L. Subpart L--Federal Tort Claims
M. Subpart M--Reassumption
N. Subpart N--Retrocession
O. Subpart O--Trust Evaluation
P. Subpart P--Reports
Q. Subpart Q--Operational Provisions
R. Subpart R--Appeals
S. Subpart S--Conflicts of Interest
T. Subpart T--Tribal Consultation Process
III. Areas of Disagreement
A. Subpart E--Compact
B. Subpart F--Funding Agreements for BIA Programs
C. Subpart G--Funding Agreements for Non-BIA Programs
D. Subpart K--Construction
E. Subpart R--Appeals
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 14094 and E.O.
13563)
B. Regulatory Flexibility Act
C. Congressional Review Act (CRA)
D. Unfunded Mandates Reform Act of 1995
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act (NEPA)
K. Energy Effects (E.O. 13211)
L. Clarity of This Regulation
M. Public Availability of Comments

I. Background

A. Statutory Authority

On October 21, 2020, the Practical Reforms & Other Goals to
Reinforce the Effectiveness of Self Governance & Self Determination for
Indian Tribes Act (PROGRESS Act) was signed into law. See Public Law
116-180. The PROGRESS Act amends subchapter I of the Indian Self-
Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301,
which addresses Indian Self-Determination, and subchapter IV of the
ISDEAA, which addresses the Department's Tribal Self-Governance
Program.
Section 413 of Public Law 116-180, 25 U.S.C. 5363 directs the
Secretary to promulgate regulations using the negotiated rulemaking
process to carry out subchapter IV of the ISDEAA, the Department's
Tribal Self-Governance Program. Section 413(a)(3) of Public Law 116-180
establishes expiration of authority for the promulgation of such
regulations. A Committee was established and commenced with the
negotiated rulemaking process for this proposed rule. On April 20,
2023, the Committee's authority to promulgate regulations to meet the
directive of the

[[Page 57525]]

Progress Act expired under section 413(a)(3) of the same statute, thus
leaving the Committee with no authority to continue the negotiated
rulemaking for this proposed rule. Congress, however, on September 30,
2023, extended the Committee's authority until December 21, 2024.
Public Law 118-15 at section 2102.
The Department is requesting comment on this proposed rule to
update regulations implementing Tribal Self-Governance at the
Department. While the proposed rule does incorporate terms and
processes that may be common to self-governance at the Department of
Health and Human Services (HHS) authorized by Title V of ISDEAA, and
the Department of Transportation (DOT) authorized by 23 U.S.C. 207, it
is not the intent of this proposed rule to define or regulate any term
or process that is applicable to HHS or DOT, even where such terms or
processes are common between the agencies. The proposed rule should not
be construed to bind HHS or DOT to any particular interpretation of a
term or process. Accordingly, we seek comment on how to incorporate
this distinction into a final rule.
This proposed rule has been negotiated by representatives of Self-
Governance and non-Self-Governance Tribes, and the Department. The
intended effect is to transfer to participating Tribes control of,
funding for, and decision making concerning certain Federal programs,
consistent with updates contained in the PROGRESS Act. The Department
anticipates this proposed rule will have a negligible cost burden for
Tribes currently participating in Self-Governance, some startup costs
for Tribes not currently participating in Self-Governance, and no new
costs to the Federal Government.

B. Negotiated Rulemaking Process

The PROGRESS Act directed the Secretary to adapt negotiated
rulemaking procedures regarding the unique context of self-governance
and the government-to-government relationship between the United States
and Indian Tribes. The PROGRESS Act also called for a negotiated
rulemaking committee (Committee) to be established under 5 U.S.C. 565,
with membership comprised only of representatives of Federal agencies
and Tribal governments, with the Office of Self-Governance (OSG)
serving as the lead agency for the Department. The Secretary charged
the Committee with developing proposed regulations for the Secretary's
implementation of the PROGRESS Act's provisions regarding the
Department's Self-Governance Program.
The Department published a Federal Register notice on February 1,
2021, 86 FR 7656, announcing the intent to establish a committee and
soliciting nominations for membership on the Committee. The Department
published a Federal Register notice on May 18, 2022, 87 FR 30256,
announcing the formation of the committee and identifying 14 Tribal
representatives, and 12 Federal representatives.
To fulfill the requirements for negotiated rulemaking and the
Federal Advisory Committee Act, representatives reflect those currently
participating in the Tribal Self-Governance Program and those that are
not currently participating in, but are interested in, the Tribal Self-
Governance Program. In addition, Tribal representatives reflect a
balance in terms of geographical location and size of the Tribe.
Membership consists of only representatives of Federal and Tribal
governments, with OSG serving as the lead agency.
The Committee met fifteen times to negotiate the proposed
regulations. The Committee members and technical advisors organized
themselves into two subcommittees and used the scheduled subcommittee
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.
The Committee reached consensus, as reflected by votes documented
in its meeting minutes, on:
<bullet> Subpart A (General Provisions);
<bullet> Subpart B (Selection of Additional Tribes for
Participation in Tribal Self-Governance);
<bullet> Subpart C (Planning and Negotiation Grants for BIA
Programs);
<bullet> Subpart D (Financial Assistance for Planning and
Negotiations Activities for Non-BIA Bureau Programs);
<bullet> Subpart H (Negotiation Process);
<bullet> Subpart I (Final Offer);
<bullet> Subpart J (Waiver of Regulations);
<bullet> Subpart L (Federal Tort Claims);
<bullet> Subpart M (Reassumption);
<bullet> Subpart N (Retrocession);
<bullet> Subpart O (Trust Evaluation);
<bullet> Subpart P (Reports);
<bullet> Subpart Q (Operational Provisions);
<bullet> Subpart S (Conflicts of Interest); and
<bullet> Subpart T (Tribal Consultation Process).
The Committee did not reach consensus on:
<bullet> Subpart E (Compacts);
<bullet> Subpart F (Funding Agreements for BIA Programs);
<bullet> Subpart G (Funding Agreements for Non-BIA Programs);
<bullet> Subpart K (Construction); and
<bullet> Subpart R (Appeals).
Regardless of the consensus reached thus far, the Department will
consider all relevant comments submitted and will make modifications to
the proposed rule as the Department determines is appropriate. The
Department expressly reserves its right to modify the final rule.

II. Subpart-by-Subpart Summary of the Proposed Rule

The following summary describes each subpart of the Department's
proposed regulations to implement the PROGRESS Act. Except for four
areas of disagreement discussed below, the proposed regulations are the
product of consensus.

A. Subpart A--General Provisions

This subpart contains the authority, purpose and scope of the
proposed rule, and the Congressional and Secretarial policies that will
guide the implementation of the ISDEAA, as amended by the PROGRESS Act,
by the Secretary and the various bureaus of the Department. The subpart
also defines terms used throughout the proposed rule consistent with
the PROGRESS Act.
This subpart further clarifies the effect of 25 CFR part 1000 on
existing Tribal rights, including Tribal sovereign immunity from suit,
the United States' trust responsibility, a Tribe's choice to
participate in self-governance, or the issuance of awards by other
departments or agencies to Tribes. Additionally, this subpart
identifies the application of any agency circular, policy, manual,
guidance, or rule adopted by the Department on self-governance Tribes/
Consortia.

B. Subpart B--Selection of Additional Tribes for Participation in
Tribal Self-Governance

This subpart describes the steps a Tribe/Consortium must take to
participate in Tribal self-governance and the selection process and
eligibility criteria that the Secretary will use to decide whether a
Tribe/Consortium may participate. Under the PROGRESS Act, a Tribe/
Consortium is eligible to participate in self-governance if it submits
documentation to OSG demonstrating: (1) successful completion of a
planning phase; (2) a request to participate in self-governance by a
Tribal resolution and/or final official action; and (3) financial
stability and financial management capability through evidence of
having no uncorrected significant and material

[[Page 57526]]

audit exceptions in the required annual audit of its self-determination
or self-governance agreements with any Federal agency for the three
fiscal years preceding the date on which the Tribe/Consortium requests
participation. When a Tribe/Consortium submits documentation to
participate in self-governance, this proposed rule requires the OSG
within 45 days to: (1) select and notify the Tribe/Consortium to
participate in self-governance; or (2) notify the Tribe/Consortium that
the documentation submitted to participate in self-governance is
incomplete.
The OSG Director may select up to 50 eligible Tribes or Consortia
for negotiation. If there are more Tribes selected to negotiate in any
given year, this proposed rule provides that the first 50 Tribes/
Consortia who apply, and are determined to be eligible, will have the
option to participate.
This proposed rule also stipulates that a Tribe/Consortium may be
selected to negotiate a funding agreement for non-Bureau of Indian
Affairs (BIA) programs that are otherwise available to Tribes without
first negotiating a funding agreement for BIA programs. However, to
negotiate for a non-BIA program under 25 U.S.C. 5363(c) for which the
Tribe/Consortium has only a geographic, cultural, or historical
connection, the ISDEAA requires that the Tribe/Consortium must first
have a funding agreement with the BIA under 25 U.S.C. 5363(b)(1) or any
non-BIA bureau under 25 U.S.C. 5363(b)(2). (The term ``programs'' as
used in this proposed rule refers to complete or partial programs,
services, functions, or activities (PSFAs)).
This subpart also describes what happens when a Tribe wishes to
withdraw from a Consortium's funding agreement. In such instances, the
withdrawing Tribe must notify the Consortium, appropriate Department
bureau, and OSG of its intent to withdraw 180 days before the effective
date of the next funding agreement. Unless otherwise agreed to, the
effective date of the withdrawal will be the earlier date of one year
after the date of submission of the request, or when the current
agreement expires.
In completing the withdrawal, the Consortium's funding agreement
must be reduced by that portion of funds attributable to the
withdrawing Tribe on the same basis or methodology upon which the funds
were included in the Consortium's funding agreement. If such a basis or
methodology does not exist, then the Tribe, the Consortium, appropriate
Department bureau, and OSG must negotiate an appropriate amount.

C. Subpart C--Planning and Negotiation Grants

This subpart describes the criteria and procedures for awarding
various self-governance negotiation and planning grants. These grants
are discretionary and will be awarded by the OSG Director. The award
amount and number of grants depends upon Congressional appropriations.
If funding in any year is insufficient to meet total requests for
grants and financial assistance, priority will be given first to
negotiation grants and second to planning grants.
Negotiation grants are non-competitive. In order to receive a
negotiation grant, a Tribe/Consortium must first be selected to join
self-governance and then submit a letter affirming its readiness to
negotiate and requesting a negotiation grant. This subpart further
provides that a Tribe/Consortium may elect to negotiate a self-
governance agreement if selected without applying for or receiving a
negotiation grant. Planning grants will be awarded to Tribes/Consortia
requesting financial assistance in order to complete the planning phase
requirement for joining self-governance.

D. Subpart D--Financial Assistance for Planning and Negotiations
Activities for Non-BIA Programs

This subpart describes the additional requirements and criteria
applicable to receiving financial assistance to assist Tribes/Consortia
with planning and negotiating for funding agreements involving non-BIA
programs. This financial assistance is available to any Tribe/
Consortium that:
(a) Applied to participate in self-governance;
(b) Has been selected to participate in self-governance; or
(c) Has negotiated and entered into an existing funding agreement.
Subject to the availability of funds, this subpart requires the
Secretary to publish a notice in the Federal Register that includes the
number of available grants, application process, award criteria, and
designated point-of-contact for each non-BIA bureau. This financial
assistance will support information gathering, analysis, and planning
activities that may involve consulting with appropriate non-BIA
bureaus, and negotiation activities. This subpart also provides
requirements for communicating award decisions to applying Tribes/
Consortia.

E. Subpart E--Compacts

The Committee proposes to insert this new subpart to implement
section 404 of title IV, as amended, which requires the Secretary to
enter into a written compact with each participating Tribe/Consortium.
The previous version of title IV included no such requirement and
compacts were negotiated and executed at the option of the
participating Tribe/Consortium.
The current rule at 25 CFR part 1000 that became effective on
January 16, 2001 (``current rule''), includes provisions addressing
compacts at Sec. Sec. 1000.161 through 1000.165. The Committee
proposes to amend and move those sections to the new subpart E
(Compacts) and to include additional sections. This new subpart is
proposed to be inserted before the respective subparts for funding
agreements because compacts are applicable to funding agreements both
for BIA programs and for non-BIA programs.
The current rule also includes a model format for a compact at
Appendix A. The Committee proposes to omit the model format for a
compact and Appendix A from this proposed rule. In lieu of a model
format, compacts will be negotiated and executed in accordance with
title IV, as amended, and with this proposed rule.
This subpart describes self-governance compacts and the minimum
content requirements of a self-governance compact. Unlike a funding
agreement, parts of a compact apply to all bureaus within the
Department rather than a single bureau. Therefore, a Tribe/Consortium
needs only to negotiate and execute one self-governance compact to
participate in self-governance.
This subpart also establishes a compact's effective term and
addresses how a compact may be amended. Further, this subpart clarifies
that a Tribe/Consortium who executed a compact prior to the enactment
of the PROGRESS Act has the option to either retain its existing
compact, in whole or in part, to the extent that the provisions are not
directly contrary to any express provisions of the PROGRESS Act or
negotiate a new compact.

F. Subpart F--Agreements for BIA Programs

This subpart describes the components of a funding agreement for
BIA programs. The current rule includes ``Subpart E--Annual Funding
Agreements for Bureau of Indian Affairs Programs.'' The Committee
proposes to amend the title of the subpart and move it within this
proposed rule. The title of the subpart is proposed to be amended to
``Funding Agreements for BIA Programs'' because title IV now excludes
the term ``Annual Funding

[[Page 57527]]

Agreements'' and uses in its place, ``Funding Agreements.'' The acronym
``BIA'' is proposed in lieu of ``Bureau of Indian Affairs'' because BIA
is now proposed as a defined term within subpart A (General
Provisions). The Committee proposes to relocate the subpart from
subpart E of the current rule to become subpart F of the proposed rule
because a new subpart E for compacts is proposed to be inserted.
A funding agreement is a legally binding and mutually enforceable
written agreement between a Tribe/Consortium and the Secretary. Funding
agreements must include at a minimum, but are not limited to,
provisions specifying the programs transferred to the Tribe/Consortium,
providing for the Secretary to monitor the performance of trust
functions administered by the Tribe/Consortium, providing the funding
amount(s), providing a stable base budget, and specifying the funding
agreement's effective date.
Parties to a funding agreement can mutually agree to include
additional provisions and/or include and incorporate by reference
additional documents such as funding tables or construction project
agreements. Additionally, Tribes/Consortia may elect to negotiate a
funding agreement with a term that exceeds one year, subject to the
availability of appropriations.
This subpart also provides that a Tribe/Consortium with a funding
agreement executed before the enactment of the PROGRESS Act has the
option to either retain that funding agreement, in whole or in part, to
the extent that the provisions are not directly contrary to any express
provisions of the PROGRESS Act or negotiate a new funding agreement.
This subpart establishes that a funding agreement shall remain in
full force and effect following the end of its term until a subsequent
funding agreement is executed. When a subsequent funding agreement is
executed, its terms will be retroactive to the term of the preceding
funding agreement for purposes of calculating the amount of funding for
the Tribe/Consortium.
This subpart states that a Tribe/Consortium may include BIA-
administered programs in its funding agreement regardless of the BIA
agency or office performing the program. The Secretary must provide to
the Tribe/Consortium:
(a) Funds equal to what the Tribe/Consortium would have received
under contracts and grants under title I of Public Law 93-638 (25
U.S.C. 5321, et seq.);
(b) Any funds specifically or functionally related to providing
services to the Tribe/Consortium by the Secretary; and
(c) Any funds that are otherwise available to Indian Tribes for
which appropriations are made to other agencies other than the
Department and transferred to the Department as directed by law, an
Interagency Agreement, or other means.
Except for construction programs or projects governed by subpart K
(Construction), or where a statute contains specific limitations on the
use of funds, a Tribe/Consortium may redesign or consolidate programs
and reallocate funds in any manner the Tribe/Consortium deems to be in
the best interest of the Indian community being served without the
Secretary's approval except for programs described in 25 U.S.C.
5363(b)(2) or (c), or that involve a request to waive a Department
regulation. However, a redesign or consolidation may not have the
effect of denying eligibility for services to population groups
otherwise eligible to be served under applicable Federal law.
In determining the funding amount available to a Tribe/Consortium,
this subpart identifies funds that are used to carry out inherent
Federal functions \1\ that cannot be included in a funding agreement.
This subpart also establishes the process for determining the funding
amount to carry out inherent Federal functions and clarifies that the
amount withheld to carry out inherent Federal functions can be
negotiated between the Secretary and a Tribe/Consortium.
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\1\ The Department notes that 25 U.S.C. 5363(k) uses the phrase
``inherently Federal'' while 25 U.S.C. 5367(c) uses the phrase
``inherent Federal.'' It is unclear why Congress used differing
phrases, but the proposed rule generally uses the phrase ``inherent
Federal,'' except where a provision directly follows statutory
language. The Department does not view the difference between the
two phrases as meaningful.
---------------------------------------------------------------------------

This subpart defines Tribal shares as the amount determined for
that Tribe/Consortium that supports any program within the BIA, the
Bureau of Indian Education (BIE), the Bureau of Trust Funds
Administration (BTFA), or the Office of the Assistant Secretary for
Indian Affairs and are not required by the Secretary for the
performance of an inherent Federal function. Tribal share amounts may
be determined by either:
(a) A formula that has a reasonable basis in the function or
service performed by the BIA office and is consistently applied to all
Tribes served by the area and agency offices; or
(b) On a Tribe-by-Tribe basis, such as competitive grant awards or
special project funding.
Funding amounts may be modified during the term of a funding
agreement to adjust for certain Congressional actions, correct a
mistake, or if there is mutual agreement to do so.
This subpart also defines stable base budgets as the amount of
recurring funding to be transferred to the Tribe/Consortium for a
period specified in the funding agreement. Stable base budgets are
derived from:
(a) A Tribe/Consortium's Public Law 93-638 contract amounts;
(b) Negotiated amounts of agency, area, and central office funding;
(c) Other recurring funding;
(d) Special projects, if applicable;
(e) Programmatic shortfall;
(f) Tribal priority allocation increases and decreases;
(g) Pay costs and retirement cost adjustments; and
(h) Any other inflationary cost adjustments.
Stable base budgets do not include any non-recurring program funds,
construction and wildland firefighting accounts, Congressional
earmarks, or other funds specifically excluded by Congress.
A stable base budget is established at the request of the Tribe/
Consortium and will be included in BIA's budget justification for the
following year, subject to Congressional appropriation. Once stable
base budgets are established, a Tribe/Consortium need not renegotiate
these amounts unless it wants to. If the Tribe/Consortium wishes to
renegotiate, it also would be required to renegotiate all funding
included in the funding agreement on the same basis as all other Tribes
and is eligible for funding amounts of new programs or available
programs not previously included in the funding agreement on the same
basis as other Tribes. Stable base budgets must be adjusted for certain
Congressional actions, to correct a mistake, or if there is mutual
agreement.

G. Subpart G--Funding Agreements for Non-BIA Programs

This subpart describes program eligibility, funding for, and terms
and conditions relating to Self-Governance funding agreements covering
non-BIA programs that can help further Secretarial co-stewardship
objectives as set forth in Joint Secretarial Order No. 3403. This
section was renamed from Subpart F, as detailed in the Committee
Report. Funding agreements for non-BIA programs are legally binding and
mutually enforceable agreements between a bureau and a Tribe/Consortium
participating in the self-governance program that contain a

[[Page 57528]]

description of that portion or portions of a bureau program that are to
be performed by the Tribe/Consortium; and associated funding, terms and
conditions under which the Tribe/Consortium will assume a program, or
portion of a program. Funding agreements may include Federal programs,
services, functions, or activities administered by the Department other
than through the BIA that are otherwise available to Indian tribes or
Indians and may also include other programs, services, functions, and
activities, or portions thereof which are of special geographic,
historical, or cultural significance to the participating Indian tribe
requesting a compact. This subpart contains a definition of which
functions may be considered ``inherently Federal'' for purposes of 25
U.S.C. 5363(k) and a provision making non-mandatory contract support
costs associated with administration of the programs, services,
functions, or activities that are transferred in non-BIA agreements.
The Committee did not achieve consensus on these two provisions.

H. Subpart H--Negotiation Process

The current rule includes ``Subpart G--Negotiation Process for
Annual Funding Agreements.'' The Committee proposes to amend the title
of this subpart and move it within this proposed rule. The subpart
title is proposed to be amended to ``Negotiation Process'' because the
amended subpart addresses the process for negotiating compacts and
funding agreements. The location of the subpart within this proposed
rule is to be moved from subpart G of the current rule to become
subpart H because a new subpart E for compacts is proposed to be
inserted. Items addressed in subpart H of the current rule are proposed
to be addressed in proposed new subpart Q (Operational Provisions).
Sections 1000.161 through 1000.165 of the current rule addresses
the negotiation of compacts and are proposed to be amended and moved to
the new subpart E (Compacts).
This subpart establishes the process and timelines for negotiating
a self-governance compact with the Secretary and a funding agreement
with any Departmental bureau. Under this subpart, the negotiation
process consists of two phases, an information phase and a negotiation
phase.
In the information phase, any Tribe/Consortium that has been
selected to participate in the self-governance program may submit a
written request clearly identified as a ``Request to Initiate the
Information Phase,'' which notifies the Secretary of a Tribe/
Consortium's interest in negotiating for a program(s) and requesting
information about the program(s). Although this phase is not mandatory,
it is expected to facilitate successful negotiations by providing for a
timely exchange of information on the requested programs. This subpart
establishes the information a Tribe/Consortium is encouraged to include
in its Request to Initiate the Information Phase and the steps a bureau
must take after receiving a request.
The negotiation phase establishes detailed timelines and procedures
for conducting negotiations with Tribes that have been selected into
the self-governance program, including the minimum issues that must be
addressed at negotiation meetings. A Tribe/Consortium initiates this
phase by submitting a Request to Initiate the Negotiation Phase. This
subpart also establishes the required response that the Secretary must
provide a Tribe/Consortium after receipt of a Request to Initiate the
Negotiation Phase, including identifying the lead Federal negotiator.
Further, this subpart establishes the process for finalizing and
executing a compact and/or funding agreement when the parties are in
agreement on such terms and conditions following the completion of
negotiations.
This subpart also establishes proposed rules for the negotiation
process for subsequent funding agreements. A subsequent funding
agreement is a funding agreement negotiated with a particular bureau
after an existing agreement with that bureau. The process for
negotiating a subsequent agreement is the same as the process provided
in this subpart for funding agreements. The Committee expects, however,
that subsequent funding agreements will build upon the prior funding
agreements. As such, most provisions of the funding agreement will
carry forward and not require renegotiation. This will result in an
expedited and simplified negotiation process.

I. Subpart I--Final Offer

The Committee proposes to insert this new subpart to implement
section 406(c) of title IV, as amended by the PROGRESS Act, 25 U.S.C.
5366(c), that prescribes the process to be followed if the Secretary
and the participating Tribe/Consortium are unable to come to agreement,
in whole or in part, on the terms of a compact or funding agreement
during negotiations. The previous version of title IV included no such
provisions, nor does the current rule.
The new subpart is proposed to be inserted at this location to
immediately follow the proposed amended subpart H for the negotiation
process. Doing so allows the reader to move sequentially from the
negotiation process to determine options for next steps if those
negotiation efforts do not result in agreement.
This subpart explains the final offer process provided by the Act
for resolving disputes when the Secretary and a Tribe/Consortium are
unable to agree, in whole or in part, on the terms of a compact or
funding agreement (including funding levels) during a negotiation.
Under this subpart a Tribe/Consortium may submit a final offer to
resolve these disputes. A final offer must be emailed or mailed to the
Director at OSG's headquarters. A valid email address will be provided
in the final rule. This proposed rule uses the placeholder ``[TBD]''.
A final offer under this subpart must contain a description of the
disagreement, the Tribe/Consortium's final proposal to resolve the
disagreement (including any proposed terms for a compact, funding
agreement, or amendment), and the name and contact information for the
Tribe's/Consortium's authorized official.
In accordance with 25 U.S.C. 5366(c)(6), the Secretary may reject
all or part of a final offer for one of six specified reasons. If the
Secretary does not act on a final offer within 60 days, the final offer
is accepted automatically by operation of law for any compact or
funding agreement except as to its application to a program described
under section 403(c) of title IV. Final offers with respect to any
program described under section 403(c) of title IV that the Secretary
does not act on within 60 days are rejected automatically by operation
of law. This subpart also addresses what happens if the Secretary
rejects all or part of a final offer, including provision of technical
assistance to overcome a rejection, the ability to appeal a rejection,
and the portions of a final offer not in dispute taking effect.

J. Subpart J--Waiver of Regulations

This subpart implements 25 U.S.C. 5363(i)(2)(A) that authorizes the
Secretary to waive all Department regulations governing programs
included in a funding agreement, as identified by the Tribe/Consortium.
This subpart also provides timelines, explains how a Tribe/
Consortium applies for a waiver, the basis for granting or denying a
waiver request, the documentation requirements for a decision, and
establishes a process for

[[Page 57529]]

resubmittal of a Tribe/Consortium's request in the event of the
Secretary's denial of a waiver request.
The basis for the Secretary's denial of a waiver request must be
predicated on a prohibition of Federal law.

K. Subpart K--Construction

This subpart applies to all construction programs and projects,
both BIA and non-BIA. The subpart specifies which construction program
activities are subject to subpart K, such as design, construction
management services, actual construction; and which are not, such as
planning services, operation and maintenance activities, and certain
construction programs that cost less than $100,000. All provisions of
the proposed rule apply to this subpart except where such provisions
are inconsistent; in such case the regulatory provisions of this
subpart will govern.
This subpart specifies the roles and responsibilities of the Tribe/
Consortium and the Secretary in construction programs, including
environmental determinations, performance, changes, monitoring,
inspections, and reassumption. This subpart details the process by
which a Tribe/Consortium, at its election and with the approval of the
Secretary, designates a certifying Tribal officer to represent the
Tribe/Consortium and accepts the jurisdiction of the United States
courts for the purpose of enforcing the responsibilities of the
certifying Tribal officer in order for the certifying Tribal officer to
assume some responsibilities of the official under the National
Environmental Policy Act (NEPA), the National Historic Preservation Act
(NHPA), and related provisions of other laws and regulations.
While the proposed text in this subpart reflects the consensus of
the committee, subsequent to the approving its report to the Secretary,
the Council on Environmental Quality (CEQ) revised its NEPA
implementing regulations, 40 CFR parts 1500 through 1508, which are
effective July 1, 2024.\2\ Therefore, DOI invites comment on whether to
revise the proposed regulatory text in any final rule for consistency
with NEPA and the NEPA implementing regulations. For example, updating
Sec. 1000.1390 to incorporate text from and for consistency with 42
U.S.C. 4332(2)(E) and 40 CFR 1506.6(a), which direct agencies to make
use of ``high-quality information, including reliable data and
resources;'' (2) updating Sec. 1000.1385(a)(2) to incorporate text
making clear that NEPA requires agencies to assess ``reasonably
foreseeable environmental effects'' of a proposed agency action, not
all potential effects, for consistency with 42 U.S.C. 4332(2)(C)(i) and
the definition of ``effects'' in 40 CFR 1508.1(i); and (3) updating
Sec. 1000.1385(a)(5) to state that in applying a categorical exclusion
under NEPA, evaluate whether extraordinary circumstances exist, in
which a normally excluded project may have a significant effect, and
therefore requires preparation of an environmental assessment or
environmental impact statement, for consistency with 40 CFR 1501.4. DOI
seeks public comment on these and any other edits that the public
considers appropriate for consistency with NEPA and the NEPA
implementing regulations.
---------------------------------------------------------------------------

\2\ See Council on Environmental Quality (CEQ), NEPA
Implementing Regulations Revisions Phase 2, Final Rule, 88 FR 35442
(May 1, 2024).
---------------------------------------------------------------------------

Federal Acquisition Regulations provisions are specifically not
incorporated into this proposed rule; however, they may be negotiated
by the parties in the funding agreement. Also, construction project
agreements, made part of a funding agreement, must address applicable
Federal laws, program statutes, and regulations. In addition to
requirements for all funding agreements referenced in subpart F
(Funding Agreements for BIA Programs), other provisions are added for
construction project agreements and programs and funding agreements
that include a construction project or program to implement the
requirements of the PROGRESS Act, including health and safety
standards, brief progress reports, financial reports, and suspension of
work when appropriate. Building codes appropriate for the project must
be used and the Federal agency must notify the Tribe when Federal
standards are appropriate for any project.
Lastly, this subpart provides that the Secretary may accept funds
from other departments for construction projects or programs, subject
to an interagency agreement between the Secretary, with Tribal
concurrence.

L. Subpart L--Federal Tort Claims

This subpart explains the applicability of the Federal Tort Claims
Act.

M. Subpart M--Reassumption

Reassumption is the federally initiated action of reassuming
control of Federal programs formerly performed by a Tribe/Consortium.
This subpart explains the types of reassumption authorized under title
IV, as amended by the PROGRESS Act, including the rights of a
Consortium member, the types of circumstances necessitating
reassumption, and Secretarial responsibilities including prior notice
requirements and other procedures. The subpart explains what is meant
by imminent jeopardy to trust assets, natural resources, and public
health and safety that may be grounds for reassumption.
This subpart also describes the hearing rights a Tribe/Consortium
has before or after reassumption by the Secretary, the activities to be
performed after reassumption has been completed, and the effect of
reassumption on other provisions of a funding agreement.

N. Subpart N--Retrocession

Retrocession is the Tribally-initiated voluntary action of
returning control of certain programs to the Federal Government. This
subpart defines retrocession, including how Tribes/Consortia may
retrocede, the effect of retrocession on future funding agreement
negotiations, and Tribal/Consortium obligations regarding the return of
Federal property to the Secretary after retrocession.

O. Subpart O--Trust Evaluation

This subpart establishes a procedural framework for the Secretary's
annual trust evaluation mandated by the PROGRESS Act. The purpose of
the Secretary's annual trust evaluation is to ensure that trust
functions assumed by Tribes/Consortia are performed in a manner that
does not place trust assets in imminent jeopardy.
Imminent jeopardy of a physical trust asset or natural resource (or
their intended benefits) exists where there is an immediate threat and
likelihood of significant devaluation, degradation, or loss to such
asset. 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 a funding
agreement.
This subpart requires the Secretary's designated representative to
prepare a written report for each funding agreement under which trust
functions are performed by a Tribe. This proposed rule also authorizes
a review of Federal performance of residual and nondelegable trust
functions affecting trust resources. The name of this subpart has been
changed from ``Trust Evaluation Review'' to ``Trust Evaluation.'' It
was redundant to have both evaluation and review in the title.

[[Page 57530]]

P. Subpart P--Reports

This subpart describes the report on self-governance that the
Secretary prepares annually for transmittal to Congress. It also
includes the requirements for the annual report that Tribes/Consortia
submit to the Secretary and other data requirements the Secretary may
request of Tribes/Consortia. The issue related to the inclusion of BIE
in the BIA programs for purposes of the reporting requirements surfaces
in this subpart and is addressed in subpart A (General Provisions).

Q. Subpart Q--Operational Provisions

The current rule includes ``Subpart Q--Miscellaneous Provisions.''
The Committee proposes to amend the title of this subpart to
``Operational Provisions'' to be more descriptive and instructive to
the reader and to bring consistency with regulations promulgated at 42
CFR subchapter M part 137-Tribal Self-Governance under the Indian
Health Service as authorized by title V of the ISDEAA, as amended.
The proposed changes to this subpart address many facets of self-
governance not covered in the other subparts. Issues covered include
the applicability of various laws such as the Freedom of Information
Act (FOIA), the Privacy Act, the Prompt Payment Act, and the Single
Agency Audit Act, applicable provisions of OMB circulars, how funds are
handled in various situations, including carryover of funds, savings
from programs, and the use of funds to meet matching or cost
participant requirements under other laws.
Certain provisions of this subpart are proposed to be amended to
become current with the PROGRESS Act, and with applicable regulations
promulgated by OMB at 2 CFR part 200. References to outdated OMB
circulars within this subpart are proposed to be updated throughout.
New sections within this subpart are proposed to address new provisions
within the Act, as amended, such as claims against a Tribe/Consortium
in relation to disallowance of costs, and limitation of costs.

R. Subpart R--Appeals

This subpart prescribes the process Tribes/Consortia may use to
resolve disputes with the Department arising before or after execution
of a funding agreement or compact and certain other disputes related to
self-governance.

S. Subpart S--Conflicts of Interest

This subpart sets out the minimum requirements a Tribe/Consortium
must have in place, pursuant to Tribal law and procedures, to address
conflicts of interest, including organizational and personal conflicts.

T. Subpart T--Tribal Consultation Process

This subpart describes the process for engaging in consultations
related to self-governance with Tribes/Consortia. The current rule
includes ``Subpart I--Public Consultation Process.'' The Committee
proposes to move and rename this subpart to reflect that the subpart
applies to Tribal consultation, and to conform to more recent Federal
and Department policy on Tribal consultation. Under this subpart,
consultations related to self-governance commenced after this rule's
effective date, should it become final, will comply with the Tribal
consultation process outlined in the revised version of this subpart,
and such previous regulations governing public consultation shall be
superseded.
This subpart establishes when the Secretary shall consult on
matters related to self-governance and identifies that consultation
will occur: (1) to determine eligible programs for inclusion in a
funding agreement; (2) to establish programmatic targets for the
inclusion of non-BIA programs in funding agreements; and (3) on any
secretarial action with Tribal implications on matters related to self-
governance. This subpart also establishes the applicable process for
engaging in Tribal consultations, which is inspired by the President's
November 30, 2022, Memorandum on Uniform Standards for Tribal
Consultation, and the Department's current Departmental Manuals.
This subpart also establishes guiding principles applicable to
Tribal consultation related to self-governance. Additionally, this
subpart requires the Secretary to provide notice of upcoming
consultations to Tribes/Consortia, allow written comments, and develop
a record reflecting a Tribal consultation. Finally, this subpart
establishes how the Secretary will handle confidential or sensitive
information provided by a Tribe/Consortium during a consultation.
The Committee agreed to require at least 30 days' notice to Tribes/
Consortia prior to any planned consultation sessions. However, the
Committee recognizes that situations may occur that require the need
for Tribal consultation on an expedited basis to address urgent issues.
Therefore, the Committee expects that the Secretary could waive
applicable notice requirements at the request of a Tribe/Consortium
pursuant to subpart J (Waiver of Regulations) in such urgent
situations. However, the Committee views the requirement for 30 days'
notice as the norm and expects any such waivers to be at the request of
a Tribe/Consortium.

III. Areas of Disagreement

The Committee did not reach consensus on four issues. These
include: (1) the minimum contents that must be included in a compact
and funding agreement; (2) inclusion of language about which functions
may be considered ``inherently Federal'' for purposes of 25 U.S.C.
5363(k); (3) whether certain responsibilities pursuant to NEPA and
related statutes are ``inherent Federal functions;'' and (4) when a
Tribe/Consortium may choose to pursue an administrative appeal with the
appropriate bureau head/Assistant Secretary as an alternative path to
filing an administrative appeal with the Interior Board of Indian
Appeals (IBIA).
Each area of disagreement is summarized below, in order, by subpart
and section, as appropriate. To the extent a disagreement could not be
resolved, the Department has incorporated the Federal language proposal
into the proposed regulatory text. A summary of the Tribal and Federal
views on these areas of disagreement are set forth below. More detail
is available in the Committee's report, which is a part of the official
record in this rulemaking and is available upon request. The Department
solicits comments on these areas of disagreement.

A. Subpart E--Compacts

One issue of disagreement encountered by the Tribal and Federal
representatives concerns the minimum contents that must be included in
a compact and funding agreement in order to reflect the requirements of
title IV as required under 25 U.S.C. 5365(a).
1. Tribal View
25 U.S.C. 5365(a) provides that ``[a]n Indian Tribe and the
Secretary shall include in any compact or funding agreement provisions
that reflect the requirements of this subchapter,'' i.e., Subchapter
IV--Tribal Self-Governance--Department of the Interior. The Tribal and
Federal representatives disagree on how the contents of compacts and
funding agreements can satisfy this requirement.'' The Tribal position
is that this statutory requirement can be satisfied through simplified
Tribal assurances included in a compact and/or funding agreement that
the Tribe/Consortium will comply with title IV. Such Tribal assurances
would reflect

[[Page 57531]]

the requirements of title IV in these agreements without burdening
parties to negotiate lengthy documents which may add little additional
substance beyond quoting statutory provisions in title IV.
The Tribal position is that the proposed language in Sec. Sec.
1000.510(e) and 1000.515 is excessive and not properly tailored to
satisfying the requirement to reflect the requirements of title IV
under 25 U.S.C. 5365(a). The identified topics in these regulatory
sections correspond with general topics set out in 25 U.S.C. 5365.
These topics include, for example, Tribal assurances that it has
procedures in place to address conflicts of interest (25 U.S.C.
5365(b)), will apply applicable cost principles under OMB circulars in
performing the title IV compact and funding agreement (25 U.S.C.
5365(c)), and will maintain a recordkeeping system and provide the
Secretary with reasonable access to the records to permit the Secretary
to meet the requirements of 44 U.S.C. 3101 through 3106 (25 U.S.C.
5365(g)).
The Tribal position is that a title IV compact or funding agreement
can include language that satisfies 25 U.S.C. 5365(a), which states
that the Tribe/Consortium will carry out the compact or funding
agreement ``in accordance with the requirements of Title IV.''
2. Federal View
The Federal position on the proposed Sec. Sec. 1000.510(e) and
1000.515 is based on the language of 25 U.S.C. 5365(a) providing that
``[a]n Indian Tribe and the Secretary shall include in any compact or
funding agreement provisions that reflect the requirements of this
subchapter.'' The Federal committee members read this statutory
language to direct that the parties include in a compact or funding
agreement each of the provisions reflecting the requirements of Title
IV.
The Federal position is that relevant provisions of the PROGRESS
Act indicate that particular language or provisions must be included in
a funding agreement or a compact. For example, 25 U.S.C. 5366(b)(1)
directs that ``[a] compact or funding agreement shall include
provisions for the Secretary to reassume a program and associated
funding if there is specific finding relating to that program.'' As
another example, 25 U.S.C. 5363(e)(2) authorizes the parities to
specify an effective date for retrocession. The Federal position is
that the best way to fulfill these statutory requirements is to include
provisions matching each of the headings set forth in 25 U.S.C. 5365.

B. Subpart F--Funding Agreements for BIA Programs

Similar to subpart E (Compacts), an issue of disagreement
encountered by the Tribal and Federal representatives concerns the
minimum contents that must be included in a compact and funding
agreement in order to reflect the requirements of title IV as required
under 25 U.S.C. 5365(a).
1. Tribal View
For the reasons explained in the Tribal view associated with
subpart E (Compacts), the Tribal representatives did not agree to the
inclusion of the proposed Sec. 1000.610(b) concerning language which
``must be included in either a compact or funding agreement.'' In
parallel to the replacement of the proposed Sec. 1000.515, this
language should be replaced by a provision that requires either a
compact and funding agreement to ``include a general attestation that,
in implementing the agreement, the Tribe will comply with all
requirements of Title IV.''
There was also disagreement between the Tribal and Federal
representatives regarding negotiations about inherent Federal
functions. Both Federal and Tribal representatives agree that the
identification of a particular function as an inherent Federal function
is a pre-award dispute that is appealable to either the IBIA or the
appropriate Bureau head/Assistant Secretary (covered in subpart R--
Appeals). And both Federal and Tribal representatives agree that that
the amount of funding withheld to cover the cost of inherent Federal
functions is subject to pre-award negotiations (covered in this
subpart). Tribal representatives proposed language in Sec. 1000.695 to
create consistency between subpart R (Appeals) and subpart F (Funding
Agreements for BIA Programs) by clarifying, in subpart F (Funding
Agreements for BIA Programs), that the identification of an inherent
Federal function is a topic of negotiation.
2. Federal View
The Federal position on proposed Sec. 1000.610(b), for reasons
explained in the Federal narrative associated with subpart E
(Compacts), is based on the language of 25 U.S.C. 5365(a) providing
that ``[a]n Indian Tribe and the Secretary shall include in any compact
or funding agreement provisions that reflect the requirements of this
subchapter.'' The Federal Committee members read this statutory
language to direct that the parties include in a compact or funding
agreement each of the provisions reflecting the requirements of title
IV. This position is informed by the Department's experience when
encountering a problem in the execution of a funding agreement. In that
situation, the primary question that arises involves what the agreed
upon terms of a funding agreement provide as to a particular outcome.

C. Subpart G--Funding Agreements for Non-BIA Programs

A disagreement arose surrounding the inclusion of language about
which functions may be considered ``inherently Federal'' for purposes
of 25 U.S.C. 5363(k) and may therefore not be contracted to Tribes. In
addition, a disagreement arose as to whether contract support costs are
limited by Congressional appropriations.
1. Tribal View
Tribal representatives proposed to include a single sentence from a
Department Solicitor guidance memorandum, ``Inherently Federal
Functions under the Tribal Self-Governance Act,'' dated May 17, 1996
(Solicitor Memo), which has been in place for close to 30 years. Those
parts of the proposed sentence that are not copied verbatim from the
Solicitor Memo are substantively identical to the statement from the
memo, according to the Tribal representatives.
The Tribally proposed sentence would state that ``[w]hen
determining whether a function is inherently Federal within the meaning
of the Act, the more a delegated PSFA relates to Tribal sovereignty
over citizens or territory, the more likely it is that the function is
not inherently Federal.'' \3\
---------------------------------------------------------------------------

\3\ By comparison, the sentence in the Solicitor Memo reads,
``The more a delegated function relates to tribal sovereignty over
members or territory, the more likely it is that the inherently
exception of section 403(k) does not apply.'' See U.S. Department of
the Interior, Office of the Solicitor, Memorandum on Inherently
Functions under the Tribal Self-Governance Act (May 17, 1996), at
12.
---------------------------------------------------------------------------

Tribal representatives initially requested that the proposed rule
clarify that the Department will provide all necessary contract support
costs, as calculated under section 106(a) of the ISDEAA, for all Self-
Governance agreements entered into by non-BIA Agencies. Such a
regulatory commitment would create predictability, transparency, and
the necessary financial footing for increasing the abysmally low level
of non-BIA Self-Governance agreements. The Federal representatives did
not agree to such a commitment in this proposed rule.
As a compromise, the Committee proposes to keep the existing
regulatory

[[Page 57532]]

language requiring that agreements with non-BIA agencies under 25
U.S.C. 5363(c) include funding for allowable indirect costs, while
separately addressing direct contract support costs. Tribal
representatives proposed language that would make it clear to Tribal
and Federal negotiators that the baseline for determining such direct
contract support costs should be the same as for any other ISDEAA
agreement, as provided for in the statutory text found in section
106(a) of the ISDEAA.
2. Federal View
The Federal position on the proposed Sec. 1000.845(a) is that
particular quotations taken out of context from legal guidance issued
by the Department's Solicitor to DOI bureaus and offices should not be
codified in regulation. A single sentence in isolation fails to capture
the complete standard for identifying an inherently Federal function
under the legal guidance. Furthermore, if the sentence in isolation
became the regulatory standard for an inherently Federal function, that
would create an administrative process by which an applicant Tribe asks
a bureau or office of the Department to opine on the Tribe's
sovereignty, and attendant obligation under the Administrative
Procedure Act, could unintentionally create roadblocks or limitations
upon the Tribe's sovereignty in a manner that the Department cannot
endorse.
Additionally, the Department notes that provision of contract
support costs is subject to Congressional appropriations. While
individual bureaus and offices may support providing contract support
costs, as discussed in the Tribal narrative, the Department is unable
to reallocate funds to provide those contract support costs without
Congressional authorization.

D. Subpart K--Construction

A number of disagreements arose regarding whether certain
responsibilities pursuant to the NEPA and related statutes are
``inherent Federal functions.''
1. Tribal View
25 U.S.C. 5367(b) provides that, ``subject to the agreement of the
Secretary,'' a Tribe or Consortium may ``elect to assume some Federal
responsibilities under'' NEPA by (a) designating a Tribal official to
``assume the status of a responsible Federal official'' for purposes of
NEPA and (b) issuing a limited waiver of sovereign immunity for the
purposes of ``enforcing the responsibilities'' of that official.
Because making environmental determinations, such as whether to approve
NEPA documents, including categorical exclusions (CEs), environmental
assessments (EAs), and environmental impact statements (EISs), is one
of the responsibilities of a Federal official under NEPA, and because
Tribal officials have been issuing such decisions for years under
similar language in Title V, the Tribal representatives proposed
several regulatory provisions to clarify the rights and
responsibilities of a Tribe or Consortium that elects to assume Federal
responsibilities pursuant to 25 U.S.C. 5367(b).
Tribal negotiators proposed regulatory provisions to clarify the
rights and responsibilities of a Tribe or Consortium that elects to
assume Federal responsibilities pursuant to 25 U.S.C. 5367(b). Tribal
negotiators proposed a regulatory provision reflecting the process by
which a Tribe/Consortium is recognized as having led, cooperating, or
joint lead agency status on a project. Tribal representatives to the
Committee argued that the proposed rule should define the term
``categorical exclusion'' for ease of use by Tribal and Federal
officials, and because the term is used in proposed Sec. 1000.1385.
2. Federal View
The Federal position is that the Committee must follow the language
of the PROGRESS Act, which only allows Tribes to assume under title IV
``some Federal responsibilities under the National Environmental Policy
Act of 1969,'' 25 U.S.C. 5367(b) (emphasis added). This language)
differs from the statutory language allowing Tribes to assume ``all
Federal responsibilities under the National Environmental Policy Act of
1969,'' 25 U.S.C. 5389(a) (emphasis added), in title V. Moreover, under
title IV, the Secretary is prohibited from delegating to a Tribe or
Consortium ``duties of the Secretary under [NEPA, the NHPA,] and other
related provisions of law that are inherent Federal functions.'' 25
U.S.C. 5367(c). The Committee is duty bound to follow Congress's
guidance in developing proposed regulations. The Federal
representatives of the Committee read Congress's use of the term some
to mean something different than when Congress uses the term all. See,
e.g., Ysleta Del Sur Pueblo v. Texas, 596 U.S. 685, 698 (2022) (Supreme
Court restating its ``usual presumption that differences in language
like this convey differences in meaning.'').

E. Subpart R--Appeals

A disagreement arose about when a Tribe/Consortium may choose to
pursue an administrative appeal with the appropriate bureau head/
Assistant Secretary as an alternative path to filing an administrative
appeal with the IBIA.
1. Tribal View
The Tribal position is that the proposed regulations should
empower, and not limit, Tribes/Consortia to have options to decide how
to proceed with an administrative appeal. Tribal representatives are
aware that Tribes/Consortia have encountered difficulties and delays
when pursuing appeals with the IBIA. Although changes to the IBIA
itself are outside the scope of this negotiated rulemaking, the Tribal
representatives urged that this proposed rule should provide Tribes/
Consortia with the greatest flexibility to address the realities of the
IBIA appeals process. Further, the Tribal representatives emphasize
that the Department and Congress should pursue all available routes to
improve the IBIA appeals process to decide appeals in a just,
efficient, and time-sensitive manner.
To address the realities of the IBIA system, Tribal negotiators
argue that all pre-award dispute decisions that fall within Sec.
1000.2345 should be eligible to be decided by a bureau head/Assistant
Secretary, in lieu of an appeal to the IBIA, if a Tribe/Consortium so
chooses. This position would establish two mutually exclusive paths
that a Tribe/Consortium could choose from to pursue any pre-award
dispute under Sec. 1000.2345: either through (1) the IBIA; or (2) the
bureau head/Assistant Secretary. Section 1000.2345 identifies the types
of decisions that may be appealed to either a bureau head/Assistant
Secretary or the IBIA under certain sections in subpart R (Appeals) and
includes decisions such as rejecting a final offer, rejecting a
proposed amendment to a compact or funding agreement, determinations
that a provision in a retained funding agreement and/or compact are
directly contrary to title IV, non-immediate reassumption, and certain
construction-related decisions.
2. Federal View
The Federal position on the proposed Sec. Sec. 1000.2302 and
1000.2351 is that these sections, which provide the appeals process for
certain types of disputes under the current regulations--and were not
otherwise changed, amended, or even addressed by the PROGRESS Act--
provide an avenue for Tribes to appeal their disputes in a

[[Page 57533]]

manner that empowers Tribes to pursue potential options beyond those
available to Tribes under subpart L (Appeals) of 25 CFR part 900,
applicable to disputes under title I, and subpart P (Appeals) of 42 CFR
part 137, applicable to disputes under title V (IHS). Under 25 CFR part
900, the only avenue of appeal available to Tribes after efforts at
informal dispute resolution have not resolved the dispute is to file a
notice of appeal with the IBIA. Likewise, 42 CFR part 137, which
follows the appeals procedures set forth in 25 CFR part 900, provides
for appeals to be heard only by the IBIA. By contrast, as to certain
types of disputes, proposed subpart R (Appeals) provides for appeals to
be made to either the IBIA or a bureau head/Assistant Secretary. These
types of appeals are for pre-award non-title I eligible PSFA disputes,
which encompasses a broad range of issues including, but not limited
to, PSFAs transferred under section 403(c) of title IV, decisions
declining to provide requested information, allocations of program
funds when a dispute arises between a Consortium and a withdrawing
Tribe, and inherently Federal functions.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 14094 and E.O. 13563)

Executive Order (E.O.) 12866, as amended by E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) at the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this proposed rule is significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. The Department has developed this proposed rule in a manner
consistent with these requirements.
In accordance with 5 U.S.C. 553(b)(4), a summary of this proposed
rule may be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by searching for ``RIN
1076-AF62.''
E.O. 12866 Interagency Feedback Received on Proposed Rule
The Department is proposing new regulations to update the manner in
which it implements self-governance at the Department. This Notice
discusses the rationale for the changes that should have no major
impacts on regulations or programs administered by other agencies.
Overall, the proposed rule is expected to apply only to those Tribes/
Consortia that enter into a self-governance compact with the Department
and conclude a funding agreement under that compact.
However, during OIRA's E.O. 12866 review, the Department received
comment expressing concerns about how the Department's proposed rule
might intersect with another agency's self-governance regulations and
program. The Department currently lacks information to describe the
manner, if any, in which its self-governance regulations might affect
self-governance compacts and funding agreements between Tribes/
Consortia and agencies other than the Department. Some priority
learning questions, where we seek information, include:
<bullet> How or whether the provisions of the proposed rule,
especially those terms and processes in common between the Department
and self-governance regulations at other agencies could affect any term
of any other agency's self-governance procedures?
<bullet> How or whether the Department could specify that its
proposed rule implementing self-governance at the Department does not
bear upon either interpretation of language in another agency's self-
governance regulations or authorizing statute, nor language in a
compact or funding agreement between a Tribe/Consortia and another
agency.
<bullet> How or whether the Department could address potential
inconsistencies between its proposed rule, based on the Department's
authorizing legislation, and similar provisions in other agencies'
self-governance regulations, which are based on their respective,
different authorizing statutes.

B. Regulatory Flexibility Act

The Department has evaluated the effects of this proposed rule on
small entities, such as local governments and businesses. Based on its
evaluation, the Department certifies that this document would not have
a significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 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 proposed rule having an impact on the Federal
Government and Indian Tribes, which are not considered to be small
entities for purposes of this Act.

C. Congressional Review Act (CRA)

While any determination will not be made until any final rule is
published, the Department does not anticipate that this rule, if
finalized, would meet the criteria under 5 U.S.C. 804(2), because it
would not have an annual effect on the economy of $100 million or more,
would not cause a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions, and would not have significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

D. Unfunded Mandates Reform Act of 1995

This proposed rule would not impose an unfunded mandate on State,
local, or Tribal governments or the private sector of more than $100
million per year. This proposed rule would not have a significant or
unique effect on State, local, or Tribal governments or the private
sector because this proposed rule affects only putative exporters and
their related businesses. A statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.

E. Takings (E.O. 12630)

This proposed rule would not affect a taking of private property or
otherwise have taking implications under E.O. 12630. A takings
implication assessment is not required.

F. Federalism (E.O. 13132)

Under the criteria in section 1 of E.O. 13132, this proposed rule
would not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

This proposed rule complies with the requirements of E.O. 12988.
Specifically, this proposed rule: (a) meets the criteria of section
3(a) requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all

[[Page 57534]]

regulations be written in clear language and contain clear legal
standards.

H. Consultation With Indian Tribes (E.O. 13175)

The Department strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and Tribal sovereignty. We have evaluated this proposed rule under the
Department's consultation policy and under the criteria in E.O. 13175
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 to develop the text of this
proposed rule. 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 proposed rule text and Preamble, except for the four areas of
disagreement discussed above.
The Department anticipates seeking Tribal input through the comment
period and until publication of a Final Rule.

I. Paperwork Reduction Act

This proposed rule contains existing information collections. All
information collections require approval under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.). The Self-Governance program is
authorized by the Tribal Self-Governance Act of 1994, 25 U.S.C. 5301,
Public Law 103-413, as amended. Tribes interested in entering into
Self-Governance must submit certain information as required by the Act.
In addition, those Tribes and Consortia that have entered into Self-
Governance funding agreements will be requested to submit certain
information as described in this proposed rule. This information will
be used to justify a budget request submission on their behalf and to
comport with section 405 of the Act that calls for the Secretary to
submit an annual report to the Congress.
The following revision to the existing information collections
require approval by OMB.
<bullet> Summary of Proposed Revision: Projected increase in
respondent participation and total number of annual respondents.
<bullet> Title of Collection: Tribal Self-Governance Program.
<bullet> OMB Control Number: 1076-0143.
<bullet> Form Number: Annual Self-Governance Report Form.
<bullet> Type of Review: Revision of a currently approved
collection.
<bullet> Respondents/Affected Public: Federally recognized Indian
Tribes and Tribal Consortia participating in or wishing to enter into
Tribal Self-Governance.
<bullet> Total Estimated Number of Annual Respondents: 115.
<bullet> Total Estimated Number of Annual Responses: 130.
<bullet> Estimated Completion Time per Response: Varies from 1 to
400 hours.
<bullet> Total Estimated Number of Annual Burden Hours: 5,073
hours.
<bullet> Respondent's Obligation: Required to obtain a benefit.
<bullet> Frequency of Collection: On occasion or annually.
<bullet> Total Estimated Annual Non-Hour Burden Cost: $10,600 for
cost associated with attending training and hiring consultants to
provide services for entering the Self-Governance Program.
<bullet> Annual Costs to Federal Government: $1,592,490.
As part of our continuing effort to reduce paperwork and
respondents' burdens, we invite the public and other Federal agencies
to comment on any aspect of this information collection including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Send your written comments and suggestions on this information
collection to OIRA listed in ADDRESSES by the date indicated in DATES.
Please also send a copy to <a href="/cdn-cgi/l/email-protection#9dfef2f3eee8f1e9fce9f4f2f3ddfff4fcb3faf2eb">[email&#160;protected]</a> and reference ``OMB
Control Number 1076-0143'' in the subject line of your comments. You
may also view the ICR at <a href="https://www.reginfo.gov/public/Forward?SearchTarget=PRA&textfield=1076-0143">https://www.reginfo.gov/public/Forward?SearchTarget=PRA&textfield=1076-0143</a>.

J. National Environmental Policy Act (NEPA)

Under NEPA, categories of Federal actions that normally do not
significantly impact the human environment may be categorically
excluded from the requirement to prepare an environmental assessment or
environmental impact statement. See 40 CFR 1501.4. The Department's
regulations categorically exclude the promulgation of ``regulations . .
. that are of an administrative . . . or procedural nature,'' because
the promulgation of such regulations normally does not have a
significant effect on the human environment, individually or in the
aggregate. See 43 CFR 46.210(i). This rule is administrative and
procedural in nature, and therefore is within the scope of this
categorical exclusion. Further, the Department determined that the rule
would not involve any extraordinary circumstances that might require
preparation of an environmental assessment or an environmental impact
statement. See 43 CFR 46.215.

K. Energy Effects (E.O. 13211)

This proposed rule is not a significant energy action under the
definition in E.O. 13211. A Statement of Energy Effects is not
required.

L. Clarity of This Regulation

The Department is required by Executive Orders 12866 (section
1(b)(12)), 12988 (section 3(b)(l)(B)), and 13563 (section l(a)), and by
the Presidential Memorandum of June 1, 1998, to write all rules in
plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the proposed rule, your comments should be as
specific as possible. For example, you should tell us the numbers of
the sections or paragraphs that you find

[[Page 57535]]

unclear, which sections or sentences are too long, the sections where
you feel lists or tables would be useful, and so forth.

M. Public Availability of Comments

Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.

List of Subjects in 25 CFR Part 1000

Administrative practice and procedure, Indian Tribes, Tribal
Consortium.

0
For the reasons set forth in the preamble above, the Department of the
Interior, Assistant Secretary--Indian Affairs, proposes to revise 25
CFR part 1000 to read as follows:

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

The authority of this entire part 1000 is as follows:

Authority: 25 U.S.C. 5373
Subpart A--General Provisions
Sec.
1000.1 What is the authority of this part?
1000.5 What key terms do I need to know?
1000.10 What is the purpose and scope of this part?
1000.15 What is the congressional policy statement of this part?
1000.20 What is the Secretarial policy of this part?
1000.25 What is the effect on existing Tribal rights?
1000.30 What is the effect of these regulations on Federal program
guidelines, manual, or policy directives?
Subpart B--Selection of Additional Tribes for Participation in Tribal
Self-Governance

Purpose and Definitions

1000.101 What is the purpose of this subpart?
1000.105 What is a ``signatory''?
1000.110 What is a ``nonsignatory Tribe''?

Eligibility

1000.115 Who may participate in Tribal self-governance?
1000.120 How many additional Tribes/Consortia may participate in
self-governance per year?
1000.125 What must a Tribe/Consortium submit to be selected to
participate in Self- Governance?
1000.130 What additional information may be submitted to the
Secretary to facilitate negotiations?
1000.135 May a Consortium member Tribe withdraw from the Consortium
and be selected to participate in Self-Governance?
1000.140 What is required during the ``planning phase''?
1000.145 When does a Tribe/Consortium have an uncorrected
``significant and material audit exception''?
1000.150 What are the consequences of having an uncorrected
significant and material audit exception?
1000.155 Is the Secretary required to provide technical assistance
to improve a Tribe's/Consortium's internal controls?

Selection To Participate in Self-Governance

1000.160 How is a Tribe/Consortium selected to participate in Self-
Governance?
1000.165 When does OSG accept requests to participate in Self-
Governance?
1000.170 Are there any time frames to negotiate an initial compact
or funding agreement for a Tribe not presently participating in
self-governance?
1000.175 How does a Tribe/Consortium withdraw its request to
participate in Self-Governance?
1000.180 What if more than 50 Tribes/Consortium apply to participate
in Self- Governance?
1000.185 What happens if a request is not complete?
1000.190 What happens if a Tribe/Consortium is selected to
participate but does not execute a compact and a funding agreement?
1000.195 May a Tribe/Consortium be selected to negotiate a funding
agreement under section 403(b)(2) (25 U.S.C. 5363(b)(2)) without
having or negotiating a funding agreement under 25 U.S.C.
5363(b)(1)?
1000.200 May a Tribe/Consortium be selected to negotiate a funding
agreement under section 403(c) (25 U.S.C. 5363(c)) without
negotiating a funding agreement under 25 U.S.C. 5363(b)(1) and/or
section 403(b)(2) (25 U.S.C. 5363(b)(2))?

Withdrawal From a Consortium Funding Agreement

1000.205 What happens when a Tribe wishes to withdraw from a
Consortium funding agreement?
1000.210 How are funds redistributed when a withdrawing Tribe fully
or partially withdraws from a compact and funding agreement and
enters a new contract or compact?
1000.215 If the withdrawing Tribe elects to operate a program
carried out under a compact and funding agreement under title IV
through a contract under title I, is the resulting contract
considered a mature contract under 25 U.S.C. 5304(h)?
1000.220 How are funds distributed when a withdrawing Tribe fully or
partially withdraws from a Consortium's compact and funding
agreement and the withdrawing Tribe does not enter a new contract or
compact?
1000.225 What amount of funding is to be removed from the
Consortium's funding agreement for the withdrawing Tribe?
1000.230 What happens if there is a dispute between the Consortium
and the withdrawing Tribe?
1000.235 When a Tribe withdraws from a Consortium, is the Secretary
required to award to the withdrawing Tribe a portion of funds
associated with a construction project if the withdrawing Tribe so
requests?
Subpart C--Planning and Negotiation Grants for BIA Programs
1000.301 What is the purpose of this subpart?
1000.305 Are there grants available to assist Tribes/Consortia to
meet the requirements to participate in self-governance?
1000.310 What is required to request planning and negotiation
grants?
1000.315 Are planning and negotiation grants available?
1000.320 Must a Tribe/Consortium receive a planning or negotiation
grant to be eligible to participate in self-governance?
1000.325 What happens if there are insufficient funds to award all
of the requests for planning and negotiation grants in any given
year?
1000.330 May a Tribe/Consortium that has received a planning grant
also receive a negotiation grant?
1000.335 What are the Secretary's responsibilities upon a decision
not to award a planning or negotiation grant?
1000.340 May a Tribe/Consortium administratively appeal the
Secretary's decision to not award a grant under this subpart?
Subpart D--Financial Assistance for Planning and Negotiation Activities
for Non-BIA Bureau Programs
1000.401 What is the purpose of this subpart?
1000.405 What funds are available to Tribes/Consortium for planning
and negotiating activities with non-BIA bureaus?
1000.410 What kinds of planning and negotiation activities for non-
BIA programs does financial assistance from non-BIA bureaus support?
1000.415 Who can apply to a non-BIA bureau for financial assistance
to plan and negotiate non-BIA programs?
1000.420 Under what circumstances may financial assistance for
planning and negotiation activities with non-BIA bureaus be awarded
to Tribes/Consortia?
1000.425 How does the Tribe/Consortium know when and how to apply
for financial assistance for planning and negotiation activities for
a non-BIA program?
1000.430 What must be included in the application for financial
assistance for planning and negotiation activities for a non-BIA
program?
1000.435 How will the non-BIA bureau director/commissioner award
financial

[[Page 57536]]

assistance for planning and negotiation activities for a non-BIA
program?
1000.440 May non-BIA bureaus provide technical assistance to a
Tribe/Consortium in drafting its application?
1000.445 What are the non-BIA bureau director's/commissioner's
responsibilities upon a decision to decline financial assistance?
1000.450 Can an applicant administratively appeal a decision not to
award financial assistance?
1000.455 May a Tribe/Consortium reapply through a future planning
and negotiation application if it has been previously denied?
1000.460 Will the non-BIA bureau notify Tribes/Consortium of the
results of the selection process?
Subpart E--Compacts
1000.501 What is a self-governance compact?
1000.505 Which DOI office negotiates self-governance compacts?
1000.510 What is included in a self-governance compact?
1000.515 What provisions must be included in either a compact or
funding agreement?
1000.520 Is a compact required to participate in self-governance?
1000.525 Can a Tribe/Consortium negotiate other terms and
conditions?
1000.530 What is the duration of a compact?
1000.535 May a compact be amended?
1000.540 Can a Tribe/Consortium have a funding agreement without
having negotiated a compact?
1000.545 May a participating Tribe/Consortium retain its existing
compact which was executed prior to the enactment of Public Law 116-
180?
1000.550 What happens if the Tribe/Consortium and Secretary fail to
reach an agreement on a compact?
Subpart F--Funding Agreements for BIA Programs
1000.601 What is the purpose of this subpart?
1000.605 What is a funding agreement?

Contents and Scope of Funding Agreements

1000.610 What must be included in a funding agreement?
1000.615 Can additional provisions be included in a funding
agreement?
1000.620 Does a Tribe/Consortium have the right to include
provisions of title I of Public Law 93-638 in a funding agreement?
1000.625 What is the term of a funding agreement?
1000.630 Can a Tribe/Consortium negotiate a funding agreement with a
term that exceeds one year?
1000.635 Does a funding agreement remain in effect after the end of
its term?
1000.640 May a participating Tribe/Consortium retain its existing
funding agreement which was executed prior to the enactment of
Public Law 116-180?

Determining What Programs May Be Included in a Funding Agreement

1000.645 What PSFAs may be included in a funding agreement?
1000.650 How does the funding agreement specify the services
provided, functions performed, and responsibilities assumed by the
Tribe/Consortium and those retained by the Secretary?
1000.655 May a Tribe/Consortium redesign or consolidate the programs
that are included in a funding agreement and reallocate funds for
such programs?
1000.660 Do Tribes/Consortium need Secretarial approval to redesign
BIA programs that the Tribe/Consortium administers under a funding
agreement?
1000.665 Can the terms and conditions in a funding agreement be
amended during the year it is in effect?

Determining Funding Agreement Amounts

1000.670 What funds must be transferred to a Tribe/Consortium under
a funding agreement?
1000.675 What funds may not be included in a funding agreement?
1000.680 May the Secretary place any requirements on programs and
funds that are otherwise available to Tribes/Consortium or Indians
for which appropriations are made to agencies other than DOI?
1000.685 What funds are used to carry out inherent Federal
functions?
1000.690 How does BIA determine the funding amount to carry out
inherent Federal functions?
1000.695 Is the amount of funds withheld by the Secretary to cover
the cost of inherent Federal functions subject to negotiation?
1000.700 May a Tribe/Consortium continue to negotiate a funding
agreement pending an appeal of funding amounts associated with
inherent Federal functions?
1000.705 What is a Tribal share?
1000.710 How does BIA determine a Tribe's/Consortium's share of
funds to be included in a funding agreement?
1000.715 Can a Tribe/Consortium negotiate a Tribal share for
programs outside its region/agency?
1000.720 May a Tribe/Consortium obtain discretionary or competitive
funding that is distributed on a discretionary or competitive basis?
1000.725 Are all funds identified as Tribal shares always paid to
the Tribe/Consortium under a funding agreement?
1000.730 How are savings that result from downsizing allocated?
1000.735 Do Tribes/Consortium need Secretarial approval to
reallocate funds between programs that the Tribe/Consortium
administers under the funding agreement?
1000.740 Can funding amounts negotiated in a funding agreement be
adjusted during the year it is in effect?

Establishing Self-Governance Stable Base Budgets

1000.745 What are self-governance stable base budgets?
1000.750 Once a Tribe/Consortium establishes a stable base budget,
are funding amounts renegotiated each year?
1000.755 How are self-governance stable base budgets established?
1000.760 How are self-governance stable base budgets adjusted?
Subpart G--Funding Agreements for Non-BIA Programs
1000.801 What is the purpose of this subpart?
1000.805 What is a funding agreement for a non-BIA program?
1000.810 What non-BIA programs are eligible for inclusion in a
funding agreement?
1000.815 Are there non-BIA programs for which the Secretary must
negotiate for inclusion in a funding agreement subject to such terms
as the parties may negotiate?
1000.820 What programs are included under section 403(b)(2) (25
U.S.C. 5363(b)(2))?
1000.825 What programs are included under section 403(c) (25 U.S.C.
5363(c))?
1000.830 What does ``special geographic, historical or cultural''
mean?
1000.835 Under section 403(b)(2) (25 U.S.C. 5363(b)(2)), when must
programs be awarded non-competitively?
1000.840 May a non-BIA bureau include in a funding agreement, on a
non-competitive basis, programs of special geographic, historical,
or cultural significance?
1000.845 Are there any non-BIA programs that may not be included in
a funding agreement?
1000.850 Does a Tribe/Consortium need to be identified in an
authorizing statute in order for a program or element of a program
to be included in a non-BIA funding agreement?
1000.855 Will Tribes/Consortia participate in the Secretary's
determination of what is to be included on the annual list of
available programs?
1000.860 How will the Secretary consult with Tribes/Consortia in
developing the list of available programs?
1000.865 What else is on the list in addition to eligible programs?
1000.870 May a bureau negotiate with a Tribe/Consortium for programs
not specifically included on the annual list pursuant to 25 U.S.C.
5372(c)?
1000.875 How will a bureau negotiate a funding agreement for a
program of special geographic, historical, or cultural significance
to more than one Tribe/Consortium?
1000.880 When will this determination be made?
1000.885 What funds are included in a non-BIA funding agreement?
1000.890 How are indirect cost rates determined?
1000.895 How does the Secretary determine the amount of indirect
costs?
1000.900 May the bureaus negotiate terms to be included in a funding
agreement for non-BIA programs?
1000.905 Can a Tribe/Consortium reallocate, consolidate, and
redesign funds for a non-BIA program?

[[Page 57537]]

1000.910 Do Tribes/Consortia need Secretarial approval to reallocate
funds between title I eligible programs that the Tribe/Consortium
administers under a non-BIA funding agreement?
1000.915 Can a Tribe/Consortium negotiate a funding agreement with a
non-BIA bureau for which the performance period exceeds one year?
1000.920 Can the terms and conditions in a non-BIA funding agreement
be amended during the year it is in effect?
1000.925 What happens if a funding agreement expires before the
effective date of the successor Funding Agreement?
Subpart H--Negotiation Process
1000.1001 What is the purpose of this subpart?
1000.1005 What are the phases of the negotiation process?
1000.1010 Who may initiate the information phase?
1000.1015 Is it mandatory to go through the information phase before
initiating the negotiation phase?
1000.1020 How does a Tribe/Consortium initiate the information
phase?
1000.1025 What information is a Tribe/Consortium encouraged to
include in a Request to Initiate the Information Phase?
1000.1030 When should a Tribe/Consortium submit a Request to
Initiate the Information Phase to the Secretary?
1000.1035 What steps does the bureau take after a Request to
Initiate the Information Phase is submitted by a Tribe/Consortium?
1000.1040 How does a Tribe/Consortium initiate the negotiation
phase?
1000.1045 How and when does the Secretary respond to a request to
negotiate a compact or BIA funding agreement?
1000.1050 How and when does the Secretary respond to a request to
negotiate a non-BIA funding agreement?
1000.1055 What is the process for conducting the negotiation phase?
1000.1060 What issues must the bureau and the Tribe/Consortium
address at negotiation meetings?
1000.1065 What happens when a compact or funding agreement is
signed?
1000.1070 What happens if the Tribe/Consortium and bureau
negotiators fail to reach an agreement on a compact or funding
agreement?
1000.1075 When does the funding agreement become effective?
1000.1080 What is a subsequent funding agreement?
1000.1085 How is the negotiation of a subsequent funding agreement
initiated?
1000.1090 What is the process for negotiating a subsequent funding
agreement?
Subpart I--Final Offer
1000.1101 What is the purpose of this subpart?
1000.1105 When should a final offer be submitted?
1000.1110 How does a Tribe/Consortium submit a final offer?
1000.1115 What does a final offer contain?
1000.1120 When does the 60-day review period begin?
1000.1125 How does the Department acknowledge receipt of final
offer?
1000.1130 May the Secretary request and obtain an extension of time
of the 60-day review period?
1000.1135 What happens if the Secretary takes no action within the
60-day period (or any extensions thereof)?
1000.1140 Once the Tribe/Consortium's final offer has been accepted
or accepted by operation of law, what is the next step?
1000.1145 On what basis may the Secretary reject a final offer?
1000.1150 How does the Secretary reject a final offer?
1000.1155 What is the ``significant danger'' or ``risk'' to the
public health or safety, to natural resources, or to trust
resources?
1000.1160 Is technical assistance available to a Tribe/Consortium to
overcome the objections stated in the Secretary's rejection of a
final offer?
1000.1165 If the Secretary rejects all or part of a final offer, is
the Tribe/Consortium entitled to an appeal?
1000.1170 Do those portions of the compact, funding agreement, or
amendment not in dispute go into effect?
1000.1175 Does appealing the final offer decision prevent the
Secretary and the Tribe/Consortium from entering into any accepted
compact, funding agreement or amendment provisions that are not in
dispute?
1000.1180 What is the burden of proof in an appeal of a rejection of
a final offer?
Subpart J--Waiver of Regulations
1000.1201 What regulations apply to Tribes/Consortia?
1000.1205 Can the Secretary grant a waiver of regulations to a
Tribe/Consortium?
1000.1210 When can a Tribe/Consortium request a waiver of a
regulation?
1000.1215 How does a Tribe/Consortium obtain a waiver?
1000.1220 How does a Tribe/Consortium operating a Public Law 102-477
Plan obtain a waiver?
1000.1225 May a Tribe/Consortium request an optional meeting or
other informal discussion to discuss a waiver request?
1000.1230 Is a bureau required to provide technical assistance to a
Tribe/Consortium concerning waivers?
1000.1235 How does the Secretary respond to a waiver request?
1000.1240 When must the Secretary make a decision on a waiver
request?
1000.1245 How does the Secretary make a decision on the waiver
request?
1000.1250 What happens if the Secretary neither approves nor denies
a waiver request within the time specified in Sec. 1000.1240?
1000.1255 May a Tribe/Consortium appeal the Secretary's decision to
deny its request for a waiver of a regulation?
1000.1260 What is the term of a waiver?
1000.1265 May a Tribe/Consortium withdraw a waiver request?
1000.1270 May a Tribe/Consortium have more than one waiver request
pending before the Secretary at the same time?
1000.1275 May a Tribe/Consortium continue to negotiate a funding
agreement pending final decision on a waiver request?
1000.1280 How is a waiver decision documented for the record?
Subpart K--Construction

Construction Definitions

1000.1301 What key construction terms do I need to know?

Purpose And Scope

1000.1305 What construction projects and programs included in a
funding agreement or construction project agreement are subject to
this subpart?
1000.1306 May a program or project-specific grant or contracting
mechanism involving construction and related activities satisfy the
requirements of this subpart?
1000.1307 May the Secretary accept funds from another Department for
a program or project involving construction and related activities
for transfer to the Tribe/Consortium under its funding agreement or
construction project agreement?
1000.1310 What alternatives are available for a Tribe/Consortium to
perform a construction program or project?
1000.1315 Does this subpart create an agency relationship?

Notification and Project Assumption

1000.1320 Is the Secretary required to consult with affected Tribes/
Consortia concerning construction projects and programs?
1000.1325 When does the Secretary confer with a Tribe/Consortium
concerning Tribal preferences as to size, location, type, and other
characteristics of a project?
1000.1330 What does a Tribe/Consortium do if it wants to perform a
construction project or program under 25 U.S.C. 5367?
1000.1335 What must a Tribal proposal for a construction program or
project contain?
1000.1340 May multiple projects be included in a single construction
project agreement or funding agreement that includes a construction
project?
1000.1345 Must a construction project proposal incorporate
provisions of Federal construction guidelines and manuals?
1000.1350 What provisions relating to a construction project or
program may be included in a funding agreement or construction
project agreement?
1000.1355 What provisions must a Tribe/Consortium include in a
construction project agreement or funding agreement that contains a
construction project or program?

Requirements and Standards

1000.1360 What codes, standards and architects and engineers must a
Tribe/Consortium use when performing a construction project under
this part?

[[Page 57538]]

NEPA Process

1000.1365 Are Tribes/Consortia required to carry out activities
involving NEPA in order to enter into a construction project
agreement?
1000.1370 How may a Tribe/Consortium elect to assume some Federal
responsibilities under NEPA?
1000.1375 How may a Tribe/Consortium carry out activities involving
NEPA without assuming some Federal responsibilities?
1000.1379 Are Tribes/Consortia required to adopt a separate
resolution or take equivalent Tribal action to assume some
environmental responsibilities of the Secretary under NEPA, NHPA,
and related laws and regulations for each construction project?
1000.1380 What additional provisions of law are related to NEPA and
NHPA?
1000.1385 What is the typical environmental review process for
construction projects?
1000.1390 Is the Secretary required to take into account the
Indigenous Knowledge of Tribes/Consortia when preparing
environmental studies under NEPA, NHPA, and related provisions of
other laws and regulations?
1000.1395 May a Tribe/Consortium act as a cooperating agency or
joint lead agency for environmental review purposes regardless of
whether it exercises its option under Sec. 1000.1370(a)(1)?
1000.1400 How does a Tribe/Consortium comply with NEPA and NHPA?
1000.1405 If a Tribe/Consortium adopts the environmental review
procedures of a Federal agency, is the Tribe/Consortium responsible
for ensuring the agency's policies and procedures meet the
requirements of NEPA, NHPA, and related environmental laws?
1000.1410 Are Federal funds available to cover the cost of Tribes/
Consortia carrying out environmental responsibilities?
1000.1415 How are project and program environmental review costs
identified?
1000.1420 What costs may be included in the budget for a
construction project or program?
1000.1425 May the Secretary reject a Tribe's/Consortium's final
offer of a construction project proposal submitted under subpart I--
Final Offer based on a determination of Tribal capacity or
capability?
1000.1430 On what basis may the Secretary reject a final offer of a
construction project proposal made by a Tribe/Consortium?

Role of the Secretary

1000.1435 What is the Secretary's role in a construction project
performed under this subpart?
1000.1440 What constitutes a ``significant change'' in the original
scope of work?
1000.1445 May the Secretary suspend construction activities under a
funding agreement or construction project agreement?
1000.1450 How are property and funding returned if there is a
reassumption for substantial failure to carry out a construction
project?
1000.1455 What happens when a Tribe/Consortium, suspended under
Sec. 1000.1445 for substantial failure to carry out the terms of
construction project agreement or funding agreement that includes a
construction project or program without good cause, does not correct
the failure during the suspension?
1000.1460 How does the Secretary make advance payments to a Tribe/
Consortium under a funding agreement or construction project
agreement?
1000.1465 Is a facility built under this subpart eligible for annual
operation and maintenance funding?

Role of the Tribe/Consortium

1000.1470 What is the Tribe's/Consortium's role in a construction
project included in a funding agreement or construction project
agreement under this subpart?
1000.1475 Is a Tribe/Consortium required to submit construction
project progress and financial reports for construction projects?

Other

1000.1480 May a Tribe/Consortium continue work with construction
funds remaining in a funding agreement or construction project
agreement at the end of the funding year?
1000.1485 Must a construction project agreement or funding agreement
that contains a construction project or activity incorporate
provisions of Federal construction standards?
1000.1490 May the Secretary require design provisions and other
terms and conditions for construction projects or programs included
in a funding agreement or construction project agreement under
section 403(c) (25 U.S.C. 5363(c))?
1000.1495 Do all provisions of other subparts apply to construction
portions of a funding agreement or construction project agreement?
1000.1500 When a Tribe withdraws from a Consortium, is the Secretary
required to award to the withdrawing Tribe a portion of funds
associated with a construction project if the withdrawing Tribe so
requests?
1000.1505 May a Tribe/Consortium reallocate funds from a
construction program to a non-construction program?
1000.1510 May a Tribe/Consortium reallocate funds among construction
programs?
1000.1515 Must the Secretary retain project funds to ensure proper
health and safety standards in construction projects?
1000.1520 What funding must the Secretary provide in a construction
project agreement or funding agreement that includes a construction
project or program?
1000.1525 Must Federal funds from other DOI sources be incorporated
into a construction project agreement or funding agreement that
includes a construction project or program?
1000.1530 May a Tribe/Consortium contribute funding to a project?
Subpart L--Federal Tort Claims
1000.1601 What is the purpose of this subpart?
1000.1605 What other statutes and regulations apply to FTCA
coverage?
1000.1610 Do Tribes/Consortia need to be aware of areas which FTCA
does not cover?
1000.1615 Is there a deadline for filing FTCA claims?
1000.1620 How long does the Federal Government have to process a
FTCA claim after the claim is received by the Federal agency, before
a lawsuit may be filed?
1000.1625 Is it necessary for a compact or funding agreement to
include any clauses about FTCA coverage?
1000.1630 Does FTCA apply to a compact and funding agreement if FTCA
is not referenced in the compact or funding agreement?
1000.1635 To what extent shall the Tribe/Consortium cooperate with
the Federal Government in connection with tort claims arising out of
the Tribe's/Consortium's performance of a compact, funding
agreement, or subcontract?
1000.1640 Does this coverage extend to subcontractors of compacts
and funding agreements?
1000.1645 Is FTCA the exclusive remedy for a tort claim, including a
claim concerning personal injury or death, resulting from the
performance of a compact or funding agreement?
1000.1650 What employees are covered by FTCA for claims arising out
of a Tribe's/Consortia's performance of a compact or funding
agreement?
1000.1655 Does FTCA cover employees of the Tribe/Consortium who are
paid by the Tribe/Consortium from funds other than those provided
through the funding agreement?
1000.1660 May persons who are not Indians or Alaska Natives assert
claims under FTCA arising out of the performance of a compact or
funding agreement by a Tribe/Consortium?
1000.1665 If the Tribe/Consortium or Tribe's/Consortium's employee
receives a summons and/or a complaint alleging a tort covered by
FTCA and arising out of the performance of a compact or funding
agreement, what should the Tribe/Consortium do?
Subpart M--Reassumption
1000.1701 What is the purpose of this subpart?
1000.1705 What does reassumption mean?
1000.1710 Under what circumstances may the Secretary reassume a
program operated by a Tribe/Consortium under a funding agreement?
1000.1715 What is ``imminent jeopardy'' to a trust asset?
1000.1720 What is ``imminent jeopardy'' to natural resources?
1000.1725 What is ``imminent jeopardy'' to public health and safety?

[[Page 57539]]

1000.1730 What steps must the Secretary take prior to reassumption
becoming effective?
1000.1735 Does the Tribe/Consortium have a right to a hearing prior
to a non-immediate reassumption becoming effective?
1000.1740 What happens if the Secretary determines that the Tribe/
Consortium has not corrected the conditions that the Secretary
identified in the written notice?
1000.1745 What is the earliest date on which a reassumption by the
Secretary can be effective?
1000.1750 Does the Secretary have the authority to immediately
reassume a program?
1000.1755 What must a Tribe/Consortium do when a program is
reassumed?
1000.1760 When must the Tribe/Consortium return funds to the
Department?
1000.1765 May the Tribe/Consortium be reimbursed for actual and
reasonable ``wind up costs'' incurred after the effective date of
retrocession?
1000.1770 Is a Tribe's/Consortium's general right to negotiate a
funding agreement adversely affected by a reassumption action?
1000.1775 When will the Secretary return management of a reassumed
program?
Subpart N--Retrocession
1000.1801 What is the purpose of this subpart?
1000.1805 Is a decision by a Tribe/Consortium not to include a
program in a successor agreement considered a retrocession?
1000.1810 Who may retrocede a program in a funding agreement?
1000.1815 How does a Tribe/Consortium retrocede a program?
1000.1820 When will the retrocession become effective?
1000.1825 How will retrocession affect the Tribe's/Consortium's
existing and future funding agreements?
1000.1830 Does the Tribe/Consortium have to return funds used in the
operation of a retroceded program?
1000.1835 Does the Tribe/Consortium have to return property used in
the operation of a retroceded program?
1000.1840 What happens to a Tribe's/Consortium's mature contract
status if it has retroceded a program that is also available for
self-determination contracting?
1000.1845 How does retrocession affect a bureau's operation of the
retroceded program?
Subpart O--Trust Evaluation
1000.1901 What is the purpose of this subpart?
1000.1905 Does the Act alter the trust responsibility of the United
States to Indian Tribes and individuals under self-governance?
1000.1910 What are ``trust resources'' for the purposes of the trust
evaluation process?
1000.1915 What are ``trust PSFAs'' for the purposes of the trust
evaluation process?
1000.1920 Can a Tribe/Consortium request the Secretary to conduct an
assessment of the status of the trust assets, resource, and PSFAs?

Annual Trust Evaluation

1000.1925 What is a trust evaluation?
1000.1930 How are trust evaluations conducted?
1000.1935 May the trust evaluation process be used for additional
reviews?
1000.1936 May the parties negotiate review methods for purposes of
the trust evaluation?
1000.1940 What are the responsibilities of the Secretary's
designated representative(s) after the annual trust evaluation?
1000.1945 Is the trust evaluation standard or process different when
the trust resource or asset is held in trust for an individual
Indian or Indian allottee?
1000.1950 Does the annual trust review evaluation include a review
of the Secretary's inherent Federal and retained operation trust
PSFAs?
1000.1955 What are the consequences of a finding of imminent
jeopardy in the Secretary's annual trust evaluation?
1000.1960 What if the Secretary's trust evaluation reveals problems
that do not rise to the level of imminent jeopardy?
1000.1965 Who is responsible for taking corrective action?
1000.1970 What are the requirements of the Department's review team
report?
1000.1975 May the Department conduct more than one trust evaluation
per Tribe per year?
Subpart P--Reports
1000.2001 What is the purpose of this subpart?
1000.2005 Is the Secretary required to report on Self Governance?
1000.2010 What will the Secretary's annual report to Congress
contain?
1000.2011 Is the Secretary required to review programs of the
Department other than BIA, BIE, the Office of the Assistant
Secretary for Indian Affairs, and the BTFA?
1000.2012 Is the Secretary required to annually publish information
under this subpart in the Federal Register?
1000.2015 Must the Secretary seek comment on the report from Tribes/
Consortia before submitting it to Congress?
1000.2020 What may the Tribe's/Consortium's annual report on self-
governance address?
1000.2025 Are there other data submissions or reports that Tribes/
Consortia may be requested to submit?
1000.2030 Are Tribes/Consortia required to submit Single Audit Act
reports?
1000.2035 Is there an exemption available for the requirement to
submit Single Audit Act reports?
1000.2040 Are Tribes/Consortia required to maintain reports and
records in accordance with 25 U.S.C. 5305?
Subpart Q--Operational Provisions
1000.2101 How can a Tribe/Consortium hire a Federal employee to help
implement a funding agreement?
1000.2105 Can a Tribe/Consortium employee be detailed to a Federal
service position?
1000.2110 How does the Freedom of Information Act apply?
1000.2115 How does the Privacy Act apply?
1000.2120 What audit requirements must a Tribe/Consortium follow?
1000.2125 How do OMB circulars and the Act apply to funding
agreements?
1000.2130 How much time does the Federal Government have to make a
claim against a Tribe/Consortium relating to any disallowance of
costs, based on an audit?
1000.2135 Does a Tribe/Consortium have additional ongoing
requirements to maintain minimum standards for Tribe/Consortium
management systems?
1000.2140 Are there any restrictions on how funds awarded to a
Tribe/Consortium under a funding agreement may be spent?
1000.2145 What standard applies to a Tribe's/Consortium's management
of funds awarded under a funding agreement?
1000.2150 How may interest or investment income that accrues on
funds awarded under a funding agreement be used?
1000.2155 Can a Tribe/Consortium retain savings from programs?
1000.2160 Can a Tribe/Consortium carry over funds not spent during
the term of the funding agreement?
1000.2165 After a non-BIA funding agreement has been executed and
the funds transferred to a Tribe/Consortium, can a bureau request
the return of unexpended funds?
1000.2170 How can a person or group appeal a decision or contest an
action related to a program operated by a Tribe/Consortium under a
funding agreement?
1000.2175 Must Tribes/Consortia comply with the Secretarial approval
requirements of 25 U.S.C. 81; 82a; and 476 regarding professional
and attorney contracts?
1000.2180 Are funds awarded under a funding agreement non-Federal
funds for the purpose of meeting matching or cost participation
requirements?
1000.2185 Does Indian preference apply to services, activities,
programs, and functions performed under a funding agreement?
1000.2190 Do the wage and labor standards in the Davis-Bacon Act
apply to Tribes and Tribal Consortia?
1000.2195 Can a Tribe/Consortium use Federal supply sources in the
performance of a funding agreement?
1000.2200 Does the Prompt Payment Act (31 U.S.C. 3901) apply to a
BIA funding Agreement?
1000.2205 Does the Prompt Payment Act (31 U.S.C. 3901) apply to a
non-BIA program funding agreement?
1000.2210 Is a Tribe/Consortium obligated to continue performance
under a compact or funding agreement if the

[[Page 57540]]

Secretary does not transfer sufficient funds?
Subpart R--Appeals
1000.2301 What is the purpose of this subpart?
1000.2302 What does ``title-I eligible programs'' mean in this
subpart?
1000.2305 How must disputes be handled?
1000.2310 Does a Tribe/Consortium have any options besides an
appeal?
1000.2315 What is the Secretary's burden of proof for appeals in
this subpart?

Informal Conference

1000.2320 How does a Tribe/Consortium request an informal
conference?
1000.2325 How is an informal conference held?
1000.2330 What happens after the informal conference?

Post-Award Disputes

1000.2335 How may a Tribe/Consortium appeal a decision made after
the funding agreement or compact or an amendment to a funding
agreement or compact has been signed?
1000.2340 What statutes and regulations govern resolution of
disputes concerning signed funding agreements or compacts (and any
signed amendments) that are appealed to the CBCA?

Pre-Award Disputes

1000.2345 What decisions may a Tribe/Consortium appeal under
Sec. Sec. 1000.2345 through 1000.2395?
1000.2350 What decisions may not be appealed under Sec. Sec.
1000.2345 through 1000.2395?
1000.2351 To Whom may a Tribe/Consortium appeal a decision made
before the Funding Agreement, Amendment to the Funding Agreement, or
Compact is signed?
1000.2355 How does a Tribe/Consortium know where and when to file an
appeal?

Appeals to Bureau Head/Assistant Secretary

1000.2360 When and how must a Tribe/Consortium appeal an adverse
pre-award decision to the bureau head/Assistant Secretary?
1000.2365 When must the bureau head (or appropriate Assistant
Secretary) issue a final decision in the pre-award appeal?
1000.2370 When and how will the Assistant Secretary respond to an
appeal by a Tribe/Consortium?

Appeals to IBIA

1000.2375 When and how must a Tribe/Consortium appeal an adverse
pre-award decision to the IBIA?
1000.2380 What happens after a Tribe/Consortium files an appeal?
1000.2385 What procedures apply to Interior Board of Indian Appeals
(IBIA) proceedings?
1000.2386 What regulations govern resolution of disputes that are
appealed to the IBIA?
1000.2390 Will an appeal adversely affect the Tribe's/Consortium's
rights in other compact, funding negotiations, or construction
project agreement?
1000.2395 Will the decision on appeal be available for the public to
review?

Appeals of an Immediate Reassumption of a Self-Governance Program

1000.2405 What happens in the case of an immediate reassumption
under 25 U.S.C. 5366(b)?
1000.2410 Will there be a hearing?
1000.2415 What happens after the hearing?
1000.2420 Is the recommended decision always final?
1000.2425 If a Tribe/Consortium objects to the recommended decision,
what action will the IBIA take?
1000.2430 Will an immediate reassumption appeal adversely affect the
Tribe's/Consortium's rights in other self-governance negotiations?

Equal Access to Justice Act

1000.2435 Does the Equal Access to Justice Act (EAJA) apply to
appeals under this subpart?
Subparts S--Conflicts of Interest
1000.2501 Is a Tribe/Consortium required to have policies in place
to address conflicts of interest?
1000.2505 What is an organizational conflict of interest?
1000.2510 What must a Tribe/Consortium do if an organizational
conflict of interest arises under a funding agreement?
1000.2515 When must a Tribe/Consortium regulate its employees or
subcontractors to avoid a personal conflict of interest?
1000.2520 What types of personal conflicts of interest involving
Tribal officers, employees, or subcontractors would have to be
regulated by a Tribe/Consortium?
1000.2525 What personal conflicts of interest must the standards of
conduct regulate?
Subpart T--Tribal Consultation Process
1000.2601 What is the purpose of this subpart?
1000.2605 When does the Secretary consult with Tribes and Consortia
on matters related to self-governance?
1000.2610 What principles should guide consultations with Tribes and
Consortia?
1000.2615 What notice must the Secretary provide to Tribes and
Consortia of an upcoming consultation?
1000.2620 Is the Secretary required to allow written comments by
Tribes and Consortia following a consultation?
1000.2625 What record must the Secretary maintain following a
consultation with Tribes and Consortia?
1000.2630 How must the Secretary handle confidential or sensitive
information provided by Tribes and Consortia during a consultation?

Subpart A--General Provisions

Sec. 1000.1 What is the authority of this part?

This part is prepared and issued by the Secretary of the Interior
with the active participation and representation of Indian Tribes,
Tribal organizations and inter-Tribal consortia under the negotiated
rulemaking procedures required by section 413 of the Indian Self-
Determination and Education Assistance Act, Public Law 93-638, as
amended by the PROGRESS for Indian Tribes Act, Public Law 116-180 (25
U.S.C. 5373).

Sec. 1000.5 What key terms do I need to know?

403(c) Program or Nexus Program means a non-BIA program eligible
under 25 U.S.C. 5363(c) and, specifically, a program, function,
service, or activity that is of special geographic, historical, or
cultural significance to a self-governance Tribe/Consortium. These
programs may also be referred to as ``nexus programs.''
Act means title IV of the Indian Self-Determination and Education
Assistance Act of 1975, Public Law 93-638, as amended by Public Law
103-413, Public Law 104-109, and Public Law 116-180.
BIA means the Bureau of Indian Affairs of the Department or any
successor bureau. For purposes of this part, BIA shall include the
Office of the Assistant Secretary for Indian Affairs, BIE, and BTFA, or
any successor bureau, unless specified otherwise.
BIA Program means any program, service, function, or activity, or
portion thereof, that is performed or administered by the Department
through the BIA. For purposes of this part, BIA Program shall also
include any PSFA performed or administered by the Department through
the Office of the Assistant Secretary for Indian Affairs, BIE, or BTFA
which are eligible for inclusion in a compact or funding agreement
under the Act unless specified otherwise.
BIE means the Bureau of Indian Education of the Department, or any
successor bureau.
BIE Program means any program, service, function, or activity, or
portion thereof, that is performed or administered by the Department
through the BIE and is eligible for inclusion in a compact and funding
agreement under the Act.
BTFA means the Bureau of Trust Funds Administration of the
Department, or any successor bureau, to which the Department has
transferred fiduciary programs, services, functions, and activities
from the Office of Special Trustee for American Indians, as it is
referenced in 25 U.S.C. 5361, et seq., as amended.
Bureau means a bureau, service, office, agency, and other such
subsidiary entity within the Department.

[[Page 57541]]

Compact means a self-governance compact entered under 25 U.S.C.
5364.
Consortium means an organization of Indian Tribes that is
authorized by those Tribes to participate in self-governance under this
part and is responsible for negotiating, executing, and implementing
funding agreements and compacts.
Construction management services (CMS) means activities limited to
administrative support services, coordination, oversight of engineers
and construction activities. CMS services include services that precede
project design: all project design and actual construction activities
are subject to subpart K of these regulations whether performed by a
Tribe subcontractor, or consultant.
Construction program or construction project means a Tribal
undertaking relating to the administration, planning, environmental
determination, design, construction, repair, improvement, or expansion
of roads, bridges, buildings, structures, systems, or other facilities
for purposes of housing, law enforcement, detention, sanitation, water
supply, education, administration, community, health, irrigation,
agriculture, conservation, flood control, transportation, or port
facilities, or for other Tribal purposes.
Days means calendar days, except where the last day of any time
period specified in this part falls on a Saturday, Sunday, or a Federal
holiday, the period must carry over to the next business day unless
otherwise prohibited by law.
Director means the Director of the Office of Self-Governance (OSG).
DOI or Department means the Department of the Interior.
Funding agreement means a funding agreement entered into under 25
U.S.C. 5363.
Funding year means either fiscal or calendar year.
Gross mismanagement means a significant violation, shown by a
preponderance of the evidence, of a compact, funding agreement, or
statutory or regulatory requirement applicable to Federal funds for a
PSFA administered by an Indian Tribe under a compact or funding
agreement.
Indian means a person who is a member of an Indian Tribe.
Indian Tribe or Tribe means any Indian Tribe, band, nation or other
organized group or community, including pueblos, rancherias, colonies
and any Alaska Native village, or regional or village corporations as
defined in or established pursuant to the Alaska Native Claims
Settlement Act, that is recognized as eligible for special programs and
services provided by the United States to Indians because of their
status as Indians.
Indirect costs means costs incurred for a common or joint purpose
benefitting more than one program and that are not readily assignable
to individual programs.
Indirect cost rates means the rate(s) arrived at through
negotiation between an Indian Tribe/Consortium and the appropriate
Federal agency.
Inherent Federal function means a Federal function that may not
legally be delegated to an Indian Tribe.
Non-BIA Bureau means any bureau within the Department other than
the BIA, the BIE, the BTFA, or the Office of the Assistant Secretary
for Indian Affairs.
Non-BIA bureaus director/commissioner means the director of Non-BIA
bureaus and the commissioner of the Bureau of Reclamation.
Non-BIA Programs means all or a portion of a program, function,
service, or activity that is administered by any bureau other than the
BIA, the BIE, the BTFA, or the Office of the Assistant Secretary for
Indian Affairs within the Department.
Office of Self-Governance (OSG) means the office within the Office
of the Assistant Secretary--Indian Affairs responsible for the
implementation and development of the Tribal Self-Governance Program.
Program or PSFA means any program, service, function, or activity
(or portions thereof) within the Department that is included in a
funding agreement.
Public Law 93-638 means sections 1 through 9 and title I of the
Indian Self-Determination and Education Assistance Act of 1975, as
amended.
Reassumption means the Secretary, without consent of the Tribe/
Consortium, takes control or operation of the PSFAs and associated
funding in a compact or funding agreement, in whole or in part, and
assumes the responsibility to provide such PSFAs.
Residual Funds means funding that is necessary for the Department
to carry out inherent Federal functions that cannot be delegated to a
Tribe/Consortia by law.
Retained Tribal shares means those funds that were available as a
Tribal share but under the funding agreement were left with BIA to
administer.
Retrocession means the voluntary full or partial return by a Tribe/
Consortium to a bureau of a PSFA operated under a funding agreement
before the agreement expires.
Secretary means the Secretary of the Interior or his or her
designee authorized to act on the behalf of the Secretary as to the
matter at hand.
Self-determination contract means a self-determination contract
entered into under 25 U.S.C. 5321.
Self-governance means the Tribal Self-Governance Program
established under 25 U.S.C. 5362.
Self-governance Tribe/Consortium means a Tribe or Consortium that
has been selected to participate in self-governance. May also be
referred to as ``participating Tribe/Consortium.''
Subsequent funding agreement means a funding agreement negotiated
after a Tribe's/Consortium's initial agreement with a bureau.
Tribal share means the portion of all funds and resources
determined for that Tribe/Consortium that supports any program within
BIA, the BIE, the BTFA, or the Office of the Assistant Secretary for
Indian Affairs and are not required by the Secretary for the
performance of an inherent Federal function.

Sec. 1000.10 What is the purpose and scope of this part?

(a) Purpose. This part codifies uniform and consistent rules for
the Department implementing title IV of the Indian Self-Determination
and Education Assistance Act, Public Law 93-638, 25 U.S.C. 5361 et
seq., as amended by title II of Public Law 103-413, the Tribal Self-
Governance Act of 1994 (108 Stat. 4250, October 25, 1994) and title I
of Public Law 116-180, the PROGRESS for Indian Tribes Act (134 Stat.
857, October 21, 2020).
(b) Scope. These regulations are binding on the Secretary and on
Tribes/Consortia carrying out programs, services, functions, and
activities (PSFAs) (or portions thereof) under title IV except as
otherwise specifically authorized by a waiver under 25 U.S.C. 5369(b)
and this part.
(c) Information Collection. The information collection requirements
contained in this part have been approved by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C.
3507(d), and assigned control number 1076-0143. A Federal agency may
not conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.

Sec. 1000.15 What is the congressional policy statement of this
part?

(a) Congressional findings. In the Act, the Congress found that:
(1) The Tribal right of self-governance flows from the inherent
sovereignty of Indian Tribes and nations;
(2) The United States recognizes a special government-to-government
relationship with Indian Tribes,

[[Page 57542]]

including the right of the Tribes to self-governance, as reflected in
the Constitution, treaties, Federal statutes, and the course of
dealings of the United States with Indian Tribes;
(3) Although progress had been made, the Federal bureaucracy has
discouraged, to some degree, the further compacting of Indian programs
or hindered negotiations between the Department and Tribes for renewing
self-governance compacts and funding agreements;
(4) Tribal Self-Governance was designed to improve and perpetuate
the government-to-government relationship between Indian Tribes and the
United States and to strengthen Tribal control over Federal funding and
program management; and
(5) Congress further finds that:
(i) Transferring control over funding and decision making to Tribal
governments, upon Tribal request, for Federal programs is an effective
way to implement the Federal policy of government-to-government
relations with Indian Tribes; and
(ii) Transferring control over funding and decision making to
Tribal governments, upon request, for Federal programs strengthens the
Federal policy of Indian self-determination.
(b) Congressional declaration of policy. It is the policy of the
Act to permanently establish and implement self-governance:
(1) To enable the United States to maintain and improve its unique
and continuing relationship with, and responsibility to, Indian Tribes;
(2) To permit each Tribe to choose the extent of its participation
in self-governance;
(3) To coexist with the provisions of the Indian Self-Determination
and Education Assistance Act relating to the provision of Indian
services by designated Federal agencies;
(4) To ensure the continuation of the trust responsibility of the
United States to Indian Tribes and Indian individuals;
(5) To permit an orderly transition from Federal domination of
programs and services to provide Indian Tribes with meaningful
authority to plan, conduct, redesign, and administer PSFAs that meet
the needs of the individual Tribal communities; and
(6) To provide for an orderly transition through a planned and
measurable parallel reduction in the Federal bureaucracy.
(c) As reflected in H. Rept. 116-422 and S. Rept. 116-34, it is the
policy of the PROGRESS for Indian Tribes Act, Public Law 116-180:
(1) To clarify and streamline the Department's process for
approving self-governance compacts and funding agreements;
(2) To create consistency and administrative efficiencies between
title IV and title V of Public Law 93-638, as amended; and
(3) To minimize delays to self-governance compacting or funding.

Sec. 1000.20 What is the Secretarial policy of this part?

In carrying out Tribal self-governance under title IV, it is the
policy of the Secretary:
(a) To fully support and implement the foregoing policies to the
full extent of the Secretary's authority.
(b) To recognize and respect the unique government-to-government
relationship between Tribes, as sovereign governments, and the United
States.
(c) To have all bureaus of the Department work to further and
protect the trust responsibility of the United States with respect to
Tribes and individual Indians that exists under treaties, Executive
orders, other laws, or court decisions.
(d) To have all bureaus of the Department work cooperatively and
pro-actively with Tribes/Consortia on a government-to-government basis
within the framework of the Act and any other applicable provision of
law, so as to make the ideals of self-determination and self-governance
a reality.
(e) To have all bureaus of the Department work to streamline the
process for Tribes/Consortia participating in or applying to
participate in self-governance to establish administrative efficiencies
and consistency with the processes under title IV and title V of Public
Law 93-638, as amended.
(f) To have all bureaus of the Department actively share
information with Tribes and Tribal Consortia to encourage Tribes and
Tribal Consortia to become knowledgeable about the Department's
programs and the opportunities to include them in a funding agreement.
(g) To interpret each Federal law and regulation in a manner that
facilitates the inclusion of programs in funding agreements and the
implementation of funding agreements.
(h) That all bureaus of the Department will negotiate in good
faith, liberally construe each applicable Federal law and regulation in
a manner that will benefit Tribes and Tribal Consortia participating in
self-governance and facilitate the inclusion of programs in each
funding agreement authorized, and timely enter into such funding
agreements under title IV, whenever possible.
(i) To afford Tribes and Tribal Consortia the maximum flexibility
and discretion necessary to meet the needs of their communities
consistent with their diverse demographic, geographic, economic,
cultural, health, social, religious, and institutional needs. These
policies are designed to facilitate and encourage Tribes and Tribal
Consortia to participate in the planning, conduct, and administration
of those Federal programs, included, or eligible for inclusion in a
funding agreement.
(j) To the extent of the Secretary's authority, to maintain active
communication with Tribal governments regarding budgetary matters
applicable to programs subject to the Act, and that are included in an
individual funding agreement.
(k) To implement policies, procedures, and practices at the
Department to ensure that the letter, spirit, and goals of the Act are
fully and successfully implemented to the maximum extent allowed by
law.
(l) To ensure that Executive Order 13175 on Consultation and
Coordination with Indian Tribal Governments and any subsequent
Executive Orders regarding consultation will apply to the
implementation of these regulations.

Sec. 1000.25 What is the effect on existing Tribal rights?

Nothing in this part shall be construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by Indian Tribes;
(b) Terminating, waiving, modifying, or reducing the trust
responsibility of the United States to the Indian Tribe(s) or
individual Indians. The Secretary must act in good faith in upholding
this trust responsibility;
(c) Requiring an Indian Tribe to participate in self-governance; or
(d) Impeding awards by other Departments and agencies of the United
States to Indian Tribes to administer Indian programs under any other
applicable law.

Sec. 1000.30 What is the effect of these regulations on Federal
program guidelines, manual, or policy directives?

Unless expressly agreed to by the Tribe/Consortium in a compact or
funding agreement, the Tribe/Consortium shall not be subject to any
agency circular, policy, manual, guidance, or rule adopted by the
Department, except for the eligibility provisions of 25 U.S.C. 5324(g)
and the

[[Page 57543]]

regulations under this part to the extent a regulatory provision is not
waived by the Secretary.

Subpart B--Selection of Additional Tribes for Participation in
Tribal Self-Governance

Purpose and Definitions

Sec. 1000.101 What is the purpose of this subpart?

This subpart describes the selection process and eligibility
criteria that the Secretary uses to decide that Indian Tribes may
participate in Tribal self-governance as authorized by 25 U.S.C. 5362.

Sec. 1000.105 What is a ``signatory''?

A signatory is a Tribe or Consortium that meets the eligibility
criteria in Sec. Sec. 1000.115 and 1000.125 and directly signs the
agreements. A signatory may exercise all of the rights and
responsibilities outlined in the compact and funding agreement and is
legally responsible for all financial and administrative decisions made
by the signatory.

Sec. 1000.110 What is a ``nonsignatory Tribe''?

(a) A nonsignatory Tribe is a Tribe that either:
(1) Does not meet the eligibility criteria in Sec. Sec. 1000.115
and 1000.125 and, by resolution of its governing body, authorizes a
Consortium to participate in self-governance on its behalf.
(2) Meets the eligibility criteria in Sec. Sec. 1000.115 and
1000.125 but chooses to be a member of a Consortium and have a
representative of the Consortium sign the compact and funding agreement
on its behalf.
(b) A non-signatory Tribe under paragraph (a)(1) of this section:
(1) May not sign the compact and funding agreement. A
representative of the Consortium must sign both documents on behalf of
the Tribe.
(2) May only become a ``signatory Tribe'' if it independently meets
the eligibility criteria in Sec. Sec. 1000.115 and 1000.125.

Eligibility

Sec. 1000.115 Who may participate in Tribal self-governance?

There are two types of entities who may participate in Tribal self-
governance:
(a) Indian Tribes; and
(b) Consortia of Indian Tribes.

Sec. 1000.120 How many additional Tribes/Consortia may participate
in self-governance per year?

(a) The Secretary, acting through the Director of the OSG, may
select not more than 50 new Indian Tribes per year from those Tribes
eligible under 25 U.S.C. 5362(c) to participate in self-governance. A
Consortium of Indian Tribes counts as one Tribe for purposes of
calculating the 50 additional Tribes per year.
(b) The limitation of not more than 50 new Tribes per year does not
preclude a signatory Tribe from negotiating a new or amended compact or
funding agreement. Such new or amended compacts or funding agreements
do not count against the limitation of not more than 50 new Tribes per
year.

Sec. 1000.125 What must a Tribe/Consortium submit to be selected to
participate in Self-Governance?

The Tribe/Consortium must submit to OSG documentation that
demonstrates the following:
(a) Successful completion of a planning phase as described in Sec.
1000.140. A Consortium's planning activities satisfy this requirement
for all its member Tribes for the purpose of the Consortium meeting
this requirement.
(b) A request for participation in self-governance by a Tribal
resolution and/or a final official action by the Tribal governing body.
For a Consortium, the governing body of each Tribe must authorize its
participation by a Tribal resolution and/or a final official action by
the Tribal governing body that specifies the scope of the Consortium's
authority to act on behalf of the Tribe.
(c) For a Tribe/Consortium required to perform an annual audit
under the Single Audit Act and Subpart F of 2 CFR part 200, financial
stability and financial management capability as evidenced by the Tribe
(or participating Tribes in a Consortium) having no uncorrected
significant and material audit exceptions in the required annual audit
of its self-determination or self-governance agreements with any
Federal agency for the three fiscal years preceding the date on which
the Tribe/Consortium requests participation, provided that
documentation demonstrating the correction of any significant and
material audit exceptions may include, but is not limited to, Agency
Management Decision Letters issued in accordance with 2 CFR 200.521,
Summary Schedule of Prior Audit Findings included in subsequent audit
reports in accordance with 2 CFR 200.511, or any documentation provided
by the Tribe/Consortium.

Sec. 1000.130 What additional information may be submitted to the
Secretary to facilitate negotiations?

At the option of the Tribe/Consortium, a Tribe/Consortium may
identify BIA and non-BIA programs that the Tribe/Consortium may wish to
subsequently negotiate for inclusion in a funding agreement. The
inclusion of PSFAs in a funding agreement is not limited by the
provision of this additional information.

Sec. 1000.135 May a Consortium member Tribe withdraw from the
Consortium and be selected to participate in Self-Governance?

In accordance with the expressed terms of the compact or written
agreement of the Consortium, a Consortium member Tribe (either a
signatory or nonsignatory Tribe) may fully or partially withdraw from a
participating Consortium its share of any program included in a compact
or funding agreement to directly negotiate a compact and funding
agreement. The withdrawing Tribe must do the following:
(a) Independently meet all of the eligibility criteria in
Sec. Sec. 1000.115 through 1000.140. If a Consortium's planning
activities specifically consider self-governance activities for a
member Tribe, that planning activity may be used to satisfy the
planning requirements for the member Tribe if it applies for self-
governance status on its own.
(b) Submit a notice of withdrawal to OSG and the Consortium as
evidenced by a resolution of the Tribal governing body.

Sec. 1000.140 What is required during the ``planning phase''?

The planning phase must be conducted to the satisfaction of the
Tribe/Consortium and must include:
(a) Legal and budgetary research; and
(b) Internal Tribal government, planning, training, and
organizational preparation related to the operation of PSFAs
contemplated by the Tribe/Consortium.

Sec. 1000.145 When does a Tribe/Consortium have an uncorrected
``significant and material audit exception''?

A Tribe/Consortium has an uncorrected significant and material
audit exceptions if any of the audits that it submitted under Sec.
1000.125(c) identifies:
(a) Significant deficiencies and material weaknesses in internal
control over major programs and significant instances of abuse relating
to major programs which the Tribe/Consortium has not corrected.
(b) Material noncompliance with the provisions of Federal statutes,
regulations, or the terms and conditions of Federal awards related to a
major program which the Tribe/Consortium has not corrected.

[[Page 57544]]

(c) A single finding of known questioned costs subsequently
disallowed by a contracting officer or awarding official that exceeds
$25,000 (or such higher amount as may be established in 2 CFR 200.516).

Sec. 1000.150 What are the consequences of having an uncorrected
significant and material audit exception?

If a Tribe/Consortium has an uncorrected significant and material
audit exception, the Tribe/Consortium is ineligible to be selected to
participate in self-governance until the Tribe/Consortium meets the
documentation requirements in Sec. 1000.125.

Sec. 1000.155 Is the Secretary required to provide technical
assistance to improve a Tribe's/Consortium's internal controls?

Yes. In considering proposals by a Tribe/Consortium for
participation in Self-Governance, if the Secretary determines that the
Tribe/Consortium lacks adequate internal controls necessary to manage
PSFAs proposed for inclusion in a compact or funding agreement under
this part, the Secretary shall, as soon as practicable, provide the
necessary technical assistance to assist the Tribe/Consortium in
developing adequate internal controls in accordance with 25 U.S.C.
5324(q)(1).

Selection To Participate in Self-Governance

Sec. 1000.160 How is a Tribe/Consortium selected to participate in
Self-Governance?

(a) For a Tribe not presently participating in Self Governance to
be selected, the Tribe/Consortium may submit a request to the Director
at any time, but no later than 180 days before the proposed effective
date of the funding agreement (e.g., October 1, January 1, or such
other date as the parties agree). The request must contain the
documentation required in Sec. 1000.125.
(b) OSG shall select a Tribe/Consortium to participate in self-
governance upon a determination that the Tribe/Consortium has provided
the required documentation in Sec. 1000.125, consistent with 25 U.S.C.
5362(b)(1)(A).
(c) OSG shall notify the Tribe/Consortium no later than 45-days
after receipt of the Tribe's/Consortium's request that the Tribe/
Consortium has been selected to participate in self-governance or does
not have a complete request under Sec. 1000.185.

Sec. 1000.165 When does OSG accept requests to participate in Self-
Governance?

OSG accepts requests at any time. A Tribe/Consortium may request a
meeting or other informal discussion with the OSG before submitting its
request to participate.

Sec. 1000.170 Are there any time frames to negotiate an initial
compact or funding agreement for a Tribe not presently participating in
self-governance?

Yes.
(a) Once selected to participate in self-governance, the parties
should begin negotiations at least 180 days before the proposed
effective date of the initial funding agreement and compact (e.g.,
October 1, January 1, or such other date as the parties agree in the
initial funding agreement or compact).
(b) A Tribe/Consortium may be selected to participate during one
year but negotiate a compact and funding agreement in a subsequent
year. In this case, the Tribe/Consortium must, before the applicable
period established in Sec. 1000.160, submit to OSG documentation
demonstrating continued eligibility under 25 U.S.C. 5362(c).

Sec. 1000.175 How does a Tribe/Consortium withdraw its request to
participate in Self-Governance?

A Tribe/Consortium may withdraw its request to participate in Self
Governance by submitting a Tribal resolution or official action by the
Tribal governing body to the Director of OSG.

Sec. 1000.180 What if more than 50 Tribes/Consortium apply to
participate in Self-Governance?

The first 50 Tribes/Consortium who apply and are determined to be
eligible under Sec. 1000.160 shall have the option to begin to
participate in self-governance. Any Tribe/Consortium denied
participation due to the limitation in number of Tribes/Consortium is
entitled to participate in the next fiscal year, provided the Tribe/
Consortium remains eligible under 25 U.S.C. 5362(c).

Sec. 1000.185 What happens if a request is not complete?

If OSG determines that a Tribe's/Consortium's request is not
complete, OSG will notify the Tribe/Consortium that the request is not
complete under Sec. 1000.125 by electronic mail and by letter,
certified mail, return receipt requested no later than 45-days after
receipt of the Tribe's/Consortium's request. The email and letter will
explain what the Tribe/Consortium must do to complete the request.

Sec. 1000.190 What happens if a Tribe/Consortium is selected to
participate but does not execute a compact and a funding agreement?

(a) The Tribe/Consortium remains eligible to negotiate a compact
and funding agreement at any time unless:
(1) It does not satisfy the eligibility requirements under 25
U.S.C. 5362(c); or
(2) Submits a Tribal resolution or official action by the Tribal
governing body to the Director, OSG requesting to withdraw its request
to participate in Self Governance.
(b) Whether or not a Tribe/Consortium executes an agreement has no
effect on the selection of up to 50 new Tribes/Consortia in a
subsequent year.

Sec. 1000.195 May a Tribe/Consortium be selected to negotiate a
funding agreement under section 403(b)(2) (25 U.S.C. 5363(b)(2))
without having or negotiating a funding agreement under 25 U.S.C.
5363(b)(1)?

Yes, a Tribe/Consortium may be selected to negotiate a funding
agreement under 25 U.S.C. 5363(b)(2) without having or negotiating a
funding agreement under 25 U.S.C. 5363(b)(1).

Sec. 1000.200 May a Tribe/Consortium be selected to negotiate a
funding agreement under section 403(c) (25 U.S.C. 5363(c)) without
negotiating a funding agreement under 25 U.S.C. 5363(b)(1) and/or
section 403(b)(2) (25 U.S.C. 5363(b)(2))?

No, 25 U.S.C. 5363(c) of the Act states that any programs of
special geographic, cultural, or historical significance to the Tribe/
Consortium must be included in funding agreements negotiated under 25
U.S.C. 5363(a) and/or 25 U.S.C. 5363(b). A Tribe may be selected to
negotiate a funding agreement under 25 U.S.C. 5363(c) at the same time
that it negotiates a funding agreement under 25 U.S.C. 5363(b)(1) and/
or 25 U.S.C. 5363(b)(2).

Withdrawal From a Consortium Funding Agreement

Sec. 1000.205 What happens when a Tribe wishes to withdraw from a
Consortium funding agreement?

(a) A Tribe wishing to withdraw from all or a part of a
Consortium's funding agreement must notify the parties to the compact
and funding agreement. The notice must:
(1) Be in the form of a Tribal resolution or other official action
by the Tribal governing body; and
(2) Be received no later than 180 days before the effective date of
the next Consortium funding agreement, unless the parties agree to
another date.
(b) The resolution referred to in paragraph (a) of this section
must

[[Page 57545]]

indicate whether the Tribe wishes the withdrawn programs to be
administered under a title IV funding agreement, title I contract, or
directly by the bureau.
(c) The effective date of the withdrawal will be the date specified
in the Tribal resolution and mutually agreed upon by the parties that
signed the compact and funding agreement. In the absence of a specific
time set forth in the resolution, such withdrawal becomes effective on:
(1) The earlier of one year after the date of submission of the
request, or the date on which the funding agreement expires; or
(2) Such date as may be mutually agreed upon by the withdrawing
Tribe and the parties that signed the compact and funding agreement.

Sec. 1000.210 How are funds redistributed when a withdrawing Tribe
fully or partially withdraws from a compact and funding agreement and
enters a new contract or compact?

When a Tribe eligible to enter into a contract under title I or a
compact or funding agreement under title IV fully or partially
withdraws from a participating Consortium, and has proposed to enter
into a contract or compact and funding agreement covering the withdrawn
funds:
(a) The withdrawing Tribe is entitled to its Tribal share of funds
supporting those programs that the Tribe will be carrying out under its
own contract or compact and funding agreement (calculated on the same
basis or methodology upon which the funds were included in the
Consortium's funding agreement); and
(b) The funds referred to in paragraph (a) of this section must be
transferred from the Consortium's funding agreement, on the condition
that the provisions of 25 U.S.C. 5321 and 5324(i), as appropriate,
apply to the withdrawing Tribe.

Sec. 1000.215 If the withdrawing Tribe elects to operate a program
carried out under a compact and funding agreement under title IV
through a contract under title I, is the resulting contract considered
a mature contract under 25 U.S.C. 5304(h)?

If a Tribe withdrawing from a Consortium's funding agreement elects
to operate a program carried out under a compact and funding agreement
under title IV through a contract under title I, at the option of the
Tribe, the resulting contract is considered a mature contract as long
as the Tribe meets the requirements set forth in 25 U.S.C. 5304(h).

Sec. 1000.220 How are funds distributed when a withdrawing Tribe
fully or partially withdraws from a Consortium's compact and funding
agreement and the withdrawing Tribe does not enter a new contract or
compact?

All funds not obligated by the Consortium associated with the
withdrawing Tribe's returned Tribal share of funds, less close out
costs, shall be returned by the Consortium to DOI for operation of the
programs included in the withdrawal.

Sec. 1000.225 What amount of funding is to be removed from the
Consortium's funding agreement for the withdrawing Tribe?

When a Tribe withdraws from a Consortium, the Consortium's funding
agreement must be reduced by the portion of funds attributable to the
withdrawing Tribe. The Consortium must reduce the funding agreement on
the same basis or methodology upon which the funds were included in the
Consortium's funding agreement.
(a) If there is not a clear identifiable methodology upon which to
base the reduction for a particular program, the parties to the compact
and funding agreement must negotiate an appropriate amount on a case-
by-case basis.
(b) If a Tribe withdraws in the middle of a funding year, the
Consortium agreement must be amended to reflect:
(1) A reduction based on the amount of funds passed directly to the
Tribe, or already spent or obligated by the Consortium on behalf of the
Tribe; and
(2) That the Consortium is no longer providing those programs
associated with the withdrawn funds.
(c) Unexpended funds from a previous fiscal year may be factored
into the amount by which the Consortium agreement is reduced if:
(1) The parties to the compact and funding agreement and the
withdrawing Tribe agree it is appropriate; and
(2) The funds are clearly identifiable.

Sec. 1000.230 What happens if there is a dispute between the
Consortium and the withdrawing Tribe?

(a) The withdrawing Tribe and the parties to the compact and
funding agreement must reach an agreement on the amount of funding and
other issues associated with the program(s) involved.
(b) If agreement is not reached:
(1) For BIA Programs, the Director of OSG must make a decision on
the funding or other issues involved within 45-days of the Tribe's or
Consortium's written submittal of the dispute to the Director of OSG
with a copy to the other party.
(2) For non-BIA Programs, the bureau head will make a decision on
the funding or other issues involved.
(c) A copy of the decision made under paragraph (b) of this section
must be distributed in accordance with the following table:

------------------------------------------------------------------------
If the program is administered then a copy of the decision must be
through . . . sent to . . .
------------------------------------------------------------------------
(1) The BIA....................... The BIA Regional Director, the BIA
Director, the withdrawing Tribe,
and the Consortium.
(2) The BIE....................... The BIE Associate Deputy Director,
the BIE Director, the withdrawing
Tribe, and the Consortium.
(3) The BTFA...................... The BTFA Director, the withdrawing
Tribe, and the Consortium.
(4) The Office of the Assistant The Assistant Secretary for Indian
Secretary--Indian Affairs. Affairs, the withdrawing Tribe, and
the Consortium.
------------------------------------------------------------------------

(d) Any decision made under paragraph (b) of this section is
appealable under subpart R of this part.

Sec. 1000.235 When a Tribe withdraws from a Consortium, is the
Secretary required to award to the withdrawing Tribe a portion of funds
associated with a construction project if the withdrawing Tribe so
requests?

Under Sec. 1000.205, a Tribe may withdraw from a Consortium and
request that the Secretary award the Tribe its portion of a
construction project's funds. The Secretary may decide not to award
these funds if the Secretary determines that the award of the
withdrawing Tribe's portion of funds would affect the ability of the
remaining members of the Consortium to complete a severable or non-
severable phase of the project within available funding.

[[Page 57546]]

(a) An example of a non-severable phase of a project would be the
construction of a single building to serve all members of a Consortium.
(b) An example of a severable phase of a project would be the
funding of a road in one village where the Consortium would be able to
complete the roads in other villages that were part of the project
approved initially in the funding agreement.
(c) The Secretary's decision under this section may be appealed
under subpart R of this part.

Subpart C--Planning and Negotiation Grants for BIA Programs

Sec. 1000.301 What is the purpose of this subpart?

This subpart describes how a Tribe/Consortium seeking to begin or
expand its participation in self-governance may request grants to
assist with its required planning phase and to negotiate a compact and
funding agreement.

Sec. 1000.305 Are there grants available to assist Tribes/Consortia
to meet the requirements to participate in self-governance?

Yes, any Tribe/Consortium may apply, as provided in Sec. 1000.315,
for a grant to assist it to:
(a) Plan to participate in self-governance; and
(b) Negotiate the terms of the compact and funding agreement
between the Tribe/Consortium and the Secretary.

Sec. 1000.310 What is required to request planning and negotiation
grants?

A Tribe/Consortium seeking a planning or negotiation grant must
submit the following:
(a) A resolution or other final action by the Tribe's/Consortium's
governing body requesting to begin or expand its participation in self-
governance and to receive a grant; and
(b) For a Tribe/Consortium required to perform an annual audit
under the Single Audit Act and subpart F of 2 CFR part 200, evidence
showing that the Tribe/Consortium has no uncorrected significant and
material audit exceptions in the required annual audit of its self-
determination or self-governance agreements with any Federal agency for
the three fiscal years preceding its current request to participate in
self-governance.

Sec. 1000.315 Are planning and negotiation grants available?

Subject to the availability of funds, the Department will annually
publish a notice of the number of planning and negotiation grants
available, an explanation of the application process for such grants,
and the criteria for award. Questions may be directed to the OSG.

Sec. 1000.320 Must a Tribe/Consortium receive a planning or
negotiation grant to be eligible to participate in self-governance?

No, a Tribe/Consortium may use other resources to meet the planning
requirement and to negotiate. The award of a planning grant or a
negotiation grant is not required in order to meet the planning phase
requirement of the Act or to negotiate a compact or funding agreement.

Sec. 1000.325 What happens if there are insufficient funds to award
all of the requests for planning and negotiation grants in any given
year?

The Secretary must give funding priority to approved requests for
negotiation grants if there are insufficient funds to award all the
approved requests for planning and negotiation grants in any given
year.

Sec. 1000.330 May a Tribe/Consortium that has received a planning
grant also receive a negotiation grant?

Yes. A planning grant and a negotiation grant may be awarded to the
same Tribe/Consortium in the same or separate years.

Sec. 1000.335 What are the Secretary's responsibilities upon a
decision not to award a planning or negotiation grant?

The Secretary must communicate in writing the reasons for declining
to award a planning or negotiation grant, and offer the Tribe/
Consortium any technical assistance that might make an award possible.

Sec. 1000.340 May a Tribe/Consortium administratively appeal the
Secretary's decision to not award a grant under this subpart?

No. The Secretary's decision to not award a grant under this
subpart is final for the Department.

Subpart D--Financial Assistance for Planning and Negotiation
Activities for Non-BIA Bureau Programs

Sec. 1000.401 What is the purpose of this subpart?

This subpart describes additional requirements and criteria
applicable to receiving financial assistance for planning and
negotiating activities for a non-BIA program.

Sec. 1000.405 What funds are available to Tribes/Consortium for
planning and negotiating activities with non-BIA bureaus?

(a) Tribes/Consortium may contact a non-BIA bureau to determine if
funds may be available for the purpose of planning and negotiating
activities with non-BIA bureaus under this subpart, including grants
awarded pursuant to 25 U.S.C. 5362(e).
(b) Tribes/Consortium may also request information identified in
Sec. 1000.1025(b)(2).

Sec. 1000.410 What kinds of planning and negotiation activities for
non-BIA programs does financial assistance from non-BIA bureaus
support?

Financial assistance received by a Tribe/Consortium from non-BIA
bureaus for planning and negotiation activities for non-BIA programs
may support activities such as, but not limited to, the following:
(a) Information gathering and analysis;
(b) Planning activities, that may include notification and
consultation with the appropriate non-BIA bureau and identification
and/or analysis of activities, resources, and capabilities that may be
needed for the Tribe/Consortium to assume non-BIA programs; and
(c) Negotiation activities.

Sec. 1000.415 Who can apply to a non-BIA bureau for financial
assistance to plan and negotiate non-BIA programs?

A Tribe/Consortium may apply for financial assistance to plan and
negotiate non-BIA programs if the Tribe/Consortium meets the
requirements of 25 U.S.C. 5362(e) and;
(a) Applied to participate in self-governance; or
(b) Been selected to participate in self-governance; or
(c) Has negotiated and entered into an existing funding agreement.

Sec. 1000.420 Under what circumstances may financial assistance for
planning and negotiation activities with non-BIA bureaus be awarded to
Tribes/Consortia?

At the discretion of the non-BIA bureau's director/commissioner,
financial assistance to plan and negotiate non-BIA programs may be
awarded when requested by the Tribe/Consortium. A Tribe/Consortium may
submit only one application per year for financial assistance under
this section.

Sec. 1000.425 How does the Tribe/Consortium know when and how to
apply for financial assistance for planning and negotiation activities
for a non-BIA program?

Subject to the availability of funds, the Secretary will annually
publish a notice in the Federal Register identifying the number of
planning and negotiation grants available from non-BIA bureaus that
includes an explanation for each non-BIA bureau describing the
application process and

[[Page 57547]]

criteria for award. The notice will identify a point-of-contact for
each non-BIA bureau where questions about the grants can be directed.
Notices for planning and negotiation grants for BIA programs are
covered in Sec. 1000.315.

Sec. 1000.430 What must be included in the application for financial
assistance for planning and negotiation activities for a non-BIA
program?

The application for financial assistance for planning and
negotiation activities for a non-BIA program must include:
(a) Written notification by the governing body or its authorized
representative of the Tribe's/Consortium's intent to engage in
planning/negotiation activities like those described in Sec. 1000.410;
(b) Written description of the planning and/or negotiation
activities that the Tribe/Consortium intends to undertake, including,
if appropriate, documentation of the relationship between the proposed
activities and the Tribe/Consortium;
(c) The proposed timeline for completion of the planning and/or
negotiation activities to be undertaken; and
(d) The amount requested.

Sec. 1000.435 How will the non-BIA bureau director/commissioner award
financial assistance for planning and negotiation activities for a non-
BIA program?

The non-BIA bureau director/commissioner must review all
applications received by the date specified in the announcement to
determine whether or not the applications include the required elements
outlined in the announcement. The non-BIA bureau must rank the complete
applications submitted by the deadline using the criteria in the notice
of funding availability.

Sec. 1000.440 May non-BIA bureaus provide technical assistance to a
Tribe/Consortium in drafting its application?

Yes, upon request from the Tribe/Consortium and subject to the
availability of resources, a non-BIA bureau may provide technical
assistance to the Tribe/Consortium in the drafting of its application.

Sec. 1000.445 What are the non-BIA bureau director's/commissioner's
responsibilities upon a decision to decline financial assistance?

The non-BIA bureau director/commissioner must communicate in
writing the reasons for declining to award financial assistance and
offer the Tribe/Consortium technical assistance that might make an
award successful through a future application.

Sec. 1000.450 Can an applicant administratively appeal a decision
not to award financial assistance?

No, all decisions made by the non-BIA bureau director/commissioner
to award or not to award financial assistance under this subpart are
final for the Department.

Sec. 1000.455 May a Tribe/Consortium reapply through a future
planning and negotiation application if it has been previously denied?

Yes, a Tribe/Consortium may reapply through a future planning and
negotiation application.

Sec. 1000.460 Will the non-BIA bureau notify Tribes/Consortium of
the results of the selection process?

Yes, the non-BIA bureau will notify all applicant Tribes/Consortium
in writing as soon as possible after completing the selection process.

Subpart E--Compacts

Sec. 1000.501 What is a self-governance compact?

A self-governance compact is a legally binding and mutually
enforceable written agreement that affirms the government-to-government
relationship between a self-governance Tribe and the United States
consistent with the trust responsibility of the Federal Government with
respect to Indian Tribes that exists under treaties, Executive orders,
court decisions, and other laws. The compact differs from a funding
agreement in that parts of the compact apply to all bureaus within the
Department rather than a single bureau.

Sec. 1000.505 Which DOI office negotiates self-governance compacts?

The DOI OSG negotiates self-governance compacts.

Sec. 1000.510 What is included in a self-governance compact?

A compact shall include general terms setting forth the government-
to-government relationship consistent with the Federal Government's
trust responsibility with respect to Indian Tribes that exists under
treaties, Executive orders, court decisions, and other laws and such
other terms as the parties intend to control during the term of the
compact.
Each self-governance compact must:
(a) Specify and affirm the general terms of the government-to-
government relationship between the Tribe and the Secretary;
(b) State the general terms and conditions of the compact;
(c) Identify the effective date of the compact;
(d) Identify the duration of the compact; and
(e) Include provisions that reflect the requirements of the Act in
accordance with Sec. 1000.515.

Sec. 1000.515 What provisions must be included in either a compact
or funding agreement?

Subject to 25 U.S.C. 5365, the following must be included in either
a compact or funding agreement. The Tribe/Consortium may include the
following in either a compact or funding agreement:
(a) Conflicts of interest;
(b) Applicable cost principles and application of the Single Audit
Act;
(c) Limitations on remedies relating to cost disallowances;
(d) For non-construction programs, authorization for the Tribe/
Consortium to redesign or consolidate eligible programs and to
reallocate funds for such programs;
(e) Reassumption;
(f) Retrocession; and
(g) Recordkeeping.

Sec. 1000.520 Is a compact required to participate in self-
governance?

Yes, a Tribe/Consortium must have a compact in order to participate
in self-governance.

Sec. 1000.525 Can a Tribe/Consortium negotiate other terms and
conditions?

Yes, the Secretary and a self-governance Tribe/Consortium may
negotiate additional terms relating to the government-to-government
relationship between the Tribe(s) and the United States consistent with
the trust responsibility of the Federal Government with respect to
Indian Tribes that exists under treaties, Executive orders, court
decisions, and other laws. A Tribe/Consortium and the Secretary may
agree to include any provision from title I of the Act, as amended, in
a compact provided that the inclusion of any such provision shall be
subject to, and shall not conflict with, section 101(a) of the PROGRESS
for Indian Tribes Act, Public Law 116-180 (25 U.S.C. 5361 note).

Sec. 1000.530 What is the duration of a compact?

Upon approval and execution of a compact, the compact remains in
effect for so long as authorized by Federal law or until terminated by
mutual written agreement or retrocession or reassumption of all
programs.

Sec. 1000.535 May a compact be amended?

A compact may be amended at any time subject to the applicable
negotiation procedures contained in this

[[Page 57548]]

part, or by written agreement of the parties.

Sec. 1000.540 Can a Tribe/Consortium have a funding agreement
without having negotiated a compact?

No, a compact is a separate document from a funding agreement, and
the compact may be negotiated prior to or at the same time as a funding
agreement.

Sec. 1000.545 May a participating Tribe/Consortium retain its
existing compact which was executed prior to the enactment of Public
Law 116-180?

Yes, a participating Tribe/Consortium with a negotiated compact
executed prior to October 21, 2020, the enactment of Public Law 116-
180, shall have the option at any time after that date to:
(a) Retain its existing compact, in whole or in part, to the extent
that the provisions of the compact are not directly contrary to any
express provision of the Act, as amended, or
(b) Negotiate a new compact in accordance with the Act.

Sec. 1000.550 What happens if the Tribe/Consortium and Secretary fail
to reach an agreement on a compact?

If the Secretary and the Tribe/Consortium have negotiated and are
unable to reach agreement, in whole or in part, on the terms of a
compact then the Tribe/Consortium may submit a final offer in
accordance with subpart I of this part.

Subpart F--Funding Agreements for BIA Programs

Sec. 1000.601 What is the purpose of this subpart?

This subpart describes the components of funding agreements for BIA
programs.

Sec. 1000.605 What is a funding agreement?

Funding agreements are legally binding and mutually enforceable
written agreements negotiated and entered into between a self-
governance Tribe/Consortium and the Secretary.

Contents and Scope of Funding Agreements

Sec. 1000.610 What must be included in a funding agreement?

(a) Each funding agreement must:
(1) Specify the PSFAs that the Tribe/Consortium is authorized to
plan, conduct, consolidate, and administer and the responsibilities of
the Secretary as outlined in Sec. 1000.650;
(2) Provide for the Secretary to monitor the performance of trust
functions administered by the Tribe/Consortium through the annual trust
evaluation as specified in subpart O of this part;
(3) Provide for annual or semi-annual installments of advance
payment(s), at the option of the Tribe/Consortium;
(4) Provide for the incorporation of required provisions of title I
of Public Law 93-638, as amended, pursuant to section 201(d) of the
PROGRESS for Indian Tribes Act, and for the incorporation of other
provisions of title I of Public Law 93-638, as amended, at the option
of the Tribe/Consortium;
(5) Provide for a stable base budget as outlined in Sec. Sec.
1000.745 through 1000.760, at the option of the Tribe/Consortium;
(6) Prohibit the Secretary from waiving, modifying, or diminishing
the trust responsibility of the United States;
(7) Specify the funding agreement's effective date;
(8) Prohibit the Tribe/Consortium from contracting with the
Secretary for duplicative funds and/or PSFAs under title I;
(9) Provide that the Tribe/Consortium shall be eligible for new
programs and new funding on the same basis as other Indian Tribes; and
shall be responsible for the administration of programs in accordance
with the compact or funding agreement;
(10) Provide the funding amount(s); and
(11) Include as attachments and incorporate by reference additional
documents agreed upon by the parties.
(b) Subject to 25 U.S.C. 5365, the following must be included in
either a compact or funding agreement. The Tribe/Consortium may include
the following in either a compact or funding agreement:
(1) Conflicts of Interest;
(2) Applicable Cost Principles and application of the Single Audit
Act;
(3) Limitations on remedies relating to cost disallowances;
(4) For non-construction programs, authorization for the Tribe/
Consortium to redesign or consolidate programs and to reallocate funds
for such programs;
(5) Reassumption;
(6) Retrocession; and
(7) Recordkeeping.

Sec. 1000.615 Can additional provisions be included in a funding
agreement?

Yes, any provision that the parties mutually agreed upon may be
included in a funding agreement.

Sec. 1000.620 Does a Tribe/Consortium have the right to include
provisions of title I of Public Law 93-638 in a funding agreement?

Yes, a Tribe/Consortium has the right to include any provision of
title I of Public Law 93-638, as amended, in a funding agreement.

Sec. 1000.625 What is the term of a funding agreement?

A funding agreement shall have the term mutually agreed to by the
parties. Absent notification from a Tribe/Consortium that it is
withdrawing or retroceding the operation of one or more programs
identified in a funding agreement or by the nature of any noncontinuing
PSFA contained in a funding agreement, the funding agreement shall
remain in full force and effect until a subsequent funding agreement is
executed.

Sec. 1000.630 Can a Tribe/Consortium negotiate a funding agreement
with a term that exceeds one year?

Yes, at the option of the Tribe/Consortium, and subject to the
availability of Congressional appropriations, a Tribe/Consortium may
negotiate a funding agreement with a term that exceeds one year under
25 U.S.C. 5363(p)(4).

Sec. 1000.635 Does a funding agreement remain in effect after the
end of its term?

Yes, the provisions of a funding agreement, including all recurring
increases received and continuing eligibility for other increases,
remain in full force and effect until a subsequent funding agreement is
executed, including coverage of the Tribe/Consortium under the Federal
Tort Claims Act (FTCA) 28 U.S.C. 2671 through 2680. Upon execution of a
subsequent funding agreement, the provisions of such a funding
agreement are retroactive to the term of the preceding funding
agreement for purposes of calculating the amount of funding to which
the Tribe/Consortium is entitled.

Sec. 1000.640 May a participating Tribe/Consortium retain its
existing funding agreement which was executed prior to the enactment of
Public Law 116-180?

Yes, a participating Tribe/Consortium with a funding agreement
executed prior to October 21, 2020, the enactment of Public Law 116-
180, shall have the option at any time after that date to:
(a) Retain its existing funding agreement, in whole or in part, to
the extent that the funding agreement is not contrary to the Act, as
amended by Public Law 116-180; or
(b) Negotiate a new funding agreement.

Determining What Programs May Be Included in a Funding Agreement

Sec. 1000.645 What PSFAs may be included in a funding agreement?

A Tribe/Consortium may include in its funding agreement PSFAs
administered by the Secretary for the

[[Page 57549]]

benefit of Indians because of their status as Indian, including, but
not limited to those provided through the BIA, the BIE, the BTFA, the
Office of the Assistant Secretary for Indian Affairs, and the Appraisal
and Valuation Services Office, without regard to the agency or office
of that Bureau or Office, including any PSFA identified in 25 U.S.C.
5363(b)(1).

Sec. 1000.650 How does the funding agreement specify the services
provided, functions performed, and responsibilities assumed by the
Tribe/Consortium and those retained by the Secretary?

(a) The funding agreement must specify in writing the services,
functions, and responsibilities to be assumed by the Tribe/Consortium
and the functions, services, and responsibilities to be retained by the
Secretary.
(b) Any division of responsibilities between the Tribe/Consortium
and BIA must be clearly stated in writing as part of the funding
agreement. Similarly, when there is a relationship between the program
and BIA's inherent Federal functions, the relationship must be
explained in the funding agreement.

Sec. 1000.655 May a Tribe/Consortium redesign or consolidate the
programs that are included in a funding agreement and reallocate funds
for such programs?

Except where a statute contains specific limitations on the use of
funds, a Tribe/Consortium may redesign or consolidate programs included
in a funding agreement and reallocate funds for such programs in any
manner which it deems to be in the best interest of the Indian
community being served, so long as the redesign or consolidation does
not have the effect of denying eligibility for services to population
groups otherwise eligible to be served under applicable Federal law;
provided however, that a reduction in funds available for a program or
service shall not be considered a denial of eligibility for services.
However, redesign of construction project(s) included in a funding
agreement must be done in accordance with subpart K of this part.

Sec. 1000.660 Do Tribes/Consortium need Secretarial approval to
redesign BIA programs that the Tribe/Consortium administers under a
funding agreement?

No, the Secretary does not have to approve a redesign of a program
under the funding agreement, except when the redesign involves:
(a) Programs described in 25 U.S.C. 5363(b)(2) or (c); or
(b) A request to waive a regulation.

Sec. 1000.665 Can the terms and conditions in a funding agreement be
amended during the year it is in effect?

Yes, terms and conditions in a funding agreement may be amended
during the year it is in effect as agreed to by both the Tribe/
Consortium and the Secretary.

Determining Funding Agreement Amounts

Sec. 1000.670 What funds must be transferred to a Tribe/Consortium
under a funding agreement?

(a) Subject to the terms of a funding agreement, the Secretary must
transfer to a Tribe/Consortium all funds provided for in the funding
agreement, pursuant to 25 U.S.C. 5368. The Secretary shall provide
funding for periods covered by joint resolution adopted by Congress
making continuing appropriations, to the extent permitted by such
resolution.
(b) At the option of the Tribe/Consortium, the Secretary must
provide the following program funds to the Tribe/Consortium through a
funding agreement:
(1) An amount equal to the amount that the Tribe/Consortium would
have been eligible to receive under contracts and grants for direct
programs and contract support under title I of Public Law 93-638, as
amended;
(2) Any funds that are specifically or functionally related to
providing services and benefits to the Tribe/Consortium or its members
by the Secretary without regard to the organizational level within BIA
where such functions are carried out; and
(3) Any funds otherwise available to Indian Tribes or Indians for
which appropriations are made to other Federal agencies and transferred
to the Department as directed by law, an Interagency Agreement, or
other means.
(c) Examples of the funds referred to in paragraphs (b)(1) and
(b)(2) of this section are:
(1) A Tribe's/Consortium's Public Law 93-638 contract amounts;
(2) Negotiated amounts of agency, regional and central office
funds, including previously undistributed funds or new programs on the
same basis as they are made available to other Tribes;
(3) Other recurring funding;
(4) Non-recurring funding;
(5) Special projects, if applicable;
(6) Construction;
(7) Wildland firefighting accounts;
(8) Competitive grants; and
(9) Congressional earmarked funding.
(d) Examples of the funds referred to in paragraph (b)(3) of this
section are:
(1) Federal Highway Administration funds;
(2) Federal Transit Administration funds; and
(3) Funding pursuant to an approved plan under Public Law 102-477,
as amended.

Sec. 1000.675 What funds may not be included in a funding agreement?

Funds associated with programs prohibited from inclusion under 25
U.S.C. 5363(m)(1) may not be included in a funding agreement.

Sec. 1000.680 May the Secretary place any requirements on programs
and funds that are otherwise available to Tribes/Consortium or Indians
for which appropriations are made to agencies other than DOI?

No, unless the Secretary is required to develop terms and
conditions that are required by law or that are required by the agency
to which the appropriation is made.

Sec. 1000.685 What funds are used to carry out inherent Federal
functions?

The funds for BIA to carry out inherent Federal functions are the
funds to support functions that may not legally be delegated to an
Indian Tribe if all Tribes were to assume responsibilities for all BIA
programs that the Act permits.

Sec. 1000.690 How does BIA determine the funding amount to carry out
inherent Federal functions?

(a) Between October 1st and December 31st of each fiscal year, each
regional and central office shall develop a document that contains its
inherent Federal function information and cost calculation for that
office based either on an enacted budget or Continuing Resolution
budgetary guidance, and promptly distribute that document to each
Tribe/Consortium served by that office.
(b) The Secretary shall amend the document throughout the year if
programs are added or changed in ways that affect the inherent Federal
functions directly associated with a PSFA transferred, or proposed to
be transferred, into the funding agreement of the Tribe/Consortium, and
distribute that revised document to any Tribe/Consortium served by that
office and seeking to transfer a PSFA into a funding agreement under
the Act.
(c) Once final budget amounts are known and suballocated, the
Secretary will provide an updated document within 90 days to each
Tribe/Consortium.
(d) Inherent Federal function information must clearly identify the
legal authority that specifically precludes delegation to a Tribe.

[[Page 57550]]

(e) Cost calculations must be limited to the minimum amount of
funds necessary to carry out specific inherent Federal functions
necessary for that office to administer PSFAs transferred to the
funding agreement.
(f) The development of the document in paragraph (a) must be based
on the following principles:
(1) Uniformity and consistency in the identification of inherent
Federal functions and in the calculation of their associated costs;
(2) The determination of inherent Federal functions in each office
is based only on those inherent Federal functions actually being
performed at that office; and
(3) The Secretary shall consult with Tribes/Consortium on inherent
Federal function determinations and associated cost calculations at
various forums, including the Tribal Interior Budget Council (TIBC).
(g) In negotiating the amount of funds due a Tribe/Consortium in a
funding agreement, the Secretary may withhold from transfer to the
funding agreement only those funds to carry out inherent Federal
functions directly associated with the PSFAs assumed in the funding
agreement, unless otherwise expressly agreed to by the Tribe/Consortium
in the funding agreement.
(h) Upon the request of a Tribe/Consortium, the Secretary must
promptly provide a specific description of each inherent Federal
function directly associated with a PSFA transferred, or proposed to be
transferred, into the funding agreement of the Tribe/Consortium, along
with the detailed basis for the Secretary's associated cost
calculation.

Sec. 1000.695 Is the amount of funds withheld by the Secretary to
cover the cost of inherent Federal functions subject to negotiation?

Yes, the Secretary's calculation of such costs is an appropriate
subject during the negotiation of a funding agreement because it
affects the amount of funds available for transfer to the funding
agreement. If the Tribe/Consortium and the Secretary are unable to
agree on the amount of funds to be withheld by the Secretary to cover
the Secretary's expense of carrying out inherent Federal functions
directly associated with the PSFAs assumed in the funding agreement,
the Tribe/Consortium may exercise any of its options under 25 U.S.C.
5366(c), including the final offer process in subpart I of this part.

Sec. 1000.700 May a Tribe/Consortium continue to negotiate a funding
agreement pending an appeal of funding amounts associated with inherent
Federal functions?

Yes, pending appeal of funding amounts associated with inherent
Federal functions, any Tribe/Consortium may continue to negotiate a
funding agreement using the information under Sec. 1000.690 that is
being appealed. This information will be subject to later adjustment
based on the final determination of a Tribe's/Consortium's appeal.

Sec. 1000.705 What is a Tribal share?

A Tribal share is the portion of all funds and resources determined
for a particular Tribe (or Tribes within a Consortium) that support any
program within BIA, BIE, BTFA, or the Office of the Assistant Secretary
for Indian Affairs and are not required by the Secretary for the
performance of an inherent Federal function as described in Sec. Sec.
1000.685 through 1000.695.

Sec. 1000.710 How does BIA determine a Tribe's/Consortium's share of
funds to be included in a funding agreement?

There are typically two methods for determining the amount of funds
to be included in the funding agreement:
(a) Formula-driven. For formula-driven programs, a Tribe's/
Consortium's amount is determined by first identifying the funds for
BIA to carry out inherent Federal functions and second, by applying the
distribution formula to the remaining eligible funding for each program
involved.
(1) Distribution formulas must be reasonably related to the
function or service performed by an office, and must be consistently
applied to all Tribes within each regional and agency office.
(2) The process in paragraph (a) of this section for calculating a
Tribe's funding under self-governance must be consistent with the
process used for calculating funds available to non-self-governance
Tribes.
(b) Tribal-specific. For programs whose funds are not distributed
on a formula basis as described in paragraph (a) of this section, a
Tribe's funding amount will be determined on a Tribe-by-Tribe basis and
may differ between Tribes. Examples of these funds may include special
project funding, awarded competitive grants, earmarked funding, and
construction or other one-time or non-recurring funding for which a
Tribe is eligible.

Sec. 1000.715 Can a Tribe/Consortium negotiate a Tribal share for
programs outside its region/agency?

Yes, where BIA services for a particular Tribe/Consortium are
provided from a location outside its immediate agency or region, the
Tribe may negotiate its share from the BIA location where the service
is actually provided.

Sec. 1000.720 May a Tribe/Consortium obtain discretionary or
competitive funding that is distributed on a discretionary or
competitive basis?

Funds provided for Indian services/programs that have not been
mandated by Congress to be distributed on a competitive/discretionary
basis may be distributed to a Tribe/Consortium under a formula-driven
method. In order to receive such funds, a Tribe/Consortium must be
eligible and qualified to receive such funds. A Tribe/Consortium that
receives such funds under a formula-driven methodology would no longer
be eligible to compete for these funds.

Sec. 1000.725 Are all funds identified as Tribal shares always paid
to the Tribe/Consortium under a funding agreement?

No, at the discretion of the Tribe/Consortium, Tribal shares may be
left, in whole or in part, with BIA for certain programs. This is
referred to as a ``retained Tribal share.''

Sec. 1000.730 How are savings that result from downsizing allocated?

Funds that are saved as a result of downsizing in BIA are allocated
to Tribes/Consortium in the same manner as Tribal shares as provided
for in Sec. 1000.710.

Sec. 1000.735 Do Tribes/Consortium need Secretarial approval to
reallocate funds between programs that the Tribe/Consortium administers
under the funding agreement?

No, except with respect to programs described in 25 U.S.C.
5363(b)(2) or (c) or as otherwise required by law, the Secretary does
not have to approve the reallocation of funds between programs that a
Tribe/Consortium administers under a funding agreement. However,
reallocation of funds for construction project(s) included in a funding
agreement must be done in accordance with subpart K of this part.

Sec. 1000.740 Can funding amounts negotiated in a funding agreement
be adjusted during the year it is in effect?

Yes, funding amounts negotiated in a funding agreement may be
adjusted under the following circumstances:
(a) Congressional action:
(1) Increases/decreases as a result of Congressional appropriations
and/or a

[[Page 57551]]

directive in the statement of managers accompanying a conference report
on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied
consistently to BIA, self-governance Tribes/Consortium, and Tribes/
Consortium not participating in self-governance.
(3) General increases due to Congressional appropriations must be
applied consistently, except where used to achieve equitable
distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be
provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify
and document substantive errors in calculations, the parties will
renegotiate the amounts and make every effort to correct such errors.
(c) Mutual Agreement. Both the Tribe/Consortium and the Secretary
may agree to renegotiate amounts at any time.

Establishing Self-Governance Stable Base Budgets

Sec. 1000.745 What are self-governance stable base budgets?

(a) A Tribe/Consortium self-governance stable base budget is the
amount of recurring funding to be transferred to the Tribe/Consortium,
for a period specified in the funding agreement. This amount must be
adjusted to reflect subsequent annual changes in Congressional
appropriations. It includes amounts that are eligible to be base
transferred or have been base transferred from BIA budget accounts to
self-governance budget accounts. As allowed by Congress, self-
governance stable base budgets are derived from:
(1) A Tribe's/Consortium's Public Law 93-638 contract amounts;
(2) Negotiated agency, regional, and central office amounts;
(3) Other recurring funding;
(4) Special Projects, if applicable;
(5) Programmatic shortfall;
(6) Tribal priority allocation increases and decreases;
(7) Pay costs and retirement cost adjustments; and
(8) Any other inflationary cost adjustments.
(b) Self-governance stable base budgets must not include any non-
recurring program funds, construction and wildland firefighting
accounts, Congressional earmarks, or other funds specifically excluded
by Congress. These funds are negotiated annually and may be included in
the funding agreement but must not be included in the self-governance
stable base budget.
(c) Self-governance stable base budgets may not include other
recurring type programs that are currently in Tribal priority
allocations (TPA) such as general assistance, housing improvement
program (HIP), road maintenance and contract support. Should these
later four programs ever become base transferred to Tribes, then they
may be included in a self-governance Tribe's stable base budget.
(d) A funding agreement shall not specify the funding associated
with a program described in 25 U.S.C. 5363(b)(2) or (c) without the
Secretary's agreement.

Sec. 1000.750 Once a Tribe/Consortium establishes a stable base
budget, are funding amounts renegotiated each year?

No, unless otherwise requested by the Tribe/Consortium, these
amounts are not renegotiated each year. If a Tribe/Consortium
renegotiates funding levels:
(a) It must negotiate all funding levels in the funding agreement
using the process for determining funds for BIA to carry out inherent
Federal functions on the same basis as other Tribes; and
(b) It is eligible for funding amounts of new programs or available
programs not previously included in the funding agreement on the same
basis as other Tribes.

Sec. 1000.755 How are self-governance stable base budgets
established?

At the request of the Tribe/Consortium, a self-governance stable
base budget identifying each Tribe's funding amount is included in
BIA's budget justification for the following year, subject to
Congressional appropriation.

Sec. 1000.760 How are self-governance stable base budgets adjusted?

Self-governance stable base budgets must be adjusted as follows:
(a) Congressional action.
(1) Increases/decreases as a result of Congressional appropriations
and/or a directive in the statement of managers accompanying a
conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied
consistently to BIA, self-governance Tribes/Cons

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