Self-Governance PROGRESS Act Regulations

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 1000

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

RIN 1076-AF62

Self-Governance PROGRESS Act Regulations

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

•

Proposed Regulations:

Please submit your comments on or before August 22, 2024.

•

Tribal Government-to-Government Consultations:

The Department will conduct in-person consultation sessions with federally recognized Tribes on July 15, 2024, July 17, 2024, and July 19, 2024. Additionally, the Department will conduct a virtual consultation session with federally recognized Tribes on July 22, 2024.

•

Information Collection Requirements:

If you wish to comment on the information collection requirements in this proposed rule, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this proposed rule in the

Federal Register

. Therefore, comments should be submitted to OMB (see “Information Collection Requirements” section below under

ADDRESSES

) by August 14, 2024.

ADDRESSES:

All comments received may be posted without change to

https://www.regulations.gov,

including any personal information provided. You may submit comments by any one of the following methods.

•

Federal eRulemaking Portal:

Please visit

https://www.regulations.gov.

Enter “RIN 1076-AF67” in the web page's search box and follow the instructions for submitting comments.

•

Email:

Please send comments to

consultation@bia.gov

and include “RIN 1076-AF62—25 CFR part 1000” in the subject line of your email.

•

Mail:

Please mail comments to Department of the Interior, Office of Regulatory Affairs and Collaborative Action, 1001 Indian School Road NW, Suite 229, Albuquerque, NM 87104.

•

Accessibility:

On request to the program contact person listed under

FOR FURTHER INFORMATION CONTACT

, individuals can obtain this document in an alternate format, usable by people with disabilities, at the Office of the Assistant Secretary—Indian Affairs, Room 4660, 1849 C Street NW, Washington, DC 20240.

•

Information Collection Requirements:

Written comments and recommendations for the proposed information collection request (ICR) should be sent within 30 days of publication of this notice to the Office of Information and Regulatory Affairs (OIRA) through

https://www.reginfo.gov/public/do/PRA/icrPublicCommentRequest?ref_nbr=202405-1076-004

or by visiting

https://www.reginfo.gov/public/do/PRAMain

and selecting “Currently under Review—Open for Public Comments” and then scrolling down to the “Department of the Interior.”

FOR FURTHER INFORMATION CONTACT:

Oliver Whaley, Director, Office of Regulatory Affairs and Collaborative Action (RACA), Office of the Assistant Secretary—Indian Affairs, Department of the Interior, telephone (202) 738-6065,

consultation@bia.gov.

Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services.

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Background

A. Statutory Authority

B. Negotiated Rulemaking Process

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

A. Subpart A—General Provisions

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

C. Subpart C—Planning and Negotiation Grants

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

E. Subpart E—Compacts

F. Subpart F—Funding Agreements for BIA Programs

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

H. Subpart H—Negotiation Process

I. Subpart I—Final Offer

J. Subpart J—Waiver of Regulations

K. Subpart K—Construction

L. Subpart L—Federal Tort Claims

M. Subpart M—Reassumption

N. Subpart N—Retrocession

O. Subpart O—Trust Evaluation

P. Subpart P—Reports

Q. Subpart Q—Operational Provisions

R. Subpart R—Appeals

S. Subpart S—Conflicts of Interest

T. Subpart T—Tribal Consultation Process

III. Areas of Disagreement

A. Subpart E—Compact

B. Subpart F—Funding Agreements for BIA Programs

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

D. Subpart K—Construction

E. Subpart R—Appeals

IV. Procedural Requirements

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

B. Regulatory Flexibility Act

C. Congressional Review Act (CRA)

D. Unfunded Mandates Reform Act of 1995

E. Takings (E.O. 12630)

F. Federalism (E.O. 13132)

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

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

I. Paperwork Reduction Act

J. National Environmental Policy Act (NEPA)

K. Energy Effects (E.O. 13211)

L. Clarity of This Regulation

M. Public Availability of Comments

I. Background

A. Statutory Authority

On October 21, 2020, the Practical Reforms & Other Goals to Reinforce the Effectiveness of Self Governance & Self Determination for Indian Tribes Act (PROGRESS Act) was signed into law.

See

Public Law 116-180. The PROGRESS Act amends subchapter I of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301, which addresses Indian Self-Determination, and subchapter IV of the ISDEAA, which addresses the Department's Tribal Self-Governance Program.

Section 413 of Public Law 116-180, 25 U.S.C. 5363 directs the Secretary to promulgate regulations using the negotiated rulemaking process to carry out subchapter IV of the ISDEAA, the Department's Tribal Self-Governance Program. Section 413(a)(3) of Public Law 116-180 establishes expiration of authority for the promulgation of such regulations. A Committee was established and commenced with the negotiated rulemaking process for this proposed rule. On April 20, 2023, the Committee's authority to promulgate regulations to meet the directive of the

Progress Act expired under section 413(a)(3) of the same statute, thus leaving the Committee with no authority to continue the negotiated rulemaking for this proposed rule. Congress, however, on September 30, 2023, extended the Committee's authority until December 21, 2024. Public Law 118-15 at section 2102.

The Department is requesting comment on this proposed rule to update regulations implementing Tribal Self-Governance at the Department. While the proposed rule does incorporate terms and processes that may be common to self-governance at the Department of Health and Human Services (HHS) authorized by Title V of ISDEAA, and the Department of Transportation (DOT) authorized by 23 U.S.C. 207, it is not the intent of this proposed rule to define or regulate any term or process that is applicable to HHS or DOT, even where such terms or processes are common between the agencies. The proposed rule should not be construed to bind HHS or DOT to any particular interpretation of a term or process. Accordingly, we seek comment on how to incorporate this distinction into a final rule.

This proposed rule has been negotiated by representatives of Self-Governance and non-Self-Governance Tribes, and the Department. The intended effect is to transfer to participating Tribes control of, funding for, and decision making concerning certain Federal programs, consistent with updates contained in the PROGRESS Act. The Department anticipates this proposed rule will have a negligible cost burden for Tribes currently participating in Self-Governance, some startup costs for Tribes not currently participating in Self-Governance, and no new costs to the Federal Government.

B. Negotiated Rulemaking Process

The PROGRESS Act directed the Secretary to adapt negotiated rulemaking procedures regarding the unique context of self-governance and the government-to-government relationship between the United States and Indian Tribes. The PROGRESS Act also called for a negotiated rulemaking committee (Committee) to be established under 5 U.S.C. 565, with membership comprised only of representatives of Federal agencies and Tribal governments, with the Office of Self-Governance (OSG) serving as the lead agency for the Department. The Secretary charged the Committee with developing proposed regulations for the Secretary's implementation of the PROGRESS Act's provisions regarding the Department's Self-Governance Program.

The Department published a

Federal Register

notice on February 1, 2021, 86 FR 7656, announcing the intent to establish a committee and soliciting nominations for membership on the Committee. The Department published a

Federal Register

notice on May 18, 2022, 87 FR 30256, announcing the formation of the committee and identifying 14 Tribal representatives, and 12 Federal representatives.

To fulfill the requirements for negotiated rulemaking and the Federal Advisory Committee Act, representatives reflect those currently participating in the Tribal Self-Governance Program and those that are not currently participating in, but are interested in, the Tribal Self-Governance Program. In addition, Tribal representatives reflect a balance in terms of geographical location and size of the Tribe. Membership consists of only representatives of Federal and Tribal governments, with OSG serving as the lead agency.

The Committee met fifteen times to negotiate the proposed regulations. The Committee members and technical advisors organized themselves into two subcommittees and used the scheduled subcommittee meetings to develop draft materials and exchange information. The Committee's meeting minutes, and any materials approved by the full Committee, were made a part of the official record.

The Committee reached consensus, as reflected by votes documented in its meeting minutes, on:

• Subpart A (General Provisions);

• Subpart B (Selection of Additional Tribes for Participation in Tribal Self-Governance);

• Subpart C (Planning and Negotiation Grants for BIA Programs);

• Subpart D (Financial Assistance for Planning and Negotiations Activities for Non-BIA Bureau Programs);

• Subpart H (Negotiation Process);

• Subpart I (Final Offer);

• Subpart J (Waiver of Regulations);

• Subpart L (Federal Tort Claims);

• Subpart M (Reassumption);

• Subpart N (Retrocession);

• Subpart O (Trust Evaluation);

• Subpart P (Reports);

• Subpart Q (Operational Provisions);

• Subpart S (Conflicts of Interest); and

• Subpart T (Tribal Consultation Process).

The Committee did not reach consensus on:

• Subpart E (Compacts);

• Subpart F (Funding Agreements for BIA Programs);

• Subpart G (Funding Agreements for Non-BIA Programs);

• Subpart K (Construction); and

• Subpart R (Appeals).

Regardless of the consensus reached thus far, the Department will consider all relevant comments submitted and will make modifications to the proposed rule as the Department determines is appropriate. The Department expressly reserves its right to modify the final rule.

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

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

A. Subpart A—General Provisions

This subpart contains the authority, purpose and scope of the proposed rule, and the Congressional and Secretarial policies that will guide the implementation of the ISDEAA, as amended by the PROGRESS Act, by the Secretary and the various bureaus of the Department. The subpart also defines terms used throughout the proposed rule consistent with the PROGRESS Act.

This subpart further clarifies the effect of 25 CFR part 1000 on existing Tribal rights, including Tribal sovereign immunity from suit, the United States' trust responsibility, a Tribe's choice to participate in self-governance, or the issuance of awards by other departments or agencies to Tribes. Additionally, this subpart identifies the application of any agency circular, policy, manual, guidance, or rule adopted by the Department on self-governance Tribes/Consortia.

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

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

audit exceptions in the required annual audit of its self-determination or self-governance agreements with any Federal agency for the three fiscal years preceding the date on which the Tribe/Consortium requests participation. When a Tribe/Consortium submits documentation to participate in self-governance, this proposed rule requires the OSG within 45 days to: (1) select and notify the Tribe/Consortium to participate in self-governance; or (2) notify the Tribe/Consortium that the documentation submitted to participate in self-governance is incomplete.

The OSG Director may select up to 50 eligible Tribes or Consortia for negotiation. If there are more Tribes selected to negotiate in any given year, this proposed rule provides that the first 50 Tribes/Consortia who apply, and are determined to be eligible, will have the option to participate.

This proposed rule also stipulates that a Tribe/Consortium may be selected to negotiate a funding agreement for non-Bureau of Indian Affairs (BIA) programs that are otherwise available to Tribes without first negotiating a funding agreement for BIA programs. However, to negotiate for a non-BIA program under 25 U.S.C. 5363(c) for which the Tribe/Consortium has only a geographic, cultural, or historical connection, the ISDEAA requires that the Tribe/Consortium must first have a funding agreement with the BIA under 25 U.S.C. 5363(b)(1) or any non-BIA bureau under 25 U.S.C. 5363(b)(2). (The term “programs” as used in this proposed rule refers to complete or partial programs, services, functions, or activities (PSFAs)).

This subpart also describes what happens when a Tribe wishes to withdraw from a Consortium's funding agreement. In such instances, the withdrawing Tribe must notify the Consortium, appropriate Department bureau, and OSG of its intent to withdraw 180 days before the effective date of the next funding agreement. Unless otherwise agreed to, the effective date of the withdrawal will be the earlier date of one year after the date of submission of the request, or when the current agreement expires.

In completing the withdrawal, the Consortium's funding agreement must be reduced by that portion of funds attributable to the withdrawing Tribe on the same basis or methodology upon which the funds were included in the Consortium's funding agreement. If such a basis or methodology does not exist, then the Tribe, the Consortium, appropriate Department bureau, and OSG must negotiate an appropriate amount.

C. Subpart C—Planning and Negotiation Grants

This subpart describes the criteria and procedures for awarding various self-governance negotiation and planning grants. These grants are discretionary and will be awarded by the OSG Director. The award amount and number of grants depends upon Congressional appropriations. If funding in any year is insufficient to meet total requests for grants and financial assistance, priority will be given first to negotiation grants and second to planning grants.

Negotiation grants are non-competitive. In order to receive a negotiation grant, a Tribe/Consortium must first be selected to join self-governance and then submit a letter affirming its readiness to negotiate and requesting a negotiation grant. This subpart further provides that a Tribe/Consortium may elect to negotiate a self-governance agreement if selected without applying for or receiving a negotiation grant. Planning grants will be awarded to Tribes/Consortia requesting financial assistance in order to complete the planning phase requirement for joining self-governance.

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

This subpart describes the additional requirements and criteria applicable to receiving financial assistance to assist Tribes/Consortia with planning and negotiating for funding agreements involving non-BIA programs. This financial assistance is available to any Tribe/Consortium that:

(a) Applied to participate in self-governance;

(b) Has been selected to participate in self-governance; or

(c) Has negotiated and entered into an existing funding agreement.

Subject to the availability of funds, this subpart requires the Secretary to publish a notice in the

Federal Register

that includes the number of available grants, application process, award criteria, and designated point-of-contact for each non-BIA bureau. This financial assistance will support information gathering, analysis, and planning activities that may involve consulting with appropriate non-BIA bureaus, and negotiation activities. This subpart also provides requirements for communicating award decisions to applying Tribes/Consortia.

E. Subpart E—Compacts

The Committee proposes to insert this new subpart to implement section 404 of title IV, as amended, which requires the Secretary to enter into a written compact with each participating Tribe/Consortium. The previous version of title IV included no such requirement and compacts were negotiated and executed at the option of the participating Tribe/Consortium.

The current rule at 25 CFR part 1000 that became effective on January 16, 2001 (“current rule”), includes provisions addressing compacts at §§ 1000.161 through 1000.165. The Committee proposes to amend and move those sections to the new subpart E (Compacts) and to include additional sections. This new subpart is proposed to be inserted before the respective subparts for funding agreements because compacts are applicable to funding agreements both for BIA programs and for non-BIA programs.

The current rule also includes a model format for a compact at Appendix A. The Committee proposes to omit the model format for a compact and Appendix A from this proposed rule. In lieu of a model format, compacts will be negotiated and executed in accordance with title IV, as amended, and with this proposed rule.

This subpart describes self-governance compacts and the minimum content requirements of a self-governance compact. Unlike a funding agreement, parts of a compact apply to all bureaus within the Department rather than a single bureau. Therefore, a Tribe/Consortium needs only to negotiate and execute one self-governance compact to participate in self-governance.

This subpart also establishes a compact's effective term and addresses how a compact may be amended. Further, this subpart clarifies that a Tribe/Consortium who executed a compact prior to the enactment of the PROGRESS Act has the option to either retain its existing compact, in whole or in part, to the extent that the provisions are not directly contrary to any express provisions of the PROGRESS Act or negotiate a new compact.

F. Subpart F—Agreements for BIA Programs

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

Agreements” and uses in its place, “Funding Agreements.” The acronym “BIA” is proposed in lieu of “Bureau of Indian Affairs” because BIA is now proposed as a defined term within subpart A (General Provisions). The Committee proposes to relocate the subpart from subpart E of the current rule to become subpart F of the proposed rule because a new subpart E for compacts is proposed to be inserted.

A funding agreement is a legally binding and mutually enforceable written agreement between a Tribe/Consortium and the Secretary. Funding agreements must include at a minimum, but are not limited to, provisions specifying the programs transferred to the Tribe/Consortium, providing for the Secretary to monitor the performance of trust functions administered by the Tribe/Consortium, providing the funding amount(s), providing a stable base budget, and specifying the funding agreement's effective date.

Parties to a funding agreement can mutually agree to include additional provisions and/or include and incorporate by reference additional documents such as funding tables or construction project agreements. Additionally, Tribes/Consortia may elect to negotiate a funding agreement with a term that exceeds one year, subject to the availability of appropriations.

This subpart also provides that a Tribe/Consortium with a funding agreement executed before the enactment of the PROGRESS Act has the option to either retain that funding agreement, in whole or in part, to the extent that the provisions are not directly contrary to any express provisions of the PROGRESS Act or negotiate a new funding agreement.

This subpart establishes that a funding agreement shall remain in full force and effect following the end of its term until a subsequent funding agreement is executed. When a subsequent funding agreement is executed, its terms will be retroactive to the term of the preceding funding agreement for purposes of calculating the amount of funding for the Tribe/Consortium.

This subpart states that a Tribe/Consortium may include BIA-administered programs in its funding agreement regardless of the BIA agency or office performing the program. The Secretary must provide to the Tribe/Consortium:

(a) Funds equal to what the Tribe/Consortium would have received under contracts and grants under title I of Public Law 93-638 (25 U.S.C. 5321,

et seq.

);

(b) Any funds specifically or functionally related to providing services to the Tribe/Consortium by the Secretary; and

(c) Any funds that are otherwise available to Indian Tribes for which appropriations are made to other agencies other than the Department and transferred to the Department as directed by law, an Interagency Agreement, or other means.

Except for construction programs or projects governed by subpart K (Construction), or where a statute contains specific limitations on the use of funds, a Tribe/Consortium may redesign or consolidate programs and reallocate funds in any manner the Tribe/Consortium deems to be in the best interest of the Indian community being served without the Secretary's approval except for programs described in 25 U.S.C. 5363(b)(2) or (c), or that involve a request to waive a Department regulation. However, a redesign or consolidation may not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable Federal law.

In determining the funding amount available to a Tribe/Consortium, this subpart identifies funds that are used to carry out inherent Federal functions

1

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

1

The Department notes that 25 U.S.C. 5363(k) uses the phrase “inherently Federal” while 25 U.S.C. 5367(c) uses the phrase “inherent Federal.” It is unclear why Congress used differing phrases, but the proposed rule generally uses the phrase “inherent Federal,” except where a provision directly follows statutory language. The Department does not view the difference between the two phrases as meaningful.

This subpart defines Tribal shares as the amount determined for that Tribe/Consortium that supports any program within the BIA, the Bureau of Indian Education (BIE), the Bureau of Trust Funds Administration (BTFA), or the Office of the Assistant Secretary for Indian Affairs and are not required by the Secretary for the performance of an inherent Federal function. Tribal share amounts may be determined by either:

(a) A formula that has a reasonable basis in the function or service performed by the BIA office and is consistently applied to all Tribes served by the area and agency offices; or

(b) On a Tribe-by-Tribe basis, such as competitive grant awards or special project funding.

Funding amounts may be modified during the term of a funding agreement to adjust for certain Congressional actions, correct a mistake, or if there is mutual agreement to do so.

This subpart also defines stable base budgets as the amount of recurring funding to be transferred to the Tribe/Consortium for a period specified in the funding agreement. Stable base budgets are derived from:

(a) A Tribe/Consortium's Public Law 93-638 contract amounts;

(b) Negotiated amounts of agency, area, and central office funding;

(c) Other recurring funding;

(d) Special projects, if applicable;

(e) Programmatic shortfall;

(f) Tribal priority allocation increases and decreases;

(g) Pay costs and retirement cost adjustments; and

(h) Any other inflationary cost adjustments.

Stable base budgets do not include any non-recurring program funds, construction and wildland firefighting accounts, Congressional earmarks, or other funds specifically excluded by Congress.

A stable base budget is established at the request of the Tribe/Consortium and will be included in BIA's budget justification for the following year, subject to Congressional appropriation. Once stable base budgets are established, a Tribe/Consortium need not renegotiate these amounts unless it wants to. If the Tribe/Consortium wishes to renegotiate, it also would be required to renegotiate all funding included in the funding agreement on the same basis as all other Tribes and is eligible for funding amounts of new programs or available programs not previously included in the funding agreement on the same basis as other Tribes. Stable base budgets must be adjusted for certain Congressional actions, to correct a mistake, or if there is mutual agreement.

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

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

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

H. Subpart H—Negotiation Process

The current rule includes “Subpart G—Negotiation Process for Annual Funding Agreements.” The Committee proposes to amend the title of this subpart and move it within this proposed rule. The subpart title is proposed to be amended to “Negotiation Process” because the amended subpart addresses the process for negotiating compacts and funding agreements. The location of the subpart within this proposed rule is to be moved from subpart G of the current rule to become subpart H because a new subpart E for compacts is proposed to be inserted. Items addressed in subpart H of the current rule are proposed to be addressed in proposed new subpart Q (Operational Provisions).

Sections 1000.161 through 1000.165 of the current rule addresses the negotiation of compacts and are proposed to be amended and moved to the new subpart E (Compacts).

This subpart establishes the process and timelines for negotiating a self-governance compact with the Secretary and a funding agreement with any Departmental bureau. Under this subpart, the negotiation process consists of two phases, an information phase and a negotiation phase.

In the information phase, any Tribe/Consortium that has been selected to participate in the self-governance program may submit a written request clearly identified as a “Request to Initiate the Information Phase,” which notifies the Secretary of a Tribe/Consortium's interest in negotiating for a program(s) and requesting information about the program(s). Although this phase is not mandatory, it is expected to facilitate successful negotiations by providing for a timely exchange of information on the requested programs. This subpart establishes the information a Tribe/Consortium is encouraged to include in its Request to Initiate the Information Phase and the steps a bureau must take after receiving a request.

The negotiation phase establishes detailed timelines and procedures for conducting negotiations with Tribes that have been selected into the self-governance program, including the minimum issues that must be addressed at negotiation meetings. A Tribe/Consortium initiates this phase by submitting a Request to Initiate the Negotiation Phase. This subpart also establishes the required response that the Secretary must provide a Tribe/Consortium after receipt of a Request to Initiate the Negotiation Phase, including identifying the lead Federal negotiator. Further, this subpart establishes the process for finalizing and executing a compact and/or funding agreement when the parties are in agreement on such terms and conditions following the completion of negotiations.

This subpart also establishes proposed rules for the negotiation process for subsequent funding agreements. A subsequent funding agreement is a funding agreement negotiated with a particular bureau after an existing agreement with that bureau. The process for negotiating a subsequent agreement is the same as the process provided in this subpart for funding agreements. The Committee expects, however, that subsequent funding agreements will build upon the prior funding agreements. As such, most provisions of the funding agreement will carry forward and not require renegotiation. This will result in an expedited and simplified negotiation process.

I. Subpart I—Final Offer

The Committee proposes to insert this new subpart to implement section 406(c) of title IV, as amended by the PROGRESS Act, 25 U.S.C. 5366(c), that prescribes the process to be followed if the Secretary and the participating Tribe/Consortium are unable to come to agreement, in whole or in part, on the terms of a compact or funding agreement during negotiations. The previous version of title IV included no such provisions, nor does the current rule.

The new subpart is proposed to be inserted at this location to immediately follow the proposed amended subpart H for the negotiation process. Doing so allows the reader to move sequentially from the negotiation process to determine options for next steps if those negotiation efforts do not result in agreement.

This subpart explains the final offer process provided by the Act for resolving disputes when the Secretary and a Tribe/Consortium are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels) during a negotiation. Under this subpart a Tribe/Consortium may submit a final offer to resolve these disputes. A final offer must be emailed or mailed to the Director at OSG's headquarters. A valid email address will be provided in the final rule. This proposed rule uses the placeholder “[TBD]”.

A final offer under this subpart must contain a description of the disagreement, the Tribe/Consortium's final proposal to resolve the disagreement (including any proposed terms for a compact, funding agreement, or amendment), and the name and contact information for the Tribe's/Consortium's authorized official.

In accordance with 25 U.S.C. 5366(c)(6), the Secretary may reject all or part of a final offer for one of six specified reasons. If the Secretary does not act on a final offer within 60 days, the final offer is accepted automatically by operation of law for any compact or funding agreement except as to its application to a program described under section 403(c) of title IV. Final offers with respect to any program described under section 403(c) of title IV that the Secretary does not act on within 60 days are rejected automatically by operation of law. This subpart also addresses what happens if the Secretary rejects all or part of a final offer, including provision of technical assistance to overcome a rejection, the ability to appeal a rejection, and the portions of a final offer not in dispute taking effect.

J. Subpart J—Waiver of Regulations

This subpart implements 25 U.S.C. 5363(i)(2)(A) that authorizes the Secretary to waive all Department regulations governing programs included in a funding agreement, as identified by the Tribe/Consortium.

This subpart also provides timelines, explains how a Tribe/Consortium applies for a waiver, the basis for granting or denying a waiver request, the documentation requirements for a decision, and establishes a process for

resubmittal of a Tribe/Consortium's request in the event of the Secretary's denial of a waiver request.

The basis for the Secretary's denial of a waiver request must be predicated on a prohibition of Federal law.

K. Subpart K—Construction

This subpart applies to all construction programs and projects, both BIA and non-BIA. The subpart specifies which construction program activities are subject to subpart K, such as design, construction management services, actual construction; and which are not, such as planning services, operation and maintenance activities, and certain construction programs that cost less than $100,000. All provisions of the proposed rule apply to this subpart except where such provisions are inconsistent; in such case the regulatory provisions of this subpart will govern.

This subpart specifies the roles and responsibilities of the Tribe/Consortium and the Secretary in construction programs, including environmental determinations, performance, changes, monitoring, inspections, and reassumption. This subpart details the process by which a Tribe/Consortium, at its election and with the approval of the Secretary, designates a certifying Tribal officer to represent the Tribe/Consortium and accepts the jurisdiction of the United States courts for the purpose of enforcing the responsibilities of the certifying Tribal officer in order for the certifying Tribal officer to assume some responsibilities of the official under the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and related provisions of other laws and regulations.

While the proposed text in this subpart reflects the consensus of the committee, subsequent to the approving its report to the Secretary, the Council on Environmental Quality (CEQ) revised its NEPA implementing regulations, 40 CFR parts 1500 through 1508, which are effective July 1, 2024.

2

Therefore, DOI invites comment on whether to revise the proposed regulatory text in any final rule for consistency with NEPA and the NEPA implementing regulations. For example, updating § 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 § 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 § 1000.1385(a)(5) to state that in applying a categorical exclusion under NEPA, evaluate whether extraordinary circumstances exist, in which a normally excluded project may have a significant effect, and therefore requires preparation of an environmental assessment or environmental impact statement, for consistency with 40 CFR 1501.4. DOI seeks public comment on these and any other edits that the public considers appropriate for consistency with NEPA and the NEPA implementing regulations.

2

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

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

Lastly, this subpart provides that the Secretary may accept funds from other departments for construction projects or programs, subject to an interagency agreement between the Secretary, with Tribal concurrence.

L. Subpart L—Federal Tort Claims

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

M. Subpart M—Reassumption

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

This subpart also describes the hearing rights a Tribe/Consortium has before or after reassumption by the Secretary, the activities to be performed after reassumption has been completed, and the effect of reassumption on other provisions of a funding agreement.

N. Subpart N—Retrocession

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

O. Subpart O—Trust Evaluation

This subpart establishes a procedural framework for the Secretary's annual trust evaluation mandated by the PROGRESS Act. The purpose of the Secretary's annual trust evaluation is to ensure that trust functions assumed by Tribes/Consortia are performed in a manner that does not place trust assets in imminent jeopardy.

Imminent jeopardy of a physical trust asset or natural resource (or their intended benefits) exists where there is an immediate threat and likelihood of significant devaluation, degradation, or loss to such asset. Imminent jeopardy to public health and safety means an immediate and significant threat of serious harm to human well-being, including conditions that may result in serious injury, or death, caused by Tribal action or inaction or as otherwise provided in a funding agreement.

This subpart requires the Secretary's designated representative to prepare a written report for each funding agreement under which trust functions are performed by a Tribe. This proposed rule also authorizes a review of Federal performance of residual and nondelegable trust functions affecting trust resources. The name of this subpart has been changed from “Trust Evaluation Review” to “Trust Evaluation.” It was redundant to have both evaluation and review in the title.

P. Subpart P—Reports

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

Q. Subpart Q—Operational Provisions

The current rule includes “Subpart Q—Miscellaneous Provisions.” The Committee proposes to amend the title of this subpart to “Operational Provisions” to be more descriptive and instructive to the reader and to bring consistency with regulations promulgated at 42 CFR subchapter M part 137-Tribal Self-Governance under the Indian Health Service as authorized by title V of the ISDEAA, as amended.

The proposed changes to this subpart address many facets of self-governance not covered in the other subparts. Issues covered include the applicability of various laws such as the Freedom of Information Act (FOIA), the Privacy Act, the Prompt Payment Act, and the Single Agency Audit Act, applicable provisions of OMB circulars, how funds are handled in various situations, including carryover of funds, savings from programs, and the use of funds to meet matching or cost participant requirements under other laws.

Certain provisions of this subpart are proposed to be amended to become current with the PROGRESS Act, and with applicable regulations promulgated by OMB at 2 CFR part 200. References to outdated OMB circulars within this subpart are proposed to be updated throughout. New sections within this subpart are proposed to address new provisions within the Act, as amended, such as claims against a Tribe/Consortium in relation to disallowance of costs, and limitation of costs.

R. Subpart R—Appeals

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

S. Subpart S—Conflicts of Interest

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

T. Subpart T—Tribal Consultation Process

This subpart describes the process for engaging in consultations related to self-governance with Tribes/Consortia. The current rule includes “Subpart I—Public Consultation Process.” The Committee proposes to move and rename this subpart to reflect that the subpart applies to Tribal consultation, and to conform to more recent Federal and Department policy on Tribal consultation. Under this subpart, consultations related to self-governance commenced after this rule's effective date, should it become final, will comply with the Tribal consultation process outlined in the revised version of this subpart, and such previous regulations governing public consultation shall be superseded.

This subpart establishes when the Secretary shall consult on matters related to self-governance and identifies that consultation will occur: (1) to determine eligible programs for inclusion in a funding agreement; (2) to establish programmatic targets for the inclusion of non-BIA programs in funding agreements; and (3) on any secretarial action with Tribal implications on matters related to self-governance. This subpart also establishes the applicable process for engaging in Tribal consultations, which is inspired by the President's November 30, 2022, Memorandum on Uniform Standards for Tribal Consultation, and the Department's current Departmental Manuals.

This subpart also establishes guiding principles applicable to Tribal consultation related to self-governance. Additionally, this subpart requires the Secretary to provide notice of upcoming consultations to Tribes/Consortia, allow written comments, and develop a record reflecting a Tribal consultation. Finally, this subpart establishes how the Secretary will handle confidential or sensitive information provided by a Tribe/Consortium during a consultation.

The Committee agreed to require at least 30 days' notice to Tribes/Consortia prior to any planned consultation sessions. However, the Committee recognizes that situations may occur that require the need for Tribal consultation on an expedited basis to address urgent issues. Therefore, the Committee expects that the Secretary could waive applicable notice requirements at the request of a Tribe/Consortium pursuant to subpart J (Waiver of Regulations) in such urgent situations. However, the Committee views the requirement for 30 days' notice as the norm and expects any such waivers to be at the request of a Tribe/Consortium.

III. Areas of Disagreement

The Committee did not reach consensus on four issues. These include: (1) the minimum contents that must be included in a compact and funding agreement; (2) inclusion of language about which functions may be considered “inherently Federal” for purposes of 25 U.S.C. 5363(k); (3) whether certain responsibilities pursuant to NEPA and related statutes are “inherent Federal functions;” and (4) when a Tribe/Consortium may choose to pursue an administrative appeal with the appropriate bureau head/Assistant Secretary as an alternative path to filing an administrative appeal with the Interior Board of Indian Appeals (IBIA).

Each area of disagreement is summarized below, in order, by subpart and section, as appropriate. To the extent a disagreement could not be resolved, the Department has incorporated the Federal language proposal into the proposed regulatory text. A summary of the Tribal and Federal views on these areas of disagreement are set forth below. More detail is available in the Committee's report, which is a part of the official record in this rulemaking and is available upon request. The Department solicits comments on these areas of disagreement.

A. Subpart E—Compacts

One issue of disagreement encountered by the Tribal and Federal representatives concerns the minimum contents that must be included in a compact and funding agreement in order to reflect the requirements of title IV as required under 25 U.S.C. 5365(a).

1. Tribal View

25 U.S.C. 5365(a) provides that “[a]n Indian Tribe and the Secretary shall include in any compact or funding agreement provisions that reflect the requirements of this subchapter,”

i.e.,

Subchapter IV—Tribal Self-Governance—Department of the Interior. The Tribal and Federal representatives disagree on how the contents of compacts and funding agreements can satisfy this requirement.” The Tribal position is that this statutory requirement can be satisfied through simplified Tribal assurances included in a compact and/or funding agreement that the Tribe/Consortium will comply with title IV. Such Tribal assurances would reflect

the requirements of title IV in these agreements without burdening parties to negotiate lengthy documents which may add little additional substance beyond quoting statutory provisions in title IV.

The Tribal position is that the proposed language in §§ 1000.510(e) and 1000.515 is excessive and not properly tailored to satisfying the requirement to reflect the requirements of title IV under 25 U.S.C. 5365(a). The identified topics in these regulatory sections correspond with general topics set out in 25 U.S.C. 5365. These topics include, for example, Tribal assurances that it has procedures in place to address conflicts of interest (25 U.S.C. 5365(b)), will apply applicable cost principles under OMB circulars in performing the title IV compact and funding agreement (25 U.S.C. 5365(c)), and will maintain a recordkeeping system and provide the Secretary with reasonable access to the records to permit the Secretary to meet the requirements of 44 U.S.C. 3101 through 3106 (25 U.S.C. 5365(g)).

The Tribal position is that a title IV compact or funding agreement can include language that satisfies 25 U.S.C. 5365(a), which states that the Tribe/Consortium will carry out the compact or funding agreement “

in accordance with the requirements of Title IV.

”

2. Federal View

The Federal position on the proposed §§ 1000.510(e) and 1000.515 is based on the language of 25 U.S.C. 5365(a) providing that “[a]n Indian Tribe and the Secretary shall include in any compact or funding agreement provisions that reflect the requirements of this subchapter.” The Federal committee members read this statutory language to direct that the parties include in a compact or funding agreement each of the provisions reflecting the requirements of Title IV.

The Federal position is that relevant provisions of the PROGRESS Act indicate that particular language or provisions must be included in a funding agreement or a compact. For example, 25 U.S.C. 5366(b)(1) directs that “[a] compact or funding agreement shall include provisions for the Secretary to reassume a program and associated funding if there is specific finding relating to that program.” As another example, 25 U.S.C. 5363(e)(2) authorizes the parities to specify an effective date for retrocession. The Federal position is that the best way to fulfill these statutory requirements is to include provisions matching each of the headings set forth in 25 U.S.C. 5365.

B. Subpart F—Funding Agreements for BIA Programs

Similar to subpart E (Compacts), an issue of disagreement encountered by the Tribal and Federal representatives concerns the minimum contents that must be included in a compact and funding agreement in order to reflect the requirements of title IV as required under 25 U.S.C. 5365(a).

1. Tribal View

For the reasons explained in the Tribal view associated with subpart E (Compacts), the Tribal representatives did not agree to the inclusion of the proposed § 1000.610(b) concerning language which “must be included in either a compact or funding agreement.” In parallel to the replacement of the proposed § 1000.515, this language should be replaced by a provision that requires either a compact and funding agreement to “include a general attestation that, in implementing the agreement, the Tribe will comply with all requirements of Title IV.”

There was also disagreement between the Tribal and Federal representatives regarding negotiations about inherent Federal functions. Both Federal and Tribal representatives agree that the identification of a particular function as an inherent Federal function is a pre-award dispute that is appealable to either the IBIA or the appropriate Bureau head/Assistant Secretary (covered in subpart R—Appeals). And both Federal and Tribal representatives agree that that the amount of funding withheld to cover the cost of inherent Federal functions is subject to pre-award negotiations (covered in this subpart). Tribal representatives proposed language in § 1000.695 to create consistency between subpart R (Appeals) and subpart F (Funding Agreements for BIA Programs) by clarifying, in subpart F (Funding Agreements for BIA Programs), that the identification of an inherent Federal function is a topic of negotiation.

2. Federal View

The Federal position on proposed § 1000.610(b), for reasons explained in the Federal narrative associated with subpart E (Compacts), is based on the language of 25 U.S.C. 5365(a) providing that “[a]n Indian Tribe and the Secretary shall include in any compact or funding agreement provisions that reflect the requirements of this subchapter.” The Federal Committee members read this statutory language to direct that the parties include in a compact or funding agreement each of the provisions reflecting the requirements of title IV. This position is informed by the Department's experience when encountering a problem in the execution of a funding agreement. In that situation, the primary question that arises involves what the agreed upon terms of a funding agreement provide as to a particular outcome.

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

A disagreement arose surrounding the inclusion of language about which functions may be considered “inherently Federal” for purposes of 25 U.S.C. 5363(k) and may therefore not be contracted to Tribes. In addition, a disagreement arose as to whether contract support costs are limited by Congressional appropriations.

1. Tribal View

Tribal representatives proposed to include a single sentence from a Department Solicitor guidance memorandum, “Inherently Federal Functions under the Tribal Self-Governance Act,” dated May 17, 1996 (Solicitor Memo), which has been in place for close to 30 years. Those parts of the proposed sentence that are not copied verbatim from the Solicitor Memo are substantively identical to the statement from the memo, according to the Tribal representatives.

The Tribally proposed sentence would state that “[w]hen determining whether a function is inherently Federal within the meaning of the Act, the more a delegated PSFA relates to Tribal sovereignty over citizens or territory, the more likely it is that the function is not inherently Federal.”

3

3

By comparison, the sentence in the Solicitor Memo reads, “The more a delegated function relates to tribal sovereignty over members or territory, the more likely it is that the inherently exception of section 403(k) does not apply.”

See

U.S. Department of the Interior, Office of the Solicitor, Memorandum on Inherently Functions under the Tribal Self-Governance Act (May 17, 1996), at 12.

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

As a compromise, the Committee proposes to keep the existing regulatory

language requiring that agreements with non-BIA agencies under 25 U.S.C. 5363(c) include funding for allowable indirect costs, while separately addressing direct contract support costs. Tribal representatives proposed language that would make it clear to Tribal and Federal negotiators that the baseline for determining such direct contract support costs should be the same as for any other ISDEAA agreement, as provided for in the statutory text found in section 106(a) of the ISDEAA.

2. Federal View

The Federal position on the proposed § 1000.845(a) is that particular quotations taken out of context from legal guidance issued by the Department's Solicitor to DOI bureaus and offices should not be codified in regulation. A single sentence in isolation fails to capture the complete standard for identifying an inherently Federal function under the legal guidance. Furthermore, if the sentence in isolation became the regulatory standard for an inherently Federal function, that would create an administrative process by which an applicant Tribe asks a bureau or office of the Department to opine on the Tribe's sovereignty, and attendant obligation under the Administrative Procedure Act, could unintentionally create roadblocks or limitations upon the Tribe's sovereignty in a manner that the Department cannot endorse.

Additionally, the Department notes that provision of contract support costs is subject to Congressional appropriations. While individual bureaus and offices may support providing contract support costs, as discussed in the Tribal narrative, the Department is unable to reallocate funds to provide those contract support costs without Congressional authorization.

D. Subpart K—Construction

A number of disagreements arose regarding whether certain responsibilities pursuant to the NEPA and related statutes are “inherent Federal functions.”

1. Tribal View

25 U.S.C. 5367(b) provides that, “subject to the agreement of the Secretary,” a Tribe or Consortium may “elect to assume some Federal responsibilities under” NEPA by (a) designating a Tribal official to “assume the status of a responsible Federal official” for purposes of NEPA and (b) issuing a limited waiver of sovereign immunity for the purposes of “enforcing the responsibilities” of that official. Because making environmental determinations, such as whether to approve NEPA documents, including categorical exclusions (CEs), environmental assessments (EAs), and environmental impact statements (EISs), is one of the responsibilities of a Federal official under NEPA, and because Tribal officials have been issuing such decisions for years under similar language in Title V, the Tribal representatives proposed several regulatory provisions to clarify the rights and responsibilities of a Tribe or Consortium that elects to assume Federal responsibilities pursuant to 25 U.S.C. 5367(b).

Tribal negotiators proposed regulatory provisions to clarify the rights and responsibilities of a Tribe or Consortium that elects to assume Federal responsibilities pursuant to 25 U.S.C. 5367(b). Tribal negotiators proposed a regulatory provision reflecting the process by which a Tribe/Consortium is recognized as having led, cooperating, or joint lead agency status on a project. Tribal representatives to the Committee argued that the proposed rule should define the term “categorical exclusion” for ease of use by Tribal and Federal officials, and because the term is used in proposed § 1000.1385.

2. Federal View

The Federal position is that the Committee must follow the language of the PROGRESS Act, which only allows Tribes to assume under title IV “

some

Federal responsibilities under the National Environmental Policy Act of 1969,” 25 U.S.C. 5367(b) (emphasis added). This language) differs from the statutory language allowing Tribes to assume “

all

Federal responsibilities under the National Environmental Policy Act of 1969,” 25 U.S.C. 5389(a) (emphasis added), in title V. Moreover, under title IV, the Secretary is prohibited from delegating to a Tribe or Consortium “duties of the Secretary under [NEPA, the NHPA,] and other related provisions of law that are inherent Federal functions.” 25 U.S.C. 5367(c). The Committee is duty bound to follow Congress's guidance in developing proposed regulations. The Federal representatives of the Committee read Congress's use of the term

some

to mean something different than when Congress uses the term

all. See, e.g., Ysleta Del Sur Pueblo

v.

Texas,

596 U.S. 685, 698 (2022) (Supreme Court restating its “usual presumption that differences in language like this convey differences in meaning.”).

E. Subpart R—Appeals

A disagreement arose about when a Tribe/Consortium may choose to pursue an administrative appeal with the appropriate bureau head/Assistant Secretary as an alternative path to filing an administrative appeal with the IBIA.

1. Tribal View

The Tribal position is that the proposed regulations should empower, and not limit, Tribes/Consortia to have options to decide how to proceed with an administrative appeal. Tribal representatives are aware that Tribes/Consortia have encountered difficulties and delays when pursuing appeals with the IBIA. Although changes to the IBIA itself are outside the scope of this negotiated rulemaking, the Tribal representatives urged that this proposed rule should provide Tribes/Consortia with the greatest flexibility to address the realities of the IBIA appeals process. Further, the Tribal representatives emphasize that the Department and Congress should pursue all available routes to improve the IBIA appeals process to decide appeals in a just, efficient, and time-sensitive manner.

To address the realities of the IBIA system, Tribal negotiators argue that

all

pre-award dispute decisions that fall within § 1000.2345 should be eligible to be decided by a bureau head/Assistant Secretary, in lieu of an appeal to the IBIA, if a Tribe/Consortium so chooses. This position would establish two mutually exclusive paths that a Tribe/Consortium could choose from to pursue

any

pre-award dispute under § 1000.2345: either through (1) the IBIA; or (2) the bureau head/Assistant Secretary. Section 1000.2345 identifies the types of decisions that may be appealed to either a bureau head/Assistant Secretary or the IBIA under certain sections in subpart R (Appeals) and includes decisions such as rejecting a final offer, rejecting a proposed amendment to a compact or funding agreement, determinations that a provision in a retained funding agreement and/or compact are directly contrary to title IV, non-immediate reassumption, and certain construction-related decisions.

2. Federal View

The Federal position on the proposed §§ 1000.2302 and 1000.2351 is that these sections, which provide the appeals process for certain types of disputes under the current regulations—and were not otherwise changed, amended, or even addressed by the PROGRESS Act—provide an avenue for Tribes to appeal their disputes in a

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

IV. Procedural Requirements

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

Executive Order (E.O.) 12866, as amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this proposed rule is significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The Department has developed this proposed rule in a manner consistent with these requirements.

In accordance with 5 U.S.C. 553(b)(4), a summary of this proposed rule may be found at

https://www.regulations.gov

by searching for “RIN 1076-AF62.”

E.O. 12866 Interagency Feedback Received on Proposed Rule

The Department is proposing new regulations to update the manner in which it implements self-governance at the Department. This Notice discusses the rationale for the changes that should have no major impacts on regulations or programs administered by other agencies. Overall, the proposed rule is expected to apply only to those Tribes/Consortia that enter into a self-governance compact with the Department and conclude a funding agreement under that compact.

However, during OIRA's E.O. 12866 review, the Department received comment expressing concerns about how the Department's proposed rule might intersect with another agency's self-governance regulations and program. The Department currently lacks information to describe the manner, if any, in which its self-governance regulations might affect self-governance compacts and funding agreements between Tribes/Consortia and agencies other than the Department. Some priority learning questions, where we seek information, include:

• How or whether the provisions of the proposed rule, especially those terms and processes in common between the Department and self-governance regulations at other agencies could affect any term of any other agency's self-governance procedures?

• How or whether the Department could specify that its proposed rule implementing self-governance at the Department does not bear upon either interpretation of language in another agency's self-governance regulations or authorizing statute, nor language in a compact or funding agreement between a Tribe/Consortia and another agency.

• How or whether the Department could address potential inconsistencies between its proposed rule, based on the Department's authorizing legislation, and similar provisions in other agencies' self-governance regulations, which are based on their respective, different authorizing statutes.

B. Regulatory Flexibility Act

The Department has evaluated the effects of this proposed rule on small entities, such as local governments and businesses. Based on its evaluation, the Department certifies that this document would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601

et seq.

). Based on the evaluation, the Department anticipates that this action would not have a significant economic impact on small entities. The Department only foresees this proposed rule having an impact on the Federal Government and Indian Tribes, which are not considered to be small entities for purposes of this Act.

C. Congressional Review Act (CRA)

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

D. Unfunded Mandates Reform Act of 1995

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

et seq.

) is not required.

E. Takings (E.O. 12630)

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

F. Federalism (E.O. 13132)

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

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

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

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

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

The Department strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this proposed rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined that the NPRM would not impose substantial direct compliance costs on Indian Tribal governments, would not preempt Tribal law, would not have any potentially adverse effects, economic or otherwise, on the viability of Indian Tribes. Rather, this action will reduce the administrative burden of Indian Tribes participating in this program. Therefore, a Tribal summary impact statement is not required.

The Department initiated a negotiated rulemaking process, with both Tribal and Federal representatives, which the Department asserts fulfills its obligations to consult to develop the text of this proposed rule. The results of these ongoing negotiated rulemaking meetings were periodically reported and discussed in other Federal and Tribal fora. The Tribal and Federal representatives reached consensus on the proposed rule text and Preamble, except for the four areas of disagreement discussed above.

The Department anticipates seeking Tribal input through the comment period and until publication of a Final Rule.

I. Paperwork Reduction Act

This proposed rule contains existing information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.

). The Self-Governance program is authorized by the Tribal Self-Governance Act of 1994, 25 U.S.C. 5301, Public Law 103-413, as amended. Tribes interested in entering into Self-Governance must submit certain information as required by the Act. In addition, those Tribes and Consortia that have entered into Self-Governance funding agreements will be requested to submit certain information as described in this proposed rule. This information will be used to justify a budget request submission on their behalf and to comport with section 405 of the Act that calls for the Secretary to submit an annual report to the Congress.

The following revision to the existing information collections require approval by OMB.

•

Summary of Proposed Revision:

Projected increase in respondent participation and total number of annual respondents.

•

Title of Collection:

Tribal Self-Governance Program.

•

OMB Control Number:

1076-0143.

•

Form Number:

Annual Self-Governance Report Form.

•

Type of Review:

Revision of a currently approved collection.

•

Respondents/Affected Public:

Federally recognized Indian Tribes and Tribal Consortia participating in or wishing to enter into Tribal Self-Governance.

•

Total Estimated Number of Annual Respondents:

115.

•

Total Estimated Number of Annual Responses:

130.

•

Estimated Completion Time per Response:

Varies from 1 to 400 hours.

•

Total Estimated Number of Annual Burden Hours:

5,073 hours.

•

Respondent's Obligation:

Required to obtain a benefit.

•

Frequency of Collection:

On occasion or annually.

•

Total Estimated Annual Non-Hour Burden Cost:

$10,600 for cost associated with attending training and hiring consultants to provide services for entering the Self-Governance Program.

•

Annual Costs to Federal Government:

$1,592,490.

As part of our continuing effort to reduce paperwork and respondents' burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,

e.g.,

permitting electronic submission of response.

Send your written comments and suggestions on this information collection to OIRA listed in

ADDRESSES

by the date indicated in

DATES

. Please also send a copy to

consultation@bia.gov

and reference “OMB Control Number 1076-0143” in the subject line of your comments. You may also view the ICR at

https://www.reginfo.gov/public/Forward?SearchTarget=PRA&textfield=1076-0143.

J. National Environmental Policy Act (NEPA)

Under NEPA, categories of Federal actions that normally do not significantly impact the human environment may be categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

See

40 CFR 1501.4. The Department's regulations categorically exclude the promulgation of “regulations . . . that are of an administrative . . . or procedural nature,” because the promulgation of such regulations normally does not have a significant effect on the human environment, individually or in the aggregate.

See

43 CFR 46.210(i). This rule is administrative and procedural in nature, and therefore is within the scope of this categorical exclusion. Further, the Department determined that the rule would not involve any extraordinary circumstances that might require preparation of an environmental assessment or an environmental impact statement.

See

43 CFR 46.215.

K. Energy Effects (E.O. 13211)

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

L. Clarity of This Regulation

The Department is required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(l)(B)), and 13563 (section l(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the

ADDRESSES

section. To better help us revise the proposed rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find

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

M. Public Availability of Comments

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

List of Subjects in 25 CFR Part 1000

Administrative practice and procedure, Indian Tribes, Tribal Consortium.

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

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

The authority of this entire part 1000 is as follows:

Authority:

25 U.S.C. 5373

Subpart A—General Provisions

Sec.

1000.1

What is the authority of this part?

1000.5

What key terms do I need to know?

1000.10

What is the purpose and scope of this part?

1000.15

What is the congressional policy statement of this part?

1000.20

What is the Secretarial policy of this part?

1000.25

What is the effect on existing Tribal rights?

1000.30

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

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

Purpose and Definitions

1000.101

What is the purpose of this subpart?

1000.105

What is a “signatory”?

1000.110

What is a “nonsignatory Tribe”?

Eligibility

1000.115

Who may participate in Tribal self-governance?

1000.120

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

1000.125

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

1000.130

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

1000.135

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

1000.140

What is required during the “planning phase”?

1000.145

When does a Tribe/Consortium have an uncorrected “significant and material audit exception”?

1000.150

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

1000.155

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

Selection To Participate in Self-Governance

1000.160

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

1000.165

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

1000.170

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

1000.175

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

1000.180

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

1000.185

What happens if a request is not complete?

1000.190

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

1000.195

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

1000.200

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

Withdrawal From a Consortium Funding Agreement

1000.205

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

1000.210

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

1000.215

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

1000.220

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

1000.225

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

1000.230

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

1000.235

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

Subpart C—Planning and Negotiation Grants for BIA Programs

1000.301

What is the purpose of this subpart?

1000.305

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

1000.310

What is required to request planning and negotiation grants?

1000.315

Are planning and negotiation grants available?

1000.320

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

1000.325

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

1000.330

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

1000.335

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

1000.340

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

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

1000.401

What is the purpose of this subpart?

1000.405

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

1000.410

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

1000.415

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

1000.420

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

1000.425

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

1000.430

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

1000.435

How will the non-BIA bureau director/commissioner award financial

assistance for planning and negotiation activities for a non-BIA program?

1000.440

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

1000.445

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

1000.450

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

1000.455

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

1000.460

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

Subpart E—Compacts

1000.501

What is a self-governance compact?

1000.505

Which DOI office negotiates self-governance compacts?

1000.510

What is included in a self-governance compact?

1000.515

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

1000.520

Is a compact required to participate in self-governance?

1000.525

Can a Tribe/Consortium negotiate other terms and conditions?

1000.530

What is the duration of a compact?

1000.535

May a compact be amended?

1000.540

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

1000.545

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

1000.550

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

Subpart F—Funding Agreements for BIA Programs

1000.601

What is the purpose of this subpart?

1000.605

What is a funding agreement?

Contents and Scope of Funding Agreements

1000.610

What must be included in a funding agreement?

1000.615

Can additional provisions be included in a funding agreement?

1000.620

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

1000.625

What is the term of a funding agreement?

1000.630

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

1000.635

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

1000.640

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

Determining What Programs May Be Included in a Funding Agreement

1000.645

What PSFAs may be included in a funding agreement?

1000.650

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

1000.655

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

1000.660

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

1000.665

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

Determining Funding Agreement Amounts

1000.670

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

1000.675

What funds may not be included in a funding agreement?

1000.680

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

1000.685

What funds are used to carry out inherent Federal functions?

1000.690

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

1000.695

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

1000.700

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

1000.705

What is a Tribal share?

1000.710

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

1000.715

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

1000.720

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

1000.725

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

1000.730

How are savings that result from downsizing allocated?

1000.735

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

1000.740

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

Establishing Self-Governance Stable Base Budgets

1000.745

What are self-governance stable base budgets?

1000.750

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

1000.755

How are self-governance stable base budgets established?

1000.760

How are self-governance stable base budgets adjusted?

Subpart G—Funding Agreements for Non-BIA Programs

1000.801

What is the purpose of this subpart?

1000.805

What is a funding agreement for a non-BIA program?

1000.810

What non-BIA programs are eligible for inclusion in a funding agreement?

1000.815

Are there non-BIA programs for which the Secretary must negotiate for inclusion in a funding agreement subject to such terms as the parties may negotiate?

1000.820

What programs are included under section 403(b)(2) (25 U.S.C. 5363(b)(2))?

1000.825

What programs are included under section 403(c) (25 U.S.C. 5363(c))?

1000.830

What does “special geographic, historical or cultural” mean?

1000.835

Under section 403(b)(2) (25 U.S.C. 5363(b)(2)), when must programs be awarded non-competitively?

1000.840

May a non-BIA bureau include in a funding agreement, on a non-competitive basis, programs of special geographic, historical, or cultural significance?

1000.845

Are there any non-BIA programs that may not be included in a funding agreement?

1000.850

Does a Tribe/Consortium need to be identified in an authorizing statute in order for a program or element of a program to be included in a non-BIA funding agreement?

1000.855

Will Tribes/Consortia participate in the Secretary's determination of what is to be included on the annual list of available programs?

1000.860

How will the Secretary consult with Tribes/Consortia in developing the list of available programs?

1000.865

What else is on the list in addition to eligible programs?

1000.870

May a bureau negotiate with a Tribe/Consortium for programs not specifically included on the annual list pursuant to 25 U.S.C. 5372(c)?

1000.875

How will a bureau negotiate a funding agreement for a program of special geographic, historical, or cultural significance to more than one Tribe/Consortium?

1000.880

When will this determination be made?

1000.885

What funds are included in a non-BIA funding agreement?

1000.890

How are indirect cost rates determined?

1000.895

How does the Secretary determine the amount of indirect costs?

1000.900

May the bureaus negotiate terms to be included in a funding agreement for non-BIA programs?

1000.905

Can a Tribe/Consortium reallocate, consolidate, and redesign funds for a non-BIA program?

1000.910

Do Tribes/Consortia need Secretarial approval to reallocate funds between title I eligible programs that the Tribe/Consortium administers under a non-BIA funding agreement?

1000.915

Can a Tribe/Consortium negotiate a funding agreement with a non-BIA bureau for which the performance period exceeds one year?

1000.920

Can the terms and conditions in a non-BIA funding agreement be amended during the year it is in effect?

1000.925

What happens if a funding agreement expires before the effective date of the successor Funding Agreement?

Subpart H—Negotiation Process

1000.1001

What is the purpose of this subpart?

1000.1005

What are the phases of the negotiation process?

1000.1010

Who may initiate the information phase?

1000.1015

Is it mandatory to go through the information phase before initiating the negotiation phase?

1000.1020

How does a Tribe/Consortium initiate the information phase?

1000.1025

What information is a Tribe/Consortium encouraged to include in a Request to Initiate the Information Phase?

1000.1030

When should a Tribe/Consortium submit a Request to Initiate the Information Phase to the Secretary?

1000.1035

What steps does the bureau take after a Request to Initiate the Information Phase is submitted by a Tribe/Consortium?

1000.1040

How does a Tribe/Consortium initiate the negotiation phase?

1000.1045

How and when does the Secretary respond to a request to negotiate a compact or BIA funding agreement?

1000.1050

How and when does the Secretary respond to a request to negotiate a non-BIA funding agreement?

1000.1055

What is the process for conducting the negotiation phase?

1000.1060

What issues must the bureau and the Tribe/Consortium address at negotiation meetings?

1000.1065

What happens when a compact or funding agreement is signed?

1000.1070

What happens if the Tribe/Consortium and bureau negotiators fail to reach an agreement on a compact or funding agreement?

1000.1075

When does the funding agreement become effective?

1000.1080

What is a subsequent funding agreement?

1000.1085

How is the negotiation of a subsequent funding agreement initiated?

1000.1090

What is the process for negotiating a subsequent funding agreement?

Subpart I—Final Offer

1000.1101

What is the purpose of this subpart?

1000.1105

When should a final offer be submitted?

1000.1110

How does a Tribe/Consortium submit a final offer?

1000.1115

What does a final offer contain?

1000.1120

When does the 60-day review period begin?

1000.1125

How does the Department acknowledge receipt of final offer?

1000.1130

May the Secretary request and obtain an extension of time of the 60-day review period?

1000.1135

What happens if the Secretary takes no action within the 60-day period (or any extensions thereof)?

1000.1140

Once the Tribe/Consortium's final offer has been accepted or accepted by operation of law, what is the next step?

1000.1145

On what basis may the Secretary reject a final offer?

1000.1150

How does the Secretary reject a final offer?

1000.1155

What is the “significant danger” or “risk” to the public health or safety, to natural resources, or to trust resources?

1000.1160

Is technical assistance available to a Tribe/Consortium to overcome the objections stated in the Secretary's rejection of a final offer?

1000.1165

If the Secretary rejects all or part of a final offer, is the Tribe/Consortium entitled to an appeal?

1000.1170

Do those portions of the compact, funding agreement, or amendment not in dispute go into effect?

1000.1175

Does appealing the final offer decision prevent the Secretary and the Tribe/Consortium from entering into any accepted compact, funding agreement or amendment provisions that are not in dispute?

1000.1180

What is the burden of proof in an appeal of a rejection of a final offer?

Subpart J—Waiver of Regulations

1000.1201

What regulations apply to Tribes/Consortia?

1000.1205

Can the Secretary grant a waiver of regulations to a Tribe/Consortium?

1000.1210

When can a Tribe/Consortium request a waiver of a regulation?

1000.1215

How does a Tribe/Consortium obtain a waiver?

1000.1220

How does a Tribe/Consortium operating a Public Law 102-477 Plan obtain a waiver?

1000.1225

May a Tribe/Consortium request an optional meeting or other informal discussion to discuss a waiver request?

1000.1230

Is a bureau required to provide technical assistance to a Tribe/Consortium concerning waivers?

1000.1235

How does the Secretary respond to a waiver request?

1000.1240

When must the Secretary make a decision on a waiver request?

1000.1245

How does the Secretary make a decision on the waiver request?

1000.1250

What happens if the Secretary neither approves nor denies a waiver request within the time specified in § 1000.1240?

1000.1255

May a Tribe/Consortium appeal the Secretary's decision to deny its request for a waiver of a regulation?

1000.1260

What is the term of a waiver?

1000.1265

May a Tribe/Consortium withdraw a waiver request?

1000.1270

May a Tribe/Consortium have more than one waiver request pending before the Secretary at the same time?

1000.1275

May a Tribe/Consortium continue to negotiate a funding agreement pending final decision on a waiver request?

1000.1280

How is a waiver decision documented for the record?

Subpart K—Construction

Construction Definitions

1000.1301

What key construction terms do I need to know?

Purpose And Scope

1000.1305

What construction projects and programs included in a funding agreement or construction project agreement are subject to this subpart?

1000.1306

May a program or project-specific grant or contracting mechanism involving construction and related activities satisfy the requirements of this subpart?

1000.1307

May the Secretary accept funds from another Department for a program or project involving construction and related activities for transfer to the Tribe/Consortium under its funding agreement or construction project agreement?

1000.1310

What alternatives are available for a Tribe/Consortium to perform a construction program or project?

1000.1315

Does this subpart create an agency relationship?

Notification and Project Assumption

1000.1320

Is the Secretary required to consult with affected Tribes/Consortia concerning construction projects and programs?

1000.1325

When does the Secretary confer with a Tribe/Consortium concerning Tribal preferences as to size, location, type, and other characteristics of a project?

1000.1330

What does a Tribe/Consortium do if it wants to perform a construction project or program under 25 U.S.C. 5367?

1000.1335

What must a Tribal proposal for a construction program or project contain?

1000.1340

May multiple projects be included in a single construction project agreement or funding agreement that includes a construction project?

1000.1345

Must a construction project proposal incorporate provisions of Federal construction guidelines and manuals?

1000.1350

What provisions relating to a construction project or program may be included in a funding agreement or construction project agreement?

1000.1355

What provisions must a Tribe/Consortium include in a construction project agreement or funding agreement that contains a construction project or program?

Requirements and Standards

1000.1360

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

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 § 1000.1370(a)(1)?

1000.1400

How does a Tribe/Consortium comply with NEPA and NHPA?

1000.1405

If a Tribe/Consortium adopts the environmental review procedures of a Federal agency, is the Tribe/Consortium responsible for ensuring the agency's policies and procedures meet the requirements of NEPA, NHPA, and related environmental laws?

1000.1410

Are Federal funds available to cover the cost of Tribes/Consortia carrying out environmental responsibilities?

1000.1415

How are project and program environmental review costs identified?

1000.1420

What costs may be included in the budget for a construction project or program?

1000.1425

May the Secretary reject a Tribe's/Consortium's final offer of a construction project proposal submitted under subpart I—Final Offer based on a determination of Tribal capacity or capability?

1000.1430

On what basis may the Secretary reject a final offer of a construction project proposal made by a Tribe/Consortium?

Role of the Secretary

1000.1435

What is the Secretary's role in a construction project performed under this subpart?

1000.1440

What constitutes a “significant change” in the original scope of work?

1000.1445

May the Secretary suspend construction activities under a funding agreement or construction project agreement?

1000.1450

How are property and funding returned if there is a reassumption for substantial failure to carry out a construction project?

1000.1455

What happens when a Tribe/Consortium, suspended under § 1000.1445 for substantial failure to carry out the terms of construction project agreement or funding agreement that includes a construction project or program without good cause, does not correct the failure during the suspension?

1000.1460

How does the Secretary make advance payments to a Tribe/Consortium under a funding agreement or construction project agreement?

1000.1465

Is a facility built under this subpart eligible for annual operation and maintenance funding?

Role of the Tribe/Consortium

1000.1470

What is the Tribe's/Consortium's role in a construction project included in a funding agreement or construction project agreement under this subpart?

1000.1475

Is a Tribe/Consortium required to submit construction project progress and financial reports for construction projects?

Other

1000.1480

May a Tribe/Consortium continue work with construction funds remaining in a funding agreement or construction project agreement at the end of the funding year?

1000.1485

Must a construction project agreement or funding agreement that contains a construction project or activity incorporate provisions of Federal construction standards?

1000.1490

May the Secretary require design provisions and other terms and conditions for construction projects or programs included in a funding agreement or construction project agreement under section 403(c) (25 U.S.C. 5363(c))?

1000.1495

Do all provisions of other subparts apply to construction portions of a funding agreement or construction project agreement?

1000.1500

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

1000.1505

May a Tribe/Consortium reallocate funds from a construction program to a non-construction program?

1000.1510

May a Tribe/Consortium reallocate funds among construction programs?

1000.1515

Must the Secretary retain project funds to ensure proper health and safety standards in construction projects?

1000.1520

What funding must the Secretary provide in a construction project agreement or funding agreement that includes a construction project or program?

1000.1525

Must Federal funds from other DOI sources be incorporated into a construction project agreement or funding agreement that includes a construction project or program?

1000.1530

May a Tribe/Consortium contribute funding to a project?

Subpart L—Federal Tort Claims

1000.1601

What is the purpose of this subpart?

1000.1605

What other statutes and regulations apply to FTCA coverage?

1000.1610

Do Tribes/Consortia need to be aware of areas which FTCA does not cover?

1000.1615

Is there a deadline for filing FTCA claims?

1000.1620

How long does the Federal Government have to process a FTCA claim after the claim is received by the Federal agency, before a lawsuit may be filed?

1000.1625

Is it necessary for a compact or funding agreement to include any clauses about FTCA coverage?

1000.1630

Does FTCA apply to a compact and funding agreement if FTCA is not referenced in the compact or funding agreement?

1000.1635

To what extent shall the Tribe/Consortium cooperate with the Federal Government in connection with tort claims arising out of the Tribe's/Consortium's performance of a compact, funding agreement, or subcontract?

1000.1640

Does this coverage extend to subcontractors of compacts and funding agreements?

1000.1645

Is FTCA the exclusive remedy for a tort claim, including a claim concerning personal injury or death, resulting from the performance of a compact or funding agreement?

1000.1650

What employees are covered by FTCA for claims arising out of a Tribe's/Consortia's performance of a compact or funding agreement?

1000.1655

Does FTCA cover employees of the Tribe/Consortium who are paid by the Tribe/Consortium from funds other than those provided through the funding agreement?

1000.1660

May persons who are not Indians or Alaska Natives assert claims under FTCA arising out of the performance of a compact or funding agreement by a Tribe/Consortium?

1000.1665

If the Tribe/Consortium or Tribe's/Consortium's employee receives a summons and/or a complaint alleging a tort covered by FTCA and arising out of the performance of a compact or funding agreement, what should the Tribe/Consortium do?

Subpart M—Reassumption

1000.1701

What is the purpose of this subpart?

1000.1705

What does reassumption mean?

1000.1710

Under what circumstances may the Secretary reassume a program operated by a Tribe/Consortium under a funding agreement?

1000.1715

What is “imminent jeopardy” to a trust asset?

1000.1720

What is “imminent jeopardy” to natural resources?

1000.1725

What is “imminent jeopardy” to public health and safety?

1000.1730

What steps must the Secretary take prior to reassumption becoming effective?

1000.1735

Does the Tribe/Consortium have a right to a hearing prior to a non-immediate reassumption becoming effective?

1000.1740

What happens if the Secretary determines that the Tribe/Consortium has not corrected the conditions that the Secretary identified in the written notice?

1000.1745

What is the earliest date on which a reassumption by the Secretary can be effective?

1000.1750

Does the Secretary have the authority to immediately reassume a program?

1000.1755

What must a Tribe/Consortium do when a program is reassumed?

1000.1760

When must the Tribe/Consortium return funds to the Department?

1000.1765

May the Tribe/Consortium be reimbursed for actual and reasonable “wind up costs” incurred after the effective date of retrocession?

1000.1770

Is a Tribe's/Consortium's general right to negotiate a funding agreement adversely affected by a reassumption action?

1000.1775

When will the Secretary return management of a reassumed program?

Subpart N—Retrocession

1000.1801

What is the purpose of this subpart?

1000.1805

Is a decision by a Tribe/Consortium not to include a program in a successor agreement considered a retrocession?

1000.1810

Who may retrocede a program in a funding agreement?

1000.1815

How does a Tribe/Consortium retrocede a program?

1000.1820

When will the retrocession become effective?

1000.1825

How will retrocession affect the Tribe's/Consortium's existing and future funding agreements?

1000.1830

Does the Tribe/Consortium have to return funds used in the operation of a retroceded program?

1000.1835

Does the Tribe/Consortium have to return property used in the operation of a retroceded program?

1000.1840

What happens to a Tribe's/Consortium's mature contract status if it has retroceded a program that is also available for self-determination contracting?

1000.1845

How does retrocession affect a bureau's operation of the retroceded program?

Subpart O—Trust Evaluation

1000.1901

What is the purpose of this subpart?

1000.1905

Does the Act alter the trust responsibility of the United States to Indian Tribes and individuals under self-governance?

1000.1910

What are “trust resources” for the purposes of the trust evaluation process?

1000.1915

What are “trust PSFAs” for the purposes of the trust evaluation process?

1000.1920

Can a Tribe/Consortium request the Secretary to conduct an assessment of the status of the trust assets, resource, and PSFAs?

Annual Trust Evaluation

1000.1925

What is a trust evaluation?

1000.1930

How are trust evaluations conducted?

1000.1935

May the trust evaluation process be used for additional reviews?

1000.1936

May the parties negotiate review methods for purposes of the trust evaluation?

1000.1940

What are the responsibilities of the Secretary's designated representative(s) after the annual trust evaluation?

1000.1945

Is the trust evaluation standard or process different when the trust resource or asset is held in trust for an individual Indian or Indian allottee?

1000.1950

Does the annual trust review evaluation include a review of the Secretary's inherent Federal and retained operation trust PSFAs?

1000.1955

What are the consequences of a finding of imminent jeopardy in the Secretary's annual trust evaluation?

1000.1960

What if the Secretary's trust evaluation reveals problems that do not rise to the level of imminent jeopardy?

1000.1965

Who is responsible for taking corrective action?

1000.1970

What are the requirements of the Department's review team report?

1000.1975

May the Department conduct more than one trust evaluation per Tribe per year?

Subpart P—Reports

1000.2001

What is the purpose of this subpart?

1000.2005

Is the Secretary required to report on Self Governance?

1000.2010

What will the Secretary's annual report to Congress contain?

1000.2011

Is the Secretary required to review programs of the Department other than BIA, BIE, the Office of the Assistant Secretary for Indian Affairs, and the BTFA?

1000.2012

Is the Secretary required to annually publish information under this subpart in the

Federal Register

?

1000.2015

Must the Secretary seek comment on the report from Tribes/Consortia before submitting it to Congress?

1000.2020

What may the Tribe's/Consortium's annual report on self-governance address?

1000.2025

Are there other data submissions or reports that Tribes/Consortia may be requested to submit?

1000.2030

Are Tribes/Consortia required to submit Single Audit Act reports?

1000.2035

Is there an exemption available for the requirement to submit Single Audit Act reports?

1000.2040

Are Tribes/Consortia required to maintain reports and records in accordance with 25 U.S.C. 5305?

Subpart Q—Operational Provisions

1000.2101

How can a Tribe/Consortium hire a Federal employee to help implement a funding agreement?

1000.2105

Can a Tribe/Consortium employee be detailed to a Federal service position?

1000.2110

How does the Freedom of Information Act apply?

1000.2115

How does the Privacy Act apply?

1000.2120

What audit requirements must a Tribe/Consortium follow?

1000.2125

How do OMB circulars and the Act apply to funding agreements?

1000.2130

How much time does the Federal Government have to make a claim against a Tribe/Consortium relating to any disallowance of costs, based on an audit?

1000.2135

Does a Tribe/Consortium have additional ongoing requirements to maintain minimum standards for Tribe/Consortium management systems?

1000.2140

Are there any restrictions on how funds awarded to a Tribe/Consortium under a funding agreement may be spent?

1000.2145

What standard applies to a Tribe's/Consortium's management of funds awarded under a funding agreement?

1000.2150

How may interest or investment income that accrues on funds awarded under a funding agreement be used?

1000.2155

Can a Tribe/Consortium retain savings from programs?

1000.2160

Can a Tribe/Consortium carry over funds not spent during the term of the funding agreement?

1000.2165

After a non-BIA funding agreement has been executed and the funds transferred to a Tribe/Consortium, can a bureau request the return of unexpended funds?

1000.2170

How can a person or group appeal a decision or contest an action related to a program operated by a Tribe/Consortium under a funding agreement?

1000.2175

Must Tribes/Consortia comply with the Secretarial approval requirements of 25 U.S.C. 81; 82a; and 476 regarding professional and attorney contracts?

1000.2180

Are funds awarded under a funding agreement non-Federal funds for the purpose of meeting matching or cost participation requirements?

1000.2185

Does Indian preference apply to services, activities, programs, and functions performed under a funding agreement?

1000.2190

Do the wage and labor standards in the Davis-Bacon Act apply to Tribes and Tribal Consortia?

1000.2195

Can a Tribe/Consortium use Federal supply sources in the performance of a funding agreement?

1000.2200

Does the Prompt Payment Act (31 U.S.C. 3901) apply to a BIA funding Agreement?

1000.2205

Does the Prompt Payment Act (31 U.S.C. 3901) apply to a non-BIA program funding agreement?

1000.2210

Is a Tribe/Consortium obligated to continue performance under a compact or funding agreement if the

Secretary does not transfer sufficient funds?

Subpart R—Appeals

1000.2301

What is the purpose of this subpart?

1000.2302

What does “title-I eligible programs” mean in this subpart?

1000.2305

How must disputes be handled?

1000.2310

Does a Tribe/Consortium have any options besides an appeal?

1000.2315

What is the Secretary's burden of proof for appeals in this subpart?

Informal Conference

1000.2320

How does a Tribe/Consortium request an informal conference?

1000.2325

How is an informal conference held?

1000.2330

What happens after the informal conference?

Post-Award Disputes

1000.2335

How may a Tribe/Consortium appeal a decision made after the funding agreement or compact or an amendment to a funding agreement or compact has been signed?

1000.2340

What statutes and regulations govern resolution of disputes concerning signed funding agreements or compacts (and any signed amendments) that are appealed to the CBCA?

Pre-Award Disputes

1000.2345

What decisions may a Tribe/Consortium appeal under §§ 1000.2345 through 1000.2395?

1000.2350

What decisions may not be appealed under §§ 1000.2345 through 1000.2395?

1000.2351

To Whom may a Tribe/Consortium appeal a decision made before the Funding Agreement, Amendment to the Funding Agreement, or Compact is signed?

1000.2355

How does a Tribe/Consortium know where and when to file an appeal?

Appeals to Bureau Head/Assistant Secretary

1000.2360

When and how must a Tribe/Consortium appeal an adverse pre-award decision to the bureau head/Assistant Secretary?

1000.2365

When must the bureau head (or appropriate Assistant Secretary) issue a final decision in the pre-award appeal?

1000.2370

When and how will the Assistant Secretary respond to an appeal by a Tribe/Consortium?

Appeals to IBIA

1000.2375

When and how must a Tribe/Consortium appeal an adverse pre-award decision to the IBIA?

1000.2380

What happens after a Tribe/Consortium files an appeal?

1000.2385

What procedures apply to Interior Board of Indian Appeals (IBIA) proceedings?

1000.2386

What regulations govern resolution of disputes that are appealed to the IBIA?

1000.2390

Will an appeal adversely affect the Tribe's/Consortium's rights in other compact, funding negotiations, or construction project agreement?

1000.2395

Will the decision on appeal be available for the public to review?

Appeals of an Immediate Reassumption of a Self-Governance Program

1000.2405

What happens in the case of an immediate reassumption under 25 U.S.C. 5366(b)?

1000.2410

Will there be a hearing?

1000.2415

What happens after the hearing?

1000.2420

Is the recommended decision always final?

1000.2425

If a Tribe/Consortium objects to the recommended decision, what action will the IBIA take?

1000.2430

Will an immediate reassumption appeal adversely affect the Tribe's/Consortium's rights in other self-governance negotiations?

Equal Access to Justice Act

1000.2435

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

Subparts S—Conflicts of Interest

1000.2501

Is a Tribe/Consortium required to have policies in place to address conflicts of interest?

1000.2505

What is an organizational conflict of interest?

1000.2510

What must a Tribe/Consortium do if an organizational conflict of interest arises under a funding agreement?

1000.2515

When must a Tribe/Consortium regulate its employees or subcontractors to avoid a personal conflict of interest?

1000.2520

What types of personal conflicts of interest involving Tribal officers, employees, or subcontractors would have to be regulated by a Tribe/Consortium?

1000.2525

What personal conflicts of interest must the standards of conduct regulate?

Subpart T—Tribal Consultation Process

1000.2601

What is the purpose of this subpart?

1000.2605

When does the Secretary consult with Tribes and Consortia on matters related to self-governance?

1000.2610

What principles should guide consultations with Tribes and Consortia?

1000.2615

What notice must the Secretary provide to Tribes and Consortia of an upcoming consultation?

1000.2620

Is the Secretary required to allow written comments by Tribes and Consortia following a consultation?

1000.2625

What record must the Secretary maintain following a consultation with Tribes and Consortia?

1000.2630

How must the Secretary handle confidential or sensitive information provided by Tribes and Consortia during a consultation?

Subpart A—General Provisions

§ 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).

§ 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 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.

§ 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.

§ 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) As reflected in H. Rept. 116-422 and S. Rept. 116-34, it is the policy of the PROGRESS for Indian Tribes Act, Public Law 116-180:

(1) To clarify and streamline the Department's process for approving self-governance compacts and funding agreements;

(2) To create consistency and administrative efficiencies between title IV and title V of Public Law 93-638, as amended; and

(3) To minimize delays to self-governance compacting or funding.

§ 1000.20

What is the Secretarial policy of this part?

In carrying out Tribal self-governance under title IV, it is the policy of the Secretary:

(a) To fully support and implement the foregoing policies to the full extent of the Secretary's authority.

(b) To recognize and respect the unique government-to-government relationship between Tribes, as sovereign governments, and the United States.

(c) To have all bureaus of the Department work to further and protect the trust responsibility of the United States with respect to Tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions.

(d) To have all bureaus of the Department work cooperatively and pro-actively with Tribes/Consortia on a government-to-government basis within the framework of the Act and any other applicable provision of law, so as to make the ideals of self-determination and self-governance a reality.

(e) To have all bureaus of the Department work to streamline the process for Tribes/Consortia participating in or applying to participate in self-governance to establish administrative efficiencies and consistency with the processes under title IV and title V of Public Law 93-638, as amended.

(f) To have all bureaus of the Department actively share information with Tribes and Tribal Consortia to encourage Tribes and Tribal Consortia to become knowledgeable about the Department's programs and the opportunities to include them in a funding agreement.

(g) To interpret each Federal law and regulation in a manner that facilitates the inclusion of programs in funding agreements and the implementation of funding agreements.

(h) That all bureaus of the Department will negotiate in good faith, liberally construe each applicable Federal law and regulation in a manner that will benefit Tribes and Tribal Consortia participating in self-governance and facilitate the inclusion of programs in each funding agreement authorized, and timely enter into such funding agreements under title IV, whenever possible.

(i) To afford Tribes and Tribal Consortia the maximum flexibility and discretion necessary to meet the needs of their communities consistent with their diverse demographic, geographic, economic, cultural, health, social, religious, and institutional needs. These policies are designed to facilitate and encourage Tribes and Tribal Consortia to participate in the planning, conduct, and administration of those Federal programs, included, or eligible for inclusion in a funding agreement.

(j) To the extent of the Secretary's authority, to maintain active communication with Tribal governments regarding budgetary matters applicable to programs subject to the Act, and that are included in an individual funding agreement.

(k) To implement policies, procedures, and practices at the Department to ensure that the letter, spirit, and goals of the Act are fully and successfully implemented to the maximum extent allowed by law.

(l) To ensure that Executive Order 13175 on Consultation and Coordination with Indian Tribal Governments and any subsequent Executive Orders regarding consultation will apply to the implementation of these regulations.

§ 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.

§ 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.

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

Purpose and Definitions

§ 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.

§ 1000.105

What is a “signatory”?

A signatory is a Tribe or Consortium that meets the eligibility criteria in §§ 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.

§ 1000.110

What is a “nonsignatory Tribe”?

(a) A nonsignatory Tribe is a Tribe that either:

(1) Does not meet the eligibility criteria in §§ 1000.115 and 1000.125 and, by resolution of its governing body, authorizes a Consortium to participate in self-governance on its behalf.

(2) Meets the eligibility criteria in §§ 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 §§ 1000.115 and 1000.125.

Eligibility

§ 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.

§ 1000.120

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

(a) The Secretary, acting through the Director of the OSG, may select not more than 50 new Indian Tribes per year from those Tribes eligible under 25 U.S.C. 5362(c) to participate in self-governance. A Consortium of Indian Tribes counts as one Tribe for purposes of calculating the 50 additional Tribes per year.

(b) The limitation of not more than 50 new Tribes per year does not preclude a signatory Tribe from negotiating a new or amended compact or funding agreement. Such new or amended compacts or funding agreements do not count against the limitation of not more than 50 new Tribes per year.

§ 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 § 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.

§ 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.

§ 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 §§ 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.

§ 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.

§ 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 § 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.

(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).

§ 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 § 1000.125.

§ 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

§ 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 § 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 § 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 § 1000.185.

§ 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.

§ 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 § 1000.160, submit to OSG documentation demonstrating continued eligibility under 25 U.S.C. 5362(c).

§ 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.

§ 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 § 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).

§ 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 § 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.

§ 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.

§ 1000.195

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

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

§ 1000.200

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

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

Withdrawal From a Consortium Funding Agreement

§ 1000.205

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

(a) A Tribe wishing to withdraw from all or a part of a Consortium's funding agreement must notify the parties to the compact and funding agreement. The notice must:

(1) Be in the form of a Tribal resolution or other official action by the Tribal governing body; and

(2) Be received no later than 180 days before the effective date of the next Consortium funding agreement, unless the parties agree to another date.

(b) The resolution referred to in paragraph (a) of this section must

indicate whether the Tribe wishes the withdrawn programs to be administered under a title IV funding agreement, title I contract, or directly by the bureau.

(c) The effective date of the withdrawal will be the date specified in the Tribal resolution and mutually agreed upon by the parties that signed the compact and funding agreement. In the absence of a specific time set forth in the resolution, such withdrawal becomes effective on:

(1) The earlier of one year after the date of submission of the request, or the date on which the funding agreement expires; or

(2) Such date as may be mutually agreed upon by the withdrawing Tribe and the parties that signed the compact and funding agreement.

§ 1000.210

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

When a Tribe eligible to enter into a contract under title I or a compact or funding agreement under title IV fully or partially withdraws from a participating Consortium, and has proposed to enter into a contract or compact and funding agreement covering the withdrawn funds:

(a) The withdrawing Tribe is entitled to its Tribal share of funds supporting those programs that the Tribe will be carrying out under its own contract or compact and funding agreement (calculated on the same basis or methodology upon which the funds were included in the Consortium's funding agreement); and

(b) The funds referred to in paragraph (a) of this section must be transferred from the Consortium's funding agreement, on the condition that the provisions of 25 U.S.C. 5321 and 5324(i), as appropriate, apply to the withdrawing Tribe.

§ 1000.215

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

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

§ 1000.220

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

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

§ 1000.225

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

When a Tribe withdraws from a Consortium, the Consortium's funding agreement must be reduced by the portion of funds attributable to the withdrawing Tribe. The Consortium must reduce the funding agreement on the same basis or methodology upon which the funds were included in the Consortium's funding agreement.

(a) If there is not a clear identifiable methodology upon which to base the reduction for a particular program, the parties to the compact and funding agreement must negotiate an appropriate amount on a case-by-case basis.

(b) If a Tribe withdraws in the middle of a funding year, the Consortium agreement must be amended to reflect:

(1) A reduction based on the amount of funds passed directly to the Tribe, or already spent or obligated by the Consortium on behalf of the Tribe; and

(2) That the Consortium is no longer providing those programs associated with the withdrawn funds.

(c) Unexpended funds from a previous fiscal year may be factored into the amount by which the Consortium agreement is reduced if:

(1) The parties to the compact and funding agreement and the withdrawing Tribe agree it is appropriate; and

(2) The funds are clearly identifiable.

§ 1000.230

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

(a) The withdrawing Tribe and the parties to the compact and funding agreement must reach an agreement on the amount of funding and other issues associated with the program(s) involved.

(b) If agreement is not reached:

(1) For BIA Programs, the Director of OSG must make a decision on the funding or other issues involved within 45-days of the Tribe's or Consortium's written submittal of the dispute to the Director of OSG with a copy to the other party.

(2) For non-BIA Programs, the bureau head will make a decision on the funding or other issues involved.

(c) A copy of the decision made under paragraph (b) of this section must be distributed in accordance with the following table:

If the program is administered through . . .

then a copy of the decision must be sent to . . .

(1) The BIA

The BIA Regional Director, the BIA Director, the withdrawing Tribe, and the Consortium.

(2) The BIE

The BIE Associate Deputy Director, the BIE Director, the withdrawing Tribe, and the Consortium.

(3) The BTFA

The BTFA Director, the withdrawing Tribe, and the Consortium.

(4) The Office of the Assistant Secretary—Indian Affairs

The Assistant Secretary for Indian Affairs, the withdrawing Tribe, and the Consortium.

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

§ 1000.235

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

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

(a) An example of a non-severable phase of a project would be the construction of a single building to serve all members of a Consortium.

(b) An example of a severable phase of a project would be the funding of a road in one village where the Consortium would be able to complete the roads in other villages that were part of the project approved initially in the funding agreement.

(c) The Secretary's decision under this section may be appealed under subpart R of this part.

Subpart C—Planning and Negotiation Grants for BIA Programs

§ 1000.301

What is the purpose of this subpart?

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

§ 1000.305

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

Yes, any Tribe/Consortium may apply, as provided in § 1000.315, for a grant to assist it to:

(a) Plan to participate in self-governance; and

(b) Negotiate the terms of the compact and funding agreement between the Tribe/Consortium and the Secretary.

§ 1000.310

What is required to request planning and negotiation grants?

A Tribe/Consortium seeking a planning or negotiation grant must submit the following:

(a) A resolution or other final action by the Tribe's/Consortium's governing body requesting to begin or expand its participation in self-governance and to receive a grant; and

(b) For a Tribe/Consortium required to perform an annual audit under the Single Audit Act and subpart F of 2 CFR part 200, evidence showing that the Tribe/Consortium has no uncorrected significant and material audit exceptions in the required annual audit of its self-determination or self-governance agreements with any Federal agency for the three fiscal years preceding its current request to participate in self-governance.

§ 1000.315

Are planning and negotiation grants available?

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

§ 1000.320

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

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

§ 1000.325

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

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

§ 1000.330

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

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

§ 1000.335

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

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

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