[Federal Register Volume 66, Number 10 (Tuesday, January 16, 2001)]
[Rules and Regulations]
[Pages 3782-3807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-219]



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Part VI





Environmental Protection Agency





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40 CFR Parts 31 and 35



Environmental Program Grants for Tribes; Final Rule

  Federal Register / Vol. 66, No. 10 / Tuesday, January 16, 2001 / 
Rules and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

Environmental Program Grants for Tribes

40 CFR Parts 31 and 35

[FRL-6929-5]
RIN 2030-AA56


Environmental Program Grants for Tribes

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: This final rule revises and updates requirements in several 
Environmental Protection Agency (EPA) regulations 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 rule includes results-oriented approaches to planning 
and managing environmental programs. 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. (A regulation governing 
environmental program grants to State, interstate, and local government 
agencies published in the Federal Register of January 9, 2001.)

DATES: This regulation is effective February 15, 2001. This regulation 
applies to new grants awarded after February 15, 2001.

ADDRESSES: Although this regulation is final, comments may be submitted 
to the person identified in the section below at any time.

FOR FURTHER INFORMATION CONTACT: Michelle McClendon, Grants Policy, 
Information, and Training Branch (3903R), United States Environmental 
Protection Agency, 1200 Pennsylvania Ave., Washington, D.C. 20460, 
Telephone: 202-564-5357, [email protected].

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

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

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                 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 program-specific rules found following Sec. 35.540 of the 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

    The record of this final rule includes copies of the proposed and 
final rule, comments received on the rule, EPA's responses to those 
comments, and other relevant documents that support the rule. It is 
available for inspection from 9 am to 4 pm (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

    EPA proposed a rule for environmental program grants for Indian 
Tribes on July 23, 1999 (64 FR 40084). EPA received 16 letters of 
comment on the proposed rule. A summary of the comments and EPA's 
response are included in this preamble. The preamble also summarizes a 
few changes to the rule EPA determined necessary to clarify various 
provisions. This publication makes the rule final.
    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 the 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 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 many 
of the statutes authorizing grants 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 relationship 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 
in Indian country comparable to the role States play outside of Indian 
country.
    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 under Sec. 35.501(a) of the rule. 
Thus, the stability of annual grant funding for

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State, interstate, and local environmental program 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 PPG program for Indian Tribes and 
Intertribal Consortia. (Omnibus Consolidated Rescissions and 
Appropriations Act of 1996, Pub. L. 104-134, 110 Stat. 1321, 1321-299 
(1996); Departments of Veterans Affairs and Housing and Urban 
Development, and Independent Agencies Appropriations Act, 1998, Pub. L. 
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 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 account.
    This regulation will be codified in 40 CFR part 35, subpart B, as 
``Environmental Program Grants for 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 under 
State or Tribal law). 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 govern.

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. 
However, EPA must be able to link the grant work plans to EPA's 
Government Performance and Results Act Goal and Objective architecture. 
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. 
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 PPG 
work plan that deviates significantly from national program guidance.
    Core performance measures. Core performance measures for Tribal 
programs are still evolving and may be different from those negotiated 
by EPA National Program Managers (NPM) 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 rule includes results-oriented approaches to 
planning and managing environmental programs. Definitions and other 
aspects of the rule are compatible with 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 rule, Tribes can negotiate 
funding periods of more than one year with EPA, thereby improving 
stability in the programs. EPA recommends, however, that funding 
periods not exceed five years because it is difficult to account for 
funds and maintain records for longer periods. The funding period of a 
General Assistance Program (GAP) grant cannot exceed four years. (The 
term ``funding period'' used in this preamble and 40 CFR 31.23 has the 
same meaning as the term ``budget period'' on EPA's grant and 
cooperative agreement and amendment forms.)
    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 funding period. However, recipients beginning such work without 
prior, written approval do so at their own financial 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 funding 
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 (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

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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 Sec. 35.501.
    For all grants except 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 consisting 
exclusively of 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 this 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 Education, 
Assistance, and Self Determination Act, January 4, 1975 (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 U.S.C. 452), 
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 U.S.C. 1452).
    EPA 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. In the proposed regulation, EPA asked for comments on 
implementing this provision, but received none. Since issuing the 
proposed rule, EPA has determined that the preference requirements of 
the Indian Self-Determination Act should apply to all grants awarded to 
Tribes by EPA because they are awarded to Tribes pursuant to statutes 
authorizing grants to Indian organizations, which includes Tribes and 
Intertribal Consortia, or for the benefit of Indians. Therefore, the 
regulations governing the award of all EPA grants to Tribes at 40 CFR 
part 31 (Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments) are amended in this rule to 
reflect the preference requirements of the Indian Self-Determination 
Act and no comparable provision is included in the final rule for 40 
CFR part 35, subpart B. EPA is adding to 40 CFR part 31 a new 
Sec. 31.38 which provides:
    Any contract, subcontract, or subgrant awarded under an EPA grant 
by an Indian Tribe or Indian Intertribal Consortium that meets the 
definition and eligibility requirements at 40 CFR part 35, subpart B 
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, as defined in the Indian Self-Determination Act (25 
U.S.C. Sec. 405b); 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 U.S.C. 1452).
    In addition, the requirements for procurement under grants are 
amended to include a cross reference to the new preference provision at 
40 CFR 31.38. Specifically, 40 CFR 31.36(b)(1) is amended to provide:
    Procurement Standards. (1) Grantees and subgrantees will use their 
own procurement procedures which reflect applicable State and local 
laws and regulations, provided that the procurement actions conform to 
applicable federal law, the standards identified in this section, and, 
if applicable, 40 CFR 31.38.

V. Performance Partnership Grants

    Sections 35.530 through 35.538 contain the requirements that apply 
only to 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, it must meet the 
requirements for that program with a few specified exceptions. For 
example, if a program

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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, EPA approved, or 
EPA authorized activities, which still require delegation, approval 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 NPMs. The NPM may 
expressly waive or modify the 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 appropriate NPMs, including those NPMs 
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, approved, or authorized 
program under a PPG, a Tribe would need the delegations, approvals, or 
authorizations as required under Sec. 35.535(a). Given the wide variety 
of environmental activities eligible under 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 that are eligible for funding 
under GAP. Furthermore, this will allow Tribes to use GAP funds 
included in a PPG, to carry out activities that are eligible for 
funding under any of the other grant programs covered by this subpart 
as long as the Tribe has any EPA delegation, approval, or authorization 
required under Sec. 35.535(a).
    Within the framework of EPA oversight established by Secs. 35.507, 
35.514(a), 35.535 and national program guidance, EPA is providing 
Tribes with flexibility to use PPG funds for a broad variety of 
activities. EPA believes this approach is appropriate 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 NPMs before agreeing to 
work plans that differ significantly from National Program Guidance. 
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 NPM associated 
with the funding source before approving the work plan (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 revise the regulations 
appropriately.
    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. 
However, EPA must be able to link the grant work plans to EPA's GPRA 
goal and objective architecture. These 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 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 will 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.

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(The required cost share for the Tribal Water Pollution Control Grant 
Program (Clean Water Act, section 106) is five percent; therefore, it 
is not one of the grant programs under which the 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 received several comments on the cost sharing 
provisions of the proposed rule. The comments are discussed in Section 
VII of this preamble.
    In the preamble to the proposed rule, EPA invited 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. EPA did not receive any 
recommendations for the socio-economic indicators.

VI. Indian Environmental General Assistance Program 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 protection 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, develop, and establish a core program for environmental 
protection. It also provides the opportunity for Tribes to define and 
develop administrative and legal infrastructures, and to undertake 
additional activities to plan, develop, and establish 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 
in 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 media-specific environmental activities. EPA 
believes that the overriding value of GAP lies in its ability to assist 
Tribes in the development of their environmental program 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. Response to Comments

    EPA received 16 letters commenting on the proposed rule. In 
general, the comments supported the rule as written but suggested 
several changes. Specifically:
    1. Three commenters addressed EPA's intention to include 
regulations for the Hazardous Waste and Underground Storage Tank 
programs in the final rule. One commenter asked that the programs be 
added to the rule immediately while two asked that the provisions for 
these programs be made available for public comment first.
    EPA decided to include the Hazardous Waste and Underground Storage 
Tank Grant Programs in the final rule to provide Tribes with an 
expedited opportunity to include funds from these programs in a PPG and 
to allow Tribes to use PPGs for activities eligible for funding under 
these grant programs even if they do not include funds from these 
programs in a PPG (consistent with the limitations at Sec. 35.535). EPA 
believes that giving Tribes the option, as soon as possible, of 
including Hazardous Waste and Underground Storage Tanks grants in a PPG 
provides Tribes with greater flexibility in building a partnership for 
environmental protection than not including the programs in subpart B 
at this time. Furthermore, as part of its regulation review process EPA 
provided copies of the draft final rule to many Tribal representatives 
including those who serve on the EPA Tribal Operations Committee (TOC), 
the National Tribal Environmental Council (NTEC) and the Tribal 
Association of Solid Waste and Emergency Response (TASWER). Finally, as 
noted above, comments on this rule, although final, may be submitted to 
the person identified above in the For Further Information section 
above. Although EPA does not anticipate doing so, EPA could amend this 
rule in response to comments without having to go through a subsequent 
notice and comment rule making. This is because rules regarding the 
award and administration of grants are explicitly exempt from the 
notice and comment requirements of the Administrative Procedure Act APA 
(5 U.S.C. 553(a)(1)).
    2. One commenter noted that Section VII of the Preamble included a 
reference to ``State'' work plans and it should refer to Tribal work 
plans.
    EPA apologizes for any confusion this mistake may have caused. EPA 
will substitute the words Tribe, or Tribal for State in this paragraph.
    3. Two commenters suggested the term ``Tribal/EPA Environmental 
Agreement'' (TEA) should not be defined in the rule because TEAs are 
not intended to bind Tribes to any particular substantive requirements. 
The commenters stated that the definition would tend to increase rather 
than streamline requirements.
    EPA agrees that the decision whether to negotiate a TEA is 
discretionary. Nevertheless, EPA believes it is appropriate to include 
the definition since a TEA may be used as a work plan under 
Sec. 35.507(c). EPA is today revising the definition of Tribal/EPA 
Environmental Agreement that was included in the proposed rule to be 
more consistent with Administrator Browner's 1994 Action Memorandum for 
the EPA Indian Program and the American Indian Environmental Office's 
template and guidance on TEAs which views these as dynamic rather than 
static documents. To the extent a TEA is used as the basis for a PPG 
work plan, the version used would be binding for the purposes of the 
agreement. For an explanation of EPA's work with Tribes to develop 
TEAs, please see Administrator Browner's July 12, 1994, Tribal 
Operations Action Memorandum

[[Page 3787]]

and American Indian Environmental Office Director's July 1995 TEA 
Template. Both of these documents are available at: http://www.epa.gov/indian, or contact Bob Smith at EPA's American Indian Environmental 
Office at (202) 260-8202.
    Including an appropriate definition for a TEA in the regulation 
does not impose any requirement for a Tribe to have a TEA, or add new 
requirements for the content of a TEA. Further, there is no requirement 
that a TEA be developed. The intention of Sec. 35.507(c) is to provide 
added flexibility for EPA and a Tribe to agree to use a TEA or a 
portion of the TEA as the work plan or part of the work plan for an 
environmental program grant: (1) If they choose to do so; and (2) if 
the portion of the TEA that is to serve as the grant work plan clearly 
identifies and distinguishes work plan activities from other portions 
of the TEA and meets the work plan requirements in Sec. 35.507(b). EPA 
reasoned that, in some cases, the development of a work plan could 
actually be made easier if parts of it had already been formulated when 
the Tribe developed its TEA.
    4. Three commenters expressed concern about Sec. 35.504 which will 
allow Intertribal Consortia to receive grants under all of the grant 
programs covered by this rule. The commenters maintain that EPA should 
not award grants to Consortia because it might jeopardize the autonomy 
of Tribes, conflict with an individual Tribe's proposals, or result in 
the duplication of activities or performance of activities that are not 
supported by all members of the Intertribal Consortium.
    EPA understands these concerns and has modified the final rule to 
ensure that such consequences do not result from the award of grants to 
Intertribal Consortia. Section 35.502 defines Intertribal Consortium as 
``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,'' and 
Sec. 35.504(a) provides that ``an Intertribal Consortium is eligible to 
receive a grant under the authorities listed in Sec. 35.501 only if the 
Consortium demonstrates that all members of the Consortium * * * 
authorize the Consortium to apply for and receive assistance.'' The 
definition of Intertribal Consortium in the proposed rule also provided 
that ``[a] Consortium must have adequate documentation of the existence 
of the partnership and the authorization to apply for and receive 
assistance.'' Thus, an Intertribal Consortium must be able to provide 
some documentary proof that a Tribe has authorized it to apply for and 
receive a specific grant on the Tribe's behalf.
    To clarify the eligibility and documentation requirements, EPA made 
a number of changes in the final rule. First, EPA moved the 
documentation requirements from the definition of Intertribal 
Consortium to the section on eligibility requirements. In addition, EPA 
clarified that the documentation must show that all members of the 
Consortium (or all eligible members of the Consortium in the case of a 
GAP grant) authorize the Consortium to apply for and receive the grant 
for which the Intertribal Consortium has applied. The final rule also 
makes it clear that Intertribal Consortia must both ``have'' this 
documentation and submit it to EPA in order to be eligible for a grant 
award as a Consortium. The documentation of the member Tribes' 
authorization of the Consortium should specify the period of time for 
which the authorization is effective without further action by the 
authorizing Tribe and whether the authorization applies to particular 
grants or all grants for which the Consortium may apply. Members of a 
Consortium may impose other requirements on their Consortium to ensure 
that the Consortium cannot act on their behalf without their 
authorization. EPA believes that these provisions, as modified in the 
final rule, will ensure that grants to Consortia do not jeopardize the 
autonomy of a Tribe, conflict with a Tribe's own proposals, or involve 
activities not supported by all Tribes that are members of the 
Consortia. In addition, EPA's review of work plans will further reduce 
the possibility that Tribes and Intertribal Consortia carry out 
duplicative activities.
    5. Three comments concerned the provisions related to changes in 
assistance agreements after award. One stated EPA should reduce the 
number of small changes required, especially in the GAP program with 
respect to the grant budget.
    EPA believes this regulation will eliminate the need for frequent 
budget revisions for such small changes as unanticipated fluctuations 
in travel, lodging, or office equipment prices. Those changes will not 
have to be reported or require prior approval unless the Regional 
Administrator determines otherwise in specific cases. Section 35.514(c) 
states that recipients do not need to obtain approval for changes in 
budgets unless the Regional Administrator determines additional 
approval requirements should be imposed on a specific recipient for a 
specified period of time. Amendments to environmental program grant 
amounts and extensions of the budget period still, however, require 
approval from the Regional Administrator under Sec. 35.514(b).
    Two commenters suggested that EPA define ``significant'' as used in 
Sec. 35.514(a) and explain the circumstances under which the Regional 
Administrator might determine that additional approval requirements 
should be imposed in Sec. 35.514(c).
    Section 35.514 requires recipients to obtain the Regional 
Administrator's prior written approval before making significant 
changes to the grant work plan or budget after the work plan has been 
negotiated. Under the Uniform Administrative Regulations for Grant and 
Cooperative Agreements to State and Local Governments (40 CFR part 31), 
Tribes and Intertribal Consortia would also be required to get EPA's 
prior written approval for ``any revision of the scope or objectives of 
the project (regardless of whether there is an associated budget 
revision requiring prior approval)'' (40 CFR 31.30(d)(1)). EPA believes 
that for the continuing environmental program grants covered by this 
rule, prior written approval for changes should be necessary only for 
significant changes, and that the grantee, with assistance from the EPA 
project officer, if necessary, is in the best position to distinguish 
significant from insignificant changes in the context of its particular 
work plan. Further, defining the term would reduce management 
discretion and flexibility which we believe are essential to the 
regulation. Accordingly, EPA has decided not to define ``significant''. 
If there is any question as to whether a post-award change in the work 
plan is significant, the grantee is encouraged to consult with the EPA 
project officer either during work plan negotiations or before making 
the change.
    These commenters also asked EPA to explain the circumstances under 
which the Regional Administrator might determine that additional 
approval requirements should be imposed in Sec. 35.514(c).
    Section 35.514(c) provides that no approval is required for changes 
other than those changes described in Sec. 35.514(a) and (b), unless 
the Regional Administrator determines that approval requirements should 
be imposed on a specific recipient for a specific period of time. Thus, 
Sec. 35.514(c) eliminates requirements for that category of changes, 
but gives the Regional Administrator the authority to impose them on a 
case-by-case basis. There are a variety of circumstances which could 
lead EPA to impose such requirements.

[[Page 3788]]

For example, the Regional Administrator might determine that additional 
approval requirements should be imposed when it is determined the 
additional requirements are necessary to ensure proper management of 
EPA grants because the recipient has had a history of poor performance 
and corrective actions directed by audits.
    6. Two comments asked that EPA define ``cumulative effectiveness'' 
and ``sufficient progress'' as used in Sec. 35.515.
    Section 35.515 describes the process developed by the Regional 
Administrator and the Tribe or Intertribal Consortium for jointly 
evaluating a recipient's performance under the grant in accordance with 
Sec. 35.515(a). Paragraph (b) of Sec. 35.515 provides, in pertinent 
part, that ``the evaluation process must provide for * * * a discussion 
of the cumulative effectiveness of the work performed under all work 
plan components''. Paragraph (c) states that ``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''. The phrase ``cumulative 
effectiveness'' in the context of Sec. 35.515(b) refers to how 
effectively the recipient carried out the work under all of the work 
plan components, taken together. The phrase ``sufficient progress'' in 
the context of Sec. 35.515(c) is a jointly agreed upon assessment of 
accomplishments as measured against the work plan commitments.
    EPA believes that a regulatory definition of these terms would 
significantly restrict the flexibility afforded both Regional 
Administrators and applicants under Sec. 35.515, particularly since the 
regulation contemplates a jointly developed process for jointly 
evaluating and reporting progress and accomplishments under the work 
plan.
    7. Two commenters state the Administrator should not be able to use 
a guidance document to delete a program from coverage under a PPG.
    Section 35.533 provides that the Administrator may in guidance or 
in regulation describe subsequent additions, deletions, or changes to 
the list of environmental programs eligible for inclusion in PPGs. EPA 
grant guidance may include rules (as ``rule'' is defined by the 
Administrative Procedure Act, which explicitly exempts grant related 
rules from notice and comment rule making requirements). There may be 
changes in the list of environmental programs eligible for inclusion in 
a PPG as a result of EPA's annual appropriation act and Tribes will 
need to know about those changes as soon as possible since they will 
take effect at the start of the fiscal year. Thus, EPA believes it is 
important to be able to inform grantees of such changes quickly in a 
guidance document rather than in a rule. Any changes in the list of 
environmental programs will be published in the Federal Register.
    8. One commenter supported the cost sharing requirements included 
in the proposed regulation while several stated that EPA should reduce 
the cost share required under PPGs to zero (see Sec. 35.536).
    The formula will reduce the cost share from current levels for 
Tribes that move grants with matches greater than five percent into a 
PPG. EPA carefully considered the question of further reductions in the 
cost share for Tribal recipients and concluded that some investment by 
recipients is generally appropriate to expand the ability of EPA and 
its partners to protect public health and the environment from 
pollution. Section 35.536(d) also authorizes the Regional Administrator 
to waive the cost share requirement at any time upon request by the 
Tribe or Intertribal Consortium, if the Regional Administrator 
determines the cost share would impose undue hardship. EPA notes that 
PPGs and many of the Agency's grant programs allow for recipients to 
meet the cost share requirements with in-kind services (see 40 CFR 
31.24).
    9. One commenter expressed concern that PPGs do not work well for 
Tribes because Tribal grants are not awarded at the same time in a 
fiscal year, causing the Tribes and EPA to continually update the PPG. 
The commenter also expressed concern that certain grants are not 
eligible for the PPG, including solid waste and emergency response 
grants.
    Finally, the commenter stated that: ``It seems as though there is 
a[n] undercurrent of mistrust by Regional program offices, because of 
the newness of PPG's to Tribes, that fuels the conception that Tribes 
are not capable of this type of grant management.'' The commenter 
expressed concern that EPA is scrutinizing the grants management 
practices of Tribes more than those of States.
    The concern raised by the commenter about the timing of grant 
awards is valid. EPA hopes that the opportunity to streamline 
administrative procedures in a PPG will provide an incentive for closer 
alignment of funding cycles in the Agency's grant programs.
    Under the legislation authorizing the PPG program (Omnibus 
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-
134, 110 Stat. 1321, 1321-299 (1996); Departments of Veterans Affairs 
and Housing and Urban Development, and Independent Agencies 
Appropriations Act, 1998, Pub. L. 105-65, 111 Stat. 1344, 1373 (1997)), 
EPA has made as many environmental program grants as possible eligible 
for inclusion in a PPG. With this final rule, funds from all 17 
environmental program grants available to Tribes in the Agency's 
earmark for multi-media or single media pollution prevention, control 
and abatement and related activities, which are in the ``State and 
Tribal Assistance Grant'' (STAG) appropriation account, may be included 
in PPGs. Only funds included in that particular earmark within the STAG 
account are available for inclusion in PPGs because the statutory 
authority to award a PPG is limited to those funds. Funds from other 
EPA appropriations, such as those for Superfund emergency response 
grants are not included in the earmark. The programs that are funded 
under this regulation are those listed in Sec. 35.501. EPA does not 
currently have a grant program for continuing solid waste programs. 
Under this rule, however, Tribes may use GAP funds to develop and 
implement solid waste programs (see Sec. 35.545).
    EPA has traditionally received funding for its grant programs on a 
media-specific basis and reported to Congress on program 
accomplishments similarly. The concerns raised by the commenter 
regarding ``additional scrutiny'' and ``an undercurrent of mistrust'' 
may reflect the challenge (and growing pains) associated with adopting 
a new approach that allows funds appropriated by Congress on a media-
specific basis to be merged into a PPG. The fact that, due to funding 
limitations, many EPA programs award grants to Tribes on a competitive 
basis, rather than through an allotment process, may compound the 
difficulty of moving from individual Tribal grants to PPGs.
    EPA believes its requirements for State and Tribal grants 
administration are similar under subparts A and B. However, EPA has 
recognized that there are unique features to Tribal grant programs 
which make implementation of a PPG more challenging. For example, in 
addition to the competition for funds described above, an individual 
Tribe will generally have access to fewer EPA grants on an annual basis 
than EPA's State partners. Therefore, EPA has provided the opportunity 
for more flexibility in the use of Tribal grants

[[Page 3789]]

funds. In particular, EPA is allowing Tribes and the Regional 
Administrator to develop a PPG work plan that may include activities 
that are eligible for funding under any of the PPG-eligible grant 
programs (within certain limitations), even if funds from certain grant 
programs were not included in the PPG. In contrast, EPA is requiring 
States to receive funding from a grant program in order to use PPG 
funds for activities under that program.
    10. One commenter opposed award of GAP grants to Intertribal 
Consortia because GAP 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 programs in Indian Country.'' The commenter stated that 
such capacity building should be undertaken by individual Tribes, not 
by Consortia.
    EPA disagrees. Because we have defined an Intertribal Consortium as 
a partnership between two or more Tribes (defined in this rule 
generally as Indian Tribal governments), GAP grants to Intertribal 
Consortia will assist those Tribes that are members of the Consortium 
to build capacity to administer environmental programs. Furthermore, 
the Indian Environmental General Assistance Program Act (42 U.S.C. 
4368b) explicitly authorizes EPA to award grants to Intertribal 
Consortia. EPA prefers not to restrict the eligible recipients of GAP 
grants further than the statutory authority for GAP grants. Therefore, 
EPA has not changed the final rule in response to this comment.
    11. Two commenters asked for clarification of what constituted 
``otherwise available funds'' which would prevent funding under the 
Clean Air Act section 105 referenced in Sec. 35.576(d). Section 
35.576(d) provides that ``[t]he 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.''
    EPA intended Sec. 35.576(d) to refer only to Tribes and Intertribal 
Consortia that are eligible for financial assistance under 
Sec. 35.573(b) (for Tribes that have not established eligibility for 
treatment in a manner similar to a State) and it is a corollary to the 
maintenance of effort requirement applicable to such Tribes. It does 
not apply to Tribes that are eligible for a section 105 grant under 
Sec. 35.573(a) (for Tribes that have established treatment as a State). 
Non-federal funds that would otherwise be available ``for maintaining 
the section 105 program'' would include Tribal funds in an amount equal 
to that which the Tribe expended on the Air 105 program in the previous 
year. To clarify that this section applies only to Tribes that 
establish eligibility under Sec. 35.573(b), EPA added the phrase ``For 
Tribes and Intertribal Consortia that are eligible for financial 
assistance under Sec. 35.573(b) of this subpart'' to the beginning of 
this paragraph. We also changed the numbering of the section as 
follows: Section 35.576(b) became Sec. 35.576(a)(1); Sec. 35.576(c) 
became Sec. 35.576(a)(2) and Sec. 35.576(d) became Sec. 35.576(b).
    12. Two commenters requested that the limit on administrative costs 
in the Nonpoint Source Program (Sec. 35.638(c)) be clarified. They 
asked, does the 10 percent limit apply to Tribal general administrative 
costs or to general and administrative costs associated with the 
program? If the former, they ask that a phrase, ``unless the applicant 
has an indirect cost rate agreement,'' be added at the end of the 
sentence containing the limitation. If the latter, they express concern 
that this limitation is so severe as to result in an inability of the 
Tribes to administer the program at all.
    EPA does not have the discretion to remove the limitation at 
Sec. 35.638(c) from the award of grants under section 319 of the Clean 
Water Act because it is required by law. This limitation is a 
restatement of the statutory limitation established by section 
319(h)(12) which provides that ``administrative costs * * * charged 
against activities and programs carried out with a grant under this 
subsection shall not exceed 10 percent of the amount of the grant in 
such year, except that the costs of implementing enforcement and 
regulatory activities, education, training, technical assistance, 
demonstration projects, and technology transfer programs shall not be 
subject to this limitation.'' It applies to grants awarded under 
section 319 to both States and Tribes. The limitation does not apply to 
Tribal general administrative costs because general administrative 
costs that are not associated with a grant program cannot be charged to 
a grant. Only administrative costs, including allowable indirect costs, 
that are reasonable and necessary to carry out a grant program or 
project can be charged to that particular grant. However, it should be 
noted that section 319(h)(12) specifically exempts the costs of 
implementing enforcement and regulatory activities, education, 
training, technical assistance, demonstration projects, and technology 
transfer programs. The experience of States, Territories, and Tribes 
that have received section 319 grants is that this limitation, defined 
as it is in the statute, has not posed any significant obstacle to the 
use of section 319 funds.
    13. Two comments strongly supported the increase in funding to be 
available to Tribes and Intertribal Consortia for drinking water 
programs (Sec. 35.673). The commenters agreed with the recent focus on 
achieving safe and clean drinking water throughout Indian Country and 
appreciate the recognition of capacity-building needs in respect to 
Tribal water systems. One commenter asked that the increase of up to 
seven percent in the Public Water System Supervision (PWSS) program 
Tribal reserve under Sec. 35.673 be restated to provide for a fixed 
amount of seven percent. Two other comments strongly opposed the 
increase. They fear that increasing the Tribal reserve will cause a 
decrease in PWSS grants available to primacy States. In addition, they 
argue there should not be an increase in the Tribal reserve since State 
programs are currently underfunded.
    EPA understands the concerns about the increase in the PWSS Tribal 
Reserve. However, we specifically asked Congress for additional PWSS 
funds to help Tribes build their capabilities in the PWSS program and 
to help Tribes meet new requirements that are needed to obtain Drinking 
Water Infrastructure Tribal Set-Aside grants. These new requirements, 
such as operator certification and capacity development, are necessary 
to successfully run a PWSS program as well as to obtain grants. Since 
Fiscal Year 1998 EPA has received an additional $3,780,500 in the PWSS 
Program for these purposes. For the past two years, EPA has deviated 
from the three percent regulatory limit on the amount of PWSS funds 
reserved for Tribes. We are increasing the regulatory limit on PWSS 
funds reserved for Tribes because Tribes need these funds to comply 
with new requirements imposed by the Safe Drinking Water Act Amendments 
of 1996.
    Tribes do not have the same opportunity as States have to use a 
portion of their infrastructure funding to meet these new requirements. 
Thus far, States have set-aside more than $91 million from their 
Drinking Water State Revolving Fund capitalization grants for 
activities supporting drinking water programs (including PWSS, capacity 
development and operator certification programs) and are expected to 
set-aside more funds for these purposes in the future. The only 
additional funds that have been made available for Tribes is the 
$3,780,500 million that has been added to the PWSS grants.

[[Page 3790]]

    The increase in the funds reserved for Tribes is not intended to 
take funds away from States, but rather to continue to fund the Indian 
programs at the current level without the need to deviate from the 
regulations. EPA may not necessarily reserve seven percent of the 
annual appropriation for PWSS grants; the regulation only provides that 
``up to'' seven percent of the PWSS funds shall be reserved for Tribes. 
This provides EPA flexibility to adjust the amount of the Tribal 
reserve upward or downward. Thus, for example, if Congress reduces the 
appropriation for PWSS grants in the future, then EPA may decide to 
reduce the Tribal reserve to balance it with the need for funding for 
the States. EPA will work with stakeholders, including States and 
Tribes, in establishing an equitable allocation.
    14. Two commenters asked that the Agency make the regulation 
effective for Fiscal Years 2000 and 2001 and not retroactively.
    EPA agrees. The regulation will apply to new grants awarded 30 days 
after the regulation is published. EPA will not apply this rule to 
grants that have already been awarded. A Tribe may, however, close out 
an existing grant and carry over funding to a new grant awarded under 
this subpart after the regulation is published.
    15. One commenter expressed concern that the definition of ``Indian 
country'' in subpart B may limit the use of certain grant funds that 
could otherwise be available to address pollution threats to Usual and 
Accustomed Areas (areas where certain treaty-reserved fishing rights 
are exercised) and in ceded lands.
    To avoid the appearance of unnecessarily limiting its grant 
authorities, EPA has reviewed the regulations and removed use of the 
term ``Indian country'' in four provisions: Sec. 35.516 (Direct 
Implementation); Sec. 35.540 (Purpose of the Indian Environmental 
General Assistance Program); Sec. 35.545(b) (Eligible Activities); and 
Sec. 35.570 (Air Pollution Control Grants). The change to Sec. 35.516 
makes this provision consistent with parallel language in the State 
rule. The changes to Secs. 35.540 and 35.545(b) are consistent with the 
Indian Environmental General Assistance Program Act 42 U.S.C. 4368b. 
The change to Sec. 35.570 is consistent with Clean Air Act provisions 
governing use of these grant funds.
    16. One commenter stated that the boundaries of many Tribes are 
constantly being defined and redefined, and wanted to know whether the 
PPG is sufficiently flexible to accommodate these changes.
    To the extent a Tribe or Intertribal Consortium must identify 
particular land areas in order to be eligible for a grant (either a 
single media grant or a PPG), and it wants to perform work in an area 
not identified in the original application, the Tribe or Intertribal 
Consortium will need to demonstrate that it continues to meet the 
requirements for receiving grant.

VIII. Other Changes in the Proposed Rule

     EPA made a several changes to the proposed rule to clarify certain 
provisions even though the provisions were not the subject of comments.
    1. There is no substantive difference between the definition of 
Tribe in the GAP provisions of the proposed rule (Sec. 35.542) and the 
definition of Tribe at 35.502 which applies to subpart B generally 
(``Definition of terms''). Section 35.542 of the proposed rule defined 
``Tribe'' as ``[a]ny 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. 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.'' 64 FR 
40084, 40097 (1999). This definition was in turn based on the 
definition of ``Indian Tribal government'' in the Indian Environmental 
General Assistance Program Act (IEGAPA), which authorizes GAP grants. 
42 U.S.C. Sec. 4368b(c)(1).
    The definition of Tribe in Sec. 35.502 of the proposed and final 
rules provided that ``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.''
    The inclusion of Alaska Native regional or village corporations in 
the definition of Indian Tribal government in IEGAPA and the proposed 
rule has created some confusion because regional and village 
corporations are not governments, and they are not recognized as 
eligible for the special services provided by the United States to 
Indians because of their status as Indians. Since Alaska Native 
regional and village corporations are not federally recognized 
governments, they are not eligible for GAP grants.
    In the proposed rule, the only difference between the definitions 
of Tribe in Secs. 35.542 and 35.502 was the inclusion of Alaska native 
regional and village corporations in Sec. 35.542. However, as discussed 
above, there is no substantive difference between the definitions 
because no Alaska native regional and village corporation is in fact 
eligible for a GAP grant as a ``Tribe''. As there is no need for a GAP-
specific definition of Tribe, we have omitted the definition of Tribe 
for GAP grants at Sec. 35.542, and the general definition at 
Sec. 35.502 will apply instead.
    Although Alaska Native regional and village corporations are not 
eligible for GAP grants, an Alaska Tribe receiving a GAP grant may 
award a subcontract or subgrant to a village or regional corporation 
(just as they could to any other organization), in accordance with 
EPA's regulations governing subcontracts and subgrants.
    2. The regulation uses the term ``Regional Administrator'' 
throughout. However, grants subject to these provisions may also be 
approved and awarded by officials in EPA Heaquarters from time to time. 
Accordingly, the final rule has been modified by adding Sec. 35.501(c) 
to clarify that this subpart applies and the phrase ``Regional 
Administrator'' means ``Assistant Administrator in the case of grants 
awarded from EPA headquarters.
    3. We revised Sec. 35.576 to make it clear that while applications 
for Section 105 Air Pollution Grants must indicate recipients will meet 
the Maintenance of Effort (MOE) provision of the program 
(Secs. 35.576(a)), recipients' actual expenditures must actually meet 
the MOE level. We have added section Sec. 35.576(a)(2) to make clear 
the Regional Administrator must take action to recover the grant funds, 
if expenditures do not meet the required level.
    4. We revised Sec. 35.708(h) to make clear that Indoor Radon 
program grant funds under section 306 of TSCA may be used to cover the 
costs of Tribal and Intertribal Consortium proficiency rating programs, 
but not a federal one.
    5. After publishing the proposed rule, EPA reevaluated the 
eligibility requirements for Intertribal Consortia seeking GAP grants 
(section 35.504). That provision is intended to allow a GAP grant to a 
Consortium that includes a majority of recognized and a minority of 
non-recognized Tribes (it was not intended to allow a GAP grant to a 
Consortium that includes non-Tribal organizations and businesses). 
While EPA reaffirms its determination to award GAP grants to 
Intertribal

[[Page 3791]]

Consortia made up of a majority of federally recognized Tribes and a 
minority of non-federally recognized Tribes, EPA has modified the 
eligibility requirements for Intertribal Consortia seeking GAP grants 
in order to further ensure that only those members of an Intertribal 
Consortium that are federally recognized Tribes directly benefit from 
the grant.
    6. The Clean Air Act prohibits the use of revenue collected under a 
Title V operating permit program to meet the cost share requirements of 
an air pollution program under section 105 of the Clean Air Act. We 
added a new paragraph (c) to Sec. 35.575 to make this clear.

IX. Implementing GPRA

     EPA has developed an integrated approach to implement 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 authorized or 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 the GPRA goal, objective, and subobjective 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, therefore, will 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 rely on Tribal budget 
information sufficiently to determine the costs of EPA's results-based 
outcomes according to the requirements of this rule:
    (1) Tribes and Intertribal Consortia provide the program budget 
information required as part of the application (see 
Sec. 35.507(b)(2)(ii));
    (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 (see Sec. 35.507(b)(2)(i)); and
    (3) Recipients report back on work plan accomplishments (see 
Sec. 35.515).
    The rule will ensure these three requirements are met. 
Additionally, in accordance with Sec. 35.514(a), recipients may make 
significant changes to the work plan commitments only after obtaining 
the Regional Administrator's prior written approval. The regional 
office, in consultation with the recipient, will document these 
revisions including budgeted amounts associated with the revisions. If 
necessary, the EPA funding office will make adjustments to original 
budget linking work plan components to EPA's goal and objective 
architecture. Once these requirements are met, they provide a 
reasonable basis for associating the costs of its grants with the 
Agency's results-based outcomes.
    EPA in consultation with recipients, is responsible for cross-
walking the Tribal budget information (grant application and work plan 
data) into the GPRA goal, objective, and subobjective architecture. If 
a grant is subsequently amended to reflect significant adjustments to 
work plan commitments, the region will consult with the Tribal 
government to develop an estimate of the budget associated with the 
revision so that it can be reflected in regional office GPRA reporting. 
Cross-walk information is developed by EPA during the work plan/PPA 
negotiations process with the Tribe or Intertribal Consotium.

X. 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 be interpreted to also 
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 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 has 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 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

[[Page 3792]]

Congress intended the Agency to provide grants exclusively to States 
and thereby leave Tribal lands without the benefit of 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 Grant programs under section 6605 of PPA.
    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 the 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 a Tribe has met 
the prerequisites in paragraphs (1) and (2) for another EPA program, 
the Tribe need provide only that information unique to the particular 
program required by paragraphs (3) and (4).
    Public water system supervision Tribal reserve. Until now, EPA's 
regulation (40 CFR 35.115(g)) has provided that EPA annually reserve up 
to three percent of each year's Public Water System Supervision (PWSS) 
funds for use on Indian lands. The Agency is increasing the limit to 
allow a reserve of up to seven percent. This increase will provide 
needed funds for the Tribal PWSS program without affecting States' 
current funding. (See also the response to comments on this issue.)
    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 a small number of Tribes have taken steps 
toward PWSS 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 Tribes are not required to apply 
for PWSS primacy, 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 the 
amount necessary for the traditional three percent reserve in Fiscal 
Year 1998 and succeeding years to assist Tribes in developing capacity 
and maintaining their own PWSS programs, and to provide additional 
support to the Tribal PWSS Direct Implementation program. In Fiscal 
Years 1998, 1999, and 2000, 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 is raising the ceiling of the annual Tribal 
reserve to up to seven percent. With the additional $3.78 million PWSS 
program appropriation, EPA was able to raise the funding ceiling for 
Tribes to 6.91 percent, the amount available to Tribes in Fiscal Year 
2000, without reducing current State funding levels.
    Safe Drinking Water Act and Alaska Native Villages. EPA is 
including a new interpretation of the definition of ``Indian Tribe'' in 
42 U.S.C. 300f(14) that would include eligible Alaska Native Villages 
(ANVs) 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). It will also allow ANVs to be considered for 
primacy for the PWSS and UIC programs under 42 U.S.C. 300g-2, 300h-1 
and 300h-4. Under this 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 interpretation of 
the legislative history of the Act. At the time, EPA reasoned that 
Congress would have explicitly mentioned ANVs if it intended to include 
ANVs in the definition of Indian Tribes. Since then, EPA has 
reconsidered that interpretation and 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 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

[[Page 3793]]

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).
    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. Furthermore, upon the request 
of an Alaska Tribe in an application for grant or primacy eligibility, 
EPA will evaluate whether the 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 amending 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). 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.
    Regulations for programs to manage hazardous waste and underground 
storage tanks. After the EPA workgroup reached closure on the proposed 
rule, 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 has included regulations for these programs in the final rule.

XI. 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

    This final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules for which notice and comment rule making is required under the 
Administrative Procedure Act (APA) or any another statute. Grant award 
and administration matters, such as this rule, are explicitly exempt 
from the notice and comment requirements of the APA (5 U.S.C. 
553(a)(1)) and are not required to undergo notice and comment rule 
making under any other statute.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, 2 U.S.C. 1501 et seq., 109 Stat. 48 (1995), 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 
private sector mandates'' duties that arise from conditions of federal 
assistance.

National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA), requires EPA 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 rule does not involve any technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

Executive Order 13045--Protection of Children from Environmental 
Health Risks and Safety Risks

    Executive Order 13045 applies to any rule that is determined to be: 
(1) ``Economically significant'' as defined 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 interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This rule is not subject to E.O. 13045 
because it does not establish an environmental standard intended to 
mitigate health or safety risks.

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;

[[Page 3794]]

    (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 
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 has been or will be submitted to the Office of 
Management and Budget for review.

Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This rule does not apply to 
States or local governments; it applies only to Tribes and Intertribal 
Consortia. Executive Order 13132 does not apply to Tribes and 
Intertribal Consortia. Thus, the requirements of section 6 of the 
Executive Order do not apply to this rule.

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 EPA 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 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 Executive order 
13084 do not apply.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective thirty days after publication in 
the Federal Register.

List of Subjects

40 CFR Part 31

    Environmental protection. Administrative practice and procedure, 
Grant programs, Indians, Intergovernmental relations, Loan programs, 
Reporting and recordkeeping requirements.

40 CFR Part 35

    Environmental protection, Air pollution control, Coastal zone, 
Grant programs-environmental protection, Grant programs-Indians, 
Hazardous waste, Indians, Intergovernmental relations, Pesticides and 
pests, Reporting and recordkeeping requirements, Superfund, Waste 
treatment and disposal, Water pollution control, Water supply.

    Dated: December 28, 2000.
Carol M. Browner,
Administrator.


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

PART 31--[AMENDED]

    1. EPA is amending 40 CFR part 31 by revising 40 CFR 31.36(b)(1) 
and adding a new 40 CFR 31.38 to read as follows:

[[Page 3795]]

Sec. 31.36  Procurement.

* * * * *
    (b) Procurement Standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable federal law, the standards identified in this section, and 
if applicable, Sec. 31.38.
* * * * *


Sec. 31.38  Indian Self Determination Act.

    Any contract, subcontract, or subgrant awarded under an EPA grant 
by an Indian Tribe or Indian Intertribal Consortium shall require to 
the extent feasible:
    (a) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants shall be 
given to Indians as defined in the Indian Self Determination Act (25 
U.S.C. 450b); and
    (b) 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 U.S.C. 1452].

PART 35--[AMENDED]

    2. EPA is removing 40 CFR part 35, subpart Q.

    3. EPA is adding a new 40 CFR part 35, subpart B to read as 
follows.

Subpart B--Environmental Program Grants for Tribes

General--All Grants

Sec.
35.500   Purpose of the subpart.
35.501   Environmental programs covered by the subpart.
35.502   Definitions 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   Funding 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.
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 limitation.
Air Pollution Control (Section 105)

35.570   Purpose.
35.572   Definitions.
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 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.
Hazardous Waste Management Program Grants (P.L. 105-276)

35.720  Purpose.
35.723  Competitive process.
35.725  Maximum federal share.
Underground Storage Tanks Program Grants (P.L. 105-276)

35.730  Purpose.
35.731  Eligible recipients.
35.732  Basis for allotment.
35.735  Maximum federal share.

Subpart B--Environmental Program Grants for Tribes

    Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42 
U.S.C. 300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.; 
15 U.S.C. 2601 et seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104-134, 
110 Stat. 1321, 1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344, 
1373 (1997); Pub. L. 105-276, 112 Stat. 2461, 2499 (1988).

General--All Grants


Sec. 35.500  Purpose of the subpart.

    This subpart establishes administrative requirements for all 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 35.500-518 contain administrative requirements that apply

[[Page 3796]]

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 all grants awarded 
for the following programs:
    (1) Performance Partnership Grants (1996 Omnibus Consolidated 
Rescissions and Appropriations Act of 1996, Pub. L. 104-134; 110 Stat. 
1321, 1321-299 (1996) and Departments of Veterans Affairs, Housing and 
Urban Development, and Independent Agencies Appropriations Act of 1998, 
Pub. L. 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.
    (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 grants 
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).
    (9) Department of Veterans Affairs and Housing and Urban 
Development, and Independent Agencies Appropriations Act, 1999 (Pub. L. 
105-276; 112 Stat. 2461, 2499; 42 U.S.C. 6908a).
    (i) Hazardous Waste Management Program Grants (Pub. L. 105-276; 112 
Stat. 2461, 2499; 42 U.S.C. 6908a).
    (ii) Underground Storage Tanks Program Grants (Pub. L. 105-276; 112 
Stat. 2461, 2499; 42 U.S.C. 6908a).
    (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.
    (c) In the event a grant is awarded from EPA headquarters for one 
of the programs listed in paragraph (a) of this section, this subpart 
shall apply and the term ``Regional Administrator'' shall mean 
``Assistant Administrator'.


Sec. 35.502  Definitions of terms.

    Terms are defined as follows when they are used in this regulation:
    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.
    Funding period. The period of time specified in the grant agreement 
during which the recipient may expend or obligate funds for the 
purposes set forth in the agreement.
    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.
    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 funding 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 funding 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 dynamic, strategic planning 
document negotiated by the Regional Administrator and an appropriate 
Tribal official. A Tribal Environmental Agreement may include: Long-
term and short-term environmental goals, objectives, and desired 
outcomes based on Tribal priorities and available funding. A Tribal 
Environmental Agreement can be a very general or specific document that 
contains budgets, performance measures, outputs and outcomes that could 
be used as part or all of a Performance Partnership Grant work plan, if 
it meets the requirements of section 35.507(b).
    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

[[Page 3797]]

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 federal statutes; regulations; circulars; 
executive orders; and EPA delegations, approvals, or authorizations.
    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 in accordance with paragraph (c) of this 
section, except as provided in paragraph (b) of this section.
    (b) An Intertribal Consortium is eligible to receive a grant under 
the 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) It has adequate accounting controls to ensure that only members 
that meet the eligibility requirements will benefit directly from the 
grant project and will receive and manage grant funds, and the 
Consortium agrees to a grant condition to that effect.
    (c) An Intertribal Consortium must submit to EPA adequate 
documentation of:
    (1) The existence of the partnership between Indian Tribal 
governments, and
    (2) Authorization of the Consortium by all its members (or in the 
case of the General Assistance Program, all members that meet the 
eligibility requirements for a General Assistance Program grant) to 
apply for and receive the grant(s) for which the Consortium has 
applied.

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 funding 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 estimated 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 delegations, 
approvals, or authorizations.
    (c) Tribal Environmental Agreement as work plan. An applicant may 
use a Tribal Environmental Agreement or a portion of the Tribal 
Environmental Agreement as the work plan or part of the work plan for 
an environmental program grant if the portion of the Tribal 
Environmental Agreement that is to serve as the grant work plan:
    (1) Is clearly identified as the grant work plan and distinguished 
from other portions of the Tribal Environmental Agreement; and
    (2) Meets the requirements in Sec. 35.507(b).


Sec. 35.508  Funding period.

    The Regional Administrator and applicant may negotiate the length 
of the funding 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,

[[Page 3798]]

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 upon determining 
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 EPA 
delegations, approvals, or authorizations;
    (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, the Regional Administrator will attempt to 
negotiate a resolution of the issues with the applicant before 
determining the award amount.


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 
funding 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. EPA, 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 funding 
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) Office of Management and Budget (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 (see section 
35.507(b)(2)(iv)). 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

[[Page 3799]]

appropriation acts, use all or part of the funds to support a federal 
program required by law 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.

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 Intertribal Consortia 
authorized in the Omnibus Consolidated Rescissions and Appropriations 
Act of 1996 (Pub. L. 104-134; 110 Stat. 1321, 1321-299 (1996)) and 
Departments of Veterans Affairs and Housing and Urban Development, and 
Independent Agencies Appropriations Act, 1998 (Pub. L. 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 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.
    (3) Apply for the environmental program grant.
    (4) 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 
eligibility requirements for that environmental program grant 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 
(9) 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, approved, or authorized activities. A Tribe or 
Intertribal Consortium may use Performance Partnership Grant funds to 
carry out EPA-delegated, EPA-approved, 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, approvals, 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 also may define in national 
program guidance ``significant'' differences from a work plan submitted 
with a Tribe's or a Consortium's application for funds.

[[Page 3800]]

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 the Regional Administrator shall 
increase the required cost share up to a maximum of 10 percent of the 
allowable cost of the work plan budget for each program with a cost 
share greater than five percent.
    (d) The Regional Administrator may waive the cost share required 
under this section upon request of the Tribe or Intertribal Consortium, 
if, based on an objective assessment of socio-economic indicators, the 
Regional Administrator determines 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 for Tribes by providing general assistance to 
plan, develop, and establish environmental protection programs for 
Tribes.


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 environmental 
protection programs and to develop and implement solid and hazardous 
waste programs for Tribes.


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 35.578 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 for air resources within 
the exterior boundaries of the reservation or other areas within the 
Tribe's jurisdiction.
    (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 section 105 financial assistance 
under Secs. 35.570 through 35.578 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 also eligible for financial assistance.
    (b) Tribes that have not made a demonstration under 40 CFR 49.6 and 
Intertribal Consortia consisting of Tribes that have not demonstrated 
eligibility to be treated as States under 40 CFR 49.6 are eligible for 
financial assistance under sections 105 and 302(b)(5) of the Clean Air 
Act.


Sec. 35.575  Maximum federal share.

    (a) For Tribes and Intertribal Consortia eligible under 
Sec. 35.573(a), the

[[Page 3801]]

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 match requirement would impose undue 
hardship.
    (b) For Tribes and Intertribal Consortia eligible under 
Sec. 35.573(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.
    (c) Revenue collected under a Tribal Title V operating permit 
program may not be used to meet the cost share requirements of this 
section.


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.
    (1) 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 Consortium's member's proposed expenditure level, as 
detailed in the grant application, to its expenditure level in the 
second preceding fiscal year. When expenditure data for the preceding 
fiscal year is complete, the Regional Administrator shall use this 
information to determine the Tribe's or Intertribal Consortium's 
compliance with its maintenance of effort requirement.
    (2) If expenditure data for the preceding fiscal year shows that a 
Tribe or Intertribal Consortium did not meet the requirements of 
paragraph (a) of this section, the Regional Administrator will take 
action to recover the grant funds for that year.
    (3) 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 a reduction in expenditures 
is attributable to a non-selective reduction of all the Tribe's or each 
of the Intertribal Consortium's member's programs.
    (b) For Tribes and Intertribal Consortia that are eligible under 
Sec. 35.573(b), 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 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.
    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 determines 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 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).

[[Page 3802]]

    (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.


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 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 Consortium's 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

[[Page 3803]]

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 Tribe's 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's 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 a 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 Consortium member'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 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 
Pesticide Program Implementation cooperative agreements to Tribes and 
Intertribal Consortia 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 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 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 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

[[Page 3804]]

engineering schools or other appropriate means.


Sec. 35.662  Definitions.

    The following definition applies to the Pollution Prevention 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; or
    (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 Grant if the 
Tribe or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of the 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 Pollution Prevention Grants program required 
by paragraphs (b)(3) and (4) of this section.


Sec. 35.668  Award limitation.

    If the Pollution Prevention Grant funds are included in a 
Performance Partnership Grant, the Pollution Prevention 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 Grants will not exceed 
50 percent of the allowable Tribe and Intertribal Consortium Pollution 
Prevention 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 Sec. 35.676 (Eligible recipients);
    (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.

[[Page 3805]]

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;
    (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 Sec. 35.676 (Eligible recipients); 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 carry out authorized 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 the 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 Lead-Based Paint Program required by 
paragraphs (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 Indoor 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.

[[Page 3806]]

    (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 the 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.


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 Radon Grant 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 Indoor 
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) Funds appropriated for section 306 may not be used to cover the 
costs of federal proficiency rating programs under section 305(a)(2) of 
the Act. Funds appropriated for section 306 and grants awarded under 
section 306 may be used to cover the costs of the Tribal proficiency 
rating programs.

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 the 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.

Hazardous Waste Management Program Grants (P.L. 105-276)


Sec. 35.720  Purpose.

    (a) Purpose of section. Sections 35.720 through 35.725 govern 
hazardous waste program grants to eligible Tribes and Intertribal 
Consortia under the Departments of Veterans Affairs and Housing and 
Urban Development, and Independent Agencies Appropriations Act, 1999, 
P.L. 105-276, 112 Stat. 2461, 2499; 42 U.S.C. 6908a (1998).
    (b) Purpose of program. Tribal hazardous waste program grants are 
awarded to assist Tribes and Intertribal Consortia in developing and 
implementing programs to manage hazardous waste.


Sec. 35.723  Competitive process.

    EPA will award Tribal hazardous waste program grants to Tribes or 
Intertribal Consortia on a competitive basis in accordance with 
national program guidance. After the competitive process is complete, 
the recipient can, at its discretion, accept the award as a Tribal 
hazardous waste program grant or add the funds to a Performance 
Partnership Grant. If the recipient

[[Page 3807]]

chooses to add the funds to a Performance Partnership Grant, the Tribal 
hazardous waste program work plan commitments must be included in the 
Performance Partnership Grant work plan.


Sec. 35.725  Maximum federal share.

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

Underground Storage Tanks Program Grants (P.L. 105-276)


Sec. 35.730  Purpose.

    (a) Purpose of section. Section 35.730 through 35.733 govern 
underground storage tank program grants to eligible Tribes and 
Intertribal Consortia under P.L. 105-276.
    (b) Purpose of program. Tribal underground storage tank program 
grants are awarded to assist Tribes and Intertribal Consortia in 
developing and implementing programs to manage underground storage 
tanks.


Sec. 35.731  Eligible recipients.

    Eligible recipients of underground storage tank program grants are 
Tribes and Intertribal Consortia.


Sec. 35.732  Basis for allotment.

    The Administrator allots underground storage tank program grant 
funds to each regional office based on applicable EPA guidance. 
Regional offices award funds to Tribes and Intertribal Consortia based 
on their programmatic needs and applicable EPA guidance.


Sec. 35.735  Maximum Federal share.

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

[FR Doc. 01-219 Filed 1-12-01; 8:45 am]
BILLING CODE 6560-50-P