100228 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 1000 

[Docket No. BIA–2024–0001; 256A2100DD/ 

AAKC001030/A0A501010.999900] 

RIN 1076–AF62 

Self-Governance PROGRESS Act 

Regulations 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of the 

Interior (Department), Office of the 

Assistant Secretary for Indian Affairs, is 

issuing revisions to the regulations that 

implement Tribal Self-Governance, as 

authorized by title IV of the Indian Self 

Determination and Education 

Assistance Act. This final rule has been 

negotiated among representatives of 

Self-Governance and non-Self 

Governance Tribes and the Department. 

DATES: This final rule is effective on 

January 10, 2025. 

• Information Collection 

Requirements: If you wish to comment 

on the information collection 

requirements in this final rule, please 

note that the Office of Management and 

Budget (OMB) is required to make a 

decision concerning the collection of 

information contained in this final rule 

between 30 and 60 days after 

publication in the Federal Register. 

Therefore, comments should be 

submitted to OMB (see ‘‘Information 

Collection Requirements’’ section below 

under ADDRESSES) by January 10, 2025. 

ADDRESSES: The Department has 

established a docket for the information 

collection action associated with this 

rule available at https://

www.regulations.gov and by searching 

for Docket No. ‘‘BIA–2024–0001’’ or RIN 

‘‘1076–AF62.’’ 

• Information Collection 

Requirements: Written comments and 

recommendations for the information 

collection request (ICR) should be sent 

within 30 days of publication of this 

notice to the OMB through https://

www.reginfo.gov/public/do/PRA/ 

icrPublicCommentRequest?ref_

nbr=202410-1076-001 or by visiting 

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

PRAMain and selecting ‘‘Currently 

under Review—Open for Public 

Comments’’ and then scrolling down to 

the ‘‘Department of the Interior.’’ Please 

provide a copy of your comments to the 

Department by email to consultation@

bia.gov with ‘‘OMB Control Number 

1076–0143’’ in the email’s subject line. 

FOR FURTHER INFORMATION CONTACT: 

Oliver Whaley, Director, Office of 

Regulatory Affairs and Collaborative 

Action (RACA), Office of the Assistant 

Secretary—Indian Affairs, Department 

of the Interior, telephone (202) 738– 

6065, RACA@bia.gov. Individuals in the 

United States who are deaf, deafblind, 

hard of hearing, or have a speech 

disability may dial 711 (TTY, TDD, or 

TeleBraille) to access 

telecommunications relay services. 

SUPPLEMENTARY INFORMATION: This final 

rule is published in exercise of authority 

delegated by the Secretary of the Interior 

(Secretary) to the Assistant Secretary— 

Indian Affairs (Assistant Secretary; AS– 

IA) by 209 Department Manual 8 (209 

DM 8). 

Table of Contents 

I. Background 

A. Statutory Authority 

B. Executive Summary 

C. Negotiated Rulemaking Process 

II. Public Engagement and Consultation 

III. Summary of Comments Received 

A. General Comments 

B. Section Comments 

C. Use of Received Feedback 

IV. Summary of Subparts and Changes by 

Section 

A. Subpart A—General Provisions 

B. Subpart B—Selection of Additional 

Tribes for Participation in Tribal SelfGovernance 

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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100229 

1An 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. 

Health Service (IHS) promulgated its 

title V regulations in 2005, the agencies 

implement their ISDEAA selfgovernance 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 SelfGovernance, 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 SelfGovernance 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 inperson 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 interTribal 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 nonconsensus issues, detailed in the 

Committee Report dated April 12, 2024 

(Committee Report). The main themes 

addressed in the comments were: 

• 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 selfgovernance 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 selfgovernance 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 


lotter on DSK11XQN23PROD with RULES4
100230 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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 selfgovernance 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 selfgovernance, 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 selfdetermination 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100231 

IFFs is untenable given the goals and 

objectives outlined in E.O. 14112 and 

S.O. 3403, noting that in the 

commentor’s experience, negotiating 

transferrable programs and activities is 

the lengthiest portion of the process due 

to the fact that agencies are often 

unwilling to acknowledge or accept 

Tribal or consortia capacity and 

traditional ecological knowledge. 

Another commentor stated that Tribal 

traditional ecological knowledge has 

been left out of the regulations. 

Many commentors noted that the 

PROGRESS Act was the direct result of 

Congress acknowledging that there 

needed to be an overhaul of title IV to 

correct bureaucratic processes and 

procedures that the Department 

imposed that either discouraged or 

hindered negotiations between Tribes 

and the Department. Many commentors 

asserted that the Indian canons of 

construction should be applied during 

Tribal consultation activities, and any 

ambiguities in law or policy should be 

interpreted in favor of Tribes in 

accordance with E.O. 13175, Sec. 6, and 

E.O. 14112, section 5. Commentors 

urged the Department to take these 

directives into account when 

developing the final rule. One 

commentor noted that Department 

negotiators often take an expansive 

interpretation of what functions are 

Inherently Federal with the objective to 

preserve work and jobs for Federal 

employees at the expense of Tribal 

autonomy and self-governance 

objectives. Another commentor noted 

that E.O. 14112 aims to increase 

flexibility by reducing administrative 

burdens and facilitating access to 

federal funding and resources. 

Many commentors stated that the 

Tribal representatives’ position that the 

PROGRESS Act permits Tribes/ 

Consortium to make final 

determinations under NEPA and related 

environmental laws are firmly grounded 

in E.O. 14112. A commentor stated that 

the Tribal position concerning 

environmental determinations under 

NEPA is consistent with CEQ’s revised 

regulations, 40 CFR part 1500 et seq., 

that went into effect on July 1, 2024. A 

commentor noted that the Department’s 

position is a step back for selfgovernance and fundamentally at odds 

with the most basic tenets of Tribal selfgovernance policy. A commentor stated 

that sound policy considerations by the 

Department, including adherence to 

E.O. 14112, can lead the Department to 

issue a final rule that decreases 

litigation risk and the attendant 

ramifications. 

Throughout the comments, there were 

repeated instances where Tribes 

suggested improvements to the language 

of the proposed rule that would further 

implement the intent of E.O. 13175, E.O. 

14112, and S.O. 3403. The Committee 

considered all the comments and 

implemented many of the suggestions. 

The Committee made changes to the 

final rule to define when and how 

Indigenous Knowledge can be used 

(§ 1000.20 and § 1000.1390), significant 

updates to the appeals process to give 

Tribes more options subpart R 

(Appeals), updates to how Public Law 

102–477 is referenced, and changes to 

subpart G (Funding Agreements for 

Non-BIA Programs) related to clarifying 

CSCs. 

There were also areas where 

commentors made suggestions to change 

the proposed rule, citing E.O. 14112, but 

after review by the Committee those 

changes were not implemented. This 

includes proposed changes related to 

clarifying whether IFFs can be 

negotiated (§ 1000.695) and requests to 

add additional sections to subpart K 

(Construction). The Department 

acknowledges these comments and 

further explains below why the changes 

were not implemented. 

The Department is committed to 

upholding the federal government’s 

trust and treaty obligations as reiterated 

in E.O. 13175, E.O. 14112, and S.O. 

3403. The Department is dedicated to 

ensuring that Tribes are able to exercise 

sovereignty though self-governance and 

self-determination by ensuring that 

Federal programs, to the maximum 

extent possible and practicable under 

Federal law, provide Tribal Nations 

with the flexibility to improve economic 

growth, address the specific needs of 

their communities, and realize their 

vision for their future. 

The Department is appreciative of the 

work of the Tribal members on the 

negotiated rulemaking committee as 

well as all of the Tribal engagement 

throughout the rulemaking process. This 

final rule reflects the good faith 

collaboration between the federal 

government and Tribal governments. 

Comments on the Rules of Construction 

Many Tribal commentors underscored 

the rules of construction within the 

PROGRESS Act, at sections 406 and 

409. Tribal commenters read those 

sections to require liberal interpretation 

of the language in the statute, and 

therefore the contents of its regulations. 

Specifically, they note that ambiguities 

should be resolved in favor of the 

compacting Tribes/Consortiums and 

that the PROGRESS Act must be 

implemented in a manner that facilitates 

inclusion of programs in the Tribal SelfGovernance program. 

The liberal interpretation comments 

are intended to be overarching and 

suggest that, with respect to the nonconsensus 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 comanagement 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. 


lotter on DSK11XQN23PROD with RULES4
100232 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

Comment on the Federal Regulations 

One comment suggested revisiting 

federal regulations to allow Tribes the 

ability to develop infrastructure within 

their lands, which has aged and needs 

replacement with modernized 

equipment to meet future demands and 

avoid potential impact on the Tribe’s 

public safety and health. 

The Committee acknowledges the 

comment. Under subpart K 

(Construction), this final rule provides 

that the Secretary may accept funds 

from other departments for construction 

projects or programs, subject to an 

interagency agreement, between the 

Secretaries, with Tribal concurrence. 

Comments in General 

Numerous commentors thanked the 

Committee for their work in coming to 

consensus on most of the areas at issue 

in the PROGRESS Act. However, they 

noted a desire for the Department to 

lean towards the Tribal positions on 

areas of non-consensus to advance 

Tribal self-governance and comply with 

the intent of the PROGRESS Act. 

The Department acknowledges these 

comments as federal members 

committed themselves to participate in 

good faith during all negotiations and 

discussions. 

Comments on the Publication of Final 

Rule 

Numerous comments asked the 

Department to ensure that the rule be 

published before the sunset date of 

December 21, 2024. 

The Department is committed to 

publishing the final rule before this 

deadline. 

Comments on the Department’s 

Handling of Trust Responsibility 

A few comments noted that the 

Department does not always handle 

well the conflicts of interest that exist 

between its bureaus and its trust 

responsibility to Tribes and their 

members. Despite the PROGRESS Act’s 

clear mandate that the Secretary does 

not waive, modify, or diminish, in any 

way, the trust responsibility to Tribes 

and individual Indians, and its 

obligation to empower Tribes, too often 

the interest of non-BIA bureaus take 

precedence over the ever-growing needs 

of Indigenous peoples. 

The Department acknowledges these 

comments. The Department is 

committed to ensuring that the trust and 

treaty responsibilities owed to Tribes is 

met. The effect of this final rule is to 

transfer to participating Tribes control 

of, funding for, and decision making 

concerning certain Federal programs, 

consistent with updates contained in 

the PROGRESS Act. 

B. Subpart Comments 

Subpart A—General Provisions 

Comments on § 1000.10—What is the 

purpose and scope of this part? 

A few comments were received that 

these provisions of title IV do not 

govern any other program of selfgovernance other than under title IV and 

do not bind any other cabinet Secretary 

or agency other than the Secretary of the 

Interior. 

While the rule does incorporate terms 

and processes that may be common to 

self-governance at HHS authorized by 

title V of the ISDEAA, and DOT 

authorized by 23 U.S.C. 207, it is not the 

intent of this rule to define or regulate 

any term or process that is applicable to 

HHS or DOT, even where such terms or 

processes are common between the 

agencies. The rule should not be 

construed to bind HHS or DOT to any 

particular interpretation of a term or 

process. 

Comments on § 1000.15—What is the 

congressional policy statement of this 

part? 

The Committee received comments 

concerning the congressional policy 

statement. After deliberations by the 

Committee, it was the consensus of the 

Committee to revise § 1000.15(c)(2) to 

replace the phrase ‘‘create consistency 

and administrative efficiencies between 

title IV and title V of Public Law 93– 

638’’ with the phrase ‘‘create similarities 

and administrative efficiencies between 

title IV and title V of Public Law 93– 

638’’ to more accurately reflect the 

content of the final rule. 

Comments on § 1000.20—What is the 

Secretarial policy of this part? 

Several comments were received that 

the final rule at § 1000.20 should fully 

implement the rules of construction 

required by the PROGRESS Act. While 

§ 1000.20 incorporates elements of these 

provisions, section 406(i), of the 

PROGRESS Act, 25 U.S.C. 5366(i), 

directs that, subject to section 101(a) of 

the PROGRESS Act, 25 U.S.C. 5361(a) 

note, ‘‘each provision of this subchapter 

[title IV] and each provision of a 

compact or funding agreement shall be 

liberally construed [by the Secretary] for 

the benefit of the Indian Tribe 

participating in self-governance, and 

any ambiguity shall be resolved in favor 

of the Indian Tribe.’’ This interpretation 

is not set out with clarity in § 1000.20. 

The Committee agreed with the 

comments and accepted most of the 

language offered in the final rule. This 

will support the Department in its 

efforts to maximize implementation of 

the Self-Governance Policy and carry 

out title IV. 

Comments on § 1000.35—What happens 

if a court holds any provisions of these 

regulations in this part invalid? 

The Department added a new section 

§ 1000.35 on severability. While this 

rule is intended to create streamlined 

and consistent processes for SelfGovernance 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 SelfGovernance 

Comment on § 1000.178—[Section Does 

Not Exist in the Proposed Rule] 

See comment on subpart H 

(Negotiation Process)—§ 1000.1075— 

When does the funding agreement 

become effective? 

Subpart C—Planning and Negotiation 

Grants for BIA Programs 

Comments on § 1000.301—[Section 

Does Not Exist in the Proposed Rule] 

See comment on subpart K 

(Construction)—§ 1000.1301—What key 

construction terms do I need to know? 

Subpart D—Financial Assistance for 

Planning and Negotiation Activities for 

Non-BIA Bureau Programs 

The Committee did not receive 

comments related to this subpart. 

Subpart E—Compacts 

Comments on § 1000.510—What is 

included in a self-governance compact? 

And § 1000.515—What provisions must 

be included in either a compact or 

funding agreement? 

The Committee did not come to 

agreement on § 1000.510(e) and 

§ 1000.515. The central focus of the 

concerns regarded satisfying the 

requirements of 25 U.S.C. 5365(a), 

which provides that ‘‘[a]n Indian Tribe 

and the Secretary shall include in any 

compact or funding agreement 

provisions that reflect the requirements 

of this title,’’ i.e., title IV of the ISDEAA, 

addressing Tribal Self-Governance. The 

view of the Tribal team and many Tribal 

comments is that simplified Tribal 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100233 

assurances included in a compact and/ 

or funding agreement that provide that 

the Tribe/Consortium will comply with 

the requirements of title IV is sufficient 

to satisfy the statutory requirement in 25 

U.S.C. 5365(a). Many Tribal comments 

stated that the Department’s 

interpretation of 25 U.S.C. 5365 

undermines compact negotiations and is 

contrary to the PROGRESS Act and the 

intent of Congress in the PROGRESS Act 

to streamline regulations and the 

content of compacts and funding 

agreements. 

The Tribal view is that the 

requirements of title IV can be better 

reflected through regulatory language 

that states that the Tribe/Consortium, in 

either their compact or funding 

agreement, will attest to compliance 

with title IV, or otherwise state that they 

will carry out the compact or funding 

agreement ‘‘in accordance with the 

requirements of title IV.’’ The Tribal 

view is that § 1000.510(e) and 

§ 1000.515 are excessive and not 

properly tailored to reflect the 

requirements of title IV. 

Several Tribal comments objected to 

§ 1000.510(e) and § 1000.515, and 

recommended those provisions be 

deleted. These comments considered 

detailed compliance provisions in a 

compact or funding agreement to be 

overburdensome, unnecessary, 

excessive, unproductive to the goodfaith negotiation process, and likely to 

cause delays. These comments similarly 

noted the potential of these provisions 

to lead to dispute resolution or 

litigation. Instead, the Tribal comments 

recommended that compacts or funding 

agreements contain an attestation 

affirming compliance in accordance 

with the requirements of the PROGRESS 

Act. The Tribal comments 

recommended such attestation to 

streamline negotiation and 

administrative processes and to comply 

with the PROGRESS Act’s rules of 

construction and liberal interpretation, 

and with the Paperwork Reduction Act. 

The Department view is that relevant 

provisions of the PROGRESS Act 

indicate certain provisions or language 

must be included in a funding 

agreement or a compact. For example, 

25 U.S.C. 5366(b)(1) directs that ‘‘[a] 

compact or funding agreement shall 

include provisions for the Secretary to 

reassume a program and associated 

funding if there is specific finding 

relating to that program. . . .’’ As 

another example, 25 U.S.C. 5363(e)(2) 

authorizes the parties to specify an 

effective date for retrocession to 

‘‘. . .become effective on the date 

specified by the parties in the compact 

or funding agreement.’’ 

The Department view is informed by 

experience when encountering a 

problem in the execution of a compact 

or funding agreement. In such situation, 

a primary question involves clarifying 

the agreed upon terms of the compact or 

funding agreement as to a particular 

outcome. For example, in a dispute 

about retrocession, the first area 

reviewed is what does the compact or 

funding agreement say about 

retrocession. Also, non-parities with an 

interest to the compact or funding 

agreement, such as auditors, inspectors, 

courts of jurisdiction, other federal 

agencies, etc., would benefit from 

clearly stated provisions rather than 

from a general attestation. The 

Department believes that clearly 

specifying terms in a compact and 

funding agreement best addresses the 

expectations and interests of both 

parties. The Department does not 

anticipate that the requirements in 

§ 1000.510(e) and § 1000.515 will 

require new edits to most existing 

compacts or funding agreements. The 

Federal team expects that most existing 

compacts and funding agreements 

satisfy the requirements in § 1000.510(e) 

and § 1000.515 if those compacts or 

funding agreements restate applicable 

statutory requirements for the specified 

topics referenced in § 1000.515. The 

Committee did not reach consensus on 

the language in § 1000.510(e) and 

§ 1000.515 because the Tribal committee 

members did not agree with the 

Department’s underlying interpretation 

of 25 U.S.C. 5365(a). The final rule 

reflects the Federal view on this matter. 

Subpart F—Funding Agreements for 

BIA Programs 

Comments on § 1000.610—What must 

be included in a funding agreement? 

See the comments, discussion, and 

response above in subpart E (Compacts). 

The Committee did not agree on this 

matter and the final rule reflects the 

Federal view at § 1000.610(b). 

Comments on § 1000.690—How does 

BIA determine the funding amount to 

carry out inherent Federal functions? 

Commentors stated their support for 

the proposed language in 

§ 1000.690(f)(1), reiterated the 

importance of consistency and 

uniformity within BIA Regions, and 

referenced previous situations in which 

Tribes feel that BIA took an expansive 

interpretation of IFFs and the associated 

programs funds to fulfill them and thus 

reduced the amount of contractable or 

compactable funds available to Tribes/ 

Consortium. 

The Committee acknowledges these 

comments as the language in proposed 

rule addresses this concern by requiring 

‘‘uniformity and consistency in the 

identification of inherent Federal 

functions.’’ 

Comments on § 1000.695—Is the 

amount of funds withheld by the 

Secretary to cover the cost of inherent 

Federal functions subject to negotiation? 

Several commentors supported the 

views and regulatory text articulated in 

the Committee’s Report on proposed 

§ 1000.695, further requesting changes 

to the proposed rule, to state generally 

that IFFs are a permissible topic of 

discussion during the negotiation 

process. 

The Committee acknowledges these 

comments and declines to make the 

requested changes. The Department 

believes that the breadth of negotiation 

topics is adequately set out in the final 

rule. 

Subpart G—Funding Agreements for 

Non-BIA Programs 

Comments on § 1000.845—Are there 

any non-BIA programs that may not be 

included in a funding agreement? 

Tribal comments urged the 

Department to revise proposed 

§ 1000.845 to include a core principle of 

the Leshy Memorandum. Many 

commentors agreed and asserted that 

providing transparent guidance would 

aid negotiators of non-BIA agreements 

and reflect compliance with the 

Supreme Court opinion in U.S. v 

Mazurie, 419 U.S. 544 (1975). 

Commentors asserted that inclusion in 

the regulations of this basic principle 

would help provide parity between 

Tribal and Federal representatives when 

negotiating agreements and would 

advance fundamental Self-Governance 

objectives. 

The Department acknowledges the 

comments and did not accept the 

recommendation to revise § 1000.845. 

The Department will apply the 

principles of the Leshy Memorandum 

on a case-by-case basis when 

determining whether a function 

requested for inclusion in the funding 

agreement by a participating Tribe/ 

Consortium is an IFF. The section 

references the PROGRESS Act’s 

definition of IFF, 25 U.S.C. 5361(6), and 

the requirement in 25 U.S.C. 5363(k) 

that directs how the Department 

evaluates such issues. 

Some Tribal commentors expressed 

previous difficulties in negotiating IFFs 

with particular agencies. Another Tribal 

comment disagreed with the federal 

assessment that formal adoption of the 


lotter on DSK11XQN23PROD with RULES4
100234 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

Leshy Memorandum would result in 

additional administrative process. 

The Committee acknowledges these 

comments as § 1000.845 addresses what 

may not be included in a funding 

agreement. 

Two comments on specific agency 

decisions on IFF positions do not go to 

the regulation. These comments were 

forwarded to the relevant agency to 

consider. 

Comments on § 1000.885—What funds 

are included in a non-BIA funding 

agreement? 

Many commentors urged the 

Department to revise proposed 

§ 1000.885(b)(iii) to ensure that Tribes/ 

Consortia receive full CSCs under 

section 106(a) of the PROGRESS Act, 25 

U.S.C. 5325, including direct CSCs. 

Commentors requested the Department 

to insert the citation in the proposed 

section and strike the reference to 

congressional appropriations. The 

Department acknowledges the 

comments. As concerns section 403(c) 

programs, 25 U.S.C. 5363(c), eligible for 

inclusion in a funding agreement under 

the PROGRESS Act, the proposed 

section stated that the funding 

agreement will include the following: (i) 

amounts equal to the direct program or 

project costs the bureau would have 

incurred were it to operate that program 

at the level of work mutually agreed to 

in the funding agreement; (ii) allowable 

indirect costs; and (iii) such amounts as 

the Tribe/Consortium and the Secretary 

may negotiate for pre-award, start-up, 

and direct contract support costs, or 

upon appropriations by Congress. 

Many commentors took issue with the 

phrase ‘‘or upon appropriations of such 

funds by Congress’’ reflected in 

proposed § 1000.885(b)(1)(iii). 

Commentors believed that the reference 

to Congressional appropriations will 

deprive Tribes/Consortia of their full 

CSC funds, place a financial burden on 

Tribes/Consortia, and serve as a 

deterrent to their negotiating the 

inclusion of such programs in compacts 

and funding agreements. 

After review of the comments and 

further deliberations by the Committee, 

the Department accepts the 

recommendation. The final rule 

§ 1000.885(b)(1)(iii) states that non-BIA 

bureaus determine the amount of 

funding to be included in the funding 

agreement using the following 

principles: (iii) Such amounts as the 

Tribe/Consortium and the Secretary 

may negotiate for pre-award, start-up, 

and direct CSCs. 

Comment on § 1000.895—How does the 

Secretary determine the amount of 

indirect costs? 

A comment was received asking the 

Committee to clarify this question by 

adding non-BIA funding to the question 

and initial part of the response and by 

adding ‘‘and making other adjustments 

required by the PROGRESS Act’’ to the 

end of § 1000.895(a). 

The Committee agreed with this 

comment and implemented the 

proposed change into the final rule. 

Subpart H—Negotiation Process 

Comment on § 1000.1075—When does 

the funding agreement become 

effective? 

One comment referenced § 1000.178. 

This comment addressed eliminating 

the 2001 prior rule for self-governance 

at § 1000.178 that required once a 

funding agreement is signed, the 

effective date would be 90 days after it 

is submitted to the House Subcommittee 

on Native Americans and Insular Affairs 

and the Senate Committee on Indian 

Affairs. This requirement to submit the 

funding agreement to the Congressional 

committees was eliminated in the 

PROGRESS Act and therefore not 

addressed in this rule. The final rule at 

§ 1000.1075 makes a funding agreement 

effective on the date it is executed or 

otherwise begins according to the 

agreement terms. 

The Committee acknowledges the 

comment with no further changes to this 

subpart. 

Subpart I—Final Offer 

The Committee did not receive 

comments related to this subpart. 

Subpart J—Waiver of Regulations 

Comments on § 1000.1240—When must 

the Secretary make a decision on a 

waiver request? 

Two commenters pointed out that the 

Department has two statutory provisions 

that authorize Tribes to request waivers 

using a set timeline for the Secretary’s 

consideration of the waiver, 25 U.S.C. 

5363(i)(2)(A) (provides 60-day review 

period) and 25 U.S.C. 5369(b) (provides 

120-day review period). The comment 

pointed out that the proposed 

regulations do not reference either 

statutory provision, and the process 

calls for a 120-day review period, which 

tracks with the language at 25 U.S.C. 

5369(b). 

The final rule describes the timeline 

for the Secretary to make a waiver 

decision for Tribes in § 1000.1240 as the 

120-day decision review period. The 

Committee determined to select the 120- 

day timeline to follow, as it was most 

closely applicable to title IV. The 

Committee assumed that the conflict in 

the statutory provisions was a drafting 

mistake that occurred when the 

PROGRESS Act was developed. The 

Committee believes this issue can be 

addressed at a later date through a 

technical correction or an amendment 

that affirms the correct statutory 

provision is 25 U.S.C. 5369(b)(2). 

Subpart K—Construction 

Several comments expressed the view 

that making final determinations under 

NEPA is not an inherently federal 

function and should be contractable by 

Tribes/Consortia that comply with 25 

U.S.C. 5367(b). These views referred to 

section 5367(b) that, subject to an 

agreement with the Secretary as limited 

by 25 U.S.C. 5367(c), requires a Tribe/ 

Consortium electing to assume some 

Federal responsibilities under NEPA, 

the NHPA and related provisions of 

other laws and regulations to designate 

a certifying Tribal officer to represent 

the Tribe/Consortium and ‘‘to assume 

the status of a responsible Federal 

official under those Acts, laws, or 

regulations.’’ Under the statute, the 

Tribe/Consortium must also ‘‘accept the 

jurisdiction of the United States courts 

for the purpose of enforcing the 

responsibilities of the certifying Tribal 

officer assuming the status of a 

responsible Federal official under those 

Acts, laws, or regulations.’’ 

The comments stated that when these 

provisions are combined with the 

Department’s definition of a 

‘‘responsible official’’ (43 CFR 46.30) as 

the individual designated ‘‘to make and 

implement a decision on a proposed 

action and is responsible for ensuring 

compliance with NEPA,’’ the Council on 

Environmental Quality’s (CEQ) revised 

NEPA regulations at 40 CFR part 1508 

(May 1, 2024), that define the term 

‘‘Federal agency’’ to include States, 

units of general local government, and 

‘‘Tribal governments assuming NEPA 

responsibilities from a Federal agency 

pursuant to statute,’’ and the 

PROGRESS Act’s ‘‘rules of 

construction’’ at 25 U.S.C. 5366(i) 

directing that each provision of the 

PROGRESS Act ‘‘be liberally construed 

for the benefit of the Indian tribes and 

any ambiguity shall be resolved in favor 

of the Indian tribe,’’ there is compelling 

support for the Tribes’ position. 

The comments further noted that the 

Department should give full expression 

to all the terms of the PROGRESS Act 

and Congressional intent to further 

empower Tribes to make final 

determinations under NEPA, the NHPA, 

and related environmental laws, citing 

to 25 U.S.C. 5369(a) providing that ‘‘the 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 § 1000.1301—What key 

construction terms do I need to know? 

There were comments received that 

referenced § 1000.301. However, the 

comment addresses § 1000.1301 in 

subpart K (Construction) in the 

proposed rule that the final rule should 

include a definition of ‘‘Categorical 

Exclusion’’ to be defined as the same 

definition found in the Department of 

Health and Human Services 

construction definitions found at 42 

CFR 137.280. The Department should 

consider including in the final rule the 

definition set out in CEQ’s revised 40 

CFR 1508 regulations issued on May 1, 

2024. 

The Department acknowledges these 

comments, and the Committee declined 

to add the definition. First, it is 

established by another agency and could 

change over time, potentially resulting 

in unnecessary confusion. Additionally, 

the potential scope of projects requiring 

NEPA compliance under these 

regulations encompasses multiple 

bureaus within the Department, as 

opposed to the limited scope of projects 

at the Department of Health and Human 

Services. Finally, each Departmental 

bureau maintains a list of categorical 

exclusions relevant to projects it 

oversees and these change over time, as 

well. See Department of the Interior 

Manual (at Part 516). 

Subpart L—Federal Tort Claims 

The Committee did not receive 

comments related to this subpart. 

Subpart M—Reassumption 

The Committee did not receive 

comments related to this subpart. 

Subpart N—Retrocession 

The Committee did not receive 

comments related to this subpart. 

Subpart O—Trust Evaluation 

The Committee did not receive 

comments related to this subpart. 

Subpart P—Reports 

The Committee did not receive 

comments related to this subpart. 

Subpart Q—Operational Provisions 

The Committee received one 

comment related to this subpart. In 

§ 1000.2130, the rule sets forth how 

much time the Federal Government has 

to make a claim against a Tribe/ 

Consortium related to the disallowance 

of cost, based on an audit. The comment 

suggested the audit be particular to a 

title IV audit. The Committee agreed 

and title IV was inserted before the 

word audit to clarify this provision 

applies to title IV audits. 

Subpart R—Appeals 

This subpart prescribes the process 

Tribes/Consortia may use to resolve 

disputes with the Department arising 

before or after execution of a funding 

agreement or compact and certain other 

disputes related to self-governance. 

Three Tribal comments requested 

greater flexibility in the appeals process 

generally. 

Several Tribal comments offered draft 

language to the regulatory text that 

would provide Tribes/Consortia with 

the option to file an administrative 

appeal with either the Interior Board of 

Indian Appeals (IBIA) or an appropriate 

bureau head or Assistant Secretary of 

disputes with the Department arising 

before execution of a funding 

agreement, amendment to a funding 

agreement, or compact and certain other 

disputes related to self-governance. 

Specifically, comments proposed 

deleting § 1000.2302 (‘‘What does ‘titleI eligible programs’ mean in this 

subpart?’’) to remove any reference to 

‘‘title-I eligible programs’’ within the 

subpart, and to strike and replace 

§ 1000.2351 (‘‘To Whom May a Tribe/ 

Consortium Appeal a Decision under 

§ 1000.2345?’’) with language allowing 

for Tribes/Consortia to file an eligible 

appeal under the subpart with either the 

IBIA or an appropriate bureau head/ 

Assistant Secretary. The comments 

noted that adopting this position would 

address current delays under the IBIA 

system and the negative impacts from 

such delays. Comments noted that the 

Department should adopt this change 

and resolve this issue of non-consensus 

in the finalized rule to comply with E.O. 

14112 and the PROGRESS Act’s rules of 

construction. Some comments also 

recommended these revisions to the 

final rule to build capacity for an 

administrative appeals process with the 

bureau head/Assistant Secretary level to 

promote predictability, reduce 

uncertainty, and use the least 


lotter on DSK11XQN23PROD with RULES4
100236 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

burdensome tools to achieve regulatory 

ends as set out in E.O. 12866, as 

supplemented by E.O. 13563. 

The Committee agreed to revise the 

subpart to provide that Tribes/Consortia 

may elect to file an appeal of eligible 

pre-award disputes with an appropriate 

bureau head or Assistant Secretary 

through the following revisions to the 

subpart’s current language: (1) deleting 

§ 1000.2302 to remove any references to 

‘‘title-I eligible programs’’ within the 

subpart; (2) revising § 1000.2351(b) to 

add the term ‘‘initial’’ in the phrase ‘‘the 

bureau head will decide initial appeals 

relating to these pre-award matters;’’ 

and (3) striking the language in 

§ 1000.2351(b)(i), ‘‘Programs that are not 

PSFAs that the Secretary provides for 

the benefit of Indians because of their 

status as Indians without regard to the 

agency or office of the Department 

within which the PSFAs have been 

performed.’’ 

The Committee added a new 

§ 1000.2357 (‘‘Which official is the 

appropriate bureau head or Assistant 

Secretary for purposes of subpart R?’’). 

Section 1000.2357(a) provides a chart 

indicating the relevant official to whom 

a Tribe/Consortium may file its initial 

request for appeal when exercising its 

appeal rights to the bureau head/ 

Assistant Secretary under § 1000.2351 

for any BIA Program. Section 

1000.2357(b) states that the Assistant 

Secretary for Indian Affairs is the 

appropriate Assistant Secretary for 

reviewing appeals for BIA Programs in 

accordance with § 1000.2370. Finally, 

§ 1000.2357(c) identifies the appropriate 

bureau head/Assistant Secretary for 

non-BIA Program appeals pursuant to 

§ 1000.2351. In accordance with 

§ 1000.2355, the Department will 

identify the appropriate bureau head/ 

Assistant Secretary in any required 

information. 

Subpart S—Conflicts of Interest 

The Committee did not receive 

comments related to this subpart. 

Subpart T—Tribal Consultation Process 

The Committee did not receive 

comments related to this subpart. 

C. Use of Received Feedback 

The Committee used all received 

feedback to inform this final rule and 

made changes to this final rule based on 

received feedback. 

VI. Summary of Changes by Subpart 

Into the Final Rule 

The following summary describes 

each subpart of the Department’s final 

regulations to implement the 

PROGRESS Act. The Department’s 

amendments incorporated comments on 

the proposed rule received during Tribal 

consultation, as discussed above in 

Section III, ‘‘Summary of Comments 

Received,’’ as well as received during 

the E.O. 12866 interagency review 

process. The Department, in negotiation 

with the Committee makes these 

changes in the final rule. 

A. Subpart A—General Provisions 

This subpart contains the authority, 

purpose and scope of the final rule, and 

the Congressional and Secretarial 

policies that will guide the 

implementation of the ISDEAA, as 

amended by the PROGRESS Act, by the 

Secretary and the various bureaus of the 

Department. The subpart also defines 

terms used throughout the final rule 

consistent with the PROGRESS Act. 

This subpart further clarifies the effect 

of 25 CFR part 1000 on existing Tribal 

rights, including Tribal sovereign 

immunity from suit, the United States’ 

trust responsibility, a Tribe’s choice to 

participate in self-governance, or the 

issuance of awards by other 

departments or agencies to Tribes. 

Additionally, this subpart identifies the 

application of any agency circular, 

policy, manual, guidance, or rule 

adopted by the Department on selfgovernance Tribes/Consortia. This 

subpart identifies when and how to 

implement Indigenous Knowledge in 

projects. Finally, this subpart provides 

that should a court hold any provision 

of one part of this rule as finalized 

invalid, it should not impact the other 

parts of the rule. 

Amendments to § 1000.15—What is the 

congressional policy statement of this 

part? 

The Committee revised the phrase 

‘‘create consistency and administrative 

efficiencies between title IV and title V 

of Pub. L. 93–638’’ with the phrase 

‘‘create similarities and administrative 

efficiencies between title IV and title V 

of Public Law 93–638’’ to more 

accurately reflect the content of the final 

rule. 

Amendments to § 1000.20 What is the 

Secretarial policy of this part? 

The Committee added language to the 

Secretarial policy of this part to assure 

that this part be interpreted to facilitate 

inclusion of programs in funding 

agreements and the implementation of 

funding agreements. The proposed edits 

include language that is added to 

maximize implementation of the 

secretarial policy in all bureaus of the 

Department, and to ensure that where 

provisions of funding agreements and 

compacts are ambiguous that the 

ambiguity be resolved in favor of the 

Tribe or Consortium. The Committee 

also added a provision to include, 

recognize, and support Indigenous 

Knowledge to be applied when 

performing PSFAs. The edits were made 

to improve clarity and respond to 

comments received during the 

government-to-government 

consultation. 

Amendments to add § 1000.35—What 

happens if a court holds any provisions 

of these regulations in this part invalid? 

The Department added a new section 

to make explicit its intent that if a court 

were to hold any provisions of the final 

rule invalid, that provision would be 

severable and the remaining provisions 

of the rule should remain in force. As 

noted in the Preamble, the intent of this 

rule is to implement the Department’s 

Self-Governance program, and the 

several provisions of this rule can 

continue to effectuate that intent even if 

one or more of those provisions were 

declared to be invalid by a court. 

B. Subpart B—Selection of Additional 

Tribes for Participation in Tribal SelfGovernance 

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 selfgovernance 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 selfgovernance, 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 nonBIA 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 selfgovernance 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 noncompetitive. 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 selfgovernance. 

Amendments to § 1000.335—What are 

the Secretary’s responsibilities upon a 

decision not to award a planning or 

negotiation grant? 

The Committee implemented a 

change in the wording in § 1000.335 to 

address the Secretary’s decision 

regarding the denial of a planning or 

negotiation grant from ‘‘declining to 

award’’ to ‘‘denying’’ a planning or 

negotiation grant. This was merely to 

clarify that provision. 

D. Subpart D—Financial Assistance for 

Planning and Negotiations Activities for 

Non-BIA Bureau Programs 

This subpart describes the additional 

requirements and criteria applicable to 

receiving financial assistance to assist 

Tribes/Consortia with planning and 

negotiating for funding agreements 

involving non-BIA programs. This 

financial assistance is available to any 

Tribe/Consortium that: 

(a) Applied to participate in selfgovernance; 

(b) Has been selected to participate in 

self-governance; or 

(c) Has negotiated and entered into an 

existing funding agreement. 

Subject to the availability of funds, 

this subpart requires the Secretary to 

publish a notice in the Federal Register 

that includes the number of available 

grants, application process, award 

criteria, and designated point-of-contact 

for each non-BIA bureau. This financial 

assistance will support information 

gathering, analysis, and planning 

activities that may involve consulting 

with appropriate non-BIA bureaus, and 

negotiation activities. This subpart also 

provides requirements for 

communicating award decisions to 

applying Tribes/Consortia. 

The Committee did not implement 

changes to subpart D. 

E. Subpart E—Compacts 

The prior rule at 25 CFR part 1000 

that became effective on January 16, 

2001 (‘‘2001 prior rule’’), included 

provisions addressing compacts at 

§§ 1000.161 through 1000.165. The 

Committee amends and moves those 

sections to the new subpart E 

(Compacts) and includes additional 

sections. This new subpart is inserted 

before the respective subparts for 

funding agreements because compacts 

are applicable to funding agreements 

both for BIA programs and for non-BIA 

programs. 

The 2001 prior rule included a model 

format for a compact at Appendix A. 

The Committee decided not to include 

a model format for a compact and 

Appendix A in this final rule. The 

rationale is the model was no longer 

needed in the rule and a sample could 

be posted on an OSG website to provide 

assistance for Tribes joining selfgovernance and updated as 

circumstances change. 

This subpart also describes selfgovernance compacts and the minimum 

content requirements of a selfgovernance 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 selfgovernance 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. 


lotter on DSK11XQN23PROD with RULES4
100238 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

2The 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. 

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 BIAadministered 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. 

This subpart defines Tribal shares as 

the amount determined for that Tribe/ 

Consortium that supports any program 

within the BIA, the Bureau of Indian 

Education (BIE), the Bureau of Trust 

Funds Administration (BTFA), or the 

Office of the Assistant Secretary for 

Indian Affairs and are not required by 

the Secretary for the performance of an 

IFF. Tribal share amounts may be 

determined by either: 

(a) A formula that has a reasonable 

basis in the function or service 

performed by the BIA office and is 

consistently applied to all Tribes served 

by the area and agency offices; or 

(b) On a Tribe-by-Tribe basis, such as 

competitive grant awards or special 

project funding. 

Funding amounts may be modified 

during the term of a funding agreement 

to adjust for certain Congressional 

actions, correct a mistake, or if there is 

mutual agreement to do so. 

This subpart also defines stable base 

budgets as the amount of recurring 

funding to be transferred to the Tribe/ 

Consortium for a period specified in the 

funding agreement. Stable base budgets 

are derived from: 

(a) A Tribe/Consortium’s Public Law 

93–638 contract amounts; 

(b) Negotiated amounts of agency, 

area, and central office funding; 

(c) Other recurring funding; 

(d) Special projects, if applicable; 

(e) Programmatic shortfall; 

(f) Tribal priority allocation increases 

and decreases; 

(g) Pay costs and retirement cost 

adjustments; and 

(h) Any other inflationary cost 

adjustments. 

Stable base budgets do not include 

any non-recurring program funds, 

construction and wildland firefighting 

accounts, Congressional earmarks, or 

other funds specifically excluded by 

Congress. 

A stable base budget is established at 

the request of the Tribe/Consortium and 

will be included in BIA’s budget 

justification for the following year, 

subject to Congressional appropriation. 

Once stable base budgets are 

established, a Tribe/Consortium need 

not renegotiate these amounts unless it 

wants to. If the Tribe/Consortium 

wishes to renegotiate, it also would be 

required to renegotiate all funding 

included in the funding agreement on 

the same basis as all other Tribes and is 

eligible for funding amounts of new 

programs or available programs not 

previously included in the funding 

agreement on the same basis as other 

Tribes. Stable base budgets must be 

adjusted for certain Congressional 

actions, to correct a mistake, or if there 

is mutual agreement. 

Amendments to § 1000.690—How does 

BIA determine the funding amount to 

carry out inherent Federal functions? 

The Committee implemented two 

changes to this section from the 

proposed rule to the final rule. The first 

change corrected an unintentional 

omission of ‘‘Consortium’’ in subsection 

(d). The final rule is now consistent 

with other parts of the section to state 

‘‘Tribes/Consortium.’’ The second 

change addresses a situation where 

funds are properly suballocated to 

another program to perform a function 

essential to the program under 

negotiation. By revising subsection (g), 

there is reduced potential for 

disagreement in a situation where funds 

are appropriately utilized across 

program lines. 

G. Subpart G—Funding Agreements for 

Non-BIA Programs 

This subpart describes program 

eligibility, funding for, and terms and 

conditions relating to self-governance 

funding agreements covering non-BIA 

programs that can help further 

Secretarial co-stewardship objectives as 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 selfgovernance that contain a description of 

that portion or portions of a bureau 

program that are to be performed by the 

Tribe/Consortium; and associated 

funding, terms and conditions under 

which the Tribe/Consortium will 

assume a program, or portion of a 

program. Funding agreements may 

include Federal PSFAs administered by 

the Department other than through the 

BIA that are otherwise available to 

Indian Tribes or Indians and may also 

include other PSFAs, or portions 

thereof, which are of special geographic, 

historical, or cultural significance to the 

participating Indian Tribe requesting a 

compact. This subpart contains a 

definition of which functions may be 

considered ‘‘inherently Federal’’ for 

purposes of 25 U.S.C. 5363(k) and a 

provision making non-mandatory CSCs 

associated with administration of the 

PSFAs that are transferred in non-BIA 

agreements. 

Amendments to § 1000.885—What 

funds are included in a non-BIA 

funding agreement? 

Pursuant to changes that urged the 

Department to revise proposed 

§ 1000.885(b)(iii) to ensure that Tribes/ 

Consortia receive full CSCs under 

section 106(a) the PROGRESS Act, 25 

U.S.C. 5325, including direct CSCs, the 

Committee accepted the 

recommendations an amended the 

proposed rule. 

The final rule § 1000.885(b)(1)(iii) 

states that non-BIA bureaus determine 

the amount of funding to be included in 

the funding agreement using the 

following principles: ‘‘(iii) Such 

amounts as the Tribe/Consortium and 

the Secretary may negotiate for preaward, start-up and direct contract 

support costs.’’ 

Amendments to § 1000.895—How does 

the Secretary determine the amount of 

indirect costs? 

The Committee clarified § 1000.895 

by adding the phrase ‘‘non-BIA 

funding’’ to the question and initial part 

of the response and discussed the 

recommendation of adding ‘‘and making 

other adjustments required by the 

PROGRESS Act’’ to the end of (a). The 

Committee accepted the first edited but 

rejected the latter suggestion. 

H. Subpart H—Negotiation Process 

The 2001 prior rule includes ‘‘Subpart 

G—Negotiation Process for Annual 

Funding Agreements.’’ The final rule 

amends the title of this subpart and 

moves it within this final rule. The 

subpart title is amended to ‘‘Negotiation 

Process’’ because the amended subpart 

addresses the process for negotiating 

compacts and funding agreements. The 

location of the subpart within this final 

rule is to be moved from subpart G of 

the 2001 prior rule to become subpart H 

because a new subpart E for compacts 

is inserted. Items addressed in subpart 

H of the 2001 prior rule are to be 

addressed in new subpart Q 

(Operational Provisions). 

Sections 1000.161 through 1000.165 

of the 2001 prior rule, addresses the 

negotiation of compacts and are 

amended and moved to the new subpart 

E (Compacts). 

This subpart establishes the process 

and timelines for negotiating a selfgovernance 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 selfgovernance program, including the 

minimum issues that must be addressed 

at negotiation meetings. A Tribe/ 

Consortium initiates this phase by 

submitting a Request to Initiate the 

Negotiation Phase. This subpart also 

establishes the required response that 

the Secretary must provide a Tribe/ 

Consortium after receipt of a Request to 

Initiate the Negotiation Phase, including 

identifying the lead Federal negotiator. 

Further, this subpart establishes the 

process for finalizing and executing a 

compact and/or funding agreement 

when the parties agree on such terms 

and conditions following the 

completion of negotiations. 

This subpart also establishes rules for 

the negotiation process for subsequent 

funding agreements. A subsequent 

funding agreement is a funding 

agreement negotiated with a particular 

bureau after an existing agreement with 

that bureau. The process for negotiating 

a subsequent agreement is the same as 

the process provided in this subpart for 

funding agreements. The subsequent 

funding agreements will build upon the 

prior funding agreements. As such, most 

provisions of the funding agreement 

will carry forward and not require 

renegotiation. This will result in an 

expedited and simplified negotiation 

process. 

Amendments to § 1000.1035—What 

steps does the bureau take after a 

Request to Initiate the Information 

Phase is submitted by a Tribe/ 

Consortium? 

The Committee clarified this 

provision by using the term ‘‘applicable 

laws’’ to capture information requests 

that implicate the Privacy Act, Freedom 

of Information Act, Health Insurance 

Portability and Accountability Act, and 

other laws that address the release of 

sensitive information. In addition, the 

Freedom of Information Act includes a 

number of items for possible 

dissemination, and the Committee 

decided to identify records that would 

encompass the numerous possible types 

of information. 

I. Subpart I—Final Offer 

The final rule inserts this new subpart 

to implement section 406(c) of title IV, 

as amended by the PROGRESS Act, 25 

U.S.C. 5366(c), that prescribes the 

process to be followed if the Secretary 

and the participating Tribe/Consortium 

are unable to come to agreement, in 

whole or in part, on the terms of a 

compact or funding agreement during 

negotiations. The previous version of 

title IV included no such provisions, nor 

does the 2001 prior rule. 

The new subpart is inserted at this 

location to immediately follow the 

amended subpart H (Negotiation 

Process). Doing so allows the reader to 

move sequentially from the negotiation 

process to determine options for next 

steps if those negotiation efforts do not 

result in agreement. 

This subpart explains the final offer 

process provided by the PROGRESS Act 

for resolving disputes when the 

Secretary and a Tribe/Consortium are 

unable to agree, in whole or in part, on 

the terms of a compact or funding 


lotter on DSK11XQN23PROD with RULES4
100240 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

3See Council on Environmental Quality (CEQ), 

NEPA Implementing Regulations Revisions Phase 2, 

Final Rule, 88 FR 35442 (May 1, 2024). 

agreement (including funding levels) 

during a negotiation. Under this subpart 

a Tribe/Consortium may submit a final 

offer to resolve these disputes. A final 

offer must be emailed to the email 

address listed in the final rule or mailed 

to the Director at OSG’s headquarters. 

A final offer under this subpart must 

contain a description of the 

disagreement, the Tribe/Consortium’s 

final proposal to resolve the 

disagreement (including any proposed 

terms for a compact, funding agreement, 

or amendment), and the name and 

contact information for the Tribe’s/ 

Consortium’s authorized official. 

In accordance with 25 U.S.C. 

5366(c)(6), the Secretary may reject all 

or part of a final offer for one of six 

specified reasons. If the Secretary does 

not act on a final offer within 60 days, 

the final offer is accepted automatically 

by operation of law for any compact or 

funding agreement except as to its 

application to a program described 

under section 403(c) of title IV. Final 

offers with respect to any program 

described under section 403(c) of title 

IV that the Secretary does not act on 

within 60 days are rejected 

automatically by operation of law. This 

subpart also addresses what happens if 

the Secretary rejects all or part of a final 

offer, including provision of technical 

assistance to overcome a rejection, the 

ability to appeal a rejection, and the 

portions of a final offer not in dispute 

taking effect. 

The Committee did not implement 

changes to subpart I. 

J. Subpart J—Waiver of Regulations 

This subpart implements 25 U.S.C. 

5363(i)(2)(A) that authorizes the 

Secretary to waive all Department 

regulations governing programs 

included in a funding agreement, as 

identified by the Tribe/Consortium. 

This subpart also provides timelines, 

explains how a Tribe/Consortium 

applies for a waiver, the basis for 

granting or denying a waiver request, 

the documentation requirements for a 

decision, and establishes a process for 

resubmittal of a Tribe/Consortium’s 

request in the event of the Secretary’s 

denial of a waiver request. 

The basis for the Secretary’s denial of 

a waiver request must be predicated on 

a prohibition of Federal law. 

The Committee did not implement 

changes to subpart J. 

K. Subpart K—Construction 

This subpart applies to all 

construction programs and projects, 

both BIA and non-BIA. The subpart 

identifies construction program 

activities that are subject to subpart K, 

such as design, construction 

management services, actual 

construction; and those that are not, 

such as planning services, operation and 

maintenance activities, and certain 

construction programs that cost less 

than $100,000. All final rule provisions 

apply to this subpart except where they 

are inconsistent; in those instances, the 

provisions of this subpart will govern. 

This subpart specifies the roles and 

responsibilities of the Tribe/Consortium 

and the Secretary in construction 

programs, including environmental 

determinations, performance, changes, 

monitoring, inspections, and 

reassumption. This subpart details the 

process by which a Tribe/Consortium, at 

its election and with the approval of the 

Secretary, designates a certifying Tribal 

officer to represent the Tribe/ 

Consortium and to assume the status of 

a responsible Federal official under 

National Environmental Policy Act 

(NEPA), the National Historic 

Preservation Act (NHPA), and related 

provisions of other laws and regulations 

and accepts the jurisdiction of the 

United States courts for the purpose of 

enforcing the responsibilities of the 

certifying Tribal officer assuming the 

status of a responsible Federal official 

under those Acts, laws, or regulations. 

Federal Acquisition Regulations 

provisions are specifically not 

incorporated into this final rule; 

however, they may be negotiated by the 

parties in the funding agreement. 

Construction project agreements, made 

part of a funding agreement, must 

address applicable Federal laws, 

program statutes, and regulations. In 

addition to requirements for all funding 

agreements referenced in subpart F 

(Funding Agreements for BIA 

Programs), other provisions are added 

for construction project agreements and 

programs and funding agreements that 

include a construction project or 

program to implement the requirements 

of the PROGRESS Act, including health 

and safety standards, brief progress 

reports, financial reports, and 

suspension of work when appropriate. 

Building codes appropriate for the 

project must be used and the Federal 

agency must notify the Tribe when 

Federal standards are appropriate for 

any project. 

Lastly, this subpart provides that the 

Secretary may accept funds from other 

departments for construction projects or 

programs, subject to an interagency 

agreement, or ‘‘IAA,’’ between the 

Secretaries, with Tribal concurrence. 

Subsequent to the Committee 

approving its report to the Secretary, 

including non-consensus issues in this 

subpart, the Council on Environmental 

Quality (CEQ) revised its NEPA 

implementing regulations, 40 CFR parts 

1500 through 1508, which are effective 

July 1, 2024.3 The Department invited 

comment on whether to revise the 

proposed regulatory text in any final 

rule for consistency with NEPA and the 

NEPA implementing regulations. For 

example, (1) updating proposed 

§ 1000.1390 to incorporate text from and 

for consistency with 42 U.S.C. 

4332(2)(E) and 40 CFR 1506.6(a), which 

direct agencies to make use of ‘‘highquality information, including reliable 

data and resources;’’ (2) updating 

proposed § 1000.1385(a)(2) to 

incorporate text making clear that NEPA 

requires agencies to assess ‘‘reasonably 

foreseeable environmental effects’’ of a 

proposed agency action, not all 

potential effects, for consistency with 42 

U.S.C. 4332(2)(C)(i) and the definition of 

‘‘effects’’ in 40 CFR 1508.1(i); and (3) 

updating § 1000.1385(a)(5) to state that 

in applying a categorical exclusion 

under NEPA, evaluate whether 

extraordinary circumstances exist, in 

which a normally excluded project may 

have a significant effect, and therefore 

requires preparation of an 

environmental assessment or 

environmental impact statement, for 

consistency with 40 CFR 1501.4. 

Amendments to § 1000.1305—What 

construction projects and programs 

included in a funding agreement or 

construction project agreement are 

subject to this subpart? 

The Committee clarified the provision 

in subsection (b)(5) based on 

consultation recommendations by 

clarifying the exemption involving 

Public Law 102.477 funded projects and 

deleting ‘‘Child Care Development 

Fund.’’ 

Amendments to § 1000.1385—What is 

the typical environmental review 

process for construction projects? 

The Committee revised text based on 

recommendations of the Council on 

Environmental Quality involving 

documenting assessment of ‘‘reasonably 

foreseeable’’ environmental effects in 

§ 1000.1385(a)(2) and deleting the term 

‘‘potential’’ from the subsection. The 

Committee also revised the text on 

§ 1000.1385(a)(5) to clarify when 

applying a categorical exclusion under 

NEPA and the required preparation of 

an environmental assessment or 

environmental impact statement. 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100241 

Amendments to § 1000.1390—Is the 

Secretary required to take into account 

the Indigenous Knowledge of Tribes/ 

Consortia when preparing 

environmental studies under NEPA, 

NHPA, and related provisions of other 

law and regulations? 

The Committee added language in the 

preamble and revised the provision to 

be consistent with terminology in the 

recently updated CEQ regulations 

concerning ‘‘reliable data sources.’’ 

Amendments to § 1000.1445—May the 

Secretary suspend construction 

activities under the terms of a funding 

agreement or construction project 

agreement under title IV of the ISDEAA? 

The Committee revised text based on 

recommendations to distinguish the 

provisions as applying only to the 

ISDEAA title IV construction projects in 

the title, subsection (a) and (b). 

Amendments to § 1000.1455—What 

happens when a Tribe/Consortium, 

suspended under § 1000.1445 for 

substantial failure to carry out the terms 

of a funding agreement that includes a 

construction project or program or a 

construction project agreement under 

title IV of the ISDEAA without good 

cause, does not correct the failure 

during the suspension? 

The Committee revised text based on 

recommendations to distinguish the 

provisions as applying only to the 

ISDEAA title IV construction projects. 

L. Subpart L—Federal Tort Claims 

This subpart explains the 

applicability of the Federal Tort Claims 

Act. 

Amendments to § 1000.1650—What 

employees are covered by FTCA for 

claims arising out of a Tribe’s/ 

Consortia’s performance of a compact or 

funding agreement? 

The Committee reviewed the 

applicability of Federal tort claim 

coverage for ‘‘permanent and temporary 

employees’’ and implemented 

qualifying language to clarify that these 

employees would need to be employees 

of a Tribe/Consortium. 

M. Subpart M—Reassumption 

Reassumption is the federally 

initiated action of reassuming control of 

Federal programs formerly performed by 

a Tribe/Consortium. This subpart 

explains the types of reassumptions 

authorized under title IV, as amended 

by the PROGRESS Act, including the 

rights of a Consortium member, the 

types of circumstances necessitating 

reassumption, and Secretarial 

responsibilities including prior notice 

requirements and other procedures. The 

subpart explains what is meant by 

imminent jeopardy to trust assets, 

natural resources, and public health and 

safety that may be grounds for 

reassumption. 

This subpart also describes the 

hearing rights a Tribe/Consortium has 

before or after reassumption by the 

Secretary, the PROGRESS Activities to 

be performed after reassumption has 

been completed, and the effect of 

reassumption on other provisions of a 

funding agreement. 

The Committee did not implement 

changes to subpart M. 

N. Subpart N—Retrocession 

Retrocession is the Tribally-initiated 

voluntary action of returning control of 

certain programs to the Federal 

Government. This subpart defines 

retrocession, including how Tribes/ 

Consortia may retrocede, the effect of 

retrocession on future funding 

agreement negotiations, and Tribal/ 

Consortium obligations regarding the 

return of Federal property to the 

Secretary after retrocession. 

The Committee did not implement 

changes to subpart N. 

O. Subpart O—Trust Evaluation 

This subpart establishes a procedural 

framework for the Secretary’s annual 

trust evaluation mandated by the 

PROGRESS Act. The purpose of the 

Secretary’s annual trust evaluation is to 

ensure that trust functions assumed by 

Tribes/Consortia are performed in a 

manner that does not place trust assets 

in imminent jeopardy. 

Imminent jeopardy of a physical trust 

asset or natural resource (or their 

intended benefits) exists where there is 

an immediate threat and likelihood of 

significant devaluation, degradation, or 

loss to such asset. Imminent jeopardy to 

public health and safety means an 

immediate and significant threat of 

serious harm to human well-being, 

including conditions that may result in 

serious injury, or death, caused by 

Tribal action or inaction or as otherwise 

provided in a funding agreement. 

This subpart requires the Secretary’s 

designated representative to prepare a 

written report for each funding 

agreement under which trust functions 

are performed by a Tribe. This final rule 

also authorizes a review of Federal 

performance of residual and 

nondelegable trust functions affecting 

trust resources. The name of this 

subpart has been changed from ‘‘Trust 

Evaluation Review’’ to ‘‘Trust 

Evaluation.’’ It was redundant to have 

both evaluation and review in the title. 

The Committee did not implement 

changes to subpart O. 

P. Subpart P—Reports 

This subpart describes the report on 

self-governance that the Secretary 

prepares annually for transmittal to 

Congress. It also includes the 

requirements for the annual report that 

Tribes/Consortia submit to the Secretary 

and other data requirements the 

Secretary may request of Tribes/ 

Consortia. The issue related to the 

inclusion of BIE in the BIA programs for 

purposes of the reporting requirements 

surfaces in this subpart and is addressed 

in subpart A (General Provisions). 

The Committee did not implement 

changes to subpart P. 

Q. Subpart Q—Operational Provisions 

The 2001 prior rule includes ‘‘Subpart 

Q—Miscellaneous Provisions.’’ The 

final rule amends the title of this 

subpart to ‘‘Operational Provisions’’ to 

be more descriptive and instructive to 

the reader and to bring consistency with 

regulations promulgated at 42 CFR 

subchapter M part 137—Tribal SelfGovernance under the Indian Health 

Service as authorized by title V of the 

ISDEAA, as amended. 

The changes to this subpart address 

many facets of self-governance not 

covered in the other subparts. Issues 

covered include the applicability of 

various laws such as the Freedom of 

Information Act, the Privacy Act, the 

Prompt Payment Act, and the Single 

Agency Audit Act, applicable 

provisions of OMB circulars, how funds 

are handled in various situations, 

including carryover of funds, savings 

from programs, and the use of funds to 

meet matching or cost participant 

requirements under other laws. 

Certain provisions of this subpart are 

amended to comply with the 

PROGRESS Act, and with applicable 

regulations promulgated by OMB at 2 

CFR part 200. References to outdated 

OMB circulars within this subpart are 

updated throughout. New sections 

within this subpart address new 

provisions within the PROGRESS Act, 

as amended, such as § 1000.2130 that 

addresses claims against a Tribe/ 

Consortium in relation to disallowance 

of costs, and limitation of costs. 

Amendments to § 1000.2130—How 

much time does the Federal 

Government have to make a claim 

against a Tribe/Consortium relating to 

any disallowance of costs, based on an 

audit? 

The Committee agreed to respond to 

the comment by adding that the audit 


lotter on DSK11XQN23PROD with RULES4
100242 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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 preaward 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 preaward appeals under this subpart. 

Amendments to § 1000.2302—What 

does ‘‘title-I eligible programs’’ mean in 

this subpart? 

The Committee deleted this section to 

remove any references to ‘‘title-I eligible 

programs’’ within the subpart to 

eliminate the distinction between titleI eligible programs and non-Title-I 

eligible programs so that Tribes/ 

Consortia may file an appeal of all preaward disputes covered under this 

subpart with an appropriate bureau 

head/Assistant Secretary or the IBIA. 

Amendments to § 1000.2351—To Whom 

may a Tribe/Consortia appeal a decision 

made before the funding agreement, 

amendment to the funding agreement, 

or compact is signed? 

The Committee implemented a 

change in the wording of § 1000.2351(b) 

to add the term ‘‘initial’’ in the phrase 

‘‘the bureau head will decide initial 

appeals relating to these pre-award 

matters,’’ and strike the language in 

§ 1000.2351(b)(i), ‘‘Programs that are not 

PSFAs that the Secretary provides for 

the benefit of Indians because of their 

status as Indians without regard to the 

agency or office of the Department 

within which the PSFAs have been 

performed’’ to revise the subpart so that 

Tribes/Consortia may file appeals of 

pre-award disputes with an appropriate 

bureau head/Assistant Secretary. 

Amendments to add § 1000.2357— 

Which official is the appropriate bureau 

head or Assistant Secretary for purposes 

of subpart R? 

The Committee added a new section 

providing a chart indicating the relevant 

official to whom a Tribe/Consortium 

may file its initial request for appeal 

when exercising its appeal rights to the 

bureau head/Assistant Secretary under 

§ 1000.2351 for any BIA Program. This 

section provides that the Assistant 

Secretary for Indian Affairs is the 

appropriate Assistant Secretary for 

reviewing appeals for BIA Programs in 

accordance with § 1000.2370. Finally, 

the section identifies the appropriate 

bureau head/Assistant Secretary for 

non-BIA Program appeals pursuant to 

§ 1000.2351. The Committee 

implemented this section to provide 

clarity regarding the relevant official for 

any BIA Program to whom a Tribe/ 

Consortia would file an appeal. 

S. Subpart S—Conflicts of Interest 

This subpart sets out the minimum 

requirements a Tribe/Consortium must 

have in place, pursuant to Tribal law 

and procedures, to address conflicts of 

interest, including organizational and 

personal conflicts. 

The Committee did not implement 

changes to subpart S. 

T. Subpart T—Tribal Consultation 

Process 

This subpart describes the process for 

engaging in consultations related to selfgovernance 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 selfgovernance. 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 selfgovernance 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 selfgovernance 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 SelfGovernance, 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 selfgovernance funding agreements. Rather 

than by executive order, the final rule 

introduces in regulation a regulatory 

process for consultation with selfgovernance 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. 


lotter on DSK11XQN23PROD with RULES4
100244 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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 selfdetermination,’’ 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 SelfGovernance Act of 1994, 25 U.S.C. 5301, 

Public Law 103–413, as amended. 

Tribes interested in entering into SelfGovernance 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: 

Æ Subpart B: Planning report 

Æ Subpart C: Planning and Negotiation 

Grants 

Æ Subpart D: Financial Assistance for 

Planning and Negotiations 

Æ Subpart E: Compacts 

Æ Subpart K: Construction 

Æ Subparts M and N: Notice to 

retrocede; and Reassumption 

• New ICs: 

Æ Subpart F: Funding Agreements for 

BIA Programs 

Æ Subpart G: Funding Agreements for 

Non-BIA Programs 

Æ Subpart L: Federal Tort Claims 

Æ Subpart O: Trust Evaluation 

Æ Subpart Q: Operational Provisions 

Æ Subpart R: Appeals 

Æ Subpart T: Tribal Consultation 

Process 

• Unchanged ICs: 

Æ Subpart B: Admission to applicant 

pool 

Æ Subpart B: Withdrawal from 

consortium FA 

Æ Subpart B: Withdrawal from 

consortium to become member of 

applicant pool 

Æ Subpart H: Letter of interest and 

supporting documents for FA 

Æ Subpart H: Request to negotiate a FA 

Æ Subpart H: Request to negotiate 

successor FA 

Æ Subpart I: Final Offer 

Æ Subpart J: Request for waiver 

Æ Subpart P: Annual self-governance 

report 

• Title of Collection: Tribal SelfGovernance Program. 

• OMB Control Number: 1076–0143. 

• Form Number: Annual SelfGovernance Report Form. 

• Type of Review: Revision of a 

currently approved collection. 

• Respondents/Affected Public: 

Federally recognized Indian Tribes and 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100245 

Tribal Consortia participating in or 

wishing to enter into Tribal SelfGovernance. 

• 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 consultation@

bia.gov and reference ‘‘OMB Control 

Number 1076–0143’’ in the subject line 

of your comments. You may also view 

the ICR at https://www.reginfo.gov/ 

public/Forward?Search

Target=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-bycase.’’ 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. 

■ 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 SELFDETERMINATION 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 selfgovernance 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 SelfGovernance? 

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 SelfGovernance? 

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 SelfGovernance? 

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? 


lotter on DSK11XQN23PROD with RULES4
100246 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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 selfgovernance? 

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 NonBIA 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 selfgovernance compacts? 

1000.510 What is included in a selfgovernance 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 NonBIA 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 noncompetitive 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 nonBIA funding agreement? 

1000.890 How are indirect cost rates 

determined? 

1000.895 How does the Secretary determine 

the amount of indirect costs for a nonBIA 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? 


lotter on DSK11XQN23PROD with RULES4
100248 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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 

§ 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 projectspecific grant or contracting mechanism 

involving construction and related 

activities satisfy the requirements of this 

subpart? 

1000.1307 May the Secretary accept funds 

from another Department for a program 

or project involving construction and 

related activities for transfer to the Tribe/ 

Consortium under its funding agreement 

or construction project agreement? 

1000.1310 What alternatives are available 

for a Tribe/Consortium to perform a 

construction program or project? 

1000.1315 Does this subpart create an 

agency relationship? 

Notification and Project Assumption 

1000.1320 Is the Secretary required to 

consult with affected Tribes/Consortia 

concerning construction projects and 

programs? 

1000.1325 When does the Secretary confer 

with a Tribe/Consortium concerning 

Tribal preferences as to size, location, 

type, and other characteristics of a 

project? 

1000.1330 What does a Tribe/Consortium 

do if it wants to perform a construction 

project or program under 25 U.S.C. 5367? 

1000.1335 What must a Tribal proposal for 

a construction program or project 

contain? 

1000.1340 May multiple projects be 

included in a single construction project 

agreement or funding agreement that 

includes a construction project? 

1000.1345 Must a construction project 

proposal incorporate provisions of 

Federal construction guidelines and 

manuals? 

1000.1350 What provisions relating to a 

construction project or program may be 

included in a funding agreement or 

construction project agreement? 

1000.1355 What provisions must a Tribe/ 

Consortium include in a construction 

project agreement or funding agreement 

that contains a construction project or 

program? 

Requirements and Standards 

1000.1360 What codes, standards and 

architects and engineers must a Tribe/ 

Consortium use when performing a 

construction project under this part? 

NEPA Process 

1000.1365 Are Tribes/Consortia required to 

carry out activities involving NEPA in 

order to enter into a construction project 

agreement? 

1000.1370 How may a Tribe/Consortium 

elect to assume some Federal 

responsibilities under NEPA? 

1000.1375 How may a Tribe/Consortium 

carry out activities involving NEPA 

without assuming some Federal 

responsibilities? 

1000.1379 Are Tribes/Consortia required to 

adopt a separate resolution or take 

equivalent Tribal action to assume some 

environmental responsibilities of the 

Secretary under NEPA, NHPA, and 

related laws and regulations for each 

construction project? 

1000.1380 What additional provisions of 

law are related to NEPA and NHPA? 

1000.1385 What is the typical 

environmental review process for 

construction projects? 

1000.1390 Is the Secretary required to take 

into account the Indigenous Knowledge 

of Tribes/Consortia when preparing 

environmental studies under NEPA, 

NHPA, and related provisions of other 

laws and regulations? 

1000.1395 May a Tribe/Consortium act as a 

cooperating agency or joint lead agency 

for environmental review purposes 

regardless of whether it exercises its 

option under § 1000.1370(a)(1)? 

1000.1400 How does a Tribe/Consortium 

comply with NEPA and NHPA? 

1000.1405 If a Tribe/Consortium adopts the 

environmental review procedures of a 

Federal agency, is the Tribe/Consortium 

responsible for ensuring the agency’s 

policies and procedures meet the 

requirements of NEPA, NHPA, and 

related environmental laws? 

1000.1410 Are Federal funds available to 

cover the cost of Tribes/Consortia 

carrying out environmental 

responsibilities? 

1000.1415 How are project and program 

environmental review costs identified? 

1000.1420 What costs may be included in 

the budget for a construction project or 

program? 

1000.1425 May the Secretary reject a 

Tribe’s/Consortium’s final offer of a 

construction project proposal submitted 

under subpart I 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 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 nonimmediate 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 selfgovernance? 

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? 


lotter on DSK11XQN23PROD with RULES4
100250 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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 selfgovernance 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 §§ 1000.2345 

through 1000.2395? 

1000.2350 What decisions may not be 

appealed under §§ 1000.2345 through 

1000.2395? 

1000.2351 To Whom may a Tribe/Consortia 

appeal a decision under § 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 selfgovernance 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? 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 

§ 1000.1 What is the authority of this part? 

This part is prepared and issued by 

the Secretary of the Interior with the 

active participation and representation 

of Indian Tribes, Tribal organizations 

and inter-Tribal consortia under the 

negotiated rulemaking procedures 

required by section 413 of the Indian 

Self-Determination and Education 

Assistance Act, Public Law 93–638, as 

amended by the PROGRESS for Indian 

Tribes Act, Public Law 116–180 (25 

U.S.C. 5373). 

§ 1000.5 What key terms do I need to 

know? 

403(c) Program or Nexus Program 

means a non-BIA program eligible under 

25 U.S.C. 5363(c) and, specifically, a 

program, function, service, or activity 

that is of special geographic, historical, 

or cultural significance to a selfgovernance Tribe/Consortium. These 

programs may also be referred to as 

‘‘nexus programs.’’ 

Act means title IV of the Indian SelfDetermination 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 


lotter on DSK11XQN23PROD with RULES4
100252 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

Assistant Secretary-Indian Affairs 

responsible for the implementation and 

development of the Tribal SelfGovernance 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 SelfDetermination 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 selfgovernance. May also be referred to as 

‘‘participating Tribe/Consortium.’’ 

Subsequent funding agreement means 

a funding agreement negotiated after a 

Tribe’s/Consortium’s initial agreement 

with a bureau. 

Tribal share means the portion of all 

funds and resources determined for that 

Tribe/Consortium that supports any 

program within BIA, the BIE, the BTFA, 

or the Office of the Assistant Secretary 

for Indian Affairs and are not required 

by the Secretary for the performance of 

an inherent Federal function. 

§ 1000.10 What is the purpose and scope 

of this part? 

(a) Purpose. This part codifies 

uniform and consistent rules for the 

Department implementing title IV of the 

Indian Self-Determination and 

Education Assistance Act, Public Law 

93–638, 25 U.S.C. 5361 et seq., as 

amended by title II of Public Law 103– 

413, the Tribal Self-Governance Act of 

1994 (108 Stat. 4250, October 25, 1994) 

and title I of Public Law 116–180, the 

PROGRESS for Indian Tribes Act (134 

Stat. 857, October 21, 2020). 

(b) Scope. These regulations are 

binding on the Secretary and on Tribes/ 

Consortia carrying out programs, 

services, functions, and activities 

(PSFAs) (or portions thereof) under title 

IV except as otherwise specifically 

authorized by a waiver under 25 U.S.C. 

5369(b) and this part. 

(c) Information Collection. The 

information collection requirements 

contained in this part have been 

approved by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995, 44 U.S.C. 

3507(d), and assigned control number 

1076–0143. A Federal agency may not 

conduct or sponsor, and you are not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

§ 1000.15 What is the congressional policy 

statement of this part? 

(a) Congressional findings. In the Act, 

the Congress found that: 

(1) The Tribal right of self-governance 

flows from the inherent sovereignty of 

Indian Tribes and nations; 

(2) The United States recognizes a 

special government-to-government 

relationship with Indian Tribes, 

including the right of the Tribes to selfgovernance, 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 selfgovernance; 

(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 selfgovernance 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 selfgovernance compacting or funding. 

§ 1000.20 What is the Secretarial policy of 

this part? 

In carrying out Tribal self-governance 

under title IV, it is the policy of the 

Secretary: 

(a) To fully support and implement 

the foregoing policies to the full extent 

of the Secretary’s authority. 

(b) To recognize and respect the 

unique government-to-government 

relationship between Tribes, as 

sovereign governments, and the United 

States. 

(c) To have all bureaus of the 

Department work to further and protect 

the trust responsibility of the United 

States with respect to Tribes and 

individual Indians that exists under 

treaties, Executive orders, other laws, or 

court decisions. 

(d) To have all bureaus of the 

Department work cooperatively and proVerDate Sep<11>2014 20:28 Dec 10, 2024 Jkt 262001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\11DER4.SGM 11DER4

lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100253 

actively with Tribes/Consortia on a 

government-to-government basis within 

the framework of the Act and any other 

applicable provision of law, so as to 

make the ideals of self-determination 

and self-governance a reality. 

(e) To have all bureaus of the 

Department work to streamline the 

process for Tribes/Consortia 

participating in or applying to 

participate in self-governance to 

establish administrative efficiencies and 

consistency with the processes under 

title IV and title V of Public Law 93– 

638, as amended. 

(f) To have all bureaus of the 

Department actively share information 

with Tribes and Tribal Consortia to 

encourage Tribes and Tribal Consortia 

to become knowledgeable about the 

Department’s programs and the 

opportunities to include them in a 

funding agreement. 

(g) To interpret each Federal law and 

regulation, including this part, in a 

manner that facilitates the inclusion of 

programs in funding agreements and the 

implementation of funding agreements. 

(h) That all bureaus of the Department 

will negotiate in good faith, to maximize 

implementation of the Self-Governance 

policy and carry out title IV and this 

part in a manner that maximizes the 

policy of Tribal self-governance. 

(i) That, subject to Public Law 116– 

180, title I, § 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. 

§ 1000.25 What is the effect on existing 

Tribal rights? 

Nothing in this part shall be 

construed as: 

(a) Affecting, modifying, diminishing, 

or otherwise impairing the sovereign 

immunity from suit enjoyed by Indian 

Tribes; 

(b) Terminating, waiving, modifying, 

or reducing the trust responsibility of 

the United States to the Indian Tribe(s) 

or individual Indians. The Secretary 

must act in good faith in upholding this 

trust responsibility; 

(c) Requiring an Indian Tribe to 

participate in self-governance; or 

(d) Impeding awards by other 

Departments and agencies of the United 

States to Indian Tribes to administer 

Indian programs under any other 

applicable law. 

§ 1000.30 What is the effect of these 

regulations on Federal program guidelines, 

manual, or policy directives? 

Unless expressly agreed to by the 

Tribe/Consortium in a compact or 

funding agreement, the Tribe/ 

Consortium shall not be subject to any 

agency circular, policy, manual, 

guidance, or rule adopted by the 

Department, except for the eligibility 

provisions of 25 U.S.C. 5324(g) and the 

regulations under this part to the extent 

a regulatory provision is not waived by 

the Secretary. 

§ 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 SelfGovernance 

Purpose and Definitions 

§ 1000.101 What is the purpose of this 

subpart? 

This subpart describes the selection 

process and eligibility criteria that the 

Secretary uses to decide that Indian 

Tribes may participate in Tribal selfgovernance as authorized by 25 U.S.C. 

5362. 

§ 1000.105 What is a ‘‘signatory’’? 

A signatory is a Tribe or Consortium 

that meets the eligibility criteria in 

§§ 1000.115 and 1000.125 and directly 

signs the agreements. A signatory may 

exercise all of the rights and 

responsibilities outlined in the compact 

and funding agreement and is legally 

responsible for all financial and 

administrative decisions made by the 

signatory. 

§ 1000.110 What is a ‘‘nonsignatory 

Tribe’’? 

(a) A nonsignatory Tribe is a Tribe 

that either: 

(1) Does not meet the eligibility 

criteria in §§ 1000.115 and 1000.125 

and, by resolution of its governing body, 

authorizes a Consortium to participate 

in self-governance on its behalf; or 

(2) Meets the eligibility criteria in 

§§ 1000.115 and 1000.125 but chooses 

to be a member of a Consortium and 

have a representative of the Consortium 

sign the compact and funding agreement 

on its behalf. 

(b) A non-signatory Tribe under 

paragraph (a)(1) of this section: 

(1) May not sign the compact and 

funding agreement. A representative of 

the Consortium must sign both 

documents on behalf of the Tribe. 

(2) May only become a ‘‘signatory 

Tribe’’ if it independently meets the 

eligibility criteria in §§ 1000.115 and 

1000.125. 

Eligibility 

§ 1000.115 Who may participate in Tribal 

self-governance? 

There are two types of entities who 

may participate in Tribal selfgovernance: 

(a) Indian Tribes; and 

(b) Consortia of Indian Tribes. 

§ 1000.120 How many additional Tribes/ 

Consortia may participate in selfgovernance 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 selfVerDate Sep<11>2014 20:28 Dec 10, 2024 Jkt 262001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\11DER4.SGM 11DER4

lotter on DSK11XQN23PROD with RULES4
100254 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

governance. A Consortium of Indian 

Tribes counts as one Tribe for purposes 

of calculating the 50 additional Tribes 

per year. 

(b) The limitation of not more than 50 

new Tribes per year does not preclude 

a signatory Tribe from negotiating a new 

or amended compact or funding 

agreement. Such new or amended 

compacts or funding agreements do not 

count against the limitation of not more 

than 50 new Tribes per year. 

§ 1000.125 What must a Tribe/Consortium 

submit to be selected to participate in SelfGovernance? 

The Tribe/Consortium must submit to 

OSG documentation that demonstrates 

the following: 

(a) Successful completion of a 

planning phase as described in 

§ 1000.140. A Consortium’s planning 

activities satisfy this requirement for all 

its member Tribes for the purpose of the 

Consortium meeting this requirement. 

(b) A request for participation in selfgovernance 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 selfgovernance agreements with any 

Federal agency for the three fiscal years 

preceding the date on which the Tribe/ 

Consortium requests participation, 

provided that documentation 

demonstrating the correction of any 

significant and material audit 

exceptions may include, but is not 

limited to, Agency Management 

Decision Letters issued in accordance 

with 2 CFR 200.521, Summary Schedule 

of Prior Audit Findings included in 

subsequent audit reports in accordance 

with 2 CFR 200.511, or any 

documentation provided by the Tribe/ 

Consortium. 

§ 1000.130 What additional information 

may be submitted to the Secretary to 

facilitate negotiations? 

At the option of the Tribe/ 

Consortium, a Tribe/Consortium may 

identify BIA and non-BIA programs that 

the Tribe/Consortium may wish to 

subsequently negotiate for inclusion in 

a funding agreement. The inclusion of 

PSFAs in a funding agreement is not 

limited by the provision of this 

additional information. 

§ 1000.135 May a Consortium member 

Tribe withdraw from the Consortium and be 

selected to participate in Self-Governance? 

In accordance with the expressed 

terms of the compact or written 

agreement of the Consortium, a 

Consortium member Tribe (either a 

signatory or nonsignatory Tribe) may 

fully or partially withdraw from a 

participating Consortium its share of 

any program included in a compact or 

funding agreement to directly negotiate 

a compact and funding agreement. The 

withdrawing Tribe must do the 

following: 

(a) Independently meet all of the 

eligibility criteria in §§ 1000.115 

through 1000.140. If a Consortium’s 

planning activities specifically consider 

self-governance activities for a member 

Tribe, that planning activity may be 

used to satisfy the planning 

requirements for the member Tribe if it 

applies for self-governance status on its 

own. 

(b) Submit a notice of withdrawal to 

OSG and the Consortium as evidenced 

by a resolution of the Tribal governing 

body. 

§ 1000.140 What is required during the 

‘‘planning phase’’? 

The planning phase must be 

conducted to the satisfaction of the 

Tribe/Consortium and must include: 

(a) Legal and budgetary research; and 

(b) Internal Tribal government, 

planning, training, and organizational 

preparation related to the operation of 

PSFAs contemplated by the Tribe/ 

Consortium. 

§ 1000.145 When does a Tribe/Consortium 

have an uncorrected ‘‘significant and 

material audit exception’’? 

A Tribe/Consortium has an 

uncorrected significant and material 

audit exceptions if any of the audits that 

it submitted under § 1000.125(c) 

identifies: 

(a) Significant deficiencies and 

material weaknesses in internal control 

over major programs and significant 

instances of abuse relating to major 

programs which the Tribe/Consortium 

has not corrected; 

(b) Material noncompliance with the 

provisions of Federal statutes, 

regulations, or the terms and conditions 

of Federal awards related to a major 

program which the Tribe/Consortium 

has not corrected; 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). 

§ 1000.150 What are the consequences of 

having an uncorrected significant and 

material audit exception? 

If a Tribe/Consortium has an 

uncorrected significant and material 

audit exception, the Tribe/Consortium 

is ineligible to be selected to participate 

in self-governance until the Tribe/ 

Consortium meets the documentation 

requirements in § 1000.125. 

§ 1000.155 Is the Secretary required to 

provide technical assistance to improve a 

Tribe’s/Consortium’s internal controls? 

Yes. In considering proposals by a 

Tribe/Consortium for participation in 

Self-Governance, if the Secretary 

determines that the Tribe/Consortium 

lacks adequate internal controls 

necessary to manage PSFAs proposed 

for inclusion in a compact or funding 

agreement under this part, the Secretary 

shall, as soon as practicable, provide the 

necessary technical assistance to assist 

the Tribe/Consortium in developing 

adequate internal controls in accordance 

with 25 U.S.C. 5324(q)(1). 

Selection To Participate in SelfGovernance 

§ 1000.160 How is a Tribe/Consortium 

selected to participate in Self-Governance? 

(a) For a Tribe not presently 

participating in Self Governance to be 

selected, the Tribe/Consortium may 

submit a request to the Director at any 

time, but no later than 180 days before 

the proposed effective date of the 

funding agreement (e.g., October 1, 

January 1, or such other date as the 

parties agree). The request must contain 

the documentation required in 

§ 1000.125. 

(b) OSG shall select a Tribe/ 

Consortium to participate in selfgovernance upon a determination that 

the Tribe/Consortium has provided the 

required documentation in § 1000.125, 

consistent with 25 U.S.C. 5362(b)(1)(A). 

(c) OSG shall notify the Tribe/ 

Consortium no later than 45-days after 

receipt of the Tribe’s/Consortium’s 

request that the Tribe/Consortium has 

been selected to participate in selfgovernance or does not have a complete 

request under § 1000.185. 

§ 1000.165 When does OSG accept 

requests to participate in Self-Governance? 

OSG accepts requests at any time. A 

Tribe/Consortium may request a 

meeting or other informal discussion 

with the OSG before submitting its 

request to participate. 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100255 

§ 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 selfgovernance, the parties should begin 

negotiations at least 180 days before the 

proposed effective date of the initial 

funding agreement and compact (e.g., 

October 1, January 1, or such other date 

as the parties agree in the initial funding 

agreement or compact). 

(b) A Tribe/Consortium may be 

selected to participate during one year 

but negotiate a compact and funding 

agreement in a subsequent year. In this 

case, the Tribe/Consortium must, before 

the applicable period established in 

§ 1000.160, submit to OSG 

documentation demonstrating 

continued eligibility under 25 U.S.C. 

5362(c). 

§ 1000.175 How does a Tribe/Consortium 

withdraw its request to participate in SelfGovernance? 

A Tribe/Consortium may withdraw its 

request to participate in Self 

Governance by submitting a Tribal 

resolution or official action by the Tribal 

governing body to the Director of OSG. 

§ 1000.180 What if more than 50 Tribes/ 

Consortium apply to participate in SelfGovernance? 

The first 50 Tribes/Consortium who 

apply and are determined to be eligible 

under § 1000.160 shall have the option 

to begin to participate in selfgovernance. Any Tribe/Consortium 

denied participation due to the 

limitation in number of Tribes/ 

Consortium is entitled to participate in 

the next fiscal year, provided the Tribe/ 

Consortium remains eligible under 25 

U.S.C. 5362(c). 

§ 1000.185 What happens if a request is 

not complete? 

If OSG determines that a Tribe’s/ 

Consortium’s request is not complete, 

OSG will notify the Tribe/Consortium 

that the request is not complete under 

§ 1000.125 by electronic mail and by 

letter, certified mail, return receipt 

requested no later than 45-days after 

receipt of the Tribe’s/Consortium’s 

request. The email and letter will 

explain what the Tribe/Consortium 

must do to complete the request. 

§ 1000.190 What happens if a Tribe/ 

Consortium is selected to participate but 

does not execute a compact and a funding 

agreement? 

(a) The Tribe/Consortium remains 

eligible to negotiate a compact and 

funding agreement at any time unless: 

(1) It does not satisfy the eligibility 

requirements under 25 U.S.C. 5362(c); 

or 

(2) Submits a Tribal resolution or 

official action by the Tribal governing 

body to the Director, OSG requesting to 

withdraw its request to participate in 

Self Governance. 

(b) Whether or not a Tribe/ 

Consortium executes an agreement has 

no effect on the selection of up to 50 

new Tribes/Consortia in a subsequent 

year. 

§ 1000.195 May a Tribe/Consortium be 

selected to negotiate a funding agreement 

under section 403(b)(2) 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). 

§ 1000.200 May a Tribe/Consortium be 

selected to negotiate a funding agreement 

under section 403(c) (25 U.S.C. 5363(c)) 

without negotiating a funding agreement 

under 25 U.S.C. 5363(b)(1) and/or section 

403(b)(2) (25 U.S.C. 5363(b)(2))? 

No, 25 U.S.C. 5363(c) of the Act states 

that any programs of special geographic, 

cultural, or historical significance to the 

Tribe/Consortium must be included in 

funding agreements negotiated under 25 

U.S.C. 5363(a) and/or 25 U.S.C. 5363(b). 

A Tribe may be selected to negotiate a 

funding agreement under 25 U.S.C. 

5363(c) at the same time that it 

negotiates a funding agreement under 25 

U.S.C. 5363(b)(1) and/or 25 U.S.C. 

5363(b)(2). 

Withdrawal From a Consortium 

Funding Agreement 

§ 1000.205 What happens when a Tribe 

wishes to withdraw from a Consortium 

funding agreement? 

(a) A Tribe wishing to withdraw from 

all or a part of a Consortium’s funding 

agreement must notify the parties to the 

compact and funding agreement. The 

notice must: 

(1) Be in the form of a Tribal 

resolution or other official action by the 

Tribal governing body; and 

(2) Be received no later than 180 days 

before the effective date of the next 

Consortium funding agreement, unless 

the parties agree to another date. 

(b) The resolution referred to in 

paragraph (a) of this section must 

indicate whether the Tribe wishes the 

withdrawn programs to be administered 

under a title IV funding agreement, title 

I contract, or directly by the bureau. 

(c) The effective date of the 

withdrawal will be the date specified in 

the Tribal resolution and mutually 

agreed upon by the parties that signed 

the compact and funding agreement. In 

the absence of a specific time set forth 

in the resolution, such withdrawal 

becomes effective on: 

(1) The earlier of one year after the 

date of submission of the request, or the 

date on which the funding agreement 

expires; or 

(2) Such date as may be mutually 

agreed upon by the withdrawing Tribe 

and the parties that signed the compact 

and funding agreement. 

§ 1000.210 How are funds redistributed 

when a withdrawing Tribe fully or partially 

withdraws from a compact and funding 

agreement and enters a new contract or 

compact? 

When a Tribe eligible to enter into a 

contract under title I or a compact or 

funding agreement under title IV fully 

or partially withdraws from a 

participating Consortium, and has 

proposed to enter into a contract or 

compact and funding agreement 

covering the withdrawn funds: 

(a) The withdrawing Tribe is entitled 

to its Tribal share of funds supporting 

those programs that the Tribe will be 

carrying out under its own contract or 

compact and funding agreement 

(calculated on the same basis or 

methodology upon which the funds 

were included in the Consortium’s 

funding agreement); and 

(b) The funds referred to in paragraph 

(a) of this section must be transferred 

from the Consortium’s funding 

agreement, on the condition that the 

provisions of 25 U.S.C. 5321 and 

5324(i), as appropriate, apply to the 

withdrawing Tribe. 

§ 1000.215 If the withdrawing Tribe elects 

to operate a program carried out under a 

compact and funding agreement under title 

IV through a contract under title I, is the 

resulting contract considered a mature 

contract under 25 U.S.C. 5304(h)? 

If a Tribe withdrawing from a 

Consortium’s funding agreement elects 

to operate a program carried out under 

a compact and funding agreement under 

title IV through a contract under title I, 

at the option of the Tribe, the resulting 

contract is considered a mature contract 

as long as the Tribe meets the 

requirements set forth in 25 U.S.C. 

5304(h). 

§ 1000.220 How are funds distributed 

when a withdrawing Tribe fully or partially 

withdraws from a Consortium’s compact 

and funding agreement and the withdrawing 

Tribe does not enter a new contract or 

compact? 

All funds not obligated by the 

Consortium associated with the 

withdrawing Tribe’s returned Tribal 

share of funds, less close out costs, shall 


lotter on DSK11XQN23PROD with RULES4
100256 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

be returned by the Consortium to DOI 

for operation of the programs included 

in the withdrawal. 

§ 1000.225 What amount of funding is to 

be removed from the Consortium’s funding 

agreement for the withdrawing Tribe? 

When a Tribe withdraws from a 

Consortium, the Consortium’s funding 

agreement must be reduced by the 

portion of funds attributable to the 

withdrawing Tribe. The Consortium 

must reduce the funding agreement on 

the same basis or methodology upon 

which the funds were included in the 

Consortium’s funding agreement. 

(a) If there is not a clear identifiable 

methodology upon which to base the 

reduction for a particular program, the 

parties to the compact and funding 

agreement must negotiate an 

appropriate amount on a case-by-case 

basis. 

(b) If a Tribe withdraws in the middle 

of a funding year, the Consortium 

agreement must be amended to reflect: 

(1) A reduction based on the amount 

of funds passed directly to the Tribe, or 

already spent or obligated by the 

Consortium on behalf of the Tribe; and 

(2) That the Consortium is no longer 

providing those programs associated 

with the withdrawn funds. 

(c) Unexpended funds from a 

previous fiscal year may be factored into 

the amount by which the Consortium 

agreement is reduced if: 

(1) The parties to the compact and 

funding agreement and the withdrawing 

Tribe agree it is appropriate; and 

(2) The funds are clearly identifiable. 

§ 1000.230 What happens if there is a 

dispute between the Consortium and the 

withdrawing Tribe? 

(a) The withdrawing Tribe and the 

parties to the compact and funding 

agreement must reach an agreement on 

the amount of funding and other issues 

associated with the program(s) involved. 

(b) If agreement is not reached: 

(1) For BIA Programs, the Director of 

OSG must make a decision on the 

funding or other issues involved within 

45-days of the Tribe’s or Consortium’s 

written submittal of the dispute to the 

Director of OSG with a copy to the other 

party. 

(2) For non-BIA Programs, the bureau 

head will make a decision on the 

funding or other issues involved. 

(c) A copy of the decision made under 

paragraph (b) of this section must be 

distributed in accordance with the 

following table: 

If the program 

is administered 

through . . . 

then a copy of the decision 

must be sent to . . . 

(1) The BIA .... The BIA Regional Director, 

the BIA Director, the withdrawing Tribe, and the 

Consortium. 

(2) The BIE .... The BIE Associate Deputy 

Director, the BIE Director, 

the withdrawing Tribe, and 

the Consortium. 

(3) The BTFA The BTFA Director, the withdrawing Tribe, and the 

Consortium. 

(4) The Office 

of the Assistant Secretary—Indian Affairs.

The Assistant Secretary for 

Indian Affairs, the withdrawing Tribe, and the 

Consortium. 

(d) Any decision made under 

paragraph (b) of this section is 

appealable under subpart R of this part. 

§ 1000.235 When a Tribe withdraws from a 

Consortium, is the Secretary required to 

award to the withdrawing Tribe a portion of 

funds associated with a construction 

project if the withdrawing Tribe so 

requests? 

Under § 1000.205, a Tribe may 

withdraw from a Consortium and 

request that the Secretary award the 

Tribe its portion of a construction 

project’s funds. The Secretary may 

decide not to award these funds if the 

Secretary determines that the award of 

the withdrawing Tribe’s portion of 

funds would affect the ability of the 

remaining members of the Consortium 

to complete a severable or non-severable 

phase of the project within available 

funding. 

(a) An example of a non-severable 

phase of a project would be the 

construction of a single building to 

serve all members of a Consortium. 

(b) An example of a severable phase 

of a project would be the funding of a 

road in one village where the 

Consortium would be able to complete 

the roads in other villages that were part 

of the project approved initially in the 

funding agreement. 

(c) The Secretary’s decision under this 

section may be appealed under subpart 

R of this part. 

Subpart C—Planning and Negotiation 

Grants for BIA Programs 

§ 1000.301 What is the purpose of this 

subpart? 

This subpart describes how a Tribe/ 

Consortium seeking to begin or expand 

its participation in self-governance may 

request grants to assist with its required 

planning phase and to negotiate a 

compact and funding agreement. 

§ 1000.305 Are there grants available to 

assist Tribes/Consortia to meet the 

requirements to participate in selfgovernance? 

Yes, any Tribe/Consortium may 

apply, as provided in § 1000.315, for a 

grant to assist it to: 

(a) Plan to participate in selfgovernance; and 

(b) Negotiate the terms of the compact 

and funding agreement between the 

Tribe/Consortium and the Secretary. 

§ 1000.310 What is required to request 

planning and negotiation grants? 

A Tribe/Consortium seeking a 

planning or negotiation grant must 

submit the following: 

(a) A resolution or other final action 

by the Tribe’s/Consortium’s governing 

body requesting to begin or expand its 

participation in self-governance and to 

receive a grant; and 

(b) For a Tribe/Consortium required to 

perform an annual audit under the 

Single Audit Act and subpart F of 2 CFR 

part 200, evidence showing that the 

Tribe/Consortium has no uncorrected 

significant and material audit 

exceptions in the required annual audit 

of its self-determination or selfgovernance agreements with any 

Federal agency for the three fiscal years 

preceding its current request to 

participate in self-governance. 

§ 1000.315 Are planning and negotiation 

grants available? 

Subject to the availability of funds, 

the Department will annually publish a 

notice of the number of planning and 

negotiation grants available, an 

explanation of the application process 

for such grants, and the criteria for 

award. Questions may be directed to the 

OSG. 

§ 1000.320 Must a Tribe/Consortium 

receive a planning or negotiation grant to 

be eligible to participate in selfgovernance? 

No, a Tribe/Consortium may use other 

resources to meet the planning 

requirement and to negotiate. The award 

of a planning grant or a negotiation 

grant is not required in order to meet the 

planning phase requirement of the Act 

or to negotiate a compact or funding 

agreement. 

§ 1000.325 What happens if there are 

insufficient funds to award all of the 

requests for planning and negotiation 

grants in any given year? 

The Secretary must give funding 

priority to approved requests for 

negotiation grants if there are 

insufficient funds to award all the 

approved requests for planning and 

negotiation grants in any given year. 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100257 

§ 1000.330 May a Tribe/Consortium that 

has received a planning grant also receive 

a negotiation grant? 

Yes. A planning grant and a 

negotiation grant may be awarded to the 

same Tribe/Consortium in the same or 

separate years. 

§ 1000.335 What are the Secretary’s 

responsibilities upon a decision not to 

award a planning or negotiation grant? 

The Secretary must communicate in 

writing the reasons for denying a 

planning or negotiation grant, and offer 

the Tribe/Consortium any technical 

assistance that might make an award 

possible. 

§ 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 

§ 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. 

§ 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 

§ 1000.1025(b)(2). 

§ 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. 

§ 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 selfgovernance; or 

(b) Has been selected to participate in 

self-governance; or 

(c) Has negotiated and entered into an 

existing funding agreement. 

§ 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. 

§ 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 nonBIA 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 nonBIA bureau where questions about the 

grants can be directed. Notices for 

planning and negotiation grants for BIA 

programs are covered in § 1000.315. 

§ 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 § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1000.450 Can an applicant 

administratively appeal a decision not to 

award financial assistance? 

No, all decisions made by the nonBIA bureau director/commissioner to 

award or not to award financial 

assistance under this subpart are final 

for the Department. 

§ 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
100258 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

Subpart E—Compacts 

§ 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. 

§ 1000.505 Which DOI office negotiates 

self-governance compacts? 

The DOI OSG negotiates selfgovernance compacts. 

§ 1000.510 What is included in a selfgovernance compact? 

A compact shall include general terms 

setting forth the government-togovernment 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 § 1000.515. 

§ 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. 

§ 1000.520 Is a compact required to 

participate in self-governance? 

Yes, a Tribe/Consortium must have a 

compact in order to participate in selfgovernance. 

§ 1000.525 Can a Tribe/Consortium 

negotiate other terms and conditions? 

Yes, the Secretary and a selfgovernance 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). 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 1000.601 What is the purpose of this 

subpart? 

This subpart describes the 

components of funding agreements for 

BIA programs. 

§ 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 

§ 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 § 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 §§ 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; 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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). 

§ 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. 

§ 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 

§ 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). 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100260 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100261 

inherent Federal function as described 

in §§ 1000.685 through 1000.695. 

§ 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 formuladriven 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-selfgovernance 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 Tribeby-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 onetime or non-recurring funding for which 

a Tribe is eligible. 

§ 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. 

§ 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 formuladriven methodology would no longer be 

eligible to compete for these funds. 

§ 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.’’ 

§ 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 

§ 1000.710. 

§ 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. 

§ 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 selfgovernance. 

(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 

§ 1000.745 What are self-governance 

stable base budgets? 

(a) A Tribe/Consortium selfgovernance 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 nonrecurring 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 selfgovernance 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100262 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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. 

§ 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. 

§ 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 selfgovernance. 

(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 

§ 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. 

§ 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 selfgovernance 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. 

§ 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). 

§ 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). 

§ 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. 

§ 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)). 

§ 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 nonBIA 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. 

§ 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. 

§ 1000.840 May a non-BIA bureau include 

in a funding agreement, on a noncompetitive 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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. 

§ 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. 

§ 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 

(§§ 1000.2010(c) and 1000.2012), the 

Secretary must provide a written 

rationale if the Secretary does not 

include such program. 

§ 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 

§ 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 § 1000.855. 

§ 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 § 1000.860. 

§ 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. 

§ 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. 

§ 1000.880 When will this determination be 

made? 

It will occur during the prenegotiation process, subject to the 

timeframes in subpart H of this part (see 

e.g., §§ 1000.1035 and 1000.1050). 

§ 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. 

§ 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. 

§ 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100264 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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. 

§ 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. 

§ 1000.910 Do Tribes/Consortia need 

Secretarial approval to reallocate funds 

between title I eligible programs that the 

Tribe/Consortium administers under a nonBIA 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. 

§ 1000.915 Can a Tribe/Consortium 

negotiate a funding agreement with a nonBIA 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. 

§ 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 nonBIA funding agreement may be 

amended during the year it is in effect 

as agreed to by both the Tribe/ 

Consortium and the Secretary. 

§ 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 

§ 1000.1001 What is the purpose of this 

subpart? 

This subpart provides the process and 

timelines for negotiating a selfgovernance compact with the Secretary 

and a funding agreement with any 

bureau. 

§ 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. 

§ 1000.1010 Who may initiate the 

information phase? 

Any Tribe/Consortium that has been 

selected to participate in selfgovernance may initiate the information 

phase. 

§ 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. 

§ 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 

SGINFORMATION-REQUEST@bia.gov; 

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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100265 

Tribe/Consortium in the negotiation 

process. 

§ 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. 

§ 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. 

§ 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 

SGNEGOTIATION-REQUEST@bia.gov; 

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. 

§ 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. 

§ 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 prenegotiation 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
100266 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

§ 1000.1060 What issues must the bureau 

and the Tribe/Consortium address at 

negotiation meetings? 

The negotiation meetings referred to 

in § 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. 

§ 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 § 1000.1075. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1000.1090 What is the process for 

negotiating a subsequent funding 

agreement? 

The Tribe/Consortium and the bureau 

shall use the procedures in §§ 1000.1005 

through 1000.1070. 

Subpart I—Final Offer 

§ 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. 

§ 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). 

§ 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 SGFINALOFFER@bia.gov 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.’’ 

§ 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. 

§ 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. 

§ 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 

§ 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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. 

§ 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). 

§ 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. 

§ 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). 

§ 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 

§ 1000.1145 not more than 60 days after 

the receipt of a final offer, or a later date 

in accordance with § 1000.1130. 

§ 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. 

§ 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. 

§ 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). 

§ 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). 

§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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 § 1000.1240. 

§ 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 

SGWAIVER-REQUEST@bia.gov; 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 § 1000.1210(a), must be a 

separate document from the compact, 

funding agreement, or amendment and 

clearly identified as a ‘‘Waiver 

Request.’’ 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
100268 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

§ 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. 

§ 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. 

§ 1000.1235 How does the Secretary 

respond to a waiver request? 

Within 10 business days of receipt, 

the officials designated by the Secretary 

in § 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. 

§ 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 

§ 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. 

§ 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. 

§ 1000.1250 What happens if the Secretary 

neither approves nor denies a waiver 

request within the time specified in 

§ 1000.1240? 

If the Secretary fails to make a 

determination with respect to a waiver 

request within the period specified in 

§ 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. 

§ 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 

§ 1000.2315. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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 

§ 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 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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 

§ 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 § 1000.1515. 

§ 1000.1306 May a program or projectspecific 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. 

§ 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. 

§ 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
100270 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

Notification and Project Assumption 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 1000.1355. In addition to these 

minimum requirements, a Tribe/ 

Consortium may include additional 

items for negotiation. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100271 

NEPA Process 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1000.1395 May a Tribe/Consortium act as 

a cooperating agency or joint lead agency 

for environmental review purposes 

regardless of whether it exercises its option 

under § 1000.1370(a)(1)? 

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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100272 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1000.1455 What happens when a Tribe/ 

Consortium, suspended under § 1000.1445 

for substantial failure to carry out the terms 

of a funding agreement that includes a 

construction project or program or a 

construction project agreement under title 

IV of the ISDEAA without good cause, does 

not correct the failure during the 

suspension? 

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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100274 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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 § 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. 

§ 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 

§ 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. 

§ 1000.1475 Is a Tribe/Consortium required 

to submit construction project progress 

and financial reports for construction 

projects? 

Yes, as required under § 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 

§ 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. 

§ 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. 

§ 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100275 

provisions are inconsistent with this 

subpart. 

§ 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 § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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). 

§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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. 

§ 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). 

§ 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100276 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

benefits unless the employee receives 

additional compensation for performing 

covered services from anyone other than 

the Tribe/Consortium. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 1000.1635(c) to the 

contacts given in paragraphs (a) and (b) 

of this section. 

Subpart M—Reassumption 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100277 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1000.1730 What steps must the 

Secretary take prior to reassumption 

becoming effective? 

Except as provided in § 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 § 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. 

§ 1000.1735 Does the Tribe/Consortium 

have a right to a hearing prior to a nonimmediate 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 § 1000.1730(b). 

§ 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. 

§ 1000.1745 What is the earliest date on 

which a reassumption by the Secretary can 

be effective? 

Except as provided in § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
100278 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

Subpart N—Retrocession 

§ 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. 

§ 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. 

§ 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 §§ 1000.205 through 1000.235. 

§ 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 nonBIA programs; and 

(b) A Tribal resolution or other official 

action of its governing body. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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). 

§ 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 

§ 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. 

§ 1000.1905 Does the Act alter the trust 

responsibility of the United States to Indian 

Tribes and individuals under selfgovernance? 

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. 

§ 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. 

§ 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. 

§ 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 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 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. 

§ 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 

§ 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 § 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. 

§ 1000.1935 May the trust evaluation 

process be used for additional reviews? 

Yes, if the parties agree in writing to 

such additional reviews. 

§ 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 § 1000.1930(b). 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1000.1965 Who is responsible for taking 

corrective action? 

The Tribe/Consortium is primarily 

responsible for identifying and 


lotter on DSK11XQN23PROD with RULES4
100280 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

implementing corrective actions for 

matters contained in the funding 

agreement, but the Department may also 

suggest possible corrective measures for 

Tribal/Consortium consideration. 

§ 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 § 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). 

§ 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 

§ 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. 

§ 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 selfgovernance 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. 

§ 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 selfgovernance, 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. 

§ 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 selfgovernance under the Act, the Secretary 

shall review all non-BIA programs 

without regard to the agency or office 

concerned. 

§ 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 selfgovernance, revised lists under 

§ 1000.2010(c)(1) and (2) and 

programmatic targets under 

§ 1000.2010(e), and make such 

information available to all participating 

Tribes/Consortia. 

§ 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. 

§ 1000.2020 What may the Tribe’s/ 

Consortium’s annual report on selfgovernance 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 selfgovernance. The report is not intended 

to be burdensome, and Tribes/Consortia 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100281 

are encouraged to design and present 

the report in a brief and concise manner. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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). 

§ 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). 

§ 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. 

§ 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100282 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100283 

§ 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. 

§ 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. 

§ 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 

§ 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. 

§ 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 § 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. 

§ 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. 

§ 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 

§ 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’’. 

§ 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
100284 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

(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 

§ 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 §§ 1000.2405 through 

1000.2430), the Tribe/Consortium may 

appeal post-award administrative 

decisions to the Civilian Board of 

Contract Appeals (CBCA). 

§ 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 ‘‘selfdetermination contract’’ mean compacts 

and funding agreements entered into 

under the Act; and 

(b) The term ‘‘Tribe’’ means ‘‘Tribe/ 

Consortium’’. 

Pre-Award Disputes 

§ 1000.2345 What decisions may a Tribe/ 

Consortium appeal under §§ 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. 

§ 1000.2350 What decisions may not be 

appealed under §§ 1000.2345 through 

1000.2395? 

Decisions that may not appealed 

under §§ 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 § 1000.1750 which are 

covered under §§ 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 

§ 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). 

§ 1000.2351 To Whom may a Tribe/ 

Consortia appeal a decision under 

§ 1000.2345? 

(a) Filing an appeal. A Tribe/ 

Consortium may elect to file a dispute 

under § 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 § 1000.2360(c), of this 

subpart), the bureau head will decide 

initial appeals relating to these preaward matters, that include but are not 

limited to disputes regarding: 

(1) Eligibility to participate in selfgovernance; 

(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. 

§ 1000.2355 How does a Tribe/Consortium 

know where and when to file an appeal? 

Every decision in any of the areas 

listed in § 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 

§ 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. 

§ 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 § 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— 

Indian Affairs or 

OSG.

The Assistant Secretary for Indian Affairs. 

(b) The appropriate Assistant 

Secretary for any BIA Program, for 

purposes of § 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 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100285 

oversees the appropriate non-BIA 

bureau which issued the initial adverse 

decision. 

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? 

(a) If a Tribe/Consortium wishes to 

exercise its appeal rights to the bureau 

head/Assistant Secretary under 

§ 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. 

§ 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 § 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. 

§ 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 

§ 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 

§ 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 § 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. 

§ 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 § 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. 

§ 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. 

§ 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 

§§ 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 ‘‘selfdetermination contract’’ mean compacts 

and funding agreements entered into 

under the Act; and 

(b) The term ‘‘Tribe’’ means ‘‘Tribe/ 

Consortium.’’ 

§ 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
100286 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

subpart. Decisions can be found on the 

Department’s website. 

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)? 

If the Secretary immediately 

reassumes a program under § 1000.1750, 

the Secretary must comply with 

§§ 1000.2410 through 1000.2430. 

§ 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 § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 1000.2430 Will an immediate 

reassumption appeal adversely affect the 

Tribe’s/Consortium’s rights in other selfgovernance 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 

§ 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 

§ 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. 

§ 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 100287 

immediately disclose the conflict to the 

Secretary. 

§ 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. 

§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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 Nationto-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, inperson 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. 

§ 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. 


lotter on DSK11XQN23PROD with RULES4
100288 Federal Register / Vol. 89, No. 238 / Wednesday, December 11, 2024 / Rules and Regulations 

§ 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. 

§ 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. 

§ 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 


lotter on DSK11XQN23PROD with RULES4