,,ii ,calendar ,no4 #ecc #aacth ,,congress #b;d ,session ,s4 #iai ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,may #i1 #bjac,ms4 ,cantwell 7for herself1 ,mr4 ,barrasso1 ,mrs4 ,murray1 ,mr4 ,baucus1 ,mr4 ,tester1 ,mr4 ,udall of ,new ,mexico1 ,mr4 ,heinrich1 ,mr4 ,schatz1 ,mr4 ,wyden1 ,mr4 ,crapo1 ,ms4 ,murkowski1 ,mr4 ,begich1 ,ms4 ,warren1 and ,mr4 ,walsh7 introduced the following bill2 which was read twice and referred to the ,committee on ,indian ,affairs ,august #bf1 #bjad,reported1 under authority of the order of the ,senate of ,august #e 7legislative day1 ,august #a71 #bjad1 by ,mr4 ,tester1 with an amendment,strike out all after the enacting clause and insert the part printed in italic ,a ,,bill ,to amend the ,indian ,self-,determination and ,education ,assistance ,act to provide further self-governance by ,indian tribes1 and for other purposes4 #a4 ,short title2 table of contents 7a7 ,short title ,this ,act may be cited as the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac4 7b7 ,table of contents ,the table of contents of this ,act is as follows3 ,sec4 #a4 ,short title2 table of contents4,,title ,i--,,indian ,,self-,d,e,t,e,r,m,i,n,a,t,i,o,n,sec4 #aja4 ,definitions2 reporting and audit requirements2 application of provisions4,sec4 #ajb4 ,contracts by ,secretary of the ,interior4,sec4 #ajc4 ,administrative provisions4,sec4 #ajd4 ,contract funding and indirect costs4,sec4 #aje4 ,contract or grant specifications4,,title ,,ii--,,tribal ,,self-,g,o,v,e,r,n,a,n,c,e,sec4 #bja4 ,tribal self-governance4,sec4 #bjb4 ,effect of certain provisions4 ,i ,,indian ,,self-,,determination #aja4 ,definitions2 reporting and audit requirements2 application of provisions 7a7 ,definitions ,section #d of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;b7 is amended by striking subsection 7j7 and inserting the following3 7j7 self-determination contract means a contract entered into under title ,i 7or a grant or cooperative agreement used under section #i7 between a tribal organization and the appropriate ,secretary for the planning1 conduct1 and administration of programs or services that are otherwise provided to ,indian tribes and members of ,indian tribes pursuant to ,federal law1 subject to the condition that1 except as provided in section #aje7;a77#c71 no contract entered into under title ,i 7or grant or cooperative agreement used under section #i7 shall be-- 7#a7 considered to be a procurement contract2 or 7#b7 except as provided in section #ajg7;a77#a71 subject to any ,federal procurement law 7including regulations72 4 7b7 ,reporting and audit requirements ,section #e7;b7 of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;c7b77 is amended-- 7#a7 by striking after completion of the project or undertaking referred to in the preceding subsection of this section and inserting after the retention period for the report that is submitted to the ,secretary under subsection 7a72 and 7#b7 by adding at the end the following3 ,the retention period shall be defined in regulations promulgated by the ,secretary pursuant to section #dad44 7c7 ,application of other provisions ,sections #d1 #e1 #f1 #g1 #ajb7;c71 #ajd1 #aje7;a77#a71 #aje7;f71 #aaj1 and #aaa of the ,indian ,self-,determination and ,education ,assistance ,act1 as amended 7#be ,u4,s4,c4 #dej et seq47 7,public ,law #ic-fch2 #hh ,stat4 #bbjc7 and section #cad of the ,department of the ,interior and ,related ,agencies ,appropriations ,act1 #aiia 7,public ,law #aja-eab2 #ajd ,stat4 #aiei71 apply to compacts and funding agreements entered into under title ,,iv4 #ajb4 ,contracts by ,secretary of the ,interior ,section #ajb of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;f7 is amended-- 7#a7 in subsection 7c77#b71 by striking economic enterprises and all that follows through except that and inserting economic enterprises 7as defined in section #c of the ,indian ,financing ,act of #aigd 7#be ,u4,s4,c4 #adeb771 except that2 and 7#b7 by adding at the end the following3 7f7 ,good faith requirement ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 in the negotiation of contracts and funding agreements1 the ,secretary shall-- 7#a7 at all times negotiate in good faith to maximize implementation of the self-determination policy2 and 7#b7 carry out this ,act in a manner that maximizes the policy of tribal self-determination1 in a manner consistent with the purposes specified in section #c4 7g7 ,rule of construction ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 each provision of this ,act and each provision of a contract or funding agreement shall be liberally construed for the benefit of the ,indian tribe participating in self-determination1 and any ambiguity shall be resolved in favor of the ,indian tribe4 4 #ajc4 ,administrative provisions ,section #aje of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;j7 is amended-- 7#a7 in subsection 7b71 in the first sentence1 by striking pursuant to and all that follows through of this ,act and inserting pursuant to sections #ajb and #ajc2 and 7#b7 by adding at the end the following3 7p7 ,interpretation by secretary ,except as otherwise provided by law 7including section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac71 the ,secretary shall interpret all ,federal laws 7including regulations7 and ,executive orders in a manner that facilitates1 to the maximum extent practicable-- 7#a7 the inclusion in self-determination contracts and funding agreements of-- 7,a7 applicable programs1 services1 functions1 and activities 7or portions thereof72 and 7,b7 funds associated with those programs1 services1 functions1 and activities2 7#b7 the implementation of self-determination contracts and funding agreements2 and 7#c7 the achievement of tribal health objectives4 4 #ajd4 ,contract funding and indirect costs ,section #ajf7;a77#c7 of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;j-#a7;a77#c77 is amended-- 7#a7 in subparagraph 7,a7-- 7,a7 in clause 7i71 by striking 1 and and inserting 2 and2 and 7,b7 in clause 7ii71 by striking expense related to the overhead incurred and inserting expense incurred by the governing body of the ,indian tribe or tribal organization and any overhead expense incurred2 7#b7 by redesignating subparagraph 7,b7 as subparagraph 7,c72 and 7#c7 by inserting after subparagraph 7,a7 the following3 7,b7 ,in calculating the reimbursement rate for expenses described in subparagraph 7,a77ii71 not less than #ej percent of the expenses described in subparagraph 7,a77ii7 that are incurred by the governing body of an ,indian tribe or tribal organization relating to a ,federal program1 function1 service1 or activity carried out pursuant to the contract shall be considered to be reasonable and allowable4 4 #aje4 ,contract or grant specifications ,section #ajh of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dejl7 is amended-- 7#a7 in subsection 7a77#b71 by inserting subject to subsections 7a7 and 7b7 of section #ajb1 before contain2 and 7#b7 in subsection 7f77#b77;,a77ii7 of the model agreement contained in subsection 7c71 by inserting subject to subsections 7a7 and 7b7 of section #ajb of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;f71 before such other provisions4 ,,ii ,,tribal ,,self-,,governance #bja4 ,tribal self-governance 7a7 ,definitions ,section #dja of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #deh;aa7 is amended to read as follows3 #dja4 ,definitions ,in this title3 7#a7 ,compact ,the term compact means a self-governance compact entered into under section #djd4 7#b7 ,construction program2 construction project ,the term construction program or construction project means a tribal undertaking relating to the administration1 planning1 environmental determination1 design1 construction1 repair1 improvement1 or expansion of roads1 bridges1 buildings1 structures1 systems1 or other facilities for purposes of housing1 law enforcement1 detention1 sanitation1 water supply1 education1 administration1 community1 health1 irrigation1 agriculture1 conservation1 flood control1 transportation1 or port facilities1 or for other tribal purposes4 7#c7 ,department ,the term ,department means the ,department of the ,interior4 7#d7 ,funding agreement ,the term funding agreement means a funding agreement entered into under section #djc4 7#e7 ,gross mismanagement ,the term gross mismanagement means a significant violation1 shown by a preponderance of the evidence1 of a compact1 funding agreement1 or statutory or regulatory requirement applicable to ,federal funds-- 7,a7 for a program administered by an ,indian tribe2 or 7,b7 under a compact or funding agreement that results in a significant reduction of funds available for the programs assumed by an ,indian tribe4 7#f7 ,inherent federal function ,the term inherent ,federal function means a ,federal function that may not legally be delegated to an ,indian tribe4 7#g7 ,program ,the term program means any program1 function1 service1 or activity 7or portion thereof7 within the ,department that is included in a funding agreement4 7#h7 ,secretary ,the term ,secretary means the ,secretary of the ,interior4 7#i7 ,self-governance ,the term self-governance means the ,tribal ,self-,governance ,program established under section #djb4 7#aj7 ,tribal share ,the term tribal share means the portion of all funds and resources of an ,indian tribe that-- 7,a7 support any program within the ,bureau of ,indian ,affairs1 the ,office of ,special ,trustee1 or the ,office of the ,assistant ,secretary for ,indian ,affairs2 and 7,b7 are not required by the ,secretary for the performance of an inherent ,federal function4 4 7b7 ,establishment ,section #djb of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #deh;bb7 is amended to read as follows3 #djb4 ,tribal ,self-,governance ,program 7a7 ,establishment ,the ,secretary shall establish and carry out a program within the ,department to be known as the ,tribal ,self-,governance ,program4 7b7 ,selection of ,participating ,indian ,tribes 7#a7 ,in general 7,a7 ,eligibility ,the ,secretary1 acting through the ,director of the ,office of ,self-,governance1 may select up to #ej new ,indian tribes per year from those eligible under subsection 7c7 to participate in self-governance4 7,b7 ,joint participation ,on the request of each participating ,indian tribe1 two or more otherwise eligible ,indian tribes may be treated as a single ,indian tribe for the purpose of participating in self-governance4 7#b7 ,other authorized ,indian tribe or tribal organization ,if an ,indian tribe authorizes another ,indian tribe or a tribal organization to plan for or carry out a program on its behalf under this title1 the authorized ,indian tribe or tribal organization shall have the rights and responsibilities of the authorizing ,indian tribe 7except as otherwise provided in the authorizing resolution74 7#c7 ,joint participation ,two or more ,indian tribes that are not otherwise eligible under subsection 7c7 may be treated as a single ,indian tribe for the purpose of participating in self-governance as a tribal organization if-- 7,a7 each ,indian tribe so requests2 and 7,b7 the tribal organization itself1 or at least one of the ,indian tribes participating in the tribal organization1 is eligible under subsection 7c74 7#d7 ,tribal withdrawal from a tribal organization 7,a7 ,in general ,an ,indian tribe that withdraws from participation in a tribal organization1 in whole or in part1 shall be entitled to participate in self-governance if the ,indian tribe is eligible under subsection 7c74 7,b7 ,effect of withdrawal ,if an ,indian tribe withdraws from participation in a tribal organization1 the ,indian tribe shall be entitled to its tribal share of funds and resources supporting the programs that the ,indian tribe is entitled to carry out under the compact and funding agreement of the ,indian tribe4 7,c7 ,participation in self-governance ,the withdrawal of an ,indian tribe from a tribal organization shall not affect the eligibility of the tribal organization to participate in self-governance on behalf of one or more other ,indian tribes1 if the tribal organization still qualifies under subsection 7c74 7,d7 ,withdrawal process 7i7 ,in general ,an ,indian tribe may1 by tribal resolution1 fully or partially withdraw its tribal share of any program in a funding agreement from a participating tribal organization4 7ii7 ,notification ,the ,indian tribe shall provide a copy of the tribal resolution described in clause 7i7 to the ,secretary4 7iii7 ,effective date 7,i7 ,in general ,a withdrawal under clause 7i7 shall become effective on the date that is specified in the tribal resolution and mutually agreed upon by the ,secretary1 the withdrawing ,indian tribe1 and the tribal organization that signed the compact and funding agreement on behalf of the withdrawing ,indian tribe or tribal organization4 7,,ii7 ,no specified date ,in the absence of a date specified in the resolution1 the withdrawal shall become effective on-- 7aa7 the earlier of-- 7,,aa7 #a year after the date of submission of the request2 and 7,,bb7 the date on which the funding agreement expires2 or 7bb7 such date as may be mutually agreed upon by the ,secretary1 the withdrawing ,indian tribe1 and the tribal organization that signed the compact and funding agreement on behalf of the withdrawing ,indian tribe or tribal organization4 7,e7 ,distribution of funds ,if an ,indian tribe or tribal organization eligible to enter into a self-determination contract under title ,i or a compact or funding agreement under this title fully or partially withdraws from a participating tribal organization1 the withdrawing ,indian tribe-- 7i7 may elect to enter into a self-determination contract or compact1 in which case-- 7,i7 the withdrawing ,indian tribe or tribal organization shall be entitled to its tribal share of unexpended funds and resources supporting the programs that the ,indian tribe will be carrying out under its own self-determination contract or compact and funding agreement 7calculated on the same basis as the funds were initially allocated to the funding agreement of the tribal organization72 and 7,,ii7 the funds referred to in subclause 7,i7 shall be withdrawn by the ,secretary from the funding agreement of the tribal organization and transferred to the withdrawing ,indian tribe1 on the condition that sections #ajb and #aje7;i71 as appropriate1 shall apply to the withdrawing ,indian tribe2 or 7ii7 may elect not to enter into a self-determination contract or compact1 in which case all unexpended funds and resources associated with the withdrawing ,indian tribe's returned programs 7calculated on the same basis as the funds were initially allocated to the funding agreement of the tribal organization7 shall be returned by the tribal organization to the ,secretary for operation of the programs included in the withdrawal4 7,f7 ,return to mature contract status ,if an ,indian tribe elects to operate all or some programs carried out under a compact or funding agreement under this title through a self-determination contract under title ,i1 at the option of the ,indian tribe1 the resulting self-determination contract shall be a mature self-determination contract as long as the ,indian tribe meets the requirements set forth in section #d7;h74 7c7 ,eligibility ,to be eligible to participate in self-governance1 an ,indian tribe shall-- 7#a7 successfully complete the planning phase described in subsection 7d72 7#b7 request participation in self-governance by resolution or other official action by the tribal governing body2 and 7#c7 demonstrate1 for the #c fiscal years preceding the date on which the ,indian tribe requests participation1 financial stability and financial management capability as evidenced by the ,indian tribe having no uncorrected significant and material audit exceptions in the required annual audit of its self-determination or self-governance agreements with any ,federal agency4 7d7 ,planning phase 7#a7 ,in general ,an ,indian tribe seeking to begin participation in self-governance shall complete a planning phase as provided in this subsection4 7#b7 ,activities ,the planning phase shall-- 7,a7 be conducted to the satisfaction of the ,indian tribe2 and 7,b7 include-- 7i7 legal and budgetary research2 and 7ii7 internal tribal government planning1 training1 and organizational preparation4 7e7 ,grants 7#a7 ,in general ,subject to the availability of appropriations1 an ,indian tribe or tribal organization that meets the requirements of paragraphs 7#b7 and 7#c7 of subsection 7c7 shall be eligible for grants-- 7,a7 to plan for participation in self-governance2 and 7,b7 to negotiate the terms of participation by the ,indian tribe or tribal organization in self-governance1 as set forth in a compact and a funding agreement4 7#b7 ,receipt of grant not required ,receipt of a grant under paragraph 7#a7 shall not be a requirement of participation in self-governance4 4 7c7 ,funding agreements ,section #djc of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #deh;cc7 is amended-- 7#a7 by striking subsection 7a7 and inserting the following3 7a7 ,authorization ,the ,secretary shall1 on the request of any ,indian tribe or tribal organization1 enter into a written funding agreement with the governing body of the ,indian tribe or the tribal organization in a manner consistent with-- 7#a7 the trust responsibility of the ,federal ,government1 treaty obligations1 and the government-to-government relationship between ,indian tribes and the ,united ,states2 and 7#b7 subsection 7b74 2 7#b7 in subsection 7b7-- 7,a7 in paragraph 7#a7-- 7i7 in the matter preceding subparagraph 7,a71 by striking without regard to the agency or office of the ,bureau of ,indian ,affairs and inserting the ,office of the ,assistant ,secretary for ,indian ,affairs1 and the ,office of the ,special ,trustee1 without regard to the agency or office of that ,bureau or those ,offices2 7ii7 in subparagraph 7,b71 by striking and2 7iii7 in subparagraph 7,c71 by inserting and after the semicolon at the end2 and 7iv7 by adding at the end the following3 7,d7 any other programs1 services1 functions1 or activities 7or portions thereof7 that are provided through the ,bureau of ,indian ,affairs1 the ,office of the ,assistant ,secretary for ,indian ,affairs1 or the ,office of the ,special ,trustee with respect to which ,indian tribes or ,indians are primary or significant beneficiaries2 2 7,b7 in paragraph 7#b7-- 7i7 by striking section #dje7;c7 and inserting section #dac7;c72 and 7ii7 by inserting and after the semicolon at the end2 7,c7 in paragraph 7#c71 by striking the semicolon at the end and inserting a period2 and 7,d7 by striking paragraphs 7#d7 through 7#i72 and 7#c7 by adding at the end the following3 7m7 ,other provisions 7#a7 ,excluded funding ,a funding agreement shall not authorize an ,indian tribe to plan1 conduct1 administer1 or receive tribal share funding under any program that-- 7,a7 is provided under the ,tribally ,controlled ,colleges and ,universities ,assistance ,act of #aigh 7#be ,u4,s4,c4 #ahja et seq472 and 7,b7 is provided for elementary and secondary schools under the formula developed under section #aabg of the ,education ,amendments of #aigh 7#be ,u4,s4,c4 #bjjg74 7#b7 ,services1 functions1 and responsibilities ,a funding agreement shall specify-- 7,a7 the services to be provided under the funding agreement2 7,b7 the functions to be performed under the funding agreement2 and 7,c7 the responsibilities of the ,indian tribe and the ,secretary under the funding agreement4 7#c7 ,base budget ,a funding agreement shall1 at the option of the ,indian tribe1 provide for a stable base budget specifying the recurring funds 7which may include funds available under section #ajf7;a77 to be transferred to the ,indian tribe1 for such period as the ,indian tribe specifies in the funding agreement1 subject to annual adjustment only to reflect changes in congressional appropriations4 7#d7 ,no waiver of trust responsibility ,a funding agreement shall prohibit the ,secretary from waiving1 modifying1 or diminishing in any way the trust responsibility of the ,united ,states with respect to ,indian tribes and individual ,indians that exists under treaties1 ,executive orders1 court decisions1 and other laws4 7n7 ,amendment ,the ,secretary shall not revise1 amend1 or require additional terms in a new or subsequent funding agreement without the consent of the ,indian tribe1 unless such terms are required by ,federal law4 7o7 ,effective date ,a funding agreement shall become effective on the date specified in the funding agreement4 7p7 ,existing and subsequent funding agreements 7#a7 ,subsequent funding agreements ,absent notification from an ,indian tribe that the ,indian tribe is withdrawing or retroceding the operation of one or more programs identified in a funding agreement1 or unless otherwise agreed to by the parties to the funding agreement or by the nature of any noncontinuing program1 service1 function1 or activity contained in a funding agreement-- 7,a7 a funding agreement shall remain in full force and effect until a subsequent funding agreement is executed1 with funding paid annually for each fiscal year the agreement is in effect2 and 7,b7 the term of the subsequent funding agreement shall be retroactive to the end of the term of the preceding funding agreement for the purposes of calculating the amount of funding to which the ,indian tribe is entitled4 7#b7 ,disputes ,disputes over the implementation of paragraph 7#a77;,a7 shall be subject to section #djf7;c74 7#c7 ,existing funding agreements ,an ,indian tribe that was participating in self-governance under this title on the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac shall have the option at any time after that date-- 7,a7 to retain its existing funding agreement 7in whole or in part7 to the extent that the provisions of that funding agreement are not directly contrary to any express provision of this title2 or 7,b7 to negotiate a new funding agreement in a manner consistent with this title4 7#d7 ,multiyear funding agreements ,an ,indian tribe may1 at the discretion of the ,indian tribe1 negotiate with the ,secretary for a funding agreement with a term that exceeds #a year4 4 7d7 ,general revisions ,title ,,iv of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;aa et seq47 is amended by striking sections #djd through #djh and inserting the following3 #djd4 ,compacts 7a7 ,in general ,the ,secretary shall negotiate and enter into a written compact with each ,indian tribe participating in self-governance in a manner consistent with the trust responsibility of the ,federal ,government1 treaty obligations1 and the government-to-government relationship between ,indian tribes and the ,united ,states4 7b7 ,contents ,a compact under subsection 7a7 shall-- 7#a7 specify and affirm the general terms of the government-to-government relationship between the ,indian tribe and the ,secretary2 and 7#b7 include such terms as the parties intend shall control during the term of the compact4 7c7 ,amendment ,a compact under subsection 7a7 may be amended only by agreement of the parties4 7d7 ,effective date ,the effective date of a compact under subsection 7a7 shall be-- 7#a7 the date of the execution of the compact by the parties2 or 7#b7 another date agreed upon by the parties4 7e7 ,duration ,a compact under subsection 7a7 shall remain in effect-- 7#a7 for so long as permitted by ,federal law2 or 7#b7 until termination by written agreement1 retrocession1 or reassumption4 7f7 ,existing compacts ,an ,indian tribe participating in self-governance under this title1 as in effect on the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 shall have the option at any time after that date-- 7#a7 to retain its negotiated compact 7in whole or in part7 to the extent that the provisions of the compact are not directly contrary to any express provision of this title2 or 7#b7 to negotiate a new compact in a manner consistent with this title4 #dje4 ,general provisions 7a7 ,applicability ,an ,indian tribe and the ,secretary shall include in any compact or funding agreement provisions that reflect the requirements of this title4 7b7 ,conflicts of interest ,an ,indian tribe participating in self-governance shall ensure that internal measures are in place to address1 pursuant to tribal law and procedures1 conflicts of interest in the administration of programs4 7c7 ,audits 7#a7 ,single agency audit act ,chapter #ge of title #ca1 ,united ,states ,code1 shall apply to a funding agreement under this title4 7#b7 ,cost principles ,an ,indian tribe shall apply cost principles under the applicable ,office of ,management and ,budget circular1 except as modified by-- 7,a7 any provision of law1 including section #ajf2 or 7,b7 any exemptions to applicable ,office of ,management and ,budget circulars subsequently granted by the ,office of ,management and ,budget4 7#c7 ,federal claims ,any claim by the ,federal ,government against an ,indian tribe relating to funds received under a funding agreement based on any audit under this subsection shall be subject to section #ajf7;f74 7d7 ,redesign and consolidation ,except as provided in section #djg1 an ,indian tribe may redesign or consolidate programs or reallocate funds for programs in any manner that the ,indian tribe determines to be in the best interest of the ,indian community being served1 so long as that the redesign or consolidation does not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable ,federal law1 except that1 with respect to the reallocation1 consolidation1 and redesign of programs described in subsection 7b77#b7 or 7c7 of section #djc1 a joint agreement between the ,secretary and the ,indian tribe shall be required4 7e7 ,retrocession 7#a7 ,in general ,an ,indian tribe may fully or partially retrocede to the ,secretary any program under a compact or funding agreement4 7#b7 ,effective date 7,a7 ,agreement ,unless an ,indian tribe rescinds a request for retrocession under paragraph 7#a71 the retrocession shall become effective on the date specified by the parties in the compact or funding agreement4 7,b7 ,no agreement ,in the absence of a specification of an effective date in the compact or funding agreement1 the retrocession shall become effective on-- 7i7 the earlier of-- 7,i7 #a year after the date on which the request is submitted2 and 7,,ii7 the date on which the funding agreement expires2 or 7ii7 such date as may be mutually agreed upon by the ,secretary and the ,indian tribe4 7f7 ,nonduplication ,a funding agreement shall provide that1 for the period for which1 and to the extent to which1 funding is provided to an ,indian tribe under this title1 the ,indian tribe-- 7#a7 shall not be entitled to contract with the ,secretary for funds under section #ajb1 except that the ,indian tribe shall be eligible for new programs on the same basis as other ,indian tribes2 and 7#b7 shall be responsible for the administration of programs in accordance with the compact or funding agreement4 7g7 ,records 7#a7 ,in general ,unless an ,indian tribe specifies otherwise in the compact or funding agreement1 records of an ,indian tribe shall not be considered to be ,federal records for purposes of chapter #e of title #e1 ,united ,states ,code4 7#b7 ,recordkeeping system ,an ,indian tribe shall-- 7,a7 maintain a recordkeeping system2 and 7,b7 on a notice period of not less than #cj days1 provide the ,secretary with reasonable access to the records to enable the ,department to meet the requirements of sections #caja through #cajf of title #dd1 ,united ,states ,code4 #djf4 ,provisions relating to the secretary 7a7 ,trust evaluations ,a funding agreement shall include a provision to monitor the performance of trust functions by the ,indian tribe through the annual trust evaluation4 7b7 ,reassumption 7#a7 ,in general ,a compact or funding agreement shall include provisions for the ,secretary to reassume a program and associated funding if there is a specific finding relating to that program of-- 7,a7 imminent jeopardy to a trust asset1 natural resources1 or public health and safety that-- 7i7 is caused by an act or omission of the ,indian tribe2 and 7ii7 arises out of a failure to carry out the compact or funding agreement2 or 7,b7 gross mismanagement with respect to funds transferred to an ,indian tribe under a compact or funding agreement1 as determined by the ,secretary in consultation with the ,inspector ,general1 as appropriate4 7#b7 ,prohibition ,the ,secretary shall not reassume operation of a program1 in whole or part1 unless-- 7,a7 the ,secretary first provides written notice and a hearing on the record to the ,indian tribe2 and 7,b7 the ,indian tribe does not take corrective action to remedy the mismanagement of the funds or programs1 or the imminent jeopardy to a trust asset1 natural resource1 or public health and safety4 7#c7 ,exception 7,a7 ,in general ,notwithstanding paragraph 7#b71 the ,secretary may1 on written notice to the ,indian tribe1 immediately reassume operation of a program if-- 7i7 the ,secretary makes a finding of imminent and substantial jeopardy and irreparable harm to a trust asset1 a natural resource1 or the public health and safety caused by an act or omission of the ,indian tribe2 and 7ii7 the imminent and substantial jeopardy1 and irreparable harm to the trust asset1 natural resource1 or public health and safety arises out of a failure by the ,indian tribe to carry out the terms of an applicable compact or funding agreement4 7,b7 ,reassumption ,if the ,secretary reassumes operation of a program under subparagraph 7,a71 the ,secretary shall provide the ,indian tribe with a hearing on the record not later than #aj days after the date of reassumption4 7c7 ,inability ,to agree on compact or funding agreement 7#a7 ,final offer ,if the ,secretary and a participating ,indian tribe are unable to agree1 in whole or in part1 on the terms of a compact or funding agreement 7including funding levels71 the ,indian tribe may submit a final offer to the ,secretary4 7#b7 ,determination ,not more than #fj days after the date of receipt of a final offer by the one or more officials designated pursuant to paragraph 7#d71 the ,secretary shall review and make a determination with respect to the final offer4 7#c7 ,extensions ,the deadline described in paragraph 7#b7 may be extended for any length of time1 as agreed upon by both the ,indian tribe and the ,secretary4 7#d7 ,designated officials 7,a7 ,in general ,the ,secretary shall designate one or more appropriate officials in the ,department to receive a copy of the final offer described in paragraph 7#a74 7,b7 ,no designation ,if no official is designated1 the ,executive ,secretariat of the ,secretary shall be the designated official4 7#e7 ,no timely determination ,except as otherwise provided in section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 if the ,secretary fails to make a determination with respect to a final offer within the period specified in paragraph 7#b71 the ,secretary shall be deemed to have agreed to the offer4 7#f7 ,rejection of final offer 7,a7 ,in general ,if the ,secretary rejects a final offer 7or one or more provisions or funding levels in a final offer71 the ,secretary shall-- 7i7 provide timely written notification to the ,indian tribe that contains a specific finding that clearly demonstrates1 or that is supported by a controlling legal authority1 that-- 7,i7 the amount of funds proposed in the final offer exceeds the applicable funding level as determined under section #ajf7;a77#a72 7,,ii7 the program that is the subject of the final offer is an inherent ,federal function or is subject to the discretion of the ,secretary under section #djc7;c72 7,,iii7 the ,indian tribe cannot carry out the program in a manner that would not result in significant danger or risk to the public health or safety1 to natural resources1 or to trust resources2 7,,iv7 the ,indian tribe is not eligible to participate in self-governance under section #djb7;c72 7,v7 the funding agreement would violate a ,federal statute or regulation2 or 7,,vi7 with respect to a program or portion of a program included in a final offer pursuant to section #djc7;b77#b71 the program or the portion of the program is not otherwise available to ,indian tribes or ,indians under section #ajb7;a77#a77;,e72 7ii7 provide technical assistance to overcome the objections stated in the notification required by clause 7i72 7iii7 provide the ,indian tribe with-- 7,i7 a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter2 and 7,,ii7 the opportunity for appeal on the objections raised 7except that the ,indian tribe may1 in lieu of filing such appeal1 directly proceed to initiate an action in a ,united ,states district court under section #aaj7;a772 and 7iv7 provide the ,indian tribe the option of entering into the severable portions of a final proposed compact or funding agreement 7including a lesser funding amount1 if any71 that the ,secretary did not reject1 subject to any additional alterations necessary to conform the compact or funding agreement to the severed provisions4 7,b7 ,effect of exercising certain option ,if an ,indian tribe exercises the option specified in subparagraph 7,a77iv7-- 7i7 the ,indian tribe shall retain the right to appeal the rejection by the ,secretary under this section2 and 7ii7 clauses 7i71 7ii71 and 7iii7 of subparagraph 7,a7 shall apply only to the portion of the proposed final compact or funding agreement that was rejected by the ,secretary4 7d7 ,burden of proof ,in any administrative action1 hearing1 or appeal or civil action brought under this section1 the ,secretary shall have the burden of proof-- 7#a7 of demonstrating1 by a preponderance of the evidence1 the validity of the grounds for a reassumption under subsection 7b72 and 7#b7 of clearly demonstrating the validity of the grounds for rejecting a final offer made under subsection 7c74 7e7 ,good faith 7#a7 ,in general ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 in the negotiation of compacts and funding agreements1 the ,secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy4 7#b7 ,policy ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 the ,secretary shall carry out this title in a manner that maximizes the policy of tribal self-governance4 7f7 ,savings 7#a7 ,in general ,to the extent that programs carried out for the benefit of ,indian tribes and tribal organizations under this title reduce the administrative or other responsibilities of the ,secretary with respect to the operation of ,indian programs and result in savings that have not otherwise been included in the amount of tribal shares and other funds determined under section #djh7;c71 except for funding agreements entered into for programs under section #djc7;c71 the ,secretary shall make such savings available to the ,indian tribes or tribal organizations for the provision of additional services to program beneficiaries in a manner equitable to directly served1 contracted1 and compacted programs4 7#b7 ,discretionary programs of special significance ,for any savings generated as a result of the assumption of a program by an ,indian tribe under section #djc7;c71 such savings shall be made available to that ,indian tribe4 7g7 ,trust responsibility ,the ,secretary may not waive1 modify1 or diminish in any way the trust responsibility of the ,united ,states with respect to ,indian tribes and individual ,indians that exists under treaties1 ,executive orders1 other laws1 or court decisions4 7h7 ,decisionmaker ,a decision that constitutes final agency action and relates to an appeal within the ,department conducted under subsection 7c77#d7 may be made by-- 7#a7 an official of the ,department who holds a position at a higher organizational level within the ,department than the level of the departmental agency in which the decision that is the subject of the appeal was made2 or 7#b7 an administrative law judge4 7i7 ,rules of construction ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 each provision of this title and each provision of a compact or funding agreement shall be liberally construed for the benefit of the ,indian tribe participating in self-governance1 and any ambiguity shall be resolved in favor of the ,indian tribe4 #djg4 ,construction programs and projects 7a7 ,in general ,indian tribes participating in tribal self-governance may carry out construction projects under this title4 7b7 ,tribal option ,to carry out certain federal environmental activities ,in carrying out a construction project under this title1 an ,indian tribe may1 subject to the agreement of the ,secretary1 elect to assume some ,federal responsibilities under the ,national ,environmental ,policy ,act of #aifi 7#db ,u4,s4,c4 #dcba et seq471 the ,national ,historic ,preservation ,act 7#af ,u4,s4,c4 #dgj et seq471 and related provisions of law and regulations that would apply if the ,secretary were to undertake a construction project1 by adopting a resolution-- 7#a7 designating a certifying tribal officer to represent the ,indian tribe and to assume the status of a responsible ,federal official under those ,acts or regulations2 and 7#b7 accepting the jurisdiction of the ,united ,states courts for the purpose of enforcing the responsibilities of the certifying tribal officer assuming the status of a responsible ,federal official under those ,acts or regulations4 7c7 ,savings clause ,notwithstanding subsection 7b71 nothing in this section authorizes the ,secretary to include in any compact or funding agreement duties of the ,secretary under the ,national ,environmental ,policy ,act 7#db ,u4,s4,c4 #dcba et seq471 the ,national ,historic ,preservation ,act 7#af ,u4,s4,c4 #dgj et seq471 and other related provisions of law that are inherent ,federal functions4 7d7 ,codes and standards ,in carrying out a construction project under this title1 an ,indian tribe shall-- 7#a7 adhere to applicable ,federal1 ,state1 local1 and tribal building codes1 architectural and engineering standards1 and applicable ,federal guidelines regarding design1 space1 and operational standards1 appropriate for the particular project2 and 7#b7 use only architects and engineers who-- 7,a7 are licensed to practice in the ,state in which the facility will be built2 and 7,b7 certify that-- 7i7 they are qualified to perform the work required by the specific construction involved2 and 7ii7 upon completion of design1 the plans and specifications meet or exceed the applicable construction and safety codes4 7e7 ,tribal accountability 7#a7 ,in general ,in carrying out a construction project under this title1 an ,indian tribe shall assume responsibility for the successful completion of the construction project and of a facility that is usable for the purpose for which the ,indian tribe received funding4 7#b7 ,requirements ,for each construction project carried out by an ,indian tribe under this title1 the ,indian tribe and the ,secretary shall negotiate a provision to be included in the funding agreement that identifies-- 7,a7 the approximate start and completion dates for the project1 which may extend over a period of one or more years2 7,b7 a general description of the project1 including the scope of work1 references to design criteria1 and other terms and conditions2 7,c7 the responsibilities of the ,indian tribe and the ,secretary for the project2 7,d7 how project-related environmental considerations will be addressed2 7,e7 the amount of funds provided for the project2 7,f7 the obligations of the ,indian tribe to comply with the codes referenced in subsection 7c77#a7 and applicable ,federal laws and regulations2 7,g7 the agreement of the parties over who will bear any additional costs necessary to meet changes in scope1 or errors or omissions in design and construction2 and 7,h7 the agreement of the ,secretary to issue a certificate of occupancy1 if requested by the ,indian tribe1 based upon the review and verification by the ,secretary1 to the satisfaction of the ,secretary1 that the ,indian tribe has secured upon completion the review and approval of the plans and specifications1 sufficiency of design1 life safety1 and code compliance by qualified1 licensed1 and independent architects and engineers4 7f7 ,funding 7#a7 ,in general ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 funding appropriated for construction projects carried out under this title shall be included in funding agreements as annual or semiannual advance payments at the option of the ,indian tribe4 7#b7 ,advance payments ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 the ,secretary shall include all associated project contingency funds with each advance payment1 and the ,indian tribe shall be responsible for the management of such contingency funds4 7g7 ,negotiations ,at the option of the ,indian tribe1 construction project funding proposals shall be negotiated pursuant to the statutory process in section #aje1 and any resulting construction project agreement shall be incorporated into the funding agreement as addenda4 7h7 ,federal review and verification 7#a7 ,in general ,on a schedule negotiated by the ,secretary and the ,indian tribe-- 7,a7 the ,secretary shall review and verify1 to the satisfaction of the ,secretary1 that project planning and design documents prepared by the ,indian tribe in advance of initial construction are in conformity with the obligations of the ,indian tribe under subsection 7c72 and 7,b7 before the project planning and design documents are implemented1 the ,secretary shall review and verify to the satisfaction of the ,secretary that subsequent document amendments which result in a significant change in construction are in conformity with the obligations of the ,indian tribe under subsection 7c74 7#b7 ,reports ,the ,indian tribe shall provide the ,secretary with project progress and financial reports not less than semiannually4 7#c7 ,oversight visits ,the ,secretary may conduct onsite project oversight visits semiannually or on an alternate schedule agreed to by the ,secretary and the ,indian tribe4 7i7 ,application of other laws ,unless otherwise agreed to by the ,indian tribe and except as otherwise provided in this ,act1 no provision of the ,office of ,federal ,procurement ,policy ,act 7#da ,u4,s4,c4 #dja et seq471 the ,federal ,acquisition ,regulations issued pursuant to that ,act1 or any other law or regulation pertaining to ,federal procurement 7including ,executive orders7 shall apply to any construction program or project carried out under this title4 7j7 ,future funding ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 upon completion of a facility constructed under this title1 the ,secretary shall include the facility among those eligible for annual operation and maintenance funding support comparable to that provided for similar facilities funded by the ,department as annual appropriations are available and to the extent that the facility size and complexity and other factors do not exceed the funding formula criteria for comparable buildings4 #djh4 ,payment 7a7 ,in general ,at the request of the governing body of an ,indian tribe and under the terms of an applicable funding agreement1 the ,secretary shall provide funding to the ,indian tribe to carry out the funding agreement4 7b7 ,advance annual payment ,at the option of the ,indian tribe1 a funding agreement shall provide for an advance annual payment to an ,indian tribe4 7c7 ,amount 7#a7 ,in general ,subject to subsection 7e7 and sections #djc and #dje1 the ,secretary shall provide funds to the ,indian tribe under a funding agreement for programs in an amount that is equal to the amount that the ,indian tribe would have been entitled to receive under contracts and grants under this ,act 7including amounts for direct program and contract support costs and1 in addition1 any funds that are specifically or functionally related to the provision by the ,secretary of services and benefits to the ,indian tribe or its members7 without regard to the organization level within the ,department at which the programs are carried out4 7#b7 ,savings clause ,nothing in this section reduces programs1 services1 or funds of1 or provided to1 another ,indian tribe4 7d7 ,timing 7#a7 ,in general ,pursuant to the terms of any compact or funding agreement entered into under this title1 the ,secretary shall transfer to the ,indian tribe all funds provided for in the funding agreement1 pursuant to subsection 7c71 and provide funding for periods covered by joint resolution adopted by ,congress making continuing appropriations1 to the extent permitted by such resolution4 7#b7 ,transfers ,not later than #a year after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 in any instance in which a funding agreement requires an annual transfer of funding to be made at the beginning of a fiscal year or requires semiannual or other periodic transfers of funding to be made commencing at the beginning of a fiscal year1 the first such transfer shall be made not later than #aj days after the apportionment of such funds by the ,office of ,management and ,budget to the ,department1 unless the funding agreement provides otherwise4 7e7 ,availability ,funds for trust services to individual ,indians shall be available under a funding agreement only to the extent that the same services that would have been provided by the ,secretary are provided to individual ,indians by the ,indian tribe4 7f7 ,multiyear funding ,a funding agreement may provide for multiyear funding4 7g7 ,limitations on authority of the secretary ,the ,secretary shall not-- 7#a7 fail to transfer to an ,indian tribe its full share of any central1 headquarters1 regional1 area1 or service unit office or other funds due under this title for programs eligible under paragraph 7#a7 or 7#b7 of section #djc7;b71 except as required by ,federal law2 7#b7 withhold any portion of such funds for transfer over a period of years2 or 7#c7 reduce the amount of funds required under this title-- 7,a7 to make funding available for self-governance monitoring or administration by the ,secretary2 7,b7 in subsequent years1 except as necessary as a result of-- 7i7 a reduction in appropriations from the previous fiscal year for the program to be included in a compact or funding agreement2 7ii7 a congressional directive in legislation or an accompanying report2 7iii7 a tribal authorization2 7iv7 a change in the amount of pass-through funds subject to the terms of the funding agreement2 or 7v7 completion of an activity under a program for which the funds were provided2 7,c7 to pay for ,federal functions1 including-- 7i7 ,federal pay costs2 7ii7 ,federal employee retirement benefits2 7iii7 automated data processing2 7iv7 technical assistance2 and 7v7 monitoring of activities under this title2 or 7,d7 to pay for costs of ,federal personnel displaced by self-determination contracts under this ,act or self-governance under this title4 7h7 ,federal resources ,if an ,indian tribe elects to carry out a compact or funding agreement with the use of ,federal personnel1 ,federal supplies 7including supplies available from ,federal warehouse facilities71 ,federal supply sources 7including lodging1 airline transportation1 and other means of transportation1 including the use of interagency motor pool vehicles71 or other ,federal resources 7including supplies1 services1 and resources available to the ,secretary under any procurement contracts in which the ,department is eligible to participate71 the ,secretary shall1 as soon as practicable1 acquire and transfer such personnel1 supplies1 or resources to the ,indian tribe under this title4 7i7 ,prompt payment act ,chapter #ci of title #ca1 ,united ,states ,code1 shall apply to the transfer of funds due under a compact or funding agreement authorized under this title4 7j7 ,interest or other income 7#a7 ,in general ,an ,indian tribe may retain interest or income earned on any funds paid under a compact or funding agreement to carry out governmental purposes4 7#b7 ,no effect on other amounts ,the retention of interest or income under paragraph 7#a7 shall not diminish the amount of funds an ,indian tribe is entitled to receive under a funding agreement in the year the interest or income is earned or in any subsequent fiscal year4 7#c7 ,investment standard ,funds transferred under this title shall be managed by the ,indian tribe using the prudent investment standard1 provided that the ,secretary shall not be liable for any investment losses of funds managed by the ,indian tribe that are not otherwise guaranteed or insured by the ,federal ,government4 7k7 ,carryover of funds 7#a7 ,in general ,notwithstanding any provision of an appropriations ,act1 all funds paid to an ,indian tribe in accordance with a compact or funding agreement shall remain available until expended4 7#b7 ,effect of carryover ,if an ,indian tribe elects to carry over funding from #a year to the next1 the carryover shall not diminish the amount of funds the ,indian tribe is entitled to receive under a funding agreement in that fiscal year or any subsequent fiscal year4 7l7 ,limitation of costs 7#a7 ,in general ,an ,indian tribe shall not be obligated to continue performance that requires an expenditure of funds in excess of the amount of funds transferred under a compact or funding agreement4 7#b7 ,notice of insufficiency ,if at any time the ,indian tribe has reason to believe that the total amount provided for a specific activity under a compact or funding agreement is insufficient1 the ,indian tribe shall provide reasonable notice of such insufficiency to the ,secretary4 7#c7 ,suspension of performance ,if1 after notice under paragraph 7#b71 the ,secretary does not increase the amount of funds transferred under the funding agreement1 the ,indian tribe may suspend performance of the activity until such time as additional funds are transferred4 7#d7 ,savings clause ,nothing in this section reduces any programs1 services1 or funds of1 or provided to1 another ,indian tribe4 7m7 ,distribution of funds ,the ,office of ,self-,governance shall be responsible for distribution of all ,bureau of ,indian ,affairs funds provided under this title unless otherwise agreed by the parties to an applicable funding agreement4 7n7 ,applicability ,section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac applies to subsections 7a7 through 7m74 #dji4 ,facilitation 7a7 ,in general ,except as otherwise provided by law 7including section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac71 the ,secretary shall interpret each ,federal law and regulation in a manner that facilitates-- 7#a7 the inclusion of programs in funding agreements2 and 7#b7 the implementation of funding agreements4 7b7 ,regulation waiver 7#a7 ,request ,an ,indian tribe may submit to the ,secretary a written request for a waiver of applicability of a ,federal regulation1 including-- 7,a7 an identification of the specific text in the regulation sought to be waived2 and 7,b7 the basis for the request4 7#b7 ,determination by the secretary ,not later than #abj days after receipt by the ,secretary and the designated officials under paragraph 7#d7 of a request under paragraph 7#a71 the ,secretary shall approve or deny the requested waiver in writing to the ,indian tribe4 7#c7 ,extensions ,the deadline described in paragraph 7#b7 may be extended for any length of time1 as agreed upon by both the ,indian tribe and the ,secretary4 7#d7 ,designated officials ,the ,secretary shall designate one or more appropriate officials in the ,department to receive a copy of the waiver request described in paragraph 7#a74 7#e7 ,grounds for denial ,the ,secretary may deny a request under paragraph 7#a7-- 7,a7 for a program eligible under paragraph 7#a7 or 7#b7 of section #djc7;b71 only upon a specific finding by the ,secretary that the identified text in the regulation may not be waived because such a waiver is prohibited by ,federal law2 and 7,b7 for a program eligible under section #djc7;c71 upon a specific finding by the ,secretary that the waiver is prohibited by ,federal law or is inconsistent with the express provisions of the funding agreement4 7#f7 ,failure to make determination ,if the ,secretary fails to approve or deny a waiver request within the period required under paragraph 7#b71 the ,secretary shall be deemed to have approved the request4 7#g7 ,finality ,a decision of the ,secretary under this section shall be final for the ,department4 #daj4 ,disclaimers ,nothing in this title expands or alters any statutory authority of the ,secretary in a manner that authorizes the ,secretary to enter into any agreement under section #djc-- 7#a7 with respect to an inherent ,federal function2 7#b7 in a case in which the law establishing a program explicitly prohibits the type of participation sought by the ,indian tribe 7without regard to whether one or more ,indian tribes are identified in the authorizing law72 or 7#c7 that limits or reduces in any way the services1 contracts1 or funds that any other ,indian tribe or tribal organization is eligible to receive under section #ajb or any other applicable ,federal law4 #daa4 ,discretionary application of other sections 7a7 ,in general ,except as otherwise provided in section #aja7;c71 at the option of a participating ,indian tribe or ,indian tribes1 any of the provisions of title ,i may be incorporated in any compact or funding agreement under this title4 7b7 ,effect ,each incorporated provision under subsection 7a7 shall-- 7#a7 have the same force and effect as if set out in full in this title2 7#b7 supplement or replace any related provision in this title2 and 7#c7 apply to any agency otherwise governed by this title4 7c7 ,effective date ,if an ,indian tribe requests incorporation at the negotiation stage of a compact or funding agreement1 the incorporation shall-- 7#a7 be effective immediately2 and 7#b7 control the negotiation and resulting compact and funding agreement4 #dab4 ,annual ,budget list ,the ,secretary shall list1 in the annual budget request submitted to ,congress under section #aaje of title #ca1 ,united ,states ,code1 any funds proposed to be included in funding agreements authorized under this ,act4 #dac4 ,reports 7a7 ,in general 7#a7 ,requirement ,on ,january #a of each year1 the ,secretary shall submit to ,congress a report regarding the administration of this title4 7#b7 ,analysis ,any ,indian tribe may submit to the ,office of ,self-,governance and to the appropriate ,committees of ,congress a detailed annual analysis of unmet tribal needs for funding agreements under this title4 7b7 ,contents ,the report under subsection 7a77#a7 shall-- 7#a7 be compiled from information contained in funding agreements1 annual audit reports1 and data of the ,secretary regarding the disposition of ,federal funds2 7#b7 identify-- 7,a7 the relative costs and benefits of self-governance2 7,b7 with particularity1 all funds that are specifically or functionally related to the provision by the ,secretary of services and benefits to self-governance ,indian tribes and members of ,indian tribes2 7,c7 the funds transferred to each ,indian tribe and the corresponding reduction in the ,federal employees and workload2 and 7,d7 the funding formula for individual tribal shares of all ,central ,office funds1 together with the comments of affected ,indian tribes1 developed under subsection 7d72 7#c7 before being submitted to ,congress1 be distributed to the ,indian tribes for comment 7with a comment period of no less than #cj days72 7#d7 include the separate views and comments of each ,indian tribe or tribal organization2 and 7#e7 include a list of-- 7,a7 all such programs that the ,secretary determines1 in consultation with ,indian tribes participating in self-governance1 are eligible for negotiation to be included in a funding agreement at the request of a participating ,indian tribe2 and 7,b7 all such programs which ,indian tribes have formally requested to include in a funding agreement under section #djc7;c7 due to the special geographic1 historical1 or cultural significance of the program to the ,indian tribe1 indicating whether each request was granted or denied1 and stating the grounds for any denial4 7c7 ,report on non-,,bia1 non-,,ost programs 7#a7 ,in general ,in order to optimize opportunities for including non-,bureau of ,indian ,affairs and non-,office of ,special ,trustee programs in agreements with ,indian tribes participating in self-governance under this title1 the ,secretary shall review all programs administered by the ,department1 other than through the ,bureau of ,indian ,affairs or ,office of the ,special ,trustee1 without regard to the agency or office concerned4 7#b7 ,programmatic targets ,the ,secretary shall establish programmatic targets1 after consultation with ,indian tribes participating in self-governance1 to encourage bureaus of the ,department to ensure that an appropriate portion of those programs are available to be included in funding agreements4 7#c7 ,publication ,the lists under subsection 7b77#e7 and targets under paragraph 7#b7 shall be published in the ,federal ,register and made available to any ,indian tribe participating in self-governance4 7#d7 ,annual review 7,a7 ,in general ,the ,secretary shall annually review and publish in the ,federal ,register1 after consultation with ,indian tribes participating in self-governance1 revised lists and programmatic targets4 7,b7 ,contents ,in preparing the revised lists and programmatic targets1 the ,secretary shall consider all programs that were eligible for contracting in the original list published in the ,federal ,register in #aiie1 except for programs specifically determined not to be contractible as a matter of law4 7d7 ,report on central office funds ,not later than ,january #a1 #bjac1 the ,secretary shall1 in consultation with ,indian tribes1 develop a funding formula to determine the individual tribal share of funds controlled by the ,central ,office of the ,bureau of ,indian ,affairs and the ,office of the ,special ,trustee for inclusion in the compacts4 #dad4 ,regulations 7a7 ,in general 7#a7 ,promulgation ,not later than #ij days after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 the ,secretary shall initiate procedures under subchapter ,,iii of chapter #e of title #e1 ,united ,states ,code1 to negotiate and promulgate such regulations as are necessary to carry out this title4 7#b7 ,publication of proposed regulations ,proposed regulations to implement this title shall be published in the ,federal ,register not later than #ba months after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac4 7#c7 ,expiration of authority ,the authority to promulgate regulations under paragraph 7#a7 shall expire on the date that is #cj months after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac4 7b7 ,committee 7#a7 ,membership ,a negotiated rulemaking committee established pursuant to section #efe of title #e1 ,united ,states ,code1 to carry out this section shall have as its members only representatives of the ,federal ,government and tribal government4 7#b7 ,lead agency ,among the ,federal representatives described in paragraph 7#a71 the ,office of ,self-,governance shall be the lead agency for the ,department4 7c7 ,adaptation of procedures ,the ,secretary shall adapt the negotiated rulemaking procedures to the unique context of self-governance and the government-to-government relationship between the ,united ,states and ,indian tribes4 7d7 ,effect 7#a7 ,repeal ,the ,secretary may repeal any regulation that is inconsistent with this ,act4 7#b7 ,conflicting provisions ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjac1 this title shall supersede any conflicting provision of law 7including any conflicting regulations74 7#c7 ,effectiveness without regard to regulations ,the lack of promulgated regulations on an issue shall not limit the effect or implementation of this title4 #dae4 ,effect of circulars1 policies1 manuals1 guidance1 and rules ,unless expressly agreed to by a participating ,indian tribe in a compact or funding agreement1 the participating ,indian tribe shall not be subject to any agency circular1 policy1 manual1 guidance1 or rule adopted by the ,department1 except for-- 7#a7 the eligibility provisions of section #aje7;g72 and 7#b7 regulations promulgated pursuant to section #dad4 #daf4 ,appeals ,except as provided in section #djf7;d71 in any administrative action1 appeal1 or civil action for judicial review of any decision made by the ,secretary under this title1 the ,secretary shall have the burden of proof of demonstrating by a preponderance of the evidence-- 7#a7 the validity of the grounds for the decision2 and 7#b7 the consistency of the decision with the requirements and policies of this title4 #dag4 ,application of other provisions ,section #cad of the ,department of the ,interior and ,related ,agencies ,appropriations ,act1 #aiia 7,public ,law #aja-eab2 #ajd ,stat4 #aiei71 shall apply to compacts and funding agreements entered into under this title4 #dah4 ,authorization of appropriations ,there are authorized to be appropriated such sums as are necessary to carry out this title4 4 #bjb4 ,effect of certain provisions 7a7 ,definitions ,in this section3 7#a7 ,funding agreement ,the term funding agreement means a funding agreement entered into under section #djc of the ,,isdeaa 7#be ,u4,s4,c4 #deh;cc74 7#b7 ,,isdeaa ,the term ,,isdeaa means the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej et seq474 7#c7 ,non-,,bia program ,the term non-,,bia program means all or a portion of a program1 function1 service1 or activity that is administered by any bureau1 service1 office1 or agency of the ,department of the ,interior other than through-- 7,a7 the ,bureau of ,indian ,affairs2 7,b7 the ,office of the ,assistant ,secretary for ,indian ,affairs2 or 7,c7 the ,office of the ,special ,trustee for ,american ,indians4 7#d7 ,secretary ,the term ,secretary means the ,secretary of the ,interior4 7#e7 ,self-determination contract ,the term self-determination contract means a self-determination contract entered into under section #ajb of the ,,isdeaa 7#be ,u4,s4,c4 #dej;f74 7#f7 ,tribal water settlement ,the term tribal water settlement means any settlement1 compact1 or other agreement entered into by an ,indian tribe and the ,united ,states1 or by an ,indian tribe1 the ,united ,states1 and one or more parties that-- 7,a7 settles or quantifies any ,federal reserved water rights or any claims relating to those rights of the ,indian tribe2 and 7,b7 has been authorized by an ,act of ,congress4 7b7 ,effect of provisions ,nothing in this ,act 7including this section7 or any amendment made by this ,act 7including section #dad of the ,,isdeaa 7relating to regulations71 as added by section #bja7-- 7#a7 modifies or affects the meaning1 application1 or effect of-- 7,a7 section #ajb7;a77#a77;,e7 of the ,,isdeaa 7#be ,u4,s4,c4 #dej;f7a77#a77;,e771 as in effect on the day before the date of enactment of this ,act2 or 7,b7 paragraph 7#b7 or 7#c7 of subsection 7b7 or subsection 7c7 of section #djc of the ,,isdeaa 7#be ,u4,s4,c4 #deh;cc71 as in effect on the day before the date of enactment of this ,act2 7#b7 increases1 limits1 modifies1 or otherwise affects any authority of the ,secretary that the ,secretary held on the day before the date of enactment of this ,act under section #djc7;c7 of the ,,isdeaa 7#be ,u4,s4,c4 #deh;cc7c772 7#c7 authorizes the inclusion of any non-,,bia program in-- 7,a7 a self-determination contract as a program under section #ajb7;a77#a77;,e7 of the ,,isdeaa 7#be ,u4,s4,c4 #dej;f7a77#a77;,e77 if the inclusion of that non-,,bia program in a self-determination contract as a program under that section would not have been authorized under the ,,isdeaa on the day before the date of enactment of this ,act2 7,b7 a funding agreement as a program under section #djc7;b77#b7 of the ,,isdeaa 7#be ,u4,s4,c4 #deh;cc7b77#b77 if the inclusion of that non-,,bia program in a funding agreement as a program under that section would not have been authorized on the day before the date of enactment of this ,act2 or 7,c7 a funding agreement as a program under section #djc7;c7 of the ,,isdeaa 7#be ,u4,s4,c4 #deh;cc7c77 if the inclusion of that non-,,bia program in a funding agreement as a program under that section would not have been authorized under the ,,isdeaa on the day before the date of enactment of this ,act2 7#d7 modifies or otherwise affects the meaning1 application1 or effect of any provision of law that-- 7,a7 is not contained in the ,,isdeaa2 and 7,b7 expressly authorizes or prohibits contracting or compacting under title ,i or title ,,iv of the ,,isdeaa with respect to a specific program or project that is identified or otherwise referred to in that provision of law2 7#e7 modifies or otherwise affects the meaning1 application1 or effect of1 or the performance required of a party1 or any payment or funding under-- 7,a7 a tribal water settlement2 or 7,b7 any ,act of ,congress approving1 authorizing1 or ratifying a tribal water settlement2 or 7#f7 authorizes any self-determination contract or funding agreement or approval of any self-determination contract or funding agreement under the ,,isdeaa 7as amended by section #bja7 that would authorize an ,indian tribe to plan1 conduct1 consolidate1 administer1 or receive funding for any program1 project1 or activity that is required1 authorized1 or funded by a tribal water settlement or an ,act of ,congress approving1 authorizing1 or ratifying a tribal water settlement in a manner that is inconsistent with the terms of that tribal water settlement or that ,act of ,congress4 #a4 ,short title2 table of contents 7a7 ,short title ,this ,act may be cited as the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad4 7b7 ,table of contents ,the table of contents of this ,act is as follows3 ,sec4 #a4 ,short title2 table of contents4,,title ,i--,,indian ,,self-,d,e,t,e,r,m,i,n,a,t,i,o,n,sec4 #aja4 ,definitions2 reporting and audit requirements2 application of provisions4,sec4 #ajb4 ,contracts by ,secretary of the ,interior4,sec4 #ajc4 ,administrative provisions4,sec4 #ajd4 ,contract funding and indirect costs4,sec4 #aje4 ,contract or grant specifications4,,title ,,ii--,,tribal ,,self-,g,o,v,e,r,n,a,n,c,e,sec4 #bja4 ,tribal self-governance4,sec4 #bjb4 ,effect of certain provisions4 ,i ,,indian ,,self-,,determination #aja4 ,definitions2 reporting and audit requirements2 application of provisions 7a7 ,definitions ,section #d of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;b7 is amended by striking subsection 7j7 and inserting the following3 7j7 self-determination contract means a contract entered into under title ,i 7or a grant or cooperative agreement used under section #i7 between a tribal organization and the appropriate ,secretary for the planning1 conduct1 and administration of programs or services that are otherwise provided to ,indian tribes and members of ,indian tribes pursuant to ,federal law1 subject to the condition that1 except as provided in section #aje7;a77#c71 no contract entered into under title ,i 7or grant or cooperative agreement used under section #i7 shall be-- 7#a7 considered to be a procurement contract2 or 7#b7 except as provided in section #ajg7;a77#a71 subject to any ,federal procurement law 7including regulations72 4 7b7 ,reporting and audit requirements ,section #e7;b7 of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;c7b77 is amended-- 7#a7 by striking after completion of the project or undertaking referred to in the preceding subsection of this section and inserting after the retention period for the report that is submitted to the ,secretary under subsection 7a72 and 7#b7 by adding at the end the following3 ,the retention period shall be defined in regulations promulgated by the ,secretary pursuant to section #dad44 7c7 ,application of other provisions ,sections #d1 #e1 #f1 #g1 #ajb7;c71 #ajd1 #aje7;a77#a71 #aje7;f71 #aaj1 and #aaa of the ,indian ,self-,determination and ,education ,assistance ,act1 as amended 7#be ,u4,s4,c4 #dej et seq47 7,public ,law #ic-fch2 #hh ,stat4 #bbjc7 and section #cad of the ,department of the ,interior and ,related ,agencies ,appropriations ,act1 #aiia 7,public ,law #aja-eab2 #ajd ,stat4 #aiei71 apply to compacts and funding agreements entered into under title ,,iv4 #ajb4 ,contracts by ,secretary of the ,interior ,section #ajb of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;f7 is amended-- 7#a7 in subsection 7c77#b71 by striking economic enterprises and all that follows through except that and inserting economic enterprises 7as defined in section #c of the ,indian ,financing ,act of #aigd 7#be ,u4,s4,c4 #adeb771 except that2 and 7#b7 by adding at the end the following3 7f7 ,good faith requirement ,in the negotiation of contracts and funding agreements1 the ,secretary shall-- 7#a7 at all times negotiate in good faith to maximize implementation of the self-determination policy2 and 7#b7 carry out this ,act in a manner that maximizes the policy of tribal self-determination1 in a manner consistent with-- 7,a7 the purposes specified in section #c2 and 7,b7 the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad4 7g7 ,rule of construction ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad1 each provision of this ,act and each provision of a contract or funding agreement shall be liberally construed for the benefit of the ,indian tribe participating in self-determination1 and any ambiguity shall be resolved in favor of the ,indian tribe4 4 #ajc4 ,administrative provisions ,section #aje of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;j7 is amended-- 7#a7 in subsection 7b71 in the first sentence1 by striking pursuant to and all that follows through of this ,act and inserting pursuant to sections #ajb and #ajc2 and 7#b7 by adding at the end the following3 7p7 ,interpretation by secretary ,except as otherwise provided by law 7including section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad71 the ,secretary shall interpret all ,federal laws 7including regulations7 and ,executive orders in a manner that facilitates1 to the maximum extent practicable-- 7#a7 the inclusion in self-determination contracts and funding agreements of-- 7,a7 applicable programs1 services1 functions1 and activities 7or portions thereof72 and 7,b7 funds associated with those programs1 services1 functions1 and activities2 7#b7 the implementation of self-determination contracts and funding agreements2 and 7#c7 the achievement of tribal health objectives4 4 #ajd4 ,contract funding and indirect costs ,section #ajf7;a77#c7 of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;j-#a7;a77#c77 is amended-- 7#a7 in subparagraph 7,a7-- 7,a7 in clause 7i71 by striking 1 and and inserting 2 and2 and 7,b7 in clause 7ii71 by striking expense related to the overhead incurred and inserting expense incurred by the governing body of the ,indian tribe or tribal organization and any overhead expense incurred2 7#b7 by redesignating subparagraph 7,b7 as subparagraph 7,c72 and 7#c7 by inserting after subparagraph 7,a7 the following3 7,b7 ,in calculating the reimbursement rate for expenses described in subparagraph 7,a77ii71 not less than #ej percent of the expenses described in subparagraph 7,a77ii7 that are incurred by the governing body of an ,indian tribe or tribal organization relating to a ,federal program1 function1 service1 or activity carried out pursuant to the contract shall be considered to be reasonable and allowable4 4 #aje4 ,contract or grant specifications ,section #ajh of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dejl7 is amended-- 7#a7 in subsection 7a77#b71 by inserting subject to subsections 7a7 and 7b7 of section #ajb1 before contain2 and 7#b7 in subsection 7f77#b77;,a77ii7 of the model agreement contained in subsection 7c71 by inserting subject to subsections 7a7 and 7b7 of section #ajb of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej;f71 before such other provisions4 ,,ii ,,tribal ,,self-,,governance #bja4 ,tribal self-governance 7a7 ,definitions ,section #dja of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #deh;aa7 is amended to read as follows3 #dja4 ,definitions ,in this title3 7#a7 ,compact ,the term compact means a self-governance compact entered into under section #djd4 7#b7 ,construction program2 construction project ,the term construction program or construction project means a tribal undertaking relating to the administration1 planning1 environmental determination1 design1 construction1 repair1 improvement1 or expansion of roads1 bridges1 buildings1 structures1 systems1 or other facilities for purposes of housing1 law enforcement1 detention1 sanitation1 water supply1 education1 administration1 community1 health1 irrigation1 agriculture1 conservation1 flood control1 transportation1 or port facilities1 or for other tribal purposes4 7#c7 ,department ,the term ,department means the ,department of the ,interior4 7#d7 ,funding agreement ,the term funding agreement means a funding agreement entered into under section #djc4 7#e7 ,gross mismanagement ,the term gross mismanagement means a significant violation1 shown by a preponderance of the evidence1 of a compact1 funding agreement1 or statutory or regulatory requirement applicable to ,federal funds-- 7,a7 for a program administered by an ,indian tribe2 or 7,b7 under a compact or funding agreement that results in a significant reduction of funds available for the programs assumed by an ,indian tribe4 7#f7 ,inherent federal function ,the term inherent ,federal function means a ,federal function that may not legally be delegated to an ,indian tribe4 7#g7 ,program ,the term program means any program1 function1 service1 or activity 7or portion thereof7 within the ,department that is included in a funding agreement4 7#h7 ,secretary ,the term ,secretary means the ,secretary of the ,interior4 7#i7 ,self-governance ,the term self-governance means the ,tribal ,self-,governance ,program established under section #djb4 7#aj7 ,tribal share ,the term tribal share means the portion of all funds and resources of an ,indian tribe that-- 7,a7 support any program within the ,bureau of ,indian ,affairs1 the ,office of the ,special ,trustee1 or the ,office of the ,assistant ,secretary for ,indian ,affairs2 and 7,b7 are not required by the ,secretary for the performance of an inherent ,federal function4 4 7b7 ,establishment ,section #djb of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #deh;bb7 is amended to read as follows3 #djb4 ,tribal ,self-,governance ,program 7a7 ,establishment ,the ,secretary shall establish and carry out a program within the ,department to be known as the ,tribal ,self-,governance ,program4 7b7 ,selection of ,participating ,indian ,tribes 7#a7 ,in general 7,a7 ,eligibility ,the ,secretary1 acting through the ,director of the ,office of ,self-,governance1 may select up to #ej new ,indian tribes per year from those eligible under subsection 7c7 to participate in self-governance4 7,b7 ,joint participation ,on the request of each participating ,indian tribe1 two or more otherwise eligible ,indian tribes may be treated as a single ,indian tribe for the purpose of participating in self-governance4 7#b7 ,other authorized ,indian tribe or tribal organization ,if an ,indian tribe authorizes another ,indian tribe or a tribal organization to plan for or carry out a program on its behalf under this title1 the authorized ,indian tribe or tribal organization shall have the rights and responsibilities of the authorizing ,indian tribe 7except as otherwise provided in the authorizing resolution74 7#c7 ,joint participation ,two or more ,indian tribes that are not otherwise eligible under subsection 7c7 may be treated as a single ,indian tribe for the purpose of participating in self-governance as a tribal organization if-- 7,a7 each ,indian tribe so requests2 and 7,b7 the tribal organization itself1 or at least one of the ,indian tribes participating in the tribal organization1 is eligible under subsection 7c74 7#d7 ,tribal withdrawal from a tribal organization 7,a7 ,in general ,an ,indian tribe that withdraws from participation in a tribal organization1 in whole or in part1 shall be entitled to participate in self-governance if the ,indian tribe is eligible under subsection 7c74 7,b7 ,effect of withdrawal ,if an ,indian tribe withdraws from participation in a tribal organization1 the ,indian tribe shall be entitled to its tribal share of funds and resources supporting the programs that the ,indian tribe is entitled to carry out under the compact and funding agreement of the ,indian tribe4 7,c7 ,participation in self-governance ,the withdrawal of an ,indian tribe from a tribal organization shall not affect the eligibility of the tribal organization to participate in self-governance on behalf of one or more other ,indian tribes1 if the tribal organization still qualifies under subsection 7c74 7,d7 ,withdrawal process 7i7 ,in general ,an ,indian tribe may1 by tribal resolution1 fully or partially withdraw its tribal share of any program in a funding agreement from a participating tribal organization4 7ii7 ,notification ,the ,indian tribe shall provide a copy of the tribal resolution described in clause 7i7 to the ,secretary4 7iii7 ,effective date 7,i7 ,in general ,a withdrawal under clause 7i7 shall become effective on the date that is specified in the tribal resolution and mutually agreed upon by the ,secretary1 the withdrawing ,indian tribe1 and the tribal organization that signed the compact and funding agreement on behalf of the withdrawing ,indian tribe or tribal organization4 7,,ii7 ,no specified date ,in the absence of a date specified in the resolution1 the withdrawal shall become effective on-- 7aa7 the earlier of-- 7,,aa7 #a year after the date of submission of the request2 and 7,,bb7 the date on which the funding agreement expires2 or 7bb7 such date as may be mutually agreed upon by the ,secretary1 the withdrawing ,indian tribe1 and the tribal organization that signed the compact and funding agreement on behalf of the withdrawing ,indian tribe or tribal organization4 7,e7 ,distribution of funds ,if an ,indian tribe or tribal organization eligible to enter into a self-determination contract under title ,i or a compact or funding agreement under this title fully or partially withdraws from a participating tribal organization1 the withdrawing ,indian tribe-- 7i7 may elect to enter into a self-determination contract or compact1 in which case-- 7,i7 the withdrawing ,indian tribe or tribal organization shall be entitled to its tribal share of unexpended funds and resources supporting the programs that the ,indian tribe will be carrying out under its own self-determination contract or compact and funding agreement 7calculated on the same basis as the funds were initially allocated to the funding agreement of the tribal organization72 and 7,,ii7 the funds referred to in subclause 7,i7 shall be withdrawn by the ,secretary from the funding agreement of the tribal organization and transferred to the withdrawing ,indian tribe1 on the condition that sections #ajb and #aje7;i71 as appropriate1 shall apply to the withdrawing ,indian tribe2 or 7ii7 may elect not to enter into a self-determination contract or compact1 in which case all unexpended funds and resources associated with the withdrawing ,indian tribe's returned programs 7calculated on the same basis as the funds were initially allocated to the funding agreement of the tribal organization7 shall be returned by the tribal organization to the ,secretary for operation of the programs included in the withdrawal4 7,f7 ,return to mature contract status ,if an ,indian tribe elects to operate all or some programs carried out under a compact or funding agreement under this title through a self-determination contract under title ,i1 at the option of the ,indian tribe1 the resulting self-determination contract shall be a mature self-determination contract as long as the ,indian tribe meets the requirements set forth in section #d7;h74 7c7 ,eligibility ,to be eligible to participate in self-governance1 an ,indian tribe shall-- 7#a7 successfully complete the planning phase described in subsection 7d72 7#b7 request participation in self-governance by resolution or other official action by the tribal governing body2 and 7#c7 demonstrate1 for the #c fiscal years preceding the date on which the ,indian tribe requests participation1 financial stability and financial management capability as evidenced by the ,indian tribe having no uncorrected significant and material audit exceptions in the required annual audit of its self-determination or self-governance agreements with any ,federal agency4 7d7 ,planning phase 7#a7 ,in general ,an ,indian tribe seeking to begin participation in self-governance shall complete a planning phase as provided in this subsection4 7#b7 ,activities ,the planning phase shall-- 7,a7 be conducted to the satisfaction of the ,indian tribe2 and 7,b7 include-- 7i7 legal and budgetary research2 and 7ii7 internal tribal government planning1 training1 and organizational preparation4 7e7 ,grants 7#a7 ,in general ,subject to the availability of appropriations1 an ,indian tribe or tribal organization that meets the requirements of paragraphs 7#b7 and 7#c7 of subsection 7c7 shall be eligible for grants-- 7,a7 to plan for participation in self-governance2 and 7,b7 to negotiate the terms of participation by the ,indian tribe or tribal organization in self-governance1 as set forth in a compact and a funding agreement4 7#b7 ,receipt of grant not required ,receipt of a grant under paragraph 7#a7 shall not be a requirement of participation in self-governance4 4 7c7 ,funding agreements ,section #djc of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #deh;cc7 is amended-- 7#a7 by striking subsection 7a7 and inserting the following3 7a7 ,authorization ,the ,secretary shall1 on the request of any ,indian tribe or tribal organization1 enter into a written funding agreement with the governing body of the ,indian tribe or the tribal organization in a manner consistent with-- 7#a7 the trust responsibility of the ,federal ,government1 treaty obligations1 and the government-to-government relationship between ,indian tribes and the ,united ,states2 and 7#b7 subsection 7b74 2 7#b7 in subsection 7b7-- 7,a7 in paragraph 7#a7-- 7i7 in the matter preceding subparagraph 7,a71 by striking without regard to the agency or office of the ,bureau of ,indian ,affairs and inserting the ,office of the ,assistant ,secretary for ,indian ,affairs1 and the ,office of the ,special ,trustee1 without regard to the agency or office of that ,bureau or those ,offices2 7ii7 in subparagraph 7,b71 by striking and2 7iii7 in subparagraph 7,c71 by inserting and after the semicolon at the end2 and 7iv7 by adding at the end the following3 7,d7 any other programs1 services1 functions1 or activities 7or portions thereof7 that are provided through the ,bureau of ,indian ,affairs1 the ,office of the ,assistant ,secretary for ,indian ,affairs1 or the ,office of the ,special ,trustee with respect to which ,indian tribes or ,indians are primary or significant beneficiaries2 2 7,b7 in paragraph 7#b7-- 7i7 by striking section #dje7;c7 and inserting section #dac7;c72 and 7ii7 by inserting and after the semicolon at the end2 7,c7 in paragraph 7#c71 by striking the semicolon at the end and inserting a period2 and 7,d7 by striking paragraphs 7#d7 through 7#i72 and 7#c7 by adding at the end the following3 7m7 ,other provisions 7#a7 ,excluded funding ,a funding agreement shall not authorize an ,indian tribe to plan1 conduct1 administer1 or receive tribal share funding under any program that-- 7,a7 is provided under the ,tribally ,controlled ,colleges and ,universities ,assistance ,act of #aigh 7#be ,u4,s4,c4 #ahja et seq472 or 7,b7 is provided for elementary and secondary schools under the formula developed under section #aabg of the ,education ,amendments of #aigh 7#be ,u4,s4,c4 #bjjg74 7#b7 ,services1 functions1 and responsibilities ,a funding agreement shall specify-- 7,a7 the services to be provided under the funding agreement2 7,b7 the functions to be performed under the funding agreement2 and 7,c7 the responsibilities of the ,indian tribe and the ,secretary under the funding agreement4 7#c7 ,base budget ,a funding agreement shall1 at the option of the ,indian tribe1 provide for a stable base budget specifying the recurring funds 7which may include funds available under section #ajf7;a77 to be transferred to the ,indian tribe1 for such period as the ,indian tribe specifies in the funding agreement1 subject to annual adjustment only to reflect changes in congressional appropriations4 7#d7 ,no waiver of trust responsibility ,a funding agreement shall prohibit the ,secretary from waiving1 modifying1 or diminishing in any way the trust responsibility of the ,united ,states with respect to ,indian tribes and individual ,indians that exists under treaties1 ,executive orders1 court decisions1 and other laws4 7n7 ,amendment ,the ,secretary shall not revise1 amend1 or require additional terms in a new or subsequent funding agreement without the consent of the ,indian tribe1 unless such terms are required by ,federal law4 7o7 ,effective date ,a funding agreement shall become effective on the date specified in the funding agreement4 7p7 ,existing and subsequent funding agreements 7#a7 ,subsequent funding agreements ,absent notification from an ,indian tribe that the ,indian tribe is withdrawing or retroceding the operation of one or more programs identified in a funding agreement1 or unless otherwise agreed to by the parties to the funding agreement or by the nature of any noncontinuing program1 service1 function1 or activity contained in a funding agreement-- 7,a7 a funding agreement shall remain in full force and effect until a subsequent funding agreement is executed1 with funding paid annually for each fiscal year the agreement is in effect2 and 7,b7 the term of the subsequent funding agreement shall be retroactive to the end of the term of the preceding funding agreement for the purposes of calculating the amount of funding to which the ,indian tribe is entitled4 7#b7 ,disputes ,disputes over the implementation of paragraph 7#a77;,a7 shall be subject to section #djf7;c74 7#c7 ,existing funding agreements ,an ,indian tribe that was participating in self-governance under this title on the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad shall have the option at any time after that date-- 7,a7 to retain its existing funding agreement 7in whole or in part7 to the extent that the provisions of that funding agreement are not directly contrary to any express provision of this title2 or 7,b7 to negotiate a new funding agreement in a manner consistent with this title4 7#d7 ,multiyear funding agreements ,an ,indian tribe may1 at the discretion of the ,indian tribe1 negotiate with the ,secretary for a funding agreement with a term that exceeds #a year4 4 7d7 ,general revisions ,title ,,iv of the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #deh;aa et seq47 is amended by striking sections #djd through #djh and inserting the following3 #djd4 ,compacts 7a7 ,in general ,the ,secretary shall negotiate and enter into a written compact with each ,indian tribe participating in self-governance in a manner consistent with the trust responsibility of the ,federal ,government1 treaty obligations1 and the government-to-government relationship between ,indian tribes and the ,united ,states4 7b7 ,contents ,a compact under subsection 7a7 shall-- 7#a7 specify and affirm the general terms of the government-to-government relationship between the ,indian tribe and the ,secretary2 and 7#b7 include such terms as the parties intend shall control during the term of the compact4 7c7 ,amendment ,a compact under subsection 7a7 may be amended only by agreement of the parties4 7d7 ,effective date ,the effective date of a compact under subsection 7a7 shall be-- 7#a7 the date of the execution of the compact by the parties2 or 7#b7 such date as is mutually agreed upon by the parties4 7e7 ,duration ,a compact under subsection 7a7 shall remain in effect-- 7#a7 for so long as permitted by ,federal law2 or 7#b7 until termination by written agreement1 retrocession1 or reassumption4 7f7 ,existing compacts ,an ,indian tribe participating in self-governance under this title1 as in effect on the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad1 shall have the option at any time after that date-- 7#a7 to retain its negotiated compact 7in whole or in part7 to the extent that the provisions of the compact are not directly contrary to any express provision of this title2 or 7#b7 to negotiate a new compact in a manner consistent with this title4 #dje4 ,general provisions 7a7 ,applicability ,an ,indian tribe and the ,secretary shall include in any compact or funding agreement provisions that reflect the requirements of this title4 7b7 ,conflicts of interest ,an ,indian tribe participating in self-governance shall ensure that internal measures are in place to address1 pursuant to tribal law and procedures1 conflicts of interest in the administration of programs4 7c7 ,audits 7#a7 ,single agency audit act ,chapter #ge of title #ca1 ,united ,states ,code1 shall apply to a funding agreement under this title4 7#b7 ,cost principles ,an ,indian tribe shall apply cost principles under the applicable ,office of ,management and ,budget circular1 except as modified by-- 7,a7 any provision of law1 including section #ajf2 or 7,b7 any exemptions to applicable ,office of ,management and ,budget circulars subsequently granted by the ,office of ,management and ,budget4 7#c7 ,federal claims ,any claim by the ,federal ,government against an ,indian tribe relating to funds received under a funding agreement based on any audit under this subsection shall be subject to section #ajf7;f74 7d7 ,redesign and consolidation ,except as provided in section #djg1 an ,indian tribe may redesign or consolidate programs or reallocate funds for programs in any manner that the ,indian tribe determines to be in the best interest of the ,indian community being served1 so long as that the redesign or consolidation does not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable ,federal law1 except that1 with respect to the reallocation1 consolidation1 and redesign of programs described in subsection 7b77#b7 or 7c7 of section #djc1 a joint agreement between the ,secretary and the ,indian tribe shall be required4 7e7 ,retrocession 7#a7 ,in general ,an ,indian tribe may fully or partially retrocede to the ,secretary any program under a compact or funding agreement4 7#b7 ,effective date 7,a7 ,agreement ,unless an ,indian tribe rescinds a request for retrocession under paragraph 7#a71 the retrocession shall become effective on the date specified by the parties in the compact or funding agreement4 7,b7 ,no agreement ,in the absence of a specification of an effective date in the compact or funding agreement1 the retrocession shall become effective on-- 7i7 the earlier of-- 7,i7 #a year after the date on which the request is submitted2 and 7,,ii7 the date on which the funding agreement expires2 or 7ii7 such date as may be mutually agreed upon by the ,secretary and the ,indian tribe4 7f7 ,nonduplication ,a funding agreement shall provide that1 for the period for which1 and to the extent to which1 funding is provided to an ,indian tribe under this title1 the ,indian tribe-- 7#a7 shall not be entitled to contract with the ,secretary for funds under section #ajb1 except that the ,indian tribe shall be eligible for new programs on the same basis as other ,indian tribes2 and 7#b7 shall be responsible for the administration of programs in accordance with the compact or funding agreement4 7g7 ,records 7#a7 ,in general ,unless an ,indian tribe specifies otherwise in the compact or funding agreement1 records of an ,indian tribe shall not be considered to be ,federal records for purposes of chapter #e of title #e1 ,united ,states ,code4 7#b7 ,recordkeeping system ,an ,indian tribe shall-- 7,a7 maintain a recordkeeping system2 and 7,b7 on a notice period of not less than #cj days1 provide the ,secretary with reasonable access to the records to enable the ,department to meet the requirements of sections #caja through #cajf of title #dd1 ,united ,states ,code4 #djf4 ,provisions relating to the secretary 7a7 ,trust evaluations ,a funding agreement shall include a provision to monitor the performance of trust functions by the ,indian tribe through the annual trust evaluation4 7b7 ,reassumption 7#a7 ,in general ,a compact or funding agreement shall include provisions for the ,secretary to reassume a program and associated funding if there is a specific finding relating to that program of-- 7,a7 imminent jeopardy to a trust asset1 a natural resource1 or public health and safety that-- 7i7 is caused by an act or omission of the ,indian tribe2 and 7ii7 arises out of a failure to carry out the compact or funding agreement2 or 7,b7 gross mismanagement with respect to funds transferred to an ,indian tribe under a compact or funding agreement1 as determined by the ,secretary in consultation with the ,inspector ,general1 as appropriate4 7#b7 ,prohibition ,the ,secretary shall not reassume operation of a program1 in whole or part1 unless-- 7,a7 the ,secretary first provides written notice and a hearing on the record to the ,indian tribe2 and 7,b7 the ,indian tribe does not take corrective action to remedy the mismanagement of the funds or programs1 or the imminent jeopardy to a trust asset1 natural resource1 or public health and safety4 7#c7 ,exception 7,a7 ,in general ,notwithstanding paragraph 7#b71 the ,secretary may1 on written notice to the ,indian tribe1 immediately reassume operation of a program if-- 7i7 the ,secretary makes a finding of imminent and substantial jeopardy and irreparable harm to a trust asset1 a natural resource1 or the public health and safety caused by an act or omission of the ,indian tribe2 and 7ii7 the imminent and substantial jeopardy1 and irreparable harm to the trust asset1 natural resource1 or public health and safety arises out of a failure by the ,indian tribe to carry out the terms of an applicable compact or funding agreement4 7,b7 ,reassumption ,if the ,secretary reassumes operation of a program under subparagraph 7,a71 the ,secretary shall provide the ,indian tribe with a hearing on the record not later than #aj days after the date of reassumption4 7c7 ,inability ,to agree on compact or funding agreement 7#a7 ,final offer ,if the ,secretary and a participating ,indian tribe are unable to agree1 in whole or in part1 on the terms of a compact or funding agreement 7including funding levels71 the ,indian tribe may submit a final offer to the ,secretary4 7#b7 ,determination ,not more than #fj days after the date of receipt of a final offer by the one or more officials designated pursuant to paragraph 7#d71 the ,secretary shall review and make a determination with respect to the final offer4 7#c7 ,extensions ,the deadline described in paragraph 7#b7 may be extended for any length of time1 as agreed upon by both the ,indian tribe and the ,secretary4 7#d7 ,designated officials 7,a7 ,in general ,the ,secretary shall designate one or more appropriate officials in the ,department to receive a copy of the final offer described in paragraph 7#a74 7,b7 ,no designation ,if no official is designated1 the ,executive ,secretariat of the ,secretary shall be the designated official4 7#e7 ,no timely determination ,except as otherwise provided in section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad1 if the ,secretary fails to make a determination with respect to a final offer within the period specified in paragraph 7#b71 the ,secretary shall be deemed to have agreed to the offer4 7#f7 ,rejection of final offer 7,a7 ,in general ,if the ,secretary rejects a final offer 7or one or more provisions or funding levels in a final offer71 the ,secretary shall-- 7i7 provide timely written notification to the ,indian tribe that contains a specific finding that clearly demonstrates1 or that is supported by a controlling legal authority1 that-- 7,i7 the amount of funds proposed in the final offer exceeds the applicable funding level as determined under section #ajf7;a77#a72 7,,ii7 the program that is the subject of the final offer is an inherent ,federal function or is subject to the discretion of the ,secretary under section #djc7;c72 7,,iii7 the ,indian tribe cannot carry out the program in a manner that would not result in significant danger or risk to the public health or safety1 to natural resources1 or to trust resources2 7,,iv7 the ,indian tribe is not eligible to participate in self-governance under section #djb7;c72 7,v7 the funding agreement would violate a ,federal statute or regulation2 or 7,,vi7 with respect to a program or portion of a program included in a final offer pursuant to section #djc7;b77#b71 the program or the portion of the program is not otherwise available to ,indian tribes or ,indians under section #ajb7;a77#a77;,e72 7ii7 provide technical assistance to overcome the objections stated in the notification required by clause 7i72 7iii7 provide the ,indian tribe with-- 7,i7 a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter2 and 7,,ii7 the opportunity for appeal on the objections raised 7except that the ,indian tribe may1 in lieu of filing such appeal1 directly proceed to initiate an action in a ,united ,states district court under section #aaj7;a772 and 7iv7 provide the ,indian tribe the option of entering into the severable portions of a final proposed compact or funding agreement 7including a lesser funding amount1 if any71 that the ,secretary did not reject1 subject to any additional alterations necessary to conform the compact or funding agreement to the severed provisions4 7,b7 ,effect of exercising certain option ,if an ,indian tribe exercises the option specified in subparagraph 7,a77iv7-- 7i7 the ,indian tribe shall retain the right to appeal the rejection by the ,secretary under this section2 and 7ii7 clauses 7i71 7ii71 and 7iii7 of subparagraph 7,a7 shall apply only to the portion of the proposed final compact or funding agreement that was rejected by the ,secretary4 7d7 ,burden of proof ,in any administrative action1 hearing1 or appeal or civil action brought under this section1 the ,secretary shall have the burden of proof-- 7#a7 of demonstrating1 by a preponderance of the evidence1 the validity of the grounds for a reassumption under subsection 7b72 and 7#b7 of clearly demonstrating the validity of the grounds for rejecting a final offer made under subsection 7c74 7e7 ,good faith 7#a7 ,in general ,in the negotiation of compacts and funding agreements1 the ,secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy4 7#b7 ,policy ,the ,secretary shall carry out this title in a manner that maximizes the policy of tribal self-governance4 7f7 ,savings 7#a7 ,in general ,to the extent that programs carried out for the benefit of ,indian tribes and tribal organizations under this title reduce the administrative or other responsibilities of the ,secretary with respect to the operation of ,indian programs and result in savings that have not otherwise been included in the amount of tribal shares and other funds determined under section #djh7;c71 except for funding agreements entered into for programs under section #djc7;c71 the ,secretary shall make such savings available to the ,indian tribes or tribal organizations for the provision of additional services to program beneficiaries in a manner equitable to directly served1 contracted1 and compacted programs4 7#b7 ,discretionary programs of special significance ,for any savings generated as a result of the assumption of a program by an ,indian tribe under section #djc7;c71 such savings shall be made available to that ,indian tribe4 7g7 ,trust responsibility ,the ,secretary may not waive1 modify1 or diminish in any way the trust responsibility of the ,united ,states with respect to ,indian tribes and individual ,indians that exists under treaties1 ,executive orders1 other laws1 or court decisions4 7h7 ,decisionmaker ,a decision that constitutes final agency action and relates to an appeal within the ,department conducted under subsection 7c77#d7 may be made by-- 7#a7 an official of the ,department who holds a position at a higher organizational level within the ,department than the level of the departmental agency in which the decision that is the subject of the appeal was made2 or 7#b7 an administrative law judge4 7i7 ,rules of construction ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad1 each provision of this title and each provision of a compact or funding agreement shall be liberally construed for the benefit of the ,indian tribe participating in self-governance1 and any ambiguity shall be resolved in favor of the ,indian tribe4 #djg4 ,construction programs and projects 7a7 ,in general ,indian tribes participating in tribal self-governance may carry out construction projects under this title4 7b7 ,tribal option ,to carry out certain federal environmental activities ,in carrying out a construction project under this title1 an ,indian tribe may1 subject to the agreement of the ,secretary1 elect to assume some ,federal responsibilities under the ,national ,environmental ,policy ,act of #aifi 7#db ,u4,s4,c4 #dcba et seq471 the ,national ,historic ,preservation ,act 7#af ,u4,s4,c4 #dgj et seq471 and related provisions of law and regulations that would apply if the ,secretary were to undertake a construction project1 by adopting a resolution-- 7#a7 designating a certifying tribal officer to represent the ,indian tribe and to assume the status of a responsible ,federal official under those ,acts or regulations2 and 7#b7 accepting the jurisdiction of the ,united ,states courts for the purpose of enforcing the responsibilities of the certifying tribal officer assuming the status of a responsible ,federal official under those ,acts or regulations4 7c7 ,savings clause ,notwithstanding subsection 7b71 nothing in this section authorizes the ,secretary to include in any compact or funding agreement duties of the ,secretary under the ,national ,environmental ,policy ,act 7#db ,u4,s4,c4 #dcba et seq471 the ,national ,historic ,preservation ,act 7#af ,u4,s4,c4 #dgj et seq471 and other related provisions of law that are inherent ,federal functions4 7d7 ,codes and standards ,in carrying out a construction project under this title1 an ,indian tribe shall-- 7#a7 adhere to applicable ,federal1 ,state1 local1 and tribal building codes1 architectural and engineering standards1 and applicable ,federal guidelines regarding design1 space1 and operational standards1 appropriate for the particular project2 and 7#b7 use only architects and engineers who-- 7,a7 are licensed to practice in the ,state in which the facility will be built2 and 7,b7 certify that-- 7i7 they are qualified to perform the work required by the specific construction involved2 and 7ii7 upon completion of design1 the plans and specifications meet or exceed the applicable construction and safety codes4 7e7 ,tribal accountability 7#a7 ,in general ,in carrying out a construction project under this title1 an ,indian tribe shall assume responsibility for the successful completion of the construction project and of a facility that is usable for the purpose for which the ,indian tribe received funding4 7#b7 ,requirements ,for each construction project carried out by an ,indian tribe under this title1 the ,indian tribe and the ,secretary shall negotiate a provision to be included in the funding agreement that identifies-- 7,a7 the approximate start and completion dates for the project1 which may extend over a period of one or more years2 7,b7 a general description of the project1 including the scope of work1 references to design criteria1 and other terms and conditions2 7,c7 the responsibilities of the ,indian tribe and the ,secretary for the project2 7,d7 how project-related environmental considerations will be addressed2 7,e7 the amount of funds provided for the project2 7,f7 the obligations of the ,indian tribe to comply with the codes referenced in subsection 7d77#a7 and applicable ,federal laws and regulations2 7,g7 the agreement of the parties over who will bear any additional costs necessary to meet changes in scope1 or errors or omissions in design and construction2 and 7,h7 the agreement of the ,secretary to issue a certificate of occupancy1 if requested by the ,indian tribe1 based upon the review and verification by the ,secretary1 to the satisfaction of the ,secretary1 that the ,indian tribe has secured upon completion the review and approval of the plans and specifications1 sufficiency of design1 life safety1 and code compliance by qualified1 licensed1 and independent architects and engineers4 7f7 ,funding 7#a7 ,in general ,funding appropriated for construction projects carried out under this title shall be included in funding agreements as annual or semiannual advance payments at the option of the ,indian tribe4 7#b7 ,advance payments ,the ,secretary shall include all associated project contingency funds with each advance payment1 and the ,indian tribe shall be responsible for the management of such contingency funds4 7g7 ,negotiations ,at the option of the ,indian tribe1 construction project funding proposals shall be negotiated pursuant to the statutory process in section #aje1 and any resulting construction project agreement shall be incorporated into the funding agreement as addenda4 7h7 ,federal review and verification 7#a7 ,in general ,on a schedule negotiated by the ,secretary and the ,indian tribe-- 7,a7 the ,secretary shall review and verify1 to the satisfaction of the ,secretary1 that project planning and design documents prepared by the ,indian tribe in advance of initial construction are in conformity with the obligations of the ,indian tribe under subsection 7d72 and 7,b7 before the project planning and design documents are implemented1 the ,secretary shall review and verify to the satisfaction of the ,secretary that subsequent document amendments which result in a significant change in construction are in conformity with the obligations of the ,indian tribe under subsection 7d74 7#b7 ,reports ,the ,indian tribe shall provide the ,secretary with project progress and financial reports not less than semiannually4 7#c7 ,oversight visits ,the ,secretary may conduct onsite project oversight visits semiannually or on an alternate schedule agreed to by the ,secretary and the ,indian tribe4 7i7 ,application of other laws ,unless otherwise agreed to by the ,indian tribe and except as otherwise provided in this ,act1 no provision of the ,office of ,federal ,procurement ,policy ,act 7#da ,u4,s4,c4 #dja et seq471 the ,federal ,acquisition ,regulations issued pursuant to that ,act1 or any other law or regulation pertaining to ,federal procurement 7including ,executive orders7 shall apply to any construction program or project carried out under this title4 7j7 ,future funding ,upon completion of a facility constructed under this title1 the ,secretary shall include the facility among those eligible for annual operation and maintenance funding support comparable to that provided for similar facilities funded by the ,department as annual appropriations are available and to the extent that the facility size and complexity and other factors do not exceed the funding formula criteria for comparable buildings4 7k7 ,applicability ,notwithstanding any other provision of this section1 section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad applies to subsections 7a7 through 7j74 #djh4 ,payment 7a7 ,in general ,at the request of the governing body of an ,indian tribe and under the terms of an applicable funding agreement1 the ,secretary shall provide funding to the ,indian tribe to carry out the funding agreement4 7b7 ,advance annual payment ,at the option of the ,indian tribe1 a funding agreement shall provide for an advance annual payment to an ,indian tribe4 7c7 ,amount 7#a7 ,in general ,subject to subsection 7e7 and sections #djc and #dje1 the ,secretary shall provide funds to the ,indian tribe under a funding agreement for programs in an amount that is equal to the amount that the ,indian tribe would have been entitled to receive under contracts and grants under this ,act 7including amounts for direct program and contract support costs and1 in addition1 any funds that are specifically or functionally related to the provision by the ,secretary of services and benefits to the ,indian tribe or its members7 without regard to the organization level within the ,department at which the programs are carried out4 7#b7 ,savings clause ,nothing in this section reduces programs1 services1 or funds of1 or provided to1 another ,indian tribe4 7d7 ,timing 7#a7 ,in general ,pursuant to the terms of any compact or funding agreement entered into under this title1 the ,secretary shall transfer to the ,indian tribe all funds provided for in the funding agreement1 pursuant to subsection 7c71 and provide funding for periods covered by joint resolution adopted by ,congress making continuing appropriations1 to the extent permitted by such resolution4 7#b7 ,transfers ,not later than #a year after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad1 in any instance in which a funding agreement requires an annual transfer of funding to be made at the beginning of a fiscal year or requires semiannual or other periodic transfers of funding to be made commencing at the beginning of a fiscal year1 the first such transfer shall be made not later than #aj days after the apportionment of such funds by the ,office of ,management and ,budget to the ,department1 unless the funding agreement provides otherwise4 7e7 ,availability ,funds for trust services to individual ,indians shall be available under a funding agreement only to the extent that the same services that would have been provided by the ,secretary are provided to individual ,indians by the ,indian tribe4 7f7 ,multiyear funding ,a funding agreement may provide for multiyear funding4 7g7 ,limitations on authority of the secretary ,the ,secretary shall not-- 7#a7 fail to transfer to an ,indian tribe its full share of any central1 headquarters1 regional1 area1 or service unit office or other funds due under this title for programs eligible under paragraph 7#a7 or 7#b7 of section #djc7;b71 except as required by ,federal law2 7#b7 withhold any portion of such funds for transfer over a period of years2 or 7#c7 reduce the amount of funds required under this title-- 7,a7 to make funding available for self-governance monitoring or administration by the ,secretary2 7,b7 in subsequent years1 except as necessary as a result of-- 7i7 a reduction in appropriations from the previous fiscal year for the program to be included in a compact or funding agreement2 7ii7 a congressional directive in legislation or an accompanying report2 7iii7 a tribal authorization2 7iv7 a change in the amount of pass-through funds subject to the terms of the funding agreement2 or 7v7 completion of an activity under a program for which the funds were provided2 7,c7 to pay for ,federal functions1 including-- 7i7 ,federal pay costs2 7ii7 ,federal employee retirement benefits2 7iii7 automated data processing2 7iv7 technical assistance2 and 7v7 monitoring of activities under this title2 or 7,d7 to pay for costs of ,federal personnel displaced by self-determination contracts under this ,act or self-governance under this title4 7h7 ,federal resources ,if an ,indian tribe elects to carry out a compact or funding agreement with the use of ,federal personnel1 ,federal supplies 7including supplies available from ,federal warehouse facilities71 ,federal supply sources 7including lodging1 airline transportation1 and other means of transportation1 including the use of interagency motor pool vehicles71 or other ,federal resources 7including supplies1 services1 and resources available to the ,secretary under any procurement contracts in which the ,department is eligible to participate71 the ,secretary shall1 as soon as practicable1 acquire and transfer such personnel1 supplies1 or resources to the ,indian tribe under this title4 7i7 ,prompt payment act ,chapter #ci of title #ca1 ,united ,states ,code1 shall apply to the transfer of funds due under a compact or funding agreement authorized under this title4 7j7 ,interest or other income 7#a7 ,in general ,an ,indian tribe may retain interest or income earned on any funds paid under a compact or funding agreement to carry out governmental purposes4 7#b7 ,no effect on other amounts ,the retention of interest or income under paragraph 7#a7 shall not diminish the amount of funds an ,indian tribe is entitled to receive under a funding agreement in the year the interest or income is earned or in any subsequent fiscal year4 7#c7 ,investment standard ,funds transferred under this title shall be managed by the ,indian tribe using the prudent investment standard1 provided that the ,secretary shall not be liable for any investment losses of funds managed by the ,indian tribe that are not otherwise guaranteed or insured by the ,federal ,government4 7k7 ,carryover of funds 7#a7 ,in general ,notwithstanding any provision of an appropriations ,act1 all funds paid to an ,indian tribe in accordance with a compact or funding agreement shall remain available until expended4 7#b7 ,effect of carryover ,if an ,indian tribe elects to carry over funding from #a year to the next1 the carryover shall not diminish the amount of funds the ,indian tribe is entitled to receive under a funding agreement in that fiscal year or any subsequent fiscal year4 7l7 ,limitation of costs 7#a7 ,in general ,an ,indian tribe shall not be obligated to continue performance that requires an expenditure of funds in excess of the amount of funds transferred under a compact or funding agreement4 7#b7 ,notice of insufficiency ,if at any time the ,indian tribe has reason to believe that the total amount provided for a specific activity under a compact or funding agreement is insufficient1 the ,indian tribe shall provide reasonable notice of such insufficiency to the ,secretary4 7#c7 ,suspension of performance ,if1 after notice under paragraph 7#b71 the ,secretary does not increase the amount of funds transferred under the funding agreement1 the ,indian tribe may suspend performance of the activity until such time as additional funds are transferred4 7#d7 ,savings clause ,nothing in this section reduces any programs1 services1 or funds of1 or provided to1 another ,indian tribe4 7m7 ,distribution of funds ,the ,office of ,self-,governance shall be responsible for distribution of all ,bureau of ,indian ,affairs funds provided under this title unless otherwise agreed by the parties to an applicable funding agreement4 7n7 ,applicability ,notwithstanding any other provision of this section1 section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad applies to subsections 7a7 through 7m74 #dji4 ,facilitation 7a7 ,in general ,except as otherwise provided by law 7including section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad71 the ,secretary shall interpret each ,federal law and regulation in a manner that facilitates-- 7#a7 the inclusion of programs in funding agreements2 and 7#b7 the implementation of funding agreements4 7b7 ,regulation waiver 7#a7 ,request ,an ,indian tribe may submit to the ,secretary a written request for a waiver of applicability of a ,federal regulation1 including-- 7,a7 an identification of the specific text in the regulation sought to be waived2 and 7,b7 the basis for the request4 7#b7 ,determination by the secretary ,not later than #abj days after receipt by the ,secretary and the designated officials under paragraph 7#d7 of a request under paragraph 7#a71 the ,secretary shall approve or deny the requested waiver in writing to the ,indian tribe4 7#c7 ,extensions ,the deadline described in paragraph 7#b7 may be extended for any length of time1 as agreed upon by both the ,indian tribe and the ,secretary4 7#d7 ,designated officials ,the ,secretary shall designate one or more appropriate officials in the ,department to receive a copy of the waiver request described in paragraph 7#a74 7#e7 ,grounds for denial ,the ,secretary may deny a request under paragraph 7#a7-- 7,a7 for a program eligible under paragraph 7#a7 or 7#b7 of section #djc7;b71 only upon a specific finding by the ,secretary that the identified text in the regulation may not be waived because such a waiver is prohibited by ,federal law2 and 7,b7 for a program eligible under section #djc7;c71 upon a specific finding by the ,secretary that the waiver is prohibited by ,federal law or is inconsistent with the express provisions of the funding agreement4 7#f7 ,failure to make determination ,if the ,secretary fails to approve or deny a waiver request within the period required under paragraph 7#b71 the ,secretary shall be deemed to have approved the request4 7#g7 ,finality ,a decision of the ,secretary under this section shall be final for the ,department4 #daj4 ,disclaimers ,nothing in this title expands or alters any statutory authority of the ,secretary in a manner that authorizes the ,secretary to enter into any agreement under section #djc-- 7#a7 with respect to an inherent ,federal function2 7#b7 in a case in which the law establishing a program explicitly prohibits the type of participation sought by the ,indian tribe 7without regard to whether one or more ,indian tribes are identified in the authorizing law72 or 7#c7 that limits or reduces in any way the services1 contracts1 or funds that any other ,indian tribe or tribal organization is eligible to receive under section #ajb or any other applicable ,federal law4 #daa4 ,discretionary application of other sections 7a7 ,in general ,except as otherwise provided in section #aja7;c71 at the option of a participating ,indian tribe or ,indian tribes1 any of the provisions of title ,i may be incorporated in any compact or funding agreement under this title4 7b7 ,effect ,each incorporated provision under subsection 7a7 shall-- 7#a7 have the same force and effect as if set out in full in this title2 7#b7 supplement or replace any related provision in this title2 and 7#c7 apply to any agency otherwise governed by this title4 7c7 ,effective date ,if an ,indian tribe requests incorporation at the negotiation stage of a compact or funding agreement1 the incorporation shall-- 7#a7 be effective immediately2 and 7#b7 control the negotiation and resulting compact and funding agreement4 #dab4 ,annual ,budget list ,the ,secretary shall list1 in the annual budget request submitted to ,congress under section #aaje of title #ca1 ,united ,states ,code1 any funds proposed to be included in funding agreements authorized under this ,act4 #dac4 ,reports 7a7 ,in general 7#a7 ,requirement ,on ,january #a of each year1 the ,secretary shall submit to ,congress a report regarding the administration of this title4 7#b7 ,analysis ,any ,indian tribe may submit to the ,office of ,self-,governance and to the appropriate ,committees of ,congress a detailed annual analysis of unmet tribal needs for funding agreements under this title4 7b7 ,contents ,the report under subsection 7a77#a7 shall-- 7#a7 be compiled from information contained in funding agreements1 annual audit reports1 and data of the ,secretary regarding the disposition of ,federal funds2 7#b7 identify-- 7,a7 the relative costs and benefits of self-governance2 7,b7 with particularity1 all funds that are specifically or functionally related to the provision by the ,secretary of services and benefits to self-governance ,indian tribes and members of ,indian tribes2 7,c7 the funds transferred to each ,indian tribe and the corresponding reduction in the ,federal employees and workload2 and 7,d7 the funding formula for individual tribal shares of all ,central ,office funds1 together with the comments of affected ,indian tribes1 developed under subsection 7d72 7#c7 before being submitted to ,congress1 be distributed to the ,indian tribes for comment 7with a comment period of no less than #cj days72 7#d7 include the separate views and comments of each ,indian tribe or tribal organization2 and 7#e7 include a list of-- 7,a7 all such programs that the ,secretary determines1 in consultation with ,indian tribes participating in self-governance1 are eligible for negotiation to be included in a funding agreement at the request of a participating ,indian tribe2 and 7,b7 all such programs which ,indian tribes have formally requested to include in a funding agreement under section #djc7;c7 due to the special geographic1 historical1 or cultural significance of the program to the ,indian tribe1 indicating whether each request was granted or denied1 and stating the grounds for any denial4 7c7 ,report on non-,,bia1 non-,,ost programs 7#a7 ,in general ,in order to optimize opportunities for including non-,bureau of ,indian ,affairs and non-,office of ,special ,trustee programs in agreements with ,indian tribes participating in self-governance under this title1 the ,secretary shall review all programs administered by the ,department1 other than through the ,bureau of ,indian ,affairs or ,office of the ,special ,trustee1 without regard to the agency or office concerned4 7#b7 ,programmatic targets ,the ,secretary shall establish programmatic targets1 after consultation with ,indian tribes participating in self-governance1 to encourage bureaus of the ,department to ensure that an appropriate portion of those programs are available to be included in funding agreements4 7#c7 ,publication ,the lists under subsection 7b77#e7 and targets under paragraph 7#b7 shall be published in the ,federal ,register and made available to any ,indian tribe participating in self-governance4 7#d7 ,annual review 7,a7 ,in general ,the ,secretary shall annually review and publish in the ,federal ,register1 after consultation with ,indian tribes participating in self-governance1 revised lists and programmatic targets4 7,b7 ,contents ,in preparing the revised lists and programmatic targets1 the ,secretary shall consider all programs that were eligible for contracting in the original list published in the ,federal ,register in #aiie1 except for programs specifically determined not to be contractible as a matter of law4 7d7 ,report on central office funds ,not later than ,january #a1 #bjae1 the ,secretary shall1 in consultation with ,indian tribes1 develop a funding formula to determine the individual tribal share of funds controlled by the ,central ,office of the ,bureau of ,indian ,affairs and the ,office of the ,special ,trustee for inclusion in the compacts4 #dad4 ,regulations 7a7 ,in general 7#a7 ,promulgation ,not later than #ij days after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad1 the ,secretary shall initiate procedures under subchapter ,,iii of chapter #e of title #e1 ,united ,states ,code1 to negotiate and promulgate such regulations as are necessary to carry out this title4 7#b7 ,publication of proposed regulations ,proposed regulations to implement this title shall be published in the ,federal ,register not later than #ba months after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad4 7#c7 ,expiration of authority ,the authority to promulgate regulations under paragraph 7#a7 shall expire on the date that is #cj months after the date of enactment of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad4 7b7 ,committee 7#a7 ,membership ,a negotiated rulemaking committee established pursuant to section #efe of title #e1 ,united ,states ,code1 to carry out this section shall have as its members only representatives of the ,federal ,government and tribal government4 7#b7 ,lead agency ,among the ,federal representatives described in paragraph 7#a71 the ,office of ,self-,governance shall be the lead agency for the ,department4 7c7 ,adaptation of procedures ,the ,secretary shall adapt the negotiated rulemaking procedures to the unique context of self-governance and the government-to-government relationship between the ,united ,states and ,indian tribes4 7d7 ,effect 7#a7 ,repeal ,the ,secretary may repeal any regulation that is inconsistent with this ,act4 7#b7 ,conflicting provisions ,subject to section #bjb of the ,department of the ,interior ,tribal ,self-,governance ,act of #bjad1 this title shall supersede any conflicting provision of law 7including any conflicting regulations74 7#c7 ,effectiveness without regard to regulations ,the lack of promulgated regulations on an issue shall not limit the effect or implementation of this title4 #dae4 ,effect of circulars1 policies1 manuals1 guidance1 and rules ,unless expressly agreed to by a participating ,indian tribe in a compact or funding agreement1 the participating ,indian tribe shall not be subject to any agency circular1 policy1 manual1 guidance1 or rule adopted by the ,department1 except for-- 7#a7 the eligibility provisions of section #aje7;g72 and 7#b7 regulations promulgated pursuant to section #dad4 #daf4 ,appeals ,except as provided in section #djf7;d71 in any administrative action1 appeal1 or civil action for judicial review of any decision made by the ,secretary under this title1 the ,secretary shall have the burden of proof of demonstrating by a preponderance of the evidence-- 7#a7 the validity of the grounds for the decision2 and 7#b7 the consistency of the decision with the requirements and policies of this title4 #dag4 ,application of other provisions ,section #cad of the ,department of the ,interior and ,related ,agencies ,appropriations ,act1 #aiia 7,public ,law #aja-eab2 #ajd ,stat4 #aiei71 shall apply to compacts and funding agreements entered into under this title4 #dah4 ,authorization of appropriations ,there are authorized to be appropriated such sums as are necessary to carry out this title4 4 #bjb4 ,effect of certain provisions 7a7 ,definitions ,in this section3 7#a7 ,funding agreement ,the term funding agreement means a funding agreement entered into under section #djc of the ,,isdeaa 7#be ,u4,s4,c4 #deh;cc74 7#b7 ,,isdeaa ,the term ,,isdeaa means the ,indian ,self-,determination and ,education ,assistance ,act 7#be ,u4,s4,c4 #dej et seq474 7#c7 ,non-,,bia program ,the term non-,,bia program means all or a portion of a program1 function1 service1 or activity that is administered by any bureau1 service1 office1 or agency of the ,department of the ,interior other than through-- 7,a7 the ,bureau of ,indian ,affairs2 7,b7 the ,office of the ,assistant ,secretary for ,indian ,affairs2 or 7,c7 the ,office of the ,special ,trustee for ,american ,indians4 7#d7 ,secretary ,the term ,secretary means the ,secretary of the ,interior4 7#e7 ,self-determination contract ,the term self-determination contract means a self-determination contract entered into under section #ajb of the ,,isdeaa 7#be ,u4,s4,c4 #dej;f74 7#f7 ,tribal water rights settlement ,the term tribal water rights settlement means any settlement1 compact1 or other agreement expressly ratified or approved by an ,act of ,congress that-- 7,a7 includes an ,indian tribe and the ,united ,states as parties2 and 7,b7 quantifies or otherwise defines any water right of the ,indian tribe4 7b7 ,effect of provisions ,nothing in this ,act-- 7#a7 modifies1 limits1 expands1 or otherwise affects-- 7,a7 the authority of the ,secretary1 as provided for under the ,,isdeaa on the day before the date of enactment of this ,act1 to include any non-,,bia program in a self-determination contract under section #ajb7;a77#a77;,e7 of the ,,isdeaa 7#be ,u4,s4,c4 #dej;f7a77#a77;,e77 or a funding agreement under section #djc7;b77#b7 or #djc7;c7 of the ,,isdeaa 7#be ,u4,s4,c4 #deh;cc7b77#b71 #deh;cc7c772 or 7,b7 the implementation of any contract or agreement described in subparagraph 7,a7 that is in effect on the day before the date of enactment of this ,act2 7#b7 modifies or otherwise affects the meaning1 application1 or effect of any provision of law that-- 7,a7 is not contained in the ,,isdeaa2 and 7,b7 expressly authorizes or prohibits contracting or compacting under title ,i or title ,,iv of the ,,isdeaa with respect to a specific program or project that is identified or otherwise referred to in that provision of law2 7#c7 modifies or otherwise affects the meaning1 application1 or effect of1 or the performance required of a party to1 or any payment or funding under a tribal water rights settlement2 or 7#d7 authorizes any self-determination contract or funding agreement that contains one or more provisions that are inconsistent with the terms of a tribal water rights settlement4 ,august #bf1 #bjad,reported with an amendment