[Federal Register Volume 70, Number 5 (Friday, January 7, 2005)]
[Notices]
[Pages 1440-1442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-348]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7858-8]


Notice of Guidance Issuance: Direct Implementation Tribal 
Cooperative Agreements (DITCAs) Guidance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The U.S. Environmental Protection Agency finalized the Direct 
Implementation Tribal Cooperative Agreements (DITCAs) Guidance on 
November 24, 2004. A copy appears below. The purpose of this guidance 
is to describe the concept of DITCAs and their use by EPA when 
performing direct implementation activities in Indian country. EPA 
believes that the DITCA authority makes available an important tool for 
tribes who wish to work with EPA in the implementation of environmental 
programs in Indian country by allowing tribes to be involved in 
assisting EPA as EPA implements federal programs for tribes. DITCAs are 
intended to provide a method to accomplish program implementation that 
is in addition to the Federal delegation of authority method, also 
referred to as the ``treatment in a manner similar to states'' or 
``TAS'' approach to implementation. The degree of tribal involvement in 
assisting with EPA's direct implementation is flexible depending upon 
the tribe's interest and ability in carrying out specific work.

FOR FURTHER INFORMATION CONTACT: Jeff Besougloff, U.S. Environmental 
Protection Agency, EPA East Building (MC 4104M), 1200 Pennsylvania 
Avenue, NW, Washington, DC 20460. Telephone: (202) 564-0292. Facsimile 
Number: (202) 564-0298. E-mail: [email protected] is 
also available on EPA's American Indian Environmental Office Web site: 
http://www.epa.gov/indian/.

    Dated: December 23, 2004.
Benjamin H. Grumbles,
Assistant Administrator, Office of Water.

SUPPLEMENTARY INFORMATION:

Guidelines for Direct Implementation Tribal Cooperative Agreements 
(DITCAs) November 2004

I. Summary

    This document replaces the ``Guidelines for Direct Implementation 
Tribal Cooperative Agreements (DITCAs) for Fiscal Year 2001'' (FY 2001 
Guidance) for awarding Direct Implementation Tribal Cooperative 
Agreements (DITCAs) to assist EPA in directly implementing federal 
environmental programs for Indian tribes. The most substantial 
clarifications and changes to the FY 2001 Guidance are:
    (1) Clarification of the kinds of activities eligible for funding 
under the DITCA statutory authority (see Section VI), and
    (2) Recommendation to consult with the following offices to insure 
successful DITCA development:
     American Indian Environmental Office (AIEO)
     Grants Administration Division (GAD)
     Office of General Counsel (OGC)
     Office of Regional Counsel (ORC)
     Office of Enforcement and Compliance (OECA) for DITCAs 
with enforcement or compliance components
     Relevant regional and/or program offices

II. Statutory Authority

    The statutory authority for DITCAs was included in the Consolidated

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Appropriations Act, 2004, Pub. L. 108-199 (2004), which provided:

For fiscal year 2004, notwithstanding 31 U.S.C. 6303(1) and 6305(1), 
the Administrator of the Environmental Protection Agency, in 
carrying out the Agency's function to implement directly Federal 
environmental programs required or authorized by law in the absence 
of an acceptable tribal program, may award cooperative agreements to 
federally-recognized Indian tribes or Intertribal consortia, if 
authorized by their member tribes, to assist the Administrator in 
implementing Federal environmental programs for Indian tribes 
required or authorized by law, except that no such cooperative 
agreements may be awarded from funds designated for State financial 
assistance agreements.

    Consolidated Appropriations Act, 2004, Pub. L. 108-199 (2004).

    The current statutory authority for DITCAs is controlled by the 
Continuing Resolution for Fiscal Year 2005, Pub. L. 108-309 (2004), in 
effect until November 20, 2004, which adopts the FY2004 statutory 
language on DITCAs.
    Bills regarding continuing appropriations for FY 2005 in the U.S. 
House of Representatives (H.J. Res. 107) and the U.S. Senate (S. 2825) 
would adopt the existing statutory language on DITCAs.
    These guidelines will continue to be applicable as written. In the 
event the DITCA statutory language is modified or omitted, EPA will 
consider appropriate responses. Contact AIEO at (202) 564-0303 
regarding future developments.

III. Applicable Regulations and OMB Cost Circular

    The regulations that govern the award and administration of DITCAs, 
including the requirements for the development of work plans, are the 
``Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments'' set forth at 40 CFR part 
31. The regulations at 40 CFR part 31 apply to the award and 
administration of tribal cooperative agreements awarded to any 
intertribal consortium, including intertribal consortia recognized as 
non-profit organizations. Allowable costs under DITCAs are governed by 
OMB Circular A-87.
    DITCA documentation should specifically indicate that the 
activities to be carried out by a tribe or intertribal consortium are 
consistent with environmental program regulations governing the 
implementation of Federal environmental programs. For example, if a 
DITCA is awarded to a tribe to assist EPA in implementing a Federal 
public water supply program under the Safe Drinking Water Act, National 
Pollutant Discharge Elimination System permitting under the Clean Water 
Act, or a Federal Implementation Plan under the Clean Air Act, then the 
DITCA should indicate that the activities to be carried out under the 
DITCA work plan are consistent with the regulations governing those 
Federal programs.

IV. Delegation of Authority and Approval Requirements

    The authority to approve DITCAs is delegated to Assistant 
Administrators and Regional Administrators under a one-time delegation 
through 9/30/05. A permanent delegation is being completed. It is 
recommended that the program and regional offices contemplating DITCAs 
consult with the following offices, as appropriate, throughout the 
process of development and finalization of the DITCA:
     American Indian Environmental Office (AIEO).
     Grants Administration Division (GAD).
     Office of General Counsel (OGC).
     Office of Regional Counsel (ORC).
     Office of Enforcement and Compliance (OECA) for DITCAs 
with enforcement or compliance components.
     Relevant regional and/or program offices.

V. Eligible Recipients

    DITCAs may be awarded to: (1) federally recognized Indian tribes 
and (2) intertribal consortia consistent with applicable provisions. In 
order for an intertribal consortium to be eligible to receive 
cooperative agreements under this authority, an intertribal consortium 
should be consistent with the provisions in 40 CFR part 35.

VI. Eligible Activities

    As noted in Section II, the annual DITCA statutory authority states 
that EPA may award cooperative agreements to assist EPA ``in 
implementing Federal environmental programs for Indian Tribes required 
or authorized by law. * * *'' The 2001 Guidance stated that DITCAs 
would be awarded only for Federal programs required by law in the 
absence of an acceptable tribal program. Provisions within some Federal 
environmental laws clearly require EPA to implement programs where a 
tribe is unwilling or unable. Other laws, however, are less clear as to 
whether EPA is required to directly implement a program in the absence 
of an acceptable tribal program. In that context, EPA will look at the 
statute to determine if, in the State context, EPA would be required to 
directly implement the program. If so, EPA is authorized to award a 
DITCA to fund activities for those environmental programs.
    Thus, EPA may award DITCAs to fund activities for environmental 
programs that meet either one of the following criteria: (1) Federal 
programs under environmental laws that EPA is clearly required to 
directly implement in the tribal context; or (2) Federal programs under 
environmental laws that in the State context EPA is required to 
directly implement in the absence of an acceptable State program.
    For example, activities under the following programs may be 
eligible for DITCA funding:
     Water quality standards promulgation and review and the 
National Pollutant Discharge Elimination System permit program under 
the Clean Water Act.
     Implementation plan development and the Title V permit 
program under the Clean Air Act.
     The Public Water System program and the Underground 
Injection Control program under the Safe Drinking Water Act.
     The Underground Storage Tank program and the Subtitle C 
permit program under the Resource Conservation and Recovery Act.
     The Certification and Training program for pesticide 
applicators under the Federal Insecticide, Fungicide, and Rodenticide 
Act.
     The Lead-Based Paint program under the Toxic Substances 
Control Act.
    Due to resource and funding limitations, EPA must work closely with 
tribes to identify those direct implementation activities where there 
is a joint tribal and EPA priority for program implementation.

VII. Limitations

    There are several limitations on DITCA awards. Among them are:
     The statutory authority for DITCAs is found in 
appropriations acts. In the event the appropriation authority is 
extended by continuing resolution(s), the DITCA authority will also be 
extended.
     The project period of the DITCA may extend beyond the 
period of the appropriations act under which it was created, but all 
funds must be awarded prior to the expiration of the appropriations act 
authorizing the DITCA.
     DITCA funded personnel may not perform inherently Federal 
functions.
     EPA personnel can provide assistance to DITCA 
representatives based on the written DITCA work plan which may include 
daily direction. EPA cannot treat DITCA representatives as

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EPA employees by participating in hiring, disciplining, or firing 
decisions.
     DITCA funded personnel cannot operate vehicles which are 
either owned or leased by the Federal government.
    Information sharing and two-way communication between the tribe and 
EPA are key to a successful DITCA. EPA and the tribe should negotiate 
and complete a workplan prior to the awarding of the DITCA. The 
workplan should clearly delineates the status, roles and 
responsibilities of the respective parties. It must also characterize 
and quantify the environmental and public health benefits (i.e., 
outputs and, to the maximum extent practicable, outcomes) to be gained 
from the DITCA's activities, in compliance with the EPA Order on 
Environmental Results Under Assistance Agreements which will go into 
effect in January 2005. The consulting offices listed in this guidance 
can assist with all these issues.

VIII. Available Funding Sources

    To this point, no funds are appropriated specifically for DITCAs. 
Funding is available from two existing sources, subject to applicable 
limitations contained in the applicable appropriation act:
     STAG monies appropriated for tribal program grants \1\ 
and,
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    \1\ The term ``tribal program grants'' as used in this document 
refers only to funds for tribal grants within the statutory earmark 
in the STAG account ``for grants * * * for multi-media or single 
media pollution prevention, control and abatement and related 
activities.'' Pub. L. 107-73, 115 Stat. 686 (2001). It does not 
refer to funds for other tribal grants included in other earmarks in 
the STAG account.
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     EPM funds available for direct implementation activities.
    Either source of funding may be used for any of the eligible 
activities described in section VI.
    DITCAs can be funded by reprogramming subject to the usual 
restrictions and procedures governing this action with the exception of 
the following situations:
     DITCAs for Title V permitting may be funded only with 
funds appropriated to EPA for Federal CAA Title V work, and
     The statutory authority for DITCAs expressly prohibits 
using funds designated for State financial assistance agreements.
    The prohibition on using two general appropriations for the same 
activity--commonly referred to as the ``pick and stick'' rule--applies.

IX. Award Process (Including Proper Citation; Definition of Cooperative 
Agreements; Relationship to MOAs, etc.)

    Each DITCA should cite only the statutory authority for the 
applicable fiscal year. Do not also use the citation for the relevant 
program's grant authority.
    DITCAs are awarded and administered as ``cooperative agreements'' 
under the Federal Grant and Cooperative Agreement Act (FGCAA) and are 
subject to all applicable Agency assistance policies. Because the 
statutory authority for DITCAs is for cooperative agreements and not 
grants, there must be substantial Federal involvement in the 
performance of each DITCA project. (See EPA Order 5700.1 for a 
description of ``substantial Federal involvement.'').
    Since DITCAs are authorized by statute and are only available to 
tribes and eligible intertribal consortia, they are exempt from 
competition under section 6(c)(2) of EPA Order 5700.5, Policy for 
Competition in Assistance Agreements. Application of the competition 
policy is discretionary, not mandatory. EPA will review on an annual 
basis the extent to which regional and program offices apply the 
competition policy with regard to DITCAs to consider in the future 
whether the policy should or should not be applied on a consistent 
basis across the Agency.
    A Memoranda of Agreement (MOAs), or other preliminary 
documentation, is not a prerequisite to a DITCA and cannot be used to 
transfer funds. DITCAs are awarded using the standard grant/cooperative 
agreement application and award forms. However, the DITCA's workplan 
must characterize and quantify the environmental and public health 
benefits (i.e., outputs and, to the maximum extent practicable, 
outcomes) to be gained from the DITCA's activities, in compliance with 
the EPA Order on Environmental Results Under Assistance Agreements 
which will go into effect in January 2005.

X. Status of Individuals Carrying Out Direct Implementation Activities

    It is important that all parties understand the status of the 
individuals carrying out EPA's direct implementation activities under 
these cooperative agreements. It is recommended that the status of such 
individuals be clearly stated in the work plan to accompany the DITCA. 
These individuals are employees of the DITCA recipient (a tribe or 
intertribal consortium) or its contractor. They are not EPA employees, 
nor are they EPA contractors by virtue of being a DITCA recipient. 
These individuals may not be treated or present themselves to third 
parties as Federal government employees or Federal contractors based on 
their status as employees of DITCA recipients.

[FR Doc. 05-348 Filed 1-6-05; 8:45 am]
BILLING CODE 6560-50-P