Self-Governance PROGRESS Act Regulations, 100228-100288 [2024-28302]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 89, Number 238 (Wednesday, December 11, 2024)]
[Rules and Regulations]
[Pages 100228-100288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28302]



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Vol. 89

Wednesday,

No. 238

December 11, 2024

Part V





Department of the Interior





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Bureau of Indian Affairs





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25 CFR Part 1000





Self-Governance PROGRESS Act Regulations; Final Rule

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

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 1000

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


Self-Governance PROGRESS Act Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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

DATES: This final rule is effective on January 10, 2025.
     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 [email protected] 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, [email protected]. 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

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

C. Negotiated Rulemaking Process

    The PROGRESS Act directed the Secretary to adapt negotiated 
rulemaking procedures regarding the unique context of self-governance 
and the government-to-government relationship between the United States 
and Indian Tribes. The PROGRESS Act also called for a negotiated 
rulemaking Committee to be established under 5 U.S.C. 565, with 
membership comprised only of representatives of Federal agencies and 
Tribal governments, with the Office of Self-Governance (OSG) serving as 
the lead agency for the Department. The Secretary charged the Committee 
with developing proposed regulations for the Secretary's implementation 
of the PROGRESS Act's provisions regarding the Department's Self-
Governance Program.
    The Department published a Federal Register notice on February 1, 
2021, 86 FR 7656, announcing the intent to establish a committee and 
soliciting nominations for membership on the Committee. The Department 
published a Federal Register notice on May 18, 2022, 87 FR 30256, 
announcing the formation of the Committee and identifying 14 Tribal 
representatives, and 12 Federal representatives.
    To fulfill the requirements for negotiated rulemaking and the 
Federal Advisory Committee Act, representatives reflect those currently 
participating in the Tribal Self-Governance Program and those that are 
not currently participating in, but are interested in, the Tribal Self-
Governance Program. Additionally, Tribal representatives reflect a 
balance in terms of geographical location and size of the Tribe. 
Membership consists only of representatives of Federal and Tribal 
governments, with OSG serving as the lead agency.
    The Committee met fifteen times to negotiate the proposed 
regulations, resulting in the proposed rule that was published on July 
15, 2024, 89 FR 57524. The Committee members and technical advisors 
organized themselves into two subcommittees and used the scheduled 
subcommittee meetings to develop draft materials and exchange 
information. The Committee's meeting minutes, and any materials 
approved by the full Committee, were made a part of the official 
record.
    After the proposed rule was published on July 15, 2024, 89 FR 
57524, the Committee received written and verbal comments through 
consultation, which are summarized below. After consultation was 
completed, the Drafting Subcommittee of the Committee, met on multiple 
occasions to review comments received, discuss options to address 
interagency feedback, and attempt to reach consensus on recommendations 
to the Committee. The Committee met an additional two times (for a 
total of 17 meetings) and reached consensus in response to many of the 
issues as outlined in Section III, ``Summary of Comments Received.''

II. Public Engagement and Consultation

    The Department hosted three in-person consultation sessions on July 
15, 17, and 19, and one virtual Tribal consultation session on July 22, 
on its proposed rule implementing the PROGRESS Act. Each session lasted 
approximately 2 hours. The Department received 492 individualized 
comments \1\ from 27 Tribes; 8 national and inter-Tribal organizations 
and Tribal entities; and national law firms representing multiple 
Tribes and Tribal consortia exercising Tribal self-governance for their 
respective communities. Both the verbal and written comments support 
the Tribal positions on the non-consensus issues, detailed in the 
Committee Report dated April 12, 2024 (Committee Report). The main 
themes addressed in the comments were:
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    \1\ An individualized comment is a comment on a discrete issue 
or concern, raised by a commentator in response to the proposed 
rule, whether in writing or orally. For example, a written comment 
letter could have addressed several different issues or concerns. 
Also, during the consultations and listening session, a commentor 
could have orally discussed several different issues or concerns in 
their address.
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     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

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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

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

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

B. Subpart Comments

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

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assurances included in a compact and/or funding agreement that provide 
that the Tribe/Consortium will comply with the requirements of title IV 
is sufficient to satisfy the statutory requirement in 25 U.S.C. 
5365(a). Many Tribal comments stated that the Department's 
interpretation of 25 U.S.C. 5365 undermines compact negotiations and is 
contrary to the PROGRESS Act and the intent of Congress in the PROGRESS 
Act to streamline regulations and the content of compacts and funding 
agreements.
    The Tribal view is that the requirements of title IV can be better 
reflected through regulatory language that states that the Tribe/
Consortium, in either their compact or funding agreement, will attest 
to compliance with title IV, or otherwise state that they will carry 
out the compact or funding agreement ``in accordance with the 
requirements of title IV.'' The Tribal view is that Sec.  1000.510(e) 
and Sec.  1000.515 are excessive and not properly tailored to reflect 
the requirements of title IV.
    Several Tribal comments objected to Sec.  1000.510(e) and Sec.  
1000.515, and recommended those provisions be deleted. These comments 
considered detailed compliance provisions in a compact or funding 
agreement to be overburdensome, unnecessary, excessive, unproductive to 
the good-faith negotiation process, and likely to cause delays. These 
comments similarly noted the potential of these provisions to lead to 
dispute resolution or litigation. Instead, the Tribal comments 
recommended that compacts or funding agreements contain an attestation 
affirming compliance in accordance with the requirements of the 
PROGRESS Act. The Tribal comments recommended such attestation to 
streamline negotiation and administrative processes and to comply with 
the PROGRESS Act's rules of construction and liberal interpretation, 
and with the Paperwork Reduction Act.
    The Department view is that relevant provisions of the PROGRESS Act 
indicate certain provisions or language must be included in a funding 
agreement or a compact. For example, 25 U.S.C. 5366(b)(1) directs that 
``[a] compact or funding agreement shall include provisions for the 
Secretary to reassume a program and associated funding if there is 
specific finding relating to that program. . . .'' As another example, 
25 U.S.C. 5363(e)(2) authorizes the parties to specify an effective 
date for retrocession to ``. . .become effective on the date specified 
by the parties in the compact or funding agreement.''
    The Department view is informed by experience when encountering a 
problem in the execution of a compact or funding agreement. In such 
situation, a primary question involves clarifying the agreed upon terms 
of the compact or funding agreement as to a particular outcome. For 
example, in a dispute about retrocession, the first area reviewed is 
what does the compact or funding agreement say about retrocession. 
Also, non-parities with an interest to the compact or funding 
agreement, such as auditors, inspectors, courts of jurisdiction, other 
federal agencies, etc., would benefit from clearly stated provisions 
rather than from a general attestation. The Department believes that 
clearly specifying terms in a compact and funding agreement best 
addresses the expectations and interests of both parties. The 
Department does not anticipate that the requirements in Sec.  
1000.510(e) and Sec.  1000.515 will require new edits to most existing 
compacts or funding agreements. The Federal team expects that most 
existing compacts and funding agreements satisfy the requirements in 
Sec.  1000.510(e) and Sec.  1000.515 if those compacts or funding 
agreements restate applicable statutory requirements for the specified 
topics referenced in Sec.  1000.515. The Committee did not reach 
consensus on the language in Sec.  1000.510(e) and Sec.  1000.515 
because the Tribal committee members did not agree with the 
Department's underlying interpretation of 25 U.S.C. 5365(a). The final 
rule reflects the Federal view on this matter.
Subpart F--Funding Agreements for BIA Programs
Comments on Sec.  1000.610--What must be included in a funding 
agreement?
    See the comments, discussion, and response above in subpart E 
(Compacts). The Committee did not agree on this matter and the final 
rule reflects the Federal view at Sec.  1000.610(b).
Comments on Sec.  1000.690--How does BIA determine the funding amount 
to carry out inherent Federal functions?
    Commentors stated their support for the proposed language in Sec.  
1000.690(f)(1), reiterated the importance of consistency and uniformity 
within BIA Regions, and referenced previous situations in which Tribes 
feel that BIA took an expansive interpretation of IFFs and the 
associated programs funds to fulfill them and thus reduced the amount 
of contractable or compactable funds available to Tribes/Consortium.
    The Committee acknowledges these comments as the language in 
proposed rule addresses this concern by requiring ``uniformity and 
consistency in the identification of inherent Federal functions.''
Comments on Sec.  1000.695--Is the amount of funds withheld by the 
Secretary to cover the cost of inherent Federal functions subject to 
negotiation?
    Several commentors supported the views and regulatory text 
articulated in the Committee's Report on proposed Sec.  1000.695, 
further requesting changes to the proposed rule, to state generally 
that IFFs are a permissible topic of discussion during the negotiation 
process.
    The Committee acknowledges these comments and declines to make the 
requested changes. The Department believes that the breadth of 
negotiation topics is adequately set out in the final rule.
Subpart G--Funding Agreements for Non-BIA Programs
Comments on Sec.  1000.845--Are there any non-BIA programs that may not 
be included in a funding agreement?
    Tribal comments urged the Department to revise proposed Sec.  
1000.845 to include a core principle of the Leshy Memorandum. Many 
commentors agreed and asserted that providing transparent guidance 
would aid negotiators of non-BIA agreements and reflect compliance with 
the Supreme Court opinion in U.S. v Mazurie, 419 U.S. 544 (1975). 
Commentors asserted that inclusion in the regulations of this basic 
principle would help provide parity between Tribal and Federal 
representatives when negotiating agreements and would advance 
fundamental Self-Governance objectives.
    The Department acknowledges the comments and did not accept the 
recommendation to revise Sec.  1000.845. The Department will apply the 
principles of the Leshy Memorandum on a case-by-case basis when 
determining whether a function requested for inclusion in the funding 
agreement by a participating Tribe/Consortium is an IFF. The section 
references the PROGRESS Act's definition of IFF, 25 U.S.C. 5361(6), and 
the requirement in 25 U.S.C. 5363(k) that directs how the Department 
evaluates such issues.
    Some Tribal commentors expressed previous difficulties in 
negotiating IFFs with particular agencies. Another Tribal comment 
disagreed with the federal assessment that formal adoption of the

[[Page 100234]]

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

[[Page 100235]]

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

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

C. Use of Received Feedback

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

VI. Summary of Changes by Subpart Into the Final Rule

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

A. Subpart A--General Provisions

    This subpart contains the authority, purpose and scope of the final 
rule, and the Congressional and Secretarial policies that will guide 
the implementation of the ISDEAA, as amended by the PROGRESS Act, by 
the Secretary and the various bureaus of the Department. The subpart 
also defines terms used throughout the final rule consistent with the 
PROGRESS Act.
    This subpart further clarifies the effect of 25 CFR part 1000 on 
existing Tribal rights, including Tribal sovereign immunity from suit, 
the United States' trust responsibility, a Tribe's choice to 
participate in self-governance, or the issuance of awards by other 
departments or agencies to Tribes. Additionally, this subpart 
identifies the application of any agency circular, policy, manual, 
guidance, or rule adopted by the Department on self-governance Tribes/
Consortia. This subpart identifies when and how to implement Indigenous 
Knowledge in projects. Finally, this subpart provides that should a 
court hold any provision of one part of this rule as finalized invalid, 
it should not impact the other parts of the rule.
Amendments to Sec.  1000.15--What is the congressional policy statement 
of this part?
    The Committee revised the phrase ``create consistency and 
administrative efficiencies between title IV and title V of Pub. L. 93-
638'' with the phrase ``create similarities and administrative 
efficiencies between title IV and title V of Public Law 93-638'' to 
more accurately reflect the content of the final rule.
Amendments to Sec.  1000.20 What is the Secretarial policy of this 
part?
    The Committee added language to the Secretarial policy of this part 
to assure that this part be interpreted to facilitate inclusion of 
programs in funding agreements and the implementation of funding 
agreements. The proposed edits include language that is added to 
maximize implementation of the secretarial policy in all bureaus of the 
Department, and to ensure that where provisions of funding agreements 
and compacts are ambiguous that the ambiguity be resolved in favor of 
the Tribe or Consortium. The Committee also added a provision to 
include, recognize, and support Indigenous Knowledge to be applied when 
performing PSFAs. The edits were made to improve clarity and respond to 
comments received during the government-to-government consultation.
Amendments to add Sec.  1000.35--What happens if a court holds any 
provisions of these regulations in this part invalid?
    The Department added a new section to make explicit its intent that 
if a court were to hold any provisions of the final rule invalid, that 
provision would be severable and the remaining provisions of the rule 
should remain in force. As noted in the Preamble, the intent of this 
rule is to implement the Department's Self-Governance program, and the 
several provisions of this rule can continue to effectuate that intent 
even if one or more of those provisions were declared to be invalid by 
a court.

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

    This subpart describes the steps a Tribe/Consortium must take to 
participate in Tribal self-governance and the selection process and 
eligibility criteria that the Secretary will use to decide whether a 
Tribe/Consortium may participate. Under the PROGRESS Act, a Tribe/
Consortium is eligible to participate in self-governance if it submits 
documentation to OSG demonstrating: (1) successful completion of a 
planning phase; (2) a request to participate in self-governance by a 
Tribal resolution and/or final official action; and (3) financial 
stability and financial management capability through evidence of 
having no uncorrected significant and material audit exceptions in the 
required annual audit of its self-determination or self-governance 
agreements with any Federal agency for the three fiscal years preceding 
the date on which the Tribe/Consortium requests participation. When a 
Tribe/Consortium submits documentation to participate in self-
governance, this final rule requires the OSG within 45 days to: (1) 
select and notify the Tribe/Consortium to participate in self-
governance; or (2) notify the Tribe/Consortium that the documentation 
submitted to participate in self-governance is incomplete.
    The OSG Director may select up to 50 eligible Tribes or Consortia 
for negotiation. If there are more Tribes selected to negotiate in any 
given year, this final rule provides that the first 50

[[Page 100237]]

Tribes/Consortia who apply, and are determined to be eligible, will 
have the option to participate.
    This final rule also stipulates that a Tribe/Consortium may be 
selected to negotiate a funding agreement for non-BIA programs that are 
otherwise available to Tribes without first negotiating a funding 
agreement for BIA programs. However, to negotiate for a non-BIA program 
under 25 U.S.C. 5363(c) for which the Tribe/Consortium has only a 
geographic, cultural, or historical connection, the ISDEAA requires 
that the Tribe/Consortium must first have a funding agreement with the 
BIA under 25 U.S.C. 5363(b)(1) or any non-BIA bureau under 25 U.S.C. 
5363(b)(2). The term ``programs'' as used in this final rule refers to 
complete or partial PSFAs.
    This subpart also describes what happens when a Tribe wishes to 
withdraw from a Consortium's funding agreement. In such instances, the 
withdrawing Tribe must notify the Consortium, appropriate Department 
bureau, and OSG of its intent to withdraw 180 days before the effective 
date of the next funding agreement. Unless otherwise agreed to, the 
effective date of the withdrawal will be the earlier date of one year 
after the date of submission of the request, or when the current 
agreement expires.
    In completing the withdrawal, the Consortium's funding agreement 
must be reduced by that portion of funds attributable to the 
withdrawing Tribe on the same basis or methodology upon which the funds 
were included in the Consortium's funding agreement. If such a basis or 
methodology does not exist, then the Tribe, the Consortium, appropriate 
Department bureau, and OSG must negotiate an appropriate amount.
    The Committee did not implement changes to subpart B.

C. Subpart C--Planning and Negotiation Grants

    This subpart describes the criteria and procedures for awarding 
various self-governance negotiation and planning grants. These grants 
are discretionary and will be awarded by the OSG Director. The award 
amount and number of grants depends upon Congressional appropriations. 
If funding in any year is insufficient to meet total requests for 
grants and financial assistance, priority will be given first to 
negotiation grants and second to planning grants.
    Negotiation grants are non-competitive. To receive a negotiation 
grant, a Tribe/Consortium must first be selected to join self-
governance and then submit a letter affirming its readiness to 
negotiate and requesting a negotiation grant. This subpart further 
provides that a Tribe/Consortium may elect to negotiate a self-
governance agreement if selected without applying for or receiving a 
negotiation grant. Planning grants will be awarded to Tribes/Consortia 
requesting financial assistance to complete the planning phase 
requirement for joining self-governance.
Amendments to Sec.  1000.335--What are the Secretary's responsibilities 
upon a decision not to award a planning or negotiation grant?
    The Committee implemented a change in the wording in Sec.  1000.335 
to address the Secretary's decision regarding the denial of a planning 
or negotiation grant from ``declining to award'' to ``denying'' a 
planning or negotiation grant. This was merely to clarify that 
provision.

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

    This subpart describes the additional requirements and criteria 
applicable to receiving financial assistance to assist Tribes/Consortia 
with planning and negotiating for funding agreements involving non-BIA 
programs. This financial assistance is available to any Tribe/
Consortium that:
    (a) Applied to participate in self-governance;
    (b) Has been selected to participate in self-governance; or
    (c) Has negotiated and entered into an existing funding agreement.
    Subject to the availability of funds, this subpart requires the 
Secretary to publish a notice in the Federal Register that includes the 
number of available grants, application process, award criteria, and 
designated point-of-contact for each non-BIA bureau. This financial 
assistance will support information gathering, analysis, and planning 
activities that may involve consulting with appropriate non-BIA 
bureaus, and negotiation activities. This subpart also provides 
requirements for communicating award decisions to applying Tribes/
Consortia.
    The Committee did not implement changes to subpart D.

E. Subpart E--Compacts

    The prior rule at 25 CFR part 1000 that became effective on January 
16, 2001 (``2001 prior rule''), included provisions addressing compacts 
at Sec. Sec.  1000.161 through 1000.165. The Committee amends and moves 
those sections to the new subpart E (Compacts) and includes additional 
sections. This new subpart is inserted before the respective subparts 
for funding agreements because compacts are applicable to funding 
agreements both for BIA programs and for non-BIA programs.
    The 2001 prior rule included a model format for a compact at 
Appendix A. The Committee decided not to include a model format for a 
compact and Appendix A in this final rule. The rationale is the model 
was no longer needed in the rule and a sample could be posted on an OSG 
website to provide assistance for Tribes joining self-governance and 
updated as circumstances change.
    This subpart also describes self-governance compacts and the 
minimum content requirements of a self-governance compact. Unlike a 
funding agreement, parts of a compact apply to all bureaus within the 
Department rather than a single bureau. Therefore, a Tribe/Consortium 
needs only to negotiate and execute one self-governance compact to 
participate in self-governance.
    This subpart also establishes a compact's effective term and 
addresses how a compact may be amended. Further, this subpart clarifies 
that a Tribe/Consortium who executed a compact prior to the enactment 
of the PROGRESS Act has the option to either retain its existing 
compact, in whole or in part, to the extent that the provisions are not 
directly contrary to any express provisions of the PROGRESS Act or 
negotiate a new compact.
    The Committee implements this change from the 2001 prior rule in 
the final rule with additional clarifying edits to improve readability.

F. Subpart F--Funding Agreements for BIA Programs

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

[[Page 100238]]

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

    \2\ The Department notes that 25 U.S.C. 5363(k) uses the phrase 
``inherently Federal'' while 25 U.S.C. 5367(c) uses the phrase 
``inherent Federal.'' It is unclear why Congress used differing 
phrases, but the proposed rule generally uses the phrase ``inherent 
Federal,'' except where a provision directly follows statutory 
language. The Department does not view the difference between the 
two phrases as meaningful.
---------------------------------------------------------------------------

    This subpart defines Tribal shares as the amount determined for 
that Tribe/Consortium that supports any program within the BIA, the 
Bureau of Indian Education (BIE), the Bureau of Trust Funds 
Administration (BTFA), or the Office of the Assistant Secretary for 
Indian Affairs and are not required by the Secretary for the 
performance of an IFF. Tribal share amounts may be determined by 
either:
    (a) A formula that has a reasonable basis in the function or 
service performed by the BIA office and is consistently applied to all 
Tribes served by the area and agency offices; or
    (b) On a Tribe-by-Tribe basis, such as competitive grant awards or 
special project funding.
    Funding amounts may be modified during the term of a funding 
agreement to adjust for certain Congressional actions, correct a 
mistake, or if there is mutual agreement to do so.
    This subpart also defines stable base budgets as the amount of 
recurring funding to be transferred to the Tribe/Consortium for a 
period specified in the funding agreement. Stable base budgets are 
derived from:
    (a) A Tribe/Consortium's Public Law 93-638 contract amounts;
    (b) Negotiated amounts of agency, area, and central office funding;
    (c) Other recurring funding;
    (d) Special projects, if applicable;
    (e) Programmatic shortfall;
    (f) Tribal priority allocation increases and decreases;
    (g) Pay costs and retirement cost adjustments; and
    (h) Any other inflationary cost adjustments.
    Stable base budgets do not include any non-recurring program funds, 
construction and wildland firefighting accounts, Congressional 
earmarks, or other funds specifically excluded by Congress.
    A stable base budget is established at the request of the Tribe/
Consortium and will be included in BIA's budget justification for the 
following year, subject to Congressional appropriation. Once stable 
base budgets are established, a Tribe/Consortium need not renegotiate 
these amounts unless it wants to. If the Tribe/Consortium wishes to 
renegotiate, it also would be required to renegotiate all funding 
included in the funding agreement on the same basis as all other Tribes 
and is eligible for funding amounts of new programs or available 
programs not previously included in the funding agreement on the same 
basis as other Tribes. Stable base budgets must be adjusted for certain 
Congressional actions, to correct a mistake, or if there is mutual 
agreement.
Amendments to Sec.  1000.690--How does BIA determine the funding amount 
to carry out inherent Federal functions?
    The Committee implemented two changes to this section from the 
proposed rule to the final rule. The first change corrected an 
unintentional omission of ``Consortium'' in subsection (d). The final 
rule is now consistent with other parts of the section to state 
``Tribes/Consortium.'' The second change addresses a situation where 
funds are properly suballocated to another program to perform a 
function essential to the program under negotiation. By revising 
subsection (g), there is reduced potential for disagreement in a 
situation where funds are appropriately utilized across program lines.

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

    This subpart describes program eligibility, funding for, and terms 
and conditions relating to self-governance funding agreements covering 
non-BIA programs that can help further Secretarial co-stewardship 
objectives as

[[Page 100239]]

set forth in Joint S.O. 3403. This section was renamed from subpart F.
    Funding agreements for non-BIA programs are legally binding and 
mutually enforceable agreements between a bureau and a Tribe/Consortium 
participating in self-governance that contain a description of that 
portion or portions of a bureau program that are to be performed by the 
Tribe/Consortium; and associated funding, terms and conditions under 
which the Tribe/Consortium will assume a program, or portion of a 
program. Funding agreements may include Federal PSFAs administered by 
the Department other than through the BIA that are otherwise available 
to Indian Tribes or Indians and may also include other PSFAs, or 
portions thereof, which are of special geographic, historical, or 
cultural significance to the participating Indian Tribe requesting a 
compact. This subpart contains a definition of which functions may be 
considered ``inherently Federal'' for purposes of 25 U.S.C. 5363(k) and 
a provision making non-mandatory CSCs associated with administration of 
the PSFAs that are transferred in non-BIA agreements.
Amendments to Sec.  1000.885--What funds are included in a non-BIA 
funding agreement?
    Pursuant to changes that urged the Department to revise proposed 
Sec.  1000.885(b)(iii) to ensure that Tribes/Consortia receive full 
CSCs under section 106(a) the PROGRESS Act, 25 U.S.C. 5325, including 
direct CSCs, the Committee accepted the recommendations an amended the 
proposed rule.
    The final rule Sec.  1000.885(b)(1)(iii) states that non-BIA 
bureaus determine the amount of funding to be included in the funding 
agreement using the following principles: ``(iii) Such amounts as the 
Tribe/Consortium and the Secretary may negotiate for pre-award, start-
up and direct contract support costs.''
Amendments to Sec.  1000.895--How does the Secretary determine the 
amount of indirect costs?
    The Committee clarified Sec.  1000.895 by adding the phrase ``non-
BIA funding'' to the question and initial part of the response and 
discussed the recommendation of adding ``and making other adjustments 
required by the PROGRESS Act'' to the end of (a). The Committee 
accepted the first edited but rejected the latter suggestion.

H. Subpart H--Negotiation Process

    The 2001 prior rule includes ``Subpart G--Negotiation Process for 
Annual Funding Agreements.'' The final rule amends the title of this 
subpart and moves it within this final rule. The subpart title is 
amended to ``Negotiation Process'' because the amended subpart 
addresses the process for negotiating compacts and funding agreements. 
The location of the subpart within this final rule is to be moved from 
subpart G of the 2001 prior rule to become subpart H because a new 
subpart E for compacts is inserted. Items addressed in subpart H of the 
2001 prior rule are to be addressed in new subpart Q (Operational 
Provisions).
    Sections 1000.161 through 1000.165 of the 2001 prior rule, 
addresses the negotiation of compacts and are amended and moved to the 
new subpart E (Compacts).
    This subpart establishes the process and timelines for negotiating 
a self-governance compact with the Secretary and a funding agreement 
with any Departmental bureau. Under this subpart, the negotiation 
process consists of two phases, an information phase and a negotiation 
phase.
    In the information phase, any Tribe/Consortium that has been 
selected to participate in the self-governance program may submit a 
written request clearly identified as a ``Request to Initiate the 
Information Phase,'' which notifies the Secretary of a Tribe/
Consortium's interest in negotiating for a program(s) and requesting 
information about the program(s). Although this phase is not mandatory, 
it is expected to facilitate successful negotiations by providing for a 
timely exchange of information on the requested programs. This subpart 
establishes the information a Tribe/Consortium is encouraged to include 
in its Request to Initiate the Information Phase and the steps a bureau 
must take after receiving a request.
    The negotiation phase establishes detailed timelines and procedures 
for conducting negotiations with Tribes that have been selected into 
the self-governance program, including the minimum issues that must be 
addressed at negotiation meetings. A Tribe/Consortium initiates this 
phase by submitting a Request to Initiate the Negotiation Phase. This 
subpart also establishes the required response that the Secretary must 
provide a Tribe/Consortium after receipt of a Request to Initiate the 
Negotiation Phase, including identifying the lead Federal negotiator. 
Further, this subpart establishes the process for finalizing and 
executing a compact and/or funding agreement when the parties agree on 
such terms and conditions following the completion of negotiations.
    This subpart also establishes rules for the negotiation process for 
subsequent funding agreements. A subsequent funding agreement is a 
funding agreement negotiated with a particular bureau after an existing 
agreement with that bureau. The process for negotiating a subsequent 
agreement is the same as the process provided in this subpart for 
funding agreements. The subsequent funding agreements will build upon 
the prior funding agreements. As such, most provisions of the funding 
agreement will carry forward and not require renegotiation. This will 
result in an expedited and simplified negotiation process.
Amendments to Sec.  1000.1035--What steps does the bureau take after a 
Request to Initiate the Information Phase is submitted by a Tribe/
Consortium?
    The Committee clarified this provision by using the term 
``applicable laws'' to capture information requests that implicate the 
Privacy Act, Freedom of Information Act, Health Insurance Portability 
and Accountability Act, and other laws that address the release of 
sensitive information. In addition, the Freedom of Information Act 
includes a number of items for possible dissemination, and the 
Committee decided to identify records that would encompass the numerous 
possible types of information.

I. Subpart I--Final Offer

    The final rule inserts this new subpart to implement section 406(c) 
of title IV, as amended by the PROGRESS Act, 25 U.S.C. 5366(c), that 
prescribes the process to be followed if the Secretary and the 
participating Tribe/Consortium are unable to come to agreement, in 
whole or in part, on the terms of a compact or funding agreement during 
negotiations. The previous version of title IV included no such 
provisions, nor does the 2001 prior rule.
    The new subpart is inserted at this location to immediately follow 
the amended subpart H (Negotiation Process). Doing so allows the reader 
to move sequentially from the negotiation process to determine options 
for next steps if those negotiation efforts do not result in agreement.
    This subpart explains the final offer process provided by the 
PROGRESS Act for resolving disputes when the Secretary and a Tribe/
Consortium are unable to agree, in whole or in part, on the terms of a 
compact or funding

[[Page 100240]]

agreement (including funding levels) during a negotiation. Under this 
subpart a Tribe/Consortium may submit a final offer to resolve these 
disputes. A final offer must be emailed to the email address listed in 
the final rule or mailed to the Director at OSG's headquarters.
    A final offer under this subpart must contain a description of the 
disagreement, the Tribe/Consortium's final proposal to resolve the 
disagreement (including any proposed terms for a compact, funding 
agreement, or amendment), and the name and contact information for the 
Tribe's/Consortium's authorized official.
    In accordance with 25 U.S.C. 5366(c)(6), the Secretary may reject 
all or part of a final offer for one of six specified reasons. If the 
Secretary does not act on a final offer within 60 days, the final offer 
is accepted automatically by operation of law for any compact or 
funding agreement except as to its application to a program described 
under section 403(c) of title IV. Final offers with respect to any 
program described under section 403(c) of title IV that the Secretary 
does not act on within 60 days are rejected automatically by operation 
of law. This subpart also addresses what happens if the Secretary 
rejects all or part of a final offer, including provision of technical 
assistance to overcome a rejection, the ability to appeal a rejection, 
and the portions of a final offer not in dispute taking effect.
    The Committee did not implement changes to subpart I.

J. Subpart J--Waiver of Regulations

    This subpart implements 25 U.S.C. 5363(i)(2)(A) that authorizes the 
Secretary to waive all Department regulations governing programs 
included in a funding agreement, as identified by the Tribe/Consortium.
    This subpart also provides timelines, explains how a Tribe/
Consortium applies for a waiver, the basis for granting or denying a 
waiver request, the documentation requirements for a decision, and 
establishes a process for resubmittal of a Tribe/Consortium's request 
in the event of the Secretary's denial of a waiver request.
    The basis for the Secretary's denial of a waiver request must be 
predicated on a prohibition of Federal law.
    The Committee did not implement changes to subpart J.

K. Subpart K--Construction

    This subpart applies to all construction programs and projects, 
both BIA and non-BIA. The subpart identifies construction program 
activities that are subject to subpart K, such as design, construction 
management services, actual construction; and those that are not, such 
as planning services, operation and maintenance activities, and certain 
construction programs that cost less than $100,000. All final rule 
provisions apply to this subpart except where they are inconsistent; in 
those instances, the provisions of this subpart will govern.
    This subpart specifies the roles and responsibilities of the Tribe/
Consortium and the Secretary in construction programs, including 
environmental determinations, performance, changes, monitoring, 
inspections, and reassumption. This subpart details the process by 
which a Tribe/Consortium, at its election and with the approval of the 
Secretary, designates a certifying Tribal officer to represent the 
Tribe/Consortium and to assume the status of a responsible Federal 
official under National Environmental Policy Act (NEPA), the National 
Historic Preservation Act (NHPA), and related provisions of other laws 
and regulations and accepts the jurisdiction of the United States 
courts for the purpose of enforcing the responsibilities of the 
certifying Tribal officer assuming the status of a responsible Federal 
official under those Acts, laws, or regulations.
    Federal Acquisition Regulations provisions are specifically not 
incorporated into this final rule; however, they may be negotiated by 
the parties in the funding agreement. Construction project agreements, 
made part of a funding agreement, must address applicable Federal laws, 
program statutes, and regulations. In addition to requirements for all 
funding agreements referenced in subpart F (Funding Agreements for BIA 
Programs), other provisions are added for construction project 
agreements and programs and funding agreements that include a 
construction project or program to implement the requirements of the 
PROGRESS Act, including health and safety standards, brief progress 
reports, financial reports, and suspension of work when appropriate. 
Building codes appropriate for the project must be used and the Federal 
agency must notify the Tribe when Federal standards are appropriate for 
any project.
    Lastly, this subpart provides that the Secretary may accept funds 
from other departments for construction projects or programs, subject 
to an interagency agreement, or ``IAA,'' between the Secretaries, with 
Tribal concurrence.
    Subsequent to the Committee approving its report to the Secretary, 
including non-consensus issues in this subpart, the Council on 
Environmental Quality (CEQ) revised its NEPA implementing regulations, 
40 CFR parts 1500 through 1508, which are effective July 1, 2024.\3\ 
The Department invited comment on whether to revise the proposed 
regulatory text in any final rule for consistency with NEPA and the 
NEPA implementing regulations. For example, (1) updating proposed Sec.  
1000.1390 to incorporate text from and for consistency with 42 U.S.C. 
4332(2)(E) and 40 CFR 1506.6(a), which direct agencies to make use of 
``high-quality information, including reliable data and resources;'' 
(2) updating proposed Sec.  1000.1385(a)(2) to incorporate text making 
clear that NEPA requires agencies to assess ``reasonably foreseeable 
environmental effects'' of a proposed agency action, not all potential 
effects, for consistency with 42 U.S.C. 4332(2)(C)(i) and the 
definition of ``effects'' in 40 CFR 1508.1(i); and (3) updating Sec.  
1000.1385(a)(5) to state that in applying a categorical exclusion under 
NEPA, evaluate whether extraordinary circumstances exist, in which a 
normally excluded project may have a significant effect, and therefore 
requires preparation of an environmental assessment or environmental 
impact statement, for consistency with 40 CFR 1501.4.
---------------------------------------------------------------------------

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

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

[[Page 100241]]

Amendments to Sec.  1000.1390--Is the Secretary required to take into 
account the Indigenous Knowledge of Tribes/Consortia when preparing 
environmental studies under NEPA, NHPA, and related provisions of other 
law and regulations?
    The Committee added language in the preamble and revised the 
provision to be consistent with terminology in the recently updated CEQ 
regulations concerning ``reliable data sources.''
Amendments to Sec.  1000.1445--May the Secretary suspend construction 
activities under the terms of a funding agreement or construction 
project agreement under title IV of the ISDEAA?
    The Committee revised text based on recommendations to distinguish 
the provisions as applying only to the ISDEAA title IV construction 
projects in the title, subsection (a) and (b).
Amendments to Sec.  1000.1455--What happens when a Tribe/Consortium, 
suspended under Sec.  1000.1445 for substantial failure to carry out 
the terms of a funding agreement that includes a construction project 
or program or a construction project agreement under title IV of the 
ISDEAA without good cause, does not correct the failure during the 
suspension?
    The Committee revised text based on recommendations to distinguish 
the provisions as applying only to the ISDEAA title IV construction 
projects.

L. Subpart L--Federal Tort Claims

    This subpart explains the applicability of the Federal Tort Claims 
Act.
Amendments to Sec.  1000.1650--What employees are covered by FTCA for 
claims arising out of a Tribe's/Consortia's performance of a compact or 
funding agreement?
    The Committee reviewed the applicability of Federal tort claim 
coverage for ``permanent and temporary employees'' and implemented 
qualifying language to clarify that these employees would need to be 
employees of a Tribe/Consortium.

M. Subpart M--Reassumption

    Reassumption is the federally initiated action of reassuming 
control of Federal programs formerly performed by a Tribe/Consortium. 
This subpart explains the types of reassumptions authorized under title 
IV, as amended by the PROGRESS Act, including the rights of a 
Consortium member, the types of circumstances necessitating 
reassumption, and Secretarial responsibilities including prior notice 
requirements and other procedures. The subpart explains what is meant 
by imminent jeopardy to trust assets, natural resources, and public 
health and safety that may be grounds for reassumption.
    This subpart also describes the hearing rights a Tribe/Consortium 
has before or after reassumption by the Secretary, the PROGRESS 
Activities to be performed after reassumption has been completed, and 
the effect of reassumption on other provisions of a funding agreement.
    The Committee did not implement changes to subpart M.

N. Subpart N--Retrocession

    Retrocession is the Tribally-initiated voluntary action of 
returning control of certain programs to the Federal Government. This 
subpart defines retrocession, including how Tribes/Consortia may 
retrocede, the effect of retrocession on future funding agreement 
negotiations, and Tribal/Consortium obligations regarding the return of 
Federal property to the Secretary after retrocession.
    The Committee did not implement changes to subpart N.

O. Subpart O--Trust Evaluation

    This subpart establishes a procedural framework for the Secretary's 
annual trust evaluation mandated by the PROGRESS Act. The purpose of 
the Secretary's annual trust evaluation is to ensure that trust 
functions assumed by Tribes/Consortia are performed in a manner that 
does not place trust assets in imminent jeopardy.
    Imminent jeopardy of a physical trust asset or natural resource (or 
their intended benefits) exists where there is an immediate threat and 
likelihood of significant devaluation, degradation, or loss to such 
asset. Imminent jeopardy to public health and safety means an immediate 
and significant threat of serious harm to human well-being, including 
conditions that may result in serious injury, or death, caused by 
Tribal action or inaction or as otherwise provided in a funding 
agreement.
    This subpart requires the Secretary's designated representative to 
prepare a written report for each funding agreement under which trust 
functions are performed by a Tribe. This final rule also authorizes a 
review of Federal performance of residual and nondelegable trust 
functions affecting trust resources. The name of this subpart has been 
changed from ``Trust Evaluation Review'' to ``Trust Evaluation.'' It 
was redundant to have both evaluation and review in the title.
    The Committee did not implement changes to subpart O.

P. Subpart P--Reports

    This subpart describes the report on self-governance that the 
Secretary prepares annually for transmittal to Congress. It also 
includes the requirements for the annual report that Tribes/Consortia 
submit to the Secretary and other data requirements the Secretary may 
request of Tribes/Consortia. The issue related to the inclusion of BIE 
in the BIA programs for purposes of the reporting requirements surfaces 
in this subpart and is addressed in subpart A (General Provisions).
    The Committee did not implement changes to subpart P.

Q. Subpart Q--Operational Provisions

    The 2001 prior rule includes ``Subpart Q--Miscellaneous 
Provisions.'' The final rule amends the title of this subpart to 
``Operational Provisions'' to be more descriptive and instructive to 
the reader and to bring consistency with regulations promulgated at 42 
CFR subchapter M part 137--Tribal Self-Governance under the Indian 
Health Service as authorized by title V of the ISDEAA, as amended.
    The changes to this subpart address many facets of self-governance 
not covered in the other subparts. Issues covered include the 
applicability of various laws such as the Freedom of Information Act, 
the Privacy Act, the Prompt Payment Act, and the Single Agency Audit 
Act, applicable provisions of OMB circulars, how funds are handled in 
various situations, including carryover of funds, savings from 
programs, and the use of funds to meet matching or cost participant 
requirements under other laws.
    Certain provisions of this subpart are amended to comply with the 
PROGRESS Act, and with applicable regulations promulgated by OMB at 2 
CFR part 200. References to outdated OMB circulars within this subpart 
are updated throughout. New sections within this subpart address new 
provisions within the PROGRESS Act, as amended, such as Sec.  1000.2130 
that addresses claims against a Tribe/Consortium in relation to 
disallowance of costs, and limitation of costs.
Amendments to Sec.  1000.2130--How much time does the Federal 
Government have to make a claim against a Tribe/Consortium relating to 
any disallowance of costs, based on an audit?
    The Committee agreed to respond to the comment by adding that the 
audit

[[Page 100242]]

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

R. Subpart R--Appeals

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

S. Subpart S--Conflicts of Interest

    This subpart sets out the minimum requirements a Tribe/Consortium 
must have in place, pursuant to Tribal law and procedures, to address 
conflicts of interest, including organizational and personal conflicts.
    The Committee did not implement changes to subpart S.

T. Subpart T--Tribal Consultation Process

    This subpart describes the process for engaging in consultations 
related to self-governance with Tribes/Consortia. The 2001 prior rule 
includes ``Subpart I--Public Consultation Process.'' The final rule 
removes and renames this subpart to reflect that the subpart applies to 
Tribal consultation, and to conform to more recent Federal and 
Department policy on Tribal consultation. Under this subpart, 
consultations related to self-governance commenced after this rule's 
effective date will comply with the Tribal consultation process 
outlined in the revised version of this subpart, and such previous 
regulations governing public consultation shall be superseded.
    This subpart establishes when the Secretary shall consult on 
matters related to self-governance and identifies that consultation 
will occur: (1) to determine eligible programs for inclusion in a 
funding agreement; (2) to establish programmatic targets for the 
inclusion of non-BIA programs in funding agreements; and (3) on any 
secretarial action with Tribal implications on matters related to self-
governance. This subpart also establishes the applicable process for 
engaging in Tribal consultations, which is inspired by the President's 
November 30, 2022, Memorandum on Uniform Standards for Tribal 
Consultation, and the Department's current Departmental Manuals.
    This subpart also establishes guiding principles applicable to 
Tribal consultation related to self-governance. Additionally, this 
subpart requires the Secretary to provide notice of upcoming 
consultations to Tribes/Consortia, allow written comments, and develop 
a record reflecting a Tribal consultation. Finally, this subpart 
establishes how the Secretary will handle confidential or sensitive 
information provided by a Tribe/Consortium during a consultation.
    The Committee agreed to require at least 30 days' notice to Tribes/
Consortia prior to any planned consultation sessions. However, the 
Committee recognizes that situations may occur that require the need 
for Tribal consultation on an expedited basis to address urgent issues. 
Therefore, the Committee expects that the Secretary may waive 
applicable notice requirements at the request of a Tribe/Consortium 
pursuant to subpart J (Waiver of Regulations) in such urgent 
situations.
    The Committee did not implement changes to subpart T.

V. Procedural Requirements

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

    E.O. 12866, as amended by E.O. 14094, provides that the Office of 
Information and Regulatory Affairs (OIRA) in OMB will review all 
significant regulatory actions. OIRA has determined that this rule is a 
significant regulatory action.
    E.O. 14094 amends E.O. 12866 and reaffirms the principles of E.O. 
12866 and E.O. 13563 and states that regulatory analysis should 
facilitate agency efforts to develop regulations that serve the public 
interest, advance statutory objectives, and be consistent with E.O. 
12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 
(Modernizing Regulatory Review). Regulatory analysis, as practicable 
and appropriate, shall recognize distributive impacts and equity, to 
the extent permitted by law.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for

[[Page 100243]]

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

B. Regulatory Flexibility Act

    The Department certifies that this final rule will not have a 
significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The 
Department has evaluated the effects of this final rule on small 
entities, such as local governments and businesses.
    On October 21, 2020, the Practical Reforms & Other Goals to 
Reinforce the Effectiveness of Self Governance & Self Determination for 
Indian Tribes Act (PROGRESS Act) was signed into law. See Public Law 
116-180. Section 413 of Public Law 116-180, 25 U.S.C. 5363 directs the 
Secretary to promulgate regulations using the negotiated rulemaking 
process to carry out subchapter IV of the ISDEAA, the Tribal Self-
Governance Program.
    As stated in the Preamble to the Rule, ``this rule [will] update 
regulations implementing Tribal Self-Governance. This final rule has 
been negotiated by representatives of Self-Governance and non-Self-
Governance Tribes, and the Department. The intended effect is to 
transfer to participating Tribes' control of, funding for, and decision 
making concerning certain Federal programs, consistent with updates 
contained in the PROGRESS Act. The Department anticipates this final 
rule will have a negligible cost burden for Tribes currently 
participating in Self-Governance, nominal startup costs for Tribes not 
currently participating in Self-Governance, and some possible 
negligible new costs to the Federal government absorbed by internal 
transfers.''
    The scope of the final rule provides regulatory implementation of 
legislative amendments to title IV of Public Law 93-638, the Tribal 
Self-Governance Program. The final rule implements the more 
accommodating selection and eligibility criteria for Indian Tribes and 
Tribal organizations that wish to join the Tribal Self-Governance 
Program. The final rule supports the authority for continuing existing 
funding agreements, reduces effort for subsequent funding agreements, 
and provides administrative process for final offers when the parties 
are unable to reach agreement when negotiating a compact or funding 
agreement. The final rule applies the amended statute's new standard 
for the Department's burden of proof for certain decisions and appeal 
processes, it allows Tribes to use the prudent investment standard, and 
it updates the rules for construction programs and projects awarded 
through self-governance funding agreements. Rather than by executive 
order, the final rule introduces in regulation a regulatory process for 
consultation with self-governance Tribes on self-governance matters 
within the Department.
    Based on the evaluation, the Department anticipates that this 
action will not have a significant economic impact on small entities. 
The Department only foresees this final rule having an impact on the 
Federal Government and Indian Tribes, which are not considered to be 
small entities for purposes of this Act.

C. Congressional Review Act (CRA)

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

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 requires that agencies 
prepare a written statement analyzing and estimating anticipated costs 
and benefits before issuing any rule that may result in the expenditure 
by State, local, and Tribal Governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. See 2 U.S.C. 1532. The PROGRESS Act further 
requires that the agency publish a summary of such a statement with the 
agency's proposed and final rules.
    This final rule does not impose an unfunded mandate on State, 
local, or Tribal governments or the private sector of more than $100 
million per year. The final rule does not have a significant or unique 
effect on State, local, or Tribal governments or the private sector 
because this final rule affects only individual Indians and Tribal 
governments that petition the Department to take land into trust for 
their benefit. A statement containing the information required by the 
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

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

F. Federalism (E.O. 13132)

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

[[Page 100244]]

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

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

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

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

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

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

J. Paperwork Reduction Act

    This final rule contains a revision to a collection of information 
which is currently approved under the Office of Management and Budget 
(OMB) Control Number 1076-0143 through February 29, 2026. The revisions 
have been submitted to OMB for review and approval under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or 
sponsor and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number.
    Abstract: The Self-Governance program is authorized by the Tribal 
Self-Governance Act of 1994, 25 U.S.C. 5301, Public Law 103-413, as 
amended. Tribes interested in entering into Self-Governance must submit 
certain information as required by the PROGRESS Act. In addition, those 
Tribes and Consortia that have entered into Self-Governance funding 
agreements will be requested to submit certain information as described 
in this final rule.
    For this ICR Reference No. 202410-1076-001, associated with final 
rule, the Department modified burden estimates within five (5) ICRs and 
added seven (7) ICRs to the information collection. There were ten (10) 
ICRs within this information collection that remained unchanged. The 
following revision to the existing information collections require 
approval by OMB.
     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:

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

     New ICs:

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

     Unchanged ICs:

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

     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

[[Page 100245]]

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 the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Send your written comments and suggestions on this information 
collection to OIRA listed in ADDRESSES by the date indicated in DATES. 
Please also send a copy to [email protected] and reference ``OMB 
Control Number 1076-0143'' in the subject line of your comments. You 
may also view the ICR at https://www.reginfo.gov/public/Forward?SearchTarget=PRA&textfield=1076-0143.

K. National Environmental Policy Act (NEPA)

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

L. Energy Effects (E.O. 13211)

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

M. Clarity of This Regulation

    The Department is required by E.O. 12866 (section 1(b)(12)), 12988 
(section 3(b)(l)(B)), and E.O. 13563 (section l(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This final rule meets the criteria of:
    (a) Be logically organized;
    (b) Use the PROGRESS Active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.

List of Subjects in 25 CFR Part 1000

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

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

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

Subpart A--General Provisions
Sec.
1000.1 What is the authority of this part?
1000.5 What key terms do I need to know?
1000.10 What is the purpose and scope of this part?
1000.15 What is the congressional policy statement of this part?
1000.20 What is the Secretarial policy of this part?
1000.25 What is the effect on existing Tribal rights?
1000.30 What is the effect of these regulations on Federal program 
guidelines, manual, or policy directives?
1000.35 What happens if a court holds any provisions of these 
regulations in this part invalid?
Subpart B--Selection of Additional Tribes for Participation in Tribal 
Self-Governance
Sec.

Purpose and Definitions

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

Eligibility

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

Selection To Participate in Self-Governance

1000.160 How is a Tribe/Consortium selected to participate in Self-
Governance?
1000.165 When does OSG accept requests to participate in Self-
Governance?
1000.170 Are there any time frames to negotiate an initial compact 
or funding agreement for a Tribe not presently participating in 
self-governance?
1000.175 How does a Tribe/Consortium withdraw its request to 
participate in Self-Governance?
1000.180 What if more than 50 Tribes/Consortium apply to participate 
in Self-Governance?
1000.185 What happens if a request is not complete?
1000.190 What happens if a Tribe/Consortium is selected to 
participate but does not execute a compact and a funding agreement?

[[Page 100246]]

1000.195 May a Tribe/Consortium be selected to negotiate a funding 
agreement under section 403(b)(2) of the Act without having or 
negotiating a funding agreement under 25 U.S.C. 5363(b)(1)?
1000.200 May a Tribe/Consortium be selected to negotiate a funding 
agreement under section 403(c) (25 U.S.C. 5363(c)) without 
negotiating a funding agreement under 25 U.S.C. 5363(b)(1) and/or 
section 403(b)(2) (25 U.S.C. 5363(b)(2))?

Withdrawal From a Consortium Funding Agreement

1000.205 What happens when a Tribe wishes to withdraw from a 
Consortium funding agreement?
1000.210 How are funds redistributed when a withdrawing Tribe fully 
or partially withdraws from a compact and funding agreement and 
enters a new contract or compact?
1000.215 If the withdrawing Tribe elects to operate a program 
carried out under a compact and funding agreement under title IV 
through a contract under title I, is the resulting contract 
considered a mature contract under 25 U.S.C. 5304(h)?
1000.220 How are funds distributed when a withdrawing Tribe fully or 
partially withdraws from a Consortium's compact and funding 
agreement and the withdrawing Tribe does not enter a new contract or 
compact?
1000.225 What amount of funding is to be removed from the 
Consortium's funding agreement for the withdrawing Tribe?
1000.230 What happens if there is a dispute between the Consortium 
and the withdrawing Tribe?
1000.235 When a Tribe withdraws from a Consortium, is the Secretary 
required to award to the withdrawing Tribe a portion of funds 
associated with a construction project if the withdrawing Tribe so 
requests?
Subpart C--Planning and Negotiation Grants for BIA Programs
Sec.
1000.301 What is the purpose of this subpart?
1000.305 Are there grants available to assist Tribes/Consortia to 
meet the requirements to participate in self-governance?
1000.310 What is required to request planning and negotiation 
grants?
1000.315 Are planning and negotiation grants available?
1000.320 Must a Tribe/Consortium receive a planning or negotiation 
grant to be eligible to participate in self-governance?
1000.325 What happens if there are insufficient funds to award all 
of the requests for planning and negotiation grants in any given 
year?
1000.330 May a Tribe/Consortium that has received a planning grant 
also receive a negotiation grant?
1000.335 What are the Secretary's responsibilities upon a decision 
not to award a planning or negotiation grant?
1000.340 May a Tribe/Consortium administratively appeal the 
Secretary's decision to not award a grant under this subpart?
Subpart D--Financial Assistance for Planning and Negotiation Activities 
for Non-BIA Bureau Programs
Sec.
1000.401 What is the purpose of this subpart?
1000.405 What funds are available to Tribes/Consortium for planning 
and negotiating activities with non-BIA bureaus?
1000.410 What kinds of planning and negotiation activities for non-
BIA programs does financial assistance from non-BIA bureaus support?
1000.415 Who can apply to a non-BIA bureau for financial assistance 
to plan and negotiate non-BIA programs?
1000.420 Under what circumstances may financial assistance for 
planning and negotiation activities with non-BIA bureaus be awarded 
to Tribes/Consortia?
1000.425 How does the Tribe/Consortium know when and how to apply 
for financial assistance for planning and negotiation activities for 
a non-BIA program?
1000.430 What must be included in the application for financial 
assistance for planning and negotiation activities for a non-BIA 
program?
1000.435 How will the non-BIA bureau director/commissioner award 
financial assistance for planning and negotiation activities for a 
non-BIA program?
1000.440 May non-BIA bureaus provide technical assistance to a 
Tribe/Consortium in drafting its application?
1000.445 What are the non-BIA bureau director's/commissioner's 
responsibilities upon a decision to decline financial assistance?
1000.450 Can an applicant administratively appeal a decision not to 
award financial assistance?
1000.455 May a Tribe/Consortium reapply through a future planning 
and negotiation application if it has been previously denied?
1000.460 Will the non-BIA bureau notify Tribes/Consortium of the 
results of the selection process?
Subpart E--Compacts
Sec.
1000.501 What is a self-governance compact?
1000.505 Which DOI office negotiates self-governance compacts?
1000.510 What is included in a self-governance compact?
1000.515 What provisions must be included in either a compact or 
funding agreement?
1000.520 Is a compact required to participate in self-governance?
1000.525 Can a Tribe/Consortium negotiate other terms and 
conditions?
1000.530 What is the duration of a compact?
1000.535 May a compact be amended?
1000.540 Can a Tribe/Consortium have a funding agreement without 
having negotiated a compact?
1000.545 May a participating Tribe/Consortium retain its existing 
compact which was executed prior to the enactment of Public Law 116-
180?
1000.550 What happens if the Tribe/Consortium and Secretary fail to 
reach an agreement on a compact?
Subpart F--Funding Agreements for BIA Programs
Sec.
1000.601 What is the purpose of this subpart?
1000.605 What is a funding agreement?

Contents and Scope of Funding Agreements

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

Determining What Programs May Be Included in a Funding Agreement

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

Determining Funding Agreement Amounts

1000.670 What funds must be transferred to a Tribe/Consortium under 
a funding agreement?
1000.675 What funds may not be included in a funding agreement?
1000.680 May the Secretary place any requirements on programs and 
funds that are otherwise available to Tribes/Consortium or Indians 
for which appropriations are made to agencies other than DOI?
1000.685 What funds are used to carry out inherent Federal 
functions?
1000.690 How does BIA determine the funding amount to carry out 
inherent Federal functions?
1000.695 Is the amount of funds withheld by the Secretary to cover 
the cost of inherent Federal functions subject to negotiation?
1000.700 May a Tribe/Consortium continue to negotiate a funding 
agreement pending an appeal of funding amounts

[[Page 100247]]

associated with inherent Federal functions?
1000.705 What is a Tribal share?
1000.710 How does BIA determine a Tribe's/Consortium's share of 
funds to be included in a funding agreement?
1000.715 Can a Tribe/Consortium negotiate a Tribal share for 
programs outside its region/agency?
1000.720 May a Tribe/Consortium obtain discretionary or competitive 
funding that is distributed on a discretionary or competitive basis?
1000.725 Are all funds identified as Tribal shares always paid to 
the Tribe/Consortium under a funding agreement?
1000.730 How are savings that result from downsizing allocated?
1000.735 Do Tribes/Consortium need Secretarial approval to 
reallocate funds between programs that the Tribe/Consortium 
administers under the funding agreement?
1000.740 Can funding amounts negotiated in a funding agreement be 
adjusted during the year it is in effect?

Establishing Self-Governance Stable Base Budgets

1000.745 What are self-governance stable base budgets?
1000.750 Once a Tribe/Consortium establishes a stable base budget, 
are funding amounts renegotiated each year?
1000.755 How are self-governance stable base budgets established?
1000.760 How are self-governance stable base budgets adjusted?
Subpart G--Funding Agreements for Non-BIA Programs
Sec.
1000.801 What is the purpose of this subpart?
1000.805 What is a funding agreement for a non-BIA program?
1000.810 What non-BIA programs are eligible for inclusion in a 
funding agreement?
1000.815 Are there non-BIA programs for which the Secretary must 
negotiate for inclusion in a funding agreement subject to such terms 
as the parties may negotiate?
1000.820 What programs are included under section 403(b)(2) (25 
U.S.C. 5363(b)(2))?
1000.825 What programs are included under section 403(c) (25 U.S.C. 
5363(c))?
1000.830 What does ``special geographic, historical or cultural'' 
mean?
1000.835 Under section 403(b)(2) (25 U.S.C. 5363(b)(2)), when must 
programs be awarded non-competitively?
1000.840 May a non-BIA bureau include in a funding agreement, on a 
non-competitive basis, programs of special geographic, historical, 
or cultural significance?
1000.845 Are there any non-BIA programs that may not be included in 
a funding agreement?
1000.850 Does a Tribe/Consortium need to be identified in an 
authorizing statute in order for a program or element of a program 
to be included in a non-BIA funding agreement?
1000.855 Will Tribes/Consortia participate in the Secretary's 
determination of what is to be included on the annual list of 
available programs?
1000.860 How will the Secretary consult with Tribes/Consortia in 
developing the list of available programs?
1000.865 What else is on the list in addition to eligible programs?
1000.870 May a bureau negotiate with a Tribe/Consortium for programs 
not specifically included on the annual list pursuant to 25 U.S.C. 
5372(c)?
1000.875 How will a bureau negotiate a funding agreement for a 
program of special geographic, historical, or cultural significance 
to more than one Tribe/Consortium?
1000.880 When will this determination be made?
1000.885 What funds are included in a non-BIA funding agreement?
1000.890 How are indirect cost rates determined?
1000.895 How does the Secretary determine the amount of indirect 
costs for a non-BIA funding agreement?
1000.900 May the bureaus negotiate terms to be included in a funding 
agreement for non-BIA programs?
1000.905 Can a Tribe/Consortium reallocate, consolidate, and 
redesign funds for a non-BIA program?
1000.910 Do Tribes/Consortia need Secretarial approval to reallocate 
funds between title I eligible programs that the Tribe/Consortium 
administers under a non-BIA funding agreement?
1000.915 Can a Tribe/Consortium negotiate a funding agreement with a 
non-BIA bureau for which the performance period exceeds one year?
1000.920 Can the terms and conditions in a non-BIA funding agreement 
be amended during the year it is in effect?
1000.925 What happens if a funding agreement expires before the 
effective date of the successor Funding Agreement?
Subpart H--Negotiation Process
Sec.
1000.1001 What is the purpose of this subpart?
1000.1005 What are the phases of the negotiation process?
1000.1010 Who may initiate the information phase?
1000.1015 Is it mandatory to go through the information phase before 
initiating the negotiation phase?
1000.1020 How does a Tribe/Consortium initiate the information 
phase?
1000.1025 What information is a Tribe/Consortium encouraged to 
include in a Request to Initiate the Information Phase?
1000.1030 When should a Tribe/Consortium submit a Request to 
Initiate the Information Phase to the Secretary?
1000.1035 What steps does the bureau take after a Request to 
Initiate the Information Phase is submitted by a Tribe/Consortium?
1000.1040 How does a Tribe/Consortium initiate the negotiation 
phase?
1000.1045 How and when does the Secretary respond to a request to 
negotiate a compact or BIA funding agreement?
1000.1050 How and when does the Secretary respond to a request to 
negotiate a non-BIA funding agreement?
1000.1055 What is the process for conducting the negotiation phase?
1000.1060 What issues must the bureau and the Tribe/Consortium 
address at negotiation meetings?
1000.1065 What happens when a compact or funding agreement is 
signed?
1000.1070 What happens if the Tribe/Consortium and bureau 
negotiators fail to reach an agreement on a compact or funding 
agreement?
1000.1075 When does the funding agreement become effective?
1000.1080 What is a subsequent funding agreement?
1000.1085 How is the negotiation of a subsequent funding agreement 
initiated?
1000.1090 What is the process for negotiating a subsequent funding 
agreement?
Subpart I--Final Offer
Sec.
1000.1101 What is the purpose of this subpart?
1000.1105 When should a final offer be submitted?
1000.1110 How does a Tribe/Consortium submit a final offer?
1000.1115 What does a final offer contain?
1000.1120 When does the 60-day review period begin?
1000.1125 How does the Department acknowledge receipt of final 
offer?
1000.1130 May the Secretary request and obtain an extension of time 
of the 60-day review period?
1000.1135 What happens if the Secretary takes no action within the 
60-day period (or any extensions thereof)?
1000.1140 Once the Tribe/Consortium's final offer has been accepted 
or accepted by operation of law, what is the next step?
1000.1145 On what basis may the Secretary reject a final offer?
1000.1150 How does the Secretary reject a final offer?
1000.1155 What is the ``significant danger'' or ``risk'' to the 
public health or safety, to natural resources, or to trust 
resources?
1000.1160 Is technical assistance available to a Tribe/Consortium to 
overcome the objections stated in the Secretary's rejection of a 
final offer?
1000.1165 If the Secretary rejects all or part of a final offer, is 
the Tribe/Consortium entitled to an appeal?
1000.1170 Do those portions of the compact, funding agreement, or 
amendment not in dispute go into effect?
1000.1175 Does appealing the final offer decision prevent the 
Secretary and the Tribe/Consortium from entering into any accepted 
compact, funding agreement or amendment provisions that are not in 
dispute?
1000.1180 What is the burden of proof in an appeal of a rejection of 
a final offer?

[[Page 100248]]

Subpart J--Waiver of Regulations
Sec.
1000.1201 What regulations apply to Tribes/Consortia?
1000.1205 Can the Secretary grant a waiver of regulations to a 
Tribe/Consortium?
1000.1210 When can a Tribe/Consortium request a waiver of a 
regulation?
1000.1215 How does a Tribe/Consortium obtain a waiver?
1000.1220 How does a Tribe/Consortium operating a Public Law 102-477 
Plan obtain a waiver?
1000.1225 May a Tribe/Consortium request an optional meeting or 
other informal discussion to discuss a waiver request?
1000.1230 Is a bureau required to provide technical assistance to a 
Tribe/Consortium concerning waivers?
1000.1235 How does the Secretary respond to a waiver request?
1000.1240 When must the Secretary make a decision on a waiver 
request?
1000.1245 How does the Secretary make a decision on the waiver 
request?
1000.1250 What happens if the Secretary neither approves nor denies 
a waiver request within the time specified in Sec.  1000.1240?
1000.1255 May a Tribe/Consortium appeal the Secretary's decision to 
deny its request for a waiver of a regulation?
1000.1260 What is the term of a waiver?
1000.1265 May a Tribe/Consortium withdraw a waiver request?
1000.1270 May a Tribe/Consortium have more than one waiver request 
pending before the Secretary at the same time?
1000.1275 May a Tribe/Consortium continue to negotiate a funding 
agreement pending final decision on a waiver request?
1000.1280 How is a waiver decision documented for the record?
Subpart K--Construction

Construction Definitions

Sec.
1000.1301 What key construction terms do I need to know?

Purpose and Scope

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

Notification and Project Assumption

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

Requirements and Standards

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

NEPA Process

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

Role of the Secretary

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

Role of the Tribe/Consortium

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

Other

1000.1480 May a Tribe/Consortium continue work with construction 
funds remaining in a funding agreement or construction project 
agreement at the end of the funding year?
1000.1485 Must a construction project agreement or funding agreement 
that contains a construction project or

[[Page 100249]]

activity incorporate provisions of Federal construction standards?
1000.1490 May the Secretary require design provisions and other 
terms and conditions for construction projects or programs included 
in a funding agreement or construction project agreement under 
section 403(c) (25 U.S.C. 5363(c))?
1000.1495 Do all provisions of other subparts apply to construction 
portions of a funding agreement or construction project agreement?
1000.1500 When a Tribe withdraws from a Consortium, is the Secretary 
required to award to the withdrawing Tribe a portion of funds 
associated with a construction project if the withdrawing Tribe so 
requests?
1000.1505 May a Tribe/Consortium reallocate funds from a 
construction program to a non-construction program?
1000.1510 May a Tribe/Consortium reallocate funds among construction 
programs?
1000.1515 Must the Secretary retain project funds to ensure proper 
health and safety standards in construction projects?
1000.1520 What funding must the Secretary provide in a construction 
project agreement or funding agreement that includes a construction 
project or program?
1000.1525 Must Federal funds from other DOI sources be incorporated 
into a construction project agreement or funding agreement that 
includes a construction project or program?
1000.1530 May a Tribe/Consortium contribute funding to a project?
Subpart L--Federal Tort Claims
Sec.
1000.1601 What is the purpose of this subpart?
1000.1605 What other statutes and regulations apply to FTCA 
coverage?
1000.1610 Do Tribes/Consortia need to be aware of areas which FTCA 
does not cover?
1000.1615 Is there a deadline for filing FTCA claims?
1000.1620 How long does the Federal Government have to process a 
FTCA claim after the claim is received by the Federal agency, before 
a lawsuit may be filed?
1000.1625 Is it necessary for a compact or funding agreement to 
include any clauses about FTCA coverage?
1000.1630 Does FTCA apply to a compact and funding agreement if FTCA 
is not referenced in the compact or funding agreement?
1000.1635 To what extent shall the Tribe/Consortium cooperate with 
the Federal Government in connection with tort claims arising out of 
the Tribe's/Consortium's performance of a compact, funding 
agreement, or subcontract?
1000.1640 Does this coverage extend to subcontractors of compacts 
and funding agreements?
1000.1645 Is FTCA the exclusive remedy for a tort claim, including a 
claim concerning personal injury or death, resulting from the 
performance of a compact or funding agreement?
1000.1650 What employees are covered by FTCA for claims arising out 
of a Tribe's/Consortia's performance of a compact or funding 
agreement?
1000.1655 Does FTCA cover employees of the Tribe/Consortium who are 
paid by the Tribe/Consortium from funds other than those provided 
through the funding agreement?
1000.1660 May persons who are not Indians or Alaska Natives assert 
claims under FTCA arising out of the performance of a compact or 
funding agreement by a Tribe/Consortium?
1000.1665 If the Tribe/Consortium or Tribe's/Consortium's employee 
receives a summons and/or a complaint alleging a tort covered by 
FTCA and arising out of the performance of a compact or funding 
agreement, what should the Tribe/Consortium do?
Subpart M--Reassumption
Sec.
1000.1701 What is the purpose of this subpart?
1000.1705 What does reassumption mean?
1000.1710 Under what circumstances may the Secretary reassume a 
program operated by a Tribe/Consortium under a funding agreement?
1000.1715 What is ``imminent jeopardy'' to a trust asset?
1000.1720 What is ``imminent jeopardy'' to natural resources?
1000.1725 What is ``imminent jeopardy'' to public health and safety?
1000.1730 What steps must the Secretary take prior to reassumption 
becoming effective?
1000.1735 Does the Tribe/Consortium have a right to a hearing prior 
to a non-immediate reassumption becoming effective?
1000.1740 What happens if the Secretary determines that the Tribe/
Consortium has not corrected the conditions that the Secretary 
identified in the written notice?
1000.1745 What is the earliest date on which a reassumption by the 
Secretary can be effective?
1000.1750 Does the Secretary have the authority to immediately 
reassume a program?
1000.1755 What must a Tribe/Consortium do when a program is 
reassumed?
1000.1760 When must the Tribe/Consortium return funds to the 
Department?
1000.1765 May the Tribe/Consortium be reimbursed for actual and 
reasonable ``wind up costs'' incurred after the effective date of 
retrocession?
1000.1770 Is a Tribe's/Consortium's general right to negotiate a 
funding agreement adversely affected by a reassumption action?
1000.1775 When will the Secretary return management of a reassumed 
program?
Subpart N--Retrocession
Sec.
1000.1801 What is the purpose of this subpart?
1000.1805 Is a decision by a Tribe/Consortium not to include a 
program in a successor agreement considered a retrocession?
1000.1810 Who may retrocede a program in a funding agreement?
1000.1815 How does a Tribe/Consortium retrocede a program?
1000.1820 When will the retrocession become effective?
1000.1825 How will retrocession affect the Tribe's/Consortium's 
existing and future funding agreements?
1000.1830 Does the Tribe/Consortium have to return funds used in the 
operation of a retroceded program?
1000.1835 Does the Tribe/Consortium have to return property used in 
the operation of a retroceded program?
1000.1840 What happens to a Tribe's/Consortium's mature contract 
status if it has retroceded a program that is also available for 
self-determination contracting?
1000.1845 How does retrocession affect a bureau's operation of the 
retroceded program?
Subpart O--Trust Evaluation
Sec.
1000.1901 What is the purpose of this subpart?
1000.1905 Does the Act alter the trust responsibility of the United 
States to Indian Tribes and individuals under self-governance?
1000.1910 What are ``trust resources'' for the purposes of the trust 
evaluation process?
1000.1915 What are ``trust PSFAs'' for the purposes of the trust 
evaluation process?
1000.1920 Can a Tribe/Consortium request the Secretary to conduct an 
assessment of the status of the trust assets, resource, and PSFAs?

Annual Trust Evaluation

1000.1925 What is a trust evaluation?
1000.1930 How are trust evaluations conducted?
1000.1935 May the trust evaluation process be used for additional 
reviews?
1000.1936 May the parties negotiate review methods for purposes of 
the trust evaluation?
1000.1940 What are the responsibilities of the Secretary's 
designated representative(s) after the annual trust evaluation?
1000.1945 Is the trust evaluation standard or process different when 
the trust resource or asset is held in trust for an individual 
Indian or Indian allottee?
1000.1950 Does the annual trust review evaluation include a review 
of the Secretary's inherent Federal and retained operation trust 
PSFAs?
1000.1955 What are the consequences of a finding of imminent 
jeopardy in the Secretary's annual trust evaluation?
1000.1960 What if the Secretary's trust evaluation reveals problems 
that do not rise to the level of imminent jeopardy?
1000.1965 Who is responsible for taking corrective action?
1000.1970 What are the requirements of the Department's review team 
report?

[[Page 100250]]

1000.1975 May the Department conduct more than one trust evaluation 
per Tribe per year?
Subpart P--Reports
Sec.
1000.2001 What is the purpose of this subpart?
1000.2005 Is the Secretary required to report on Self Governance?
1000.2010 What will the Secretary's annual report to Congress 
contain?
1000.2011 Is the Secretary required to review programs of the 
Department other than BIA, BIE, the Office of the Assistant 
Secretary for Indian Affairs, and the BTFA?
1000.2012 Is the Secretary required to annually publish information 
under this subpart in the Federal Register?
1000.2015 Must the Secretary seek comment on the report from Tribes/
Consortia before submitting it to Congress?
1000.2020 What may the Tribe's/Consortium's annual report on self-
governance address?
1000.2025 Are there other data submissions or reports that Tribes/
Consortia may be requested to submit?
1000.2030 Are Tribes/Consortia required to submit Single Audit Act 
reports?
1000.2035 Is there an exemption available for the requirement to 
submit Single Audit Act reports?
1000.2040 Are Tribes/Consortia required to maintain reports and 
records in accordance with 25 U.S.C. 5305?
Subpart Q--Operational Provisions
Sec.
1000.2101 How can a Tribe/Consortium hire a Federal employee to help 
implement a funding agreement?
1000.2105 Can a Tribe/Consortium employee be detailed to a Federal 
service position?
1000.2110 How does the Freedom of Information Act apply?
1000.2115 How does the Privacy Act apply?
1000.2120 What audit requirements must a Tribe/Consortium follow?
1000.2125 How do OMB circulars and the Act apply to funding 
agreements?
1000.2130 How much time does the Federal Government have to make a 
claim against a Tribe/Consortium relating to any disallowance of 
costs, based on an audit?
1000.2135 Does a Tribe/Consortium have additional ongoing 
requirements to maintain minimum standards for Tribe/Consortium 
management systems?
1000.2140 Are there any restrictions on how funds awarded to a 
Tribe/Consortium under a funding agreement may be spent?
1000.2145 What standard applies to a Tribe's/Consortium's management 
of funds awarded under a funding agreement?
1000.2150 How may interest or investment income that accrues on 
funds awarded under a funding agreement be used?
1000.2155 Can a Tribe/Consortium retain savings from programs?
1000.2160 Can a Tribe/Consortium carry over funds not spent during 
the term of the funding agreement?
1000.2165 After a non-BIA funding agreement has been executed and 
the funds transferred to a Tribe/Consortium, can a bureau request 
the return of unexpended funds?
1000.2170 How can a person or group appeal a decision or contest an 
action related to a program operated by a Tribe/Consortium under a 
funding agreement?
1000.2175 Must Tribes/Consortia comply with the Secretarial approval 
requirements of 25 U.S.C. 81; 82a; and 476 regarding professional 
and attorney contracts?
1000.2180 Are funds awarded under a funding agreement non-Federal 
funds for the purpose of meeting matching or cost participation 
requirements?
1000.2185 Does Indian preference apply to services, activities, 
programs, and functions performed under a funding agreement?
1000.2190 Do the wage and labor standards in the Davis-Bacon Act 
apply to Tribes and Tribal Consortia?
1000.2195 Can a Tribe/Consortium use Federal supply sources in the 
performance of a funding agreement?
1000.2200 Does the Prompt Payment Act (31 U.S.C. 3901) apply to a 
BIA funding Agreement?
1000.2205 Does the Prompt Payment Act (31 U.S.C. 3901) apply to a 
non-BIA program funding agreement?
1000.2210 Is a Tribe/Consortium obligated to continue performance 
under a compact or funding agreement if the Secretary does not 
transfer sufficient funds?
Subpart R--Appeals
Sec.
1000.2301 What is the purpose of this subpart?
1000.2305 How must disputes be handled?
1000.2310 Does a Tribe/Consortium have any options besides an 
appeal?
1000.2315 What is the Secretary's burden of proof for appeals in 
this subpart?

Informal Conference

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

Post-Award Disputes

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

Pre-Award Disputes

1000.2345 What decisions may a Tribe/Consortium appeal under 
Sec. Sec.  1000.2345 through 1000.2395?
1000.2350 What decisions may not be appealed under Sec. Sec.  
1000.2345 through 1000.2395?
1000.2351 To Whom may a Tribe/Consortia appeal a decision under 
Sec.  1000.2345?
1000.2355 How does a Tribe/Consortium know where and when to file an 
appeal?
1000.2357 Which official is the appropriate bureau head or Assistant 
Secretary for purposes of subpart R?

Appeals to Bureau Head/Assistant Secretary

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

Appeals to IBIA

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

Appeals of an Immediate Reassumption of a Self-Governance Program

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

Equal Access to Justice Act

1000.2435 Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?
Subparts S--Conflicts of Interest
Sec.
1000.2501 Is a Tribe/Consortium required to have policies in place 
to address conflicts of interest?
1000.2505 What is an organizational conflict of interest?
1000.2510 What must a Tribe/Consortium do if an organizational 
conflict of interest arises under a funding agreement?
1000.2515 When must a Tribe/Consortium regulate its employees or 
subcontractors to avoid a personal conflict of interest?

[[Page 100251]]

1000.2520 What types of personal conflicts of interest involving 
Tribal officers, employees, or subcontractors would have to be 
regulated by a Tribe/Consortium?
1000.2525 What personal conflicts of interest must the standards of 
conduct regulate?
Subpart T--Tribal Consultation Process
Sec.
1000.2601 What is the purpose of this subpart?
1000.2605 When does the Secretary consult with Tribes and Consortia 
on matters related to self-governance?
1000.2610 What principles should guide consultations with Tribes and 
Consortia?
1000.2615 What notice must the Secretary provide to Tribes and 
Consortia of an upcoming consultation?
1000.2620 Is the Secretary required to allow written comments by 
Tribes and Consortia following a consultation?
1000.2625 What record must the Secretary maintain following a 
consultation with Tribes and Consortia?
1000.2630 How must the Secretary handle confidential or sensitive 
information provided by Tribes and Consortia during a consultation?

    Authority:  25 U.S.C. 5373

Subpart A--General Provisions


Sec.  1000.1   What is the authority of this part?

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


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

    403(c) Program or Nexus Program means a non-BIA program eligible 
under 25 U.S.C. 5363(c) and, specifically, a program, function, 
service, or activity that is of special geographic, historical, or 
cultural significance to a self-governance Tribe/Consortium. These 
programs may also be referred to as ``nexus programs.''
    Act means title IV of the Indian Self-Determination and Education 
Assistance Act of 1975, Public Law 93-638, as amended by Public Law 
103-413, Public Law 104-109, and Public Law 116-180.
    BIA means the Bureau of Indian Affairs of the Department or any 
successor bureau. For purposes of this part, BIA shall include the 
Office of the Assistant Secretary for Indian Affairs, BIE, and BTFA, or 
any successor bureau, unless specified otherwise.
    BIA Program means any program, service, function, or activity, or 
portion thereof, that is performed or administered by the Department 
through the BIA. For purposes of this part, BIA Program shall also 
include any PSFA performed or administered by the Department through 
the Office of the Assistant Secretary for Indian Affairs, BIE, or BTFA 
which are eligible for inclusion in a compact or funding agreement 
under the Act unless specified otherwise.
    BIE means the Bureau of Indian Education of the Department, or any 
successor bureau.
    BIE Program means any program, service, function, or activity, or 
portion thereof, that is performed or administered by the Department 
through the BIE and is eligible for inclusion in a compact and funding 
agreement under the Act.
    BTFA means the Bureau of Trust Funds Administration of the 
Department, or any successor bureau, to which the Department has 
transferred fiduciary programs, services, functions, and activities 
from the Office of Special Trustee for American Indians, as it is 
referenced in 25 U.S.C. 5361, et seq., as amended.
    Bureau means a bureau, service, office, agency, and other such 
subsidiary entity within the Department.
    Compact means a self-governance compact entered under 25 U.S.C. 
5364.
    Consortium means an organization of Indian Tribes that is 
authorized by those Tribes to participate in self-governance under this 
part and is responsible for negotiating, executing, and implementing 
funding agreements and compacts.
    Construction management services (CMS) means activities limited to 
administrative support services, coordination, oversight of engineers 
and construction activities. CMS services include services that precede 
project design: all project design and actual construction activities 
are subject to subpart K of these regulations whether performed by a 
Tribe subcontractor, or consultant.
    Construction program or construction project means a Tribal 
undertaking relating to the administration, planning, environmental 
determination, design, construction, repair, improvement, or expansion 
of roads, bridges, buildings, structures, systems, or other facilities 
for purposes of housing, law enforcement, detention, sanitation, water 
supply, education, administration, community, health, irrigation, 
agriculture, conservation, flood control, transportation, or port 
facilities, or for other Tribal purposes.
    Days means calendar days, except where the last day of any time 
period specified in this part falls on a Saturday, Sunday, or a Federal 
holiday, the period must carry over to the next business day unless 
otherwise prohibited by law.
    Director means the Director of the Office of Self-Governance (OSG).
    DOI or Department means the Department of the Interior.
    Funding agreement means a funding agreement entered into under 25 
U.S.C. 5363.
    Funding year means either fiscal or calendar year.
    Gross mismanagement means a significant violation, shown by a 
preponderance of the evidence, of a compact, funding agreement, or 
statutory or regulatory requirement applicable to Federal funds for a 
PSFA administered by an Indian Tribe under a compact or funding 
agreement.
    Indian means a person who is a member of an Indian Tribe.
    Indian Tribe or Tribe means any Indian Tribe, band, nation or other 
organized group or community, including pueblos, rancherias, colonies 
and any Alaska Native village, or regional or village corporations as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act, that is recognized as eligible for special programs and 
services provided by the United States to Indians because of their 
status as Indians.
    Indirect costs means costs incurred for a common or joint purpose 
benefitting more than one program and that are not readily assignable 
to individual programs.
    Indirect cost rates means the rate(s) arrived at through 
negotiation between an Indian Tribe/Consortium and the appropriate 
Federal agency.
    Inherent Federal function means a Federal function that may not 
legally be delegated to an Indian Tribe.
    Non-BIA Bureau means any bureau within the Department other than 
the BIA, the BIE, the BTFA, or the Office of the Assistant Secretary 
for Indian Affairs.
    Non-BIA bureaus director/commissioner means the director of Non-BIA 
bureaus and the commissioner of the Bureau of Reclamation.
    Non-BIA Programs means all or a portion of a program, function, 
service, or activity that is administered by any bureau other than the 
BIA, the BIE, the BTFA, or the Office of the Assistant Secretary for 
Indian Affairs within the Department.
    Office of Self-Governance (OSG) means the office within the Office 
of the

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Assistant Secretary-Indian Affairs responsible for the implementation 
and development of the Tribal Self-Governance Program.
    Program or PSFA means any program, service, function, or activity 
(or portions thereof) within the Department that is included in a 
funding agreement.
    Public Law 93-638 means sections 1 through 9 and title I of the 
Indian Self-Determination and Education Assistance Act of 1975, as 
amended.
    Reassumption means the Secretary, without consent of the Tribe/
Consortium, takes control or operation of the PSFAs and associated 
funding in a compact or funding agreement, in whole or in part, and 
assumes the responsibility to provide such PSFAs.
    Residual Funds means funding that is necessary for the Department 
to carry out inherent Federal functions that cannot be delegated to a 
Tribe/Consortia by law.
    Retained Tribal shares means those funds that were available as a 
Tribal share but under the funding agreement were left with BIA to 
administer.
    Retrocession means the voluntary full or partial return by a Tribe/
Consortium to a bureau of a PSFA operated under a funding agreement 
before the agreement expires.
    Secretary means the Secretary of the Interior or his or her 
designee authorized to act on the behalf of the Secretary as to the 
matter at hand.
    Self-determination contract means a self-determination contract 
entered into under 25 U.S.C. 5321.
    Self-governance means the Tribal Self-Governance Program 
established under 25 U.S.C. 5362.
    Self-governance Tribe/Consortium means a Tribe or Consortium that 
has been selected to participate in self-governance. May also be 
referred to as ``participating Tribe/Consortium.''
    Subsequent funding agreement means a funding agreement negotiated 
after a Tribe's/Consortium's initial agreement with a bureau.
    Tribal share means the portion of all funds and resources 
determined for that Tribe/Consortium that supports any program within 
BIA, the BIE, the BTFA, or the Office of the Assistant Secretary for 
Indian Affairs and are not required by the Secretary for the 
performance of an inherent Federal function.


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

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


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

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


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

    In carrying out Tribal self-governance under title IV, it is the 
policy of the Secretary:
    (a) To fully support and implement the foregoing policies to the 
full extent of the Secretary's authority.
    (b) To recognize and respect the unique government-to-government 
relationship between Tribes, as sovereign governments, and the United 
States.
    (c) To have all bureaus of the Department work to further and 
protect the trust responsibility of the United States with respect to 
Tribes and individual Indians that exists under treaties, Executive 
orders, other laws, or court decisions.
    (d) To have all bureaus of the Department work cooperatively and 
pro-

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actively with Tribes/Consortia on a government-to-government basis 
within the framework of the Act and any other applicable provision of 
law, so as to make the ideals of self-determination and self-governance 
a reality.
    (e) To have all bureaus of the Department work to streamline the 
process for Tribes/Consortia participating in or applying to 
participate in self-governance to establish administrative efficiencies 
and consistency with the processes under title IV and title V of Public 
Law 93-638, as amended.
    (f) To have all bureaus of the Department actively share 
information with Tribes and Tribal Consortia to encourage Tribes and 
Tribal Consortia to become knowledgeable about the Department's 
programs and the opportunities to include them in a funding agreement.
    (g) To interpret each Federal law and regulation, including this 
part, in a manner that facilitates the inclusion of programs in funding 
agreements and the implementation of funding agreements.
    (h) That all bureaus of the Department will negotiate in good 
faith, to maximize implementation of the Self-Governance policy and 
carry out title IV and this part in a manner that maximizes the policy 
of Tribal self-governance.
    (i) That, subject to Public Law 116-180, title I, Sec.  101(a), 
Oct. 21, 2020, 134 Stat. 857, (25 U.S.C. 5361 Note), each provision of 
title IV and each provision of a compact or funding agreement shall be 
liberally construed for the benefit of the Tribe or Consortium 
participating in self-governance, and that any ambiguity be resolved in 
favor of the Tribe or Consortium to facilitate the inclusion of 
programs in each funding agreement authorized.
    (j) To timely enter into funding agreements under title IV, 
whenever possible.
    (k) To afford Tribes and Tribal Consortia the maximum flexibility 
and discretion necessary to meet the needs of their communities 
consistent with their diverse demographic, geographic, economic, 
cultural, health, social, religious, and institutional needs. This 
includes recognition of and support for Indigenous Knowledge, and the 
Tribes' and Tribal Consortia's authority to apply such knowledge when 
performing PSFAs under this part. These policies are designed to 
facilitate and encourage Tribes and Tribal Consortia to participate in 
the planning, conduct, and administration of those Federal programs, 
included, or eligible for inclusion in a funding agreement.
    (l) To the extent of the Secretary's authority, to maintain active 
communication with Tribal governments regarding budgetary matters 
applicable to programs subject to the Act, and that are included in an 
individual funding agreement.
    (m) To implement policies, procedures, and practices at the 
Department to ensure that the letter, spirit, and goals of the Act are 
fully and successfully implemented to the maximum extent allowed by 
law.
    (n) To ensure that Executive Order 13175 on Consultation and 
Coordination with Indian Tribal Governments and any subsequent 
Executive Orders regarding consultation will apply to the 
implementation of these regulations.


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

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


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

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


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

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

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

Purpose and Definitions


Sec.  1000.101  What is the purpose of this subpart?

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


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

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


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

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

Eligibility


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

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


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

    (a) The Secretary, acting through the Director of the OSG, may 
select not more than 50 new Indian Tribes per year from those Tribes 
eligible under 25 U.S.C. 5362(c) to participate in self-

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governance. A Consortium of Indian Tribes counts as one Tribe for 
purposes of calculating the 50 additional Tribes per year.
    (b) The limitation of not more than 50 new Tribes per year does not 
preclude a signatory Tribe from negotiating a new or amended compact or 
funding agreement. Such new or amended compacts or funding agreements 
do not count against the limitation of not more than 50 new Tribes per 
year.


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

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


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

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


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

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


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

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


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

    A Tribe/Consortium has an uncorrected significant and material 
audit exceptions if any of the audits that it submitted under Sec.  
1000.125(c) identifies:
    (a) Significant deficiencies and material weaknesses in internal 
control over major programs and significant instances of abuse relating 
to major programs which the Tribe/Consortium has not corrected;
    (b) Material noncompliance with the provisions of Federal statutes, 
regulations, or the terms and conditions of Federal awards related to a 
major program which the Tribe/Consortium has not corrected; or
    (c) A single finding of known questioned costs subsequently 
disallowed by a contracting officer or awarding official that exceeds 
$25,000 (or such higher amount as may be established in 2 CFR 200.516).


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

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


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

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

Selection To Participate in Self-Governance


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

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


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

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

[[Page 100255]]

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

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


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

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


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

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


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

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


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

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


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

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


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

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

Withdrawal From a Consortium Funding Agreement


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

    (a) A Tribe wishing to withdraw from all or a part of a 
Consortium's funding agreement must notify the parties to the compact 
and funding agreement. The notice must:
    (1) Be in the form of a Tribal resolution or other official action 
by the Tribal governing body; and
    (2) Be received no later than 180 days before the effective date of 
the next Consortium funding agreement, unless the parties agree to 
another date.
    (b) The resolution referred to in paragraph (a) of this section 
must indicate whether the Tribe wishes the withdrawn programs to be 
administered under a title IV funding agreement, title I contract, or 
directly by the bureau.
    (c) The effective date of the withdrawal will be the date specified 
in the Tribal resolution and mutually agreed upon by the parties that 
signed the compact and funding agreement. In the absence of a specific 
time set forth in the resolution, such withdrawal becomes effective on:
    (1) The earlier of one year after the date of submission of the 
request, or the date on which the funding agreement expires; or
    (2) Such date as may be mutually agreed upon by the withdrawing 
Tribe and the parties that signed the compact and funding agreement.


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

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


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

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


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

    All funds not obligated by the Consortium associated with the 
withdrawing Tribe's returned Tribal share of funds, less close out 
costs, shall

[[Page 100256]]

be returned by the Consortium to DOI for operation of the programs 
included in the withdrawal.


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

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


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

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

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

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


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

    Under Sec.  1000.205, a Tribe may withdraw from a Consortium and 
request that the Secretary award the Tribe its portion of a 
construction project's funds. The Secretary may decide not to award 
these funds if the Secretary determines that the award of the 
withdrawing Tribe's portion of funds would affect the ability of the 
remaining members of the Consortium to complete a severable or non-
severable phase of the project within available funding.
    (a) An example of a non-severable phase of a project would be the 
construction of a single building to serve all members of a Consortium.
    (b) An example of a severable phase of a project would be the 
funding of a road in one village where the Consortium would be able to 
complete the roads in other villages that were part of the project 
approved initially in the funding agreement.
    (c) The Secretary's decision under this section may be appealed 
under subpart R of this part.

Subpart C--Planning and Negotiation Grants for BIA Programs


Sec.  1000.301  What is the purpose of this subpart?

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


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

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


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

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


Sec.  1000.315  Are planning and negotiation grants available?

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


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

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


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

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

[[Page 100257]]

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

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


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

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


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

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

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


Sec.  1000.401  What is the purpose of this subpart?

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


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

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


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

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


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

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


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

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


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

    Subject to the availability of funds, the Secretary will annually 
publish a notice in the Federal Register identifying the number of 
planning and negotiation grants available from non-BIA bureaus that 
includes an explanation for each non-BIA bureau describing the 
application process and criteria for award. The notice will identify a 
point-of-contact for each non-BIA bureau where questions about the 
grants can be directed. Notices for planning and negotiation grants for 
BIA programs are covered in Sec.  1000.315.


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

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


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

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


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

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


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

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


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

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


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

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


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

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

[[Page 100258]]

Subpart E--Compacts


Sec.  1000.501  What is a self-governance compact?

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


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

    The DOI OSG negotiates self-governance compacts.


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

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


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

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


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

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


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

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


Sec.  1000.530  What is the duration of a compact?

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


Sec.  1000.535  May a compact be amended?

    A compact may be amended at any time subject to the applicable 
negotiation procedures contained in this part, or by written agreement 
of the parties.


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

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


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

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


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

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

Subpart F--Funding Agreements for BIA Programs


Sec.  1000.601  What is the purpose of this subpart?

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


Sec.  1000.605   What is a funding agreement?

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


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

    (a) Each funding agreement must:
    (1) Specify the PSFAs that the Tribe/Consortium is authorized to 
plan, conduct, consolidate, and administer and the responsibilities of 
the Secretary as outlined in Sec.  1000.650;
    (2) Provide for the Secretary to monitor the performance of trust 
functions administered by the Tribe/Consortium through the annual trust 
evaluation as specified in subpart O of this part;
    (3) Provide for annual or semi-annual installments of advance 
payment(s), at the option of the Tribe/Consortium;
    (4) Provide for the incorporation of required provisions of title I 
of Public Law 93-638, as amended, pursuant to section 201(d) of the 
PROGRESS for Indian Tribes Act, and for the incorporation of other 
provisions of title I of Public Law 93-638, as amended, at the option 
of the Tribe/Consortium;
    (5) Provide for a stable base budget as outlined in Sec. Sec.  
1000.745 through 1000.760, at the option of the Tribe/Consortium;
    (6) Prohibit the Secretary from waiving, modifying, or diminishing 
the trust responsibility of the United States;
    (7) Specify the funding agreement's effective date;
    (8) Prohibit the Tribe/Consortium from contracting with the 
Secretary for duplicative funds and/or PSFAs under title I;

[[Page 100259]]

    (9) Provide that the Tribe/Consortium shall be eligible for new 
programs and new funding on the same basis as other Indian Tribes; and 
shall be responsible for the administration of programs in accordance 
with the compact or funding agreement;
    (10) Provide the funding amount(s); and
    (11) Include as attachments and incorporate by reference additional 
documents agreed upon by the parties.
    (b) Subject to 25 U.S.C. 5365, the following must be included in 
either a compact or funding agreement. The Tribe/Consortium may include 
the following in either a compact or funding agreement:
    (1) Conflicts of Interest;
    (2) Applicable Cost Principles and application of the Single Audit 
Act;
    (3) Limitations on remedies relating to cost disallowances;
    (4) For non-construction programs, authorization for the Tribe/
Consortium to redesign or consolidate programs and to reallocate funds 
for such programs;
    (5) Reassumption;
    (6) Retrocession; and
    (7) Recordkeeping.


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

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


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

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


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

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


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

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


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

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


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

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

Determining What Programs May Be Included in a Funding Agreement


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

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


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

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


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

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


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

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


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

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

Determining Funding Agreement Amounts


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

    (a) Subject to the terms of a funding agreement, the Secretary must 
transfer to a Tribe/Consortium all funds provided for in the funding 
agreement, pursuant to 25 U.S.C. 5368. The Secretary shall provide 
funding for periods covered by joint resolution adopted by Congress 
making continuing appropriations, to the extent permitted by such 
resolution.
    (b) At the option of the Tribe/Consortium, the Secretary must 
provide the following program funds to the

[[Page 100260]]

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


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

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


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

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


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

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


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

    (a) Between October 1st and December 31st of each fiscal year, each 
regional and central office shall develop a document that contains its 
inherent Federal function information and cost calculation for that 
office based either on an enacted budget or Continuing Resolution 
budgetary guidance, and promptly distribute that document to each 
Tribe/Consortium served by that office.
    (b) The Secretary shall amend the document throughout the year if 
programs are added or changed in ways that affect the inherent Federal 
functions directly associated with a PSFA transferred, or proposed to 
be transferred, into the funding agreement of the Tribe/Consortium, and 
distribute that revised document to any Tribe/Consortium served by that 
office and seeking to transfer a PSFA into a funding agreement under 
the Act.
    (c) Once final budget amounts are known and suballocated, the 
Secretary will provide an updated document within 90 days to each 
Tribe/Consortium.
    (d) Inherent Federal function information must clearly identify the 
legal authority that specifically precludes delegation to a Tribe/
Consortium.
    (e) Cost calculations must be limited to the minimum amount of 
funds necessary to carry out specific inherent Federal functions 
necessary for that office to administer PSFAs transferred to the 
funding agreement.
    (f) The development of the document in paragraph (a) of this 
section must be based on the following principles:
    (1) Uniformity and consistency in the identification of inherent 
Federal functions and in the calculation of their associated costs;
    (2) The determination of inherent Federal functions in each office 
is based only on those inherent Federal functions actually being 
performed at that office; and
    (3) The Secretary shall consult with Tribes/Consortium on inherent 
Federal function determinations and associated cost calculations at 
various forums, including the Tribal Interior Budget Council (TIBC).
    (g) In negotiating the amount of funds due a Tribe/Consortium in a 
funding agreement, the Secretary may withhold from transfer to the 
funding agreement only those funds to carry out inherent Federal 
functions associated with the PSFAs assumed in the funding agreement, 
unless otherwise expressly agreed to by the Tribe/Consortium in the 
funding agreement.
    (h) Upon the request of a Tribe/Consortium, the Secretary must 
promptly provide a specific description of each inherent Federal 
function directly associated with a PSFA transferred, or proposed to be 
transferred, into the funding agreement of the Tribe/Consortium, along 
with the detailed basis for the Secretary's associated cost 
calculation.


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

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


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

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


Sec.  1000.705  What is a Tribal share?

    A Tribal share is the portion of all funds and resources determined 
for a particular Tribe (or Tribes within a Consortium) that support any 
program within BIA, BIE, BTFA, or the Office of the Assistant Secretary 
for Indian Affairs and are not required by the Secretary for the 
performance of an

[[Page 100261]]

inherent Federal function as described in Sec. Sec.  1000.685 through 
1000.695.


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

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


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

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


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

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


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

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


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

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


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

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


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

    Yes, funding amounts negotiated in a funding agreement may be 
adjusted under the following circumstances:
    (a) Congressional action. (1) Increases/decreases as a result of 
Congressional appropriations and/or a directive in the statement of 
managers accompanying a conference report on an appropriations bill or 
continuing resolution.
    (2) General decreases due to Congressional action must be applied 
consistently to BIA, self-governance Tribes/Consortium, and Tribes/
Consortium not participating in self-governance.
    (3) General increases due to Congressional appropriations must be 
applied consistently, except where used to achieve equitable 
distribution among regions and Tribes.
    (4) A Tribe/Consortium will be notified of any decrease and be 
provided an opportunity to reconcile.
    (b) Mistakes. If the Tribe/Consortium or the Secretary can identify 
and document substantive errors in calculations, the parties will 
renegotiate the amounts and make every effort to correct such errors.
    (c) Mutual Agreement. Both the Tribe/Consortium and the Secretary 
may agree to renegotiate amounts at any time.

Establishing Self-Governance Stable Base Budgets


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

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


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

    No, unless otherwise requested by the Tribe/Consortium, these 
amounts are not renegotiated each year. If a Tribe/Consortium 
renegotiates funding levels:
    (a) It must negotiate all funding levels in the funding agreement 
using the

[[Page 100262]]

process for determining funds for BIA to carry out inherent Federal 
functions on the same basis as other Tribes; and
    (b) It is eligible for funding amounts of new programs or available 
programs not previously included in the funding agreement on the same 
basis as other Tribes.


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

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


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

    Self-governance stable base budgets must be adjusted as follows:
    (a) Congressional action. (1) Increases/decreases as a result of 
Congressional appropriations and/or a directive in the statement of 
managers accompanying a conference report on an appropriations bill or 
continuing resolution.
    (2) General decreases due to Congressional action must be applied 
consistently to BIA, self-governance Tribes/Consortium, and Tribes/
Consortium not participating in self-governance.
    (3) General increases due to Congressional appropriations must be 
applied consistently, except where used to achieve equitable 
distribution among regions and Tribes.
    (4) A Tribe/Consortium will be notified of any decrease and be 
provided an opportunity to reconcile.
    (b) Mistakes. If the Tribe/Consortium or the Secretary can identify 
and document substantive errors in calculations, the parties will 
renegotiate such amounts and make every effort to correct the errors.
    (c) Mutual agreement. Both the Tribe/Consortium and the Secretary 
may agree to renegotiate amounts at any time.

Subpart G--Funding Agreements for Non-BIA Programs


Sec.  1000.801  What is the purpose of this subpart?

    This subpart describes program eligibility, funding, terms, and 
conditions of funding agreements for non-BIA programs.


Sec.  1000.805  What is a funding agreement for a non-BIA program?

    Funding agreements for non-BIA programs are legally binding and 
mutually enforceable agreements between a bureau and a Tribe/Consortium 
participating in the self-governance program that contain:
    (a) A description of that portion or portions of a bureau program 
that are to be performed by the Tribe/Consortium; and
    (b) Associated funding, terms and conditions under which the Tribe/
Consortium will assume a program, or portion of a program.


Sec.  1000.810  What non-BIA programs are eligible for inclusion in a 
funding agreement?

    Programs authorized by sections 403(b)(2) and 403(c) (25 U.S.C. 
5363(b)(2) and 5363(c)), as amended, are eligible for inclusion in a 
funding agreement. The Secretary will publish annually a list of these 
programs in accordance with 25 U.S.C. 5372(c)(3) and (4).


Sec.  1000.815  Are there non-BIA programs for which the Secretary must 
negotiate for inclusion in a funding agreement subject to such terms as 
the parties may negotiate?

    Yes, those programs, or portions thereof, that are eligible for 
inclusion in funding agreements under section 403(b)(2) (25 U.S.C. 
5363(b)(2).


Sec.  1000.820  What programs are included under section 403(b)(2) (25 
U.S.C. 5363(b)(2))?

    Those non-BIA programs, or portions thereof, that are eligible for 
inclusion in funding agreements under the Act, as amended.


Sec.  1000.825  What programs are included under section 403(c) (25 
U.S.C. 5363(c))?

    Non-BIA programs within the Department of special geographic, 
historical, or cultural significance to participating Tribes, 
individually or as members of a Consortium, are eligible for inclusion 
in funding agreements under section 403(c) (25 U.S.C. 5363(c)).


Sec.  1000.830  What does ``special geographic, historical or 
cultural'' mean?

    (a) Geographic generally refers to all lands presently ``on or 
near'' an Indian reservation, and all other lands within ``Indian 
country,'' as defined by 18 U.S.C. 1151. In addition, ``geographic'' 
includes:
    (1) Lands of former reservations;
    (2) Lands on or near those conveyed or to be conveyed under the 
Alaska Native Claims Settlement Act (ANCSA);
    (3) Judicially established aboriginal lands of a Tribe or a 
Consortium member or as verified by the Secretary; and
    (4) Lands and waters pertaining to Indian rights in natural 
resources, hunting, fishing, gathering, and subsistence activities, 
provided or protected by treaty or other applicable law.
    (b) Historical generally refers to programs or lands having a 
particular history that is relevant to the Tribe. For example, 
particular trails, forts, significant sites, or educational activities 
that relate to the history of a particular Tribe.
    (c) Cultural refers to programs, sites, or activities as defined by 
individual Tribal traditions and may include, for example:
    (1) Sacred and medicinal sites;
    (2) Gathering of medicines or materials such as grasses for basket 
weaving; or
    (3) Other traditional activities, including, but not limited to, 
subsistence hunting, fishing, and gathering.
    (d) In determining whether a Tribe/Consortium has demonstrated a 
non-BIA program's special geographic, historical or cultural 
significance to such Tribe/Consortium, the Secretary shall interpret 
each Federal law and regulation in a manner that will facilitate the 
inclusion of a program in, and the implementation of, a funding 
agreement.


Sec.  1000.835  Under section 403(b)(2) (25 U.S.C. 5363(b)(2)), when 
must programs be awarded non-competitively?

    Non-BIA programs eligible for inclusion in funding agreements under 
the Act, as amended, must be awarded non-competitively.


Sec.  1000.840  May a non-BIA bureau include in a funding agreement, on 
a non-competitive basis, programs of special geographic, historical, or 
cultural significance?

    Yes, if there is a special geographic, historical, or cultural 
significance to the program or activity administered by the bureau, the 
law affords the non-BIA bureau the discretion to include the programs 
or activities in a funding agreement on a non-competitive basis.


Sec.  1000.845  Are there any non-BIA programs that may not be included 
in a funding agreement?

    (a) Inherently Federal functions in accordance with 25 U.S.C. 
5361(6) and 5363(k).
    (b) Programs where the statute establishing the existing program 
does not authorize the type of participation sought by the Tribe/
Consortium. In determining whether a statute ``does not authorize the 
type of participation sought by'' the Tribe/Consortium within the 
meaning of 25 U.S.C. 5363(k), the Department shall take the following 
factors into consideration:
    (1) Tribes need not be identified in an authorizing statute in 
order for a

[[Page 100263]]

program, or element of a program, to be included in a funding 
agreement;
    (2) The lack of specificity in a statute by itself does not create 
a blanket exclusion from inclusion of a program, or element of a 
program, in a funding agreement; and
    (3) It is not an adequate ground to refuse to compact specific 
functions that are not inherently Federal in character, simply because 
an organic statute vests an agency with generic management authority 
over a broad category of land.
    (c) The Secretary shall interpret each Federal law and regulation 
in a manner that facilitates:
    (1) The inclusion of programs in funding agreements; and
    (2) The implementation of funding agreements.


Sec.  1000.850  Does a Tribe/Consortium need to be identified in an 
authorizing statute in order for a program or element of a program to 
be included in a non-BIA funding agreement?

    No, the Act, as amended, favors the inclusion of a wide range of 
programs.


Sec.  1000.855  Will Tribes/Consortia participate in the Secretary's 
determination of what is to be included on the annual list of available 
programs?

    Yes, the Secretary must consult each year with Tribes/Consortia 
participating in self-governance programs regarding which bureau 
programs are eligible for inclusion in funding agreements. If a Tribe/
Consortium makes a written request for a program to be included on the 
annual list for non-BIA reporting found in subpart P of this part 
(Sec. Sec.  1000.2010(c) and 1000.2012), the Secretary must provide a 
written rationale if the Secretary does not include such program.


Sec.  1000.860  How will the Secretary consult with Tribes/Consortia in 
developing the list of available programs?

    (a) The Secretary shall consult with Tribes/Consortia in developing 
the list of available programs in accordance with subpart T of this 
part.
    (b) In addition to the requirements in subpart T of this part:
    (1) The Secretary must publish the previous year's list of 
available programs in accordance with 25 U.S.C. 5372(c)(3) in the 
Federal Register prior to October 1 of each year. The list must 
include:
    (i) All of the Secretary's proposed additions and revisions for the 
coming year with an explanation; and
    (ii) Programmatic targets detailed in Sec.  1000.2010(e) and an 
initial point of contact for each bureau.
    (2) If the Secretary does not plan to include a Tribal suggestion 
or revision in the final published list, the Secretary must provide to 
such Tribe/Consortium a written explanation of reasons consistent with 
Sec.  1000.855.


Sec.  1000.865  What else is on the list in addition to eligible 
programs?

    The list will also include programmatic targets and an initial 
point of contact for each bureau. Programmatic targets will be 
established as part of the consultation process described in Sec.  
1000.860.


Sec.  1000.870  May a bureau negotiate with a Tribe/Consortium for 
programs not specifically included on the annual list pursuant to 25 
U.S.C. 5372(c)?

    Yes, the annual list will specify that bureaus will negotiate for 
other programs eligible under 25 U.S.C. 5363(b)(2) when requested by a 
Tribe/Consortium. Bureaus may negotiate for 25 U.S.C. 5363(c) programs 
whether or not they are on the list.


Sec.  1000.875  How will a bureau negotiate a funding agreement for a 
program of special geographic, historical, or cultural significance to 
more than one Tribe/Consortium?

    (a) If a program is of special geographic, historical, or cultural 
significance to more than one Tribe/Consortium, the bureau may allocate 
the program among the several Tribes/Consortia through separate funding 
agreements or select one Tribe/Consortium with whom to negotiate a 
funding agreement.
    (b) In making a determination under paragraph (a) of this section, 
the bureau will, in consultation with the affected Tribes/Consortia, 
consider:
    (1) The special significance of each Tribe's or Consortium member's 
interest; and
    (2) The statutory objectives being served by the bureau program.
    (c) The bureau's decision will be final for the Department.


Sec.  1000.880  When will this determination be made?

    It will occur during the pre-negotiation process, subject to the 
timeframes in subpart H of this part (see e.g., Sec. Sec.  1000.1035 
and 1000.1050).


Sec.  1000.885  What funds are included in a non-BIA funding agreement?

    Non-BIA bureaus determine the amount of funding to be included in 
the funding agreement using the following principles:
    (a) 403(b)(2) Programs (25 U.S.C. 5363(b)(2)). In general, funds 
are provided in a funding agreement to the Tribe/Consortium in an 
amount equal to the amount that it is eligible to receive under section 
106 of the Act, as amended.
    (b) 403(c) Programs (25 U.S.C. 5363(c)). (1) The funding agreement 
will include:
    (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; and:
    (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.
    (2) A bureau is not required to include management and support 
funds from the regional or central office level in a funding agreement, 
unless:
    (i) The Tribe/Consortium will perform work previously performed at 
the regional or central office level;
    (ii) The work is not compensated in the indirect cost rate; and
    (iii) Including management and support costs in the funding 
agreement does not result in the Tribe/Consortium being paid twice for 
the same work when negotiated indirect cost rate is applied.


Sec.  1000.890  How are indirect cost rates determined?

    The Department's Interior Business Center (IBC) or other cognizant 
Federal agency and the Tribe/Consortium negotiate indirect cost rates. 
These rates are based on the applicable provisions of subpart E of 2 
CFR part 200, or other applicable OMB cost circular and the provisions 
of title I of the Act, as amended. These rates are used generally by 
all Federal agencies for contracts and grants with the Tribe/
Consortium, including self-governance agreements.


Sec.  1000.895  How does the Secretary determine the amount of indirect 
costs for a non-BIA funding agreement?

    The Secretary determines the amount of indirect costs for a non-BIA 
funding agreement by:
    (a) Applying the negotiated indirect cost rate to the appropriate 
direct cost base; or
    (b) At the Tribe's/Consortium's option, negotiating a lump sum 
amount for indirect costs.


Sec.  1000.900  May the bureaus negotiate terms to be included in a 
funding agreement for non-BIA programs?

    Yes, as provided for by 25 U.S.C. 5363(b)(2) and 5363(c) and as 
necessary to meet program mandates while consistent with this subpart, 
provided, however, that a bureau may not require in a funding agreement 
that a Tribe/Consortium retain, hire or assign a

[[Page 100264]]

Federal employee in a contracted program, nor may a bureau condition 
its approval of a funding agreement upon a requirement that a Tribe/
Consortium retain, hire or assign a Federal employee in a contracted 
program.


Sec.  1000.905  Can a Tribe/Consortium reallocate, consolidate, and 
redesign funds for a non-BIA program?

    Yes, 25 U.S.C. 5365(d)(2) permits such reallocation, consolidation, 
and redesign upon joint agreement of the Secretary and the Tribe/
Consortium.


Sec.  1000.910  Do Tribes/Consortia need Secretarial approval to 
reallocate funds between title I eligible programs that the Tribe/
Consortium administers under a non-BIA funding agreement?

    No, unless otherwise required by law, the Secretary does not have 
to approve the reallocation of funds with the exception of construction 
projects.


Sec.  1000.915  Can a Tribe/Consortium negotiate a funding agreement 
with a non-BIA bureau for which the performance period exceeds one 
year?

    Yes, subject to the terms of the funding agreement, a Tribe/
Consortium and a non-BIA bureau may agree to provide for the 
performance under the funding agreement to extend beyond the fiscal 
year. However, the Secretary may not obligate funds in excess and 
advance of available appropriations.


Sec.  1000.920  Can the terms and conditions in a non-BIA funding 
agreement be amended during the year it is in effect?

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


Sec.  1000.925  What happens if a funding agreement expires before the 
effective date of the successor Funding Agreement?

    If the effective date of a successor funding agreement is not on or 
before the expiration of the current funding agreement, subject to 
terms mutually agreed upon by the Tribe/Consortium and the Secretary at 
the time the current funding agreement was negotiated or in a 
subsequent amendment, the Tribe/Consortium may continue to carry out 
the program authorized under the funding agreement to the extent 
resources permit. During this extension period, the current funding 
agreement shall remain in effect, including coverage of the Tribe/
Consortium under the Federal Tort Claims Act (FTCA) 28 U.S.C. 2671-2680 
(1994); and the Tribe/Consortium may use any funds remaining under the 
funding agreement, savings from other programs or Tribal funds to carry 
out the program. Nothing in this section authorizes a funding agreement 
to be continued beyond the completion of the program authorized under 
the funding agreement or the amended funding agreement. This section 
also does not entitle a Tribe/Consortium to receive, nor does it 
prevent a Tribe/Consortium from receiving, additional funding under any 
successor funding agreement. The successor funding agreement must 
provide funding to the Tribe/Consortium at a level necessary for the 
Tribe/Consortium to perform the PSFA, or portions thereof, for the full 
period they were or will be performed.

Subpart H--Negotiation Process


Sec.  1000.1001  What is the purpose of this subpart?

    This subpart provides the process and timelines for negotiating a 
self-governance compact with the Secretary and a funding agreement with 
any bureau.


Sec.  1000.1005  What are the phases of the negotiation process?

    There are two phases of the negotiation process:
    (a) The information phase; and
    (b) The negotiation phase.


Sec.  1000.1010  Who may initiate the information phase?

    Any Tribe/Consortium that has been selected to participate in self-
governance may initiate the information phase.


Sec.  1000.1015   Is it mandatory to go through the information phase 
before initiating the negotiation phase?

    No, a Tribe/Consortium may go directly to the negotiation phase.


Sec.  1000.1020  How does a Tribe/Consortium initiate the information 
phase?

    A Tribe/Consortium initiates the information phase by sending to 
the Secretary a written request clearly identified as a ``Request to 
Initiate the Information Phase''. This request notifies the Secretary 
of the Tribe's/Consortium's interest in negotiating for a program(s) 
and request for information about the program(s). This request must be 
sent:
    (a) If in electronic form (PDF), which is the preferred method, to 
[email protected]; or
    (b) If in paper form by United States Mail or express courier to 
Director, Office of Self-Governance, at the headquarters address 
indicated on the official Department, OSG website.


Sec.  1000.1025  What information is a Tribe/Consortium encouraged to 
include in a Request to Initiate the Information Phase?

    (a) A Tribe/Consortium is encouraged to include the following in a 
Request to Initiate the Information Phase:
    (1) As specifically as possible, the program(s) for which the 
Tribe/Consortium is interested in negotiating under this subpart;
    (2) The bureau, service, office, or agency (bureau) that 
administers the program(s) of interest;
    (3) The scope(s) of program activity in which the Tribe/Consortium 
is interested;
    (4) If applicable, a brief explanation of the cultural, historical, 
or geographic significance to the Tribe/Consortium of the program(s);
    (5) A request for budget, staffing, and other locations of the 
offices providing administrative support;
    (6) Other information that the Tribe/Consortium may choose to 
submit for the Secretary's consideration; and
    (7) The Tribe's/Consortium's designated contact.
    (b) The Tribe/Consortium may choose to request information and 
technical assistance in a Request to Initiate the Information Phase 
notice including, but not limited to:
    (1) Information that will assist the Tribe/Consortium in initiating 
and/or implementing the negotiation process;
    (2) Information regarding grants or funds within the bureau, or 
other known possible sources of funding, that may be available to the 
Tribe/Consortium for planning and negotiating, or renegotiating a 
compact and/or funding agreement;
    (3) Information on any funds available within the bureau, or from 
other sources of funding, that the Tribe/Consortium may include in the 
funding agreement for performing the program(s);
    (4) Information contained in the previous year, present year, and, 
if available, next year's budget proposed by the President at the 
national program level and the regional/local level;
    (5) Information used to support budget allocations for the programs 
identified (e.g., full time equivalents and other relevant factors);
    (6) Information used to operate and/or evaluate a program, such as 
statutory and regulatory requirements and program standards;
    (7) If applicable, information regarding how a program is 
administered by more than one bureau, including a point of contact for 
information for the other bureau(s); and
    (8) Technical assistance from the bureau in preparing documents or 
materials that may be required for the

[[Page 100265]]

Tribe/Consortium in the negotiation process.


Sec.  1000.1030  When should a Tribe/Consortium submit a Request to 
Initiate the Information Phase to the Secretary?

    A Tribe/Consortium may submit a Request to Initiate the Information 
Phase to the Secretary at any time.


Sec.  1000.1035  What steps does the bureau take after a Request to 
Initiate the Information Phase is submitted by a Tribe/Consortium?

    (a) Within 15 days of receipt of a Tribe's/Consortium's Request to 
Initiate the Information Phase, the bureau will respond in writing to 
the Tribe's/Consortium's identified point of contact and identify the 
person designated as the bureau's representative responsible for 
providing information under this subpart. The bureau representative 
shall in good faith fulfill the following responsibilities:
    (1) In accordance with paragraph (b) of this section, provide the 
Tribe/Consortium with all program budget and program information from 
each organizational level of the bureau(s); and
    (2) Notify any other bureau as required under this subpart.
    (b) Within 30 calendar days of receipt of the Tribe's/Consortium's 
request, the bureau representative must provide to the Tribe/Consortium 
the information responsive to the Tribe's/Consortium's Request to 
Initiate the Information Phase, if otherwise consistent with the 
bureau's budgetary process and subject to other applicable law. 
Responsive information includes, at a minimum:
    (1) Information regarding program, budget, staffing, and locations 
of the offices administering the program identified by the Tribe/
Consortium and related administrative support programs; and
    (2) Such other information requested by the Tribe/Consortium in its 
request.
    (c) Upon request by a Tribe/Consortium, the bureau will provide 
technical assistance to the Tribe/Consortium and be available to meet 
with Tribal/Consortium representatives to explain the information 
provided and discuss other questions from the Tribe/Consortium;
    (d) The bureau shall issue a written explanation if it determines 
it cannot provide information required under paragraph (b) of this 
section within the 30-day period. If a bureau makes such a 
determination, then the bureau must provide any other information that 
is reasonably related to the Tribe/Consortium's request and the date 
when other information, not provided within 30 days but available for 
disclosure to the Tribe/Consortium, can be provided;
    (e) The Secretary shall provide information under this section in a 
manner that facilitates the inclusion of programs in funding agreements 
and the implementation of funding agreements (25 U.S.C. 5369);
    (f) If a bureau fails to timely provide information under this 
subpart, the Tribe/Consortium may:
    (1) File a Freedom of Information Act request. These requests shall 
be considered for a fee waiver under the Freedom of Information Act; 
and/or
    (2) Appeal in accordance with subpart R of this part.


Sec.  1000.1040  How does a Tribe/Consortium initiate the negotiation 
phase?

    A Tribe/Consortium initiates the negotiation phase by sending to 
the Secretary a written request clearly identified as a Request to 
Initiate the Negotiation Phase. This request notifies the Secretary of 
the Tribe's/Consortium's interest in negotiating for a program(s). This 
request must be sent:
    (a) If in electronic form (PDF), which is the preferred method, to 
[email protected]; or
    (b) If in paper form by United States Mail or express courier to 
the Director, Office of Self-Governance, at the headquarters address 
indicated on the official Department, OSG website.


Sec.  1000.1045  How and when does the Secretary respond to a request 
to negotiate a compact or BIA funding agreement?

    Within 15 days of receiving a Request to Initiate the Negotiation 
Phase for a compact or BIA funding agreement, OSG will respond in 
writing to the Tribe's/Consortium's identified point of contact and 
identify the person designated as the lead Federal negotiator. OSG and 
the Tribe/Consortium will negotiate a compact or funding agreement in 
accordance with applicable provisions of this part.


Sec.  1000.1050  How and when does the Secretary respond to a request 
to negotiate a non-BIA funding agreement?

    Within 15 days of receiving a Tribe's/Consortium's Request to 
Initiate the Negotiation Phase for a non-BIA funding agreement, the 
Department will take the steps in this section:
    (a) If the program involves multiple bureaus, the Secretary will 
identify the lead Federal negotiator(s);
    (b) If the program is authorized for negotiations by 25 U.S.C. 
5363(b)(2), the bureau will identify the lead Federal negotiator(s).
    (c) If the program may be authorized for negotiations by 25 U.S.C. 
5363(c), the bureau will identify the lead Federal negotiator(s) and 
schedule a pre-negotiation discussion with the Tribe/Consortium as soon 
as possible. The purpose of the discussion is to assist the bureau in 
determining if the program is available for negotiation. If there is 
agreement that a program is eligible for inclusion in a funding 
agreement, the parties may jointly agree to waive this discussion.
    (d) Within 10 days after convening a discussion under paragraph (c) 
of this section, or no later than 30 days of receipt by the Secretary 
of the Tribe's/Consortium's Request to Initiate the Negotiation Phase:
    (1) If the program is available for inclusion in a funding 
agreement, the bureau will begin negotiating a non-BIA funding 
agreement in accordance with subpart G of this part; or
    (2) If the program is unavailable for negotiation, the bureau will 
provide a written explanation of why the program is unavailable for 
inclusion in a funding agreement.


Sec.  1000.1055  What is the process for conducting the negotiation 
phase?

    (a) Within 30 days of receiving a written Request to Initiate the 
Negotiation Phase, the bureau and the Tribe/Consortium will agree to a 
date to conduct an initial negotiation meeting. Subsequent meetings 
will be held with reasonable frequency at reasonable times.
    (b) Tribe/Consortium and bureau lead negotiators must:
    (1) Be authorized to negotiate on behalf of their government; and
    (2) Involve all necessary persons in the negotiation process.
    (c) Once negotiations have been completed, with the parties in 
agreement concerning all terms and conditions of a compact and/or 
funding agreement, the parties will acknowledge in writing the date on 
which agreement was reached and:
    (1) The Secretary and Tribe/Consortium will finalize the compact 
and/or funding agreement for submission to the Tribe/Consortium within 
15 days or by a mutually agreed upon date; and
    (2) Upon the Secretary's receipt of a compact or funding agreement 
signed by the Tribe/Consortium, the Secretary will execute and return 
the funding agreement by a mutually agreed upon date not to exceed 45 
days, and the compact by a mutually agreed upon date not to exceed 90 
days.

[[Page 100266]]

Sec.  1000.1060  What issues must the bureau and the Tribe/Consortium 
address at negotiation meetings?

    The negotiation meetings referred to in Sec.  1000.1055 must 
address at a minimum the following:
    (a) The specific Tribe/Consortium proposal(s) and intentions;
    (b) Legal or program issues that the bureau or the Tribe/Consortium 
identify as concerns;
    (c) Options for negotiating programs and related budget amounts, 
including mutually agreeable options for developing alternative formats 
for presenting budget information to the Tribe/Consortium;
    (d) Dates for conducting and concluding negotiations;
    (e) Protocols for conducting negotiations;
    (f) Responsibility for preparation of a written summary of the 
discussions; and
    (g) Who will prepare an initial draft of the compact or funding 
agreement, as applicable.


Sec.  1000.1065  What happens when a compact or funding agreement is 
signed?

    (a) After all necessary parties have signed the compact or funding 
agreement, a copy is sent to the Tribe/Consortium.
    (b) No later than 90 days before the proposed effective date of an 
executed funding agreement, the Secretary shall forward a copy of the 
funding agreement to each Indian Tribe/Consortium served by the local 
BIA Agency office that serves any Tribe/Consortium that is a party to 
the funding agreement. The Secretary's obligation under 25 U.S.C. 
5363(f) shall not impact the funding agreement's effective date as 
specified under Sec.  1000.1075.


Sec.  1000.1070  What happens if the Tribe/Consortium and bureau 
negotiators fail to reach an agreement on a compact or funding 
agreement?

    If the bureau and Tribe/Consortium are unable to agree, in whole or 
in part, on the terms of a compact or funding agreement (including 
funding levels) then the final offer process in subpart I of this part 
shall apply.


Sec.  1000.1075  When does the funding agreement become effective?

    A funding agreement shall become effective on the date it is fully 
executed or as identified by its terms.


Sec.  1000.1080  What is a subsequent funding agreement?

    A subsequent funding agreement is negotiated after a Tribe's/
Consortium's existing funding agreement. The parties to the funding 
agreement should generally use the terms of the existing funding 
agreement to expedite and simplify the exchange of information and the 
negotiation process.


Sec.  1000.1085  How is the negotiation of a subsequent funding 
agreement initiated?

    Although a written request is desirable to document the precise 
request and date of the request, a written request is not mandatory. If 
either party anticipates a significant change in an existing program in 
the funding agreement, it should notify the other party of the change 
at the earliest possible date so that the other party may plan 
accordingly.


Sec.  1000.1090  What is the process for negotiating a subsequent 
funding agreement?

    The Tribe/Consortium and the bureau shall use the procedures in 
Sec. Sec.  1000.1005 through 1000.1070.

Subpart I--Final Offer


Sec.  1000.1101  What is the purpose of this subpart?

    This subpart explains the final offer process provided by the Act 
for resolving, within a specific timeframe, disputes that may develop 
in negotiation of compacts, funding agreements, or amendments thereof.


Sec.  1000.1105  When should a final offer be submitted?

    The Tribe/Consortium may submit a final offer when it has 
determined that the Tribe/Consortium and the Secretary are unable to 
agree, in whole or in part, on the terms of a compact, funding 
agreement, or amendment (including funding levels).


Sec.  1000.1110  How does a Tribe/Consortium submit a final offer?

    (a) A Tribe/Consortium must submit its written final offer for a 
compact or funding agreement, or amendment thereof:
    (1) If in electronic form (PDF), which is the preferred method, to 
[email protected] for any DOI program; or
    (2) If in paper form by United States Mail or express courier to 
the Director, Office of Self-Governance, at the headquarters address 
indicated in the official Department, OSG website.
    (b) The document should be separate from the compact, funding 
agreement or amendment and clearly identified as a ``Final Offer.''


Sec.  1000.1115  What does a final offer contain?

    A final offer must contain a description of the disagreement 
between the Secretary and the Tribe/Consortium, the Tribe's/
Consortium's final proposal to resolve the disagreement, including any 
draft proposed terms to be included in a compact, funding agreement, or 
amendment, and the name and contact information for the person 
authorized to act on behalf of the Tribe/Consortium.


Sec.  1000.1120  When does the 60-day review period begin?

    The 60-day review period begins on the date the final offer is 
received at the office's mailing or email address identified in this 
subpart. Demonstration of receipt includes a postal return receipt, 
express delivery service receipt, or date stamp; all email submissions 
are presumed received by the Secretary no later than the next business 
day following transmission from the Tribe/Consortium.


Sec.  1000.1125  How does the Department acknowledge receipt of final 
offer?

    (a) Within 10 days of receipt by the officials designated by the 
Secretary in Sec.  1000.1110, the Department will send the Tribe/
Consortium a written acknowledgement of the final offer.
    (b) The acknowledgement reference in paragraph (a) of this section 
shall include:
    (1) A statement acknowledging receipt of the final offer;
    (2) The date the final offer was received and the last day of the 
applicable statutory review period;
    (3) If applicable, the Secretary may request additional 
information. A request for more information has no effect on deadlines 
for a response under this subpart; and
    (4) A statement notifying the Tribe/Consortium that technical 
assistance is available upon request to comply with paragraph (b)(3) of 
this section.


Sec.  1000.1130   May the Secretary request and obtain an extension of 
time of the 60-day review period?

    (a) Yes, the Secretary may request an extension of time before the 
expiration of the 60-day review period. The Tribe/Consortium may either 
grant or deny the Secretary's request for an extension. To be 
effective, any grant of extension of time must be in writing and be 
signed by the person authorized by the Tribe/Consortium to grant the 
extension before the expiration of the 60-day review period.
    (b) The deadline described in paragraph (a) of this section may be 
extended for any additional length of time as agreed upon in writing by 
the Tribe/Consortium and the Secretary, and
    (c) The 60-day period may be extended up to 30 days for 
circumstances beyond the control of the Secretary, upon written request 
from the Secretary to the Tribe/Consortium.

[[Page 100267]]

    (d) A Tribe/Consortium must respond within 10 days of receiving the 
Secretary's request for an extension under paragraph (c) of this 
section.


Sec.  1000.1135  What happens if the Secretary takes no action within 
the 60-day period (or any extensions thereof)?

    The final offer is:
    (a) Accepted automatically by operation of law for a compact or 
funding agreement provision except as to its application to a program 
described under 25 U.S.C. 5363(c); or
    (b) Rejected automatically by operation of law with respect to any 
program described under 25 U.S.C. 5363(c).


Sec.  1000.1140  Once the Tribe/Consortium's final offer has been 
accepted or accepted by operation of law, what is the next step?

    After the Tribe/Consortium's final offer is accepted or accepted by 
the operations of law, within 10 days the parties will amend the 
compact or funding agreement to incorporate the accepted terms of the 
final offer.


Sec.  1000.1145  On what basis may the Secretary reject a final offer?

    The Secretary may reject a final offer for one of the following 
reasons:
    (a) The amount of funds proposed in the final offer exceeds the 
applicable funding level to which the Tribe/Consortium is entitled 
under the Act;
    (b) The program that is the subject of the final offer is an 
inherent Federal function that cannot legally be delegated to a Tribe/
Consortium or is subject to discretion of the Secretary under the Act;
    (c) The Tribe/Consortium cannot carry out the program in a manner 
that would not result in significant danger or risk to the public 
health or safety, to natural resources, or to trust resources;
    (d) The Tribe/Consortium is not eligible to participate in self-
governance under 25 U.S.C. 5362;
    (e) The funding agreement would violate a Federal statute or 
regulation; or
    (f) With respect to a program or portion of a program included in a 
final offer pursuant to 25 U.S.C. 5363(b)(2), the program or the 
portion of the program is not otherwise available under 25 U.S.C. 
5321(a)(1)(E).


Sec.  1000.1150   How does the Secretary reject a final offer?

    The Secretary rejects a final offer by providing written notice to 
the Tribe/Consortium based on the criteria in Sec.  1000.1145 not more 
than 60 days after the receipt of a final offer, or a later date in 
accordance with Sec.  1000.1130.


Sec.  1000.1155  What is the ``significant danger'' or ``risk'' to the 
public health or safety, to natural resources, or to trust resources?

    A significant danger or risk is determined on a case-by-case basis 
in accordance with 25 U.S.C. 5366.


Sec.  1000.1160  Is technical assistance available to a Tribe/
Consortium to overcome the objections stated in the Secretary's 
rejection of a final offer?

    Yes, the Secretary must provide technical assistance to overcome 
the objection stated in the notification of the rejection of the final 
offer.


Sec.  1000.1165  If the Secretary rejects all or part of a final offer, 
is the Tribe/Consortium entitled to an appeal?

    Yes, the Tribe/Consortium is entitled to appeal the decision of the 
Secretary, with an agency hearing on the record, and the right to 
engage in full discovery relevant to any issue raised in the matter. 
The procedures for appeals are found in subpart R of this part. 
Alternatively, at its option, the Tribe/Consortium has the right to 
initiate an action challenging the Secretary's decision in U.S. 
District Court under 25 U.S.C. 5331(a).


Sec.  1000.1170  Do those portions of the compact, funding agreement, 
or amendment not in dispute go into effect?

    Yes, subject to 25 U.S.C. 5366(c)(6)(A)(iv).


Sec.  1000.1175  Does appealing the final offer decision prevent the 
Secretary and the Tribe/Consortium from entering into any accepted 
compact, funding agreement or amendment provisions that are not in 
dispute?

    No, appealing the decision does not prevent the Secretary and 
Tribe/Consortium from entering into any accepted, severable provisions 
of a compact, funding agreement, or amendment that are not in dispute.


Sec.  1000.1180  What is the burden of proof in an appeal of a 
rejection of a final offer?

    With respect to any appeal, hearing, or civil action, brought under 
this subpart, the Secretary shall have the burden of clearly 
demonstrating the validity of the grounds for rejecting the final 
offer.

Subpart J--Waiver of Regulations


Sec.  1000.1201  What regulations apply to Tribes/Consortia?

    All regulations that govern the operation of programs included in a 
funding agreement apply unless waived under this subpart. To the 
maximum extent practical, the parties should identify these regulations 
in the funding agreement.


Sec.  1000.1205  Can the Secretary grant a waiver of regulations to a 
Tribe/Consortium?

    Yes, a Tribe/Consortium may ask the Secretary to grant a waiver of 
some or all Department regulation(s) applicable to a program, in whole 
or in part, operated by a Tribe/Consortium under a compact or funding 
agreement.


Sec.  1000.1210  When can a Tribe/Consortium request a waiver of a 
regulation?

    A Tribe/Consortium may request a waiver of a regulation:
    (a) As part of the negotiation process;
    (b) At any time after a funding agreement has been executed; or
    (c) Following a denial decision, provided that the Tribe/Consortium 
acknowledges that the submission commences a new 120-day review period 
under Sec.  1000.1240.


Sec.  1000.1215  How does a Tribe/Consortium obtain a waiver?

    (a) A Tribe/Consortium must submit its written waiver request for 
any DOI compact, funding agreement, or amendment thereof:
    (1) In electronic form (PDF), which is the preferred method, by 
email to [email protected]; or
    (2) If in paper form by United States Mail or express courier to 
Director, Office of Self-Governance at the headquarters address 
indicated on the official Department OSG website.
    (b) The waiver request, including one made under Sec.  
1000.1210(a), must be a separate document from the compact, funding 
agreement, or amendment and clearly identified as a ``Waiver Request.''


Sec.  1000.1220  How does a Tribe/Consortium operating a Public Law 
102-477 Plan obtain a waiver?

    (a) For a waiver request involving any program that has been 
integrated under an approved plan authorized by Public Law 102-477, as 
amended, or proposed to be integrated under a Public Law 102-477 plan, 
the Tribe must submit the request to the BIA--Division of Workforce 
Development.
    (b) The provisions of 25 U.S.C. 3406 (b), et seq., governing 
submission, review, decision, dispute resolution, and appeal apply to a 
waiver request submitted under paragraph (a) of this section.
    (c) If a waiver of regulations had been previously obtained for a 
program administered by the Department that is later integrated into a 
plan authorized by Public Law 102-477, such waiver of regulations will 
continue to be in effect.

[[Page 100268]]

Sec.  1000.1225   May a Tribe/Consortium request an optional meeting or 
other informal discussion to discuss a waiver request?

    (a) Yes, a Tribe/Consortium may request an optional meeting or 
other informal discussion with the appropriate bureau official(s).
    (b) To provide reasonable time for consideration, the Tribe/
Consortium may request a meeting or other informal discussion to be 
held with the appropriate bureau official(s) no less than 30 days 
before the end of the 120-day period, unless the parties agree on 
another date.
    (c) For all purposes relating to these meeting or informal 
discussion procedures, the parties are the designated representatives 
of the Tribe/Consortium and the appropriate bureau official(s) from 
whom the waiver is requested.


Sec.  1000.1230  Is a bureau required to provide technical assistance 
to a Tribe/Consortium concerning waivers?

    Yes.
    (a) Prior to submission of a waiver request. A Tribe/Consortium 
considering a waiver request under this part may request, and a bureau 
shall provide, technical assistance to assist the Tribe/Consortium to 
prepare and submit the waiver request.
    (b) After submission of a waiver request. Not later than 60 days 
after receipt of a Tribe's/Consortium's waiver request, unless the 
parties agree on another date, a bureau shall, if applicable:
    (1) Provide technical assistance to overcome any objection which 
the bureau might have to the request while a waiver request is under 
consideration; and/or
    (2) Identify additional information that may assist the bureau in 
making a decision.


Sec.  1000.1235  How does the Secretary respond to a waiver request?

    Within 10 business days of receipt, the officials designated by the 
Secretary in Sec.  1000.1215 will email to the Tribe/Consortium a 
letter:
    (a) Acknowledging receipt of the waiver request; and
    (b) Identifying the date the waiver request was received and the 
last day of the applicable statutory review period.


Sec.  1000.1240  When must the Secretary make a decision on a waiver 
request?

    (a) Not later than 120 days after receipt of a waiver request by 
the Secretary and the Secretary's designated officials in accordance 
with Sec.  1000.1215.
    (b) This 120-day period may be extended for any length of time, as 
agreed upon by both the Tribe/Consortium and the Secretary.


Sec.  1000.1245  How does the Secretary make a decision on the waiver 
request?

    (a) The Secretary must issue a written decision explaining the 
rationale for denying or approving the requested waiver.
    (b) If the Secretary issues a written decision denying the 
requested waiver, it must describe the basis for the specific finding 
that the identified text in the regulation may not be waived because 
such a waiver is prohibited by Federal law.
    (c) The decision is final for the Department.


Sec.  1000.1250  What happens if the Secretary neither approves nor 
denies a waiver request within the time specified in Sec.  1000.1240?

    If the Secretary fails to make a determination with respect to a 
waiver request within the period specified in Sec.  1000.1240 
(including any extension agreed to under that section), the waiver 
request is automatically, by operation of law,
    (a) Deemed approved except for programs eligible under section 
403(b)(2) or section 403(c) (25 U.S.C. 5363(b)(2) or 5363(c)), as 
amended; or
    (b) Deemed denied with respect to programs eligible under section 
403(b)(2) or section 403(c) (25 U.S.C. 5363(b)(2) or 5363(c)), as 
amended. Such deemed denial is a final decision for the Department.


Sec.  1000.1255  May a Tribe/Consortium appeal the Secretary's decision 
to deny its request for a waiver of a regulation?

    Yes, the Tribe/Consortium may appeal the Secretary's decision 
consistent with applicable law, including 25 U.S.C. 5331. The burden of 
proof shall be as set forth in Sec.  1000.2315.


Sec.  1000.1260  What is the term of a waiver?

    Upon approval, a waiver is deemed approved until such time as 
rescinded by the Tribe/Consortium.


Sec.  1000.1265  May a Tribe/Consortium withdraw a waiver request?

    Yes. If a Tribe/Consortium chooses to withdraw a waiver request 
before the Secretary makes a decision, it must do so in writing prior 
to the end of the 120-day time frame.


Sec.  1000.1270   May a Tribe/Consortium have more than one waiver 
request pending before the Secretary at the same time?

    Yes. A Tribe/Consortium may have more than one waiver request 
pending before the Secretary at the same time, provided that each 
waiver request affects a different regulatory provision.


Sec.  1000.1275  May a Tribe/Consortium continue to negotiate a funding 
agreement pending final decision on a waiver request?

    Yes, pending final decision on a waiver request, any Tribe/
Consortium may continue to negotiate and implement a funding agreement. 
The regulation will apply until it is waived. The funding agreement 
will be subject to later adjustment based on an affirmative final 
decision on the Tribe's/Consortium's waiver request.


Sec.  1000.1280  How is a waiver decision documented for the record?

    The waiver approval is made part of the funding agreement by 
attaching a copy of it to the funding agreement and by mutually 
executing any necessary conforming amendments to the funding agreement. 
The waiver requests and bureau's decision document(s), pursuant to 
Sec.  1000.1245, will be posted and archived on the OSG website or 
successor technology within 30 days of the decision. Such posting/
archiving shall include deemed approved and deemed denied decisions 
under Sec.  1000.1250. All decisions shall be made available on 
request, and a summary of decisions will be included in the Self 
Governance Annual Report to Congress.

Subpart K--Construction

Construction Definitions


Sec.  1000.1301  What key construction terms do I need to know?

    Budget means a statement of the funds required to complete the 
scope of work in a construction project. For cost reimbursement 
agreements, budgets may be stated using broad categories such as 
planning, design, construction, project administration, and 
contingency. For fixed price agreements, budgets may be stated as lump 
sums, unit cost pricing, or a combination thereof.
    Construction management services (CMS) means activities limited to 
administrative support services; coordination; and monitoring oversight 
of the planning, design, and construction process. CMS activities 
typically include:
    (1) Coordination and information exchange between the Tribe/
Consortium and the Federal Government;
    (2) Preparation of a Tribe's/Consortium's project agreement; and
    (3) A Tribe's/Consortium's subcontract scope of work identification 
and subcontract preparation, and competitive selection of construction 
contract subcontractors.
    Construction phase is the phase of a construction project during 
which the

[[Page 100269]]

project is constructed, and includes labor, materials, equipment and 
services necessary to complete the work, in accordance with the 
construction project agreement.
    Construction program or construction project means a Tribal 
undertaking relating to the administration, planning, environmental 
determination, design, construction, repair, improvement, or expansion 
of roads, bridges, buildings, structures, systems, or other facilities 
for purposes of housing, law enforcement, detention, sanitation, water 
supply, education, administration, community, health, irrigation, 
agriculture, conservation, flood control, transportation, or port 
facilities, or for other Tribal purposes.
    Construction project agreement means a negotiated agreement between 
the Secretary and a Tribe/Consortium, that at a minimum:
    (1) Establishes project phase start and completion dates, which may 
extend over a period of one or more years;
    (2) Provides a general description of the project, including the 
scope of work, references to design criteria and standards by which it 
will be accomplished, and other terms and conditions;
    (3) Identifies the responsibilities of the Tribe/Consortium and the 
Secretary;
    (4) Addresses how project-related environmental considerations will 
be addressed;
    (5) Identifies the owner and operations and maintenance entity of 
the proposed work;
    (6) Provides a budget;
    (7) Provides a payment process;
    (8) Establishes the duration of the agreement based on the time 
necessary to complete the specified scope of work, which may be one or 
more years; and
    (9) Identifies the agreement of the Secretary and Tribe/Consortium 
over which entity will bear any additional costs necessary to meet 
changes in scope, or errors or omissions in design and construction.
    Design phase is the phase of a construction project during which 
project plans, specifications, and other documents are prepared that 
are used to construct the project. Site investigation, final site 
selection and environmental review and determination activities are 
completed in this phase if not conducted as part of the planning phase.
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.).
    NHPA means the National Historic Preservation Act (16 U.S.C. 470 et 
seq.).
    Planning phase is the phase of a construction project agreement 
during which planning services are provided.
    Planning services may include performing a needs assessment, 
completing and/or verifying master plans, developing justification 
documents, conducting pre-design site investigations, developing budget 
cost estimates, conducting feasibility studies as needed, conducting 
environmental review activities and justifying the need for the 
project.
    SHPO means State Historic Preservation Officer.
    Scope of work or specific scope of work means a brief written 
description of the work to be accomplished under the construction 
project, sufficient to confirm that the project is consistent with the 
purpose for which the Secretary has allocated funds.
    THPO means Tribal Historic Preservation Officer.

Purpose and Scope


Sec.  1000.1305   What construction projects and programs included in a 
funding agreement or construction project agreement are subject to this 
subpart?

    (a) All construction programs and construction projects included in 
a funding agreement under title IV are subject to this subpart.
    (b) The following programs and activities are not construction 
programs and activities for the purposes of this subpart:
    (1) Activities limited to providing planning services, 
administrative support services, coordination, responsibility for the 
construction project, site-management and administration of the 
project, which may include cost management, project budgeting, project 
scheduling and procurement.
    (2) The BIA Housing Improvement Program;
    (3) The BIA Road Maintenance Program and other road maintenance 
activities as maintenance is defined by 23 U.S.C. 101;
    (4) Operation and maintenance programs;
    (5) Projects using funds transferred under an approved Public Law 
102-477 plan; and
    (6) Non-403(c) Programs that are less than $100,000, subject to 25 
U.S.C. 5363(e)(2), other applicable Federal law, and Sec.  1000.1515.


Sec.  1000.1306  May a program or project-specific grant or contracting 
mechanism involving construction and related activities satisfy the 
requirements of this subpart?

    Yes, program or project-specific contracting mechanisms or 
agreements involving construction and related activities will satisfy 
the requirements of this subpart and may be incorporated into the 
Tribe/Consortium's funding agreement, provided that such program or 
project-specific contracting mechanism or agreement addresses all the 
requirements of 25 U.S.C. 5367 that are applicable to the construction 
program or project. Nothing herein shall require the Secretary to 
duplicate the Federal requirements of 25 U.S.C. 5367 that are 
applicable to the project in the program or project-specific 
contracting mechanism or agreement.


Sec.  1000.1307  May the Secretary accept funds from another Department 
for a program or project involving construction and related activities 
for transfer to the Tribe/Consortium under its funding agreement or 
construction project agreement?

    Yes, the Secretary may accept funds from another Department for a 
program or project involving construction and related activities for 
transfer to the Tribe/Consortium under its funding agreement or 
construction project agreement, subject to an interagency agreement 
between the Secretary and the Federal agency, with the concurrence of 
the Tribe/Consortium before such interagency agreement is finalized, 
that addresses the purpose, intent, Federal oversight and other 
responsibilities for the construction program or project, and related 
activities.


Sec.  1000.1310  What alternatives are available for a Tribe/Consortium 
to perform a construction program or project?

    (a) As authorized by 25 U.S.C. 5367(g), and at the option of the 
Tribe/Consortium, construction project funding proposals shall be 
negotiated with the Secretary pursuant to the statutory process in 25 
U.S.C. 5324, and any resulting agreement shall be incorporated into the 
funding agreement as an ``addendum''; or
    (b) A Tribe/Consortium may negotiate a construction project with 
the Secretary pursuant to the statutory process in 25 U.S.C. 5324, and 
incorporate any resulting construction project agreement into a 
separate title I construction contract and funding agreement subject to 
title I and the part 900 regulations, including subpart J 
(Construction) of part 900. Such construction project shall not be 
subject to this subpart.


Sec.  1000.1315  Does this subpart create an agency relationship?

    No, a BIA or non-BIA construction program or project does not 
automatically create an agency relationship. However, Federal law, 
provisions of a funding agreement, or Federal actions may create an 
agency relationship.

[[Page 100270]]

Notification and Project Assumption


Sec.  1000.1320  Is the Secretary required to consult with affected 
Tribes/Consortia concerning construction projects and programs?

    Yes, before developing a new project resource allocation 
methodology and application process the Secretary must consult with all 
Indian Tribes/Consortia as set forth in subpart I of this part.


Sec.  1000.1325  When does the Secretary confer with a Tribe/Consortium 
concerning Tribal preferences as to size, location, type, and other 
characteristics of a project?

    Before spending any funds for planning, design, construction, or 
renovation projects, whether or not subject to a competitive 
application and ranking process, the Secretary must confer with any 
Indian Tribe/Consortium that would be significantly affected by the 
expenditure to determine and honor Tribal preferences whenever 
practicable concerning the size, location, type, and other 
characteristics of the project.


Sec.  1000.1330  What does a Tribe/Consortium do if it wants to perform 
a construction project or program under 25 U.S.C. 5367?

    (a) A Tribe/Consortium may start the process of developing a 
construction project proposal to include in a funding agreement or 
construction project agreement by:
    (1) Notifying the Secretary in writing that the Tribe/Consortium 
wishes to perform one or more construction projects under 25 U.S.C. 
5367; or
    (2) Submitting a proposed construction project agreement for 
consideration and negotiation, or
    (3) A combination of the actions described in paragraphs (a)(1) and 
(2) of this section.
    (b) Within 30 days after receiving a request from a Tribe/
Consortium, the Secretary and the Tribe/Consortium shall exchange all 
applicable information available to each party about the project 
including, but not limited to, planning, construction drawings, maps, 
engineering reports, design reports, plans of requirements, cost 
estimates, environmental assessments, or environmental impact reports 
and archaeological reports.


Sec.  1000.1335  What must a Tribal proposal for a construction program 
or project contain?

    A construction project proposal must contain all of the required 
elements of a construction project contained in Sec.  1000.1355. In 
addition to these minimum requirements, a Tribe/Consortium may include 
additional items for negotiation.


Sec.  1000.1340  May multiple projects be included in a single 
construction project agreement or funding agreement that includes a 
construction project?

    Yes, a Tribe/Consortium may include multiple projects in a single 
funding agreement or construction project agreement if funded by the 
same bureau, or may add additional projects by amendment(s) to an 
existing funding agreement or construction project agreement with the 
same bureau.


Sec.  1000.1345  Must a construction project proposal incorporate 
provisions of Federal construction guidelines and manuals?

    (a) No, the Tribe/Consortium and the Secretary must agree upon and 
specify appropriate building codes and architectural and engineering 
standards (including health and safety) which must be in conformity 
with nationally recognized standards for comparable projects as long as 
they meet or exceed the requirements of 25 U.S.C. 5367(d).
    (b) The Secretary may provide, or the Tribe/Consortium may request, 
Federal construction guidelines and manuals for consideration by the 
Tribe/Consortium in the preparation of its construction project 
proposal. If Tribal construction codes and standards (including 
national, regional, State, or Tribal building codes or contrition 
industry standards) that meet or exceed otherwise applicable standards, 
the Secretary must accept the Tribally proposed standards.


Sec.  1000.1350  What provisions relating to a construction project or 
program may be included in a funding agreement or construction project 
agreement?

    Unless otherwise agreed to in writing by a Tribe/Consortium, no 
provision of title 41, United States Code, the Federal Acquisition 
Regulations, or any other law or regulation pertaining to Federal 
procurement, shall apply to any construction program or project carried 
out under title IV of the Act. Absent a negotiated agreement, such 
provisions and regulatory requirements do not apply.


Sec.  1000.1355  What provisions must a Tribe/Consortium include in a 
construction project agreement or funding agreement that contains a 
construction project or program?

    (a) For each construction project or program carried out by the 
Tribe/Consortium under 25 U.S.C. 5367, the Tribe/Consortium and the 
Secretary shall negotiate a provision in the construction project 
agreement or funding agreement that identifies:
    (1) The approximate start and completion dates for the project, 
which may extend over a period of one or more years;
    (2) A general description of the project, including the scope of 
work, references to design criteria, and other terms and conditions;
    (3) The responsibilities of the Tribe/Consortium for the project;
    (4) How project-related environmental considerations will be 
addressed;
    (5) The amount of Federal funds provided for the project;
    (6) The terms and conditions by which funding for the project, 
including contingency funds, will be paid to the Tribe/Consortium by 
the Secretary;
    (7) The obligations of the Tribe/Consortium to comply with the 
applicable codes and standards referenced in 25 U.S.C. 5367(d) and 
applicable Federal laws and regulations;
    (8) The agreement of the parties over who will bear any additional 
costs necessary to meet changes in scope, or errors or omissions in 
design and construction;
    (9) The entity responsible to issue any Certificate of Occupancy, 
if applicable; and
    (10) Other terms and conditions the parties mutually agree upon.
    (b) The Tribe/Consortium shall include in the construction project 
agreement or funding agreement that includes a construction project or 
program a provision for the submission to the Secretary of progress 
reports and financial status reports not less than semi-annually 
commencing after funding for the project is received by the Tribe/
Consortium and continuing until the construction of the project is 
complete.

Requirements and Standards


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

    In carrying out a construction project under this subpart, a Tribe/
Consortium must:
    (a) Adhere to applicable Federal, State, local, and Tribal building 
codes, architectural and engineering standards, and applicable Federal 
guidelines regarding design, space, and operational standards, 
appropriate for the particular project; and
    (b) Use only architects and engineers who:
    (1) Are licensed to practice in the State in which the facility 
will be built; and
    (2) Certify that:
    (i) They are qualified to perform the work required by the specific 
construction involved; and
    (ii) Upon completion of design, the plans, and specifications meet 
or exceed the applicable construction and safety codes.

[[Page 100271]]

NEPA Process


Sec.  1000.1365  Are Tribes/Consortia required to carry out activities 
involving NEPA in order to enter into a construction project agreement?

    No, Tribes/Consortia are not required to carry out any activities 
involving NEPA in order to enter into a construction project agreement.


Sec.  1000.1370  How may a Tribe/Consortium elect to assume some 
Federal responsibilities under NEPA?

    (a) A Tribe/Consortium may, subject to the agreement of the 
Secretary, elect to assume some Federal responsibilities under NEPA, 
NHPA, and related provisions of other laws and regulations that would 
apply if the Secretary were to undertake a construction project by 
adopting a resolution:
    (1) Designating a certifying Tribal officer to represent the Indian 
Tribe and to assume the status of a responsible Federal official under 
those Acts, laws, or regulations; and
    (2) Accepting 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.
    (b) Notwithstanding paragraph (a) of this section, nothing in this 
section authorizes the Secretary to include in any compact or funding 
agreement duties of the Secretary under NEPA, NHPA, and other related 
provisions of law that are inherent Federal functions.


Sec.  1000.1375  How may a Tribe/Consortium carry out activities 
involving NEPA without assuming some Federal responsibilities?

    A Tribe/Consortium may elect to carry out some or all activities 
involving development and preparation of applicable documentation under 
NEPA, NHPA and related provisions of other laws and regulations for 
final review and approval by the Secretary.


Sec.  1000.1379  Are Tribes/Consortia required to adopt a separate 
resolution or take equivalent Tribal action to assume some 
environmental responsibilities of the Secretary under NEPA, NHPA, and 
related laws and regulations for each construction project?

    No, the Tribe/Consortium may adopt a single resolution or take 
equivalent Tribal action to assume some environmental responsibilities 
of the Secretary for NEPA, NHPA, and related laws and regulations for a 
single project, multiple projects, a class of projects, or all projects 
performed under 25 U.S.C. 5367.


Sec.  1000.1380  What additional provisions of law are related to NEPA 
and NHPA?

    (a) Depending upon the nature and the location of the construction 
project, environmental laws related to NEPA and NHPA may include:
    (1) Archaeological and Historical Data Preservation Act (54 U.S.C. 
3120501 through 3120508);
    (2) Archeological Resources Protection Act (16 U.S.C. 470aa et 
seq.);
    (3) Clean Air Act (42 U.S.C. 7401 et seq.);
    (4) Clean Water Act (33 U.S.C. 1251 et seq.);
    (5) Coastal Barrier Improvement Act (16 U.S.C. 3501 et seq.);
    (6) Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.);
    (7) Coastal Zone Management Act (16 U.S.C. 1451 et seq.];
    (8) Comprehensive Environmental Response, Compensation, and 
Liability Act (42 U.S.C. 9601 et seq.);
    (9) Endangered Species Act (16 U.S.C. 1531 et seq.);
    (10) Farmland Protection Policy Act (7 U.S.C. 4201 et seq.);
    (11) Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 
1401 through 1445; 16 U.S.C. 1431 through 1447F; 33 U.S.C. 2801 through 
2805);
    (12) National Trails System Act (16 U.S.C. 1241 et seq.);
    (13) Native American Graves Protection and Repatriation Act (25 
U.S.C. 3001 et seq.);
    (14) Noise Control Act (42 U.S.C. 4901 et seq.);
    (15) Resource Conservation and Recovery Act (42 U.S.C. 6901 et 
seq.);
    (16) Safe Drinking Water Act (42 U.S.C. 300f et seq.);
    (17) Toxic Substance Control Act (15 U.S.C. 2601 et seq.);
    (18) Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.); and
    (19) Wilderness Act (16 U.S.C. 1131 et seq.)
    (b) This section provides a list of environmental laws for 
informational purposes only and does not create any legal rights or 
remedies, or imply private rights of action.


Sec.  1000.1385  What is the typical environmental review process for 
construction projects?

    (a) During the environmental review process, the following 
activities may occur:
    (1) Consult with appropriate Tribal, Federal, state, local 
officials, and interested parties on potential environmental effects;
    (2) Document assessment of reasonably foreseeable environmental 
effects;
    (3) Perform necessary environmental surveys and inventories;
    (4) Consult with the Advisory Council on Historic Preservation, 
acting through the SHPO or THPO, to ensure compliance with the NHPA;
    (5) 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 require 
preparation of an environmental assessment or environmental impact 
statement;
    (6) Identify methods to avoid or mitigate potential adverse 
effects; and
    (7) Obtain environmental permits and approvals as required.
    (b) This section is for informational purposes only and does not 
create any legal rights or remedies, or imply private rights of action.


Sec.  1000.1390  Is the Secretary required to take into account the 
Indigenous Knowledge of Tribes/Consortia when preparing environmental 
studies under NEPA, NHPA, and related provisions of other law and 
regulations?

    Yes, Council on Environmental Quality (CEQ) regulations direct 
agencies to make use of high-quality information including reliable 
data and resources, models, and Indigenous Knowledge, in carrying out 
their responsibilities under NEPA. The Secretary recognizes that 
Tribes/Consortia hold relevant information and perspectives regarding 
the environment, and Indigenous Knowledge can inform the Secretary's 
environmental analysis. Similarly, section 106 of NHPA (54 U.S.C. 
306108) establishes a process to ensure that the Secretary take into 
account the effects of a project the Department carries out, licenses, 
or assists on historic properties.


Sec.  1000.1395  May a Tribe/Consortium act as a cooperating agency or 
joint lead agency for environmental review purposes regardless of 
whether it exercises its option under Sec.  1000.1370(a)(1)?

    Yes, consistent with 40 CFR 1501.7(b) and 1501.8, a Tribe/
Consortium may act as a cooperating agency or joint lead agency for 
environmental review purposes under this part. For informational 
purposes only, the term ``cooperating agency'' is defined at 40 CFR 
1508.1(g) and the criteria for a Tribe/Consortium to act as a 
``cooperating agency'' are set out in 40 CFR 1501.8 and Department 
regulations at 43 CFR 46.225, respectively.


Sec.  1000.1400  How does a Tribe/Consortium comply with NEPA and NHPA?

    (a) A Tribe/Consortium complies with NEPA and NHPA by:
    (1) Developing and adopting their own environmental review 
procedures

[[Page 100272]]

that meet or exceed applicable Federal requirements;
    (2) Adopting the procedures of the Secretary; or
    (3) Adopting the procedures of another Federal agency.
    (b) The Tribe/Consortium shall reference such procedures in the 
funding agreement or construction project agreement and use such 
procedures in undertaking the project.


Sec.  1000.1405  If a Tribe/Consortium adopts the environmental review 
procedures of a Federal agency, is the Tribe/Consortium responsible for 
ensuring the agency's policies and procedures meet the requirements of 
NEPA, NHPA, and related environmental laws?

    No, the Federal agency is responsible for ensuring its own policies 
and procedures meet the requirements of NEPA, NHPA, and related 
environmental laws, not the Tribe/Consortium.


Sec.  1000.1410  Are Federal funds available to cover the cost of 
Tribes/Consortia carrying out environmental responsibilities?

    Yes, funds are available:
    (a) For project-specific environmental costs through the 
construction project agreement or funding agreement that includes the 
construction project; and
    (b) For environmental review program costs through a funding 
agreement and/or a construction project agreement.


Sec.  1000.1415  How are project and program environmental review costs 
identified?

    (a) The Tribe/Consortium and the Secretary shall work together 
during the initial stages of project development to identify program 
and project related costs associated with carrying out environmental 
responsibilities for proposed projects. The goal in this process is to 
identify the costs associated with all foreseeable environmental review 
activities.
    (b) If unforeseen environmental review and compliance costs are 
identified during the performance of the construction project, the 
Tribe/Consortium or, at the request of the Tribe/Consortium, the Tribe/
Consortium and Secretary may do one or more of the following:
    (1) Mitigate adverse environmental effects;
    (2) Alter the project scope of work; and/or
    (3) Add additional program and/or project funding, including 
seeking supplemental appropriations.


Sec.  1000.1420  What costs may be included in the budget for a 
construction project or program?

    (a) A Tribe/Consortium may include costs allowed by applicable 
provisions of subpart E of 2 CFR part 200, and costs allowed under 25 
U.S.C. 5367, 25 U.S.C. 5325 and 25 U.S.C. 5324(m). The cost incurred 
will vary depending on which phase of the construction process the 
Tribe/Consortium is conducting and type of construction project 
agreement that will be used.
    (b) Regardless of whether a construction project agreement or 
funding agreement that includes a construction project is fixed priced 
or cost-reimbursement, budgets may include costs or fees associated 
with the following:
    (1) Construction project proposal preparation;
    (2) Conducting community meetings to develop project documents;
    (3) Architects, engineers, and other consultants to prepare project 
planning documents, to develop project plans and specifications, and to 
assist in oversight of the design during construction;
    (4) Real property lease or acquisition;
    (5) Development of project surveys including topographical surveys, 
site boundary descriptions, geotechnical surveys, archeological 
surveys, and NEPA compliance;
    (6) Project management, superintendence, safety, and inspection;
    (7) Travel, including local travel incurred as a direct result of 
conducting the construction project agreement and remote travel in 
conjunction with the project;
    (8) Consultants, such as demographic consultants, planning 
consultants, attorneys, accountants, and personnel who provide 
services, to include construction management services;
    (9) Project site development;
    (10) Project construction cost;
    (11) General, administrative overhead, and indirect costs;
    (12) Securing and installing moveable equipment, telecommunications 
and data processing equipment, furnishings, including works of art, and 
special purpose equipment when part of a construction contract;
    (12) Other costs directly related to performing the construction 
project;
    (13) Project Contingency;
    (i) A cost-reimbursement project agreement budgets contingency as a 
broad category. Project contingency remaining at the end of the project 
is considered savings.
    (ii) Fixed-price agreements budget project contingency in the lump 
sum price or unit price.
    (c) In the case of a fixed-price project agreement, a reasonable 
profit determined by taking into consideration the relevant risks and 
local market conditions.


Sec.  1000.1425  May the Secretary reject a Tribe's/Consortium's final 
offer of a construction project proposal submitted under subpart I of 
this part based on a determination of Tribal capacity or capability?

    No, the Secretary may not reject a Tribe's/Consortium's final offer 
of a construction project based on a determination of Tribal capacity 
or capability.


Sec.  1000.1430  On what basis may the Secretary reject a final offer 
of a construction project proposal made by a Tribe/Consortium?

    As described in subpart I of this part, rejection of a final offer 
by the Secretary for a construction project must be based on a specific 
finding by the Secretary that clearly demonstrates, or that is 
supported by a controlling legal authority, that one or more of the 
statutory criteria under 25 U.S.C. 5366(c)(6) exist to reject the final 
offer.

Role of the Secretary


Sec.  1000.1435  What is the Secretary's role in a construction project 
performed under this subpart?

    The Secretary has the following role regarding a construction 
program or project contained in a funding agreement or construction 
project agreement:
    (a) On a schedule negotiated by the Secretary and the Tribe/
Consortium, to ensure health and safety standards and compliance with 
Federal law, the Secretary shall review and verify, to the satisfaction 
of the Secretary:
    (1) That project planning and documents prepared by the Tribe/
Consortium in advance of initial construction are in conformity with 
the obligations of the Tribe/Consortium under 25 U.S.C. 5367(d); and
    (2) Before the project planning and design documents are 
implemented, that subsequent document amendments that result in a 
significant change in construction are in conformity with the 
obligations of the Tribe/Consortium under 25 U.S.C. 5367(d).
    (b) Where no time is otherwise specified in a funding agreement or 
construction project agreement, the Secretary shall complete the review 
and verification of project documents required under 25 U.S.C. 5367(h) 
and provide a Tribe/Consortium a written response within 30 days of the 
Secretary's receipt from the Tribe/Consortium of project planning and 
design documents. Absent a written response by the Secretary within the 
30-day period, the project planning and design documents, or amendments 
to such documents, shall be deemed to be

[[Page 100273]]

conformity with the Tribe's obligations under 25 U.S.C. 5367(d).
    (c) The Secretary must approve any proposed changes in the 
construction project that require;
    (1) An increase in the negotiated funding amount; or
    (2) An increase in the negotiated performance period; or
    (3) A significant departure from the scope or objective of the 
construction program as agreed to in the funding agreement or 
construction project agreement.
    (d) A Tribe/Consortium may make immaterial changes to the 
performance period and make budget adjustments within available Federal 
funding without an amendment to the funding agreement or construction 
project agreement.
    (e) The Secretary may conduct onsite project oversight visits 
semiannually or on an alternate schedule agreed to by the Secretary and 
the Tribe/Consortium. The Secretary must provide the Tribe/Consortium 
with reasonable advance written notice to assist the Tribe/Consortium 
in coordinating the visit. The purpose of the visit is to review the 
progress under the construction project agreement or funding agreement. 
At the request of the Tribe/Consortium, the Secretary must provide the 
Tribe/Consortium a written site visit report;
    (f) Where the Secretary and the Tribe/Consortium share construction 
project or program activities, the Secretary and Tribe/Consortium shall 
provide for the exchange of information;
    (g) The Secretary may reassume the construction portion of a 
funding agreement or construction project agreement if the Secretary, 
in accordance with subpart M of this part, makes a written finding of:
    (1) A significant failure to substantially carry out the terms of 
the funding agreement or construction agreement without good cause; or
    (2) Imminent jeopardy to a physical trust asset, to a natural 
resource, or that adversely affects public health and safety as 
provided in subpart M of this part.


Sec.  1000.1440  What constitutes a ``significant change'' in the 
original scope of work?

    A significant change in the original scope of work is:
    (a) A change that would result in a cost that exceeds the total of 
the Federal project funds available and the Tribe's/Consortium's 
contingency funds; or
    (b) A material departure from the original scope of work, including 
substantial departure from timelines negotiated in the construction 
project agreement.


Sec.  1000.1445  May the Secretary suspend construction activities 
under the terms of a funding agreement or construction project 
agreement under title IV of the ISDEAA?

    (a) The Secretary may, in lieu of reassumption under subpart M of 
this part, allow a Tribe/Consortium to suspend certain work under a 
construction project included in a funding agreement or construction 
project agreement under title IV of the ISDEAA for up to 30 days only 
if the Secretary notifies the Tribe/Consortium in writing that the 
Secretary has found that:
    (1) Site conditions adversely affect health and safety; or
    (2) Work in progress or completed for the construction project 
fails to substantially carry out the terms of the construction project 
agreement or funding agreement without good cause.
    (b) The Secretary may suspend only work directly related to the 
criteria specified in paragraph (a) of this section unless other 
reasons for suspension are specifically negotiated in the funding 
agreement or construction project agreement under title IV of the 
ISDEAA.
    (c) Unless the Secretary determines that a health and safety 
emergency requiring immediate reassumption under subpart M of this part 
exists, before requesting a suspension of work on the project by the 
Tribe/Consortium, the Secretary must provide:
    (1) A 5-working days written notice to the Tribe/Consortium 
specifying the reasons the Secretary requests a suspension of certain 
project work; and
    (2) A reasonable opportunity for the Tribe/Consortium to correct 
the problem.
    (d) The Tribe/Consortium must be compensated for reasonable costs 
due to any suspension of work that occurred through no fault of the 
Tribe/Consortium. Project funds will not be used for this purpose. 
However, if suspension occurs due to the action or inaction of the 
Tribe/Consortium, then project funds will be used to cover suspension 
related activities.


Sec.  1000.1450  How are property and funding returned if there is a 
reassumption for substantial failure to carry out a construction 
project?

    If there is a reassumption by the Secretary of a project for 
substantial failure to carry out the funding agreement or construction 
project agreement, property and funding will be returned as provided in 
subparts M and N of this part.


Sec.  1000.1455  What happens when a Tribe/Consortium, suspended under 
Sec.  1000.1445 for substantial failure to carry out the terms of a 
funding agreement that includes a construction project or program or a 
construction project agreement under title IV of the ISDEAA without 
good cause, does not correct the failure during the suspension?

    Except when the Secretary makes a finding of imminent jeopardy to a 
physical trust asset, a natural resource, or public health and safety, 
requiring immediate reassumption as provided in subpart M of this part, 
a finding by the Secretary of substantial failure to carry out the 
terms of the construction project agreement under title IV of the 
ISDEAA or funding agreement that includes a construction project or 
program without good cause is not corrected or resolved by the Tribe/
Consortium during the suspension of work, the Secretary may initiate a 
reassumption at the end of the 30-day suspension of work if an 
extension has not been negotiated. Any unresolved dispute will be 
processed in accordance with the Contract Disputes Act of 1978, 41 
U.S.C. 7101, et seq.


Sec.  1000.1460  How does the Secretary make advance payments to a 
Tribe/Consortium under a funding agreement or construction project 
agreement?

    (a) For all construction projects performed under a funding 
agreement or construction project agreement, advance payments shall be 
made annually or semiannually, at the Tribe's/Consortium's option as 
provided in 25 U.S.C. 5367(f). The initial payment shall include all 
contingency funding for the project or phase of the project to the 
extent that there are funds appropriated for that purpose.
    (b) The amount of subsequent advance payments is based on the 
mutually agreeable project schedule reflecting:
    (1) Work to be accomplished within the advance payment period;
    (2) Work already accomplished; and
    (3) Total prior payments for each annual or semiannual advance 
payment period.
    (c) For lump sum, fixed price agreements, at the request of the 
Tribe/Consortium, payments shall be based on an advance payment period 
measured as follows:
    (1) One year; or
    (2) Project Phase (e.g., planning, design, construction). If 
project phase is chosen by the Tribe/Consortium as the payment period, 
the full amount of funds necessary to perform the work for that phase 
of the construction project agreement is payable in the initial advance 
payment. For multi-phase projects, the planning and design phases

[[Page 100274]]

must be completed prior to the transfer of funds by the Secretary for 
the associated construction phase. The completion of the planning and 
design phases will include at least one opportunity for Secretarial 
approval in accordance with Sec.  1000.1435.
    (d) For construction project agreements, the amount of advance 
payments shall include the funds necessary to perform the work 
identified in the advance payment period of one year.
    (e) Any agreement to advance funds under paragraph (b), (c) or (d) 
of this section is subject to the availability of appropriations.
    (f) Initial advance payments are due within 10 days of the 
effective date of the funding agreement or construction project 
agreement, and subsequent advance payments are due:
    (1) Within 10 days of apportionment for annual payments, or
    (2) Within 10 days of the start date of the project phase for phase 
payments.


Sec.  1000.1465  Is a facility built under this subpart eligible for 
annual operation and maintenance funding?

    Yes, upon completion of a facility constructed under the Act, the 
Secretary shall include the facility among those eligible for annual 
operation and maintenance funding support comparable to that provided 
for similar facilities funded by the Department as annual 
appropriations are available and to the extent that the facility size 
and complexity and other factors do not exceed the funding formula 
criteria for comparable buildings.

Role of the Tribe/Consortium


Sec.  1000.1470  What is the Tribe's/Consortium's role in a 
construction project included in a funding agreement or construction 
project agreement under this subpart?

    (a) In carrying out a construction project under the Act, a Tribe/
Consortium shall assume responsibility for the completion of the 
construction project and of a facility that is usable for the purpose 
for which the Tribe/Consortium received funding, including day-to-day 
on-site management and administration of the project, in accordance 
with the negotiated funding agreement or construction project 
agreement. However, Tribes/Consortia are not required to perform beyond 
the amount of funds provided. For example, a Tribe/Consortium may 
encounter unforeseen circumstances during the term of a funding 
agreement or construction project agreement. If this occurs, options 
available to the Tribe/Consortium include, but are not limited to:
    (1) Reallocating existing funding;
    (2) Reducing/revising the scope of work that does not require an 
amendment because it does not result in a significant change;
    (3) Utilizing savings;
    (4) Requesting additional funds or appropriations;
    (5) Utilizing interest earnings;
    (6) Seeking funds from other sources; and/or
    (7) Redesigning or re-scoping that does not result in a significant 
change by amendment as provided in the funding agreement the 
construction project agreement.
    (b) The Tribe/Consortium must give the Secretary timely notice of 
any proposed changes to the project that require an increase to the 
negotiated funding amount or an increase in the negotiated performance 
period or any other significant departure from the scope or objective 
of the project. The Tribe/Consortium and Secretary may negotiate to 
include timely notice requirements in the funding agreement or 
construction project agreement.


Sec.  1000.1475  Is a Tribe/Consortium required to submit construction 
project progress and financial reports for construction projects?

    Yes, as required under Sec.  1000.1355(b), construction project 
progress reports and financial reports are only required for active 
construction projects. The construction progress and financial reports 
shall provide the following information:
    (a) Construction project progress reports contain information about 
accomplishments during the reporting period and issues and concerns of 
the Tribe/Consortium relating to the project, if any. Construction 
progress information will include the following, as applicable:
    (1) Phase(s) of the project completed or in progress including but 
not limited to design complete, environmental review complete, and 
construction underway;
    (2) Milestone project event(s) reached (e.g., 50% of the project is 
completed);
    (3) Other information mutually agreeable to the Tribe/Consortium 
and the Secretary.
    (4) Upon project completion, the final construction progress report 
will provide notification to the Secretary that the project has been 
completed in accordance with the approved project scope, including any 
changes in the project scope of work.
    (b) Construction project financial reports contain information 
regarding the amount of funds expended during the reporting period and 
financial concerns of the Tribe/Consortium concerning the project, if 
any.

Other


Sec.  1000.1480  May a Tribe/Consortium continue work with construction 
funds remaining in a funding agreement or construction project 
agreement at the end of the funding year?

    Yes, any funds remaining in a funding agreement or construction 
project agreement for a project at the end of the funding year may be 
spent for construction under the terms of the funding agreement or 
construction project agreement for which the funds were awarded.


Sec.  1000.1485   Must a construction project agreement or funding 
agreement that contains a construction project or activity incorporate 
provisions of Federal construction standards?

    (a) No, the Secretary may, however, provide information about 
Federal standards as early as possible in the construction process.
    (b) If Tribal construction codes and standards (including national, 
regional, State, or Tribal building codes or construction industry 
standards), including health and safety, meet or exceed applicable 
Federal codes and standards, then the Secretary must accept the 
Tribe's/Consortium's proposed codes and standards.
    (c) The Secretary may also accept commonly accepted industry 
construction codes and standards; provided that such codes and 
standards meet or exceed otherwise applicable Federal standards for the 
construction project.


Sec.  1000.1490  May the Secretary require design provisions and other 
terms and conditions for construction projects or programs included in 
a funding agreement or construction project agreement under section 
403(c) (25 U.S.C. 5363(c))?

    Yes, the relevant bureau may provide to the Tribe/Consortium 
project design criteria and other terms and conditions that are 
required for such a construction project or program. The construction 
project or program must be completed in accordance with the terms and 
conditions set forth in the funding agreement or construction project 
agreement.


Sec.  1000.1495   Do all provisions of other subparts apply to 
construction portions of a funding agreement or construction project 
agreement?

    Yes, all provisions of other subparts apply to construction 
portions of a funding agreement or construction project agreement 
unless those

[[Page 100275]]

provisions are inconsistent with this subpart.


Sec.  1000.1500  When a Tribe withdraws from a Consortium, is the 
Secretary required to award to the withdrawing Tribe a portion of funds 
associated with a construction project if the withdrawing Tribe so 
requests?

    Under Sec.  1000.235, a Tribe may withdraw from a Consortium and 
request its portion of a construction project's funds. The Secretary 
may decide not to award these funds if the award will affect the 
Consortium's ability to complete a non-severable phase of the project 
within available funding. A non-severable phase of a project would 
include but is not limited to the construction of a single building 
serving a Consortium. A severable phase of a project would include but 
is not limited to the funding for a road in one village where the 
Consortium would be able to complete the roads in the other villages 
that were part of the project approved initially in the funding 
agreement. The Secretary's decision under this section may be appealed 
under subpart R of this part.


Sec.  1000.1505  May a Tribe/Consortium reallocate funds from a 
construction program to a non-construction program?

    No, a Tribe/Consortium may not reallocate funds from a construction 
program to a non-construction program unless otherwise provided under 
the relevant appropriation acts.


Sec.  1000.1510  May a Tribe/Consortium reallocate funds among 
construction programs?

    Yes, a Tribe/Consortium may reallocate funds among construction 
programs if permitted by appropriations law or if approved in advance 
by the Secretary.


Sec.  1000.1515  Must the Secretary retain project funds to ensure 
proper health and safety standards in construction projects?

    Yes, the Secretary must retain project funds to ensure proper 
health and safety standards in construction projects. Examples of 
purposes for which bureaus may retain funds include:
    (a) Determining or approving appropriate construction standards to 
be used in funding agreements;
    (b) Verifying that there is an adequate Tribal inspection system 
utilizing licensed professionals;
    (c) Providing for sufficient monitoring of design and construction 
by the Secretary; and
    (d) Requiring corrective action during performance when 
appropriate.


Sec.  1000.1520  What funding must the Secretary provide in a 
construction project agreement or funding agreement that includes a 
construction project or program?

    The Secretary must provide funding for a construction project 
agreement or funding agreement that includes a construction project or 
program in accordance with 25 U.S.C. 5325 and 25 U.S.C. 5363(g)(3).


Sec.  1000.1525  Must Federal funds from other DOI sources be 
incorporated into a construction project agreement or funding agreement 
that includes a construction project or program?

    Yes, at the request of the Tribe/Consortium, the Secretary must 
include Federal funds from other DOI sources as permitted by law, 
whether on an ongoing or a one-time basis.


Sec.  1000.1530  May a Tribe/Consortium contribute funding to a 
project?

    Yes, at the discretion of a Tribe/Consortium, a Tribe/Consortium 
may contribute funds to a construction project.

Subpart L--Federal Tort Claims


Sec.  1000.1601  What is the purpose of this subpart?

    This subpart explains the applicability of the Federal Tort Claims 
Act (FTCA). This section covers:
    (a) Coverage of claims arising out of the performance under 
compacts and funding agreements;
    (b) Procedures for filing claims under FTCA; and
    (c) Procedures for a Tribe/Consortium to cooperate with the Federal 
Government in connection with tort claims arising out of the Tribe's/
Consortium's performance of a compact or funding agreement under this 
part.


Sec.  1000.1605  What other statutes and regulations apply to FTCA 
coverage?

    A number of other statutes and regulations apply to FTCA coverage, 
including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671 
through 2680), 25 U.S.C. 5376, and related U.S. Department of Justice 
regulations in 28 CFR part 14.


Sec.  1000.1610  Do Tribes/Consortia need to be aware of areas which 
FTCA does not cover?

    Yes, there are claims against Tribes/Consortia which are not 
covered by FTCA, claims which may not be pursued under FTCA, and 
remedies that are excluded by FTCA. The following general guidance is 
not intended as a definitive description of coverage, which is subject 
to review by the U.S. Department of Justice and the courts on a case-
by-case basis.
    (a) What claims are expressly barred by FTCA and therefore may not 
be made against the United States, a Tribe, or Consortium? Any claim 
under 28 U.S.C. 2680, including claims arising out of assault, battery, 
false imprisonment, false arrest, malicious prosecution, abuse of 
process, libel, slander, misrepresentation, deceit, or interference 
with contract rights, unless otherwise authorized by 28 U.S.C. 2680(h).
    (b) What claims may not be pursued under FTCA? (1) Claims against 
subcontractors arising out of the performance of subcontracts with a 
Tribe/Consortium;
    (2) Claims for on-the-job injuries which are covered by workmen's 
compensation;
    (3) Claims for breach of contract rather than tort claims; or
    (4) Claims resulting from activities performed by an employee which 
are outside the scope of employment.
    (c) What remedies are expressly excluded by FTCA and therefore are 
barred? (1) Punitive damages, unless otherwise authorized by 28 U.S.C. 
2674; and
    (2) Other remedies not permitted under applicable state law.


Sec.  1000.1615   Is there a deadline for filing FTCA claims?

    Yes, claims shall be filed within 2 years of the date of accrual. 
(28 U.S.C. 2401).


Sec.  1000.1620  How long does the Federal Government have to process a 
FTCA claim after the claim is received by the Federal agency, before a 
lawsuit may be filed?

    The Federal Government has 6 months to process a FTCA claim after 
the claim is received by the Federal agency, before a lawsuit may be 
filed.


Sec.  1000.1625   Is it necessary for a compact or funding agreement to 
include any clauses about FTCA coverage?

    No, clauses about FTCA coverage are optional. At the request of 
Tribes/Consortia, a compact or funding agreement shall include the 
following clause to clarify the scope of FTCA coverage:
    For purposes of FTCA coverage, the Tribe/Consortium and its 
employees (including individuals performing personal services contracts 
with the Tribe/Consortium) are deemed to be employees of the Federal 
Government while performing work under the compact or funding 
agreement. This status is not changed by the source of the funds used 
by the Tribe/Consortium to pay the employee's salary and

[[Page 100276]]

benefits unless the employee receives additional compensation for 
performing covered services from anyone other than the Tribe/
Consortium.


Sec.  1000.1630  Does FTCA apply to a compact and funding agreement if 
FTCA is not referenced in the compact or funding agreement?

    Yes. In accordance with 25 U.S.C. 5376, FTCA applies to a compact 
or funding agreement even if the compact or funding agreement does not 
mention it.


Sec.  1000.1635  To what extent shall the Tribe/Consortium cooperate 
with the Federal Government in connection with tort claims arising out 
of the Tribe's/Consortium's performance of a compact, funding 
agreement, or subcontract?

    (a) The Tribe/Consortium shall designate in writing to the 
Secretary an individual to serve as tort claims liaison with the 
Federal Government.
    (b) As part of the notification required by 28 U.S.C. 2679(c), the 
Tribe/Consortium shall notify the Secretary immediately in writing of 
any tort claim (including any proceeding before an administrative 
agency or court) filed against the Tribe/Consortium or any of its 
employees that relates to performance of a compact, funding agreement, 
or subcontract.
    (c) The Tribe/Consortium, through its designated tort claims 
liaison, shall assist the appropriate Federal agency in preparing a 
comprehensive, accurate, and unbiased report of the incident so that 
the claim may be properly evaluated. This report should be completed 
within 60 days of notification of the filing of the tort claim. The 
report should be complete in every significant detail and include as 
appropriate:
    (1) The date, time and exact place of the accident or incident;
    (2) A concise and complete statement of the circumstances of the 
accident or incident;
    (3) The names and addresses of Tribal and/or Federal employees 
involved as participants or witnesses;
    (4) The names and addresses of all other eyewitnesses;
    (5) An accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;
    (6) A statement as to whether any person involved was cited for 
violating a Federal, State, or Tribal law, ordinance, or regulation;
    (7) The Tribe's/Consortium's determination as to whether any of its 
employees (including Federal employees assigned to the Tribe/
Consortium) involved in the incident giving rise to the tort claim were 
acting within the scope of their employment in the performance of the 
compact or funding agreement at the time the incident occurred;
    (8) Copies of all relevant documentation, including available 
police reports, statements of witnesses, newspaper accounts, weather 
reports, plats and photographs of the site or damaged property, such as 
may be necessary or useful for purposes of claim determination by the 
Federal agency; and
    (9) Insurance coverage information, copies of medical bills, and 
relevant employment records.
    (d) The Tribe/Consortium shall cooperate with and provide 
assistance to the U.S. Department of Justice attorneys assigned to 
defend the tort claim, including, but not limited to, case preparation, 
discovery, and trial.
    (e) If requested by the Secretary, the Tribe/Consortium shall make 
an assignment and subrogation of all the Tribe's/Consortium's rights 
and claims (except those against the Federal Government) arising out of 
a tort claim against the Tribe/Consortium.
    (f) If requested by the Secretary, the Tribe/Consortium shall 
authorize representatives of the Secretary to settle or defend any 
claim and to represent the Tribe/Consortium in or take charge of any 
action.
    (g) If the Federal Government undertakes the settlement or defense 
of any claim or action, the Tribe/Consortium shall provide all 
reasonable additional assistance in reaching a settlement or asserting 
a defense.


Sec.  1000.1640  Does this coverage extend to subcontractors of 
compacts and funding agreements?

    No, subcontractors or subgrantees providing services to a Public 
Law 93-638 Tribe/Consortium are generally not covered.


Sec.  1000.1645  Is FTCA the exclusive remedy for a tort claim, 
including a claim concerning personal injury or death, resulting from 
the performance of a compact or funding agreement?

    Yes, except as explained in Sec.  1000.1610(b). No claim may be 
filed against a Tribe/Consortium or employee based upon performance of 
a compact or funding agreement. All claims shall be filed against the 
United States and are subject to the limitations and restrictions of 
FTCA.


Sec.  1000.1650  What employees are covered by FTCA for claims arising 
out of a Tribe's/Consortia's performance of a compact or funding 
agreement?

    The following employees are covered by FTCA for claims:
    (a) Permanent employees of the Tribe/Consortium;
    (b) Temporary employees of the Tribe/Consortium;
    (c) Persons providing services without compensation in the 
performance of a compact or funding agreement; and;
    (d) Federal employees assigned to a Tribe/Consortium under the 
compact or funding agreement including those under the 
Intergovernmental Personnel Act.


Sec.  1000.1655  Does FTCA cover employees of the Tribe/Consortium who 
are paid by the Tribe/Consortium from funds other than those provided 
through the funding agreement?

    Yes, FTCA covers employees of the Tribe/Consortium who are not paid 
from funds transferred under a funding agreement as long as the 
services out of which the claim arose were performed under the compact 
or funding agreement.


Sec.  1000.1660  May persons who are not Indians or Alaska Natives 
assert claims under FTCA arising out of the performance of a compact or 
funding agreement by a Tribe/Consortium?

    Yes, any person(s) may assert tort claims under FTCA arising out of 
the performance of a compact or funding agreement by Tribes/Consortia 
under this subpart.


Sec.  1000.1665  If the Tribe/Consortium or Tribe's/Consortium's 
employee receives a summons and/or a complaint alleging a tort covered 
by FTCA and arising out of the performance of a compact or funding 
agreement, what should the Tribe/Consortium do?

    As part of the notification required by 28 U.S.C. 2679(c), if the 
Tribe/Consortium or Tribe's/Consortium's employee receives a summons 
and/or complaint alleging a tort covered by FTCA and arising out the 
performance of a compact or funding agreement, the Tribe/Consortium 
should immediately:
    (a) Inform the Assistant Solicitor, Procurement and Patents, Office 
of the Solicitor, Department of the Interior, Room 6511, 1849 C Street 
NW, Washington, DC 20240.
    (b) Inform the Tribe's/Consortium's tort claims liaison, and
    (c) Forward all of the materials identified in Sec.  1000.1635(c) 
to the contacts given in paragraphs (a) and (b) of this section.

Subpart M--Reassumption


Sec.  1000.1701  What is the purpose of this subpart?

    This subpart explains when the Secretary can reassume a program 
without the consent of a Tribe/Consortium.

[[Page 100277]]

Sec.  1000.1705  What does reassumption mean?

    Reassumption means the Secretary, without consent of the Tribe/
Consortium, takes control or operation of the PSFAs and associated 
funding in a compact or funding agreement, in whole or in part, and 
assumes the responsibility to provide such PSFAs.


Sec.  1000.1710  Under what circumstances may the Secretary reassume a 
program operated by a Tribe/Consortium under a funding agreement?

    The Secretary may reassume a program and the associated funding if 
the Secretary makes a specific finding relating to that program of:
    (a) Imminent jeopardy to a trust asset, a natural resource, or 
public health and safety that:
    (1) Is caused by an act or omission of the Tribe/Consortium; and
    (2) Arises out of a failure to carry out the compact or funding 
agreement; or
    (b) Gross mismanagement with respect to funds transferred to a 
Tribe/Consortium under a compact or funding agreement, as determined by 
the Secretary in consultation with the Inspector General, as 
appropriate.


Sec.  1000.1715   What is ``imminent jeopardy'' to a trust asset?

    Imminent jeopardy means an immediate threat and likelihood of 
significant devaluation, degradation, damage, or loss of a trust asset, 
or the intended benefit from the asset caused by the actions or 
inactions of a Tribe/Consortium in performing trust functions. This 
includes disregarding Federal trust standards and/or Federal law while 
performing trust functions if the disregard creates such an immediate 
threat.


Sec.  1000.1720   What is ``imminent jeopardy'' to natural resources?

    The standard for natural resources is the same as for a physical 
trust asset, except that a review for compliance with the specific 
mandatory statutory provisions related to the program as reflected in 
the funding agreement must also be considered.


Sec.  1000.1725  What is ``imminent jeopardy'' to public health and 
safety?

    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/Consortium action or inaction or as otherwise provided in a 
funding agreement.


Sec.  1000.1730  What steps must the Secretary take prior to 
reassumption becoming effective?

    Except as provided in Sec.  1000.1750 for immediate reassumption, 
prior to a reassumption becoming effective, the Secretary must:
    (a) Notify the Tribe/Consortium in writing of the details of the 
findings required under Sec.  1000.1710;
    (b) Request specific corrective action to remedy the mismanagement 
of the funds or programs within a reasonable period of time which in no 
case may be less than 45 days;
    (c) Offer and provide, if requested, the necessary technical 
assistance and advice to assist the Tribe/Consortium overcome the 
conditions that led to the findings described under (a); and
    (d) Provide the Tribe/Consortium with a hearing on the record as 
provided under subpart R of this part.


Sec.  1000.1735  Does the Tribe/Consortium have a right to a hearing 
prior to a non-immediate reassumption becoming effective?

    Yes, at the request of the Tribe/Consortium, the Secretary must 
provide a hearing on the record prior to or in lieu of the corrective 
action period identified in Sec.  1000.1730(b).


Sec.  1000.1740  What happens if the Secretary determines that the 
Tribe/Consortium has not corrected the conditions that the Secretary 
identified in the written notice?

    (a) The Secretary shall provide a second written notice to the 
Tribe/Consortium served by the compact or funding agreement that the 
compact or funding agreement will be rescinded, in whole or in part.
    (b) The second notice shall include:
    (1) The intended effective date of the Secretary's reassumption;
    (2) The details and facts supporting the intended reassumption; and
    (3) Instructions that explain the Tribe/Consortium's right to a 
formal hearing within 30 days of receipt of the notice.


Sec.  1000.1745  What is the earliest date on which a reassumption by 
the Secretary can be effective?

    Except as provided in Sec.  1000.1750, no program may be reassumed 
by the Secretary until 30 days after the final resolution of the 
hearing and any subsequent appeals to provide the Tribe/Consortium with 
an opportunity to take corrective action in response to any adverse 
final ruling.


Sec.  1000.1750  Does the Secretary have the authority to immediately 
reassume a program?

    Yes, the Secretary may immediately reassume operation of a program 
and associated funding upon providing to the Tribe/Consortium written 
notice in which the Secretary makes a finding of:
    (a) Imminent and substantial jeopardy and irreparable harm to a 
trust asset, a natural resource, or public health and safety that:
    (1) Is caused by an act or omission by the Tribe/Consortium; and
    (2) Arises out of a failure to carry out the terms of an applicable 
compact or funding agreement.
    (b) If the Secretary reassumes operation of a program under this 
provision, the Secretary must provide the Tribe/Consortium with a 
hearing on the record not later than 10 days after the date of 
reassumption.


Sec.  1000.1755  What must a Tribe/Consortium do when a program is 
reassumed?

    On the effective date of reassumption, the Tribe/Consortium must, 
at the request of the Secretary, deliver all property and equipment, 
and title thereto:
    (a) That the Tribe/Consortium received for the program under the 
funding agreement; and
    (b) That has a per item value in excess of $5,000, or as otherwise 
provided in the funding agreement.


Sec.  1000.1760   When must the Tribe/Consortium return funds to the 
Department?

    The Tribe/Consortium must return unexpended funds, less ``wind up 
costs,'' that remain available to the Department as soon as practical 
after the effective date of the reassumption.


Sec.  1000.1765  May the Tribe/Consortium be reimbursed for actual and 
reasonable ``wind up costs'' incurred after the effective date of 
retrocession?

    Yes, the Tribe/Consortium may be reimbursed for actual and 
reasonable ``wind up costs'' to the extent that funds are available.


Sec.  1000.1770  Is a Tribe's/Consortium's general right to negotiate a 
funding agreement adversely affected by a reassumption action?

    A reassumption action taken by the Secretary does not affect the 
Tribe/Consortium's ability to negotiate a funding agreement for 
programs not affected by the reassumption.


Sec.  1000.1775  When will the Secretary return management of a 
reassumed program?

    A reassumed program may be included in future funding agreements, 
but the Secretary may include conditions in the terms of the funding 
agreement to ensure that the circumstances that caused jeopardy to 
attach do not reoccur.

[[Page 100278]]

Subpart N--Retrocession


Sec.  1000.1801  What is the purpose of this subpart?

    This subpart explains what happens when a Tribe/Consortium fully or 
partially and voluntarily returns a program to a bureau before the 
expiration of the term of the compact or funding agreement.


Sec.  1000.1805   Is a decision by a Tribe/Consortium not to include a 
program in a successor agreement considered a retrocession?

    No, a decision by a Tribe/Consortium not to include a program in a 
successor agreement is not considered a retrocession.


Sec.  1000.1810  Who may retrocede a program in a funding agreement?

    A Tribe/Consortium may retrocede a program. However, the right of a 
Consortium member to retrocede may be subject to the terms of the 
agreement among the members of the Consortium and Sec. Sec.  1000.205 
through 1000.235.


Sec.  1000.1815  How does a Tribe/Consortium retrocede a program?

    The Tribe/Consortium must submit:
    (a) A written notice to:
    (1) The Office of Self-Governance for BIA programs; or
    (2) The appropriate bureau for non-BIA programs; and
    (b) A Tribal resolution or other official action of its governing 
body.


Sec.  1000.1820  When will the retrocession become effective?

    The retrocession becomes effective on the date that is mutually 
agreed to by the parties in writing. In the absence of a mutually 
agreed upon effective date, the retrocession becomes effective on the 
earlier of:
    (a) One year after the date the Tribe/Consortium submits its notice 
of retrocession; or
    (b) The date the funding agreement expires.


Sec.  1000.1825  How will retrocession affect the Tribe's/Consortium's 
existing and future funding agreements?

    Retrocession does not affect other parts of the funding agreement 
or funding agreements with other bureaus. A Tribe/Consortium may 
request to negotiate for and include retroceded programs in future 
funding agreements or through a self-determination contract.


Sec.  1000.1830  Does the Tribe/Consortium have to return funds used in 
the operation of a retroceded program?

    The Tribe/Consortium and the Secretary must negotiate the amount of 
funds that have not been obligated by the Tribe/Consortium to be 
returned to the Secretary, less close out costs, for the Secretary's 
operation of the retroceded program. This amount must be based on such 
factors as the time remaining or functions remaining in the funding 
cycle or as provided in the funding agreement.


Sec.  1000.1835  Does the Tribe/Consortium have to return property used 
in the operation of a retroceded program?

    On the effective date of any retrocession, the Tribe/Consortium 
must, at the option of the Secretary, return all property and 
equipment, and title thereto:
    (a) That was acquired with funds under the funding agreement for 
the program being retroceded; and
    (b) That has a per item current fair market value in excess of 
$5,000 at the time of the retrocession, or as otherwise provided in the 
funding agreement.


Sec.  1000.1840  What happens to a Tribe's/Consortium's mature contract 
status if it has retroceded a program that is also available for self-
determination contracting?

    If a Tribe/Consortium retrocedes operation of a program carried out 
under a title IV funding agreement, at the option of the Tribe/
Consortium, the resulting self-determination contract is considered 
mature if the Tribe/Consortium meets the requirements of 25 U.S.C. 
5304(h).


Sec.  1000.1845   How does retrocession affect a bureau's operation of 
the retroceded program?

    The level of operation of the program will depend upon the amount 
of funding that is returned with the retrocession.

Subpart O--Trust Evaluation


Sec.  1000.1901  What is the purpose of this subpart?

    This subpart describes how the trust responsibility of the United 
States is legally maintained through a system of trust evaluations when 
Tribes/Consortia perform trust PSFAs through funding agreements under 
the Act. It describes the principles and processes upon which trust 
evaluations by the Secretary will be based.


Sec.  1000.1905  Does the Act alter the trust responsibility of the 
United States to Indian Tribes and individuals under self-governance?

    No, the Act does, however, permit a Tribe/Consortium to assume 
management responsibilities for trust assets and resources on its own 
behalf and on behalf of individual Indians. Under the Act, the 
Secretary has a trust responsibility to conduct annual trust 
evaluations of a Tribe's/Consortium's performance of trust PSFAs under 
a funding agreement to ensure that Tribal and individual trust assets 
and resources are managed in accordance with the legal principles and 
standards governing the performance of trust PSFAs set out in the 
funding agreement or as provided for by law.


Sec.  1000.1910  What are ``trust resources'' for the purposes of the 
trust evaluation process?

    (a) Trust resources include property and interests in property:
    (1) That are held in trust by the United States for the benefit of 
a Tribe or individual Indians; or
    (2) That are subject to restrictions upon alienation.
    (b) Trust assets include:
    (1) Other assets, trust revenue, royalties, or rental, including 
natural resources, land, water, minerals, funds, property, or claims, 
and any intangible right or interest in any of the foregoing;
    (2) Any other property, asset, or interest therein, or treaty right 
for which the United States is charged with a trust responsibility. For 
example, water rights and off-reservation treaty rights.
    (c) This definition defines trust resources and trust assets for 
purposes of the trust evaluation process only.


Sec.  1000.1915  What are ``trust PSFAs'' for the purposes of the trust 
evaluation process?

    Trust PSFAs are those programs, services, functions and activities 
necessary to the management of assets and resources held in trust by 
the United States for an Indian Tribe or individual Indian.


Sec.  1000.1920   Can a Tribe/Consortium request the Secretary to 
conduct an assessment of the status of the trust assets, resource, and 
PSFAs?

    If the parties agree in writing and it is practical, the Secretary 
may arrange for a written assessment by the Department of the status of 
the trust resource and asset at the time of the transfer of the PSFAs 
or at a later time. The parties shall agree upon an estimate of time 
required to complete a baseline assessment. Upon completion of the 
assessment report by the Department, the Secretary's designated 
representative shall provide a copy of the assessment to the Tribe/
Consortium within 30 days.

Annual Trust Evaluation


Sec.  1000.1925  What is a trust evaluation?

    A trust evaluation is an annual review and evaluation of trust 
functions performed by a Tribe/Consortium to ensure that the functions 
are performed

[[Page 100279]]

in accordance with trust standards as defined by Federal law. Trust 
evaluations address trust functions performed by the Tribe/Consortium 
on its own behalf as well as trust functions performed by the Tribe/
Consortium for the benefit of individual Indians or Alaska Natives.


Sec.  1000.1930  How are trust evaluations conducted?

    (a) Each year the Secretary's designated representative(s) will 
conduct an evaluation of trust PSFAs for each funding agreement. The 
Secretary's designated representative(s) will coordinate in writing 
with the leadership of the Tribe/Consortium, with a copy to the 
designated Tribe's/Consortium's representative(s), to arrange the 
evaluation of trust PSFAs and throughout the trust evaluation, 
including the written report required by Sec.  1000.1940.
    (b) This section describes the general framework for trust 
evaluations. However, each Tribe/Consortium may develop, with the 
appropriate bureau, an individualized trust evaluation method to allow 
for the Tribe's/Consortium's unique history, circumstances, trust 
resources and assets, and the terms and conditions of its funding 
agreement. An individualized trust evaluation must, at a minimum, 
contain the measures in paragraph (d) of this section.
    (c) To facilitate the trust evaluation so as to mitigate costs and 
maximize efficiency, each Tribe/Consortium must provide access to all 
records, plans, and other pertinent documents relevant to the trust 
PSFAs under review not otherwise available to the Department.
    (d) The Secretary's designated representative(s) will:
    (1) Review trust transactions;
    (2) Conduct on-site inspections of trust resources and assets, as 
appropriate, at a time to be coordinated between the parties;
    (3) Review compliance with applicable statutory and regulatory 
requirements;
    (4) Review compliance with the trust provisions and standards as 
may be negotiated and included in the funding agreement;
    (5) Ensure that the same level of trust services is provided to 
individual Indians as would have been provided by the Secretary;
    (6) Document deficiencies in the performance of trust PSFAs 
discovered during the trust evaluation in the final report which the 
Department will submit to the Tribe/Consortium pursuant to Sec.  
1000.1940; and
    (7) Ensure the fulfillment of the Secretary's trust responsibility 
to Tribes and individual Indians by documenting the existence of:
    (i) Systems of internal controls;
    (ii) Trust standards; and
    (iii) Safeguards against conflicts of interest in the performance 
of trust PSFAs.


Sec.  1000.1935  May the trust evaluation process be used for 
additional reviews?

    Yes, if the parties agree in writing to such additional reviews.


Sec.  1000.1936   May the parties negotiate review methods for purposes 
of the trust evaluation?

    Yes, unless review methods are otherwise provided by Federal law, 
the Secretary's designated representative will negotiate review methods 
at the request of the Tribe/Consortium for inclusion in a funding 
agreement as provided in Sec.  1000.1930(b).


Sec.  1000.1940  What are the responsibilities of the Secretary's 
designated representative(s) after the annual trust evaluation?

    The Secretary's representative(s) must prepare a written report 
documenting the results of the trust evaluation within 60 days of the 
Department's completion of an on-site and/or desk review.
    (a) The Secretary's representative(s) will provide the Tribe/
Consortium representative(s) with a copy of the report for review and 
comment before finalization.
    (b) The Secretary's representative(s) will attach to the report any 
Tribal/Consortium comments that the representative receives.
    (c) The Secretary's representative(s) must respond to the Tribe's/
Consortium's comments as part of the final trust evaluation report.


Sec.  1000.1945  Is the trust evaluation standard or process different 
when the trust resource or asset is held in trust for an individual 
Indian or Indian allottee?

    No, Tribes/Consortia are under the same obligation as the Secretary 
to perform trust PSFAs and related activities in accordance with trust 
protection standards and principles whether managing Tribally or 
individually owned trust resources and assets. The Department's process 
for conducting the annual evaluation of Tribal/Consortium performance 
of trust PSFAs on behalf of individual Indians is the same as that used 
in evaluating performance of Tribal trust PSFAs.


Sec.  1000.1950  Does the annual trust review evaluation include a 
review of the Secretary's inherent Federal and retained operation trust 
PSFAs?

    (a) When the annual trust evaluation by the Secretary reveals a 
deficient performance of trust PSFAs by a Tribe/Consortium due in part 
to the action or inaction of a bureau, it will trigger an evaluation by 
the Department of the Secretary's inherent Federal functions and any 
retained trust PSFAs pertaining to the bureau's action or inaction.
    (b) The appropriate Department officials will be notified in 
writing by the Secretary's representative of the need for corrective 
action. A copy of such written notice shall be sent by the Secretary's 
representative to the Tribe/Consortium. The review of the Secretary's 
trust PSFAs shall be based on the standards in Federal law.


Sec.  1000.1955  What are the consequences of a finding of imminent 
jeopardy in the Secretary's annual trust evaluation?

    (a) A finding of imminent jeopardy to a trust asset, natural 
resource, or public health and safety that is caused by an act or 
omission of the Tribe/Consortium and that arises out of a failure by 
the Tribe/Consortium to carry out the compact or funding agreement, 
triggers the Federal reassumption process (see subpart M of this part), 
unless the conditions in paragraph (b) of this section are met.
    (b) The reassumption process will not be triggered if the 
Secretary's designated representative determines that the Tribe/
Consortium:
    (1) Can cure the conditions causing jeopardy within 60 days; and
    (2) Will not cause significant loss, harm, or devaluation of a 
trust asset, natural resources, or the public health and safety.


Sec.  1000.1960  What if the Secretary's trust evaluation reveals 
problems that do not rise to the level of imminent jeopardy?

    Where problems not rising to the level of imminent jeopardy are 
caused by Tribal/Consortium action or inaction, the conditions must be:
    (a) Documented in the Department's annual trust evaluation report;
    (b) Reported to the Secretary; and
    (c) Reported in writing to:
    (1) The governing body of the Tribe; and
    (2) In the case of a Consortium, to the governing body of each 
Tribe on whose behalf the Consortium is performing the trust PSFAs.


Sec.  1000.1965  Who is responsible for taking corrective action?

    The Tribe/Consortium is primarily responsible for identifying and

[[Page 100280]]

implementing corrective actions for matters contained in the funding 
agreement, but the Department may also suggest possible corrective 
measures for Tribal/Consortium consideration.


Sec.  1000.1970  What are the requirements of the Department's review 
team report?

    A report summarizing the results of the trust evaluation will be 
prepared by the Secretary's designated representative(s) and copies 
provided to the Tribe/Consortium within the time frame specified in 
Sec.  1000.1940. The annual trust evaluation report must:
    (a) Be written objectively, concisely, and clearly;
    (b) Present information accurately and fairly, including only 
relevant and adequately supported information, findings, and 
conclusions; and
    (c) Include a written response from the Tribe/Consortium to the 
draft report provided to the Tribe/Consortium by the Secretary's 
representative(s).


Sec.  1000.1975   May the Department conduct more than one trust 
evaluation per Tribe per year?

    (a) Yes, if the Department receives information that it concludes 
rises to the level of a threat of imminent jeopardy to a trust asset, 
natural resource, or the public health and safety, caused by an act or 
omission of a Tribe/Consortium and arises out of a failure to carry out 
a compact or funding agreement, the Department, as trustee, may conduct 
a preliminary investigation. The Department:
    (1) Shall promptly contract the Tribe/Consortium to discuss the 
nature of the threat;
    (2) Will follow up with notification to the Tribe/Consortium in 
writing, and
    (3) May conduct an on-site inspection upon 2 days' advance written 
notice to the Tribe/Consortium.
    (b) If the preliminary investigation shows that appropriate, 
sufficient data are present to indicate there may be imminent jeopardy, 
the Secretary's designated representative shall follow the reassumption 
procedures in accordance with subpart M of this part.

Subpart P--Reports


Sec.  1000.2001  What is the purpose of this subpart?

    This subpart describes what reports are developed under self-
governance by the Secretary and the Tribes/Consortia.


Sec.  1000.2005   Is the Secretary required to report on Self 
Governance?

    Yes, on January 1 of each year, the Secretary will submit a report 
on self-governance to the Congress. The report will be based on:
    (a) Information contained in funding agreements;
    (b) Annual audit reports, and
    (c) Data of the Secretary regarding the disposition of Federal 
funds.


Sec.  1000.2010  What will the Secretary's annual report to Congress 
contain?

    The Secretary's report will:
    (a) Identify:
    (1) The relative costs and benefits of self-governance;
    (2) With particularity, all funds that are specifically or 
functionally related to the provision by the Secretary of services and 
benefits to self-governance Indian Tribes and members of Indian Tribes;
    (3) The funds transferred to each Tribe/Consortium and the 
corresponding reduction in the Federal employees and workload; and
    (4) The funding formula for individual Tribal shares of all Central 
Office funds, together with the comments of affected Indian Tribes, 
developed for the report to Congress as required by 25 U.S.C. 5372(d).
    (b) Include the separate views and comments of each Indian Tribe or 
Tribal organization; and
    (c) Include a list of:
    (1) All such programs that the Secretary determines, in 
consultation with Indian Tribes participating in self-governance, are 
eligible for negotiation to be included in a funding agreement at the 
request of a participating Indian Tribe;
    (2) All such programs which Indian Tribes have formally requested 
to include in a funding agreement under section 403(c) (25 U.S.C. 
5363(c)) due to the special geographic, historical, or cultural 
significance of the program to the Indian Tribe, indicating whether 
each request was granted or denied, and stating the grounds for any 
denial; and
    (d) Include in this report, in the aggregate, a description of the 
internal controls that were inadequate, the technical assistance 
provided, and a description of Secretarial actions taken to address any 
remaining inadequate internal controls after the provision of technical 
assistance and implementation of the plan required by 25 U.S.C. 
5324(q)(1).
    (e) Programmatic targets established by the Secretary, after 
consulting with participating Tribes/Consortia, to encourage bureaus of 
the Department, other than the BIA, the BIE, the BTFA, or the Office of 
Assistant Secretary for Indian Affairs to ensure that an appropriate 
portion of those programs are available to be included in funding 
agreements.


Sec.  1000.2011  Is the Secretary required to review programs of the 
Department other than BIA, BIE, the Office of the Assistant Secretary 
for Indian Affairs, and the BTFA?

    Yes. In order to optimize opportunities for including non-BIA 
programs in agreements with Tribes/Consortia participating in self-
governance under the Act, the Secretary shall review all non-BIA 
programs without regard to the agency or office concerned.


Sec.  1000.2012  Is the Secretary required to annually publish 
information under this subpart in the Federal Register?

    Yes, the Secretary shall annually review and publish in the Federal 
Register, after consulting with Tribes/Consortia participating in self-
governance, revised lists under Sec.  1000.2010(c)(1) and (2) and 
programmatic targets under Sec.  1000.2010(e), and make such 
information available to all participating Tribes/Consortia.


Sec.  1000.2015   Must the Secretary seek comment on the report from 
Tribes/Consortia before submitting it to Congress?

    Yes, before the report of the Secretary is submitted to Congress, 
it must be distributed by the Secretary to Tribes/Consortia for 
comment. The comment period must not be less than 30 days.


Sec.  1000.2020  What may the Tribe's/Consortium's annual report on 
self-governance address?

    (a) The Tribe's/Consortium's annual self-governance report may 
address:
    (1) A list of unmet Tribal needs in order of priority;
    (2) The approved, year-end Tribal/Consortium budget for the 
programs and services funded under self-governance, summarized, and 
annotated as the Tribe/Consortium may deem appropriate;
    (3) Identification of any reallocation of trust programs;
    (4) Program and service delivery highlights, which may include a 
narrative of specific program redesign or other accomplishments, or 
benefits attributed to self-governance; and
    (5) At the Tribe's/Consortium's option, a summary of the highlights 
of the report referred to in paragraph (a)(2) of this section and other 
pertinent information the Tribe/Consortium may wish to report.
    (b) The report submitted under this section is intended to provide 
the Department with information necessary to meet its Congressional 
reporting responsibilities and to fulfill its responsibility as an 
advocate for self-governance. The report is not intended to be 
burdensome, and Tribes/Consortia

[[Page 100281]]

are encouraged to design and present the report in a brief and concise 
manner.


Sec.  1000.2025  Are there other data submissions or reports that 
Tribes/Consortia may be requested to submit?

    Yes, Tribes/Consortia may be requested to submit data for the 
Secretary to determine allocation of funds to be awarded under a 
funding agreement.


Sec.  1000.2030  Are Tribes/Consortia required to submit Single Audit 
Act reports?

    Yes. The Single Agency Audit Act, 31 U.S.C. 7501 et seq., and 
subparts E and F of 2 CFR part 200 applies to a funding agreement under 
this part. The Tribe/Consortium must provide to the designated official 
an annual single audit report as prescribed by 31 U.S.C. 7501, et seq.


Sec.  1000.2035   Is there an exemption available for the requirement 
to submit Single Audit Act reports?

    Yes. In accordance with 2 CFR 200.501(d), a non-Federal entity that 
expends less than the amount as published by OMB during the entity's 
fiscal year in Federal awards is exempt from submitting an annual 
single audit report for that year.


Sec.  1000.2040  Are Tribes/Consortia required to maintain reports and 
records in accordance with 25 U.S.C. 5305?

    Yes, Tribes/Consortia are required to maintain reports and records 
in accordance with 25 U.S.C. 5305.

Subpart Q--Operational Provisions


Sec.  1000.2101  How can a Tribe/Consortium hire a Federal employee to 
help implement a funding agreement?

    If a Tribe/Consortium chooses to hire a Federal employee, it can 
use, in addition to any other available options, one of the 
arrangements listed in this section:
    (a) The Tribe/Consortium can use its own personnel hiring 
procedures. Federal employees hired by the Tribe/Consortium are 
separated from Federal service.
    (b) The Tribe/Consortium can ``direct hire'' a Federal employee as 
a Tribal/Consortium employee. The employee will be separated from 
Federal service and work for the Tribe/Consortium, but maintain a 
negotiated Federal benefit package that is paid for by the Tribe/
Consortium out of funding agreement program funds; or
    (c) The Tribe/Consortium can negotiate an agreement under the 
Intergovernmental Personnel Act, 5 U.S.C. 3371 through 3375, 25 U.S.C. 
323, 25 U.S.C. 48, or other applicable Federal law. The employee will 
remain a Federal employee during the term of the agreement.


Sec.  1000.2105  Can a Tribe/Consortium employee be detailed to a 
Federal service position?

    Yes, under the Intergovernmental Personnel Act, 5 U.S.C. 3371 
through 3375, 25 U.S.C. 323, 25 U.S.C. 48, or other applicable law, 
when permitted by the Secretary.


Sec.  1000.2110  How does the Freedom of Information Act apply?

    (a) Access to records maintained by the Secretary is governed by 
the Freedom of Information Act (5 U.S.C. 552) and other applicable 
Federal law.
    (b) Unless the Tribe/Consortium specifies otherwise in a funding 
agreement, records of the Tribe/Consortium shall not be considered 
Federal records for the purpose of the Freedom of Information Act.
    (c) The Freedom of Information Act does not apply to records 
maintained solely by Tribes/Consortia.


Sec.  1000.2115   How does the Privacy Act apply?

    Unless the Tribe/Consortium specifies otherwise, records of the 
Tribe/Consortium shall not be considered Federal records for the 
purposes of the Privacy Act.


Sec.  1000.2120   What audit requirements must a Tribe/Consortium 
follow?

    The Single Agency Audit Act, 31 U.S.C. 7501 et seq., and subparts E 
and F of 2 CFR part 200 apply to a funding agreement under this part. 
The Tribe/Consortium must provide to the designated official an annual 
single audit as prescribed by 31 U.S.C. 7501, et seq.


Sec.  1000.2125   How do OMB circulars and the Act apply to funding 
agreements?

    (a) A Tribe/Consortium shall apply cost principles under the 
applicable OMB circular, except as modified by:
    (1) Any provision of law, including 25 U.S.C. 5325; or
    (2) Any exemptions or exceptions granted by OMB.
    (b) In any circumstances where the provisions of Federal statutes 
or this part differ from the provisions of 2 CFR part 200, the 
provisions of the Federal statutes or this part govern. This includes 
the provisions of Public Law 93-638, including 25 U.S.C. 5325 and 
5365(c).


Sec.  1000.2130  How much time does the Federal Government have to make 
a claim against a Tribe/Consortium relating to any disallowance of 
costs, based on an audit?

    Any claim by the Federal Government against a Tribe/Consortium 
relating to the disallowance of costs for funds received under a 
funding agreement based on any audit under title IV (other than those 
relating to a criminal offense) shall be subject to the 365-day period 
set forth in 25 U.S.C. 5325(f), as prescribed by 25 U.S.C. 5365(c)(3).


Sec.  1000.2135  Does a Tribe/Consortium have additional ongoing 
requirements to maintain minimum standards for Tribe/Consortium 
management systems?

    (a) Yes, for a Tribe/Consortium required to perform an annual audit 
under the Single Audit Act and subparts E and F of 2 CFR part 200, the 
Tribe/Consortium must maintain management systems that are determined 
to be adequate by an independent audit.
    (b) For a Tribe/Consortium that is not required to perform an 
annual audit under the Single Audit Act, the financial management 
systems, including records documenting compliance with Federal 
statutes, regulations, and the terms and conditions of the funding 
agreement, must be sufficient to permit the preparation of reports 
required by general and program-specific terms and conditions; and the 
tracing of funds to a level of expenditures adequate to establish that 
such funds have been used according to the Federal statutes, 
regulations, and the requirements of the funding agreement.
    (c) As prescribed by subparts E and F of 2 CFR part 200, every 
Tribe/Consortium must establish and maintain effective internal 
controls over funds included in a funding agreement that provide 
reasonable assurances that the Tribe/Consortium is managing the funds 
in compliance with Federal statutes, regulations, and the terms and 
conditions of the funding agreement.


Sec.  1000.2140  Are there any restrictions on how funds awarded to a 
Tribe/Consortium under a funding agreement may be spent?

    Yes, funds awarded to a Tribe/Consortium under a funding agreement 
may be spent only for costs associated with PSFAs subject to the 
funding agreement.


Sec.  1000.2145  What standard applies to a Tribe's/Consortium's 
management of funds awarded under a funding agreement?

    Funds awarded a Tribe/Consortium under a funding agreement, 
including advance payments, shall be managed by the Tribe/Consortium 
using the prudent investment standard, provided that the Secretary 
shall not be liable for any investment losses of funds managed by the 
Tribe/Consortium that are not otherwise guaranteed or insured by the 
Federal Government. The prudent investment standard requires the

[[Page 100282]]

exercise of reasonable care, skill, and caution, and is to be applied 
to investments not in isolation but in the context of the investment 
portfolio and as part of an overall investment strategy, which should 
incorporate risk and return objectives reasonably suitable to the 
Tribe/Consortium. In making and implementing investment decisions, the 
Tribe/Consortium has a duty to diversify the investment, unless, under 
the circumstances, it is prudent not to do so. In addition, the Tribe/
Consortium must:
    (a) Conform to fundamental fiduciary duties of loyalty and 
impartiality;
    (b) Act with prudence in deciding whether and how to delegate 
authority and in the selection and supervision of agents; and
    (c) Incur only costs that are reasonable in amount and appropriate 
to the investment responsibilities of the Tribe/Consortium.


Sec.  1000.2150   How may interest or investment income that accrues on 
funds awarded under a funding agreement be used?

    (a) Interest or income earned on investments or deposits of awards 
made under a funding agreement may be:
    (1) Used for any governmental purpose approved by the Tribe/
Consortium; or
    (2) Used to provide expanded services under the funding agreement 
and to support some or all of the costs of investment services.
    (b) The retention of interest or investment income under paragraph 
(a) of this section shall not diminish the amount of funds a Tribe/
Consortium is entitled to receive under a funding agreement in the year 
the interest or income is earned or in a subsequent fiscal year.


Sec.  1000.2155  Can a Tribe/Consortium retain savings from programs?

    Yes, notwithstanding any provision of an appropriations Act, the 
Tribe/Consortium may retain savings for each fiscal year during which a 
funding agreement is in effect. A Tribe/Consortium must use any savings 
that it realizes under a funding agreement, including a construction 
contract:
    (a) To provide additional services or benefits under the funding 
agreement; or
    (b) As carryover; and
    (c) For purposes of this subpart only, programs administered by BIA 
using appropriations made to other Federal agencies, such as the U.S. 
Department of Transportation, will be treated in accordance with 
paragraph (b) of this section.


Sec.  1000.2160   Can a Tribe/Consortium carry over funds not spent 
during the term of the funding agreement?

    (a) Yes. Notwithstanding any provision of an appropriations Act, 
all funds paid to a Tribe/Consortium in accordance with a compact or 
funding agreement shall remain available until expended.
    (b) If a Tribe/Consortium elects to carry over funding from one 
year to the next, the carryover shall not diminish the amount of funds 
the Tribe/Consortium is entitled to receive under a funding agreement 
in that fiscal year or any subsequent fiscal year.
    (c) A Tribe/Consortium may elect to carry over funding from one 
year to the next without any additional justification or document 
necessary for expenditure.


Sec.  1000.2165  After a non-BIA funding agreement has been executed 
and the funds transferred to a Tribe/Consortium, can a bureau request 
the return of unexpended funds?

    The non-BIA bureau may request the return of unexpended funds 
already transferred to a Tribe/Consortium only under the following 
circumstances:
    (a) Retrocession;
    (b) Reassumption;
    (c) Construction, when there are special legal requirements; or
    (d) As otherwise provided for in the funding agreement.


Sec.  1000.2170   How can a person or group appeal a decision or 
contest an action related to a program operated by a Tribe/Consortium 
under a funding agreement?

    (a) BIA Programs. A person or group who is aggrieved by an action 
of a Tribe/Consortium with respect to programs that are provided by the 
Tribe/Consortium under a funding agreement must follow Tribal 
administrative procedures.
    (b) Non-BIA Programs. Procedures will vary depending on the 
program. Aggrieved parties should initially contact the local program 
administrator (the Indian program contact). Thereafter, appeals will 
follow the relevant bureau's appeal procedures.


Sec.  1000.2175  Must Tribes/Consortia comply with the Secretarial 
approval requirements of 25 U.S.C. 81; 82a; and 476 regarding 
professional and attorney contracts?

    No, for the period that an agreement entered into under this part 
is in effect, the provisions of 25 U.S.C. 81, 82a, and 476, do not 
apply to attorney and other professional contracts by participating 
Tribes/Consortia.


Sec.  1000.2180   Are funds awarded under a funding agreement non-
Federal funds for the purpose of meeting matching or cost participation 
requirements?

    (a) Yes, in accordance with 25 U.S.C. 5363(j), all funds provided 
under funding agreements shall be treated as non-Federal funds for 
purposes of meeting matching requirements under any other Federal law.
    (b) Alternatively, a Tribe/Consortium may elect under 25 U.S.C. 
5363(l) to incorporate 25 U.S.C. 5325(j) in their funding agreement for 
the purpose of meeting matching or cost participating requirements 
under other Federal and non-Federal programs.


Sec.  1000.2185  Does Indian preference apply to services, activities, 
programs, and functions performed under a funding agreement?

    Yes, in accordance with section 25 U.S.C. 5307(b) and (c), as 
amended, Tribal law governs Indian preference in employment in 
contracting and subcontracting in performance of a funding agreement.


Sec.  1000.2190  Do the wage and labor standards in the Davis-Bacon Act 
apply to Tribes and Tribal Consortia?

    No, wage and labor standards of the Davis-Bacon Act, 40 U.S.C. 3141 
through 3144, 3146 and 3147, do not apply to employees of Tribes and 
Tribal Consortia. Davis-Bacon wage and labor standards do apply to all 
other laborers and mechanics employed by contractors and subcontractors 
of a Tribe/Consortium in the construction, alteration, and repair 
(including painting or redecorating) of buildings or other facilities 
in connection with a funding agreement.


Sec.  1000.2195  Can a Tribe/Consortium use Federal supply sources in 
the performance of a funding agreement?

    Yes. A Tribe/Consortium and its employees may use Federal supply 
sources (including lodging, airline, interagency motor pool vehicles, 
and other means of transportation) or other Federal resources 
(including supplies, services and resources available to the Secretary 
under any procurement contracts in which the Department is eligible to 
participate), to the same extent as if the Tribe/Consortium were a 
Federal agency. While implementation of this provision is the 
responsibility of the General Services Administration, the Department 
shall assist the Tribes/Consortia to resolve any barriers to full 
implementation that may arise to the fullest extent possible.

[[Page 100283]]

Sec.  1000.2200  Does the Prompt Payment Act (31 U.S.C. 3901) apply to 
a BIA funding Agreement?

    Yes. The Prompt Payment Act (31 U.S.C. 3901) applies to a BIA 
funding agreement.


Sec.  1000.2205   Does the Prompt Payment Act (31 U.S.C. 3901) apply to 
a non-BIA program funding agreement?

    Yes, unless restricted by a funding agreement, the Prompt Payment 
Act shall apply to a non-BIA funding agreement.


Sec.  1000.2210  Is a Tribe/Consortium obligated to continue 
performance under a compact or funding agreement if the Secretary does 
not transfer sufficient funds?

    A Tribe/Consortium shall not be obligated to continue performance 
that requires an expenditure of funds in excess of the amount of funds 
transferred under a compact or funding agreement. If at any time the 
Tribe/Consortium has reason to believe that the total amount provided 
for a specific activity under a compact or funding agreement is 
insufficient, the Tribe/Consortium shall provide reasonable notice of 
such insufficiency to the Secretary. If, after notice, the Secretary 
does not increase the amount of funds transferred under the funding 
agreement, the Tribe/Consortium may suspend performance of the activity 
until such time as additional funds are transferred. Nothing in 25 
U.S.C. 5368(l) reduces any programs, services, or funds of, or provided 
to, another Tribe/Consortium.

Subpart R--Appeals


Sec.  1000.2301  What is the purpose of this subpart?

    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.


Sec.  1000.2305  How must disputes be handled?

    (a) The Department encourages its bureaus to seek all means of 
dispute resolution before the Tribe/Consortium files a formal 
appeal(s).
    (b) Disputes shall be addressed through government-to-government 
discourse. This discourse must be respectful of government-to-
government relationships and relevant Federal-Tribal agreements, 
treaties, judicial decisions, and policies pertaining to Indian Tribes, 
including, but not limited to, such applicable principles described in 
subpart I.
    (c) All disputes arising under this rule, including, but not 
limited to, disputes related to decisions described in Sec.  1000.2345, 
may use non-binding informal alternative dispute resolution, such as an 
informal conference or assistance of the Department's Office of 
Collaborative Action and Dispute Resolution (CADR), at the option of 
the Tribe/Consortium. The Tribe/Consortium may ask for this alternative 
dispute resolution any time before the issuance of an initial decision 
of a formal appeal. The appeals timetable will be suspended while 
alternative dispute resolution is pending.


Sec.  1000.2310  Does a Tribe/Consortium have any options besides an 
appeal?

    Yes, the Tribe/Consortium may request a non-binding alternative 
dispute resolution process--without the need for a formal appeal. Or, 
the Tribe/Consortium may, in lieu of filing an administrative appeal 
under this subpart, file an action in an appropriate Federal court 
under 25 U.S.C. 5331, or any other applicable law.


Sec.  1000.2315  What is the Secretary's burden of proof for appeals in 
this subpart?

    As required by sections 25 U.S.C. 5366(d) and 5375, in any 
administrative action, appeal, or civil action for judicial review of 
any decision made by the Secretary under this title, the Secretary 
shall have the burden of proof:
    (a) To demonstrate by a preponderance of the evidence the validity 
of the grounds for a reassumption under 25 U.S.C. 5366(b);
    (b) To clearly demonstrate the validity of the grounds for 
rejecting a final offer made under 25 U.S.C. 5366(c); and
    (c) Except as provided in 25 U.S.C. 5366(d), to demonstrate by a 
preponderance of the evidence the validity of the grounds for a 
decision made and the consistency of the decision with the requirements 
and policies of the Act.

Informal Conference


Sec.  1000.2320  How does a Tribe/Consortium request an informal 
conference?

    The Tribe/Consortium shall file its request for an informal 
conference with the office of the person whose decision it is 
appealing, within 30 days of the day it receives the decision.
    (a) The Tribe/Consortium may either hand-deliver the request for an 
informal conference to that person's office, email the request, or mail 
it by certified mail, return receipt requested.
    (b) If the Tribe/Consortium mails the request, it will be 
considered filed on the date the Tribe/Consortium mailed it by 
certified mail. If the Tribe/Consortium emails the request, it will be 
presumed received on the next business day following transmission from 
the Tribe/Consortium.
    (c) The document should be clearly identified as ``Request for 
Informal Conference''.


Sec.  1000.2325  How is an informal conference held?

    For all purposes relating to these informal conference procedures, 
the parties are the designated representatives of the Tribe/Consortium 
and the bureau.
    (a) The informal conference shall be held within 30 days of the 
date the request was received, unless the parties agree on another 
date.
    (b) If possible, at the option of the Tribe/Consortium, the 
informal conference will be held at the Tribe's/Consortium's office. If 
the meeting cannot be held at the Tribe's/Consortium's office, the 
parties must agree on an alternative meeting place or forum, including 
but not limited to telephonic or virtual meeting forums. If the 
alternative meeting place is more than fifty miles from the Tribe's/
Consortium's office, the Secretary must arrange to pay transportation 
costs and per diem for incidental expenses to allow for adequate 
representation of the Tribe/Consortium.
    (c) The informal conference shall be conducted by a designated 
representative of the Secretary.
    (d) Only the parties may make presentations at the informal 
conference.
    (e) The informal conference is not a hearing on the record. Nothing 
said during an informal conference may be used by either party in 
litigation.


Sec.  1000.2330  What happens after the informal conference?

    (a) Within 10 business days of the informal conference, the person 
who conducted the informal conference shall prepare and mail to the 
Tribe/Consortium a brief summary of the informal conference. The 
summary must include any agreements reached or changes from the initial 
position of the bureau or the Tribe/Consortium.
    (b) Every summary of an informal conference must contain the 
following language:
    Within 30 days of the receipt of the summary from the informal 
conference, you may file an appeal of the initial decision of the 
Department of the Interior agency in accordance with subpart R of 25 
CFR part 1000. Alternatively, you may file an action in Federal court 
pursuant to 25 U.S.C. 5331.

[[Page 100284]]

    (c) If in its judgment no agreement was reached, the Tribe/
Consortium may choose to appeal the initial decision, as modified by 
any changes made as a result of the informal conference, under this 
subpart.

Post-Award Disputes


Sec.  1000.2335  How may a Tribe/Consortium appeal a decision made 
after the funding agreement or compact or an amendment to a funding 
agreement or compact has been signed?

    With the exception of certain decisions concerning immediate 
reassumption (see Sec. Sec.  1000.2405 through 1000.2430), the Tribe/
Consortium may appeal post-award administrative decisions to the 
Civilian Board of Contract Appeals (CBCA).


Sec.  1000.2340  What statutes and regulations govern resolution of 
disputes concerning signed funding agreements or compacts (and any 
signed amendments) that are appealed to the CBCA?

    25 U.S.C. 5331 and the regulations at 25 CFR 900.216 through 
900.230 apply to disputes concerning signed funding agreements and 
compacts (and any signed amendments), that are appealed to the CBCA, 
except that any references to the U.S. Department of Health and Human 
Services are inapplicable. For purposes of such appeals:
    (a) The terms ``contract'' and ``self-determination contract'' mean 
compacts and funding agreements entered into under the Act; and
    (b) The term ``Tribe'' means ``Tribe/Consortium''.

Pre-Award Disputes


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

    Decisions that a Tribe/Consortium may appeal include, but are not 
limited to:
    (a) A decision to reject a final offer, or a portion thereof, under 
25 U.S.C. 5366(c);
    (b) A decision to reject a proposed amendment to a compact or 
funding agreement, or a portion thereof, under 25 U.S.C. 5366(c);
    (c) A decision that provisions in a retained funding agreement and/
or compact are directly contrary to any express provision of the Act;
    (d) A decision to reassume a compact or funding agreement, in whole 
or in part, under 25 U.S.C. 5366(b), except for immediate reassumptions 
under 25 U.S.C. 5366(b)(3);
    (e) A decision to reject a final construction project proposal, or 
a portion thereof, under 25 U.S.C. 5367(g) and subpart K of this part; 
and
    (f) For construction project agreements carried out under 25 U.S.C. 
5367, a decision to reject project planning documents, design 
documents, or proposed amendments submitted by a Tribe/Consortium under 
25 U.S.C. 5367(h)(1) and subpart K of this part.


Sec.  1000.2350  What decisions may not be appealed under Sec. Sec.  
1000.2345 through 1000.2395?

    Decisions that may not appealed under Sec. Sec.  1000.2345 through 
1000.2395 shall be limited to:
    (a) Disputes arising under the terms of a compact, funding 
agreement, or construction project agreement that has been awarded;
    (b) Disputes arising from immediate reassumptions under 25 U.S.C. 
5366(b)(3) and Sec.  1000.1750 which are covered under Sec. Sec.  
1000.2405 through 1000.2430;
    (c) Decisions relating to planning and negotiation grants (subparts 
C and D of this part) and certain discretionary grants not awarded 
under title IV (25 CFR part 2);
    (d) Decisions regarding requests for waivers of regulations 
(subpart J of this part);
    (e) Decisions regarding construction (subpart K of this part) 
addressed in Sec.  1000.1455; and
    (f) Decisions under any other statute, such as the Freedom of 
Information Act and the Privacy Act (see 43 CFR part 2).


Sec.  1000.2351   To Whom may a Tribe/Consortia appeal a decision under 
Sec.  1000.2345?

    (a) Filing an appeal. A Tribe/Consortium may elect to file a 
dispute under Sec.  1000.2345 with either the bureau head/Assistant 
Secretary or IBIA in accordance with this subpart. However, the Tribe/
Consortium may not avail itself to both paths for the same dispute.
    (b) Bureau head/Assistant Secretary appeal. Unless the initial 
decision being appealed is one that was made by the bureau head (those 
appeals are forwarded to the appropriate Assistant Secretary--see Sec.  
1000.2360(c), of this subpart), the bureau head will decide initial 
appeals relating to these pre-award matters, that include but are not 
limited to disputes regarding:
    (1) Eligibility to participate in self-governance;
    (2) Decisions declining to provide requested information as 
addressed in subpart H;
    (3) Allocations of program funds when a dispute arises between a 
Consortium and a withdrawing Tribe; and
    (4) Inherently Federal functions and associated funding.
    (c) IBIA. The Tribe/Consortium may choose to forego the 
administrative appeal through the bureau or the Assistant Secretary, as 
described in paragraph (b) of this section, and instead appeal directly 
to IBIA.


Sec.  1000.2355  How does a Tribe/Consortium know where and when to 
file an appeal?

    Every decision in any of the areas listed in Sec.  1000.2345 must 
contain information which shall tell the Tribe/Consortium where and 
when to file the Tribe's/Consortium's appeal. Each decision shall 
include the following statement:
    Within 30 days of the receipt of this decision, you may request 
non-binding informal alternative dispute resolution, such as an 
informal conference under Sec.  1000.2320, or file an appeal of the 
initial decision of the Department in accordance with subpart R of this 
part. Alternatively, you may file an action in Federal court pursuant 
to 25 U.S.C. 5331.


Sec.  1000.2357  Which officials is the appropriate bureau head or 
Assistant Secretary for purposes of subpart R?

    (a) Table 1 to this paragraph (a) indicates the appropriate bureau 
head, for purposes of subpart R, to whom a Tribe/Consortium may file 
its initial request for appeal when exercising its appeal rights to the 
bureau head/Assistant Secretary under Sec.  1000.2351 for any BIA 
program:

                        Table 1 to Paragraph (a)
------------------------------------------------------------------------
  Bureau whose initial decision is being
                 appealed                      Appropriate bureau head
------------------------------------------------------------------------
BIA.......................................  Director, BIA.
BIE.......................................  Director, BIE.
BTFA......................................  Director, BTFA.
The Office of the Assistant Secretary--     The Assistant Secretary for
 Indian Affairs or OSG.                      Indian Affairs.
------------------------------------------------------------------------

    (b) The appropriate Assistant Secretary for any BIA Program, for 
purposes of Sec.  1000.2370, shall be the Assistant Secretary for 
Indian Affairs.
    (c) If a Tribe/Consortium elects to exercise its appeal rights to 
the bureau head/Assistant Secretary under Sec.  1000.2351 for any non-
BIA Programs then:
    (1) The appropriate bureau head, for purposes of this subpart R, 
shall be the director of the appropriate bureau which issued the 
initial adverse decision, including the commissioner of the Bureau of 
Reclamation.
    (2) The appropriate Assistant Secretary, for purposes of this 
subpart R, shall be the Assistant Secretary who

[[Page 100285]]

oversees the appropriate non-BIA bureau which issued the initial 
adverse decision.

Appeals to Bureau Head/Assistant Secretary


Sec.  1000.2360  When and how must a Tribe/Consortium appeal an adverse 
pre-award decision to the bureau head/Assistant Secretary?

    (a) If a Tribe/Consortium wishes to exercise its appeal rights to 
the bureau head/Assistant Secretary under Sec.  1000.2351, it must make 
a written request for review to the appropriate bureau head within 30 
days of receiving the initial adverse decision or the conclusion of any 
non-binding informal alternative dispute resolution process. In 
addition, the Tribe/Consortium may request the opportunity to have a 
meeting with appropriate bureau personnel in an effort to clarify the 
matter under dispute before a formal decision by the bureau head.
    (b) The written request for review should include a statement 
describing its reasons for a review, with any supporting documentation, 
or indicate that such a statement or documentation will be submitted 
within 30 days. A copy of the request must also be sent to the Director 
of the OSG.
    (c) If the initial decision was made by the bureau head, any appeal 
shall be directed to the appropriate Assistant Secretary. If a Tribe 
does not request a review within 30 days of receipt of the decision, 
the initial decision will be final for the Department.


Sec.  1000.2365  When must the bureau head (or appropriate Assistant 
Secretary) issue a final decision in the pre-award appeal?

    Within 30 days of receiving the request for review and the 
statement of reasons described in Sec.  1000.2360, the bureau head or, 
where applicable, the appropriate Assistant Secretary must:
    (a) Issue a written final decision stating the reasons for the 
decision; and
    (b) Send the decision to the Tribe/Consortium.


Sec.  1000.2370  When and how will the Assistant Secretary respond to 
an appeal by a Tribe/Consortium?

    The appropriate Assistant Secretary will decide an appeal of any 
initial decision made by a bureau head (see Sec.  1000.2360). If the 
Tribe/Consortium has appealed the bureau's initial adverse decision of 
the bureau to the bureau head and the bureau head's decision on initial 
appeal is contrary to the Tribe's/Consortium's request for relief, or 
the bureau head fails to make a decision within 30 days of receipt by 
the bureau of the Tribe's/Consortium's initial request for review and 
any accompanying statement and documentation, the Tribe's/Consortium's 
appeal will be sent automatically to the appropriate Assistant 
Secretary for decision. The Assistant Secretary must either concur with 
the bureau head's decision or issue a separate decision within 60 days 
of receipt by the bureau of the Tribe's/Consortium's initial request 
for review and any accompanying statement and documentation. The 
decision of the Assistant Secretary is final for the Department.

Appeals to IBIA


Sec.  1000.2375   When and how must a Tribe/Consortium appeal an 
adverse pre-award decision to the IBIA?

    (a) If a Tribe/Consortium wishes to exercise its appeal rights to 
the IBIA under Sec.  1000.2351, it must file a notice of appeal to the 
IBIA within 30 days of receiving the initial decision or the conclusion 
of any non-binding informal alternative dispute resolution process.
    (b) The Tribe/Consortium may either hand-deliver the notice of 
appeal to the IBIA, or mail it by certified mail, return receipt 
requested. If the Tribe/Consortium mails the Notice of Appeal it will 
be considered filed on the date the Tribe/Consortium mailed it by 
certified mail. The Tribe/Consortium should mail the notice of appeal 
to: Interior Board of Indian Appeals, Office of Hearings and Appeals, 
U.S. Department of the Interior, 801 N Quincy Street, Suite 300, 
Arlington, VA 22203.
    (c) The Notice of Appeal must include:
    (1) A statement describing the Tribe's/Consortium's reasons for a 
review (including why the Tribe/Consortium thinks the initial decision 
is wrong and briefly identify the issues involved in the appeal);
    (2) Any supporting documentation;
    (3) If the Tribe/Consortium's Notice of Appeal does not include the 
items in paragraphs (c)(1) and (2) of this section, an indication that 
such a statement or documentation will be submitted within 30 days; and
    (4) A statement whether the Tribe/Consortium wants a hearing on the 
record, or whether the Tribe/Consortium wants to waive its right to a 
hearing.
    (d) The Tribe/Consortium must serve a copy of the notice of appeal 
upon the official whose decision it is appealing. A copy of the notice 
of appeal must also be sent to the Director of the OSG. The Tribe/
Consortium must certify to the IBIA that it has done so.
    (e) The authorized representative of the Secretary will be 
considered a party to all appeals filed with the IBIA under the Act.


Sec.  1000.2380  What happens after a Tribe/Consortium files an appeal?

    (a) Within 5 days of receiving the Tribe's/Consortium's notice of 
appeal, the IBIA will decide whether the appeal falls under Sec.  
1000.2345. If so, the Tribe/Consortium is entitled to a hearing.
    (b) If the IBIA cannot make that decision based on the information 
included in the notice of appeal, the IBIA may ask for additional 
statements from the Tribe/Consortium, or from the appropriate Federal 
agency. If the IBIA asks for more statements, it will make its decision 
within 5 days of receiving those statements.
    (c) If the IBIA decides that the Tribe/Consortium is not entitled 
to a hearing or if the Tribe/Consortium has waived its right to a 
hearing on the record, the IBIA will dismiss the appeal and inform the 
Tribe/Consortium that it is not entitled to a hearing or has waived its 
right to a hearing.


Sec.  1000.2385   What procedures apply to Interior Board of Indian 
Appeals (IBIA) proceedings?

    The IBIA may use the procedures set forth in 43 CFR 4.22 through 
4.27 as a guide.


Sec.  1000.2386  What regulations govern resolution of disputes that 
are appealed to the IBIA?

    To the extent not inconsistent with this subpart, the regulations 
at Sec. Sec.  900.159 through 900.169 of this title apply to disputes 
that are appealed to the IBIA, except that any references to the U.S. 
Department of Health and Human Services are inapplicable. For purposes 
of such appeals:
    (a) The terms ``contract'' and ``self-determination contract'' mean 
compacts and funding agreements entered into under the Act; and
    (b) The term ``Tribe'' means ``Tribe/Consortium.''


Sec.  1000.2390  Will an appeal adversely affect the Tribe's/
Consortium's rights in other compact, funding negotiations, or 
construction project agreement?

    No, a pending appeal will not adversely affect or prevent the 
negotiation or award of another compact, funding agreement, or 
construction project agreement.


Sec.  1000.2395  Will the decision on appeal be available for the 
public to review?

    Yes, the Secretary shall publish all final decisions from the 
Administrative Law Judge (ALJs) and IBIA under this

[[Page 100286]]

subpart. Decisions can be found on the Department's website.

Appeals of an Immediate Reassumption of a Self-Governance Program


Sec.  1000.2405   What happens in the case of an immediate reassumption 
under 25 U.S.C. 5366(b)?

    If the Secretary immediately reassumes a program under Sec.  
1000.1750, the Secretary must comply with Sec. Sec.  1000.2410 through 
1000.2430.


Sec.  1000.2410  Will there be a hearing?

    Yes, unless the Tribe/Consortium waives its right to a hearing in 
writing. The Deputy Director of the Office of Hearings and Appeals must 
appoint an ALJ to hold a hearing.
    (a) The hearing must be held within 10 days of the date of the 
notice referred to in Sec.  1000.1750 unless the Tribe/Consortium 
agrees to a later date.
    (b) If possible, the hearing will be held at the office of the 
Tribe/Consortium. The parties may agree to an alternative meeting place 
or forum, including but not limited to telephonic or virtual meeting 
forums. If the hearing is held more than 50 miles from the office of 
the Tribe/Consortium, the Secretary must arrange to pay transportation 
costs and per diem for incidental expenses. This will allow for 
adequate representation of the Tribe/Consortium.


Sec.  1000.2415  What happens after the hearing?

    (a) Within 30 days after the end of the hearing or any post-hearing 
briefing schedule established by the ALJ, the ALJ must send all parties 
a recommended decision by certified mail, return receipt requested. The 
recommended decision shall contain the ALJ's findings of fact and 
conclusions of law on all the issues. The recommended decision must 
also state that the Tribe/Consortium has the right to object to the 
recommended decision.
    (b) The recommended decision must contain the following statement:
    Within 15 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the IBIA under 25 
CFR 1000.2420. An appeal to the IBIA under shall be filed at the 
following address: Interior Board of Indian Appeals, Office of Hearings 
and Appeals, U.S. Department of the Interior, 801 N Quincy Street, 
Suite 300, Arlington, VA 22203. You shall serve copies of your notice 
of appeal on the Secretary of the Interior, and on the official whose 
decision is being appealed. You shall certify to the IBIA that you have 
served these copies. If neither party files an objection to the 
recommended decision within 15 days, the recommended decision will 
become final.


Sec.  1000.2420  Is the recommended decision always final?

    No, any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 
15 days of receiving the recommended decision. The objecting party must 
serve a copy of its objections on the other party. The recommended 
decision will become final 15 days after the Tribe/Consortium receives 
the ALJ's recommended decision, unless a written statement of objection 
is filed with the IBIA during the 15-day period. If no party files a 
written statement of objections within 15 days, the recommended 
decision will become final.


Sec.  1000.2425  If a Tribe/Consortium objects to the recommended 
decision, what action will the IBIA take?

    (a) The IBIA has 15 days from the date the Secretary receives 
timely written objections to modify, adopt, or reverse the recommended 
decision. If the IBIA does not modify or reverse the recommended 
decision during that time, the recommended decision automatically 
becomes final.
    (b) When reviewing the recommended decision, the IBIA may consider 
and decide all issues properly raised by any party to the appeal, based 
on the record.
    (c) The decision of the IBIA must:
    (1) Be in writing;
    (2) Specify the findings of fact or conclusions of law that are 
modified or reversed;
    (3) Give reasons for the decision, based on the record; and
    (4) State that the decision is final for the Department.


Sec.  1000.2430  Will an immediate reassumption appeal adversely affect 
the Tribe's/Consortium's rights in other self-governance negotiations?

    No, a pending appeal will not adversely affect or prevent the 
negotiation or award of another compact, funding agreement, or 
construction project agreement.

Equal Access to Justice Act


Sec.  1000.2435  Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?

    Yes. EAJA claims against the Department will be heard under 48 CFR 
6101.30, 6101.31 (CBCA) and 43 CFR 4.602, 4.604 through 4.628 
(Department) and under the Equal Access to Justice Act, 5 U.S.C. 504 
and 28 U.S.C. 2412.

Subparts S--Conflicts of Interest


Sec.  1000.2501  Is a Tribe/Consortium required to have policies in 
place to address conflicts of interest?

    Yes.
    (a) A Tribe/Consortium participating in self-governance must ensure 
that internal measures are in place to address, pursuant to Tribal law 
and procedures, conflicts of interest in the administration of programs 
carried out under a compact and funding agreement.
    (b) The Tribe/Consortium and the Secretary may agree that using the 
Tribe's/Consortium's own written code of ethics satisfies the 
objectives of the personal conflicts and organizational conflicts 
provisions of this subpart, in whole or in part.
    (c) When the Secretary and the Tribe/Consortium agree to use the 
Tribe's/Consortium's written codes or measures, the funding agreement 
will reflect that and the agreed-upon provisions shall be followed, 
rather than the related provisions of this subpart.


Sec.  1000.2505  What is an organizational conflict of interest?

    (a) An organizational conflict of interest arises when, in the 
administration of programs performed under a compact or funding 
agreement subject to this part, there is a direct conflict between the 
financial interests of the Tribe/Consortium and:
    (1) The financial interests of beneficial owners of Indian trust 
resources;
    (2) The financial interests of the United States relating to trust 
resources, trust acquisitions, or lands conveyed or to be conveyed 
under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.; 
or
    (3) An express statutory obligation of the United States to third 
parties. This section only applies if the conflict was not addressed 
when the funding agreement was first negotiated.
    (b) This section only applies where the financial interests of the 
Tribe/Consortium are significant enough to impair the Tribe's/
Consortium's objectivity in carrying out the funding agreement, or a 
portion of the funding agreement.


Sec.  1000.2510  What must a Tribe/Consortium do if an organizational 
conflict of interest arises under a funding agreement?

    This section only applies if the conflict was not addressed when 
the funding agreement was first negotiated. When a Tribe/Consortium 
becomes aware of an organizational conflict of interest, the Tribe/
Consortium must

[[Page 100287]]

immediately disclose the conflict to the Secretary.


Sec.  1000.2515  When must a Tribe/Consortium regulate its employees or 
subcontractors to avoid a personal conflict of interest?

    A Tribe/Consortium must maintain written standards of conduct, 
pursuant to Tribal law and procedures, to govern officers, employees, 
and agents (including subcontractors) engaged in functions related to 
the management of trust assets performed under a compact and funding 
agreement subject to this part.


Sec.  1000.2520  What types of personal conflicts of interest involving 
Tribal officers, employees, or subcontractors would have to be 
regulated by a Tribe/Consortium?

    The Tribe/Consortium must ensure that internal measures are in 
place that specify that no officer, employee, or agent (including a 
subcontractor) of the Tribe/Consortium reviews a trust transaction in 
which that person has a financial or employment interest that conflicts 
with that of the trust beneficiary, whether the beneficiary is the 
Tribe/Consortium or an allottee. Interests arising from membership in, 
or employment by, a Tribe/Consortium or rights to share in a Tribal 
claim need not be regulated.


Sec.  1000.2525  What personal conflicts of interest must the standards 
of conduct regulate?

    The personal conflicts of interest standards, established pursuant 
to Tribal law and procedures, must:
    (a) Prohibit an officer, employee, or agent (including a 
subcontractor) from participating in the review, analysis, or 
inspection of trust transactions involving an entity in which such 
persons have a direct financial interest or an employment relationship;
    (b) Prohibit such officers, employees, or agents from accepting any 
gratuity, favor, or anything of more than nominal value, from a party 
(other than the Tribe/Consortium) with an interest the trust 
transactions under review; and
    (c) Provide for sanctions or remedies for violation of the 
standards.

Subpart T--Tribal Consultation Process


Sec.  1000.2601  What is the purpose of this subpart?

    (a) This subpart describes the process for engaging in 
consultations related to self-governance with Tribes/Consortia.
    (b) The Tribal Consultation Process for self-governance matters 
described in this subpart is intended to apply to consultations 
commencing after the effective date of this rule and supersedes 
previous self-governance consultation processes used by the Secretary.


Sec.  1000.2605  When does the Secretary consult with Tribes and 
Consortia on matters related to self-governance?

    On matters related to self-governance, the Secretary shall consult:
    (a) To determine which programs are eligible for negotiation to be 
included in a funding agreement at the request of a participating 
Tribe/Consortium;
    (b) To establish programmatic targets to encourage the Department's 
bureaus to ensure that an appropriate portion of non-BIA programs are 
available to be included in funding agreements;
    (c) On any Secretarial Action with Tribal Implications, provided 
that the Secretary incorporate input and requests from Tribes and 
Consortia on topics for consultation.


Sec.  1000.2610  What principles should guide consultations with Tribes 
and Consortia?

    To the extent practical and not prohibited by law, consultations 
with self-governance Tribes/Consortia should satisfy the following 
principles:
    (a) Consultation recognizes Tribal sovereignty and the Nation-to-
Nation relationship between the United States and Tribes and Consortia 
and acknowledges that the United States holds treaty and trust 
responsibilities to Tribes and Consortia.
    (b) Consultation is a two-way Nation-to-Nation exchange of 
information and dialogue between official representatives of the United 
States and Tribes and Consortia.
    (c) Consultation session methods may include, but are not limited 
to, in-person meetings, video conferences, teleconferences, and 
correspondence to discuss a specific issue, and must identify the 
session as consultation in advance of the scheduled meeting.
    (d) Consultation should include both the elected or appointed 
official of the Tribe, acting in the official capacity as the leader of 
the Tribe or Consortia, or designee of the elected or appointed 
representative, and the Departmental official with authority to decide 
on the proposed Departmental Action with Tribal Implications, or 
designee.
    (e) The Secretary shall make good faith efforts to invite Tribes 
and Consortia to consult early in the planning process and throughout 
the decision-making process and engage in robust, interactive, pre-
decisional, informative, and transparent consultation when planning 
actions with Tribal implications.
    (f) The Secretary should give meaningful consideration to 
information obtained during consultation with Tribes and Consortia.
    (g) The Secretary should strive for consensus with Tribes and 
Consortia through consultation or a mutually desired outcome. It is the 
policy of the Department to seek consensus with Tribes and Consortia.
    (h) Consultation will ensure that applicable information is readily 
available to Tribes and Consortia.
    (i) Consultation will ensure that officials from Tribes and 
Consortia and Federal officials have adequate time to communicate.
    (j) Consultation will ensure that Tribes and Consortia are advised 
as to how their input influenced the Department's decision-making.


Sec.  1000.2615  What notice must the Secretary provide to Tribes and 
Consortia of an upcoming consultation?

    (a) The Secretary shall issue a notice of consultation which 
includes:
    (1) Sufficient information on the topic to be discussed, in an 
accessible language and format, and context for the consultation topic, 
to facilitate meaningful consultation;
    (2) Identification of a timeline of the process and possible 
outcomes for Departmental action under consideration;
    (3) The date, time, and location of the consultation;
    (4) If consulting virtually or by telephone, links to join or 
register in advance;
    (5) An explanation of any time constraints known to the Department 
at that time;
    (6) Deadlines for Tribes and Consortia to submit written comments 
on the topic; and
    (7) The names and contact information for Departmental staff who 
can provide additional information on the consultation.
    (b) The Secretary shall provide notice of at least 30 days to 
Tribes and Consortia of any planned consultation sessions.
    (c) The Secretary shall distribute such notice under this section 
to each Tribe/Consortium through:
    (1) Email to a point of contact for each Tribe and Consortium; and
    (2) Posting the notice on the website for the Department and/or 
OSG.
    (d) The Secretary should, to the greatest extent practical, provide 
appropriate, available information on the subject of consultation 
including, where consistent with applicable law, a proposed agenda, 
framing paper, and other relevant documents to assist in the 
consultation process.

[[Page 100288]]

Sec.  1000.2620  Is the Secretary required to allow written comments by 
Tribes and Consortia following a consultation?

    Yes. The Secretary shall allow for a written comment period 
following the consultation of at least 30 days, unless otherwise 
directed by law.


Sec.  1000.2625  What record must the Secretary maintain following a 
consultation with Tribes and Consortia?

    (a) The Secretary shall maintain a record of a consultation with 
Tribes or Consortia that includes:
    (1) A summary of Tribal or Consortia input received;
    (2) A general explanation of how Tribes or Consortia input 
influenced or was incorporated into the agency action; and
    (3) If relevant, the general reasoning for why suggestions from 
Tribes or Consortia were not incorporated into the agency action or why 
consensus could not be attained.
    (b) The Secretary shall timely disclose the outcome of a 
consultation and decisions made as a result of the consultation.
    (c) The record of consultation does not waive any privilege or 
other exception to disclosure pursuant to the Freedom of Information 
Act or its implementing regulations.


Sec.  1000.2630  How must the Secretary handle confidential or 
sensitive information provided by Tribes and Consortia during a 
consultation?

    Prior to a consultation, the Secretary shall inform Tribes and 
Consortia of those Federal laws, including the Freedom of Information 
Act, that may require disclosure of information provided by the self-
governance Tribe/Consortium during a consultation. To the extent 
permitted by applicable law, the Secretary shall ensure that such 
information designated as confidential or sensitive by a Tribe or 
Consortium is not publicly disclosed. The Department should obtain 
advance informed consent from Tribes/Consortia for the use of 
confidential or sensitive information provided, and should inform 
Tribal representatives that certain Federal laws, including the Freedom 
of Information Act, may require disclosure of such information.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2024-28302 Filed 12-9-24; 8:45 am]
BILLING CODE 4337-15-P