# Self-Governance PROGRESS Act Regulations > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-28302 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 11, 2024 - **Citation:** 89 FR 100228 ## Text DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 1000 [Docket No. BIA-2024-0001; 256A2100DD/AAKC001030/A0A501010.999900] RIN 1076-AF62 Self-Governance PROGRESS Act Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Final rule. SUMMARY: The U.S. Department of the Interior (Department), Office of the Assistant Secretary for Indian Affairs, is issuing revisions to the regulations that implement Tribal Self-Governance, as authorized by title IV of the Indian Self Determination and Education Assistance Act. This final rule has been negotiated among representatives of Self-Governance and non-Self Governance Tribes and the Department. DATES: This final rule is effective on January 10, 2025. • Information Collection Requirements: If you wish to comment on the information collection requirements in this final rule, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this final rule between 30 and 60 days after publication in the Federal Register . Therefore, comments should be submitted to OMB (see “Information Collection Requirements” section below under ADDRESSES ) by January 10, 2025. ADDRESSES: The Department has established a docket for the information collection action associated with this rule available at https://www.regulations.gov and by searching for Docket No. “BIA-2024-0001” or RIN “1076-AF62.” • Information Collection Requirements: Written comments and recommendations for the information collection request (ICR) should be sent within 30 days of publication of this notice to the OMB through https://www.reginfo.gov/public/do/PRA/icrPublicCommentRequest?ref_nbr=202410-1076-001 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.” Please provide a copy of your comments to the Department by email to consultation@bia.gov with “OMB Control Number 1076-0143” in the email's subject line. FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of Regulatory Affairs and Collaborative Action (RACA), Office of the Assistant Secretary—Indian Affairs, Department of the Interior, telephone (202) 738-6065, RACA@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 final rule is published in exercise of authority delegated by the Secretary of the Interior (Secretary) to the Assistant Secretary—Indian Affairs (Assistant Secretary; AS-IA) by 209 Department Manual 8 (209 DM 8). Table of Contents I. Background A. Statutory Authority B. Executive Summary C. Negotiated Rulemaking Process II. Public Engagement and Consultation III. Summary of Comments Received A. General Comments B. Section Comments C. Use of Received Feedback IV. Summary of Subparts and Changes by Section A. Subpart A—General Provisions B. Subpart B—Selection of Additional Tribes for Participation in Tribal Self-Governance C. Subpart C—Planning and Negotiation Grants D. Subpart D—Financial Assistance for Planning and Negotiations Activities for Non-BIA Bureau Programs E. Subpart E—Compacts F. Subpart F—Funding Agreements for BIA Programs G. Subpart G—Funding Agreements for Non-BIA Programs H. Subpart H—Negotiation Process I. Subpart I—Final Offer J. Subpart J—Waiver of Regulations K. Subpart K—Construction L. Subpart L—Federal Tort Claims M. Subpart M—Reassumption N. Subpart N—Retrocession O. Subpart O—Trust Evaluation P. Subpart P—Reports Q. Subpart Q—Operational Provisions R. Subpart R—Appeals S. Subpart S—Conflicts of Interest T. Subpart T—Tribal Consultation Process V. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866, 14094 and E.O. 13563) B. Regulatory Flexibility Act C. Congressional Review Act (CRA) D. Unfunded Mandates Reform Act of 1995 E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Reforming Federal Funding and Support for Tribal Nations (E.O. 14112) I. Consultation With Indian Tribes (E.O. 13175) J. Paperwork Reduction Act K. National Environmental Policy Act (NEPA) L. Energy Effects (E.O. 13211) M. Clarity of This Regulation I. Background A. Statutory Authority On October 21, 2020, the Practical Reforms & Other Goals to Reinforce the Effectiveness of Self Governance & Self Determination for Indian Tribes Act (PROGRESS Act) was signed into law. See, Public Law 116-180. The PROGRESS Act amends subchapter I of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301, which addresses Indian Self-Determination, and subchapter IV of the ISDEAA, which addresses the Department's Tribal Self-Governance Program. Section 413 of Public Law 116-180, 25 U.S.C. 5363 directs the Secretary to promulgate regulations using the negotiated rulemaking process to carry out subchapter IV of the ISDEAA, the Department's Tribal Self-Governance Program. Section 413(a)(3) of Public Law 116-180 establishes expiration of authority for the promulgation of such regulations. The Self-Governance PROGRESS Act Negotiated Rulemaking Committee (“Committee”) was established and commenced with the negotiated rulemaking process for this final rule. On April 20, 2023, the Committee's authority to promulgate regulations to meet the directive of the PROGRESS Act expired under section 413(a)(3) of the same statute, thus leaving the Committee with no authority to continue the negotiated rulemaking for this rule. Congress, however, on September 30, 2023, extended the Committee's authority until December 21, 2024. Public Law 118-15 at section 2102. B. Executive Summary This final rule updates the regulations implementing Tribal Self-Governance at the Department. While the final rule does incorporate terms and processes that may be common to self-governance at the Department of Health and Human Services (HHS) authorized by title V of the ISDEAA, and the Department of Transportation (DOT) authorized by 23 U.S.C. 207, it is not the intent of this final rule to define or regulate any term or process that is applicable to HHS or DOT, even where such terms or processes are common between the agencies. The final rule should not be construed to bind HHS or DOT to any particular interpretation of a term or process. Since the Department promulgated its title IV regulations in 2000, and Indian Health Service (IHS) promulgated its title V regulations in 2005, the agencies implement their ISDEAA self-governance programs differently due to the unique nature of the Programs, Services, Functions, and Activities (PSFA) they manage, the needs of their beneficiaries, and intentional policy choices. In many instances, this rule maintains those implementations and procedural differences because the Department is honoring the Committee's preference for maintaining past procedures, even where those procedures may differ from other agencies. Although the ISDEAA provides such discretion to the Secretary, given the longevity of these practices, the Committee's preference to maintain them, and the Department's desire not to unsettle expectations, the final rule continues some procedures that may differ from IHS. This final rule has been negotiated by representatives of Self-Governance and non-Self-Governance Tribes, and the Department (the “Committee”). The effect of the final rule is to transfer to participating Tribes control of, funding for, and decision making concerning certain Federal programs, consistent with updates contained in the PROGRESS Act. This final rule will have a negligible cost burden for Tribes currently participating in Self-Governance, some startup costs for Tribes not currently participating in Self-Governance, and some negligible new costs to the Federal Government. C. Negotiated Rulemaking Process The PROGRESS Act directed the Secretary to adapt negotiated rulemaking procedures regarding the unique context of self-governance and the government-to-government relationship between the United States and Indian Tribes. The PROGRESS Act also called for a negotiated rulemaking Committee to be established under 5 U.S.C. 565, with membership comprised only of representatives of Federal agencies and Tribal governments, with the Office of Self-Governance (OSG) serving as the lead agency for the Department. The Secretary charged the Committee with developing proposed regulations for the Secretary's implementation of the PROGRESS Act's provisions regarding the Department's Self-Governance Program. The Department published a Federal Register notice on February 1, 2021, 86 FR 7656, announcing the intent to establish a committee and soliciting nominations for membership on the Committee. The Department published a Federal Register notice on May 18, 2022, 87 FR 30256, announcing the formation of the Committee and identifying 14 Tribal representatives, and 12 Federal representatives. To fulfill the requirements for negotiated rulemaking and the Federal Advisory Committee Act, representatives reflect those currently participating in the Tribal Self-Governance Program and those that are not currently participating in, but are interested in, the Tribal Self-Governance Program. Additionally, Tribal representatives reflect a balance in terms of geographical location and size of the Tribe. Membership consists only of representatives of Federal and Tribal governments, with OSG serving as the lead agency. The Committee met fifteen times to negotiate the proposed regulations, resulting in the proposed rule that was published on July 15, 2024, 89 FR 57524. The Committee members and technical advisors organized themselves into two subcommittees and used the scheduled subcommittee meetings to develop draft materials and exchange information. The Committee's meeting minutes, and any materials approved by the full Committee, were made a part of the official record. After the proposed rule was published on July 15, 2024, 89 FR 57524, the Committee received written and verbal comments through consultation, which are summarized below. After consultation was completed, the Drafting Subcommittee of the Committee, met on multiple occasions to review comments received, discuss options to address interagency feedback, and attempt to reach consensus on recommendations to the Committee. The Committee met an additional two times (for a total of 17 meetings) and reached consensus in response to many of the issues as outlined in Section III, “Summary of Comments Received.” II. Public Engagement and Consultation The Department hosted three in-person consultation sessions on July 15, 17, and 19, and one virtual Tribal consultation session on July 22, on its proposed rule implementing the PROGRESS Act. Each session lasted approximately 2 hours. The Department received 492 individualized comments 1 from 27 Tribes; 8 national and inter-Tribal organizations and Tribal entities; and national law firms representing multiple Tribes and Tribal consortia exercising Tribal self-governance for their respective communities. Both the verbal and written comments support the Tribal positions on the non-consensus issues, detailed in the Committee Report dated April 12, 2024 (Committee Report). The main themes addressed in the comments were: 1 An individualized comment is a comment on a discrete issue or concern, raised by a commentator in response to the proposed rule, whether in writing or orally. For example, a written comment letter could have addressed several different issues or concerns. Also, during the consultations and listening session, a commentor could have orally discussed several different issues or concerns in their address. • The PROGRESS Act's rules of construction; • What contents compacts and funding agreements should include; • How inherent federal functions (“IFFs”) should be negotiated and determined; • Tribal authority to make final determinations under the Nation Environmental Policy Act (“NEPA”), the National Historic Preservation Act (“NHPA”), and other related laws; • How contract support costs (“CSCs”) are calculated for non-BIA programs; • What types of appeals are available to Indian Tribes participating in self-governance under title IV; • Suggested language and deletions to the proposed rule; and • Other comments more general in nature or relating to other areas of the proposed rule. III. Summary of Comments Received A. General Comments Many of these comments are general in nature: describing the unique histories of the commenting Tribes and their relationship to the Tribal self-governance program; asking the Department to reconsider its position on the non-consensus issues; comments thanking the Department for its work; and expressing appreciation for considering Tribal comments. Comments on Inherent Federal Function The Department will decide what functions are inherently Federal on a uniform case-by-case basis after consultation with the Office of the Solicitor. For current guidance on IFF determinations, please see Solicitor's memorandum dated May 17, 1996. The memorandum is available from the Office of Self-Governance upon request. The Department shall provide information on why specific functions have been determined inherently Federal to Tribes and Consortia in accordance with this part. The Department recognizes that title V of the ISDEAA delegates to Indian Tribes authority for final environmental determinations for construction projects. In negotiating with a Tribe/Consortium to include a construction project under this part, and how a Tribe/Consortium may assume some Federal responsibilities under 25 U.S.C. 5367(b), the Department will address the differences between title V (25 U.S.C. 5389(a)) and title IV (25 U.S.C. 5367(b)) of the ISDEAA through discussions with the Office of the Solicitor and in accordance with section 5(f) of Executive Order No. 14112, and the PROGRESS Act's rules of construction and interpretation. Many comments expressed concerns regarding what criteria the Department must consider when determining what are IFFs under title IV, as amended by the PROGRESS Act, and whether the issue of what is an “IFF” is a proper topic of negotiation between the Department and a Tribe/Consortium participating in self-governance. The Department acknowledges these comments. Several Tribes described past experiences negotiating with federal officials about IFFs, and noted their belief that the Department, in negotiation of self-governance agreements, often takes an overly expansive interpretation regarding what functions are inherently Federal and, therefore, not eligible for inclusion in a funding agreement. These commenters state that this approach comes at the expense of Tribal autonomy and self-governance objectives of the PROGRESS Act. Many commentors urged the Department to incorporate language from the long-standing Department Solicitor guidance to clarify all determinations of IFFs. The Department addressed the issue of which functions may be considered “inherently Federal” for purposes of 25 U.SC. 5363(k) as one of the four issues of disagreement between the Department and Tribes/Consortia in the final rule. Many commentors requested that the Department establish criteria for determining when a function is inherently federal and referenced suggested provisions that incorporate long-standing agency guidance from the 1996 Solicitor memorandum (“Leshy Memorandum”), IFFs under the Tribal Self-Governance Act, at 12 (May 17, 1996) (“The more a delegated function relates to tribal sovereignty over members and territory, the more likely it is that the inherently Federal exception of section 403(k) does not apply.”). Tribal commenters argue consistent and transparent criteria must be implemented on how IFF determinations will be made under title IV. Without such criteria, they suggest, the Department may fail to liberally construe each provision of title IV and each provision of a compact and funding agreement for the benefit of the Indian Tribe participating in self-governance, with any ambiguity to be resolved in favor of the Indian Tribe, and could instead assert inherent federal characteristics over many types of functions that the relevant bureau simply may not want to compact or contract. In these instances, the Tribal commentors assert that threshold criteria would help ensure consistent determinations across all relevant bureaus and offices within the Department. As the Tribal narrative articulates, the Department issued guidance in the Leshy Memorandum stating that any determination about the “inherently federal restriction can only be applied on a case-by-case basis.” The Department re-affirmed this position in a November 2022 Report on authorities that can support Tribal stewardship and co-stewardship. The federal position is that the Leshy Memorandum provides a framework for bureaus and offices of the Department to utilize when making a determination. The federal position is that particular phrases of that framework should not be codified in regulation in isolation but instead within the full context of the document. The Department expressed caution in creating a regulatory process that could, in practice, ask the Department to take a position on whether a “delegated PSFA relates to Tribal sovereignty.” As a matter of administrative law, this process could create unintended consequences or roadblocks to Tribes exercising their sovereignty by subjecting that potential exercise to a federal determination. The Department does not wish to create an administrative process that might result in an outcome detrimental to Tribal sovereignty. The Department, in establishing the final rule took significant actions to define a consistent and transparent procedure that it will follow when identifying IFFs and then calculating eligible tribal shares in turn. The Department feels that these portions of the final rule address the core concerns of many commenters and will better ensure consistency and transparency in determining eligible funds and that activities captured as inherently federal will be based on valid legal authority. Comments on Executive Order 13175, Executive Order 14112, and Secretarial Order 3403 Executive Order 13175 (E.O. 13175), also known as “Consultation and Coordination with Indian Tribal Governments,” establishes policies and principles for how the federal government should interact with Indian Tribal governments. Executive Order 14112 (E.O. 14112), also known as “Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self Determination,” directs agencies to reform their programs so that Tribal Nations have greater autonomy over how Tribal Nations invest federal funding, and to make federal funding less burdensome and more accessible for Tribal Nations. E.O. 14112 states that Tribal governments must be treated as permanent, equal, and vital parts of America's overlapping system of governments. Secretarial Order 3403 (S.O. 3403), also known as “Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters,” ensures that the U.S. Department of Agriculture (USDA) and the Department and their component Bureaus and Offices are managing Federal lands and waters in a manner that seeks to protect the treaty, religious, subsistence, and cultural interests of federally recognized Indian Tribes; that such management is consistent with the nation-to-nation relationship between the United States and federally recognized Indian Tribes; and, that such management fulfills the United States' unique trust obligation to federally recognized Indian Tribes and their citizens. Throughout many of the comments, commentors reminded the Department of its trust and treaty obligations under the Constitution of the United States, E.O. 13175, E.O. 14112, and S.O. 3403. Many commentors reminded the Department that as it completes the rulemaking process that the Department implement E.O. 13175 and E.O. 14112, and the Presidential Memorandum dated January 26, 2023, which represent the Administration's respect for sovereignty, and commitment to ushering in the next era of Tribal self-determination by ensuring that Tribal Nations have greater autonomy in all aspects of self-governance. One commentor stated that these policies will have no meaning without accompanying meaningful and respectful actions, including in the PROGRESS Act rulemaking that requires the Department to act in good faith and fully uphold the right of Tribes/Consortia to self-govern. One Commentor noted that recognition of the importance of Indigenous Knowledge by Federal agencies is an express requirement of E.O. 14112. One commentor stated that the Department's position concerning IFFs is untenable given the goals and objectives outlined in E.O. 14112 and S.O. 3403, noting that in the commentor's experience, negotiating transferrable programs and activities is the lengthiest portion of the process due to the fact that agencies are often unwilling to acknowledge or accept Tribal or consortia capacity and traditional ecological knowledge. Another commentor stated that Tribal traditional ecological knowledge has been left out of the regulations. Many commentors noted that the PROGRESS Act was the direct result of Congress acknowledging that there needed to be an overhaul of title IV to correct bureaucratic processes and procedures that the Department imposed that either discouraged or hindered negotiations between Tribes and the Department. Many commentors asserted that the Indian canons of construction should be applied during Tribal consultation activities, and any ambiguities in law or policy should be interpreted in favor of Tribes in accordance with E.O. 13175, Sec. 6, and E.O. 14112, section 5. Commentors urged the Department to take these directives into account when developing the final rule. One commentor noted that Department negotiators often take an expansive interpretation of what functions are Inherently Federal with the objective to preserve work and jobs for Federal employees at the expense of Tribal autonomy and self-governance objectives. Another commentor noted that E.O. 14112 aims to increase flexibility by reducing administrative burdens and facilitating access to federal funding and resources. Many commentors stated that the Tribal representatives' position that the PROGRESS Act permits Tribes/Consortium to make final determinations under NEPA and related environmental laws are firmly grounded in E.O. 14112. A commentor stated that the Tribal position concerning environmental determinations under NEPA is consistent with CEQ's revised regulations, 40 CFR part 1500 et seq., that went into effect on July 1, 2024. A commentor noted that the Department's position is a step back for self-governance and fundamentally at odds with the most basic tenets of Tribal self-governance policy. A commentor stated that sound policy considerations by the Department, including adherence to E.O. 14112, can lead the Department to issue a final rule that decreases litigation risk and the attendant ramifications. Throughout the comments, there were repeated instances where Tribes suggested improvements to the language of the proposed rule that would further implement the intent of E.O. 13175, E.O. 14112, and S.O. 3403. The Committee considered all the comments and implemented many of the suggestions. The Committee made changes to the final rule to define when and how Indigenous Knowledge can be used (§ 1000.20 and § 1000.1390), significant updates to the appeals process to give Tribes more options subpart R (Appeals), updates to how Public Law 102-477 is referenced, and changes to subpart G (Funding Agreements for Non-BIA Programs) related to clarifying CSCs. There were also areas where commentors made suggestions to change the proposed rule, citing E.O. 14112, but after review by the Committee those changes were not implemented. This includes proposed changes related to clarifying whether IFFs can be negotiated (§ 1000.695) and requests to add additional sections to subpart K (Construction). The Department acknowledges these comments and further explains below why the changes were not implemented. The Department is committed to upholding the federal government's trust and treaty obligations as reiterated in E.O. 13175, E.O. 14112, and S.O. 3403. The Department is dedicated to ensuring that Tribes are able to exercise sovereignty though self-governance and self-determination by ensuring that Federal programs, to the maximum extent possible and practicable under Federal law, provide Tribal Nations with the flexibility to improve economic growth, address the specific needs of their communities, and realize their vision for their future. The Department is appreciative of the work of the Tribal members on the negotiated rulemaking committee as well as all of the Tribal engagement throughout the rulemaking process. This final rule reflects the good faith collaboration between the federal government and Tribal governments. Comments on the Rules of Construction Many Tribal commentors underscored the rules of construction within the PROGRESS Act, at sections 406 and 409. Tribal commenters read those sections to require liberal interpretation of the language in the statute, and therefore the contents of its regulations. Specifically, they note that ambiguities should be resolved in favor of the compacting Tribes/Consortiums and that the PROGRESS Act must be implemented in a manner that facilitates inclusion of programs in the Tribal Self-Governance program. The liberal interpretation comments are intended to be overarching and suggest that, with respect to the non-consensus issues, the Department should bend towards the Tribal positions where there is ambiguity. According to the Tribal commenters, Congress said so in the PROGRESS Act, as evidenced in sections 406 and 409. The comments further noted concern that the Department was ignoring the clear directives from Congress in the PROGRESS Act and cherry-picked statutory provisions to undermine the Tribal efforts to resolve differences. The comments asked the Department to reconsider the Department's position on non-consensus issues as negotiations continued to consider the long-standing Indian canons of construction. The Department acknowledges these comments, using the comments and feedback to inform the final rule. Comment on Clean Energy Promotion One comment requested a focus on clean energy through biomass, woody byproducts, or cogeneration. The Committee acknowledges the comment. The Department agrees that the use of clean energy can be an important component of projects implemented under this rule. Comment on Co-Management One comment requested that co-management be included in the final rule in response to including Indigenous Knowledge. The example provided is to assist Tribal communities who deal with forest fires and working with the U.S. Forest Service to coordinate and create an economic plan to develop restoration projects and allowing Tribal communities to implement traditional ecological knowledge into the plan as part of co-management. The Committee acknowledges the comment to allow Tribes and Tribal Consortia the maximum flexibility and discretion necessary to meet the needs of their communities consistent with their diverse demographic, geographic, economic, cultural, health, social, religious, and institutional needs. This includes recognition of and support for Indigenous Knowledge to be included into the final rule. This rule does not apply to the U. S. Forest Service. Comment on Committee Consensus One comment indicated support for the regulations developed in consensus with the Committee. The Department acknowledges the comment. Comment on the Federal Regulations One comment suggested revisiting federal regulations to allow Tribes the ability to develop infrastructure within their lands, which has aged and needs replacement with modernized equipment to meet future demands and avoid potential impact on the Tribe's public safety and health. The Committee acknowledges the comment. Under subpart K (Construction), this final rule provides that the Secretary may accept funds from other departments for construction projects or programs, subject to an interagency agreement, between the Secretaries, with Tribal concurrence. Comments in General Numerous commentors thanked the Committee for their work in coming to consensus on most of the areas at issue in the PROGRESS Act. However, they noted a desire for the Department to lean towards the Tribal positions on areas of non-consensus to advance Tribal self-governance and comply with the intent of the PROGRESS Act. The Department acknowledges these comments as federal members committed themselves to participate in good faith during all negotiations and discussions. Comments on the Publication of Final Rule Numerous comments asked the Department to ensure that the rule be published before the sunset date of December 21, 2024. The Department is committed to publishing the final rule before this deadline. Comments on the Department's Handling of Trust Responsibility A few comments noted that the Department does not always handle well the conflicts of interest that exist between its bureaus and its trust responsibility to Tribes and their members. Despite the PROGRESS Act's clear mandate that the Secretary does not waive, modify, or diminish, in any way, the trust responsibility to Tribes and individual Indians, and its obligation to empower Tribes, too often the interest of non-BIA bureaus take precedence over the ever-growing needs of Indigenous peoples. The Department acknowledges these comments. The Department is committed to ensuring that the trust and treaty responsibilities owed to Tribes is met. The effect of this final rule is to transfer to participating Tribes control of, funding for, and decision making concerning certain Federal programs, consistent with updates contained in the PROGRESS Act. B. Subpart Comments Subpart A—General Provisions Comments on § 1000.10—What is the purpose and scope of this part? A few comments were received that these provisions of title IV do not govern any other program of self-governance other than under title IV and do not bind any other cabinet Secretary or agency other than the Secretary of the Interior. While the rule does incorporate terms and processes that may be common to self-governance at HHS authorized by title V of the ISDEAA, and DOT authorized by 23 U.S.C. 207, it is not the intent of this rule to define or regulate any term or process that is applicable to HHS or DOT, even where such terms or processes are common between the agencies. The rule should not be construed to bind HHS or DOT to any particular interpretation of a term or process. Comments on § 1000.15—What is the congressional policy statement of this part? The Committee received comments concerning the congressional policy statement. After deliberations by the Committee, it was the consensus of the Committee to revise § 1000.15(c)(2) to replace the phrase “create consistency and administrative efficiencies between title IV and title V of Public Law 93-638” with the phrase “create similarities and administrative efficiencies between title IV and title V of Public Law 93-638” to more accurately reflect the content of the final rule. Comments on § 1000.20—What is the Secretarial policy of this part? Several comments were received that the final rule at § 1000.20 should fully implement the rules of construction required by the PROGRESS Act. While § 1000.20 incorporates elements of these provisions, section 406(i), of the PROGRESS Act, 25 U.S.C. 5366(i), directs that, subject to section 101(a) of the PROGRESS Act, 25 U.S.C. 5361(a) note, “each provision of this subchapter [title IV] and each provision of a compact or funding agreement shall be liberally construed [by the Secretary] for the benefit of the Indian Tribe participating in self-governance, and any ambiguity shall be resolved in favor of the Indian Tribe.” This interpretation is not set out with clarity in § 1000.20. The Committee agreed with the comments and accepted most of the language offered in the final rule. This will support the Department in its efforts to maximize implementation of the Self-Governance Policy and carry out title IV. Comments on § 1000.35—What happens if a court holds any provisions of these regulations in this part invalid? The Department added a new section § 1000.35 on severability. While this rule is intended to create streamlined and consistent processes for Self-Governance under title IV, if a court holds any provision of one part of this rule as finalized invalid, it should not impact the other parts of the rule, which would remain in force. The intent of this rule is to implement the Department's Self-Governance program, but the rule is not an interdependent whole—other provisions of the rule would implement that intent even if a court declared certain provisions invalid. Subpart B—Selection of Additional Tribes for Participation in Tribal Self-Governance Comment on § 1000.178—[Section Does Not Exist in the Proposed Rule] See comment on subpart H (Negotiation Process)—§ 1000.1075—When does the funding agreement become effective? Subpart C—Planning and Negotiation Grants for BIA Programs Comments on § 1000.301—[Section Does Not Exist in the Proposed Rule] See comment on subpart K (Construction)—§ 1000.1301—What key construction terms do I need to know? Subpart D—Financial Assistance for Planning and Negotiation Activities for Non-BIA Bureau Programs The Committee did not receive comments related to this subpart. Subpart E—Compacts Comments on § 1000.510—What is included in a self-governance compact? And § 1000.515—What provisions must be included in either a compact or funding agreement? The Committee did not come to agreement on § 1000.510(e) and § 1000.515. The central focus of the concerns regarded satisfying the requirements of 25 U.S.C. 5365(a), which provides that “[a]n Indian Tribe and the Secretary shall include in any compact or funding agreement provisions that reflect the requirements of this title,” i.e., title IV of the ISDEAA, addressing Tribal Self-Governance. The view of the Tribal team and many Tribal comments is that simplified Tribal assurances included in a compact and/or funding agreement that provide that the Tribe/Consortium will comply with the requirements of title IV is sufficient to satisfy the statutory requirement in 25 U.S.C. 5365(a). Many Tribal comments stated that the Department's interpretation of 25 U.S.C. 5365 undermines compact negotiations and is contrary to the PROGRESS Act and the intent of Congress in the PROGRESS Act to streamline regulations and the content of compacts and funding agreements. The Tribal view is that the requirements of title IV can be better reflected through regulatory language that states that the Tribe/Consortium, in either their compact or funding agreement, will attest to compliance with title IV, or otherwise state that they will carry out the compact or funding agreement “in accordance with the requirements of title IV.” The Tribal view is that § 1000.510(e) and § 1000.515 are excessive and not properly tailored to reflect the requirements of title IV. Several Tribal comments objected to § 1000.510(e) and § 1000.515, and recommended those provisions be deleted. These comments considered detailed compliance provisions in a compact or funding agreement to be overburdensome, unnecessary, excessive, unproductive to the good-faith negotiation process, and likely to cause delays. These comments similarly noted the potential of these provisions to lead to dispute resolution or litigation. Instead, the Tribal comments recommended that compacts or funding agreements contain an attestation affirming compliance in accordance with the requirements of the PROGRESS Act. The Tribal comments recommended such attestation to streamline negotiation and administrative processes and to comply with the PROGRESS Act's rules of construction and liberal interpretation, and with the Paperwork Reduction Act. The Department view is that relevant provisions of the PROGRESS Act indicate certain provisions or language must be included in a funding agreement or a compact. For example, 25 U.S.C. 5366(b)(1) directs that “[a] compact or funding agreement shall include provisions for the Secretary to reassume a program and associated funding if there is specific finding relating to that program. . . .” As another example, 25 U.S.C. 5363(e)(2) authorizes the parties to specify an effective date for retrocession to “. . .become effective on the date specified by the parties in the compact or funding agreement.” The Department view is informed by experience when encountering a problem in the execution of a compact or funding agreement. In such situation, a primary question involves clarifying the agreed upon terms of the compact or funding agreement as to a particular outcome. For example, in a dispute about retrocession, the first area reviewed is what does the compact or funding agreement say about retrocession. Also, non-parities with an interest to the compact or funding agreement, such as auditors, inspectors, courts of jurisdiction, other federal agencies, etc., would benefit from clearly stated provisions rather than from a general attestation. The Department believes that clearly specifying terms in a compact and funding agreement best addresses the expectations and interests of both parties. The Department does not anticipate that the requirements in § 1000.510(e) and § 1000.515 will require new edits to most existing compacts or funding agreements. The Federal team expects that most existing compacts and funding agreements satisfy the requirements in § 1000.510(e) and § 1000.515 if those compacts or funding agreements restate applicable statutory requirements for the specified topics referenced in § 1000.515. The Committee did not reach consensus on the language in § 1000.510(e) and § 1000.515 because the Tribal committee members did not agree with the Department's underlying interpretation of 25 U.S.C. 5365(a). The final rule reflects the Federal view on this matter. Subpart F—Funding Agreements for BIA Programs Comments on § 1000.610—What must be included in a funding agreement? See the comments, discussion, and response above in subpart E (Compacts). The Committee did not agree on this matter and the final rule reflects the Federal view at § 1000.610(b). Comments on § 1000.690—How does BIA determine the funding amount to carry out inherent Federal functions? Commentors stated their support for the proposed language in § 1000.690(f)(1), reiterated the importance of consistency and uniformity within BIA Regions, and referenced previous situations in which Tribes feel that BIA took an expansive interpretation of IFFs and the associated programs funds to fulfill them and thus reduced the amount of contractable or compactable funds available to Tribes/Consortium. The Committee acknowledges these comments as the language in proposed rule addresses this concern by requiring “uniformity and consistency in the identification of inherent Federal functions.” Comments on § 1000.695—Is the amount of funds withheld by the Secretary to cover the cost of inherent Federal functions subject to negotiation? Several commentors supported the views and regulatory text articulated in the Committee's Report on proposed § 1000.695, further requesting changes to the proposed rule, to state generally that IFFs are a permissible topic of discussion during the negotiation process. The Committee acknowledges these comments and declines to make the requested changes. The Department believes that the breadth of negotiation topics is adequately set out in the final rule. Subpart G—Funding Agreements for Non-BIA Programs Comments on § 1000.845—Are there any non-BIA programs that may not be included in a funding agreement? Tribal comments urged the Department to revise proposed § 1000.845 to include a core principle of the Leshy Memorandum. Many commentors agreed and asserted that providing transparent guidance would aid negotiators of non-BIA agreements and reflect compliance with the Supreme Court opinion in U.S. v Mazurie, 419 U.S. 544 (1975). Commentors asserted that inclusion in the regulations of this basic principle would help provide parity between Tribal and Federal representatives when negotiating agreements and would advance fundamental Self-Governance objectives. The Department acknowledges the comments and did not accept the recommendation to revise § 1000.845. The Department will apply the principles of the Leshy Memorandum on a case-by-case basis when determining whether a function requested for inclusion in the funding agreement by a participating Tribe/Consortium is an IFF. The section references the PROGRESS Act's definition of IFF, 25 U.S.C. 5361(6), and the requirement in 25 U.S.C. 5363(k) that directs how the Department evaluates such issues. Some Tribal commentors expressed previous difficulties in negotiating IFFs with particular agencies. Another Tribal comment disagreed with the federal assessment that formal adoption of the Leshy Memorandum would result in additional administrative process. The Committee acknowledges these comments as § 1000.845 addresses what may not be included in a funding agreement. Two comments on specific agency decisions on IFF positions do not go to the regulation. These comments were forwarded to the relevant agency to consider. Comments on § 1000.885—What funds are included in a non-BIA funding agreement? Many commentors urged the Department to revise proposed § 1000.885(b)(iii) to ensure that Tribes/Consortia receive full CSCs under section 106(a) of the PROGRESS Act, 25 U.S.C. 5325, including direct CSCs. Commentors requested the Department to insert the citation in the proposed section and strike the reference to congressional appropriations. The Department acknowledges the comments. As concerns section 403(c) programs, 25 U.S.C. 5363(c), eligible for inclusion in a funding agreement under the PROGRESS Act, the proposed section stated that the funding agreement will include the following: (i) amounts equal to the direct program or project costs the bureau would have incurred were it to operate that program at the level of work mutually agreed to in the funding agreement; (ii) allowable indirect costs; and (iii) such amounts as the Tribe/Consortium and the Secretary may negotiate for pre-award, start-up, and direct contract support costs, or upon appropriations by Congress. Many commentors took issue with the phrase “or upon appropriations of such funds by Congress” reflected in proposed § 1000.885(b)(1)(iii). Commentors believed that the reference to Congressional appropriations will deprive Tribes/Consortia of their full CSC funds, place a financial burden on Tribes/Consortia, and serve as a deterrent to their negotiating the inclusion of such programs in compacts and funding agreements. After review of the comments and further deliberations by the Committee, the Department accepts the recommendation. The final rule § 1000.885(b)(1)(iii) states that non-BIA bureaus determine the amount of funding to be included in the funding agreement using the following principles: (iii) Such amounts as the Tribe/Consortium and the Secretary may negotiate for pre-award, start-up, and direct CSCs. Comment on § 1000.895—How does the Secretary determine the amount of indirect costs? A comment was received asking the Committee to clarify this question by adding non-BIA funding to the question and initial part of the response and by adding “and making other adjustments required by the PROGRESS Act” to the end of § 1000.895(a). The Committee agreed with this comment and implemented the proposed change into the final rule. Subpart H—Negotiation Process Comment on § 1000.1075—When does the funding agreement become effective? One comment referenced § 1000.178. This comment addressed eliminating the 2001 prior rule for self-governance at § 1000.178 that required once a funding agreement is signed, the effective date would be 90 days after it is submitted to the House Subcommittee on Native Americans and Insular Affairs and the Senate Committee on Indian Affairs. This requirement to submit the funding agreement to the Congressional committees was eliminated in the PROGRESS Act and therefore not addressed in this rule. The final rule at § 1000.1075 makes a funding agreement effective on the date it is executed or otherwise begins according to the agreement terms. The Committee acknowledges the comment with no further changes to this subpart. Subpart I—Final Offer The Committee did not receive comments related to this subpart. Subpart J—Waiver of Regulations Comments on § 1000.1240—When must the Secretary make a decision on a waiver request? Two commenters pointed out that the Department has two statutory provisions that authorize Tribes to request waivers using a set timeline for the Secretary's consideration of the waiver, 25 U.S.C. 5363(i)(2)(A) (provides 60-day review period) and 25 U.S.C. 5369(b) (provides 120-day review period). The comment pointed out that the proposed regulations do not reference either statutory provision, and the process calls for a 120-day review period, which tracks with the language at 25 U.S.C. 5369(b). The final rule describes the timeline for the Secretary to make a waiver decision for Tribes in § 1000.1240 as the 120-day decision review period. The Committee determined to select the 120-day timeline to follow, as it was most closely applicable to title IV. The Committee assumed that the conflict in the statutory provisions was a drafting mistake that occurred when the PROGRESS Act was developed. The Committee believes this issue can be addressed at a later date through a technical correction or an amendment that affirms the correct statutory provision is 25 U.S.C. 5369(b)(2). Subpart K—Construction Several comments expressed the view that making final determinations under NEPA is not an inherently federal function and should be contractable by Tribes/Consortia that comply with 25 U.S.C. 5367(b). These views referred to section 5367(b) that, subject to an agreement with the Secretary as limited by 25 U.S.C. 5367(c), requires a Tribe/Consortium electing to assume some Federal responsibilities under NEPA, the NHPA and related provisions of other laws and regulations to designate a certifying Tribal officer to represent the Tribe/Consortium and “to assume the status of a responsible Federal official under those Acts, laws, or regulations.” Under the statute, the Tribe/Consortium must also “accept the jurisdiction of the United States courts for the purpose of enforcing the responsibilities of the certifying Tribal officer assuming the status of a responsible Federal official under those Acts, laws, or regulations.” The comments stated that when these provisions are combined with the Department's definition of a “responsible official” (43 CFR 46.30) as the individual designated “to make and implement a decision on a proposed action and is responsible for ensuring compliance with NEPA,” the Council on Environmental Quality's (CEQ) revised NEPA regulations at 40 CFR part 1508 (May 1, 2024), that define the term “Federal agency” to include States, units of general local government, and “Tribal governments assuming NEPA responsibilities from a Federal agency pursuant to statute,” and the PROGRESS Act's “rules of construction” at 25 U.S.C. 5366(i) directing that each provision of the PROGRESS Act “be liberally construed for the benefit of the Indian tribes and any ambiguity shall be resolved in favor of the Indian tribe,” there is compelling support for the Tribes' position. The comments further noted that the Department should give full expression to all the terms of the PROGRESS Act and Congressional intent to further empower Tribes to make final determinations under NEPA, the NHPA, and related environmental laws, citing to 25 U.S.C. 5369(a) providing that “the Secretary shall interpret each Federal law and regulation in a manner that facilitates the inclusion of programs in funding agreements and the implementation of funding agreements.” The comments stated that this lends further support for a favorable interpretation of CEQ and Department NEPA regulations to delegate the authority for making a final determination and cited that the PROGRESS Act revised the definition of the term “construction program; construction project” to mean a “Tribal undertaking” that includes “environmental determination.” 25 U.S.C. 5361(2). Additional comments noted that the PROGRESS Act was intended to conform title IV of the PROGRESS Act with title V of the ISDEAA that requires Tribes and Tribal Consortiums to assume Federal responsibilities for all NEPA functions, including final determinations, as a condition for assuming a construction program. Commentors stated that “some” means something different than “all,” but the Department's insistence that “some” must therefore mean “not final determinations” ignores the plain language of the word “some,” which simply means “at least one.” See, e.g. “some” ( www.merriam-webster.com/dictionary/some ). The Department acknowledges the comments and notes as a threshold matter that while title V of the ISDEAA at 25 U.S.C. 5389(a) mandates that Tribes take responsibility for “all Federal responsibilities” for NEPA functions as a condition of assuming a construction program or project, the PROGRESS Act does not impose the same requirement and uses different terminology at 25 U.S.C. 5367(b), providing for a “Tribal Option to Carry Out Certain Federal Environmental Activities,” including “some Federal responsibilities” involving NEPA and related functions, under an “agreement by the Secretary,” as limited by 25 U.S.C. 5367(c). The Department will decide what functions are inherently Federal on a case-by-case basis after consultation with the Office of the Solicitor. For current guidance on inherently Federal functions (IFF) determinations, please see Solicitor's memorandum dated May 17, 1996. The Memorandum is available from the Office of Self-Governance upon request. The Department shall provide information on why specific functions have been determined to be inherently Federal to Tribes and Consortia in accordance with this part. The Department recognizes that title V of the ISDEAA delegates to Indian Tribes authority for final environmental determinations for construction projects. In negotiating with a Tribe/Consortium to include a construction project under this subpart, and how a Tribe/Consortium may assume some Federal responsibilities under 25 U.S.C. 5367(b), the Department will address the differences between title V (25 U.S.C. 5389(a)) and title IV (25 U.S.C. 5367(b) of the ISDEAA through discussions with the Office of the Solicitor and in accordance with section 5(f) of E.O. 14112, and the PROGRESS Act's rules of construction and interpretation. Comment on § 1000.1301—What key construction terms do I need to know? There were comments received that referenced § 1000.301. However, the comment addresses § 1000.1301 in subpart K (Construction) in the proposed rule that the final rule should include a definition of “Categorical Exclusion” to be defined as the same definition found in the Department of Health and Human Services construction definitions found at 42 CFR 137.280. The Department should consider including in the final rule the definition set out in CEQ's revised 40 CFR 1508 regulations issued on May 1, 2024. The Department acknowledges these comments, and the Committee declined to add the definition. First, it is established by another agency and could change over time, potentially resulting in unnecessary confusion. Additionally, the potential scope of projects requiring NEPA compliance under these regulations encompasses multiple bureaus within the Department, as opposed to the limited scope of projects at the Department of Health and Human Services. Finally, each Departmental bureau maintains a list of categorical exclusions relevant to projects it oversees and these change over time, as well. See Department of the Interior Manual (at Part 516). Subpart L—Federal Tort Claims The Committee did not receive comments related to this subpart. Subpart M—Reassumption The Committee did not receive comments related to this subpart. Subpart N—Retrocession The Committee did not receive comments related to this subpart. Subpart O—Trust Evaluation The Committee did not receive comments related to this subpart. Subpart P—Reports The Committee did not receive comments related to this subpart. Subpart Q—Operational Provisions The Committee received one comment related to this subpart. In § 1000.2130, the rule sets forth how much time the Federal Government has to make a claim against a Tribe/Consortium related to the disallowance of cost, based on an audit. The comment suggested the audit be particular to a title IV audit. The Committee agreed and title IV was inserted before the word audit to clarify this provision applies to title IV audits. Subpart R—Appeals This subpart prescribes the process Tribes/Consortia may use to resolve disputes with the Department arising before or after execution of a funding agreement or compact and certain other disputes related to self-governance. Three Tribal comments requested greater flexibility in the appeals process generally. Several Tribal comments offered draft language to the regulatory text that would provide Tribes/Consortia with the option to file an administrative appeal with either the Interior Board of Indian Appeals (IBIA) or an appropriate bureau head or Assistant Secretary of disputes with the Department arising before execution of a funding agreement, amendment to a funding agreement, or compact and certain other disputes related to self-governance. Specifically, comments proposed deleting § 1000.2302 (“What does `title-I eligible programs' mean in this subpart?”) to remove any reference to “title-I eligible programs” within the subpart, and to strike and replace § 1000.2351 (“To Whom May a Tribe/Consortium Appeal a Decision under § 1000.2345?”) with language allowing for Tribes/Consortia to file an eligible appeal under the subpart with either the IBIA or an appropriate bureau head/Assistant Secretary. The comments noted that adopting this position would address current delays under the IBIA system and the negative impacts from such delays. Comments noted that the Department should adopt this change and resolve this issue of non-consensus in the finalized rule to comply with E.O. 14112 and the PROGRESS Act's rules of construction. Some comments also recommended these revisions to the final rule to build capacity for an administrative appeals process with the bureau head/Assistant Secretary level to promote predictability, reduce uncertainty, and use the least burdensome tools to achieve regulatory ends as set out in E.O. 12866, as supplemented by E.O. 13563. The Committee agreed to revise the subpart to provide that Tribes/Consortia may elect to file an appeal of eligible pre-award disputes with an appropriate bureau head or Assistant Secretary through the following revisions to the subpart's current language: (1) deleting § 1000.2302 to remove any references to “title-I eligible programs” within the subpart; (2) revising § 1000.2351(b) to add the term “initial” in the phrase “the bureau head will decide initial appeals relating to these pre-award matters;” and (3) striking the language in § 1000.2351(b)(i), “Programs that are not PSFAs that the Secretary provides for the benefit of Indians because of their status as Indians without regard to the agency or office of the Department within which the PSFAs have been performed.” The Committee added a new § 1000.2357 (“Which official is the appropriate bureau head or Assistant Secretary for purposes of subpart R?”). Section 1000.2357(a) provides a chart indicating the relevant official to whom a Tribe/Consortium may file its initial request for appeal when exercising its appeal rights to the bureau head/Assistant Secretary under § 1000.2351 for any BIA Program. Section 1000.2357(b) states that the Assistant Secretary for Indian Affairs is the appropriate Assistant Secretary for reviewing appeals for BIA Programs in accordance with § 1000.2370. Finally, § 1000.2357(c) identifies the appropriate bureau head/Assistant Secretary for non-BIA Program appeals pursuant to § 1000.2351. In accordance with § 1000.2355, the Department will identify the appropriate bureau head/Assistant Secretary in any required information. Subpart S—Conflicts of Interest The Committee did not receive comments related to this subpart. Subpart T—Tribal Consultation Process The Committee did not receive comments related to this subpart. C. Use of Received Feedback The Committee used all received feedback to inform this final rule and made changes to this final rule based on received feedback. VI. Summary of Changes by Subpart Into the Final Rule The following summary describes each subpart of the Department's final regulations to implement the PROGRESS Act. The Department's amendments incorporated comments on the proposed rule received during Tribal consultation, as discussed above in Section III, “Summary of Comments Received,” as well as received during the E.O. 12866 interagency review process. The Department, in negotiation with the Committee makes these changes in the final rule. A. Subpart A—General Provisions This subpart contains the authority, purpose and scope of the final rule, and the Congressional and Secretarial policies that will guide the implementation of the ISDEAA, as amended by the PROGRESS Act, by the Secretary and the various bureaus of the Department. The subpart also defines terms used throughout the final rule consistent with the PROGRESS Act. This subpart further clarifies the effect of 25 CFR part 1000 on existing Tribal rights, including Tribal sovereign immunity from suit, the United States' trust responsibility, a Tribe's choice to participate in self-governance, or the issuance of awards by other departments or agencies to Tribes. Additionally, this subpart identifies the application of any agency circular, policy, manual, guidance, or rule adopted by the Department on self-governance Tribes/Consortia. This subpart identifies when and how to implement Indigenous Knowledge in projects. Finally, this subpart provides that should a court hold any provision of one part of this rule as finalized invalid, it should not impact the other parts of the rule. Amendments to § 1000.15—What is the congressional policy statement of this part? The Committee revised the phrase “create consistency and administrative efficiencies between title IV and title V of Pub. L. 93-638” with the phrase “create similarities and administrative efficiencies between title IV and title V of Public Law 93-638” to more accurately reflect the content of the final rule. Amendments to § 1000.20 What is the Secretarial policy of this part? The Committee added language to the Secretarial policy of this part to assure that this part be interpreted to facilitate inclusion of programs in funding agreements and the implementation of funding agreements. The proposed edits include language that is added to maximize implementation of the secretarial policy in all bureaus of the Department, and to ensure that where provisions of funding agreements and compacts are ambiguous that the ambiguity be resolved in favor of the Tribe or Consortium. The Committee also added a provision to include, recognize, and support Indigenous Knowledge to be applied when performing PSFAs. The edits were made to improve clarity and respond to comments received during the government-to-government consultation. Amendments to add § 1000.35—What happens if a court holds any provisions of these regulations in this part invalid? The Department added a new section to make explicit its intent that if a court were to hold any provisions of the final rule invalid, that provision would be severable and the remaining provisions of the rule should remain in force. As noted in the Preamble, the intent of this rule is to implement the Department's Self-Governance program, and the several provisions of this rule can continue to effectuate that intent even if one or more of those provisions were declared to be invalid by a court. B. Subpart B—Selection of Additional Tribes for Participation in Tribal Self-Governance This subpart describes the steps a Tribe/Consortium must take to participate in Tribal self-governance and the selection process and eligibility criteria that the Secretary will use to decide whether a Tribe/Consortium may participate. Under the PROGRESS Act, a Tribe/Consortium is eligible to participate in self-governance if it submits documentation to OSG demonstrating: (1) successful completion of a planning phase; (2) a request to participate in self-governance by a Tribal resolution and/or final official action; and (3) financial stability and financial management capability through evidence of having no uncorrected significant and material audit exceptions in the required annual audit of its self-determination or self-governance agreements with any Federal agency for the three fiscal years preceding the date on which the Tribe/Consortium requests participation. When a Tribe/Consortium submits documentation to participate in self-governance, this final rule requires the OSG within 45 days to: (1) select and notify the Tribe/Consortium to participate in self-governance; or (2) notify the Tribe/Consortium that the documentation submitted to participate in self-governance is incomplete. The OSG Director may select up to 50 eligible Tribes or Consortia for negotiation. If there are more Tribes selected to negotiate in any given year, this final rule provides that the first 50 Tribes/Consortia who apply, and are determined to be eligible, will have the option to participate. This final rule also stipulates that a Tribe/Consortium may be selected to negotiate a funding agreement for non-BIA programs that are otherwise available to Tribes without first negotiating a funding agreement for BIA programs. However, to negotiate for a non-BIA program under 25 U.S.C. 5363(c) for which the Tribe/Consortium has only a geographic, cultural, or historical connection, the ISDEAA requires that the Tribe/Consortium must first have a funding agreement with the BIA under 25 U.S.C. 5363(b)(1) or any non-BIA bureau under 25 U.S.C. 5363(b)(2). The term “programs” as used in this final rule refers to complete or partial PSFAs. This subpart also describes what happens when a Tribe wishes to withdraw from a Consortium's funding agreement. In such instances, the withdrawing Tribe must notify the Consortium, appropriate Department bureau, and OSG of its intent to withdraw 180 days before the effective date of the next funding agreement. Unless otherwise agreed to, the effective date of the withdrawal will be the earlier date of one year after the date of submission of the request, or when the current agreement expires. In completing the withdrawal, the Consortium's funding agreement must be reduced by that portion of funds attributable to the withdrawing Tribe on the same basis or methodology upon which the funds were included in the Consortium's funding agreement. If such a basis or methodology does not exist, then the Tribe, the Consortium, appropriate Department bureau, and OSG must negotiate an appropriate amount. The Committee did not implement changes to subpart B. C. Subpart C—Planning and Negotiation Grants This subpart describes the criteria and procedures for awarding various self-governance negotiation and planning grants. These grants are discretionary and will be awarded by the OSG Director. The award amount and number of grants depends upon Congressional appropriations. If funding in any year is insufficient to meet total requests for grants and financial assistance, priority will be given first to negotiation grants and second to planning grants. Negotiation grants are non-competitive. To receive a negotiation grant, a Tribe/Consortium must first be selected to join self-governance and then submit a letter affirming its readiness to negotiate and requesting a negotiation grant. This subpart further provides that a Tribe/Consortium may elect to negotiate a self-governance agreement if selected without applying for or receiving a negotiation grant. Planning grants will be awarded to Tribes/Consortia requesting financial assistance to complete the planning phase requirement for joining self-governance. Amendments to § 1000.335—What are the Secretary's responsibilities upon a decision not to award a planning or negotiation grant? The Committee implemented a change in the wording in § 1000.335 to address the Secretary's decision regarding the denial of a planning or negotiation grant from “declining to award” to “denying” a planning or negotiation grant. This was merely to clarify that provision. D. Subpart D—Financial Assistance for Planning and Negotiations Activities for Non-BIA Bureau Programs This subpart describes the additional requirements and criteria applicable to receiving financial assistance to assist Tribes/Consortia with planning and negotiating for funding agreements involving non-BIA programs. This financial assistance is available to any Tribe/Consortium that: (a) Applied to participate in self-governance; (b) Has been selected to participate in self-governance; or (c) Has negotiated and entered into an existing funding agreement. Subject to the availability of funds, this subpart requires the Secretary to publish a notice in the Federal Register that includes the number of available grants, application process, award criteria, and designated point-of-contact for each non-BIA bureau. This financial assistance will support information gathering, analysis, and planning activities that may involve consulting with appropriate non-BIA bureaus, and negotiation activities. This subpart also provides requirements for communicating award decisions to applying Tribes/Consortia. The Committee did not implement changes to subpart D. E. Subpart E—Compacts The prior rule at 25 CFR part 1000 that became effective on January 16, 2001 (“2001 prior rule”), included provisions addressing compacts at §§ 1000.161 through 1000.165. The Committee amends and moves those sections to the new subpart E (Compacts) and includes additional sections. This new subpart is inserted before the respective subparts for funding agreements because compacts are applicable to funding agreements both for BIA programs and for non-BIA programs. The 2001 prior rule included a model format for a compact at Appendix A. The Committee decided not to include a model format for a compact and Appendix A in this final rule. The rationale is the model was no longer needed in the rule and a sample could be posted on an OSG website to provide assistance for Tribes joining self-governance and updated as circumstances change. This subpart also describes self-governance compacts and the minimum content requirements of a self-governance compact. Unlike a funding agreement, parts of a compact apply to all bureaus within the Department rather than a single bureau. Therefore, a Tribe/Consortium needs only to negotiate and execute one self-governance compact to participate in self-governance. This subpart also establishes a compact's effective term and addresses how a compact may be amended. Further, this subpart clarifies that a Tribe/Consortium who executed a compact prior to the enactment of the PROGRESS Act has the option to either retain its existing compact, in whole or in part, to the extent that the provisions are not directly contrary to any express provisions of the PROGRESS Act or negotiate a new compact. The Committee implements this change from the 2001 prior rule in the final rule with additional clarifying edits to improve readability. F. Subpart F—Funding Agreements for BIA Programs This subpart describes the components of a funding agreement for BIA programs. The 2001 prior rule includes “Subpart E—Annual Funding Agreements for Bureau of Indian Affairs Programs.” The final rule amends the title of the subpart and moves it within this rule. The title of the subpart is amended to “Funding Agreements for BIA Programs” because title IV now excludes the term “Annual Funding Agreements” and uses in its place, “Funding Agreements.” The acronym “BIA” is proposed in lieu of “Bureau of Indian Affairs” because BIA is now a defined term within subpart A (General Provisions). The final rule relocates the subpart from subpart E of the 2001 prior rule to become subpart F of the final rule because a new subpart E for compacts is inserted. A funding agreement is a legally binding and mutually enforceable written agreement between a Tribe/Consortium and the Secretary. Funding agreements must include at a minimum, but are not limited to, provisions specifying the programs transferred to the Tribe/Consortium, providing for the Secretary to monitor the performance of trust functions administered by the Tribe/Consortium, providing the funding amount(s), providing a stable base budget, and specifying the funding agreement's effective date. Parties to a funding agreement can mutually agree to include additional provisions and/or include and incorporate by reference additional documents such as funding tables or construction project agreements. Additionally, Tribes/Consortia may elect to negotiate a funding agreement with a term that exceeds one year, subject to the availability of appropriations. This subpart also provides that a Tribe/Consortium with a funding agreement executed before the enactment of the PROGRESS Act has the option to either retain that funding agreement, in whole or in part, to the extent that the provisions are not directly contrary to any express provisions of the PROGRESS Act or negotiate a new funding agreement. This subpart establishes that a funding agreement shall remain in full force and effect following the end of its term until a subsequent funding agreement is executed. When a subsequent funding agreement is executed, its terms will be retroactive to the term of the preceding funding agreement for purposes of calculating the amount of funding for the Tribe/Consortium. This subpart states that a Tribe/Consortium may include BIA-administered programs in its funding agreement regardless of the BIA agency or office performing the program. The Secretary must provide to the Tribe/Consortium: (a) Funds equal to what the Tribe/Consortium would have received under contracts and grants under title I of Public Law 93-638 (25 U.S.C. 5321, et seq. ); (b) Any funds specifically or functionally related to providing services to the Tribe/Consortium by the Secretary; and (c) Any funds that are otherwise available to Indian Tribes for which appropriations are made to other agencies other than the Department and transferred to the Department as directed by law, an Interagency Agreement, or other means. Except for construction programs or projects governed by subpart K (Construction), or where a statute contains specific limitations on the use of funds, a Tribe/Consortium may redesign or consolidate programs and reallocate funds in any manner the Tribe/Consortium deems to be in the best interest of the Indian community being served without the Secretary's approval except for programs described in 25 U.S.C. 5363(b)(2) or (c), or that involve a request to waive a Department regulation. However, a redesign or consolidation may not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable Federal law. In determining the funding amount available to a Tribe/Consortium, this subpart identifies funds that are used to carry out IFFs 2 that cannot be included in a funding agreement. This subpart also establishes the process for determining the funding amount to carry out IFFs and clarifies that the amount withheld to carry out IFFs can be negotiated between the Secretary and a Tribe/Consortium. 2 The Department notes that 25 U.S.C. 5363(k) uses the phrase “inherently Federal” while 25 U.S.C. 5367(c) uses the phrase “inherent Federal.” It is unclear why Congress used differing phrases, but the proposed rule generally uses the phrase “inherent Federal,” except where a provision directly follows statutory language. The Department does not view the difference between the two phrases as meaningful. This subpart defines Tribal shares as the amount determined for that Tribe/Consortium that supports any program within the BIA, the Bureau of Indian Education (BIE), the Bureau of Trust Funds Administration (BTFA), or the Office of the Assistant Secretary for Indian Affairs and are not required by the Secretary for the performance of an IFF. Tribal share amounts may be determined by either: (a) A formula that has a reasonable basis in the function or service performed by the BIA office and is consistently applied to all Tribes served by the area and agency offices; or (b) On a Tribe-by-Tribe basis, such as competitive grant awards or special project funding. Funding amounts may be modified during the term of a funding agreement to adjust for certain Congressional actions, correct a mistake, or if there is mutual agreement to do so. This subpart also defines stable base budgets as the amount of recurring funding to be transferred to the Tribe/Consortium for a period specified in the funding agreement. Stable base budgets are derived from: (a) A Tribe/Consortium's Public Law 93-638 contract amounts; (b) Negotiated amounts of agency, area, and central office funding; (c) Other recurring funding; (d) Special projects, if applicable; (e) Programmatic shortfall; (f) Tribal priority allocation increases and decreases; (g) Pay costs and retirement cost adjustments; and (h) Any other inflationary cost adjustments. Stable base budgets do not include any non-recurring program funds, construction and wildland firefighting accounts, Congressional earmarks, or other funds specifically excluded by Congress. A stable base budget is established at the request of the Tribe/Consortium and will be included in BIA's budget justification for the following year, subject to Congressional appropriation. Once stable base budgets are established, a Tribe/Consortium need not renegotiate these amounts unless it wants to. If the Tribe/Consortium wishes to renegotiate, it also would be required to renegotiate all funding included in the funding agreement on the same basis as all other Tribes and is eligible for funding amounts of new programs or available programs not previously included in the funding agreement on the same basis as other Tribes. Stable base budgets must be adjusted for certain Congressional actions, to correct a mistake, or if there is mutual agreement. Amendments to § 1000.690—How does BIA determine the funding amount to carry out inherent Federal functions? The Committee implemented two changes to this section from the proposed rule to the final rule. The first change corrected an unintentional omission of “Consortium” in subsection (d). The final rule is now consistent with other parts of the section to state “Tribes/Consortium.” The second change addresses a situation where funds are properly suballocated to another program to perform a function essential to the program under negotiation. By revising subsection (g), there is reduced potential for disagreement in a situation where funds are appropriately utilized across program lines. G. Subpart G—Funding Agreements for Non-BIA Programs This subpart describes program eligibility, funding for, and terms and conditions relating to self-governance funding agreements covering non-BIA programs that can help further Secretarial co-stewardship objectives as set forth in Joint S.O. 3403. This section was renamed from subpart F. Funding agreements for non-BIA programs are legally binding and mutually enforceable agreements between a bureau and a Tribe/Consortium participating in self-governance that contain a description of that portion or portions of a bureau program that are to be performed by the Tribe/Consortium; and associated funding, terms and conditions under which the Tribe/Consortium will assume a program, or portion of a program. Funding agreements may include Federal PSFAs administered by the Department other than through the BIA that are otherwise available to Indian Tribes or Indians and may also include other PSFAs, or portions thereof, which are of special geographic, historical, or cultural significance to the participating Indian Tribe requesting a compact. This subpart contains a definition of which functions may be considered “inherently Federal” for purposes of 25 U.S.C. 5363(k) and a provision making non-mandatory CSCs associated with administration of the PSFAs that are transferred in non-BIA agreements. Amendments to § 1000.885—What funds are included in a non-BIA funding agreement? Pursuant to changes that urged the Department to revise proposed § 1000.885(b)(iii) to ensure that Tribes/Consortia receive full CSCs under section 106(a) the PROGRESS Act, 25 U.S.C. 5325, including direct CSCs, the Committee accepted the recommendations an amended the proposed rule. The final rule § 1000.885(b)(1)(iii) states that non-BIA bureaus determine the amount of funding to be included in the funding agreement using the following principles: “(iii) Such amounts as the Tribe/Consortium and the Secretary may negotiate for pre-award, start-up and direct contract support costs.” Amendments to § 1000.895—How does the Secretary determine the amount of indirect costs? The Committee clarified § 1000.895 by adding the phrase “non-BIA funding” to the question and initial part of the response and discussed the recommendation of adding “and making other adjustments required by the PROGRESS Act” to the end of (a). The Committee accepted the first edited but rejected the latter suggestion. H. Subpart H—Negotiation Process The 2001 prior rule includes “Subpart G—Negotiation Process for Annual Funding Agreements.” The final rule amends the title of this subpart and moves it within this final rule. The subpart title is amended to “Negotiation Process” because the amended subpart addresses the process for negotiating compacts and funding agreements. The location of the subpart within this final rule is to be moved from subpart G of the 2001 prior rule to become subpart H because a new subpart E for compacts is inserted. Items addressed in subpart H of the 2001 prior rule are to be addressed in new subpart Q (Operational Provisions). Sections 1000.161 through 1000.165 of the 2001 prior rule, addresses the negotiation of compacts and are amended and moved to the new subpart E (Compacts). This subpart establishes the process and timelines for negotiating a self-governance compact with the Secretary and a funding agreement with any Departmental bureau. Under this subpart, the negotiation process consists of two phases, an information phase and a negotiation phase. In the information phase, any Tribe/Consortium that has been selected to participate in the self-governance program may submit a written request clearly identified as a “Request to Initiate the Information Phase,” which notifies the Secretary of a Tribe/Consortium's interest in negotiating for a program(s) and requesting information about the program(s). Although this phase is not mandatory, it is expected to facilitate successful negotiations by providing for a timely exchange of information on the requested programs. This subpart establishes the information a Tribe/Consortium is encouraged to include in its Request to Initiate the Information Phase and the steps a bureau must take after receiving a request. The negotiation phase establishes detailed timelines and procedures for conducting negotiations with Tribes that have been selected into the self-governance program, including the minimum issues that must be addressed at negotiation meetings. A Tribe/Consortium initiates this phase by submitting a Request to Initiate the Negotiation Phase. This subpart also establishes the required response that the Secretary must provide a Tribe/Consortium after receipt of a Request to Initiate the Negotiation Phase, including identifying the lead Federal negotiator. Further, this subpart establishes the process for finalizing and executing a compact and/or funding agreement when the parties agree on such terms and conditions following the completion of negotiations. This subpart also establishes rules for the negotiation process for subsequent funding agreements. A subsequent funding agreement is a funding agreement negotiated with a particular bureau after an existing agreement with that bureau. The process for negotiating a subsequent agreement is the same as the process provided in this subpart for funding agreements. The subsequent funding agreements will build upon the prior funding agreements. As such, most provisions of the funding agreement will carry forward and not require renegotiation. This will result in an expedited and simplified negotiation process. Amendments to § 1000.1035—What steps does the bureau take after a Request to Initiate the Information Phase is submitted by a Tribe/Consortium? The Committee clarified this provision by using the term “applicable laws” to capture information requests that implicate the Privacy Act, Freedom of Information Act, Health Insurance Portability and Accountability Act, and other laws that address the release of sensitive information. In addition, the Freedom of Information Act includes a number of items for possible dissemination, and the Committee decided to identify records that would encompass the numerous possible types of information. I. Subpart I—Final Offer The final rule inserts this new subpart to implement section 406(c) of title IV, as amended by the PROGRESS Act, 25 U.S.C. 5366(c), that prescribes the process to be followed if the Secretary and the participating Tribe/Consortium are unable to come to agreement, in whole or in part, on the terms of a compact or funding agreement during negotiations. The previous version of title IV included no such provisions, nor does the 2001 prior rule. The new subpart is inserted at this location to immediately follow the amended subpart H (Negotiation Process). Doing so allows the reader to move sequentially from the negotiation process to determine options for next steps if those negotiation efforts do not result in agreement. This subpart explains the final offer process provided by the PROGRESS Act for resolving disputes when the Secretary and a Tribe/Consortium are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels) during a negotiation. Under this subpart a Tribe/Consortium may submit a final offer to resolve these disputes. A final offer must be emailed to the email address listed in the final rule or mailed to the Director at OSG's headquarters. A final offer under this subpart must contain a description of the disagreement, the Tribe/Consortium's final proposal to resolve the disagreement (including any proposed terms for a compact, funding agreement, or amendment), and the name and contact information for the Tribe's/Consortium's authorized official. In accordance with 25 U.S.C. 5366(c)(6), the Secretary may reject all or part of a final offer for one of six specified reasons. If the Secretary does not act on a final offer within 60 days, the final offer is accepted automatically by operation of law for any compact or funding agreement except as to its application to a program described under section 403(c) of title IV. Final offers with respect to any program described under section 403(c) of title IV that the Secretary does not act on within 60 days are rejected automatically by operation of law. This subpart also addresses what happens if the Secretary rejects all or part of a final offer, including provision of technical assistance to overcome a rejection, the ability to appeal a rejection, and the portions of a final offer not in dispute taking effect. The Committee did not implement changes to subpart I. J. Subpart J—Waiver of Regulations This subpart implements 25 U.S.C. 5363(i)(2)(A) that authorizes the Secretary to waive all Department regulations governing programs included in a funding agreement, as identified by the Tribe/Consortium. This subpart also provides timelines, explains how a Tribe/Consortium applies for a waiver, the basis for granting or denying a waiver request, the documentation requirements for a decision, and establishes a process for resubmittal of a Tribe/Consortium's request in the event of the Secretary's denial of a waiver request. The basis for the Secretary's denial of a waiver request must be predicated on a prohibition of Federal law. The Committee did not implement changes to subpart J. K. Subpart K—Construction This subpart applies to all construction programs and projects, both BIA and non-BIA. The subpart identifies construction program activities that are subject to subpart K, such as design, construction management services, actual construction; and those that are not, such as planning services, operation and maintenance activities, and certain construction programs that cost less than $100,000. All final rule provisions apply to this subpart except where they are inconsistent; in those instances, the provisions of this subpart will govern. This subpart specifies the roles and responsibilities of the Tribe/Consortium and the Secretary in construction programs, including environmental determinations, performance, changes, monitoring, inspections, and reassumption. This subpart details the process by which a Tribe/Consortium, at its election and with the approval of the Secretary, designates a certifying Tribal officer to represent the Tribe/Consortium and to assume the status of a responsible Federal official under National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and related provisions of other laws and regulations and accepts the jurisdiction of the United States courts for the purpose of enforcing the responsibilities of the certifying Tribal officer assuming the status of a responsible Federal official under those Acts, laws, or regulations. Federal Acquisition Regulations provisions are specifically not incorporated into this final rule; however, they may be negotiated by the parties in the funding agreement. Construction project agreements, made part of a funding agreement, must address applicable Federal laws, program statutes, and regulations. In addition to requirements for all funding agreements referenced in subpart F (Funding Agreements for BIA Programs), other provisions are added for construction project agreements and programs and funding agreements that include a construction project or program to implement the requirements of the PROGRESS Act, including health and safety standards, brief progress reports, financial reports, and suspension of work when appropriate. Building codes appropriate for the project must be used and the Federal agency must notify the Tribe when Federal standards are appropriate for any project. Lastly, this subpart provides that the Secretary may accept funds from other departments for construction projects or programs, subject to an interagency agreement, or “IAA,” between the Secretaries, with Tribal concurrence. Subsequent to the Committee approving its report to the Secretary, including non-consensus issues in this subpart, the Council on Environmental Quality (CEQ) revised its NEPA implementing regulations, 40 CFR parts 1500 through 1508, which are effective July 1, 2024. 3 The Department invited comment on whether to revise the proposed regulatory text in any final rule for consistency with NEPA and the NEPA implementing regulations. For example, (1) updating proposed § 1000.1390 to incorporate text from and for consistency with 42 U.S.C. 4332(2)(E) and 40 CFR 1506.6(a), which direct agencies to make use of “high-quality information, including reliable data and resources;” (2) updating proposed § 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. 3 See Council on Environmental Quality (CEQ), NEPA Implementing Regulations Revisions Phase 2, Final Rule, 88 FR 35442 (May 1, 2024). Amendments to § 1000.1305—What construction projects and programs included in a funding agreement or construction project agreement are subject to this subpart? The Committee clarified the provision in subsection (b)(5) based on consultation recommendations by clarifying the exemption involving Public Law 102.477 funded projects and deleting “Child Care Development Fund.” Amendments to § 1000.1385—What is the typical environmental review process for construction projects? The Committee revised text based on recommendations of the Council on Environmental Quality involving documenting assessment of “reasonably foreseeable” environmental effects in § 1000.1385(a)(2) and deleting the term “potential” from the subsection. The Committee also revised the text on § 1000.1385(a)(5) to clarify when applying a categorical exclusion under NEPA and the required preparation of an environmental assessment or environmental impact statement. Amendments to § 1000.1390—Is the Secretary required to take into account the Indigenous Knowledge of Tribes/Consortia when preparing environmental studies under NEPA, NHPA, and related provisions of other law and regulations? The Committee added language in the preamble and revised the provision to be consistent with terminology in the recently updated CEQ regulations concerning “reliable data sources.” Amendments to § 1000.1445—May the Secretary suspend construction activities under the terms of a funding agreement or construction project agreement under title IV of the ISDEAA? The Committee revised text based on recommendations to distinguish the provisions as applying only to the ISDEAA title IV construction projects in the title, subsection (a) and (b). Amendments to § 1000.1455—What happens when a Tribe/Consortium, suspended under § 1000.1445 for substantial failure to carry out the terms of a funding agreement that includes a construction project or program or a construction project agreement under title IV of the ISDEAA without good cause, does not correct the failure during the suspension? The Committee revised text based on recommendations to distinguish the provisions as applying only to the ISDEAA title IV construction projects. L. Subpart L—Federal Tort Claims This subpart explains the applicability of the Federal Tort Claims Act. Amendments to § 1000.1650—What employees are covered by FTCA for claims arising out of a Tribe's/Consortia's performance of a compact or funding agreement? The Committee reviewed the applicability of Federal tort claim coverage for “permanent and temporary employees” and implemented qualifying language to clarify that these employees would need to be employees of a Tribe/Consortium. M. Subpart M—Reassumption Reassumption is the federally initiated action of reassuming control of Federal programs formerly performed by a Tribe/Consortium. This subpart explains the types of reassumptions authorized under title IV, as amended by the PROGRESS Act, including the rights of a Consortium member, the types of circumstances necessitating reassumption, and Secretarial responsibilities including prior notice requirements and other procedures. The subpart explains what is meant by imminent jeopardy to trust assets, natural resources, and public health and safety that may be grounds for reassumption. This subpart also describes the hearing rights a Tribe/Consortium has before or after reassumption by the Secretary, the PROGRESS Activities to be performed after reassumption has been completed, and the effect of reassumption on other provisions of a funding agreement. The Committee did not implement changes to subpart M. N. Subpart N—Retrocession Retrocession is the Tribally-initiated voluntary action of returning control of certain programs to the Federal Government. This subpart defines retrocession, including how Tribes/Consortia may retrocede, the effect of retrocession on future funding agreement negotiations, and Tribal/Consortium obligations regarding the return of Federal property to the Secretary after retrocession. The Committee did not implement changes to subpart N. O. Subpart O—Trust Evaluation This subpart establishes a procedural framework for the Secretary's annual trust evaluation mandated by the PROGRESS Act. The purpose of the Secretary's annual trust evaluation is to ensure that trust functions assumed by Tribes/Consortia are performed in a manner that does not place trust assets in imminent jeopardy. Imminent jeopardy of a physical trust asset or natural resource (or their intended benefits) exists where there is an immediate threat and likelihood of significant devaluation, degradation, or loss to such asset. Imminent jeopardy to public health and safety means an immediate and significant threat of serious harm to human well-being, including conditions that may result in serious injury, or death, caused by Tribal action or inaction or as otherwise provided in a funding agreement. This subpart requires the Secretary's designated representative to prepare a written report for each funding agreement under which trust functions are performed by a Tribe. This final rule also authorizes a review of Federal performance of residual and nondelegable trust functions affecting trust resources. The name of this subpart has been changed from “Trust Evaluation Review” to “Trust Evaluation.” It was redundant to have both evaluation and review in the title. The Committee did not implement changes to subpart O. P. Subpart P—Reports This subpart describes the report on self-governance that the Secretary prepares annually for transmittal to Congress. It also includes the requirements for the annual report that Tribes/Consortia submit to the Secretary and other data requirements the Secretary may request of Tribes/Consortia. The issue related to the inclusion of BIE in the BIA programs for purposes of the reporting requirements surfaces in this subpart and is addressed in subpart A (General Provisions). The Committee did not implement changes to subpart P. Q. Subpart Q—Operational Provisions The 2001 prior rule includes “Subpart Q—Miscellaneous Provisions.” The final rule amends the title of this subpart to “Operational Provisions” to be more descriptive and instructive to the reader and to bring consistency with regulations promulgated at 42 CFR subchapter M part 137—Tribal Self-Governance under the Indian Health Service as authorized by title V of the ISDEAA, as amended. The changes to this subpart address many facets of self-governance not covered in the other subparts. Issues covered include the applicability of various laws such as the Freedom of Information Act, the Privacy Act, the Prompt Payment Act, and the Single Agency Audit Act, applicable provisions of OMB circulars, how funds are handled in various situations, including carryover of funds, savings from programs, and the use of funds to meet matching or cost participant requirements under other laws. Certain provisions of this subpart are amended to comply with the PROGRESS Act, and with applicable regulations promulgated by OMB at 2 CFR part 200. References to outdated OMB circulars within this subpart are updated throughout. New sections within this subpart address new provisions within the PROGRESS Act, as amended, such as § 1000.2130 that addresses claims against a Tribe/Consortium in relation to disallowance of costs, and limitation of costs. Amendments to § 1000.2130—How much time does the Federal Government have to make a claim against a Tribe/Consortium relating to any disallowance of costs, based on an audit? The Committee agreed to respond to the comment by adding that the audit referred to in this section would be an audit under title IV. R. Subpart R—Appeals This subpart prescribes the process Tribes/Consortia may use to resolve disputes with the Department arising before or after execution of a funding agreement or compact and certain other disputes related to self-governance. The Committee revised the subpart to provide that that Tribes/Consortia may elect to file an appeal of eligible pre-award disputes with an appropriate bureau head or Assistant Secretary through the following revisions to the subpart's current language. The Committee institutes these revisions to address comments received requesting that Tribes/Consortia have the option to file an appeal of a pre-award dispute with an appropriate bureau head/Assistant Secretary or the IBIA in order to provide flexibility and predictability for Tribes/Consortia in initiating pre-award appeals under this subpart. Amendments to § 1000.2302—What does “title-I eligible programs” mean in this subpart? The Committee deleted this section to remove any references to “title-I eligible programs” within the subpart to eliminate the distinction between title-I eligible programs and non-Title-I eligible programs so that Tribes/Consortia may file an appeal of all pre-award disputes covered under this subpart with an appropriate bureau head/Assistant Secretary or the IBIA. Amendments to § 1000.2351—To Whom may a Tribe/Consortia appeal a decision made before the funding agreement, amendment to the funding agreement, or compact is signed? The Committee implemented a change in the wording of § 1000.2351(b) to add the term “initial” in the phrase “the bureau head will decide initial appeals relating to these pre-award matters,” and strike the language in § 1000.2351(b)(i), “Programs that are not PSFAs that the Secretary provides for the benefit of Indians because of their status as Indians without regard to the agency or office of the Department within which the PSFAs have been performed” to revise the subpart so that Tribes/Consortia may file appeals of pre-award disputes with an appropriate bureau head/Assistant Secretary. Amendments to add § 1000.2357—Which official is the appropriate bureau head or Assistant Secretary for purposes of subpart R? The Committee added a new section providing a chart indicating the relevant official to whom a Tribe/Consortium may file its initial request for appeal when exercising its appeal rights to the bureau head/Assistant Secretary under § 1000.2351 for any BIA Program. This section provides that the Assistant Secretary for Indian Affairs is the appropriate Assistant Secretary for reviewing appeals for BIA Programs in accordance with § 1000.2370. Finally, the section identifies the appropriate bureau head/Assistant Secretary for non-BIA Program appeals pursuant to § 1000.2351. The Committee implemented this section to provide clarity regarding the relevant official for any BIA Program to whom a Tribe/Consortia would file an appeal. S. Subpart S—Conflicts of Interest This subpart sets out the minimum requirements a Tribe/Consortium must have in place, pursuant to Tribal law and procedures, to address conflicts of interest, including organizational and personal conflicts. The Committee did not implement changes to subpart S. T. Subpart T—Tribal Consultation Process This subpart describes the process for engaging in consultations related to self-governance with Tribes/Consortia. The 2001 prior rule includes “Subpart I—Public Consultation Process.” The final rule removes and renames this subpart to reflect that the subpart applies to Tribal consultation, and to conform to more recent Federal and Department policy on Tribal consultation. Under this subpart, consultations related to self-governance commenced after this rule's effective date will comply with the Tribal consultation process outlined in the revised version of this subpart, and such previous regulations governing public consultation shall be superseded. This subpart establishes when the Secretary shall consult on matters related to self-governance and identifies that consultation will occur: (1) to determine eligible programs for inclusion in a funding agreement; (2) to establish programmatic targets for the inclusion of non-BIA programs in funding agreements; and (3) on any secretarial action with Tribal implications on matters related to self-governance. This subpart also establishes the applicable process for engaging in Tribal consultations, which is inspired by the President's November 30, 2022, Memorandum on Uniform Standards for Tribal Consultation, and the Department's current Departmental Manuals. This subpart also establishes guiding principles applicable to Tribal consultation related to self-governance. Additionally, this subpart requires the Secretary to provide notice of upcoming consultations to Tribes/Consortia, allow written comments, and develop a record reflecting a Tribal consultation. Finally, this subpart establishes how the Secretary will handle confidential or sensitive information provided by a Tribe/Consortium during a consultation. The Committee agreed to require at least 30 days' notice to Tribes/Consortia prior to any planned consultation sessions. However, the Committee recognizes that situations may occur that require the need for Tribal consultation on an expedited basis to address urgent issues. Therefore, the Committee expects that the Secretary may waive applicable notice requirements at the request of a Tribe/Consortium pursuant to subpart J (Waiver of Regulations) in such urgent situations. The Committee did not implement changes to subpart T. V. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866, 14094 and E.O. 13563) E.O. 12866, as amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in OMB will review all significant regulatory actions. OIRA has determined that this rule is a significant regulatory action. E.O. 14094 amends E.O. 12866 and reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and be consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The Department has developed this final rule in a manner consistent with these requirements. E.O. 12866 Interagency Feedback Received on Proposed Rule The Department new regulations will update the manner in which it implements self-governance at the Department. This Notice discussed the rationale for the changes that should have no major impacts on regulations or programs administered by other agencies. Overall, the proposed rule was expected to apply only to those Tribes/Consortia that enter into a self-governance compact with the Department and conclude a funding agreement under that compact. During OIRA's E.O. 12866 review, the Department received comments expressing concerns about how the Department's proposed rule might intersect with another agency's self-governance regulations and program. The Department sought information to describe the manner, if any, in which its self-governance regulations might affect self-governance compacts and funding agreements between Tribes/Consortia and agencies other than the Department. Throughout the E.O. 12866 interagency process, the Department worked collaboratively with OMB, OIRA, and the agencies providing comment. Prior to the publication of the proposed rule, 89 FR 57524, the Department communicated regularly with the relevant agencies regarding legal and policy interests that the other agencies had about the proposed rule, 89 FR 57524. These robust discussions continued after the publication of the proposed rule, 89 FR 57524. The Department provided information on the nature of the rulemaking process to the relevant agencies and engaged in a good faith effort to make concessions and compromise where possible. Multiple drafts of proposed language were exchanged. Regular communication between the Committee, the Department leadership, and relevant agency were able to reach consensus and compromise on the language of the final rule. B. Regulatory Flexibility Act The Department certifies that this final rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The Department has evaluated the effects of this final rule on small entities, such as local governments and businesses. On October 21, 2020, the Practical Reforms & Other Goals to Reinforce the Effectiveness of Self Governance & Self Determination for Indian Tribes Act (PROGRESS Act) was signed into law. See Public Law 116-180. Section 413 of Public Law 116-180, 25 U.S.C. 5363 directs the Secretary to promulgate regulations using the negotiated rulemaking process to carry out subchapter IV of the ISDEAA, the Tribal Self-Governance Program. As stated in the Preamble to the Rule, “this rule [will] update regulations implementing Tribal Self-Governance. This final rule has been negotiated by representatives of Self-Governance and non-Self-Governance Tribes, and the Department. The intended effect is to transfer to participating Tribes' control of, funding for, and decision making concerning certain Federal programs, consistent with updates contained in the PROGRESS Act. The Department anticipates this final rule will have a negligible cost burden for Tribes currently participating in Self-Governance, nominal startup costs for Tribes not currently participating in Self-Governance, and some possible negligible new costs to the Federal government absorbed by internal transfers.” The scope of the final rule provides regulatory implementation of legislative amendments to title IV of Public Law 93-638, the Tribal Self-Governance Program. The final rule implements the more accommodating selection and eligibility criteria for Indian Tribes and Tribal organizations that wish to join the Tribal Self-Governance Program. The final rule supports the authority for continuing existing funding agreements, reduces effort for subsequent funding agreements, and provides administrative process for final offers when the parties are unable to reach agreement when negotiating a compact or funding agreement. The final rule applies the amended statute's new standard for the Department's burden of proof for certain decisions and appeal processes, it allows Tribes to use the prudent investment standard, and it updates the rules for construction programs and projects awarded through self-governance funding agreements. Rather than by executive order, the final rule introduces in regulation a regulatory process for consultation with self-governance Tribes on self-governance matters within the Department. Based on the evaluation, the Department anticipates that this action will not have a significant economic impact on small entities. The Department only foresees this final rule having an impact on the Federal Government and Indian Tribes, which are not considered to be small entities for purposes of this Act. C. Congressional Review Act (CRA) This final rule does not meet the criteria in 5 U.S.C. 804(2). Specifically, it: (a) Would not have an annual effect on the economy of $100 million or more. (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. (c) Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. D. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement analyzing and estimating anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and Tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. See 2 U.S.C. 1532. The PROGRESS Act further requires that the agency publish a summary of such a statement with the agency's proposed and final rules. This final rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The final rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector because this final rule affects only individual Indians and Tribal governments that petition the Department to take land into trust for their benefit. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required. E. Takings (E.O. 12630) This final rule does not affect a taking of private property or otherwise have taking implications under E.O. 12630. A takings implication assessment is not required. F. Federalism (E.O. 13132) Under the criteria in section 1 of E.O. 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required. G. Civil Justice Reform (E.O. 12988) This final rule complies with the requirements of E.O. 12988. Specifically, this final rule: (a) meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. H. Reforming Federal Funding and Support for Tribal Nations (E.O. 14112) E.O. 14112 restates that it is the policy of the United States to design and administer Federal funding and support programs for Tribal Nations, consistent with applicable law and to the extent practicable, in a manner that better recognizes and supports Tribal sovereignty and self-determination. This policy is in keeping with the government's trust and treaty obligations to Tribal Nations, and the commitment to advancing Tribal sovereignty. E.O. 14112(5) requires agencies to take steps “to increase the accessibility, equity, flexibility, and utility of Federal funding and support programs for Tribal Nations, while increasing the transparency and efficiency of Federal funding processes to better live up to the Federal Government's trust responsibilities and support Tribal self-determination,” by “increase[ing] the accessibility, equity, flexibility, and utility of Federal funding and support programs for Tribal Nations, while increasing the transparency and efficiency of Federal funding processes to better live up to the Federal Government's trust responsibilities and support Tribal self-determination.” Further, “implementation efforts shall appropriately maintain or enhance protections afforded under existing Federal law and policy, including those related to treaty rights and trust obligations, Tribal sovereignty and jurisdiction, civil rights, civil liberties, privacy, confidentiality, Indigenous Knowledge, and information access and security.” Throughout the negotiated rulemaking process, the Department remained committed to the obligations required under E.O. 14112, trust and treaty obligations to Tribes, and advancing self-governance and Tribal sovereignty. I. Consultation With Indian Tribes (E.O. 13175) The Department strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. The Department evaluated this final rule under its consultation policy and under the criteria in E.O. 13175 and has hosted consultation with federally recognized Indian Tribes in preparation of this final rule, including through a Dear Tribal Leader letter delivered to every federally recognized Tribe in the country, and through four consultation sessions held on July 15, 17, 19, and 22, 2024. Following the consultation sessions, the Department accepted written comments until August 14, 2024. The Department developed this rule through a negotiated rulemaking process, with both Tribal and Federal representatives, which the Department asserts fulfills its obligations to consult on the text of this final rule. The Tribal and Federal representatives reached consensus on the final rule text, except for the few areas of disagreement discussed above. J. Paperwork Reduction Act This final rule contains a revision to a collection of information which is currently approved under the Office of Management and Budget (OMB) Control Number 1076-0143 through February 29, 2026. The revisions have been submitted to OMB for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. Abstract: The Self-Governance program is authorized by the Tribal Self-Governance Act of 1994, 25 U.S.C. 5301, Public Law 103-413, as amended. Tribes interested in entering into Self-Governance must submit certain information as required by the PROGRESS Act. In addition, those Tribes and Consortia that have entered into Self-Governance funding agreements will be requested to submit certain information as described in this final rule. For this ICR Reference No. 202410-1076-001, associated with final rule, the Department modified burden estimates within five (5) ICRs and added seven (7) ICRs to the information collection. There were ten (10) ICRs within this information collection that remained unchanged. The following revision to the existing information collections require approval by OMB. • Summary of Requested Revision: Projected increase in respondent participation and total number of annual respondents. Estimates have been increased to accurately reflect the amount of work associated with the total annual reporting and recordkeeping burden. This information will be used to justify a budget request submission on their behalf and to comport with section 405 of the PROGRESS Act that calls for the Secretary to submit an annual report to the Congress. For this ICR Reference No. 202410-1076-001, associated with Final Rule, RIN 1076-AF62, OSG made modifications to the burden estimates within six (6) ICRs. In addition, OSG added seven (7) ICRs to this information collection. Finally, there were nine (9) ICRs within this information collection that remained unchanged. • Modified ICs: ○ Subpart B: Planning report ○ Subpart C: Planning and Negotiation Grants ○ Subpart D: Financial Assistance for Planning and Negotiations ○ Subpart E: Compacts ○ Subpart K: Construction ○ Subparts M and N: Notice to retrocede; and Reassumption • New ICs: ○ Subpart F: Funding Agreements for BIA Programs ○ Subpart G: Funding Agreements for Non-BIA Programs ○ Subpart L: Federal Tort Claims ○ Subpart O: Trust Evaluation ○ Subpart Q: Operational Provisions ○ Subpart R: Appeals ○ Subpart T: Tribal Consultation Process • Unchanged ICs: ○ Subpart B: Admission to applicant pool ○ Subpart B: Withdrawal from consortium FA ○ Subpart B: Withdrawal from consortium to become member of applicant pool ○ Subpart H: Letter of interest and supporting documents for FA ○ Subpart H: Request to negotiate a FA ○ Subpart H: Request to negotiate successor FA ○ Subpart I: Final Offer ○ Subpart J: Request for waiver ○ Subpart P: Annual self-governance report • 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: 492. • Total Estimated Number of Annual Responses: 588. • Estimated Completion Time per Response: Varies from 1 to 400 hours. • Total Estimated Number of Annual Burden Hours: 11,276 hours. • Respondent's Obligation: Required to obtain a benefit. • Frequency of Collection: On occasion or annually. • Total Estimated Annual Non-hour Burden Cost: $20,800 for cost associated with attending training and hiring consultants to provide services for entering the Self-Governance Program. • Annual Costs to Federal Government: $1,725,535. As part of our continuing effort to reduce paperwork and respondents' burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection including: (1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility; (2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including through [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-28302. Public record. Not legal advice.