H. R. 1167—8
are in place to address conflicts of interest in the administration
of self-governance programs, services, functions, or activities (or
portions thereof ).
‘‘(c) AUDITS.—
‘‘(1) SINGLE AGENCY AUDIT ACT.—The provisions of chapter
75 of title 31, United States Code, requiring a single agency
audit report shall apply to funding agreements under this title.
‘‘(2) COST PRINCIPLES.—An Indian tribe shall apply cost
principles under the applicable Office of Management and
Budget circular, except as modified by section 106 other provi-
sions of law, or by any exemptions to applicable Office of
Management and Budget circulars subsequently granted by
the Office of Management and Budget. No other audit or
accounting standards shall be required by the Secretary. Any
claim by the Federal Government against the Indian tribe
relating to funds received under a funding agreement based
on any audit under this subsection shall be subject to the
provisions of section 106(f ).
‘‘(d) RECORDS.—
‘‘(1) IN GENERAL.—Unless an Indian tribe specifies other-
wise in the compact or funding agreement, records of the Indian
tribe shall not be considered Federal records for purposes of
chapter 5 of title 5, United States Code.
‘‘(2) RECORDKEEPING SYSTEM.—The Indian tribe shall main-
tain a recordkeeping system, and, after 30 days advance notice,
provide the Secretary with reasonable access to such records
to enable the Department of Health and Human Services to
meet its minimum legal recordkeeping system requirements
under sections 3101 through 3106 of title 44, United States
Code.
‘‘(e) REDESIGN
AND CONSOLIDATION.—An Indian tribe may
redesign or consolidate programs, services, functions, and activities
(or portions thereof ) included in a funding agreement under section
505 and reallocate or redirect funds for such programs, services,
functions, and activities (or portions thereof ) in any manner which
the Indian tribe deems to be in the best interest of the health
and welfare of the Indian community being served, only if the
redesign or consolidation does not have the effect of denying eligi-
bility for services to population groups otherwise eligible to be
served under applicable Federal law.
‘‘(f ) RETROCESSION.—An Indian tribe may retrocede, fully or
partially, to the Secretary programs, services, functions, or activities
(or portions thereof ) included in the compact or funding agreement.
Unless the Indian tribe rescinds the request for retrocession, such
retrocession will become effective within the timeframe specified
by the parties in the compact or funding agreement. In the absence
of such a specification, such retrocession shall become effective
on—
‘‘(1) the earlier of—
‘‘(A) 1 year after the date of submission of such request;
or
‘‘(B) the date on which the funding agreement expires;
or
‘‘(2) such date as may be mutually agreed upon by the
Secretary and the Indian tribe.
‘‘(g) WITHDRAWAL.—
‘‘(1) PROCESS.—
H. R. 1167—9
‘‘(A) IN GENERAL.—An Indian tribe may fully or par-
tially withdraw from a participating inter-tribal consortium
or tribal organization its share of any program, function,
service, or activity (or portions thereof ) included in a com-
pact or funding agreement.
‘‘(B) EFFECTIVE DATE.—The withdrawal referred to in
subparagraph (A) shall become effective within the time-
frame specified in the resolution which authorizes transfer
to the participating tribal organization or inter-tribal
consortium. In the absence of a specific timeframe set
forth in the resolution, such withdrawal shall become effec-
tive on—
‘‘(i) the earlier of—
‘‘(I) 1 year after the date of submission of
such request; or
‘‘(II) the date on which the funding agreement
expires; or
‘‘(ii) such date as may be mutually agreed upon
by the Secretary, the withdrawing Indian tribe, and
the participating tribal organization or inter-tribal
consortium that has signed the compact or funding
agreement on behalf of the withdrawing Indian tribe,
inter-tribal consortium, or tribal organization.
‘‘(2) DISTRIBUTION OF FUNDS.—When 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 inter-
tribal consortium or tribal organization—
‘‘(A) the withdrawing Indian tribe or tribal organization
shall be entitled to its tribal share of funds supporting
those programs, services, functions, or activities (or portions
thereof ) that the Indian tribe will be carrying out under
its own self-determination contract or compact and funding
agreement (calculated on the same basis as the funds were
initially allocated in the funding agreement of the inter-
tribal consortium or tribal organization); and
‘‘(B) the funds referred to in subparagraph (A) shall
be transferred from the funding agreement of the inter-
tribal consortium or tribal organization, on the condition
that the provisions of sections 102 and 105(i), as appro-
priate, shall apply to that withdrawing Indian tribe.
‘‘(3) REGAINING MATURE CONTRACT STATUS.—If an Indian
tribe elects to operate all or some programs, services, functions,
or activities (or portions thereof ) carried out under a compact
or funding agreement under this title through a self-determina-
tion contract under title I, at the option of the Indian tribe,
the resulting self-determination contract shall be a mature
self-determination contract.
‘‘(h) NONDUPLICATION.—For the period for which, and to the
extent to which, funding is provided under this title or under
the compact or funding agreement, the Indian tribe shall not be
entitled to contract with the Secretary for such funds under section
102, except that such Indian tribe shall be eligible for new programs
on the same basis as other Indian tribes.
‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.
‘‘(a) MANDATORY PROVISIONS.—
H. R. 1167—10
‘‘(1) HEALTH STATUS REPORTS.—Compacts or funding agree-
ments negotiated between the Secretary and an Indian tribe
shall include a provision that requires the Indian tribe to
report on health status and service delivery—
‘‘(A) to the extent such data is not otherwise available
to the Secretary and specific funds for this purpose are
provided by the Secretary under the funding agreement;
and
‘‘(B) if such reporting shall impose minimal burdens
on the participating Indian tribe and such requirements
are promulgated under section 517.
‘‘(2) REASSUMPTION.—
‘‘(A) IN GENERAL.—Compacts or funding agreements
negotiated between the Secretary and an Indian tribe shall
include a provision authorizing the Secretary to reassume
operation of a program, service, function, or activity (or
portions thereof ) and associated funding if there is a spe-
cific finding relative to that program, service, function,
or activity (or portion thereof ) of—
‘‘(i) imminent endangerment of the public health
caused by an act or omission of the Indian tribe, and
the imminent endangerment arises out of a failure
to carry out the compact or funding agreement; or
‘‘(ii) gross mismanagement with respect to funds
transferred to a tribe by a compact or funding agree-
ment, as determined by the Secretary in consultation
with the Inspector General, as appropriate.
‘‘(B) PROHIBITION.—The Secretary shall not reassume
operation of a program, service, function, or activity (or
portions thereof ) unless—
‘‘(i) the Secretary has first provided written notice
and a hearing on the record to the Indian tribe; and
‘‘(ii) the Indian tribe has not taken corrective action
to remedy the imminent endangerment to public health
or gross mismanagement.
‘‘(C) EXCEPTION.—
‘‘(i) IN GENERAL.—Notwithstanding subparagraph
(B), the Secretary may, upon written notification to
the Indian tribe, immediately reassume operation of
a program, service, function, or activity (or portion
thereof ) if—
‘‘(I) the Secretary makes a finding of imminent
substantial and irreparable endangerment of the
public health caused by an act or omission of the
Indian tribe; and
‘‘(II) the endangerment arises out of a failure
to carry out the compact or funding agreement.
‘‘(ii) REASSUMPTION.—If the Secretary reassumes
operation of a program, service, function, or activity
(or portion thereof ) under this subparagraph, the Sec-
retary shall provide the Indian tribe with a hearing
on the record not later than 10 days after such re-
assumption.
‘‘(D) HEARINGS.—In any hearing or appeal involving
a decision to reassume operation of a program, service,
function, or activity (or portion thereof ), the Secretary shall
have the burden of proof of demonstrating by clear and
H. R. 1167—11
convincing evidence the validity of the grounds for the
reassumption.
‘‘(b) FINAL OFFER.—In the event the Secretary and a partici-
pating Indian tribe are unable to agree, in whole or in part, on
the terms of a compact or funding agreement (including funding
levels), the Indian tribe may submit a final offer to the Secretary.
Not more than 45 days after such submission, or within a longer
time agreed upon by the Indian tribe, the Secretary shall review
and make a determination with respect to such offer. In the absence
of a timely rejection of the offer, in whole or in part, made in
compliance with subsection (c), the offer shall be deemed agreed
to by the Secretary.
‘‘(c) REJECTION OF FINAL OFFERS.—
‘‘(1) IN GENERAL.—If the Secretary rejects an offer made
under subsection (b) (or one or more provisions or funding
levels in such offer), the Secretary shall provide—
‘‘(A) a timely written notification to the Indian tribe
that contains a specific finding that clearly demonstrates,
or that is supported by a controlling legal authority, that—
‘‘(i) the amount of funds proposed in the final
offer exceeds the applicable funding level to which
the Indian tribe is entitled under this title;
‘‘(ii) the program, function, service, or activity (or
portion thereof ) that is the subject of the final offer
is an inherent Federal function that cannot legally
be delegated to an Indian tribe;
‘‘(iii) the Indian tribe cannot carry out the program,
function, service, or activity (or portion thereof ) in
a manner that would not result in significant danger
or risk to the public health; or
‘‘(iv) the Indian tribe is not eligible to participate
in self-governance under section 503;
‘‘(B) technical assistance to overcome the objections
stated in the notification required by subparagraph (A);
‘‘(C) the Indian tribe with a hearing on the record
with the right to engage in full discovery relevant to any
issue raised in the matter and the opportunity for appeal
on the objections raised, except that the Indian tribe may,
in lieu of filing such appeal, directly proceed to initiate
an action in a Federal district court pursuant to section
110(a); and
‘‘(D) the Indian tribe with the option of entering into
the severable portions of a final proposed compact or
funding agreement, or provision thereof, (including a lesser
funding amount, if any), that the Secretary did not reject,
subject to any additional alterations necessary to conform
the compact or funding agreement to the severed provi-
sions.
‘‘(2) EFFECT OF EXERCISING CERTAIN OPTION.—If an Indian
tribe exercises the option specified in paragraph (1)(D), that
Indian tribe shall retain the right to appeal the Secretary’s
rejection under this section, and subparagraphs (A), (B), and
(C) of that paragraph shall only apply to that portion of the
proposed final compact, funding agreement, or provision thereof
that was rejected by the Secretary.
‘‘(d) BURDEN OF PROOF.—With respect to any hearing or appeal
or civil action conducted pursuant to this section, the Secretary
H. R. 1167—12
shall have the burden of demonstrating by clear and convincing
evidence the validity of the grounds for rejecting the offer (or
a provision thereof ) made under subsection (b).
‘‘(e) GOOD FAITH.—In the negotiation of compacts and funding
agreements the Secretary shall at all times negotiate in good faith
to maximize implementation of the self-governance policy. The Sec-
retary shall carry out this title in a manner that maximizes the
policy of tribal self-governance, in a manner consistent with the
purposes specified in section 3 of the Tribal Self-Governance Amend-
ments of 2000.
‘‘(f ) SAVINGS.—To the extent that programs, functions, services,
or activities (or portions thereof ) carried out by Indian tribes 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
508(c), the Secretary shall make such savings available to the
Indian tribes, inter-tribal consortia, or tribal organizations for the
provision of additional services to program beneficiaries in a manner
equitable to directly served, contracted, and compacted programs.
‘‘(g) TRUST RESPONSIBILITY.—The Secretary is prohibited from
waiving, modifying, or diminishing in any way the trust responsi-
bility of the United States with respect to Indian tribes and indi-
vidual Indians that exists under treaties, Executive orders, other
laws, or court decisions.
‘‘(h) DECISIONMAKER.—A decision that constitutes final agency
action and relates to an appeal within the Department of Health
and Human Services conducted under subsection (c) shall be made
either—
‘‘(1) by 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 made; or
‘‘(2) by an administrative judge.
‘‘SEC. 508. TRANSFER OF FUNDS.
‘‘(a) IN GENERAL.—Pursuant to the terms of any compact or
funding agreement entered into under this title, the Secretary shall
transfer to the Indian tribe all funds provided for in the funding
agreement, pursuant to subsection (c), and provide funding for
periods covered by joint resolution adopted by Congress making
continuing appropriations, to the extent permitted by such resolu-
tions. In any instance where 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 year, the
first such transfer shall be made not later than 10 days after
the apportionment of such funds by the Office of Management
and Budget to the Department, unless the funding agreement pro-
vides otherwise.
‘‘(b) MULTIYEAR FUNDING.—The Secretary is authorized to
employ, upon tribal request, multiyear funding agreements. Ref-
erences in this title to funding agreements shall include such
multiyear funding agreements.
‘‘(c) AMOUNT OF FUNDING.—The Secretary shall provide funds
under a funding agreement under this title in an amount equal
to the amount that the Indian tribe would have been entitled
H. R. 1167—13
to receive under self-determination contracts under this Act,
including amounts for direct program costs specified under section
106(a)(1) and amounts for contract support costs specified under
section 106(a) (2), (3), (5), and (6), including any funds that are
specifically or functionally related to the provision by the Secretary
of services and benefits to the Indian tribe or its members, all
without regard to the organizational level within the Department
where such functions are carried out.
‘‘(d) PROHIBITIONS.—
‘‘(1) IN GENERAL.—Except as provided in paragraph (2),
the Secretary is expressly prohibited from—
‘‘(A) failing or refusing to transfer to an Indian tribe
its full share of any central, headquarters, regional, area,
or service unit office or other funds due under this Act,
except as required by Federal law;
‘‘(B) withholding portions of such funds for transfer
over a period of years; and
‘‘(C) reducing the amount of funds required under this
Act—
‘‘(i) to make funding available for self-governance
monitoring or administration by the Secretary;
‘‘(ii) in subsequent years, except pursuant to—
‘‘(I) a reduction in appropriations from the pre-
vious fiscal year for the program or function to
be included in a compact or funding agreement;
‘‘(II) a congressional directive in legislation or
accompanying report;
‘‘(III) a tribal authorization;
‘‘(IV) a change in the amount of pass-through
funds subject to the terms of the funding agree-
ment; or
‘‘(V) completion of a project, activity, or pro-
gram for which such funds were provided;
‘‘(iii) to pay for Federal functions, including Federal
pay costs, Federal employee retirement benefits, auto-
mated data processing, technical assistance, and moni-
toring of activities under this Act; or
‘‘(iv) to pay for costs of Federal personnel displaced
by self-determination contracts under this Act or self-
governance;
‘‘(2) EXCEPTION.—The funds described in paragraph (1)(C)
may be increased by the Secretary if necessary to carry out
this Act or as provided in section 105(c)(2).
‘‘(e) OTHER RESOURCES.—In the event an Indian tribe elects
to carry out a compact or funding agreement with the use of
Federal personnel, Federal supplies (including supplies available
from 
Federal 
warehouse 
facilities), 
Federal 
supply 
sources
(including lodging, airline transportation, and other means of
transportation including the use of interagency motor pool vehicles)
or other Federal resources (including supplies, services, and
resources available to the Secretary under any procurement con-
tracts in which the Department is eligible to participate), the Sec-
retary shall acquire and transfer such personnel, supplies, or
resources to the Indian tribe.
‘‘(f ) REIMBURSEMENT
TO
INDIAN
HEALTH
SERVICE.—With
respect to functions transferred by the Indian Health Service to
an Indian tribe, the Indian Health Service shall provide goods
H. R. 1167—14
and services to the Indian tribe, on a reimbursable basis, including
payment in advance with subsequent adjustment. The reimburse-
ments received from those goods and services, along with the funds
received from the Indian tribe pursuant to this title, may be credited
to the same or subsequent appropriation account which provided
the funding, such amounts to remain available until expended.
‘‘(g) PROMPT PAYMENT ACT.—Chapter 39 of title 31, United
States Code, shall apply to the transfer of funds due under a
compact or funding agreement authorized under this title.
‘‘(h) INTEREST OR OTHER INCOME ON TRANSFERS.—An Indian
tribe is entitled to retain interest earned on any funds paid under
a compact or funding agreement to carry out governmental or
health purposes and such interest shall not diminish the amount
of funds the Indian tribe is authorized to receive under its funding
agreement in the year the interest is earned or in any subsequent
fiscal year. Funds transferred under this title shall be managed
using the prudent investment standard.
‘‘(i) CARRYOVER OF FUNDS.—All funds paid to an Indian tribe
in accordance with a compact or funding agreement shall remain
available until expended. In the event that an Indian tribe elects
to carry over funding from 1 year to the next, such carryover
shall not diminish the amount of funds the Indian tribe is author-
ized to receive under its funding agreement in that or any subse-
quent fiscal year.
‘‘( j) PROGRAM INCOME.—All Medicare, Medicaid, or other pro-
gram income earned by an Indian tribe shall be treated as supple-
mental funding to that negotiated in the funding agreement. The
Indian tribe may retain all such income and expend such funds
in the current year or in future years except to the extent that
the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.)
provides otherwise for Medicare and Medicaid receipts. Such funds
shall not result in any offset or reduction in the amount of funds
the Indian tribe is authorized to receive under its funding agree-
ment in the year the program income is received or for any subse-
quent fiscal year.
‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall not be obli-
gated to continue performance that requires an expenditure of
funds in excess of the amount of funds transferred under a compact
or funding agreement. If at any time the Indian tribe has reason
to believe that the total amount provided for a specific activity
in the compact or funding agreement is insufficient the Indian
tribe shall provide reasonable notice of such insufficiency to the
Secretary. If the Secretary does not increase the amount of funds
transferred under the funding agreement, the Indian tribe may
suspend performance of the activity until such time as additional
funds are transferred.
‘‘SEC. 509. CONSTRUCTION PROJECTS.
‘‘(a) IN GENERAL.—Indian tribes participating in tribal self-
governance may carry out construction projects under this title
if they elect to assume all Federal responsibilities under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.), the National Historic Preservation Act (16 U.S.C. 470 et
seq.), and related provisions of law that would apply if the Secretary
were to undertake a construction project, by adopting a resolution—
H. R. 1167—15
‘‘(1) designating a certifying officer to represent the Indian
tribe and to assume the status of a responsible Federal official
under such laws; and
‘‘(2) accepting the jurisdiction of the Federal court for the
purpose of enforcement of the responsibilities of the responsible
Federal official under such environmental laws.
‘‘(b) NEGOTIATIONS.—Construction project proposals shall be
negotiated pursuant to the statutory process in section 105(m)
and resulting construction project agreements shall be incorporated
into funding agreements as addenda.
‘‘(c) CODES AND STANDARDS.—The Indian tribe and the Sec-
retary shall agree upon and specify appropriate building codes
and architectural and engineering standards (including health and
safety) which shall be in conformity with nationally recognized
standards for comparable projects.
‘‘(d) RESPONSIBILITY FOR COMPLETION.—The Indian tribe shall
assume responsibility for the successful completion of the construc-
tion project in accordance with the negotiated construction project
agreement.
‘‘(e) FUNDING.—Funding for construction projects carried out
under this title shall be included in funding agreements as annual
advance payments, with semiannual payments at the option of
the Indian tribe. Annual advance and semiannual payment amounts
shall be determined based on mutually agreeable project schedules
reflecting work to be accomplished within the advance payment
period, work accomplished and funds expended in previous payment
periods, and the total prior payments. The Secretary shall include
associated project contingency funds with each advance payment
installment. The Indian tribe shall be responsible for the manage-
ment of the contingency funds included in funding agreements.
‘‘(f ) APPROVAL.—The Secretary shall have at least one oppor-
tunity to approve project planning and design documents prepared
by the Indian tribe in advance of construction of the facilities
specified in the scope of work for each negotiated construction
project agreement or amendment thereof which results in a signifi-
cant change in the original scope of work. The Indian tribe shall
provide the Secretary with project progress and financial reports
not less than semiannually. The Secretary may conduct onsite
project oversight visits semiannually or on an alternate schedule
agreed to by the Secretary and the Indian tribe.
‘‘(g) WAGES.—All laborers and mechanics employed by contrac-
tors and subcontractors (excluding tribes and tribal organizations)
in the construction, alteration, or repair, including painting or deco-
rating of a building or other facilities in connection with construc-
tion projects funded by the United States under this Act shall
be paid wages at not less than those prevailing wages on similar
construction in the locality as determined by the Secretary of Labor
in accordance with the Davis-Bacon Act of March 3, 1931 (46
Stat. 1494). With respect to construction alteration, or repair work
to which the Act of March 3, 1931, is applicable under this section,
the Secretary of Labor shall have the authority and functions set
forth in the Reorganization Plan numbered 14, of 1950, and section
2 of the Act of June 13, 1934 (48 Stat. 948).
‘‘(h) APPLICATION OF OTHER LAWS.—Unless otherwise agreed
to by the Indian tribe, no provision of the Office of Federal Procure-
ment Policy Act, the Federal Acquisition Regulations issued pursu-
ant thereto, or any other law or regulation pertaining to Federal
H. R. 1167—16
procurement (including Executive orders) shall apply to any
construction project conducted under this title.
‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULATIONS.
‘‘Regarding construction programs or projects, the Secretary
and Indian tribes may negotiate for the inclusion of specific provi-
sions of the Office of Federal Procurement and Policy Act (41
U.S.C. 401 et seq.) and Federal acquisition regulations in any
funding agreement entered into under this part. Absent a negotiated
agreement, such provisions and regulatory requirements shall not
apply.
‘‘SEC. 511. CIVIL ACTIONS.
‘‘(a) CONTRACT DEFINED.—For the purposes of section 110, the
term ‘contract’ shall include compacts and funding agreements
entered into under this title.
‘‘(b) APPLICABILITY
OF CERTAIN LAWS.—Section 2103 of the
Revised Statutes (25 U.S.C. 81) and section 16 of the Act of June
18, 1934 (48 Stat. 987; chapter 576; 25 U.S.C. 476), shall not
apply to attorney and other professional contracts entered into
by Indian tribes participating in self-governance under this title.
‘‘(c) REFERENCES.—All references in this Act to section 1 of
the Act of June 26, 1936 (49 Stat. 1967; chapter 831) are hereby
deemed to include the first section of the Act of July 3, 1952
(66 Stat. 323; chapter 549; 25 U.S.C. 82a).
‘‘SEC. 512. FACILITATION.
‘‘(a) SECRETARIAL INTERPRETATION.—Except as otherwise pro-
vided by law, the Secretary shall interpret all Federal laws, Execu-
tive orders, and regulations in a manner that will facilitate—
‘‘(1) the inclusion of programs, services, functions, and
activities (or portions thereof ) and funds associated therewith,
in the agreements entered into under this section;
‘‘(2) the implementation of compacts and funding agree-
ments entered into under this title; and
‘‘(3) the achievement of tribal health goals and objectives.
‘‘(b) REGULATION WAIVER.—
‘‘(1) IN GENERAL.—An Indian tribe may submit a written
request to waive application of a regulation promulgated under
section 517 or the authorities specified in section 505(b) for
a compact or funding agreement entered into with the Indian
Health Service under this title, to the Secretary identifying
the applicable Federal regulation sought to be waived and
the basis for the request.
‘‘(2) APPROVAL.—Not later than 90 days after receipt by
the Secretary of a written request by an Indian tribe to waive
application of a regulation for a compact or funding agreement
entered into under this title, the Secretary shall either approve
or deny the requested waiver in writing. A denial may be
made only upon a specific finding by the Secretary that identi-
fied language in the regulation may not be waived because
such waiver is prohibited by Federal law. A failure to approve
or deny a waiver request not later than 90 days after receipt
shall be deemed an approval of such request. The Secretary’s
decision shall be final for the Department.
‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connection with any
compact or funding agreement executed pursuant to this title or