[Federal Register Volume 64, Number 141 (Friday, July 23, 1999)]
[Proposed Rules]
[Pages 40084-40103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17340]


      

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Part III





Environmental Protection Agency





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40 CFR Part 35



Environmental Program Grants for Indian Tribes; Proposed Rule

  Federal Register / Vol. 64, No. 141 / Friday, July 23, 1999 / 
Proposed Rules  

[[Page 40084]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[FRL-6373-2]
RIN 2030-AA56


Environmental Program Grants for Indian Tribes

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to revise and update requirements in 
several Environmental Protection Agency (EPA) regulations, particularly 
subpart A of 40 CFR part 35, governing grants to Indian Tribes and 
Intertribal Consortia. It creates a new Tribal-specific subpart which 
contains only the provisions for environmental program grants that 
apply to Tribes; simplifies, clarifies, and streamlines current 
provisions for environmental program grants to Tribes, and addresses 
the Performance Partnership Grant (PPG) program for Tribes. The PPG 
program fosters EPA's continuing efforts to improve partnerships with 
its Tribal recipients by increasing flexibility in using environmental 
program funding. The regulation reflects efforts by EPA and its Tribal 
partners to increase administrative and programmatic flexibility for 
Tribes while moving toward improved environmental protection.

DATES: Please submit comments on this proposed rule by September 7, 
1999.

ADDRESSES: Written comments should be submitted to: Performance 
Partnership Grants--Tribal Comment Clerk (Docket #WD-98-16); Water 
Docket (MC-4104); U.S. Environmental Protection Agency; 401 M Street, 
SW; Washington, DC 20460. Comments may be hand-delivered to the Water 
Docket; U.S. Environmental Protection Agency; 401 M Street, SW; East 
Tower Basement; Washington, DC 20460. Comments may be submitted 
electronically to [email protected].

FOR FURTHER INFORMATION CONTACT: Maureen J. Ross, Grants Policy, 
Information, and Training Branch (3903R), United States Environmental 
Protection Agency, 401 M. Street, SW, Washington, DC 20460 (202) 564-
5356.

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

    Entities regulated by this action are eligible to receive the 
environmental grants listed in 40 CFR 35.501. Regulated categories and 
entities include:

------------------------------------------------------------------------
                 Category                        Regulated entities
------------------------------------------------------------------------
Government................................  Federally recognized Indian
                                             Tribal Governments.
Other Entities............................  Intertribal Consortia.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that could potentially 
be regulated by this action. Other types of entities not listed in the 
table could also be regulated. To determine whether your organization 
is regulated by this action, you should carefully examine the 
definitions of Tribe and Intertribal Consortium in Sec. 35.502 and in 
the specific program rules found following Sec. 35.540 of the proposed 
rule. If you have questions regarding the applicability of this action 
to a particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

II. Comments and Record

    Please submit an original and three copies of your comments and 
enclosures (including references). The Agency requests that commenters 
follow the following format: Type or print comments in ink, and cite, 
where possible, the paragraphs in this notice to which each comment 
refers. Electronic comments must be submitted as a WP5.1 or WP6.1 file 
or as an ASCII file avoiding the use of special characters. Comments 
and data will also be accepted on disks in the formats above. 
Electronic comments may be filed online at many Federal Depository 
Libraries. Commenters who want EPA to acknowledge receipt of their 
comments should include a self-addressed, stamped envelope. No 
facsimiles (faxes) will be accepted.
    The record for this Notice, which includes supporting documentation 
as well as printed, paper versions of electronic comments, is available 
for inspection from 9 to 4 p.m. (Eastern Time), Monday through Friday, 
excluding legal holidays, at the Water Docket, U.S. EPA Headquarters, 
401 M Street, SW; East Tower Basement; Washington, DC 20460. For access 
to docket materials, please call 202-260-3027 to schedule an 
appointment.

III. Background

    The United States Government has a unique legal relationship with 
Tribal governments as set forth in the United States Constitution, 
treaties, statutes, executive orders, and court decisions. EPA 
recognized this uniqueness of Tribal governments by issuing and 
reaffirming its 1984 policy on the ``Administration of Environmental 
Programs on Indian Reservations.'' Specifically, EPA recognizes the 
existence of the trust responsibility in Principle Number 5 of its 
Indian Policy, which states that the Agency will assure that Tribal 
concerns and interests will be considered when Agency actions may 
affect Tribal environments. Additionally, in 1994, the President of the 
United States issued a presidential memorandum for the heads of 
Executive Departments and Agencies reaffirming the government-to-
government relationships with Native American Tribal Governments. Most 
recently, on May 14, 1998, the President issued Executive Order 13084, 
``Consultation and Coordination With Tribal Governments.'' The 
Executive Order addresses regular and meaningful consultation and 
collaboration with Indian Tribal governments in developing regulatory 
policies on federal matters affecting their communities, reducing the 
imposition of unfunded mandates on Indian Tribal governments, and 
streamlining the application process and increasing the availability of 
statutory or regulatory waivers for Indian Tribal governments. 
Consistent with these principles, this regulation provides an easy-to-
use Tribal-specific subpart to optimize the administration of Tribal 
assistance programs through increased flexibility and to remove 
procedural impediments to effective environmental programs for Indian 
Tribes.
    In various program specific regulations in this subpart we have 
used terms such as ``treatment as a State'' or ``treatment in a manner 
similar to a State.'' We have used those terms because they are in the 
statutes authorizing awards to Tribes. EPA recognizes that Tribes are 
sovereign nations with a unique legal status and a relationship to the 
federal government that is significantly different than that of States. 
EPA believes that Congress did not intend to alter this when it 
authorized treatment of Tribes ``as States;'' rather, the purpose was 
to reflect an intent that, insofar as possible, Tribes should assume a 
role in implementing the environmental statutes on Tribal land 
comparable to the role States play on State land.
    Generally, the administration of financial assistance to Tribes is 
the same as the administration of financial assistance to States. 
However, there are provisions in some assistance programs unique to 
Indian Tribes. For example, Indian Tribes currently compete with each 
other for limited financial resources in many of the Tribal 
environmental grant programs listed

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under Sec. 35.501(a) of the proposed rule. Thus, the stability of 
annual grant funding for State, interstate, and local environmental 
programs grants (see 40 CFR part 35, subpart A) is not shared by 
Tribes. Indian Tribes do not currently receive and cannot rely on 
continuity of funding from year to year. This uncertainty in financial 
assistance makes long-term environmental planning difficult. Therefore, 
the administration of these programs by EPA requires a different 
approach compared to the approach used when administering an 
environmental program for State, interstate, or local government 
agencies.
    EPA and many Indian Tribal governments have forged partnerships on 
a government-to-government basis . An important mechanism to further 
support these relationships was established when EPA requested and 
received authorization for a Performance Partnership Grants (PPG) 
program for Indian Tribes and Intertribal Consortia. (Omnibus 
Consolidated Rescissions and Appropriations Act of 1996, Public Law 
104-134, 110 Stat. 1321, 1321-299 (1996); Departments of Veterans 
Affairs and Housing and Urban Development, and Independent Agencies 
Appropriations Act, 1998, Public Law 105-65, 111 Stat. 1344, 1373 
(1997)). PPGs allow eligible Tribes and Intertribal Consortia to 
combine environmental program grants into a single grant in order to 
improve environmental performance, increase programmatic flexibility, 
achieve administrative savings, and strengthen the partnerships between 
States, Indian Tribes, and EPA. Environmental program grants that may 
be included in PPGs are listed in 40 CFR 35.501(a) and funded under 
EPA's State and Tribal Assistance Grant (STAG) appropriation.
    This regulation will be codified in 40 CFR part 35, subpart B, as 
``Environmental Program Grants for Indian Tribes.'' Subpart B 
incorporates administrative provisions for grants formerly included in 
40 CFR part 35, subparts A and Q. This regulation supplements EPA's 
regulation, ``Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments,'' contained in 
40 CFR part 31, which will apply to grants awarded under this 
regulation (including grants to Intertribal Consortia as defined in 
Sec. 35.502, regardless of whether the Consortia are organized as 
nonprofit corporations).
    We have used the terms ``Tribe'' and ``Intertribal Consortium'' to 
refer to the entities eligible to receive grants throughout this 
subpart. Those terms are defined in Sec. 35.502 for environmental 
programs that do not include their own program-specific definitions. 
When the definition of either term is different in a specific program 
provision in Secs. 35.540 through 35.718 of the rule, the specific 
definition will determine the entities eligible for a grant under such 
programs.

IV. Requirements for All Environmental Program Grants

    Sections 35.500 through 35.518 apply to all environmental program 
grants covered by 40 CFR part 35, subpart B, including PPGs. This rule 
contains changes to foster Tribal-EPA partnerships, improve 
accountability for environmental and program performance, and 
streamline administrative requirements. Some of the rule's key features 
are discussed below.

Tribal-EPA Partnerships

    To foster joint planning and priority setting, the rule explicitly 
requires consideration of Tribal priorities along with national and 
regional guidance in negotiating all grant work plans. All Tribes are 
provided flexibility through the work plan negotiation process, and, in 
particular, through their ability to organize work plan components in 
whatever way fits the Tribe best. Tribes applying for PPGs will have 
still greater flexibility as described in the PPG discussion below. The 
EPA Regional Administrator must consult with the National Program 
Manager before agreeing to a Tribal work plan that deviates 
significantly from national program guidance. Where appropriate, the 
grant work plan will reflect both EPA and Tribal roles and 
responsibilities in carrying out work plan commitments and there will 
be a negotiated process for jointly evaluating performance.

Core Performance Measures

    Core performance measures for Tribal programs are still evolving 
and may be different from those negotiated by EPA National Program 
Managers with the States. When EPA has negotiated these measures with 
the Tribes, they will be included in national program guidance and 
incorporated, as appropriate, into Tribal/EPA Environmental Agreements 
and grant work plans as the basis for reporting requirements. Until the 
Tribal core performance measures are further developed, the regions 
should use significant work plan goals, objectives or commitments for 
measuring performance, as appropriate.

Accountability

    The proposed rule accommodates results-oriented approaches to 
planning and managing environmental programs. Definitions and other 
aspects of the rule dovetail with the new Government Performance and 
Results Act (GPRA) and reflect efforts to establish goals and 
objectives as well as environmental and program performance measures at 
both the national and Tribal levels. The rule recognizes the need for a 
mix of outcome (results) and output (activity) measures for management 
purposes. The rule encourages Tribes and Intertribal Consortia to 
organize their work plans around goals and objectives to reflect the 
new GPRA requirements.

Administrative Changes

    Under the proposed rule, Tribes can negotiate budget periods of 
more than one year with EPA thereby improving stability in the 
programs. EPA recommends, however, that budget periods not exceed five 
years because it is difficult to account for funds and maintain records 
for longer periods. (The budget period of a General Assistance Program 
(GAP) grant cannot exceed four years.)
    The rule streamlines some requirements and eliminates other 
requirements associated with post-award changes to grant work plan 
commitments and budgets. It replaces the requirements regarding changes 
found in 40 CFR 31.30. Prior written approval from EPA is still 
required for significant changes in a recipient's work plan 
commitments. Written, but not prior, approval is required for work that 
will result in a need for increases in grant amounts and extensions of 
the budget period. However, recipients beginning such work without 
prior, written approval do so at their own risk. EPA approval is no 
longer required for other changes in the work plan, budget, key 
persons, or to carry out portions of the work through subgrants or 
contracts unless the Regional Administrator determines, on a case-by-
case basis, that circumstances warrant imposing additional approval 
requirements on a particular recipient.

Pre-Award Costs

    Pre-award costs may be reimbursed under the grants without prior 
approval so long as they are incurred within the budget period, 
identified in the approved grant application, and would have been 
allowable if incurred after the award.

Intertribal Consortia

    Under this rule, EPA will treat a group of Tribes that applies for 
a grant

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(called an Intertribal Consortium in the rule) in the same manner as a 
single Tribe. Thus, in the absence of clear Congressional intent to the 
contrary, if a Tribe is eligible for a particular grant, EPA will also 
treat a group of individually eligible Tribes as eligible for the 
grant. EPA believes this approach is a practical, reasonable and 
prudent way to help interested Tribes strengthen environmental 
protection when limited funding is available to support Tribal 
environmental programs. Tribes that form Consortia may be able to use 
their limited resources more efficiently and address environmental 
issues more effectively than they could if each Tribe separately 
developed and maintained separate environmental programs Accordingly, 
Intertribal Consortia as defined in Sec. 35.502, will be eligible to 
receive grants under the programs listed in 40 CFR 35.501.
    For all grants except General Assistance Program (GAP) grants, all 
members of an Intertribal Consortium must be eligible to receive the 
grant and must authorize the Consortium to apply for and receive the 
grant. This means, for example, that for a Consortium to be eligible 
for a Clean Water Act section 106 grant, each member of the Consortium 
must establish that it is a federally recognized Tribe and that it has 
met the requirement for treatment in a manner similar to a State, 
because that is required for individual Tribes seeking section 106 
grants. If a grant authority does not require Tribes to establish 
eligibility for treatment in a manner similar to a State to receive a 
grant, then the authorizing members of a Consortium need not satisfy 
that prerequisite.
    For GAP grants, an Intertribal Consortium will be eligible if (1) a 
majority of the Consortium's members meet the eligibility requirements 
for the grant; (2) all members that meet the eligibility requirements 
authorize the Consortium to apply for and receive the grant; and (3) 
only the members that meet the eligibility requirements will benefit 
directly from the grant project and the Consortium agrees to a grant 
condition to that effect. This means that a Consortium may receive a 
GAP grant even if the Consortium includes Tribal governments that are 
not recognized as eligible for the special services provided by the 
United States to Indians because of their status as Indians so long as 
the Consortium meets the three requirements specified above. EPA 
decided to impose somewhat less restrictive requirements on Intertribal 
Consortia seeking GAP grants because the Indian Environmental General 
Assistance Program Act of 1992, 42 U.S.C. 4368b (IEGAPA), explicitly 
authorizes GAP grants to an ``intertribal consortium,'' which it 
defines as ``a partnership of two or more Indian Tribal governments 
authorized by the governing bodies of those Tribes to apply for and 
receive assistance pursuant to this section.'' This definition may 
reasonably be interpreted to include a Consortium comprised of a 
majority of federally recognized Tribes and a few non-recognized Tribal 
governments. Such a Consortium would be a partnership of federally 
recognized Tribes, although it would not be a partnership of only 
federally recognized Tribes. In effect, the recipient of the GAP grant 
to such an Intertribal Consortium would be a subset of the original 
Consortium consisting only of those individually eligible Tribes. The 
Agency is adopting this approach to meet those very rare circumstances 
where awarding a GAP grant to such a Consortium would be consistent 
with the intent of the IEGAPA.
    EPA believes its proposed approach for making environmental program 
grants available to Intertribal Consortia is consistent with President 
Clinton's Executive Order 13084, which encourages agencies to adopt 
``flexible policy approaches'' and to respect the principle of Indian 
self-government and sovereignty.

Preferences for Indians, Indian Organizations, and Indian-Owned 
Economic Enterprises

    Section 450e(b) of the Indian Self Determination Act (25 U.S.C. 450 
et seq.) provides:

    Any contract, subcontract, grant, or subgrant pursuant to this 
Act, the Act of April 16, 1934 (48 Stat. 596), as amended [25 USCS 
452 et seq.], or any other Act authorizing Federal contracts with or 
grants to Indian organizations or for the benefit of Indians shall 
require to the extent feasible'
    (1) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants shall 
be given to Indians; and
    (2) Preference in the award of subcontracts and subgrants in 
connection with the administration of such contracts or grants shall 
be given to Indian organizations and to Indian-owned economic 
enterprises as defined in section 3 of the Indian Financing Act of 
1974 (88 Stat. 77) [25 USCS Sec. 1452].

    EPA has determined that these preference requirements of the Indian 
Self-Determination Act apply to the award of grants, contracts, 
subcontracts and subgrants under the grant programs covered by this 
subpart. EPA seeks comments on implementing this provision. In 
particular, EPA seeks comments on adapting the requirements at 40 CFR 
31.36(c) (governing competition in procuring property and services 
under a grant) to reflect the preference requirements of the Indian 
Self-Determination Act.

V. Performance Partnership Grants

    Sections 35.530 through 35.538 contain the requirements that apply 
only to Performance Partnership Grants (PPGs) to Tribes or Intertribal 
Consortia. In a PPG, the recipient can combine funds from two or more 
environmental program grants into a single grant under streamlined 
administrative requirements. Before a Tribe or Intertribal Consortium 
can include funds from an EPA environmental program in a PPG, the Tribe 
or Intertribal Consortium must meet the requirements for that program 
with a few specified exceptions. For example, if a program requires 
treatment in a manner similar to a State, the Tribe or Tribal members 
of a Consortium must satisfy that requirement in order to include that 
program's funds in a PPG. The exceptions are requirements that restrict 
how a specific environmental program grant can be used after award. 
These requirements are not appropriate to be carried over to PPGs 
because after funds are awarded in a PPG, they may be used for cross-
media activities or strategies and do not need to be accounted for in 
accordance with their original program sources. However, the source of 
the funds is considered by the Regional Administrator in negotiating a 
work plan with the applicant. See Secs. 35.507(a) and 35.535. Key 
features of the PPG rule are discussed below.

Funds and Activities Eligible for Inclusion in a PPG

    Funds for any environmental program grant listed in Sec. 35.501 may 
be included in a PPG if the funds for that grant were appropriated in 
the same specific appropriation as the funds for PPGs. EPA will 
announce any changes in its appropriation acts that affect the list of 
programs in Sec. 35.501.
    Unlike the rule governing PPGs to States, Sec. 35.535 of this rule 
allows Tribes and Intertribal Consortia to use PPG funds for any 
environmental activity that is eligible under the environmental 
programs listed in Sec. 35.501 (except EPA-delegated or EPA-authorized 
activities, which still require delegation or authorization), 
regardless of whether a Tribe applied for or was selected for funding 
for that particular activity, provided that the Regional Administrator 
consults with the appropriate National Program Managers. The National 
Program Manager may expressly waive or modify the

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consultation requirement in national program guidance. For example, if 
EPA found that a Tribe was not eligible for a Clean Air Act section 105 
grant, but the Tribe wanted to perform air program monitoring or 
inspections, the Tribe could pay for those activities with PPG funds, 
provided that: (1) the Regional Administrator consulted with the 
National Program Managers for the sources of the PPG funds (unless 
waived in national program guidance) and (2) the activity was included 
in the approved PPG work plan. The Tribe would perform these air 
activities using Tribal authority. To implement an EPA-delegated or 
authorized program under a PPG, a Tribe would need the delegation(s) or 
authorization(s) as required under Sec. 35.535(a). Given the wide 
variety of environmental activities eligible under the General 
Assistance Program (GAP) (see Secs. 35.540--35.548), this will allow 
Tribes, as determined by the Regional Administrator, to use funds from 
other programs that are put into a PPG for the same wide variety of 
activities. Furthermore, this will allow Tribes to use GAP funds, if 
they are included in a PPG, to implement as well as develop 
environmental programs.
    Within the framework of EPA oversight established by Secs. 35.507, 
35.514(a), 35.535 and national program guidance, EPA is proposing that 
Tribes have considerable flexibility to use PPG funds for a broad 
variety of activities. EPA is proposing this approach because Tribes 
need to address a broad range of environmental issues, but do not have 
the same access to diverse funding sources as States and, generally, 
Tribes must compete annually for their funds while States do not. EPA 
believes this approach will help achieve a key purpose of the PPG 
program: to provide Tribes and Intertribal Consortia with the 
flexibility to direct resources where they are most needed to address 
environmental and public health priorities. EPA will retain sufficient 
programmatic control because Sec. 35.535(b) requires the Regional 
Administrator to consult with the appropriate National Program Managers 
before agreeing to a work plan that would differ significantly from any 
of the proposed work plans submitted with the Tribe's or the 
Consortium's applications for funds. For example, if a Tribe or 
Intertribal Consortium was selected for funding in a competition based 
on its proposed work plan for that grant and the Tribe or Consortium 
proposed a PPG work plan that would significantly modify those proposed 
work plan activities, then the Regional Administrator would have to 
consult with the National Program Manager associated with the funding 
source (unless waived in national program guidance). Accordingly, the 
Regional Administrator will be responsible for ensuring that the Tribes 
and Intertribal Consortia meet the basic requirements of programs which 
provide funds for the PPG before the Tribes use funds for other 
important activities.
    EPA intends to evaluate the flexibility provided under the rule 
regarding the activities eligible for funding under a PPG. After the 
third year of implementing the program, but before the end of the fifth 
year, the Agency will evaluate the environmental benefits of this 
flexibility as compared to the costs, which may include reduced 
accountability for funds and outcomes. Based on that evaluation, the 
Agency will determine whether to continue to allow Tribes to use PPG 
funds to perform activities under programs for which they are not 
eligible to receive a grant. If the Agency determines that a change in 
the regulation is appropriate, it will undertake a rulemaking to make 
such a change.

Administrative Flexibility

    A primary advantage of PPGs is the administrative flexibility 
provided to all PPG recipients. A PPG requires only a single 
application, work plan, and budget. Once funds are awarded in a PPG, 
the Tribe or Intertribal Consortium can direct the funds as needed to 
achieve work plan commitments and does not need to account for funds in 
accordance with their original program sources. These administrative 
features also make it possible for Tribes to negotiate a work plan that 
includes cross-media or innovative strategies for addressing 
environmental problems.

Cost Share

    The PPG cost share is the sum of the cost shares required for all 
individual program grants included in the PPG in accordance with 40 CFR 
35.536(b) and (c) for each individual program grant included in the 
PPG. EPA will not require Tribes and Intertribal Consortia to provide a 
PPG cost share for funds from programs which do not require cost 
shares, such as GAP. (Cost sharing requirements for individual programs 
are found under Secs. 35.540 through 35.718.) For funds from programs 
with a cost share requirement of five percent or less under the 
provisions of Secs. 35.540 through 35.718, the PPG cost share will be 
the same as the cost share for the individual programs, as identified 
in Secs. 35.540 through 35.718. For funds from programs with a required 
cost share greater than five percent, EPA is proposing a PPG cost share 
similar to that required under the Tribal Air Pollution Control program 
provision found at Sec. 35.575. For funds from such programs, EPA will 
require Tribes to provide a cost share of five percent; however, after 
the first two years, the Regional Administrator will determine through 
an objective assessment whether the Tribe or the members of an 
Intertribal Consortium meet socio-economic indicators that demonstrate 
the ability of the Tribe or the Intertribal Consortium to provide a 
cost share greater than five percent. If the Regional Administrator 
determines that the Tribe or members of the Intertribal Consortium meet 
such indicators, then the Regional Administrator shall increase the 
required cost share up to a maximum of 10 percent. If the Regional 
Administrator determines that the Tribe or the members of the 
Intertribal Consortium do not meet such indicators, then the cost share 
will remain at five percent. (The required cost share for the Tribal 
Water Pollution Control Grant Program (Clean Water Act, section 106) is 
five percent. Thus, this program is not included in the grant programs 
whose cost share could be raised to 10 percent through the Regional 
Administrator assessment and determination process.)
    Further, the Regional Administrator may waive the required PPG cost 
share at the request of the Tribe or Intertribal Consortium if the 
Regional Administrator determines, based on an objective assessment of 
socio-economic indicators that fulfilling the cost share requirement 
would impose undue hardship on the Tribe or members of the Intertribal 
Consortium.
    EPA invites suggestions for the socio-economic indicators for 
approval of the lower cost share and waiver of cost share, as well as 
suggestions for how the cost share for Intertribal Consortia should be 
calculated.

VI. Indian Environmental General Assistance Program (GAP) and 
Performance Partnership Grants

    An important and unique environmental program available only to 
Tribes and Intertribal Consortia is the Indian Environmental General 
Assistance Program (GAP) (40 CFR 35.540 et seq.) This program was 
created to assist Indian Tribes in developing the capacity to manage 
their own environmental programs. GAP offers the opportunity for Tribes 
to develop integrated environmental programs, to develop capacity to 
manage specific programs that can be delegated by EPA, and to plan and 
establish a core program for environmental protection. It also

[[Page 40088]]

provides the opportunity for Tribes to define and develop 
administrative and legal infrastructures, to conduct assessments, 
monitoring, and planning, and to undertake additional activities to 
develop environmental programs within a simplified administrative 
framework.
    GAP funds can be used more flexibly than categorical environmental 
program funds. EPA recognizes the Tribes' need for flexibility in using 
limited resources available for protecting Tribal environments, but 
believes that this need for flexibility must be balanced with the 
Agency's goals of establishing a strong Tribal environmental presence 
throughout Indian country and of diversifying financial resources 
available to Tribes for the administration of comprehensive 
environmental programs. GAP funds are primarily available for and 
critical to the development of sustainable, integrated Tribal 
environmental programs. The long-term goal of developing and 
maintaining an adequate level of funding for Tribal environmental 
programs will be best served not by increasing the number of activities 
that are funded by GAP, but rather by expanding and diversifying the 
use of various categorical environmental programs funds, in addition to 
the use of GAP funds.
    When Congress authorized the PPG program, it allowed GAP funds to 
be included in such a grant. However, to balance competing interests in 
the use of GAP funds, EPA encourages Tribes and Intertribal Consortia 
to continue to use GAP funds, at least in the first instance, for the 
development of Tribal capacity to manage environmental programs and not 
to use these funds for environmental media activities. EPA believes 
that the overriding value of the General Assistance Program lies in its 
ability to assist Tribes in the development of their environmental 
capacity. This original and primary purpose of GAP has not been fully 
realized since some Tribes have not yet developed an environmental 
program capacity. Including a GAP grant in a PPG should not result in a 
reduction of EPA media-specific environmental program assistance 
available to Indian Tribes and Tribal Consortia.

VII. Implementing GPRA

    EPA has developed an approach toward the integrated implementation 
of GPRA, the Chief Financial Officers Act (CFOA), and the Federal 
Financial Management Improvement Act of 1996 (FFMIA). These laws 
provide EPA with a framework to demonstrate to Congress and the 
taxpayers the costs to the federal government of EPA's program 
accomplishments or outcomes. Tribes and Intertribal Consortia, by 
virtue of delegated program authorities and as recipients of EPA grant 
funds, play an integral part in achieving those goals and objectives. 
Thus EPA's reports of Agency resources associated with results-based 
outcomes will incorporate--at some level--expenditures incurred in the 
form of payments to the Tribes under grants and cooperative agreements. 
In order to comply with the Paperwork Reduction Act and the federal 
government's general grant regulations, EPA also has a responsibility 
to minimize additional administrative reporting requirements and costs 
borne by the Tribes. In addition, under current regulations EPA 
generally may not impose accounting requirements on Tribes beyond those 
currently required by 40 CFR part 31.
    EPA will therefore use the budget information that Tribes and 
Intertribal Consortia provide in grant applications as a basis for 
linking the Agency's actual expenditures with EPA's results-based 
accomplishments or outcomes. EPA will be able to sufficiently rely on 
Tribal budget information to determine the costs of EPA's results-based 
outcomes based on the following three requirements of the proposed 
regulation:
    (1) Tribes and Intertribal Consortia provide the program budget 
information required as part of the application;
    (2) EPA and the recipients explicitly define work plan goals, 
objectives, outcomes, and outputs, as well as the program flexibility 
contained in the work plan; and
    (3) Recipients report back on work plan accomplishments.
    The proposed rule ensures that Tribes and Intertribal Consortia 
will meet these three conditions. EPA will thus have a reasonable basis 
for associating the costs of its grants with the Agency's results-based 
outcomes.
    EPA's Regional offices, with necessary consultation with 
recipients, will be responsible for cross-walking the State budget 
information (grant application and work plan data) into the GPRA goals 
and objectives architecture. If a grant is subsequently amended to 
reflect significant adjustments to work plan commitments, the region 
will consult with the State to develop an estimate of the budget 
associated with the revision so that it can be reflected in regional 
GPRA reporting. The Office of the Chief Financial Officer will provide 
regions with guidance on the approach to use for the cross-walk process 
to ensure that the results achieved by States with EPA funds are 
captured in the Agency's Annual Performance Reports.

VIII. Program Specific Provisions

    Requirements applicable to each environmental grant program, such 
as the requirements regarding eligibility and cost share, are located 
in 40 CFR 35.540 through 35.718.

Programs Not Specifically Available to Tribes

    Sections 28 and 306 of the Toxic Substances Control Act (TSCA) and 
section 6605 of the Pollution Prevention Act (PPA) provide explicit 
authority for grants to States, but are silent regarding grants to 
Tribes. This rule reflects EPA's determination that those statutes may 
also be interpreted to authorize grants to Tribes for radon abatement 
(TSCA section 306) and toxic substances compliance monitoring programs 
(TSCA sections 28), and reaffirms EPA's determination that Tribes are 
eligible for Pollution Prevention Incentive grants under section 6605 
of the PPA (see, e.g., 56 FR 11553 (1991)).
    Previously, EPA determined that it has the authority to approve 
Tribal lead-based paint abatement certification and training programs 
and make grants to Tribes under section 404(g) of TSCA for the 
development and implementation of such programs even though TSCA makes 
no mention of Tribes. 61 FR 45778, 45805-808 (1996). The Agency 
reasoned that its interpretation of TSCA is governed by the principles 
of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 
837 (1984) and that because Congress had not explicitly stated its 
intent in adopting the statutory provision, the Agency could adopt an 
interpretation which in its expert judgment is reasonable in light of 
the goals and purposes of the statute. EPA opined further that since 
TSCA did not define a role for Tribes, there was an ambiguity in 
Congressional intent and therefore, the Agency's interpretation of TSCA 
to allow Tribes to apply for program authorization was permissible 
under Chevron. EPA reasoned further that this interpretation is 
consistent with Supreme Court precedent holding that limitations on 
Tribal sovereignty must be ``unmistakably clear,'' Montana v. Blackfeet 
Indian Tribe, 471 U.S. 759 (1985), and that statutes are to be 
construed liberally in favor of the Indians, with ambiguous provisions 
interpreted for their benefit. County of Yakima v. Yakima Indian 
Nation, 502 U.S. 251, 268 (1992). Finally, EPA noted that allowing 
Tribes to apply for program authorization is consistent with the 
general principles of federal Indian law ``encouraging tribal 
independence,'' Ramah Navaho Sch. Bd. v. Bureau of

[[Page 40089]]

Revenue, 458 U.S. 832, 846 (1985), and the Agency's Indian policy which 
states that environmental programs in Indian country will be 
implemented to the maximum extent possible by Tribal governments. In 
light of these principles, EPA reasoned that Tribes are also eligible 
for grants to develop and implement lead-based paint certification and 
training programs under section 404(g) of TSCA.
    Consistent with the reasoning that warranted EPA's determination 
with respect to Tribal lead program approval and grant authority, EPA 
interprets sections 28 and 306 of TSCA and section 6605 of PPA to 
authorize grants to Tribes as well as States, even though there is no 
program approval or authorization associated with the grant programs 
for radon abatement, toxics substance compliance monitoring, or 
pollution prevention incentives. While Congress did not expressly 
provide a role for Tribes in either TSCA or PPA, both statutes were 
clearly intended to have comprehensive, nationwide coverage--including 
the provisions regarding financial assistance for these programs. EPA 
does not believe that Congress intended the Agency to provide grants 
exclusively to States and thereby leave Tribal lands without the 
benefit of the grant assistance for these programs, since the problems 
and goals they address--toxic substances, radon abatement and pollution 
prevention--are relevant throughout the nation in both State and Tribal 
areas. Therefore, EPA has determined that it is appropriate to provide 
grants to Tribes for Radon Abatement programs under section 306 of 
TSCA, Toxics Substances Compliance Monitoring programs under section 28 
of TSCA, and Pollution Prevention Incentives programs under section 
6605 of PPA, EPA invites comments on this issue.
    In order to be eligible for a grant under TSCA section 28, TSCA 
section 306, or PPA section 6605, a Tribe or each member of an 
Intertribal Consortium must establish eligibility for treatment in a 
manner similar to a State by demonstrating that it:
    (1) Is recognized by the Secretary of Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and,
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    If the Administrator has previously determined that an Indian Tribe 
has met the prerequisites in (1) and (2) for another EPA program, the 
Tribe need provide only that information unique to the particular 
program required by paragraph (3) and (4).

Public Water System Supervision Tribal Reserve

    The current regulation (40 CFR 35.115(g)) provides that the EPA 
shall annually reserve up to three percent of each year's Public Water 
System Supervision (PWSS) funds for use on Indian lands. The Agency is 
proposing to increase the authorized amount of the reserve to up to 
seven percent. This increase will provide needed funds for the Tribal 
PWSS program without affecting States' current funding.
    The Tribal reserve is used for two purposes: to allow EPA to 
directly implement the PWSS program on Tribal lands; and to assist 
Tribes with developing PWSS primacy programs. The three percent 
ceiling, established in 1988, was EPA's estimate of the amount that 
would be needed to achieve both of these purposes. Over the past 10 
years, we have realized that three percent is not adequate to achieve 
both purposes. To date, only the Navajo Nation has submitted a complete 
PWSS primacy package and only three other Tribes have taken steps 
toward primacy. We believe that there are more Tribes which may be 
interested in the program but have not yet voiced that interest because 
they do not have the capacity to develop an adequate program. We also 
believe more Tribes would take interest in the program if sufficient 
funds were available.
    In addition, the current Tribal reserve is insufficient to cover 
basic direct implementation needs. Tribal systems have a high number of 
monitoring/reporting and maximum contaminant level violations. These 
same systems will need to abide by upcoming drinking water regulations 
and will be asked to partake in several new initiatives outlined in the 
revised SDWA, including source water protection, capacity development, 
and operator certification. Although these initiatives are not required 
of Tribes, we believe that EPA, as the primary enforcement authority of 
non primacy Tribal systems, should address these initiatives on Tribal 
lands. Additional Tribal funding can help EPA and Tribes respond to 
Tribal safe drinking water needs.
    EPA requested Congress to provide for funding in excess of an 
amount necessary for the traditional three percent reserve in fiscal 
year 1998 to assist Tribes in developing capacity, maintaining their 
own PWSS programs and to provide additional support to the Tribal PWSS 
Direct Implementation program. In fiscal years 1998 and 1999, EPA 
received an additional $3,780,500 for these purposes. In order to use 
those funds for Tribes, EPA needed to deviate from the regulation at 40 
CFR 35.115(g), which limits EPA's Tribal PWSS reserve to three percent. 
Instead of continuing to deviate from the regulations, EPA proposes to 
raise the ceiling of our annual Tribal reserve to Aup to seven percent. 
With the additional $3.78M PWSS program appropriation, the ceiling of 
funding for Tribes can be raised to 6.91 percent (the amount we propose 
to give Tribes in FY-00) without taking away from States' current 
funding levels.

Safe Drinking Water Act and Alaska Native Villages

    EPA is proposing a new interpretation of the definition of ``Indian 
Tribe'' in 42 U.S.C. 300f(14) that would include eligible Alaska Native 
Villages (ANVs) in that definition for purposes of PWSS and Underground 
Water Source Protection (also known as underground injection control 
(UIC)) grants under 42 U.S.C . 300j-2(a) and (b), and primacy for PWSS 
and UIC programs under 42 U.S.C. 300g-2, 300h-1 and 300h-4. Under this 
proposed approach, a federally-recognized Tribe in Alaska could seek to 
demonstrate that it is eligible for treatment in the same manner as a 
State according to the criteria established by Congress in 42 U.S.C . 
300j-11 and in EPA's regulations at 40 CFR 142.72 and 145.52.
    In 1988, EPA announced its interpretation that the term ``Indian 
Tribe'' in 42 U.S.C . 300(f)(14) does not include ANVs. 53 FR 37396, 
37407. This interpretation was based on the Agency's reading of 
legislative history and EPA's view that Congress would have explicitly 
mentioned ANVs if it intended to include ANVs in the definition of 
Indian Tribes. EPA now believes it is more consistent with 
Congressional intent and federal Indian law and policy to interpret the 
term ``Indian Tribe'' in 42 U.S.C . 300f(14) to include Indian Tribes 
located in Alaska (i.e., ANVs) that otherwise meet the SDWA's 
definition of Indian Tribe.
    Under the SDWA, the term ``Indian Tribe'' means ``any Indian Tribe 
having a federally recognized governing body carrying out substantial 
governmental duties and powers over any area.'' 42 U.S.C . 300(f)(14). 
In 1993, the Department of the Interior (DOI) clarified that the Alaska 
Native entities listed on DOI's list of federally-recognized Tribes
have the same governmental status as other federally acknowledged 
Indian Tribes by

[[Page 40090]]

virtue of their status as Indian Tribes with a government-to-
government relationship with the United States; are entitled to the 
same protection, immunities, privileges as other acknowledged 
Tribes; have the right, subject to general principles of federal 
Indian law, to exercise the same inherent and delegated authorities 
available to other Tribes; and are subject to the same limitations 
imposed by law on other Tribes. 58 FR 54364, 54366 (1993).

    Thus, because DOI has clarified that federally-recognized Tribes in 
Alaska have the same status as other federally-recognized Tribes, EPA 
believes that ANVs that otherwise meet the SDWA's definition of Indian 
Tribe should not be excluded from seeking PWSS and UIC program primacy 
or related program grants. This interpretation is consistent with the 
plain language of the SDWA's definition of ``Indian Tribe'' and EPA's 
policy that Indian Tribes are the appropriate entities to set 
environmental standards and manage their environments where they have 
the authority and capability to do so. See EPA's 1984 Indian Policy. It 
is also consistent with Supreme Court precedent holding that any 
statutory limitations on Tribal sovereignty must be stated explicitly, 
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Montana v. 
Blackfeet Indian Tribe, 471 U.S. 759 (1985), and that statutes are to 
be construed liberally in favor of the Indians, with ambiguous 
provisions interpreted for their benefit. County of Yakima v. Yakima 
Indian Nation, 502 U.S. 251, 268 (1992).
    EPA notes that, while this change in interpretation would include 
ANVs that otherwise meet the SDWA's definition of Indian Tribe within 
the context of the PWSS and UIC programs, any ANV wishing to seek 
primacy, or a primacy development grant, for either the PWSS or UIC 
programs would still need to demonstrate that it meets the relevant 
statutory and regulatory eligibility criteria, including the 
jurisdictional requirements contained in 42 U.S.C. 300j-11, 40 CFR 
142.72 and 145.52, 40 CFR 35.676 and 35.686 of this subpart. The Agency 
also wants to clarify that under this proposal, EPA would evaluate, on 
a case-by-case basis (when requested to do so by an Alaska Tribe in an 
application for grant or primacy eligibility) whether an Alaska Tribe 
meets the criteria for program primacy or a related program grant. The 
State of Alaska currently has primacy for PWSS and UIC (Class II wells) 
for all areas in Alaska except Indian country. EPA is not proposing to 
amend the extent of the State's primacy through this notice.
    In the 1996 amendments to the Safe Drinking Water Act, Congress 
added a sentence to the definition of Indian Tribe explicitly noting 
that the term ``Indian Tribe'' for purposes of the State Revolving Fund 
(SRF) program includes ``any Native village.'' 42 U.S.C. 300f(14) 
(emphasis added). EPA believes that, through this change, Congress only 
intended to ensure that all Native villages may receive SRF grants. EPA 
believes that this provision was not intended to mean that federally-
recognized Tribes carrying out substantial governmental duties and 
powers in Alaska are excluded from the definition of Indian Tribe for 
purposes other than SRF.
    EPA requests comments on this change in interpretation of the 
definition of an Indian Tribe.

Regulations for Programs To Manage Hazardous Waste and Underground 
Storage Tanks

    After the EPA workgroup reached closure on this proposed 
rulemaking, Congress authorized the Agency to award grants to Tribes 
``for the development and implementation of programs to manage 
hazardous waste, and underground storage tanks.'' Departments of 
Veterans Affairs and Housing and Urban Development, and Independent 
Agencies Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 
2499 (1998). EPA intends to include regulations for these programs in 
the final rule. Therefore, EPA seeks comments on providing financial 
assistance to Tribes for programs to manage hazardous waste and 
underground storage tanks.

IX. Conclusion

    This Tribal-specific subpart reflects EPA's regulatory and 
budgetary efforts to improve the continuity and stability of financial 
assistance for Tribal environmental programs. Recipients will benefit 
from the streamlined and simplified requirements of the regulation. In 
addition, it will provide Tribes and Intertribal Consortia choosing to 
participate in the PPG program with the flexibility to better use funds 
to address their environmental priorities.

Regulatory Flexibility Act

    The Agency has determined that the requirement in the Regulatory 
Flexibility Act (RFA) to prepare a regulatory flexibility analysis does 
not apply to this rule. A regulatory flexibility analysis must be 
prepared only where the Agency is required by the Administrative 
Procedure Act (APA) or any other statute to publish a general notice of 
proposed rule making (5 U.S.C. 603). Grant-related matters, such as 
this rule, are not subject to the notice and comment requirements of 
the APA (5 U.S.C. 553(a)(1)). Nor is this rule required to undergo 
notice and comment rule making by any other statute.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``federal mandates'' that 
may result in expenditures by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. This regulation contains no federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
Tribal governments or the private sector. The UMRA excludes from the 
definitions of ``federal intergovernmental mandate'' and federal 
participation mandates'' duties that arise from conditions of federal 
assistance.

National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA), EPA is required to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impracticable. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standards 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used, the Act requires EPA to provide Congress, 
through the Office of Management and Budget, an explanation of the 
reasons for not using such standards.
    This proposed rule does not involve any technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards. Commenters who disagree with this conclusion should indicate 
how the Notice is subject to the Act and identify any potentially 
applicable voluntary consensus standards.

Executive Order 13045

    Executive Order 13045 applies to any rule that is determined to be: 
(1) ``economically significant'' as defined

[[Page 40091]]

under Executive Order 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children; and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by the Agency.
    EPA has determined that the proposed rule is not a covered 
regulatory action because it is not economically significant and it 
does not involve decisions based on environmental health and safety 
risks. As such, the proposed rule is not subject to the requirements of 
the Executive Order.

Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) a 
significant regulatory action is subject to OMB review and the 
requirements of the Executive Order. The Order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is a ``significant regulatory 
action'' under the terms of Executive Order 12866 because the 
Performance Partnership Grant authority is a new type of grant 
authority and therefore raises novel policy issues. As such, this 
action was submitted to the Office of Management and Budget (OMB) for 
review. Changes made in response to OMB suggestions and recommendations 
will be documented in the public record.

Paperwork Reduction Act

    In keeping with the requirements of the Paperwork Reduction Act ( 
PRA), as amended, 44 U.S.C. 3501 et seq., the information collection 
requirements contained in this rule have been approved by OMB under 
General Administrative Requirements for Assistance Programs information 
collection request number 0938.06 (OMB Control Number 2030-0020) and 
Quality Assurance Specifications and Requirements information request 
number 0866.05 (OMB Control Number 2080-0033). This rule does not 
contain any collection of information requirements beyond those already 
approved. Since this action imposes no new or additional information 
collection, reporting, or record-keeping requirements subject to the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., no information request 
will be submitted to the Office of Management and Budget for review.

Executive Order 12875

    Under Executive Order 12875, Enhancing Intergovernmental 
Partnerships, EPA may not issue a regulation that is not required by 
statute and that creates a mandate upon a State, local or Tribal 
government, unless the federal government provides the funds necessary 
to pay the direct compliance costs incurred by those governments or EPA 
consults with these governments. If EPA complies by consulting, 
Executive Order 12875 requires EPA to provide to the Office of 
Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and Tribal 
governments, the nature of their concerns, any written communications 
from the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and Tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    This proposed rule does not create a mandate on State, local or 
Tribal governments nor does it impose any enforceable duties on these 
entities as it governs the award of financial assistance. Instead, this 
proposed rule is designed to reduce the administrative burden 
associated with grants for environmental programs. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply.

Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian Tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the Tribal governments or consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected Tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian Tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    This rule may significantly or uniquely affect the communities of 
Indian Tribal governments, but it will not impose substantial direct 
compliance costs on such communities. This rule governs financial 
assistance to Tribes. Any costs associated with this regulation will be 
incurred by a Tribe as a result of its discretionary decision to seek 
financial assistance. Accordingly, the requirements of section 3(b) of 
Executive Order 13084 do not apply.

List of Subjects in 40 CFR Part 35

    Environmental protection, Administrative practice and procedures, 
Evaluation of performance, Performance partnership grants, Requirements 
for specific grant programs, Work plan requirements.

    Dated: June 30, 1999.
Carol M. Browner,
Administrator.

    For the reasons set forth in this preamble, title 40, chapter I of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 35--[AMENDED]

    1. The authority citation for part 35 continues to read as follows:

    Authority: 42 U.S.C. 4368b.

    2. EPA is proposing to remove subpart Q.
    3. EPA is proposing to add a new subpart B to read as follows.

[[Page 40092]]

Subpart B--Environmental Program Grants for Indian Tribes

All Grants--General

Sec.
35.500  Purpose of the subpart.
35.501  Environmental programs covered by the subpart.
35.502  Definition of terms.
35.503  Deviation from this subpart.
35.504  Eligibility of an Intertribal Consortium.

Preparing an Application

35.505  Components of a complete application.
35.506  Time frame for submitting an application.
35.507  Work plans.
35.508  Budget period.
35.509  Consolidated grants.

EPA Action on Application

35.510  Time frame for EPA action.
35.511  Criteria for approving an application.
35.512  Factors considered in determining award amount.
35.513  Reimbursement for pre-award costs.

Post-Award Requirements

35.514  Amendments and other changes.
35.515  Evaluation of performance.
35.516  Direct implementation.
35.517  Unused funds.
35.518  Unexpended balances.
35.519  Preferences for Indians, Indian organizations, and Indian-
owned economic enterprises.

Performance Partnership Grants

35.530  Purpose of Performance Partnership Grants.
35.532  Requirements summary.
35.533  Programs eligible for inclusion.
35.534  Eligible recipients.
35.535  Activities eligible for funding.
35.536  Cost share requirements.
35.537  Application requirements.
35.538  Project period.

Indian Environmental General Assistance Program (GAP)

35.540  Purpose.
35.542  Definitions.
35.543  Eligible recipients.
35.545  Eligible activities.
35.548  Award limitations.

Air Pollution Control (Section 105)

35.570  Purpose.
35.572  Definition.
35.573  Eligible tribe.
35.575  Maximum Federal share.
35.576  Maintenance of effort.
35.578  Award limitation.

Water Pollution Control (Sections 106 and 518)

35.580  Purpose.
35.582  Definitions.
35.583  Eligible recipients.
35.585  Maximum Federal share.
35.588  Award limitations.

Water Quality Cooperative Agreements (Section 104(b)(3))

35.600  Purpose.
35.603  Competitive process.
35.604  Maximum Federal share.

Wetlands Development Grant Program (Section 104(b)(3))

35.610  Purpose.
35.613  Competitive process.
35.615  Maximum Federal share.

Nonpoint Source Management Grants (Sections 319(h) and 518(f))

35.630  Purpose.
35.632  Definition.
35.633  Eligibility requirements.
35.635  Maximum Federal share.
35.636  Maintenance of effort.
35.638  Award limitations.

Pesticide Cooperative Enforcement (Section 23 (a)(1))

35.640  Purpose.
35.641  Eligible recipients.
35.642  Maximum Federal share.
35.645  Basis for allotment.

Pesticide Applicator Certification and Training (Section 23(a)(2))

35.646  Purpose.
35.649  Maximum Federal share.

Pesticide Program Implementation (Section 23(a)(1))

35.650  Purpose.
35.653  Eligible recipients.
35.655  Basis for allotment.
35.659  Maximum Federal share.

Pollution Prevention Incentive Grants (Section 6605)

35.660  Purpose.
35.661  Competitive process.
35.662  Definitions.
35.663  Eligible recipients.
35.668  Award limitations.
35.669  Maximum Federal share.

Public Water System Supervision (Sections 1443(a) and 1451)

35.670  Purpose.
35.672  Definition.
35.673  Annual amount reserved by EPA.
35.675  Maximum Federal share.
35.676  Eligible recipients.
35.678  Award limitations.

Underground Water Source Protection (Section 1443(b))

35.680  Purpose.
35.682  Definition.
35.683  Annual amount reserved by EPA.
35.685  Maximum Federal share.
35.686  Eligible recipients
35.688  Award limitations.

Lead-Based Paint Program (Section 404(g))

35.690  Purpose.
35.691  Funding coordination.
35.693  Eligible recipients.

Indoor Radon Grants (Section 306)

35.700  Purpose.
35.702  Basis for allotment.
35.703  Eligible recipients.
35.705  Maximum Federal share.
35.708  Award limitations.

Toxic Substances Compliance Monitoring (Section 28)

35.710  Purpose.
35.712  Competitive process.
35.713  Eligible recipients.
35.715  Maximum Federal share.
35.718  Award limitation.

Subpart B--Environmental Program Grants--Indian Tribes

    Authority: 42 U.S.C. 300f et seq. 6901 et seq., 7401 et seq., 
13101 et seq 33 U.S.C. 1251 et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 
2601 et seq.; Pub. L. 104-134, 110 Stat. 1321, 1321-299 (1996); Pub. 
L. 105-65, 111 Stat. 1344, 1373 (1997).

All Grants--General


Sec. 35.500  Purpose of the subpart.

    This subpart establishes administrative requirements for grants 
awarded to Indian Tribes and Intertribal Consortia for the 
environmental programs listed in Sec. 35.501. This subpart supplements 
requirements in EPA's general grant regulations found at 40 CFR part 
31. Sections 35.500 through 35.518 contain administrative requirements 
that apply to all environmental program grants included in this 
subpart. Sections 35.530 through 35.718 contain requirements that apply 
to specified environmental program grants. Many of these environmental 
programs also have programmatic and technical requirements that are 
published elsewhere in the Code of Federal Regulations.


Sec. 35.501  Environmental programs covered by the subpart.

    (a) The requirements in this subpart apply to grants awarded for 
the following programs:
    (1) Performance Partnership Grants (1996 Omnibus Consolidated 
Rescissions and Appropriations Act of 1996, Public Law 104-134, 110 
Stat. 1321, 1321-299 (1996) and Departments of Veterans Affairs, 
Housing and Urban Development, and Independent Agencies Appropriations 
Act of 1998, Public Law 105-65, 111 Stat. 1344, 1373 (1997)).
    (2) The Indian Environmental General Assistance Program Act of 
1992, 42 U.S.C. 4368b.
    (3) Clean Air Act. Air pollution control (section 105).
    (4) Clean Water Act.
    (i) Water pollution control (section 106 and 518).
    (ii) Water quality cooperative agreements (section 104(b)(3)).
    (iii) Wetlands development grant program (section 104(b)(3)).
    (iv) Nonpoint source management (section 319(h)).
    (5) Federal Insecticide, Fungicide, and Rodenticide Act.

[[Page 40093]]

    (i) Pesticide cooperative enforcement (section 23(a)(1)).
    (ii) Pesticide applicator certification and training (section 
23(a)(2)).
    (iii) Pesticide program implementation (section 23(a)(1)).
    (6) Pollution Prevention Act of 1990. Pollution prevention 
incentives for Tribes (section 6605).
    (7) Safe Drinking Water Act.
    (i) Public water system supervision (section 1443(a)).
    (ii) Underground water source protection (section 1443(b)).
    (8) Toxic Substances Control Act.
    (i) Lead-based paint program (section 404(g)).
    (ii) Indoor radon grants (section 306).
    (iii) Toxic substances compliance monitoring (section 28).
    (b) Unless otherwise prohibited by statute or regulation, the 
requirements in Sec. 35.500 through Sec. 35.518 of this subpart also 
apply to grants to Indian Tribes and Intertribal Consortia under 
environmental programs established after this subpart becomes 
effective, if specified in Agency guidance for such programs.


Sec. 35.502  Definition of terms.

    Terms are defined as follows when they are used in this regulation.
    Budget period. The period specified in the grant agreement during 
which the recipient may expend or obligate funds for the purposes 
specified in the agreement.
    Consolidated grant. A single grant made to a recipient 
consolidating funds from more than one environmental grant program. 
After the award is made, recipients must account for grant funds in 
accordance with the funds' original environmental program sources. 
Consolidated grants are not Performance Partnership Grants.
    Environmental program. A program for which EPA awards grants under 
the authorities listed in Sec. 35.501. The grants are subject to the 
requirements of this subpart.
    Federal Indian reservation. All land within the limits of any 
Indian reservation under the jurisdiction of the United States 
government, notwithstanding the issuance of any patent, and including 
rights-of-way running through the reservation.
    Indian country. (1) All land within the limits of any Indian 
reservation under the jurisdiction of the United States government, 
notwithstanding the issuance of any patent, and including rights-of-way 
running through the reservation;
    (2) All dependent Indian communities within the borders of the 
United States, whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a State; 
and,
    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same.
    Intertribal Consortium or Consortia. A partnership between two or 
more Tribes that is authorized by the governing bodies of those Tribes 
to apply for and receive assistance under one or more of the programs 
listed in Sec. 35.501. A Consortium must have adequate documentation of 
the existence of the partnership and the authorization to apply for and 
receive assistance.
    National program guidance. Guidance issued by EPA's National 
Program Managers for establishing and maintaining effective 
environmental programs. This guidance establishes national goals, 
objectives, and priorities as well as other information to be used in 
monitoring progress. The guidance may also set out specific 
environmental strategies, core performance measures, criteria for 
evaluating programs, and other elements of program implementation.
    Outcome. The environmental result, effect, or consequence that will 
occur from carrying out an environmental program or activity that is 
related to an environmental or programmatic goal or objective. Outcomes 
must be quantitative, and they may not necessarily be achievable during 
a grant budget period. See ``output.''
    Output. An environmental activity or effort and associated work 
products related to an environmental goal or objective that will be 
produced or provided over a period of time or by a specified date. 
Outputs may be quantitative or qualitative but must be measurable 
during a grant budget period. See ``outcome.''
    Performance Partnership Grant. A single grant combining funds from 
more than one environmental program. A Performance Partnership Grant 
may provide for administrative savings or programmatic flexibility to 
direct grant resources where they are most needed to address public 
health and environmental priorities (see also Sec. 35.530). Each 
Performance Partnership Grant has a single, integrated budget and 
recipients do not need to account for grant funds in accordance with 
the funds' original environmental program sources.
    Planning target. The amount of funds that the Regional 
Administrator suggests a grant applicant consider in developing its 
application, including the work plan, for an environmental program.
    Regional supplemental guidance. Guidance to environmental program 
grant applicants prepared by the Regional Administrator, based on the 
national program guidance and specific regional and applicant 
circumstances, for use in preparing a grant application.
    Tribal Environmental Agreement (TEA). A strategic planning document 
designated as a TEA and signed by the Regional Administrator and an 
appropriate Tribal official that sets out negotiated environmental 
goals, objectives, outcomes, outputs, priorities, actions to be taken, 
and measures of performance.
    Tribe. Except as otherwise defined in statute or this subpart, 
Indian Tribal Government (Tribe) means: any Indian Tribe, band, nation, 
or other organized group or community, including any Alaska Native 
village, which is recognized as eligible by the United States 
Department of the Interior for the special services provided by the 
United States to Indians because of their status as Indians.
    Work plan. The document which identifies how and when the applicant 
will use funds from environmental program grants and is the basis for 
management and evaluation of performance under the grant agreement to 
produce specific outputs and outcomes (see 35.507). The work plan must 
be consistent with applicable statutes, regulations, and delegation or 
authorization agreements.
    Work plan commitments. The outputs and outcomes associated with 
each work plan component, as established in the grant agreement.
    Work plan component. A negotiated set or group of work plan 
commitments established in the grant agreement. A work plan may have 
one or more work plan components.


Sec. 35.503  Deviation from this subpart.

    EPA will consider and may approve requests for an official 
deviation from non-statutory provisions of this regulation in 
accordance with 40 CFR 31.6.


Sec. 35.504  Eligibility of an Intertribal Consortium.

    (a) An Intertribal Consortium is eligible to receive grants under 
the authorities listed in Sec. 35.501 only if the Consortium 
demonstrates that all members of the Consortium meet the eligibility 
requirements for the grant and authorize the Consortium to apply for 
and receive assistance, except as provided in paragraph (b) of this 
section.
    (b) An Intertribal Consortium is eligible to receive a grant under 
the

[[Page 40094]]

Indian Environmental General Assistance Program Act, in accordance with 
Sec. 35.540, if the Consortium demonstrates that:
    (1) A majority of its members meets the eligibility requirements 
for the grant;
    (2) All members that meet the eligibility requirements authorize 
the Consortium to apply for and receive assistance; and
    (3) Only members that meet the eligibility requirements will 
benefit directly from the grant project and the Consortium agrees to a 
grant condition to that effect.

Preparing an Application


Sec. 35.505  Components of a complete application.

    A complete application for an environmental program grant must:
    (a) Meet the requirements in 40 CFR part 31, subpart B;
    (b) Include a proposed work plan (Sec. 35.507 of this subpart); and
    (c) Specify the environmental program and the amount of funds 
requested.


Sec. 35.506  Time frame for submitting an application.

    An applicant should submit a complete application to EPA at least 
60 days before the beginning of the proposed budget period.


Sec. 35.507  Work plans.

    (a) Bases for negotiating work plans. The work plan is negotiated 
between the applicant and the Regional Administrator and reflects 
consideration of national, regional, and Tribal environmental and 
programmatic needs and priorities.
    (1) Negotiation considerations. In negotiating the work plan, the 
Regional Administrator and applicant will consider such factors as 
national program guidance; any regional supplemental guidance; goals, 
objectives, and priorities proposed by the applicant; other jointly 
identified needs or priorities; and the planning target.
    (2) National program guidance. If an applicant proposes a work plan 
that differs significantly from the goals and objectives, priorities, 
or performance measures in the national program guidance associated 
with the proposed work plan activities, the Regional Administrator must 
consult with the appropriate National Program Manager before agreeing 
to the work plan.
    (3) Use of existing guidance. An applicant should base the grant 
application on the national program guidance in place at the time the 
application is being prepared.
    (b) Work plan requirements.
    (1) The work plan is the basis for the management and evaluation of 
performance under the grant agreement.
    (2) An approvable work plan must specify:
    (i) The work plan components to be funded under the grant;
    (ii) The estimated work years and funding amounts for each work 
plan component;
    (iii) The work plan commitments for each work plan component, and a 
time frame for their accomplishment;
    (iv) A performance evaluation process and reporting schedule in 
accordance with Sec. 35.515 of this subpart; and
    (v) The roles and responsibilities of the recipient and EPA in 
carrying out the work plan commitments.
    (3) The work plan must be consistent with applicable federal 
statutes, regulations, circulars, executive orders, and delegation or 
authorization agreements.
    (c) Tribal Environmental Agreement as work plan. An applicant may 
use a Tribal Environmental Agreement (TEA) or a portion of the TEA as 
the work plan or part of the work plan for an environmental program 
grant if the portion of the TEA that is to serve as the grant work 
plan:
    (1) Is clearly identified and distinguished from other portions of 
the TEA; and
    (2) Meets the requirements in Sec. 35.507(b).


Sec. 35.508  Budget period.

    The Regional Administrator and applicant may negotiate the length 
of the budget period for environmental program grants, subject to 
limitations in appropriations and authorizing statutes.


Sec. 35.509  Consolidated grants.

    Any applicant eligible to receive funds from more than one 
environmental program may submit an application for a consolidated 
grant. For consolidated grants, an applicant prepares a single budget 
and work plan covering all of the environmental programs included in 
the application. The consolidated budget must identify each 
environmental program to be included, the amount of each program's 
funds, and the extent to which each program's funds support each work 
plan component. Recipients of consolidated grants must account for 
grant funds in accordance with the funds' environmental program 
sources; funds included in a consolidated grant from a particular 
environmental program may be used only for that program.

EPA Action on Application


Sec. 35.510  Time frame for EPA action.

    The Regional Administrator will review a complete application and 
either approve, conditionally approve, or disapprove it within 60 days 
of receipt. The Regional Administrator will award grants for approved 
or conditionally approved applications if funds are available.


Sec. 35.511  Criteria for approving an application.

    (a) After evaluating other applications as appropriate, the 
Regional Administrator may approve an application if he or she 
determines that:
    (1) The application meets the requirements of this subpart and 40 
CFR part 31;
    (2) The application meets the requirements of all applicable 
federal statutes, regulations, circulars, executive orders, and 
delegation or authorization agreements;
    (3) The proposed work plan complies with the requirements of 
Sec. 35.507 of this subpart; and
    (4) The achievement of the proposed work plan is feasible, 
considering such factors as the applicant's existing circumstances, 
past performance, program authority, organization, resources, and 
procedures.
    (b) If the Regional Administrator finds the application does not 
satisfy the criteria in paragraph (a) of this section, the Regional 
Administrator may either:
    (1) Conditionally approve the application if only minor changes are 
required, with grant conditions necessary to ensure compliance with the 
criteria, or
    (2) Disapprove the application in writing.


Sec. 35.512  Factors considered in determining award amount.

    (a) After approving an application under Sec. 35.511, the Regional 
Administrator will consider such factors as the amount of funds 
available for award to Indian Tribes and Intertribal Consortia, the 
extent to which the proposed work plan is consistent with EPA guidance 
and mutually agreed upon priorities, and the anticipated cost of the 
work plan relative to the proposed work plan components to determine 
the amount of funds to be awarded.
    (b) If the Regional Administrator finds that the requested level of 
funding is not justified, he or she will attempt to negotiate a 
resolution of the issues with the applicant before determining the 
award amount.

[[Page 40095]]

Sec. 35.513  Reimbursement for pre-award costs.

    (a) Notwithstanding the requirements of 40 CFR 31.23(a) (Period of 
availability of funds), and OMB cost principles, EPA may reimburse 
recipients for pre-award costs incurred from the beginning of the 
budget period established in the grant agreement if such costs would 
have been allowable if incurred after the award. Such costs must be 
specifically identified in the grant application EPA approves.
    (b) The applicant incurs pre-award costs at its own risk. EPA is 
under no obligation to reimburse such costs unless they are included in 
an approved grant application .

Post-Award Requirements


Sec. 35.514  Amendments and other changes.

    The provisions of 40 CFR 31.30 do not apply to environmental 
program grants awarded under this subpart. The following provisions 
govern amendments and other changes to grant work plans and budgets 
after the work plan is negotiated and a grant awarded.
    (a) Changes requiring prior approval. The recipient needs the 
Regional Administrator's prior written approval to make significant 
post-award changes to work plan commitments. The Regional Office, in 
consultation with the recipient, will document approval of these 
changes including budgeted amounts associated with the revisions.
    (b) Changes requiring approval. Recipients must request, in 
writing, grant amendments for changes requiring increases in 
environmental program grant amounts and extensions of the budget 
period. Recipients may begin implementing a change before the amendment 
has been approved by EPA, but do so at their own risk. If EPA approves 
the change, EPA will issue a grant amendment. EPA will notify the 
recipient in writing if the change is disapproved.
    (c) Changes not requiring approval. Other than those situations 
described in paragraphs (a) and (b) of this section, recipients do not 
need to obtain approval for changes, including changes in grant work 
plans, budgets, or other parts of grant agreements, unless the Regional 
Administrator determines approval requirements should be imposed on a 
specific recipient for a specified period of time.
    (d) OMB cost principles. The Regional Administrator may waive, in 
writing, approval requirements for specific recipients and costs 
contained in OMB cost principles.
    (e) Changes in consolidated grants. Recipients of consolidated 
grants under Sec. 35.509 may not transfer funds among environmental 
programs.
    (f) Subgrants. Subgrantees must request required approvals in 
writing from the recipient and the recipient shall approve or 
disapprove the request in writing. A recipient will not approve any 
work plan or budget revision which is inconsistent with the purpose or 
terms and conditions of the federal grant to the recipient. If the 
revision requested by the subgrantee would result in a significant 
change to the recipient's approved grant which requires EPA approval, 
the recipient will obtain EPA's approval before approving the 
subgrantee's request.


Sec. 35.515  Evaluation of performance.

    (a) Joint evaluation process. The applicant and the Regional 
Administrator will develop a process for jointly evaluating and 
reporting progress and accomplishments under the work plan. A 
description of the evaluation process and reporting schedule must be 
included in the work plan. The schedule must require the recipient to 
report at least annually and must satisfy the requirements for progress 
reporting under 40 CFR 31.40(b).
    (b) Elements of the evaluation process. The evaluation process must 
provide for:
    (1) A discussion of accomplishments as measured against work plan 
commitments;
    (2) A discussion of the cumulative effectiveness of the work 
performed under all work plan components;
    (3) A discussion of existing and potential problem areas; and
    (4) Suggestions for improvement, including, where feasible, 
schedules for making improvements.
    (c) Resolution of issues. If the joint evaluation reveals that the 
recipient has not made sufficient progress under the work plan, the 
Regional Administrator and the recipient will negotiate a resolution 
that addresses the issues. If the issues cannot be resolved through 
negotiation, the Regional Administrator may take appropriate measures 
under 40 CFR 31.43. The recipient may request review of the Regional 
Administrator's decision under the dispute processes in 40 CFR 31.70.
    (d) Evaluation reports. The Regional Administrator will ensure that 
the required evaluations are performed according to the negotiated 
schedule and that copies of evaluation reports are placed in the 
official files and provided to the recipient.


Sec. 35.516  Direct implementation.

    If funds for an environmental program remain after Tribal and 
Intertribal Consortia environmental program grants for that program 
have been awarded or because no grants were awarded, the Regional 
Administrator may, subject to any limitations contained in 
appropriation acts, use all or part of the funds to support a federal 
program required by law in Indian country in the absence of an 
acceptable Tribal program.


Sec. 35.517  Unused funds.

    If funds for an environmental program remain after Tribal and 
Intertribal Consortia grants for that program have been awarded or 
because no grants were awarded, and the Regional Administrator does not 
use the funds under Sec. 35.516 of this subpart, the Regional 
Administrator may award the funds to any eligible Indian Tribe or 
Intertribal Consortium in the region (including a Tribe or Intertribal 
Consortium that has already received funds) for the same environmental 
program or for a Performance Partnership Grant, subject to any 
limitations in appropriation acts.


Sec. 35.518  Unexpended balances.

    Subject to any relevant provisions of law, if a recipient's final 
Financial Status Report shows unexpended balances, the Regional 
Administrator will deobligate the unexpended balances and make them 
available, either to the same recipient or other Tribes or Intertribal 
Consortia in the region, for environmental program grants.


Sec. 35.519  Preferences for Indians, Indian organizations, and Indian-
owned economic enterprises.

    Any grant awarded under this subpart, and any subgrant, contract, 
or subcontract under such grant, shall require that to the greatest 
extent feasible:
    (a) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants be given 
to Indians; and
    (b) Preference in the award of subcontracts and subgrants in 
connection with the administration of such contracts or grants be given 
to Indian organizations and to Indian-owned economic enterprises as 
defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77) 
[25 USCS 1452].

Performance Partnership Grants


Sec. 35.530  Purpose of Performance Partnership Grants.

    (a) Purpose of section. Sections 35.530 through 35.538 govern 
Performance Partnership Grants to Tribes and

[[Page 40096]]

Intertribal Consortia authorized in the Omnibus Consolidated 
Rescissions and Appropriations Act of 1996, Public Law 104-134, 110 
Stat. 1321, 1321-299 (1996) and Departments of Veterans Affairs and 
Housing and Urban Development, and Independent Agencies Appropriations 
Act, 1998, Public Law 105-65, 111 Stat. 1344, 1373 (1997).
    (b) Purpose of program. Performance Partnership Grants enable 
Tribes and Intertribal Consortia to combine funds from more than one 
environmental program grant into a single grant with a single budget. 
Recipients do not need to account for Performance Partnership Grant 
funds in accordance with the funds' original environmental program 
sources; they need only account for total Performance Partnership Grant 
expenditures. Subject to the requirements of this subpart, the 
Performance Partnership Grant program is designed to:
    (1) Strengthen partnerships between EPA and Tribes and Intertribal 
Consortia through joint planning and priority-setting and better 
deployment of resources;
    (2) Provide Tribes and Intertribal Consortia with flexibility to 
direct resources where they are most needed to address environmental 
and public health priorities;
    (3) Link program activities more effectively with environmental and 
public health goals and program outcomes;
    (4) Foster development and implementation of innovative approaches, 
such as pollution prevention, ecosystem management, and community-based 
environmental protection strategies; and
    (5) Provide savings by streamlining administrative requirements.


Sec. 35.532  Requirements summary.

    (a) Applicants and recipients of Performance Partnership Grants 
must meet:
    (1) The requirements in Secs. 35.500 to 35.518 of this subpart 
which apply to all environmental program grants, including Performance 
Partnership Grants; and
    (2) The requirements in Secs. 35.530 to 35.538 of this subpart 
which apply only to Performance Partnership Grants.
    (b) In order to include funds from an environmental program grant 
listed in Sec. 35.501(a) of this subpart in a Performance Partnership 
Grant, applicants must:
    (1) Meet the requirements for award of each environmental program 
from which funds are included in the Performance Partnership Grant, 
except the requirements at Secs. 35.548(c), 35.638(b) and (c), 35.691, 
and 35.708 (c), (d), (e), and (g). These requirements can be found in 
this regulation beginning at Sec. 35.540. If the applicant is an 
Intertribal Consortium, each Tribe that is a member of the Consortium 
must meet the requirements.
    (2) Apply for the environmental program grant.
    (3) Obtain the Regional Administrator's approval of the application 
for that grant.
    (c) If funds from an environmental program are not included in a 
Performance Partnership Grant, an applicant is not required to meet the 
requirements of that environmental program in order to carry out 
activities eligible under that program as provided in Sec. 35.535.


Sec. 35.533  Programs eligible for inclusion.

    (a) Eligible programs. Except as provided in paragraph (b) of this 
section, the environmental program grants eligible for inclusion in a 
Performance Partnership Grant are listed in Sec. 35.501(a)(2) through 
(8) of this subpart.
    (b) Changes in eligible programs. The Administrator may, in 
guidance or regulation, describe subsequent additions, deletions, or 
changes to the list of environmental programs eligible for inclusion in 
Performance Partnership Grants.


Sec. 35.534  Eligible recipients.

    (a) A Tribe or Intertribal Consortium is eligible for a Performance 
Partnership Grant if the Tribe or each member of the Intertribal 
Consortium is eligible for, and the Tribe or Intertribal Consortium 
receives funding from, more than one of the environmental program 
grants listed in Sec. 35.501(a) in accordance with the requirements for 
those environmental programs.
    (b) For grants to Tribes, a Tribal agency must be designated by a 
Tribal government or other authorized Tribal process to receive grants 
under each of the environmental programs to be combined in the 
Performance Partnership Grant.


Sec. 35.535  Activities eligible for funding.

    (a) Delegated or authorized activities. A Tribe or Intertribal 
Consortium may use Performance Partnership Grant funds to carry out 
EPA-delegated or EPA-authorized activities, such as permitting and 
primary enforcement responsibility only if the Tribe or each member of 
the Intertribal Consortium receives from the Regional Administrator the 
delegations or authorizations to conduct such activities.
    (b) Other program activities. Except for the limitation in 
paragraph (a) of this section, a Tribe or Intertribal Consortium may 
use Performance Partnership Grant funds for any activity that is 
eligible under the environmental programs listed in Sec. 35.501(a) of 
this subpart, as determined by the Regional Administrator. If an 
applicant proposes a Performance Partnership Grant work plan that 
differs significantly from any of the proposed work plans approved for 
funding that the applicant now proposes to move into a Performance 
Partnership Grant, the Regional Administrator must consult with the 
appropriate National Program Managers before agreeing to the 
Performance Partnership Grant work plan. National Program Managers may 
expressly waive or modify this requirement for consultation in national 
program guidance. National Program Managers may also define in national 
program guidance ``significant'' deviations from a work plan submitted 
with a Tribe's or a Consortium's application for funds.


Sec. 35.536  Cost share requirements.

    (a) The Performance Partnership Grant cost share shall be the sum 
of the amounts required for each environmental program grant included 
in the Performance Partnership Grant, as determined in accordance with 
paragraphs (b) and (c) of this section, unless waived under paragraph 
(d) of this section.
    (b) For each environmental program grant included in the 
Performance Partnership Grant that has a cost share of five percent or 
less under the provisions of Secs. 35.540 through 35.718, the required 
cost share shall be that identified in Secs. 35.540 through 35.718 of 
this subpart.
    (c) For each environmental program grant included in the 
Performance Partnership Grant that has a cost share of greater than 
five percent under the provisions of Secs. 35.540 through 35.718 of 
this subpart, the required cost share shall be five percent of the 
allowable cost of the work plan budget for that program. However, after 
the first two years in which a Tribe or Intertribal Consortium receives 
a Performance Partnership Grant, the Regional Administrator must 
determine through objective assessment whether the Tribe or the members 
of an Intertribal Consortium meet socio-economic indicators that 
demonstrate the ability of the Tribe or the Intertribal Consortium to 
provide a cost share greater than five percent. If the regional 
Administrator determines that the Tribe or the members of Intertribal 
Consortium meets such indicators, then

[[Page 40097]]

he or she shall increase the required cost share up to a maximum of 10 
percent of the allowable cost of the work plan budget.
    (d) The Regional Administrator may waive the cost share required 
under this section upon request of the Tribe or Intertribal Consortium, 
if he or she determines, based on an objective assessment of socio-
economic indicators, that meeting the cost share would impose undue 
hardship.


Sec. 35.537  Application requirements.

    An application for a Performance Partnership Grant must contain:
    (a) A list of the environmental programs and the amount of funds 
from each program to be combined in the Performance Partnership Grant;
    (b) A consolidated budget;
    (c) A consolidated work plan that addresses each program being 
combined in the grant and which meets the requirements of Sec. 35.507.


Sec. 35.538  Project period.

    If the projected completion date for a work plan commitment funded 
under an environmental program grant that is added to a Performance 
Partnership Grant extends beyond the end of the project period for the 
Performance Partnership Grant, the Regional Administrator and the 
recipient will agree in writing as to how and when the work plan 
commitment will be completed.

Indian Environmental General Assistance Program (GAP)


Sec. 35.540  Purpose.

    (a) Purpose of section. Sections 35.540 through 35.547 govern 
grants to Tribes and Intertribal Consortia under the Indian 
Environmental General Assistance Program Act of 1992 (42 U.S.C. 4368b.)
    (b) Purpose of program. Indian Environmental General Assistance 
Program grants are awarded to build capacity to administer 
environmental programs on Indian lands by providing general assistance 
to plan, develop, and establish the capability to implement 
environmental protection programs in Indian country.


Sec. 35.542  Definitions.

    Tribe. Any Indian Tribe, band, nation, or other organized group or 
community including any Alaska Native village or regional or village 
corporation (as defined in, or established pursuant to, the Alaska 
Native Claims Settlement Act (43 U.S.C.A. 1601, et seq.)), which is 
recognized as eligible for the special services provided by the United 
States to Indians because of their status as Indians.


Sec. 35.543  Eligible recipients.

    The following entities are eligible to receive grants under this 
program:
    (a) Tribes and
    (b) Intertribal Consortia as provided in Sec. 35.504.


Sec. 35.545  Eligible activities.

    Tribes and Intertribal Consortia may use General Assistance Program 
funds for planning, developing, and establishing capability to 
implement environmental protection programs and to develop and 
implement solid and hazardous waste programs on Indian lands.


Sec. 35.548  Award limitations.

    (a) Each grant awarded under the General Assistance Program shall 
be not less than $75,000. This limitation does not apply to additional 
funds that may become available for award to the same Tribe or 
Intertribal Consortium.
    (b) The Regional Administrator shall not award a grant to a single 
Tribe or Intertribal Consortium of more than 10 percent of the total 
annual funds appropriated under the Act.
    (c) The project period of a General Assistance Program award may 
not exceed four years.
    (d) No award under this program shall result in reduction of total 
EPA grants for environmental programs to the recipient.

Air Pollution Control (Section 105)


Sec. 35.570  Purpose.

    (a) Purpose of section. Sections 35.570 through 35.577 govern air 
pollution control grants to Tribes (as defined in section 302(r) of the 
Clean Air Act (CAA)) authorized under sections 105 and 301(d) of the 
Act and Intertribal Consortia.
    (b) Purpose of program. Air pollution control grants are awarded to 
develop and administer programs that prevent and control air pollution 
or implement national air quality standards in Indian country.
    (c) Associated program regulations. Refer to 40 CFR parts 49, 50, 
51, 52, 58, 60, 61, 62, and 81 for associated program regulations.


Sec. 35.572  Definitions.

    In addition to the definitions in Sec. 35.502, the following 
definitions apply to the Clean Air Act's section 105 grant program:
    Nonrecurrent expenditures are those expenditures which are shown by 
the recipient to be of a nonrepetitive, unusual, or singular nature 
such as would not reasonably be expected to recur in the foreseeable 
future. Costs categorized as nonrecurrent must be approved in the grant 
agreement or an amendment thereto.
    Recurrent expenditures are those expenses associated with the 
activities of a continuing environmental program. All expenditures are 
considered recurrent unless justified by the applicant as nonrecurrent 
and approved as such in the grant award or an amendment thereto.


Sec. 35.573  Eligible tribe.

    (a) A Tribe is eligible to receive financial assistance if it has 
demonstrated eligibility to be treated as a State under 40 CFR 49.6. An 
Intertribal Consortium consisting of Tribes that have demonstrated 
eligibility to be treated as States under 40 CFR 49.6 is eligible for 
financial assistance under this paragraph.
    (b) A Tribe that has not made a demonstration under 40 CFR 49.6 is 
eligible for financial assistance under sections 105 and 302(b)(5) of 
the Clean Air Act. An Intertribal Consortium consisting of Tribes that 
have not demonstrated eligibility to be treated as States under 40 CFR 
49.6 is eligible for financial assistance under this paragraph.


Sec. 35.575  Maximum Federal share.

    (a) For Tribes and Intertribal Consortia eligible under 
Sec. 35.573(a), the Regional Administrator may provide financial 
assistance in an amount up to 95 percent of the approved costs of 
planning, developing, establishing, or improving an air pollution 
control program, and up to 95 percent of the approved costs of 
maintaining that program. After two years from the date of each Tribe's 
or Intertribal Consortium's initial grant award, the Regional 
Administrator will reduce the maximum federal share to 90 percent if 
the Regional Administrator determines that the Tribe or each member of 
the Intertribal Consortium meets certain economic indicators that would 
provide an objective assessment of the Tribe's or each of the 
Intertribal Consortiums member's ability to increase its share. For a 
Tribe or Intertribal Consortium eligible under Sec. 35.573(a), the 
Regional Administrator may increase the maximum federal share if the 
Tribe or Intertribal Consortium can demonstrate in writing to the 
satisfaction of the Regional Administrator that fiscal circumstances 
within the Tribe or within the member Tribes of the Intertribal 
Consortium are constrained to such an extent that fulfilling the

[[Page 40098]]

match requirement would impose undue hardship.
    (b) For Tribes and Intertribal Consortia eligible under 
Sec. .573(b), the Regional Administrator may provide financial 
assistance in an amount up to 60 percent of the approved costs of 
planning, developing, establishing, or improving an air pollution 
control program, and up to 60 percent of the approved costs of 
maintaining that program.


Sec. 35.576  Maintenance of effort.

    (a) For Tribes and Intertribal Consortia that are eligible for 
financial assistance under Sec. 35.573(b) of this subpart, the Tribe or 
each of the Intertribal Consortium's members must expend annually, for 
recurrent section 105 program expenditures, an amount of non-federal 
funds at least equal to such expenditures during the preceding fiscal 
year.
    (b) In order to award grants in a timely manner each fiscal year, 
the Regional Administrator shall compare a Tribe's or each of the 
Intertribal Consortiums member's proposed expenditure level, as 
detailed in the grant application, to its expenditure level in the 
second preceding fiscal year.
    (c) The Regional Administrator may grant an exception to 
Sec. 35.576(a) if, after notice and opportunity for a public hearing, 
the Regional Administrator determines that the reduction is 
attributable to a non-selective reduction of all the Tribe's or each of 
the Intertribal Consortiums member's programs.
    (d) The Regional Administrator will not award section 105 funds 
unless the applicant provides assurance that the grant will not 
supplant non-federal funds that would otherwise be available for 
maintaining the section 105 program.


Sec. 35.578  Award limitation.

    The Regional Administrator will not disapprove an application for, 
or terminate or annul an award of, financial assistance under 
Sec. 35.573 without prior notice and opportunity for a public hearing 
within the appropriate jurisdiction or, where more than one area is 
affected, within one of the affected areas within the jurisdiction

Water Pollution Control (Sections 106 and 518)


Sec. 35.580  Purpose.

    (a) Purpose of section. Sections 35.580 through 35.588 govern water 
pollution control grants to eligible Tribes and Intertribal Consortia 
(as defined in Sec. 35.502) authorized under sections 106 and 518 of 
the Clean Water Act.
    (b) Purpose of program. Water pollution control grants are awarded 
to assist Tribes and Intertribal Consortia in administering programs 
for the prevention, reduction, and elimination of water pollution, 
including programs for the development and implementation of ground-
water protection strategies.
    (c) Associated program requirements. Program requirements for water 
quality planning and management activities are provided in 40 CFR part 
130.


Sec. 35.582  Definitions.

    Federal Indian reservation. All lands within the limits of any 
Indian reservation under the jurisdiction of the United States 
government, notwithstanding the issuance of any patent, and including 
rights-of-way running through the reservation.
    Tribe. Any Indian Tribe, band, group, or community recognized by 
the Secretary of the Interior, exercising governmental authority over a 
federal Indian reservation.


Sec. 35.583  Eligible recipients.

    A Tribe, including an Intertribal Consortium, is eligible to 
receive a section 106 grant if EPA has determined that the Indian Tribe 
or each member of the Intertribal Consortium meets the requirements for 
treatment in a manner similar to a State under section 518(e) of the 
Clean Water Act. (See 40 CFR 130.6(d))


Sec. 35.585  Maximum Federal share.

    (a) The Regional Administrator may provide up to 95 percent of the 
approved work plan costs for Tribes or Intertribal Consortia 
establishing a section 106 program. Work plan costs include costs of 
planning, developing, establishing, improving or maintaining a water 
pollution control program.
    (b) The Regional Administrator may increase the maximum federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or within each Tribe that is a member of 
an Intertribal Consortium are constrained to such an extent that 
fulfilling the match requirement would impose undue hardship.


Sec. 35.588  Award limitations.

    (a) The Regional Administrator will only award section 106 funds or 
reprogram section 106 funds to a Tribe or Intertribal Consortium if:
    (1) All monitoring and analysis activities performed by the Tribe 
or Intertribal Consortium meets the applicable quality assurance and 
quality control requirements in 40 CFR 31.45.
    (2) The Tribe or each member of the Intertribal Consortium has 
emergency power authority comparable to that in section 504 of the 
Clean Water Act and adequate contingency plans to implement such 
authority.
    (3) EPA has not assumed enforcement as defined in section 309(a)(2) 
of the Clean Water Act in the Tribe's or any Intertribal Consortium 
member's jurisdiction.
    (4) The Tribe or Intertribal Consortium agrees to include a 
discussion of how the work performed under section 106 addressed water 
quality problems on Tribal lands in the annual report required under 
Sec. 35.515(d).
    (5) After an initial award of section 106 funds, the Tribe or 
Intertribal Consortium shows satisfactory progress in meeting its 
negotiated work plan commitments.
    (b) A Tribe or Intertribal Consortium is eligible to receive a 
section 106 grant or section 106 grant funds even if the Tribe or each 
of the members of an Intertribal Consortium does not meet the 
requirements of section 106(e)(1) and 106(f)(1) of the Clean Water Act.

Water Quality Cooperative Agreements (Section 104(b)(3))


Sec. 35.600  Purpose.

    (a) Purpose of section. Sections 35.600 through 35.604 govern Water 
Quality Cooperative Agreements to Tribes and Intertribal Consortia 
authorized under section 104(b)(3) of the Clean Water Act. These 
sections do not govern Water Quality Cooperative Agreements under 
section 104(b)(3) to organizations that do not meet the definitions of 
Tribe or Intertribal Consortium in Sec. 35.502; such cooperative 
agreements generally are subject to the uniform administrative 
requirements for grants at 40 CFR part 30.
    (b) Purpose of program. EPA awards Water Quality Cooperative 
Agreements for investigations, experiments, training, demonstrations, 
surveys, and studies relating to the causes, effects, extent, 
prevention, reduction, and elimination of water pollution. EPA issues 
guidance each year advising EPA regions and headquarters regarding 
appropriate priorities for funding for this program. This guidance may 
include such focus areas as National Pollutant Discharge Elimination 
System watershed permitting, urban wet weather programs, or innovative 
pretreatment programs and biosolids projects.

[[Page 40099]]

Sec. 35.603  Competitive process.

    EPA will award water quality cooperative agreement funds through a 
competitive process in accordance with national program guidance. After 
the competitive process is complete, the recipient can, at its 
discretion, accept the award as a separate cooperative agreement or add 
the funds to a Performance Partnership Grant. If the recipient chooses 
to add the funds to a Performance Partnership Grant, the water quality 
work plan commitments must be included in the Performance Partnership 
Grant work plan.


Sec. 35.604  Maximum Federal share.

    The Regional Administrator may provide up to 100 percent of 
approved work plan costs.

Wetlands Development Grant Program (Section 104(b)(3))


Sec. 35.610  Purpose.

    (a) Purpose of section. Sections 35.610 through 35.615 govern 
wetlands development grants to Tribes and Intertribal Consortia under 
section 104(b)(3) of the Clean Water Act. These sections do not govern 
wetlands development grants under section 104(b)(3) to organizations 
that do not meet the definitions of Tribe or Intertribal Consortium in 
Sec. 35.502; such grants generally are subject to the uniform 
administrative requirements for grants at 40 CFR part 30.
    (b) Purpose of program. EPA awards wetlands development grants to 
assist in the development of new, or the refinement of existing, 
wetlands protection and management programs.


Sec. 35.613  Competitive process.

    Wetlands development grants are awarded on a competitive basis. EPA 
annually establishes a deadline for receipt of grant applications. EPA 
reviews applications and decides which grant projects to fund based on 
criteria established by EPA. After the competitive process is complete, 
the recipient can, at its discretion, accept the award as a wetlands 
development program grant or add the funds to a Performance Partnership 
Grant. If the recipient chooses to add the funds to a Performance 
Partnership Grant, the wetlands development program work plan 
commitments must be included in the Performance Partnership Grant work 
plan.


Sec. 35.615  Maximum Federal share.

    EPA may provide up to 75 percent of the approved work plan costs 
for the development or refinement of a wetlands protection and 
management program.

Nonpoint Source Management Grants (Sections 319(h) and 518(f))


Sec. 35.630  Purpose.

    (a) Purpose of section. Sections 35.630 through 35.638 govern 
nonpoint source management grants to eligible Tribes and Intertribal 
Consortia under sections 319(h) and 518(f) of the Clean Water Act.
    (b) Purpose of program. Nonpoint source management grants may be 
awarded for the implementation of EPA-approved nonpoint source 
management programs, including ground-water quality protection 
activities that will advance the implementation of a comprehensive 
approved nonpoint source management program.


Sec. 35.632  Definition.

    Tribe. Any Indian Tribe, band, group, or community recognized by 
the Secretary of the Interior and exercising governmental authority 
over a federal Indian reservation.


Sec. 35.633  Eligibility requirements.

    A Tribe or Intertribal Consortium is eligible to receive a Nonpoint 
Source Management grant if EPA has determined that the Tribe or each 
member of the Intertribal Consortium meets the requirements for 
treatment in a manner similar to a State under section 518(e) of the 
Clean Water Act. (See 40 CFR 130.6(d).)


Sec. 35.635  Maximum Federal share.

    (a) The Regional Administrator may provide up to 60 percent of the 
approved work plan costs in any fiscal year. The non-Federal share of 
costs must be provided from non-Federal sources.
    (b) The Regional Administrator may increase the maximum Federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or within each Tribe that is a member of 
the Intertribal Consortium are constrained to such an extent that 
fulfilling the match requirement would impose undue hardship. In no 
case shall the Federal share be greater than 90 percent.


Sec. 35.636  Maintenance of effort.

    To receive funds under section 319 in any fiscal year, a Tribe or 
each member of an Intertribal Consortium must agree that the Tribe or 
each member of the Intertribal Consortium will maintain its aggregate 
expenditures from all other sources for programs for controlling 
nonpoint source pollution and improving the quality of the Tribe's or 
the Intertribal Consortiums members' waters at or above the average 
level of such expenditures in Fiscal Years 1985 and 1986.


Sec. 35.638  Award limitations.

    (a) Available funds. EPA may use no more than the amount authorized 
under the Clean Water Act section 319 and 518(f) for making grants to 
Tribes or Intertribal Consortia.
    (b) Financial assistance to persons. Tribes or Intertribal 
Consortia may use funds for financial assistance to persons only to the 
extent that such assistance is related to the cost of demonstration 
projects.
    (c) Administrative costs. Administrative costs in the form of 
salaries, overhead, or indirect costs for services provided and charged 
against activities and programs carried out with these funds shall not 
exceed 10 percent of the funds the Tribe or Intertribal Consortium 
receives in any fiscal year. The cost of implementing enforcement and 
regulatory activities, education, training, technical assistance, 
demonstration projects, and technology transfer programs are not 
subject to this limitation.
    (d) The Regional Administrator will not award section 319(h) funds 
to any Tribe or Intertribal Consortium unless:
    (1) Approved assessment report. EPA has approved the Tribes' or 
each member of the Intertribal Consortium's Assessment Report on 
nonpoint sources, prepared in accordance with section 319(a) of the 
Act;
    (2) Approved Tribe or Intertribal Consortium management program. 
EPA has approved the Tribes' or each member of the Intertribal 
Consortium's management program for nonpoint sources, prepared in 
accordance with section 319(b) of the Act;
    (3) Progress on reducing pollutant loadings. The Regional 
Administrator determines, for a Tribe or Intertribal Consortium that 
received section 319 funds in the preceding fiscal year, that the Tribe 
or each member of the Intertribal Consortium made satisfactory progress 
in meeting its schedule for achieving implementation of best management 
practices to reduce pollutant loadings from categories of nonpoint 
sources, or particular nonpoint sources, designated in the Tribe's or 
each member of the Intertribal Consortium's management program. The 
Tribe or each member of the Intertribal Consortium must develop this 
schedule in accordance with section 319(b)(2) of the Act;
    (4) Activity and output descriptions. The work plan briefly 
describes each significant category of nonpoint source

[[Page 40100]]

activity and the work plan commitments to be produced for each 
category; and
    (5) Significant watershed projects. For watershed projects whose 
costs exceed $50,000, the work plan contains:
    (i) A brief synopsis of the watershed implementation plan outlining 
the problems to be addressed;
    (ii) The project's goals and objectives; and
    (iii) The performance measures and environmental indicators that 
will be used to evaluate the results of the project.

Pesticide Cooperative Enforcement (Section 23(a)(1))


Sec. 35.640  Purpose.

    (a) Purpose of section. Sections 35.640 through 35.645 govern 
cooperative agreements to Tribes and Intertribal Consortia authorized 
under section 23(a)(1) of the Federal Insecticide, Fungicide, and 
Rodenticide Act for pesticide enforcement.
    (b) Purpose of program. Cooperative agreements are awarded to 
assist Tribes and Intertribal Consortia in implementing pesticide 
enforcement programs.
    (c) Associated program regulations. Refer to 19 CFR part 12 and 40 
CFR parts 150 through 189 for associated regulations.


Sec. 35.641  Eligible recipients.

    Eligible recipients of pesticide enforcement cooperative agreements 
are Tribes and Intertribal Consortia.


Sec. 35.642  Maximum Federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.


Sec. 35.645  Basis for allotment.

    The Administrator allots pesticide enforcement cooperative 
agreement funds to each regional office. Regional offices award funds 
to Tribes and Intertribal Consortia based on their programmatic needs 
and applicable EPA guidance.

Pesticide Applicator Certification and Training (Section 23(a)(2))


Sec. 35.646  Purpose.

    (a) Purpose of section. Sections 35.646 through 35.649 govern 
pesticide applicator certification and training grants to Tribes and 
Intertribal Consortia under section 23(a)(2) of the Federal 
Insecticide, Fungicide, and Rodenticide Act.
    (b) Purpose of program. Pesticide applicator certification and 
training grants are awarded to train and certify restricted use 
pesticide applicators.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 162, 170, and 171.


Sec. 35.649  Maximum Federal share.

    The Regional Administrator may provide up to 50 percent of the 
approved work plan costs.

Pesticide Program Implementation (Section 23(a)(1))


Sec. 35.650  Purpose.

    (a) Purpose of section. Sections 35.650 through 35.659 govern 
cooperative agreements to Tribes and Intertribal Consortia for 
pesticide enforcement and compliance programs under section 23(a)(1) of 
the Federal Insecticide, Fungicide, and Rodenticide Act.
    (b) Purpose of program. Cooperative agreements are awarded to 
assist Tribes and Intertribal Consortia to develop and implement 
pesticide programs, including programs that protect farm workers, 
ground water, and endangered species from pesticide risks and other 
pesticide management programs designated by the Administrator.
    (c) Program regulations. Refer to 40 CFR parts 150 through 189 and 
19 CFR part 12 for associated regulations.


Sec. 35.653  Eligible recipients.

    Eligible recipients of pesticide program implementation cooperative 
agreements are Tribes and Intertribal Consortia.


Sec. 35.655  Basis for allotment.

    The Administrator allots pesticide program implementation 
cooperative agreement funds to each regional office. Regional offices 
award funds to Tribes and Intertribal Consortia based on their 
programmatic needs and applicable EPA guidance.


Sec. 35.659  Maximum Federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.

Pollution Prevention Incentive Grants (Section 6605)


Sec. 35.660  Purpose.

    (a) Purpose of section. Sections 35.660 through 35.669 govern 
grants to Tribes and Intertribal Consortia under section 6605 of the 
Pollution Prevention Act.
    (b) Purpose of program. Pollution Prevention Incentive Grants are 
awarded to promote the use of source reduction techniques by 
businesses.


Sec. 35.661  Competitive process.

    EPA regions award pollution prevention grant funds to Tribes and 
Intertribal Consortia through a competitive process in accordance with 
EPA guidance. When evaluating a Tribe's or Intertribal Consortium's 
application, EPA must consider, among other criteria, whether the 
proposed program would:
    (a) Make specific technical assistance available to businesses 
seeking information about source reduction opportunities, including 
funding for experts to provide onsite technical advice to businesses 
seeking assistance in the development of source reduction plans;
    (b) Target assistance to businesses for whom lack of information is 
an impediment to source reduction; and
    (c) Provide training in source reduction techniques. Such training 
may be provided through local engineering schools or other appropriate 
means.


Sec. 35.662  Definitions.

    The following definition applies to the Pollution Prevention 
Incentive grant program and to Secs. 35.660 through 35.669:
    (a) Pollution prevention/source reduction is any practice that:
    (1) Reduces the amount of any hazardous substance, pollutant, or 
contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal;
    (2) Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, or 
contaminants; and
    (3) Reduces or eliminates the creation of pollutants through:
    (i) Increased efficiency in the use of raw materials, energy, 
water, or other resources; or
    (ii) Protection of national resources by conservation.
    (b) Pollution prevention/source reduction does not include any 
practice which alters the physical, chemical, or biological 
characteristics or the volume of a hazardous substance, pollutant, or 
contaminant through a process or activity which itself is not integral 
to and necessary for the production of a product or the providing of a 
service.


Sec. 35.663  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium as eligible to apply for a pollution prevention incentive 
grant if the Tribe or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;

[[Page 40101]]

    (3) Has adequate authority to carry out the grant activities; and,
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    (b) If the Administrator has previously determined that an Indian 
Tribe has met the prerequisites in paragraph (a)(1) and (2) of this 
section for another EPA program, the Tribe need provide only that 
information unique to the pollution prevention incentive grants program 
required by paragraph (b)(3) and (4) of this section.


Sec. 35.668  Award limitations.

    If the Pollution Prevention Incentive grant funds are included in a 
Performance Partnership Grant the Pollution Prevention Incentive work 
plan commitments must be included in the Performance Partnership Grant 
work plan.


Sec. 35.669  Maximum Federal share.

    The Federal share for Pollution Prevention Incentive Grants will 
not exceed 50 percent of the allowable Tribe and Intertribal Consortium 
Pollution Prevention Incentives project cost.

Public Water System Supervision (Section 1443(a) and Section 1451)


Sec. 35.670  Purpose.

    (a) Purpose of section. Sections 35. 670 through 35.678 govern 
public water system supervision grants to Tribes and Intertribal 
Consortia authorized under sections 1443(a) and 1451 of the Safe 
Drinking Water Act.
    (b) Purpose of program. Public water system supervision grants are 
awarded to carry out public water system supervision programs including 
implementation and enforcement of the requirements of the Act that 
apply to public water systems.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 141, 142, and 143.


Sec. 35.672  Definition.

    Tribe. Any Indian Tribe having a federally recognized governing 
body carrying out substantial governmental duties and powers over any 
area.


Sec. 35.673  Annual amount reserved by EPA.

    Each year, EPA shall reserve up to seven percent of the public 
water system supervision funds for grants to Tribes and Intertribal 
Consortia under section 1443(a).


Sec. 35.675  Maximum Federal share.

    (a) The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.
    (b) The Regional Administrator may increase the maximum federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or Consortium are constrained to such an 
extent that fulfilling the match requirement would impose undue 
hardship, except that the federal share shall not be greater than 90 
percent.


Sec. 35.676  Eligible recipients.

    A Tribe or Intertribal Consortium is eligible to apply for a public 
water system supervision grant if the Tribe or each member of the 
Intertribal Consortium meets the following criteria:
    (a) The Tribe or each member of the Intertribal Consortium is 
recognized by the Secretary of the Interior;
    (b) The Tribe or each member of the Intertribal Consortium has a 
governing body carrying out substantial governmental duties and powers 
over any area;
    (c) The functions to be exercised under the grant are within the 
area of the Tribal government's jurisdiction; and
    (d) The Tribe or each member of the Intertribal Consortium is 
reasonably expected to be capable, in the Regional Administrator's 
judgment, of carrying out the functions to be exercised under the 
grant.


Sec. 35.678  Award limitations.

    (a) Initial grant. The Regional Administrator will not make an 
initial award unless the Tribe or each member of the Intertribal 
Consortium has:
    (1) Met the requirements of 40 CFR part 142, subpart H (treatment 
in a manner similar to a State);
    (2) Established an approved public water system supervision program 
or agrees to establish an approvable program within three years of the 
initial award and assumed primary enforcement responsibility within 
this period; and
    (3) Agreed to use at least one year of the grant funding to 
demonstrate program capability to implement the requirements found in 
40 CFR 142.10.
    (b) Subsequent grants. The Regional Administrator will not make a 
subsequent grant, after the initial award, unless the Tribe or each 
member of the Intertribal Consortia can demonstrate reasonable progress 
towards assuming primary enforcement responsibility within the three-
year period after initial award. After the three-year period expires, 
the Regional Administrator will not award section 1443(a) funds to an 
Indian Tribe or Intertribal Consortium unless the Tribe or each member 
of the Intertribal Consortia has assumed primary enforcement 
responsibility for the public water system supervision program.

Underground Water Source Protection (Section 1443(b))


Sec. 35.680  Purpose.

    (a) Purpose of section. Sections 35.680 through 35.688 govern 
underground water source protection grants to Tribes and Intertribal 
Consortia under section 1443(b) of the Safe Drinking Water Act.
    (b) Purpose of program. The Underground Water Source Protection 
grants are awarded to carry out underground water source protection 
programs.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 124, 144, 145, 146, and 147.


Sec. 35.682  Definition.

    Tribe. Any Indian Tribe having a federally recognized governing 
body carrying out substantial governmental duties and powers over any 
area.


Sec. 35.683  Annual amount reserved by EPA.

    EPA shall reserve up to five percent of the underground water 
source protection funds each year for underground water source 
protection grants to Tribes under section 1443(b) of the Safe Drinking 
Water Act.


Sec. 35.685  Maximum Federal share.

    (a) The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.
    (b) The Regional Administrator may increase the maximum federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or Consortium are constrained to such an 
extent that fulfilling the match requirement would impose undue 
hardship, except that the Federal share shall not be greater than 90 
percent.


Sec. 35.686  Eligible recipients.

    A Tribe or Intertribal Consortium is eligible to apply for an 
underground water source protection grant if the Tribe or each member 
of the Intertribal Consortium meets the following criteria:
    (a) The Tribe or each member of the Intertribal Consortium is 
recognized by the Secretary of the Interior;
    (b) The Tribe or each member of the Intertribal Consortium has a 
governing body carrying out substantial governmental duties and powers 
over any area;

[[Page 40102]]

    (c) The functions to be exercised under the grant are within the 
area of the Tribal government's jurisdiction; and
    (d) The Tribe or each member of the Intertribal Consortium is 
reasonably expected to be capable, in the Regional Administrator's 
judgment, of carrying out the functions to be exercised under the 
grant.


Sec. 35.688  Award limitations.

    (a) Initial grants. The Regional Administrator will not make an 
initial award unless the Tribe or each member of the Intertribal 
Consortium has:
    (1) Met the requirements of 40 CFR part 145, subpart E (treatment 
in a manner similar to a State); and
    (2) Established an approved underground water source protection 
program or agrees to establish an approvable program within four years 
of the initial award.
    (b) Subsequent grants. The Regional Administrator will not make a 
subsequent grant, after the initial award, unless the Tribe can 
demonstrate reasonable progress towards assuming primary enforcement 
responsibility within the four-year period after initial award. After 
the four-year period expires, the Regional Administrator shall not 
award section 1443(b) funds to an Indian Tribe unless the Tribe has 
assumed primary enforcement responsibility for the underground water 
source protection program.

Lead-Based Paint Program (Section 404(g))


Sec. 35.690  Purpose.

    (a) Purpose of section. Sections 35.690 through 35.693 govern 
grants to Tribes and Intertribal Consortia under section 404(g) for the 
Toxic Substances Control Act .
    (b) Purpose of program. Lead-Based Paint Program grants are awarded 
to develop and, if the recipient is authorized, to carry out lead-based 
paint activities programs to ensure that individuals employed in lead-
based paint activities are properly trained; that training programs are 
accredited; and that contractors employed in such activities are 
certified.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR part 745.


Sec. 35.691  Funding coordination.

    Recipients must use the Lead-Based Paint program funding in a way 
that complements any related assistance they receive from other federal 
sources for lead-based paint activities.


Sec. 35.693  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium as eligible to apply for a lead-based paint program grant if 
the Tribe or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and,
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    (b) If the Administrator has previously determined that an Indian 
Tribe has met the prerequisites in paragraph (a)(1) and (2) of this 
section for another EPA program, the Tribe need provide only that 
information unique to the lead-based paint program required by 
paragraph (b)(3) and (4) of this section.

Indoor Radon Grants (Section 306)


Sec. 35.700  Purpose.

    (a) Purpose of section. Sections 35.700 through 35.708 govern 
Indoor Radon Grants to Tribes and Intertribal Consortia under section 
306 of the Toxic Substances Control Act.
    (b) Purpose of program. (1) Indoor radon grants are awarded to 
assist Tribes and Intertribal Consortia with the development and 
implementation of programs that assess and mitigate radon and that aim 
at reducing radon health risks. Indoor radon grant funds may be used 
for the following eligible activities.
    (i) Survey of radon levels, including special surveys of geographic 
areas or classes of buildings (such as public buildings, school 
buildings, high-risk residential construction types);
    (ii) Development of public information and education materials 
concerning radon assessment, mitigation, and control programs;
    (iii) Implementation of programs to control radon on existing and 
new structures;
    (iv) Purchase, by the Tribe or Intertribal Consortium of radon 
measurement equipment and devices;
    (v) Purchase and maintenance of analytical equipment connected to 
radon measurement and analysis, including costs of calibration of such 
equipment;
    (vi) Payment of costs of Environmental Protection Agency-approved 
training programs related to radon for permanent Tribal employees;
    (vii) Payment of general overhead and program administration costs;
    (viii) Development of a data storage and management system for 
information concerning radon occurrence, levels, and programs;
    (ix) Payment of costs of demonstration of radon mitigation methods 
and technologies as approved by EPA, including Tribal and Intertribal 
Consortia participation in the Environmental Protection Agency Home 
Evaluation Program; and
    (x) A toll-free radon hotline to provide information and technical 
assistance.
    (2) In implementing paragraphs (b)(1)(iv) and (ix) of this section, 
a Tribe or Intertribal Consortia should make every effort, consistent 
with the goals and successful operation of the Tribal radon program, to 
give preference to low-income persons.


Sec. 35.702  Basis for allotment.

    (a) The Regional Administrator will allot indoor radon grant funds 
based on the criteria in EPA Guidance in accordance with section 306(d) 
and (e) of the Toxic Substances Control Act.
    (b) No Tribe or Intertribal Consortium may receive an indoor radon 
grant in excess of 10 percent of the total appropriated amount made 
available each fiscal year.


Sec. 35.703  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium as eligible to apply for an indoor radon grant if the Tribe 
or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and,
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    (b) If the Administrator has previously determined that a Tribe has 
met the prerequisites in paragraphs (a)(1) and (2) of this section for 
another EPA program, the Tribe need provide only that information 
unique to the radon grant program required by paragraphs (a)(3) and (4) 
of this section.


Sec. 35.705  Maximum Federal share.

    The Regional Administrator may provide Tribes and Intertribal 
Consortia up to 75 percent of the approved costs for the development 
and implementation of radon program activities incurred by the Tribe in 
the first year of a grant to the Tribe or Consortium; 60 percent in the 
second year; and 50 percent in the third and each year thereafter.

[[Page 40103]]

Sec. 35.708  Award limitations.

    (a) The Regional Administrator shall consult with the Tribal agency 
which has the primary responsibility for radon programs as designated 
by the affected Tribe before including indoor funds in a Performance 
Partnership Grant with another Tribal agency.
    (b) No grant may be made in any fiscal year to a Tribe or 
Intertribal Consortium which did not satisfactorily implement the 
activities funded by the most recent grant awarded to the Tribe or 
Intertribal Consortium for an indoor radon program.
    (c) The costs of radon measurement equipment or devices (see 
Sec. 35.820(b)(1)(iv)) and demonstration of radon mitigation, methods, 
and technologies (see Sec. 35.820(b)(1)(ix)) shall not, in aggregate, 
exceed 50 percent of a Tribe's or Intertribal Consortium's radon grant 
award in a fiscal year.
    (d) The costs of general overhead and program administration (see 
Sec. 35.820(b)(1)(vii)) of an indoor radon grant shall not exceed 25 
percent of the amount of a Tribe's or Intertribal Consortium's radon 
grant in a fiscal year.
    (e) A Tribe or Intertribal Consortium may use funds for financial 
assistance to persons only to the extent such assistance is related to 
demonstration projects or the purchase and analysis of radon 
measurement devices.
    (f) Recipients must provide the Regional Administrator all radon-
related information generated in its grant supported activities, 
including the results of radon surveys, mitigation demonstration 
projects, and risk communication studies.
    (g) Recipients must maintain and make available to the public, a 
list of firms and individuals that have received a passing rating under 
the EPA proficiency rating program under section 305(a)(2) of the Act.
    (h) Recipients may not use radon program grant funds to cover the 
costs of proficiency rating programs under section 305(a)(2) of the 
Act.

Toxic Substances Compliance Monitoring (Section 28)


Sec. 35.710  Purpose.

    (a) Purpose of section. Sections 35.710 through 35.715 govern Toxic 
Substances Compliance Monitoring grants to Tribes and Intertribal 
Consortia under section 28 of the Toxic Substances Control Act.
    (b) Purpose of program. Toxic Substances Compliance Monitoring 
grants are awarded to establish and operate compliance monitoring 
programs to prevent or eliminate unreasonable risks to health or the 
environment associated with chemical substances or mixtures on Tribal 
lands with respect to which the Administrator is unable or not likely 
to take action for their prevention or elimination.
    (c) Associated program regulations. Refer to 40 CFR parts 700 
through 799 for associated program regulations.


Sec. 35.712  Competitive process.

    EPA will award Toxic Substances Control Act Compliance Monitoring 
grants to Tribes or Intertribal Consortia through a competitive process 
in accordance with national program guidance.


Sec. 35.713  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium as eligible to apply for a Toxic Substances Compliance 
Monitoring grant if the Tribe or each member of the Intertribal 
Consortium:
    (1) Is recognized by the Secretary of Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and,
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    (b) If the Administrator has previously determined that an Indian 
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this 
section for another EPA program, the Tribe need provide only that 
information unique to the Toxic Substances Compliance Monitoring grant 
program required by paragraphs (a)(3) and (4) of this section.


Sec. 35.715  Maximum Federal share.

    The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.


Sec. 35.718  Award limitation.

    If the Toxic Substances Compliance Monitoring grant funds are 
included in a Performance Partnership Grant, the toxic substances 
compliance monitoring work plan commitments must be included in the 
Performance Partnership Grant work plan.

[FR Doc. 99-17340 Filed 7-22-99; 8:45 am]
BILLING CODE 6560-50-P