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Rule2024-28302

Self-Governance PROGRESS Act Regulations

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Published

December 11, 2024

Effective

January 10, 2025

Issuing agencies

Interior DepartmentIndian Affairs Bureau

Abstract

The U.S. Department of the Interior (Department), Office of the Assistant Secretary for Indian Affairs, is issuing revisions to the regulations that implement Tribal Self-Governance, as authorized by title IV of the Indian Self Determination and Education Assistance Act. This final 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 238 (Wednesday, December 11, 2024)</title>
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[Federal Register Volume 89, Number 238 (Wednesday, December 11, 2024)]
[Rules and Regulations]
[Pages 100228-100288]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28302]

[[Page 100227]]

Vol. 89

Wednesday,

No. 238

December 11, 2024

Part V

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; Final Rule

Federal Register / Vol. 89 , No. 238 / Wednesday, December 11, 2024 /
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 1000

[Docket No. BIA-2024-0001; 256A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF62

Self-Governance PROGRESS Act Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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

DATES: This final rule is effective on January 10, 2025.
<bullet> Information Collection Requirements: If you wish to
comment on the information collection requirements in this final 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 final rule between 30 and 60 days after publication in the
Federal Register. Therefore, comments should be submitted to OMB (see
``Information Collection Requirements'' section below under ADDRESSES)
by January 10, 2025.

ADDRESSES: The Department has established a docket for the information
collection action associated with this rule available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and by searching for Docket No. ``BIA-2024-0001''
or RIN ``1076-AF62.''
<bullet> Information Collection Requirements: Written comments and
recommendations for the information collection request (ICR) should be
sent within 30 days of publication of this notice to the OMB through
<a href="https://www.reginfo.gov/public/do/PRA/icrPublicCommentRequest?ref_nbr=202410-1076-001">https://www.reginfo.gov/public/do/PRA/icrPublicCommentRequest?ref_nbr=202410-1076-001</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.'' Please provide a copy of your comments
to the Department by email to <a href="/cdn-cgi/l/email-protection#9bf8f4f5e8eef7effaeff2f4f5dbf9f2fab5fcf4ed">[email&#160;protected]</a> with ``OMB Control
Number 1076-0143'' in the email's subject line.

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#6a382b292b2a08030b440d051c">[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 final 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. Executive Summary
C. Negotiated Rulemaking Process
II. Public Engagement and Consultation
III. Summary of Comments Received
A. General Comments
B. Section Comments
C. Use of Received Feedback
IV. Summary of Subparts and Changes by Section
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 Bureau 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
V. 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. Reforming Federal Funding and Support for Tribal Nations
(E.O. 14112)
I. Consultation With Indian Tribes (E.O. 13175)
J. Paperwork Reduction Act
K. National Environmental Policy Act (NEPA)
L. Energy Effects (E.O. 13211)
M. Clarity of This Regulation

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. The Self-Governance PROGRESS Act Negotiated Rulemaking
Committee (``Committee'') was established and commenced with the
negotiated rulemaking process for this final rule. On April 20, 2023,
the Committee's authority to promulgate regulations to meet the
directive of the 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 rule. Congress, however, on
September 30, 2023, extended the Committee's authority until December
21, 2024. Public Law 118-15 at section 2102.

B. Executive Summary

This final rule updates the regulations implementing Tribal Self-
Governance at the Department. While the final 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
the ISDEAA, and the Department of Transportation (DOT) authorized by 23
U.S.C. 207, it is not the intent of this final 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
final rule should not be construed to bind HHS or DOT to any particular
interpretation of a term or process.
Since the Department promulgated its title IV regulations in 2000,
and Indian

[[Page 100229]]

Health Service (IHS) promulgated its title V regulations in 2005, the
agencies implement their ISDEAA self-governance programs differently
due to the unique nature of the Programs, Services, Functions, and
Activities (PSFA) they manage, the needs of their beneficiaries, and
intentional policy choices. In many instances, this rule maintains
those implementations and procedural differences because the Department
is honoring the Committee's preference for maintaining past procedures,
even where those procedures may differ from other agencies. Although
the ISDEAA provides such discretion to the Secretary, given the
longevity of these practices, the Committee's preference to maintain
them, and the Department's desire not to unsettle expectations, the
final rule continues some procedures that may differ from IHS.
This final rule has been negotiated by representatives of Self-
Governance and non-Self-Governance Tribes, and the Department (the
``Committee''). The effect of the final rule 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. This final 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
some negligible new costs to the Federal Government.

C. 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 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. Additionally, Tribal representatives reflect a
balance in terms of geographical location and size of the Tribe.
Membership consists only of representatives of Federal and Tribal
governments, with OSG serving as the lead agency.
The Committee met fifteen times to negotiate the proposed
regulations, resulting in the proposed rule that was published on July
15, 2024, 89 FR 57524. 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.
After the proposed rule was published on July 15, 2024, 89 FR
57524, the Committee received written and verbal comments through
consultation, which are summarized below. After consultation was
completed, the Drafting Subcommittee of the Committee, met on multiple
occasions to review comments received, discuss options to address
interagency feedback, and attempt to reach consensus on recommendations
to the Committee. The Committee met an additional two times (for a
total of 17 meetings) and reached consensus in response to many of the
issues as outlined in Section III, ``Summary of Comments Received.''

II. Public Engagement and Consultation

The Department hosted three in-person consultation sessions on July
15, 17, and 19, and one virtual Tribal consultation session on July 22,
on its proposed rule implementing the PROGRESS Act. Each session lasted
approximately 2 hours. The Department received 492 individualized
comments \1\ from 27 Tribes; 8 national and inter-Tribal organizations
and Tribal entities; and national law firms representing multiple
Tribes and Tribal consortia exercising Tribal self-governance for their
respective communities. Both the verbal and written comments support
the Tribal positions on the non-consensus issues, detailed in the
Committee Report dated April 12, 2024 (Committee Report). The main
themes addressed in the comments were:
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\1\ An individualized comment is a comment on a discrete issue
or concern, raised by a commentator in response to the proposed
rule, whether in writing or orally. For example, a written comment
letter could have addressed several different issues or concerns.
Also, during the consultations and listening session, a commentor
could have orally discussed several different issues or concerns in
their address.
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<bullet> The PROGRESS Act's rules of construction;
<bullet> What contents compacts and funding agreements should
include;
<bullet> How inherent federal functions (``IFFs'') should be
negotiated and determined;
<bullet> Tribal authority to make final determinations under the
Nation Environmental Policy Act (``NEPA''), the National Historic
Preservation Act (``NHPA''), and other related laws;
<bullet> How contract support costs (``CSCs'') are calculated for
non-BIA programs;
<bullet> What types of appeals are available to Indian Tribes
participating in self-governance under title IV;
<bullet> Suggested language and deletions to the proposed rule; and
<bullet> Other comments more general in nature or relating to other
areas of the proposed rule.

III. Summary of Comments Received

A. General Comments

Many of these comments are general in nature: describing the unique
histories of the commenting Tribes and their relationship to the Tribal
self-governance program; asking the Department to reconsider its
position on the non-consensus issues; comments thanking the Department
for its work; and expressing appreciation for considering Tribal
comments.
Comments on Inherent Federal Function
The Department will decide what functions are inherently Federal on
a uniform case-by-case basis after consultation with the Office of the
Solicitor. For current guidance on IFF determinations, please see
Solicitor's memorandum dated May 17, 1996. The memorandum is available
from the Office of Self-Governance upon request. The Department shall
provide information on why specific functions have been determined
inherently Federal to Tribes and Consortia in accordance with this
part.
The Department recognizes that title V of the ISDEAA delegates to
Indian Tribes authority for final environmental determinations for
construction projects. In negotiating with a Tribe/Consortium to
include a construction

[[Page 100230]]

project under this part, and how a Tribe/Consortium may assume some
Federal responsibilities under 25 U.S.C. 5367(b), the Department will
address the differences between title V (25 U.S.C. 5389(a)) and title
IV (25 U.S.C. 5367(b)) of the ISDEAA through discussions with the
Office of the Solicitor and in accordance with section 5(f) of
Executive Order No. 14112, and the PROGRESS Act's rules of construction
and interpretation.
Many comments expressed concerns regarding what criteria the
Department must consider when determining what are IFFs under title IV,
as amended by the PROGRESS Act, and whether the issue of what is an
``IFF'' is a proper topic of negotiation between the Department and a
Tribe/Consortium participating in self-governance. The Department
acknowledges these comments.
Several Tribes described past experiences negotiating with federal
officials about IFFs, and noted their belief that the Department, in
negotiation of self-governance agreements, often takes an overly
expansive interpretation regarding what functions are inherently
Federal and, therefore, not eligible for inclusion in a funding
agreement. These commenters state that this approach comes at the
expense of Tribal autonomy and self-governance objectives of the
PROGRESS Act. Many commentors urged the Department to incorporate
language from the long-standing Department Solicitor guidance to
clarify all determinations of IFFs. The Department addressed the issue
of which functions may be considered ``inherently Federal'' for
purposes of 25 U.SC. 5363(k) as one of the four issues of disagreement
between the Department and Tribes/Consortia in the final rule.
Many commentors requested that the Department establish criteria
for determining when a function is inherently federal and referenced
suggested provisions that incorporate long-standing agency guidance
from the 1996 Solicitor memorandum (``Leshy Memorandum''), IFFs under
the Tribal Self-Governance Act, at 12 (May 17, 1996) (``The more a
delegated function relates to tribal sovereignty over members and
territory, the more likely it is that the inherently Federal exception
of section 403(k) does not apply.''). Tribal commenters argue
consistent and transparent criteria must be implemented on how IFF
determinations will be made under title IV. Without such criteria, they
suggest, the Department may fail to liberally construe each provision
of title IV and each provision of a compact and funding agreement for
the benefit of the Indian Tribe participating in self-governance, with
any ambiguity to be resolved in favor of the Indian Tribe, and could
instead assert inherent federal characteristics over many types of
functions that the relevant bureau simply may not want to compact or
contract. In these instances, the Tribal commentors assert that
threshold criteria would help ensure consistent determinations across
all relevant bureaus and offices within the Department.
As the Tribal narrative articulates, the Department issued guidance
in the Leshy Memorandum stating that any determination about the
``inherently federal restriction can only be applied on a case-by-case
basis.'' The Department re-affirmed this position in a November 2022
Report on authorities that can support Tribal stewardship and co-
stewardship. The federal position is that the Leshy Memorandum provides
a framework for bureaus and offices of the Department to utilize when
making a determination. The federal position is that particular phrases
of that framework should not be codified in regulation in isolation but
instead within the full context of the document.
The Department expressed caution in creating a regulatory process
that could, in practice, ask the Department to take a position on
whether a ``delegated PSFA relates to Tribal sovereignty.'' As a matter
of administrative law, this process could create unintended
consequences or roadblocks to Tribes exercising their sovereignty by
subjecting that potential exercise to a federal determination. The
Department does not wish to create an administrative process that might
result in an outcome detrimental to Tribal sovereignty. The Department,
in establishing the final rule took significant actions to define a
consistent and transparent procedure that it will follow when
identifying IFFs and then calculating eligible tribal shares in turn.
The Department feels that these portions of the final rule address the
core concerns of many commenters and will better ensure consistency and
transparency in determining eligible funds and that activities captured
as inherently federal will be based on valid legal authority.
Comments on Executive Order 13175, Executive Order 14112, and
Secretarial Order 3403
Executive Order 13175 (E.O. 13175), also known as ``Consultation
and Coordination with Indian Tribal Governments,'' establishes policies
and principles for how the federal government should interact with
Indian Tribal governments. Executive Order 14112 (E.O. 14112), also
known as ``Reforming Federal Funding and Support for Tribal Nations to
Better Embrace Our Trust Responsibilities and Promote the Next Era of
Tribal Self Determination,'' directs agencies to reform their programs
so that Tribal Nations have greater autonomy over how Tribal Nations
invest federal funding, and to make federal funding less burdensome and
more accessible for Tribal Nations. E.O. 14112 states that Tribal
governments must be treated as permanent, equal, and vital parts of
America's overlapping system of governments. Secretarial Order 3403
(S.O. 3403), also known as ``Joint Secretarial Order on Fulfilling the
Trust Responsibility to Indian Tribes in the Stewardship of Federal
Lands and Waters,'' ensures that the U.S. Department of Agriculture
(USDA) and the Department and their component Bureaus and Offices are
managing Federal lands and waters in a manner that seeks to protect the
treaty, religious, subsistence, and cultural interests of federally
recognized Indian Tribes; that such management is consistent with the
nation-to-nation relationship between the United States and federally
recognized Indian Tribes; and, that such management fulfills the United
States' unique trust obligation to federally recognized Indian Tribes
and their citizens.
Throughout many of the comments, commentors reminded the Department
of its trust and treaty obligations under the Constitution of the
United States, E.O. 13175, E.O. 14112, and S.O. 3403. Many commentors
reminded the Department that as it completes the rulemaking process
that the Department implement E.O. 13175 and E.O. 14112, and the
Presidential Memorandum dated January 26, 2023, which represent the
Administration's respect for sovereignty, and commitment to ushering in
the next era of Tribal self-determination by ensuring that Tribal
Nations have greater autonomy in all aspects of self-governance. One
commentor stated that these policies will have no meaning without
accompanying meaningful and respectful actions, including in the
PROGRESS Act rulemaking that requires the Department to act in good
faith and fully uphold the right of Tribes/Consortia to self-govern.
One Commentor noted that recognition of the importance of
Indigenous Knowledge by Federal agencies is an express requirement of
E.O. 14112. One commentor stated that the Department's position
concerning

[[Page 100231]]

IFFs is untenable given the goals and objectives outlined in E.O. 14112
and S.O. 3403, noting that in the commentor's experience, negotiating
transferrable programs and activities is the lengthiest portion of the
process due to the fact that agencies are often unwilling to
acknowledge or accept Tribal or consortia capacity and traditional
ecological knowledge. Another commentor stated that Tribal traditional
ecological knowledge has been left out of the regulations.
Many commentors noted that the PROGRESS Act was the direct result
of Congress acknowledging that there needed to be an overhaul of title
IV to correct bureaucratic processes and procedures that the Department
imposed that either discouraged or hindered negotiations between Tribes
and the Department. Many commentors asserted that the Indian canons of
construction should be applied during Tribal consultation activities,
and any ambiguities in law or policy should be interpreted in favor of
Tribes in accordance with E.O. 13175, Sec. 6, and E.O. 14112, section
5. Commentors urged the Department to take these directives into
account when developing the final rule. One commentor noted that
Department negotiators often take an expansive interpretation of what
functions are Inherently Federal with the objective to preserve work
and jobs for Federal employees at the expense of Tribal autonomy and
self-governance objectives. Another commentor noted that E.O. 14112
aims to increase flexibility by reducing administrative burdens and
facilitating access to federal funding and resources.
Many commentors stated that the Tribal representatives' position
that the PROGRESS Act permits Tribes/Consortium to make final
determinations under NEPA and related environmental laws are firmly
grounded in E.O. 14112. A commentor stated that the Tribal position
concerning environmental determinations under NEPA is consistent with
CEQ's revised regulations, 40 CFR part 1500 et seq., that went into
effect on July 1, 2024. A commentor noted that the Department's
position is a step back for self-governance and fundamentally at odds
with the most basic tenets of Tribal self-governance policy. A
commentor stated that sound policy considerations by the Department,
including adherence to E.O. 14112, can lead the Department to issue a
final rule that decreases litigation risk and the attendant
ramifications.
Throughout the comments, there were repeated instances where Tribes
suggested improvements to the language of the proposed rule that would
further implement the intent of E.O. 13175, E.O. 14112, and S.O. 3403.
The Committee considered all the comments and implemented many of the
suggestions. The Committee made changes to the final rule to define
when and how Indigenous Knowledge can be used (Sec. 1000.20 and Sec.
1000.1390), significant updates to the appeals process to give Tribes
more options subpart R (Appeals), updates to how Public Law 102-477 is
referenced, and changes to subpart G (Funding Agreements for Non-BIA
Programs) related to clarifying CSCs.
There were also areas where commentors made suggestions to change
the proposed rule, citing E.O. 14112, but after review by the Committee
those changes were not implemented. This includes proposed changes
related to clarifying whether IFFs can be negotiated (Sec. 1000.695)
and requests to add additional sections to subpart K (Construction).
The Department acknowledges these comments and further explains below
why the changes were not implemented.
The Department is committed to upholding the federal government's
trust and treaty obligations as reiterated in E.O. 13175, E.O. 14112,
and S.O. 3403. The Department is dedicated to ensuring that Tribes are
able to exercise sovereignty though self-governance and self-
determination by ensuring that Federal programs, to the maximum extent
possible and practicable under Federal law, provide Tribal Nations with
the flexibility to improve economic growth, address the specific needs
of their communities, and realize their vision for their future.
The Department is appreciative of the work of the Tribal members on
the negotiated rulemaking committee as well as all of the Tribal
engagement throughout the rulemaking process. This final rule reflects
the good faith collaboration between the federal government and Tribal
governments.
Comments on the Rules of Construction
Many Tribal commentors underscored the rules of construction within
the PROGRESS Act, at sections 406 and 409. Tribal commenters read those
sections to require liberal interpretation of the language in the
statute, and therefore the contents of its regulations. Specifically,
they note that ambiguities should be resolved in favor of the
compacting Tribes/Consortiums and that the PROGRESS Act must be
implemented in a manner that facilitates inclusion of programs in the
Tribal Self-Governance program.
The liberal interpretation comments are intended to be overarching
and suggest that, with respect to the non-consensus issues, the
Department should bend towards the Tribal positions where there is
ambiguity. According to the Tribal commenters, Congress said so in the
PROGRESS Act, as evidenced in sections 406 and 409.
The comments further noted concern that the Department was ignoring
the clear directives from Congress in the PROGRESS Act and cherry-
picked statutory provisions to undermine the Tribal efforts to resolve
differences. The comments asked the Department to reconsider the
Department's position on non-consensus issues as negotiations continued
to consider the long-standing Indian canons of construction.
The Department acknowledges these comments, using the comments and
feedback to inform the final rule.
Comment on Clean Energy Promotion
One comment requested a focus on clean energy through biomass,
woody byproducts, or cogeneration.
The Committee acknowledges the comment. The Department agrees that
the use of clean energy can be an important component of projects
implemented under this rule.
Comment on Co-Management
One comment requested that co-management be included in the final
rule in response to including Indigenous Knowledge. The example
provided is to assist Tribal communities who deal with forest fires and
working with the U.S. Forest Service to coordinate and create an
economic plan to develop restoration projects and allowing Tribal
communities to implement traditional ecological knowledge into the plan
as part of co-management.
The Committee acknowledges the comment to allow 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. This includes recognition of and support for
Indigenous Knowledge to be included into the final rule. This rule does
not apply to the U. S. Forest Service.
Comment on Committee Consensus
One comment indicated support for the regulations developed in
consensus with the Committee.
The Department acknowledges the comment.

[[Page 100232]]

Comment on the Federal Regulations
One comment suggested revisiting federal regulations to allow
Tribes the ability to develop infrastructure within their lands, which
has aged and needs replacement with modernized equipment to meet future
demands and avoid potential impact on the Tribe's public safety and
health.
The Committee acknowledges the comment. Under subpart K
(Construction), this final rule provides that the Secretary may accept
funds from other departments for construction projects or programs,
subject to an interagency agreement, between the Secretaries, with
Tribal concurrence.
Comments in General
Numerous commentors thanked the Committee for their work in coming
to consensus on most of the areas at issue in the PROGRESS Act.
However, they noted a desire for the Department to lean towards the
Tribal positions on areas of non-consensus to advance Tribal self-
governance and comply with the intent of the PROGRESS Act.
The Department acknowledges these comments as federal members
committed themselves to participate in good faith during all
negotiations and discussions.
Comments on the Publication of Final Rule
Numerous comments asked the Department to ensure that the rule be
published before the sunset date of December 21, 2024.
The Department is committed to publishing the final rule before
this deadline.
Comments on the Department's Handling of Trust Responsibility
A few comments noted that the Department does not always handle
well the conflicts of interest that exist between its bureaus and its
trust responsibility to Tribes and their members. Despite the PROGRESS
Act's clear mandate that the Secretary does not waive, modify, or
diminish, in any way, the trust responsibility to Tribes and individual
Indians, and its obligation to empower Tribes, too often the interest
of non-BIA bureaus take precedence over the ever-growing needs of
Indigenous peoples.
The Department acknowledges these comments. The Department is
committed to ensuring that the trust and treaty responsibilities owed
to Tribes is met. The effect of this final rule 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.

B. Subpart Comments

Subpart A--General Provisions
Comments on Sec. 1000.10--What is the purpose and scope of this part?
A few comments were received that these provisions of title IV do
not govern any other program of self-governance other than under title
IV and do not bind any other cabinet Secretary or agency other than the
Secretary of the Interior.
While the rule does incorporate terms and processes that may be
common to self-governance at HHS authorized by title V of the ISDEAA,
and DOT authorized by 23 U.S.C. 207, it is not the intent of this 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 rule should not be construed to bind HHS or DOT to any
particular interpretation of a term or process.
Comments on Sec. 1000.15--What is the congressional policy statement
of this part?
The Committee received comments concerning the congressional policy
statement. After deliberations by the Committee, it was the consensus
of the Committee to revise Sec. 1000.15(c)(2) to replace the phrase
``create consistency and administrative efficiencies between title IV
and title V of Public Law 93-638'' with the phrase ``create
similarities and administrative efficiencies between title IV and title
V of Public Law 93-638'' to more accurately reflect the content of the
final rule.
Comments on Sec. 1000.20--What is the Secretarial policy of this part?
Several comments were received that the final rule at Sec. 1000.20
should fully implement the rules of construction required by the
PROGRESS Act. While Sec. 1000.20 incorporates elements of these
provisions, section 406(i), of the PROGRESS Act, 25 U.S.C. 5366(i),
directs that, subject to section 101(a) of the PROGRESS Act, 25 U.S.C.
5361(a) note, ``each provision of this subchapter [title IV] and each
provision of a compact or funding agreement shall be liberally
construed [by the Secretary] for the benefit of the Indian Tribe
participating in self-governance, and any ambiguity shall be resolved
in favor of the Indian Tribe.'' This interpretation is not set out with
clarity in Sec. 1000.20.
The Committee agreed with the comments and accepted most of the
language offered in the final rule. This will support the Department in
its efforts to maximize implementation of the Self-Governance Policy
and carry out title IV.
Comments on Sec. 1000.35--What happens if a court holds any provisions
of these regulations in this part invalid?
The Department added a new section Sec. 1000.35 on severability.
While this rule is intended to create streamlined and consistent
processes for Self-Governance under title IV, if a court holds any
provision of one part of this rule as finalized invalid, it should not
impact the other parts of the rule, which would remain in force. The
intent of this rule is to implement the Department's Self-Governance
program, but the rule is not an interdependent whole--other provisions
of the rule would implement that intent even if a court declared
certain provisions invalid.
Subpart B--Selection of Additional Tribes for Participation in Tribal
Self-Governance
Comment on Sec. 1000.178--[Section Does Not Exist in the Proposed
Rule]
See comment on subpart H (Negotiation Process)--Sec. 1000.1075--
When does the funding agreement become effective?
Subpart C--Planning and Negotiation Grants for BIA Programs
Comments on Sec. 1000.301--[Section Does Not Exist in the Proposed
Rule]
See comment on subpart K (Construction)--Sec. 1000.1301--What key
construction terms do I need to know?
Subpart D--Financial Assistance for Planning and Negotiation Activities
for Non-BIA Bureau Programs
The Committee did not receive comments related to this subpart.
Subpart E--Compacts
Comments on Sec. 1000.510--What is included in a self-governance
compact? And Sec. 1000.515--What provisions must be included in either
a compact or funding agreement?
The Committee did not come to agreement on Sec. 1000.510(e) and
Sec. 1000.515. The central focus of the concerns regarded satisfying
the requirements of 25 U.S.C. 5365(a), which provides that ``[a]n
Indian Tribe and the Secretary shall include in any compact or funding
agreement provisions that reflect the requirements of this title,''
i.e., title IV of the ISDEAA, addressing Tribal Self-Governance. The
view of the Tribal team and many Tribal comments is that simplified
Tribal

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assurances included in a compact and/or funding agreement that provide
that the Tribe/Consortium will comply with the requirements of title IV
is sufficient to satisfy the statutory requirement in 25 U.S.C.
5365(a). Many Tribal comments stated that the Department's
interpretation of 25 U.S.C. 5365 undermines compact negotiations and is
contrary to the PROGRESS Act and the intent of Congress in the PROGRESS
Act to streamline regulations and the content of compacts and funding
agreements.
The Tribal view is that the requirements of title IV can be better
reflected through regulatory language that states that the Tribe/
Consortium, in either their compact or funding agreement, will attest
to compliance with title IV, or otherwise state that they will carry
out the compact or funding agreement ``in accordance with the
requirements of title IV.'' The Tribal view is that Sec. 1000.510(e)
and Sec. 1000.515 are excessive and not properly tailored to reflect
the requirements of title IV.
Several Tribal comments objected to Sec. 1000.510(e) and Sec.
1000.515, and recommended those provisions be deleted. These comments
considered detailed compliance provisions in a compact or funding
agreement to be overburdensome, unnecessary, excessive, unproductive to
the good-faith negotiation process, and likely to cause delays. These
comments similarly noted the potential of these provisions to lead to
dispute resolution or litigation. Instead, the Tribal comments
recommended that compacts or funding agreements contain an attestation
affirming compliance in accordance with the requirements of the
PROGRESS Act. The Tribal comments recommended such attestation to
streamline negotiation and administrative processes and to comply with
the PROGRESS Act's rules of construction and liberal interpretation,
and with the Paperwork Reduction Act.
The Department view is that relevant provisions of the PROGRESS Act
indicate certain provisions or language 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 parties to specify an effective
date for retrocession to ``. . .become effective on the date specified
by the parties in the compact or funding agreement.''
The Department view is informed by experience when encountering a
problem in the execution of a compact or funding agreement. In such
situation, a primary question involves clarifying the agreed upon terms
of the compact or funding agreement as to a particular outcome. For
example, in a dispute about retrocession, the first area reviewed is
what does the compact or funding agreement say about retrocession.
Also, non-parities with an interest to the compact or funding
agreement, such as auditors, inspectors, courts of jurisdiction, other
federal agencies, etc., would benefit from clearly stated provisions
rather than from a general attestation. The Department believes that
clearly specifying terms in a compact and funding agreement best
addresses the expectations and interests of both parties. The
Department does not anticipate that the requirements in Sec.
1000.510(e) and Sec. 1000.515 will require new edits to most existing
compacts or funding agreements. The Federal team expects that most
existing compacts and funding agreements satisfy the requirements in
Sec. 1000.510(e) and Sec. 1000.515 if those compacts or funding
agreements restate applicable statutory requirements for the specified
topics referenced in Sec. 1000.515. The Committee did not reach
consensus on the language in Sec. 1000.510(e) and Sec. 1000.515
because the Tribal committee members did not agree with the
Department's underlying interpretation of 25 U.S.C. 5365(a). The final
rule reflects the Federal view on this matter.
Subpart F--Funding Agreements for BIA Programs
Comments on Sec. 1000.610--What must be included in a funding
agreement?
See the comments, discussion, and response above in subpart E
(Compacts). The Committee did not agree on this matter and the final
rule reflects the Federal view at Sec. 1000.610(b).
Comments on Sec. 1000.690--How does BIA determine the funding amount
to carry out inherent Federal functions?
Commentors stated their support for the proposed language in Sec.
1000.690(f)(1), reiterated the importance of consistency and uniformity
within BIA Regions, and referenced previous situations in which Tribes
feel that BIA took an expansive interpretation of IFFs and the
associated programs funds to fulfill them and thus reduced the amount
of contractable or compactable funds available to Tribes/Consortium.
The Committee acknowledges these comments as the language in
proposed rule addresses this concern by requiring ``uniformity and
consistency in the identification of inherent Federal functions.''
Comments on Sec. 1000.695--Is the amount of funds withheld by the
Secretary to cover the cost of inherent Federal functions subject to
negotiation?
Several commentors supported the views and regulatory text
articulated in the Committee's Report on proposed Sec. 1000.695,
further requesting changes to the proposed rule, to state generally
that IFFs are a permissible topic of discussion during the negotiation
process.
The Committee acknowledges these comments and declines to make the
requested changes. The Department believes that the breadth of
negotiation topics is adequately set out in the final rule.
Subpart G--Funding Agreements for Non-BIA Programs
Comments on Sec. 1000.845--Are there any non-BIA programs that may not
be included in a funding agreement?
Tribal comments urged the Department to revise proposed Sec.
1000.845 to include a core principle of the Leshy Memorandum. Many
commentors agreed and asserted that providing transparent guidance
would aid negotiators of non-BIA agreements and reflect compliance with
the Supreme Court opinion in U.S. v Mazurie, 419 U.S. 544 (1975).
Commentors asserted that inclusion in the regulations of this basic
principle would help provide parity between Tribal and Federal
representatives when negotiating agreements and would advance
fundamental Self-Governance objectives.
The Department acknowledges the comments and did not accept the
recommendation to revise Sec. 1000.845. The Department will apply the
principles of the Leshy Memorandum on a case-by-case basis when
determining whether a function requested for inclusion in the funding
agreement by a participating Tribe/Consortium is an IFF. The section
references the PROGRESS Act's definition of IFF, 25 U.S.C. 5361(6), and
the requirement in 25 U.S.C. 5363(k) that directs how the Department
evaluates such issues.
Some Tribal commentors expressed previous difficulties in
negotiating IFFs with particular agencies. Another Tribal comment
disagreed with the federal assessment that formal adoption of the

[[Page 100234]]

Leshy Memorandum would result in additional administrative process.
The Committee acknowledges these comments as Sec. 1000.845
addresses what may not be included in a funding agreement.
Two comments on specific agency decisions on IFF positions do not
go to the regulation. These comments were forwarded to the relevant
agency to consider.
Comments on Sec. 1000.885--What funds are included in a non-BIA
funding agreement?
Many commentors urged the Department to revise proposed Sec.
1000.885(b)(iii) to ensure that Tribes/Consortia receive full CSCs
under section 106(a) of the PROGRESS Act, 25 U.S.C. 5325, including
direct CSCs. Commentors requested the Department to insert the citation
in the proposed section and strike the reference to congressional
appropriations. The Department acknowledges the comments. As concerns
section 403(c) programs, 25 U.S.C. 5363(c), eligible for inclusion in a
funding agreement under the PROGRESS Act, the proposed section stated
that the funding agreement will include the following: (i) amounts
equal to the direct program or project costs the bureau would have
incurred were it to operate that program at the level of work mutually
agreed to in the funding agreement; (ii) allowable indirect costs; and
(iii) such amounts as the Tribe/Consortium and the Secretary may
negotiate for pre-award, start-up, and direct contract support costs,
or upon appropriations by Congress.
Many commentors took issue with the phrase ``or upon appropriations
of such funds by Congress'' reflected in proposed Sec.
1000.885(b)(1)(iii). Commentors believed that the reference to
Congressional appropriations will deprive Tribes/Consortia of their
full CSC funds, place a financial burden on Tribes/Consortia, and serve
as a deterrent to their negotiating the inclusion of such programs in
compacts and funding agreements.
After review of the comments and further deliberations by the
Committee, the Department accepts the recommendation. The final rule
Sec. 1000.885(b)(1)(iii) states that non-BIA bureaus determine the
amount of funding to be included in the funding agreement using the
following principles: (iii) Such amounts as the Tribe/Consortium and
the Secretary may negotiate for pre-award, start-up, and direct CSCs.
Comment on Sec. 1000.895--How does the Secretary determine the amount
of indirect costs?
A comment was received asking the Committee to clarify this
question by adding non-BIA funding to the question and initial part of
the response and by adding ``and making other adjustments required by
the PROGRESS Act'' to the end of Sec. 1000.895(a).
The Committee agreed with this comment and implemented the proposed
change into the final rule.
Subpart H--Negotiation Process
Comment on Sec. 1000.1075--When does the funding agreement become
effective?
One comment referenced Sec. 1000.178. This comment addressed
eliminating the 2001 prior rule for self-governance at Sec. 1000.178
that required once a funding agreement is signed, the effective date
would be 90 days after it is submitted to the House Subcommittee on
Native Americans and Insular Affairs and the Senate Committee on Indian
Affairs. This requirement to submit the funding agreement to the
Congressional committees was eliminated in the PROGRESS Act and
therefore not addressed in this rule. The final rule at Sec. 1000.1075
makes a funding agreement effective on the date it is executed or
otherwise begins according to the agreement terms.
The Committee acknowledges the comment with no further changes to
this subpart.
Subpart I--Final Offer
The Committee did not receive comments related to this subpart.
Subpart J--Waiver of Regulations
Comments on Sec. 1000.1240--When must the Secretary make a decision on
a waiver request?
Two commenters pointed out that the Department has two statutory
provisions that authorize Tribes to request waivers using a set
timeline for the Secretary's consideration of the waiver, 25 U.S.C.
5363(i)(2)(A) (provides 60-day review period) and 25 U.S.C. 5369(b)
(provides 120-day review period). The comment pointed out that the
proposed regulations do not reference either statutory provision, and
the process calls for a 120-day review period, which tracks with the
language at 25 U.S.C. 5369(b).
The final rule describes the timeline for the Secretary to make a
waiver decision for Tribes in Sec. 1000.1240 as the 120-day decision
review period. The Committee determined to select the 120-day timeline
to follow, as it was most closely applicable to title IV. The Committee
assumed that the conflict in the statutory provisions was a drafting
mistake that occurred when the PROGRESS Act was developed. The
Committee believes this issue can be addressed at a later date through
a technical correction or an amendment that affirms the correct
statutory provision is 25 U.S.C. 5369(b)(2).
Subpart K--Construction
Several comments expressed the view that making final
determinations under NEPA is not an inherently federal function and
should be contractable by Tribes/Consortia that comply with 25 U.S.C.
5367(b). These views referred to section 5367(b) that, subject to an
agreement with the Secretary as limited by 25 U.S.C. 5367(c), requires
a Tribe/Consortium electing to assume some Federal responsibilities
under NEPA, the NHPA and related provisions of other laws and
regulations to designate a certifying Tribal officer to represent the
Tribe/Consortium and ``to assume the status of a responsible Federal
official under those Acts, laws, or regulations.'' Under the statute,
the Tribe/Consortium must also ``accept the jurisdiction of the United
States courts for the purpose of enforcing the responsibilities of the
certifying Tribal officer assuming the status of a responsible Federal
official under those Acts, laws, or regulations.''
The comments stated that when these provisions are combined with
the Department's definition of a ``responsible official'' (43 CFR
46.30) as the individual designated ``to make and implement a decision
on a proposed action and is responsible for ensuring compliance with
NEPA,'' the Council on Environmental Quality's (CEQ) revised NEPA
regulations at 40 CFR part 1508 (May 1, 2024), that define the term
``Federal agency'' to include States, units of general local
government, and ``Tribal governments assuming NEPA responsibilities
from a Federal agency pursuant to statute,'' and the PROGRESS Act's
``rules of construction'' at 25 U.S.C. 5366(i) directing that each
provision of the PROGRESS Act ``be liberally construed for the benefit
of the Indian tribes and any ambiguity shall be resolved in favor of
the Indian tribe,'' there is compelling support for the Tribes'
position.
The comments further noted that the Department should give full
expression to all the terms of the PROGRESS Act and Congressional
intent to further empower Tribes to make final determinations under
NEPA, the NHPA, and related environmental laws, citing to 25 U.S.C.
5369(a) providing that ``the

[[Page 100235]]

Secretary shall interpret each Federal law and regulation in a manner
that facilitates the inclusion of programs in funding agreements and
the implementation of funding agreements.'' The comments stated that
this lends further support for a favorable interpretation of CEQ and
Department NEPA regulations to delegate the authority for making a
final determination and cited that the PROGRESS Act revised the
definition of the term ``construction program; construction project''
to mean a ``Tribal undertaking'' that includes ``environmental
determination.'' 25 U.S.C. 5361(2).
Additional comments noted that the PROGRESS Act was intended to
conform title IV of the PROGRESS Act with title V of the ISDEAA that
requires Tribes and Tribal Consortiums to assume Federal
responsibilities for all NEPA functions, including final
determinations, as a condition for assuming a construction program.
Commentors stated that ``some'' means something different than ``all,''
but the Department's insistence that ``some'' must therefore mean ``not
final determinations'' ignores the plain language of the word ``some,''
which simply means ``at least one.'' See, e.g. ``some'' (<a href="http://www.merriam-webster.com/dictionary/some">www.merriam-webster.com/dictionary/some</a>).
The Department acknowledges the comments and notes as a threshold
matter that while title V of the ISDEAA at 25 U.S.C. 5389(a) mandates
that Tribes take responsibility for ``all Federal responsibilities''
for NEPA functions as a condition of assuming a construction program or
project, the PROGRESS Act does not impose the same requirement and uses
different terminology at 25 U.S.C. 5367(b), providing for a ``Tribal
Option to Carry Out Certain Federal Environmental Activities,''
including ``some Federal responsibilities'' involving NEPA and related
functions, under an ``agreement by the Secretary,'' as limited by 25
U.S.C. 5367(c).
The Department will decide what functions are inherently Federal on
a case-by-case basis after consultation with the Office of the
Solicitor. For current guidance on inherently Federal functions (IFF)
determinations, please see Solicitor's memorandum dated May 17, 1996.
The Memorandum is available from the Office of Self-Governance upon
request. The Department shall provide information on why specific
functions have been determined to be inherently Federal to Tribes and
Consortia in accordance with this part.
The Department recognizes that title V of the ISDEAA delegates to
Indian Tribes authority for final environmental determinations for
construction projects. In negotiating with a Tribe/Consortium to
include a construction project under this subpart, and how a Tribe/
Consortium may assume some Federal responsibilities under 25 U.S.C.
5367(b), the Department will address the differences between title V
(25 U.S.C. 5389(a)) and title IV (25 U.S.C. 5367(b) of the ISDEAA
through discussions with the Office of the Solicitor and in accordance
with section 5(f) of E.O. 14112, and the PROGRESS Act's rules of
construction and interpretation.
Comment on Sec. 1000.1301--What key construction terms do I need to
know?
There were comments received that referenced Sec. 1000.301.
However, the comment addresses Sec. 1000.1301 in subpart K
(Construction) in the proposed rule that the final rule should include
a definition of ``Categorical Exclusion'' to be defined as the same
definition found in the Department of Health and Human Services
construction definitions found at 42 CFR 137.280. The Department should
consider including in the final rule the definition set out in CEQ's
revised 40 CFR 1508 regulations issued on May 1, 2024.
The Department acknowledges these comments, and the Committee
declined to add the definition. First, it is established by another
agency and could change over time, potentially resulting in unnecessary
confusion. Additionally, the potential scope of projects requiring NEPA
compliance under these regulations encompasses multiple bureaus within
the Department, as opposed to the limited scope of projects at the
Department of Health and Human Services. Finally, each Departmental
bureau maintains a list of categorical exclusions relevant to projects
it oversees and these change over time, as well. See Department of the
Interior Manual (at Part 516).
Subpart L--Federal Tort Claims
The Committee did not receive comments related to this subpart.
Subpart M--Reassumption
The Committee did not receive comments related to this subpart.
Subpart N--Retrocession
The Committee did not receive comments related to this subpart.
Subpart O--Trust Evaluation
The Committee did not receive comments related to this subpart.
Subpart P--Reports
The Committee did not receive comments related to this subpart.
Subpart Q--Operational Provisions
The Committee received one comment related to this subpart. In
Sec. 1000.2130, the rule sets forth how much time the Federal
Government has to make a claim against a Tribe/Consortium related to
the disallowance of cost, based on an audit. The comment suggested the
audit be particular to a title IV audit. The Committee agreed and title
IV was inserted before the word audit to clarify this provision applies
to title IV audits.
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.
Three Tribal comments requested greater flexibility in the appeals
process generally.
Several Tribal comments offered draft language to the regulatory
text that would provide Tribes/Consortia with the option to file an
administrative appeal with either the Interior Board of Indian Appeals
(IBIA) or an appropriate bureau head or Assistant Secretary of disputes
with the Department arising before execution of a funding agreement,
amendment to a funding agreement, or compact and certain other disputes
related to self-governance. Specifically, comments proposed deleting
Sec. 1000.2302 (``What does `title-I eligible programs' mean in this
subpart?'') to remove any reference to ``title-I eligible programs''
within the subpart, and to strike and replace Sec. 1000.2351 (``To
Whom May a Tribe/Consortium Appeal a Decision under Sec. 1000.2345?'')
with language allowing for Tribes/Consortia to file an eligible appeal
under the subpart with either the IBIA or an appropriate bureau head/
Assistant Secretary. The comments noted that adopting this position
would address current delays under the IBIA system and the negative
impacts from such delays. Comments noted that the Department should
adopt this change and resolve this issue of non-consensus in the
finalized rule to comply with E.O. 14112 and the PROGRESS Act's rules
of construction. Some comments also recommended these revisions to the
final rule to build capacity for an administrative appeals process with
the bureau head/Assistant Secretary level to promote predictability,
reduce uncertainty, and use the least

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burdensome tools to achieve regulatory ends as set out in E.O. 12866,
as supplemented by E.O. 13563.
The Committee agreed to revise the subpart to provide that Tribes/
Consortia may elect to file an appeal of eligible pre-award disputes
with an appropriate bureau head or Assistant Secretary through the
following revisions to the subpart's current language: (1) deleting
Sec. 1000.2302 to remove any references to ``title-I eligible
programs'' within the subpart; (2) revising Sec. 1000.2351(b) to add
the term ``initial'' in the phrase ``the bureau head will decide
initial appeals relating to these pre-award matters;'' and (3) striking
the language in Sec. 1000.2351(b)(i), ``Programs that are not PSFAs
that the Secretary provides for the benefit of Indians because of their
status as Indians without regard to the agency or office of the
Department within which the PSFAs have been performed.''
The Committee added a new Sec. 1000.2357 (``Which official is the
appropriate bureau head or Assistant Secretary for purposes of subpart
R?''). Section 1000.2357(a) provides a chart indicating the relevant
official to whom a Tribe/Consortium may file its initial request for
appeal when exercising its appeal rights to the bureau head/Assistant
Secretary under Sec. 1000.2351 for any BIA Program. Section
1000.2357(b) states that the Assistant Secretary for Indian Affairs is
the appropriate Assistant Secretary for reviewing appeals for BIA
Programs in accordance with Sec. 1000.2370. Finally, Sec.
1000.2357(c) identifies the appropriate bureau head/Assistant Secretary
for non-BIA Program appeals pursuant to Sec. 1000.2351. In accordance
with Sec. 1000.2355, the Department will identify the appropriate
bureau head/Assistant Secretary in any required information.
Subpart S--Conflicts of Interest
The Committee did not receive comments related to this subpart.
Subpart T--Tribal Consultation Process
The Committee did not receive comments related to this subpart.

C. Use of Received Feedback

The Committee used all received feedback to inform this final rule
and made changes to this final rule based on received feedback.

VI. Summary of Changes by Subpart Into the Final Rule

The following summary describes each subpart of the Department's
final regulations to implement the PROGRESS Act. The Department's
amendments incorporated comments on the proposed rule received during
Tribal consultation, as discussed above in Section III, ``Summary of
Comments Received,'' as well as received during the E.O. 12866
interagency review process. The Department, in negotiation with the
Committee makes these changes in the final rule.

A. Subpart A--General Provisions

This subpart contains the authority, purpose and scope of the final
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 final 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. This subpart identifies when and how to implement Indigenous
Knowledge in projects. Finally, this subpart provides that should a
court hold any provision of one part of this rule as finalized invalid,
it should not impact the other parts of the rule.
Amendments to Sec. 1000.15--What is the congressional policy statement
of this part?
The Committee revised the phrase ``create consistency and
administrative efficiencies between title IV and title V of Pub. L. 93-
638'' with the phrase ``create similarities and administrative
efficiencies between title IV and title V of Public Law 93-638'' to
more accurately reflect the content of the final rule.
Amendments to Sec. 1000.20 What is the Secretarial policy of this
part?
The Committee added language to the Secretarial policy of this part
to assure that this part be interpreted to facilitate inclusion of
programs in funding agreements and the implementation of funding
agreements. The proposed edits include language that is added to
maximize implementation of the secretarial policy in all bureaus of the
Department, and to ensure that where provisions of funding agreements
and compacts are ambiguous that the ambiguity be resolved in favor of
the Tribe or Consortium. The Committee also added a provision to
include, recognize, and support Indigenous Knowledge to be applied when
performing PSFAs. The edits were made to improve clarity and respond to
comments received during the government-to-government consultation.
Amendments to add Sec. 1000.35--What happens if a court holds any
provisions of these regulations in this part invalid?
The Department added a new section to make explicit its intent that
if a court were to hold any provisions of the final rule invalid, that
provision would be severable and the remaining provisions of the rule
should remain in force. As noted in the Preamble, the intent of this
rule is to implement the Department's Self-Governance program, and the
several provisions of this rule can continue to effectuate that intent
even if one or more of those provisions were declared to be invalid by
a court.

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 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 final 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 final rule provides that the first 50

[[Page 100237]]

Tribes/Consortia who apply, and are determined to be eligible, will
have the option to participate.
This final rule also stipulates that a Tribe/Consortium may be
selected to negotiate a funding agreement for non-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 final rule refers to
complete or partial 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.
The Committee did not implement changes to subpart B.

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. 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 to complete the planning phase
requirement for joining self-governance.
Amendments to Sec. 1000.335--What are the Secretary's responsibilities
upon a decision not to award a planning or negotiation grant?
The Committee implemented a change in the wording in Sec. 1000.335
to address the Secretary's decision regarding the denial of a planning
or negotiation grant from ``declining to award'' to ``denying'' a
planning or negotiation grant. This was merely to clarify that
provision.

D. Subpart D--Financial Assistance for Planning and Negotiations
Activities for Non-BIA Bureau 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.
The Committee did not implement changes to subpart D.

E. Subpart E--Compacts

The prior rule at 25 CFR part 1000 that became effective on January
16, 2001 (``2001 prior rule''), included provisions addressing compacts
at Sec. Sec. 1000.161 through 1000.165. The Committee amends and moves
those sections to the new subpart E (Compacts) and includes additional
sections. This new subpart is 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 2001 prior rule included a model format for a compact at
Appendix A. The Committee decided not to include a model format for a
compact and Appendix A in this final rule. The rationale is the model
was no longer needed in the rule and a sample could be posted on an OSG
website to provide assistance for Tribes joining self-governance and
updated as circumstances change.
This subpart also 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.
The Committee implements this change from the 2001 prior rule in
the final rule with additional clarifying edits to improve readability.

F. Subpart F--Funding Agreements for BIA Programs

This subpart describes the components of a funding agreement for
BIA programs. The 2001 prior rule includes ``Subpart E--Annual Funding
Agreements for Bureau of Indian Affairs Programs.'' The final rule
amends the title of the subpart and moves it within this rule. The
title of the subpart is amended to ``Funding Agreements for BIA
Programs'' because title IV now excludes the term ``Annual Funding
Agreements'' and uses in its place, ``Funding Agreements.'' The acronym
``BIA'' is proposed in lieu of ``Bureau of Indian Affairs'' because BIA
is now a defined term within subpart A (General Provisions). The final
rule relocates the subpart from subpart E of the 2001 prior rule to
become subpart F of the final rule because a new subpart E for compacts
is inserted.

[[Page 100238]]

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 IFFs \2\ that
cannot be included in a funding agreement. This subpart also
establishes the process for determining the funding amount to carry out
IFFs and clarifies that the amount withheld to carry out IFFs can be
negotiated between the Secretary and a Tribe/Consortium.
---------------------------------------------------------------------------

\2\ 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 IFF. 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.
Amendments to Sec. 1000.690--How does BIA determine the funding amount
to carry out inherent Federal functions?
The Committee implemented two changes to this section from the
proposed rule to the final rule. The first change corrected an
unintentional omission of ``Consortium'' in subsection (d). The final
rule is now consistent with other parts of the section to state
``Tribes/Consortium.'' The second change addresses a situation where
funds are properly suballocated to another program to perform a
function essential to the program under negotiation. By revising
subsection (g), there is reduced potential for disagreement in a
situation where funds are appropriately utilized across program lines.

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

[[Page 100239]]

set forth in Joint S.O. 3403. This section was renamed from subpart F.
Funding agreements for non-BIA programs are legally binding and
mutually enforceable agreements between a bureau and a Tribe/Consortium
participating in self-governance that contain a 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 PSFAs administered by
the Department other than through the BIA that are otherwise available
to Indian Tribes or Indians and may also include other PSFAs, 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 CSCs associated with administration of
the PSFAs that are transferred in non-BIA agreements.
Amendments to Sec. 1000.885--What funds are included in a non-BIA
funding agreement?
Pursuant to changes that urged the Department to revise proposed
Sec. 1000.885(b)(iii) to ensure that Tribes/Consortia receive full
CSCs under section 106(a) the PROGRESS Act, 25 U.S.C. 5325, including
direct CSCs, the Committee accepted the recommendations an amended the
proposed rule.
The final rule Sec. 1000.885(b)(1)(iii) states that non-BIA
bureaus determine the amount of funding to be included in the funding
agreement using the following principles: ``(iii) Such amounts as the
Tribe/Consortium and the Secretary may negotiate for pre-award, start-
up and direct contract support costs.''
Amendments to Sec. 1000.895--How does the Secretary determine the
amount of indirect costs?
The Committee clarified Sec. 1000.895 by adding the phrase ``non-
BIA funding'' to the question and initial part of the response and
discussed the recommendation of adding ``and making other adjustments
required by the PROGRESS Act'' to the end of (a). The Committee
accepted the first edited but rejected the latter suggestion.

H. Subpart H--Negotiation Process

The 2001 prior rule includes ``Subpart G--Negotiation Process for
Annual Funding Agreements.'' The final rule amends the title of this
subpart and moves it within this final rule. The subpart title is
amended to ``Negotiation Process'' because the amended subpart
addresses the process for negotiating compacts and funding agreements.
The location of the subpart within this final rule is to be moved from
subpart G of the 2001 prior rule to become subpart H because a new
subpart E for compacts is inserted. Items addressed in subpart H of the
2001 prior rule are to be addressed in new subpart Q (Operational
Provisions).
Sections 1000.161 through 1000.165 of the 2001 prior rule,
addresses the negotiation of compacts and are 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 agree on
such terms and conditions following the completion of negotiations.
This subpart also establishes 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 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.
Amendments to Sec. 1000.1035--What steps does the bureau take after a
Request to Initiate the Information Phase is submitted by a Tribe/
Consortium?
The Committee clarified this provision by using the term
``applicable laws'' to capture information requests that implicate the
Privacy Act, Freedom of Information Act, Health Insurance Portability
and Accountability Act, and other laws that address the release of
sensitive information. In addition, the Freedom of Information Act
includes a number of items for possible dissemination, and the
Committee decided to identify records that would encompass the numerous
possible types of information.

I. Subpart I--Final Offer

The final rule inserts 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 2001 prior rule.
The new subpart is inserted at this location to immediately follow
the amended subpart H (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
PROGRESS 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

[[Page 100240]]

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 to the email address listed in
the final rule or mailed to the Director at OSG's headquarters.
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.
The Committee did not implement changes to subpart I.

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 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.
The Committee did not implement changes to subpart J.

K. Subpart K--Construction

This subpart applies to all construction programs and projects,
both BIA and non-BIA. The subpart identifies construction program
activities that are subject to subpart K, such as design, construction
management services, actual construction; and those that are not, such
as planning services, operation and maintenance activities, and certain
construction programs that cost less than $100,000. All final rule
provisions apply to this subpart except where they are inconsistent; in
those instances, the 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 to assume the status of a responsible Federal
official under National Environmental Policy Act (NEPA), the National
Historic Preservation Act (NHPA), and related provisions of other laws
and regulations and accepts the jurisdiction of the United States
courts for the purpose of enforcing the responsibilities of the
certifying Tribal officer assuming the status of a responsible Federal
official under those Acts, laws, or regulations.
Federal Acquisition Regulations provisions are specifically not
incorporated into this final rule; however, they may be negotiated by
the parties in the funding agreement. 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, or ``IAA,'' between the Secretaries, with
Tribal concurrence.
Subsequent to the Committee approving its report to the Secretary,
including non-consensus issues in this subpart, the Council on
Environmental Quality (CEQ) revised its NEPA implementing regulations,
40 CFR parts 1500 through 1508, which are effective July 1, 2024.\3\
The Department invited comment on whether to revise the proposed
regulatory text in any final rule for consistency with NEPA and the
NEPA implementing regulations. For example, (1) updating proposed 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 proposed 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.
---------------------------------------------------------------------------

\3\ See Council on Environmental Quality (CEQ), NEPA
Implementing Regulations Revisions Phase 2, Final Rule, 88 FR 35442
(May 1, 2024).
---------------------------------------------------------------------------

Amendments to Sec. 1000.1305--What construction projects and programs
included in a funding agreement or construction project agreement are
subject to this subpart?
The Committee clarified the provision in subsection (b)(5) based on
consultation recommendations by clarifying the exemption involving
Public Law 102.477 funded projects and deleting ``Child Care
Development Fund.''
Amendments to Sec. 1000.1385--What is the typical environmental review
process for construction projects?
The Committee revised text based on recommendations of the Council
on Environmental Quality involving documenting assessment of
``reasonably foreseeable'' environmental effects in Sec.
1000.1385(a)(2) and deleting the term ``potential'' from the
subsection. The Committee also revised the text on Sec.
1000.1385(a)(5) to clarify when applying a categorical exclusion under
NEPA and the required preparation of an environmental assessment or
environmental impact statement.

[[Page 100241]]

Amendments to Sec. 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
law and regulations?
The Committee added language in the preamble and revised the
provision to be consistent with terminology in the recently updated CEQ
regulations concerning ``reliable data sources.''
Amendments to Sec. 1000.1445--May the Secretary suspend construction
activities under the terms of a funding agreement or construction
project agreement under title IV of the ISDEAA?
The Committee revised text based on recommendations to distinguish
the provisions as applying only to the ISDEAA title IV construction
projects in the title, subsection (a) and (b).
Amendments to Sec. 1000.1455--What happens when a Tribe/Consortium,
suspended under Sec. 1000.1445 for substantial failure to carry out
the terms of a funding agreement that includes a construction project
or program or a construction project agreement under title IV of the
ISDEAA without good cause, does not correct the failure during the
suspension?
The Committee revised text based on recommendations to distinguish
the provisions as applying only to the ISDEAA title IV construction
projects.

L. Subpart L--Federal Tort Claims

This subpart explains the applicability of the Federal Tort Claims
Act.
Amendments to Sec. 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?
The Committee reviewed the applicability of Federal tort claim
coverage for ``permanent and temporary employees'' and implemented
qualifying language to clarify that these employees would need to be
employees of a Tribe/Consortium.

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 reassumptions 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 PROGRESS
Activities to be performed after reassumption has been completed, and
the effect of reassumption on other provisions of a funding agreement.
The Committee did not implement changes to subpart M.

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.
The Committee did not implement changes to subpart N.

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 final 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.
The Committee did not implement changes to subpart O.

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).
The Committee did not implement changes to subpart P.

Q. Subpart Q--Operational Provisions

The 2001 prior rule includes ``Subpart Q--Miscellaneous
Provisions.'' The final rule amends 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 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,
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 amended to comply 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 updated throughout. New sections within this subpart address new
provisions within the PROGRESS Act, as amended, such as Sec. 1000.2130
that addresses claims against a Tribe/Consortium in relation to
disallowance of costs, and limitation of costs.
Amendments to Sec. 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?
The Committee agreed to respond to the comment by adding that the
audit

[[Page 100242]]

referred to in this section would be an audit under title IV.

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.
The Committee revised the subpart to provide that that Tribes/
Consortia may elect to file an appeal of eligible pre-award disputes
with an appropriate bureau head or Assistant Secretary through the
following revisions to the subpart's current language. The Committee
institutes these revisions to address comments received requesting that
Tribes/Consortia have the option to file an appeal of a pre-award
dispute with an appropriate bureau head/Assistant Secretary or the IBIA
in order to provide flexibility and predictability for Tribes/Consortia
in initiating pre-award appeals under this subpart.
Amendments to Sec. 1000.2302--What does ``title-I eligible programs''
mean in this subpart?
The Committee deleted this section to remove any references to
``title-I eligible programs'' within the subpart to eliminate the
distinction between title-I eligible programs and non-Title-I eligible
programs so that Tribes/Consortia may file an appeal of all pre-award
disputes covered under this subpart with an appropriate bureau head/
Assistant Secretary or the IBIA.
Amendments to Sec. 1000.2351--To Whom may a Tribe/Consortia appeal a
decision made before the funding agreement, amendment to the funding
agreement, or compact is signed?
The Committee implemented a change in the wording of Sec.
1000.2351(b) to add the term ``initial'' in the phrase ``the bureau
head will decide initial appeals relating to these pre-award matters,''
and strike the language in Sec. 1000.2351(b)(i), ``Programs that are
not PSFAs that the Secretary provides for the benefit of Indians
because of their status as Indians without regard to the agency or
office of the Department within which the PSFAs have been performed''
to revise the subpart so that Tribes/Consortia may file appeals of pre-
award disputes with an appropriate bureau head/Assistant Secretary.
Amendments to add Sec. 1000.2357--Which official is the appropriate
bureau head or Assistant Secretary for purposes of subpart R?
The Committee added a new section providing a chart indicating the
relevant official to whom a Tribe/Consortium may file its initial
request for appeal when exercising its appeal rights to the bureau
head/Assistant Secretary under Sec. 1000.2351 for any BIA Program.
This section provides that the Assistant Secretary for Indian Affairs
is the appropriate Assistant Secretary for reviewing appeals for BIA
Programs in accordance with Sec. 1000.2370. Finally, the section
identifies the appropriate bureau head/Assistant Secretary for non-BIA
Program appeals pursuant to Sec. 1000.2351. The Committee implemented
this section to provide clarity regarding the relevant official for any
BIA Program to whom a Tribe/Consortia would file an appeal.

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.
The Committee did not implement changes to subpart S.

T. Subpart T--Tribal Consultation Process

This subpart describes the process for engaging in consultations
related to self-governance with Tribes/Consortia. The 2001 prior rule
includes ``Subpart I--Public Consultation Process.'' The final rule
removes and renames 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 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 may waive
applicable notice requirements at the request of a Tribe/Consortium
pursuant to subpart J (Waiver of Regulations) in such urgent
situations.
The Committee did not implement changes to subpart T.

V. Procedural Requirements

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

E.O. 12866, as amended by E.O. 14094, provides that the Office of
Information and Regulatory Affairs (OIRA) in OMB will review all
significant regulatory actions. OIRA has determined that this rule is a
significant regulatory action.
E.O. 14094 amends E.O. 12866 and reaffirms the principles of E.O.
12866 and E.O. 13563 and states that regulatory analysis should
facilitate agency efforts to develop regulations that serve the public
interest, advance statutory objectives, and be consistent with E.O.
12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021
(Modernizing Regulatory Review). Regulatory analysis, as practicable
and appropriate, shall recognize distributive impacts and equity, to
the extent permitted by law.
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 executive order 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

[[Page 100243]]

public participation and an open exchange of ideas. The Department has
developed this final rule in a manner consistent with these
requirements.
E.O. 12866 Interagency Feedback Received on Proposed Rule
The Department new regulations will update the manner in which it
implements self-governance at the Department. This Notice discussed the
rationale for the changes that should have no major impacts on
regulations or programs administered by other agencies. Overall, the
proposed rule was 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.
During OIRA's E.O. 12866 review, the Department received comments
expressing concerns about how the Department's proposed rule might
intersect with another agency's self-governance regulations and
program. The Department sought 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.
Throughout the E.O. 12866 interagency process, the Department
worked collaboratively with OMB, OIRA, and the agencies providing
comment. Prior to the publication of the proposed rule, 89 FR 57524,
the Department communicated regularly with the relevant agencies
regarding legal and policy interests that the other agencies had about
the proposed rule, 89 FR 57524. These robust discussions continued
after the publication of the proposed rule, 89 FR 57524. The Department
provided information on the nature of the rulemaking process to the
relevant agencies and engaged in a good faith effort to make
concessions and compromise where possible. Multiple drafts of proposed
language were exchanged. Regular communication between the Committee,
the Department leadership, and relevant agency were able to reach
consensus and compromise on the language of the final rule.

B. Regulatory Flexibility Act

The Department certifies that this final rule will 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. The
Department has evaluated the effects of this final rule on small
entities, such as local governments and businesses.
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. 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 Tribal Self-
Governance Program.
As stated in the Preamble to the Rule, ``this rule [will] update
regulations implementing Tribal Self-Governance. This final 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 final
rule will have a negligible cost burden for Tribes currently
participating in Self-Governance, nominal startup costs for Tribes not
currently participating in Self-Governance, and some possible
negligible new costs to the Federal government absorbed by internal
transfers.''
The scope of the final rule provides regulatory implementation of
legislative amendments to title IV of Public Law 93-638, the Tribal
Self-Governance Program. The final rule implements the more
accommodating selection and eligibility criteria for Indian Tribes and
Tribal organizations that wish to join the Tribal Self-Governance
Program. The final rule supports the authority for continuing existing
funding agreements, reduces effort for subsequent funding agreements,
and provides administrative process for final offers when the parties
are unable to reach agreement when negotiating a compact or funding
agreement. The final rule applies the amended statute's new standard
for the Department's burden of proof for certain decisions and appeal
processes, it allows Tribes to use the prudent investment standard, and
it updates the rules for construction programs and projects awarded
through self-governance funding agreements. Rather than by executive
order, the final rule introduces in regulation a regulatory process for
consultation with self-governance Tribes on self-governance matters
within the Department.
Based on the evaluation, the Department anticipates that this
action will not have a significant economic impact on small entities.
The Department only foresees this final 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)

This final rule does not meet the criteria in 5 U.S.C. 804(2).
Specifically, it:
(a) Would not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 requires that agencies
prepare a written statement analyzing and estimating anticipated costs
and benefits before issuing any rule that may result in the expenditure
by State, local, and Tribal Governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. See 2 U.S.C. 1532. The PROGRESS Act further
requires that the agency publish a summary of such a statement with the
agency's proposed and final rules.
This final rule does not impose an unfunded mandate on State,
local, or Tribal governments or the private sector of more than $100
million per year. The final rule does not have a significant or unique
effect on State, local, or Tribal governments or the private sector
because this final rule affects only individual Indians and Tribal
governments that petition the Department to take land into trust for
their benefit. 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 final rule does 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 final rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement. A federalism summary impact
statement is not required.

[[Page 100244]]

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

This final rule complies with the requirements of E.O. 12988.
Specifically, this final 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
regulations be written in clear language and contain clear legal
standards.

H. Reforming Federal Funding and Support for Tribal Nations (E.O.
14112)

E.O. 14112 restates that it is the policy of the United States to
design and administer Federal funding and support programs for Tribal
Nations, consistent with applicable law and to the extent practicable,
in a manner that better recognizes and supports Tribal sovereignty and
self-determination. This policy is in keeping with the government's
trust and treaty obligations to Tribal Nations, and the commitment to
advancing Tribal sovereignty.
E.O. 14112(5) requires agencies to take steps ``to increase the
accessibility, equity, flexibility, and utility of Federal funding and
support programs for Tribal Nations, while increasing the transparency
and efficiency of Federal funding processes to better live up to the
Federal Government's trust responsibilities and support Tribal self-
determination,'' by ``increase[ing] the accessibility, equity,
flexibility, and utility of Federal funding and support programs for
Tribal Nations, while increasing the transparency and efficiency of
Federal funding processes to better live up to the Federal Government's
trust responsibilities and support Tribal self-determination.''
Further, ``implementation efforts shall appropriately maintain or
enhance protections afforded under existing Federal law and policy,
including those related to treaty rights and trust obligations, Tribal
sovereignty and jurisdiction, civil rights, civil liberties, privacy,
confidentiality, Indigenous Knowledge, and information access and
security.''
Throughout the negotiated rulemaking process, the Department
remained committed to the obligations required under E.O. 14112, trust
and treaty obligations to Tribes, and advancing self-governance and
Tribal sovereignty.

I. 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. The Department evaluated this final rule under
its consultation policy and under the criteria in E.O. 13175 and has
hosted consultation with federally recognized Indian Tribes in
preparation of this final rule, including through a Dear Tribal Leader
letter delivered to every federally recognized Tribe in the country,
and through four consultation sessions held on July 15, 17, 19, and 22,
2024. Following the consultation sessions, the Department accepted
written comments until August 14, 2024.
The Department developed this rule through a negotiated rulemaking
process, with both Tribal and Federal representatives, which the
Department asserts fulfills its obligations to consult on the text of
this final rule. The Tribal and Federal representatives reached
consensus on the final rule text, except for the few areas of
disagreement discussed above.

J. Paperwork Reduction Act

This final rule contains a revision to a collection of information
which is currently approved under the Office of Management and Budget
(OMB) Control Number 1076-0143 through February 29, 2026. The revisions
have been submitted to OMB for review and approval under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We 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.
Abstract: 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 PROGRESS 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 final rule.
For this ICR Reference No. 202410-1076-001, associated with final
rule, the Department modified burden estimates within five (5) ICRs and
added seven (7) ICRs to the information collection. There were ten (10)
ICRs within this information collection that remained unchanged. The
following revision to the existing information collections require
approval by OMB.
<bullet> Summary of Requested Revision: Projected increase in
respondent participation and total number of annual respondents.
Estimates have been increased to accurately reflect the amount of work
associated with the total annual reporting and recordkeeping burden.
This information will be used to justify a budget request submission on
their behalf and to comport with section 405 of the PROGRESS Act that
calls for the Secretary to submit an annual report to the Congress. For
this ICR Reference No. 202410-1076-001, associated with Final Rule, RIN
1076-AF62, OSG made modifications to the burden estimates within six
(6) ICRs. In addition, OSG added seven (7) ICRs to this information
collection. Finally, there were nine (9) ICRs within this information
collection that remained unchanged.
<bullet> Modified ICs:

[cir] Subpart B: Planning report
[cir] Subpart C: Planning and Negotiation Grants
[cir] Subpart D: Financial Assistance for Planning and Negotiations
[cir] Subpart E: Compacts
[cir] Subpart K: Construction
[cir] Subparts M and N: Notice to retrocede; and Reassumption

<bullet> New ICs:

[cir] Subpart F: Funding Agreements for BIA Programs
[cir] Subpart G: Funding Agreements for Non-BIA Programs
[cir] Subpart L: Federal Tort Claims
[cir] Subpart O: Trust Evaluation
[cir] Subpart Q: Operational Provisions
[cir] Subpart R: Appeals
[cir] Subpart T: Tribal Consultation Process

<bullet> Unchanged ICs:

[cir] Subpart B: Admission to applicant pool
[cir] Subpart B: Withdrawal from consortium FA
[cir] Subpart B: Withdrawal from consortium to become member of
applicant pool
[cir] Subpart H: Letter of interest and supporting documents for FA
[cir] Subpart H: Request to negotiate a FA
[cir] Subpart H: Request to negotiate successor FA
[cir] Subpart I: Final Offer
[cir] Subpart J: Request for waiver
[cir] Subpart P: Annual self-governance report

<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

[[Page 100245]]

Tribal Consortia participating in or wishing to enter into Tribal Self-
Governance.
<bullet> Total Estimated Number of Annual Respondents: 492.
<bullet> Total Estimated Number of Annual Responses: 588.
<bullet> Estimated Completion Time per Response: Varies from 1 to
400 hours.
<bullet> Total Estimated Number of Annual Burden Hours: 11,276
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: $20,800 for
cost associated with attending training and hiring consultants to
provide services for entering the Self-Governance Program.
<bullet> Annual Costs to Federal Government: $1,725,535.
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#8ae9e5e4f9ffe6feebfee3e5e4cae8e3eba4ede5fc">[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>.

K. National Environmental Policy Act (NEPA)

This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required
because the rule is covered by a categorical exclusion under 43 CFR
46.210(i): ``Policies, directives, regulations, and guidelines: that
are of an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case.'' The
Department also determined that the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under the National Environmental Policy Act.

L. Energy Effects (E.O. 13211)

This final rule is not a significant energy action under the
definition in E.O. 13211; the rule is not likely to have a significant
adverse effect on the supply, distribution, or use of energy, and the
rule has not otherwise been designated by the Administrator of OIRA as
a significant energy action. A Statement of Energy Effects in not
required.

M. Clarity of This Regulation

The Department is required by E.O. 12866 (section 1(b)(12)), 12988
(section 3(b)(l)(B)), and E.O. 13563 (section l(a)), and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This final rule meets the criteria of:
(a) Be logically organized;
(b) Use the PROGRESS 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.

List of Subjects in 25 CFR Part 1000

Administrative practice and procedure, Grant programs--Indians,
Indians, Indian Tribes, Reporting and recordkeeping requirements,
Tribal Consortium.

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

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

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?
1000.35 What happens if a court holds any provisions of these
regulations in this part invalid?
Subpart B--Selection of Additional Tribes for Participation in Tribal
Self-Governance
Sec.

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?

[[Page 100246]]

1000.195 May a Tribe/Consortium be selected to negotiate a funding
agreement under section 403(b)(2) of the Act 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
Sec.
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
Sec.
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 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
Sec.
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
Sec.
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

[[Page 100247]]

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
Sec.
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 for a non-BIA funding agreement?
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?
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
Sec.
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
Sec.
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?

[[Page 100248]]

Subpart J--Waiver of Regulations
Sec.
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

Sec.
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?

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
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
the terms of a funding agreement or construction project agreement
under title IV of the ISDEAA?
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 a
funding agreement that includes a construction project or program or
a construction project agreement under title IV of the ISDEAA
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

[[Page 100249]]

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
Sec.
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
Sec.
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?
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
Sec.
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
Sec.
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?

[[Page 100250]]

1000.1975 May the Department conduct more than one trust evaluation
per Tribe per year?
Subpart P--Reports
Sec.
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
Sec.
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 Secretary does not
transfer sufficient funds?
Subpart R--Appeals
Sec.
1000.2301 What is the purpose of 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/Consortia appeal a decision under
Sec. 1000.2345?
1000.2355 How does a Tribe/Consortium know where and when to file an
appeal?
1000.2357 Which official is the appropriate bureau head or Assistant
Secretary for purposes of subpart R?

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
Sec.
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?

[[Page 100251]]

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
Sec.
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?

Authority: 25 U.S.C. 5373

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.
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

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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, 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) PROGRESS Act policy. 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 similarities 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-

[[Page 100253]]

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, including this
part, 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, to maximize implementation of the Self-Governance policy and
carry out title IV and this part in a manner that maximizes the policy
of Tribal self-governance.
(i) That, subject to Public Law 116-180, title I, Sec. 101(a),
Oct. 21, 2020, 134 Stat. 857, (25 U.S.C. 5361 Note), each provision of
title IV and each provision of a compact or funding agreement shall be
liberally construed for the benefit of the Tribe or Consortium
participating in self-governance, and that any ambiguity be resolved in
favor of the Tribe or Consortium to facilitate the inclusion of
programs in each funding agreement authorized.
(j) To timely enter into funding agreements under title IV,
whenever possible.
(k) 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. This
includes recognition of and support for Indigenous Knowledge, and the
Tribes' and Tribal Consortia's authority to apply such knowledge when
performing PSFAs under this part. 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.
(l) 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.
(m) 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.
(n) 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 regulations under this part to the extent a regulatory
provision is not waived by the Secretary.

Sec. 1000.35 What happens if a court holds any provisions of these
regulations in this part invalid?

If a court holds any provisions of these regulations in this part
or their applicability to any person or circumstances invalid, the
remainder of the regulations and their applicability to other people or
circumstances are intended to operate to the fullest possible extent.

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; or
(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-

[[Page 100254]]

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; or
(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.

[[Page 100255]]

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) of the Act 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,

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