25 U.S.C. § 5368 — Payment

Page 770 TITLE 25—INDIANS § 5368 and verification by the Secretary, to the sat- isfaction of the Secretary, that the Indian Tribe has secured upon completion the re- view and approval of the plans and specifica- tions, sufficiency of design, life safety, and code compliance by qualified, licensed, and independent architects and engineers. (f) Funding (1) In general Funding appropriated for construction projects carried out under this subchapter shall be included in funding agreements as an- nual or semiannual advance payments at the option of the Indian Tribe. (2) Advance payments The Secretary shall include all associated project contingency funds with each advance payment, and the Indian Tribe shall be respon- sible for the management of such contingency funds. (g) Negotiations At the option of the Indian Tribe, construction project funding proposals shall be negotiated pursuant to the statutory process in section 5324 of this title, and any resulting construction project agreement shall be incorporated into the funding agreement as addenda. (h) Federal review and verification (1) In general On a schedule negotiated by the Secretary and the Indian Tribe— (A) the Secretary shall review and verify, to the satisfaction of the Secretary, that project planning and design documents pre- pared by the Indian Tribe in advance of ini- tial construction are in conformity with the obligations of the Indian Tribe under sub- section (d); and (B) before the project planning and design documents are implemented, 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 (d). (2) Reports The Indian Tribe shall provide the Secretary with project progress and financial reports not less than semiannually. (3) Oversight visits The Secretary may conduct onsite project oversight visits semiannually or on an alter- nate schedule agreed to by the Secretary and the Indian Tribe. (i) Application of other laws Unless otherwise agreed to by the Indian Tribe and except as otherwise provided in this chap- ter, no provision of title 41, the Federal Acquisi- tion Regulation, or any other law or regulation pertaining to Federal procurement (including Executive orders) shall apply to any construc- tion program or project carried out under this subchapter. (j) Future funding Upon completion of a facility constructed under this subchapter, the Secretary shall in- clude the facility among those eligible for an- nual operation and maintenance funding support comparable to that provided for similar facili- ties funded by the Department as annual appro- priations are available and to the extent that the facility size and complexity and other fac- tors do not exceed the funding formula criteria for comparable buildings. (Pub. L. 93–638, title IV, § 407, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 870.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsecs. (b) and (c), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. This chapter, referred to in subsec. (i), was in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determina- tion and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. PRIOR PROVISIONS A prior section 5367, Pub. L. 93–638, title IV, § 407, as added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4277, related to regulations to carry out this sub- chapter, prior to repeal by Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 864. See section 5373 of this title. Such section was formerly classified to sec- tion 458gg of this title prior to editorial reclassification and renumbering as section 5367. § 5368. Payment (a) In general At the request of the governing body of an In- dian Tribe and under the terms of an applicable funding agreement, the Secretary shall provide funding to the Indian Tribe to carry out the funding agreement. (b) Advance annual payment At the option of the Indian Tribe, a funding agreement shall provide for an advance annual payment to an Indian Tribe. (c) Amount (1) In general Subject to subsection (e) and sections 5363 and 5365 of this title, the Secretary shall pro- vide 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 con- tracts and grants under this chapter (includ- ing amounts for direct program and contract support costs and, in addition, any funds that are specifically or functionally related to the provision by the Secretary of services and ben- efits to the Indian Tribe or its members) with- out regard to the organization level within the Department at which the programs are carried out. (2) Savings clause Nothing in this section reduces programs, services, or funds of, or provided to, another Indian Tribe. Page 771 TITLE 25—INDIANS § 5368 (d) Timing (1) In general Pursuant to the terms of any compact or funding agreement entered into under this subchapter, the Secretary shall transfer to the Indian Tribe all funds provided for in the fund- ing agreement, pursuant to subsection (c), and provide funding for periods covered by joint resolution adopted by Congress making con- tinuing appropriations, to the extent per- mitted by such resolution. (2) Transfers Not later than 1 year after October 21, 2020, 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 re- quires semiannual or other periodic transfers of funding to be made commencing at the be- ginning 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 provides other- wise. (e) 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 Tribe. (f) Multiyear funding A funding agreement may provide for multiyear funding. (g) Limitations on authority of the Secretary The Secretary shall not— (1) fail 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 subchapter for programs eligible under paragraph (1) or (2) of section 5363(b) of this title, except as required by Federal law; (2) withhold any portion of such funds for transfer over a period of years; or (3) reduce the amount of funds required under this subchapter— (A) to make funding available for self-gov- ernance monitoring or administration by the Secretary; (B) in subsequent years, except as nec- essary as a result of— (i) a reduction in appropriations from the previous fiscal year for the program to be included in a compact or funding agree- ment; (ii) a congressional directive in legisla- tion or an accompanying report; (iii) a Tribal authorization; (iv) a change in the amount of pass- through funds subject to the terms of the funding agreement; or (v) completion of an activity under a program for which the funds were pro- vided; (C) to pay for Federal functions, includ- ing— (i) Federal pay costs; (ii) Federal employee retirement bene- fits; (iii) automated data processing; (iv) technical assistance; and (v) monitoring of activities under this subchapter; or (D) to pay for costs of Federal personnel displaced by self-determination contracts under this chapter or self-governance under this subchapter. (h) Federal resources If an Indian Tribe elects to carry out a com- pact or funding agreement with the use of Fed- eral personnel, Federal supplies (including sup- plies available from Federal warehouse facili- ties), 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 procure- ment contracts in which the Department is eli- gible to participate), the Secretary shall, as soon as practicable, acquire and transfer such personnel, supplies, or resources to the Indian Tribe under this subchapter. (i) Prompt Payment Act Chapter 39 of title 31 shall apply to the trans- fer of funds due under a compact or funding agreement authorized under this subchapter. (j) Interest or other income (1) In general An Indian Tribe may retain interest or in- come earned on any funds paid under a com- pact or funding agreement to carry out gov- ernmental purposes. (2) No effect on other amounts The retention of interest or income under paragraph (1) shall not diminish the amount of funds an Indian Tribe is entitled to receive under a funding agreement in the year the in- terest or income is earned or in any subse- quent fiscal year. (3) Investment standard Funds transferred under this subchapter shall be managed by the Indian Tribe using the prudent investment standard, provided that the Secretary shall not be liable for any investment losses of funds managed by the In- dian Tribe that are not otherwise guaranteed or insured by the Federal Government. (k) Carryover of funds (1) In general Notwithstanding any provision of an appro- priations Act, all funds paid to an Indian Tribe in accordance with a compact or funding agreement shall remain available until ex- pended. (2) Effect of carryover If an Indian Tribe elects to carry over fund- ing from one year to the next, the carryover shall not diminish the amount of funds the In- dian Tribe is entitled to receive under a fund- ing agreement in that fiscal year or any subse- quent fiscal year. Page 772 TITLE 25—INDIANS § 5369 (l) Limitation of costs (1) In general An Indian Tribe shall not be obligated to continue performance that requires an expend- iture of funds in excess of the amount of funds transferred under a compact or funding agree- ment. (2) 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 insufficient, the Indian Tribe shall provide reasonable notice of such insuffi- ciency to the Secretary. (3) Suspension of performance If, after notice under paragraph (2), the Sec- retary 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. (4) Savings clause Nothing in this section reduces any pro- grams, services, or funds of, or provided to, an- other Indian Tribe. (m) Distribution of funds The Office of Self-Governance shall be respon- sible for distribution of all Bureau of Indian Af- fairs funds provided under this subchapter un- less otherwise agreed by the parties to an appli- cable funding agreement. (n) Applicability Notwithstanding any other provision of this section, section 101(a) of the PROGRESS for In- dian Tribes Act applies to subsections (a) through (m). (Pub. L. 93–638, title IV, § 408, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 872.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (c)(1) and (g)(3)(D), was in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For com- plete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (n), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title. PRIOR PROVISIONS A prior section 5368, Pub. L. 93–638, title IV, § 408, as added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4278, authorized appropriations, prior to repeal by Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 864, 872. See section 5377 of this title. Such section was formerly classified to section 458hh of this title prior to editorial reclassification and renumbering as section 5368. § 5369. Facilitation (a) In general Except as otherwise provided by law (includ- ing section 101(a) of the PROGRESS for Indian Tribes Act), the Secretary shall interpret each Federal law and regulation in a manner that fa- cilitates— (1) the inclusion of programs in funding agreements; and (2) the implementation of funding agree- ments. (b) Regulation waiver (1) Request An Indian Tribe may submit to the Sec- retary a written request for a waiver of appli- cability of a Federal regulation, including— (A) an identification of the specific text in the regulation sought to be waived; and (B) the basis for the request. (2) Determination by the secretary Not later than 120 days after receipt by the Secretary and the designated officials under paragraph (4) of a request under paragraph (1), the Secretary shall approve or deny the re- quested waiver in writing to the Indian Tribe. (3) Extensions The deadline described in paragraph (2) may be extended for any length of time, as agreed upon by both the Indian Tribe and the Sec- retary. (4) Designated officials The Secretary shall designate one or more appropriate officials in the Department to re- ceive a copy of the waiver request described in paragraph (1). (5) Grounds for denial The Secretary may deny a request under paragraph (1) upon a specific finding by the Secretary that the identified text in the regu- lation may not be waived because such a waiv- er is prohibited by Federal law. (6) Failure to make determination If the Secretary fails to make a determina- tion with respect to a waiver request within the period specified in paragraph (2) (including any extension agreed to under paragraph (3)), the Secretary shall be deemed to have agreed to the request, except that for a waiver re- quest relating to programs eligible under sec- tion 5363(b)(2) or section 5363(c) of this title, the Secretary shall be deemed to have denied the request. (7) Finality A decision of the Secretary under this sec- tion shall be final for the Department. (Pub. L. 93–638, title IV, § 409, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 874.) Editorial Notes REFERENCES IN TEXT Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (a), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title. § 5370. Discretionary application of other sec- tions (a) In general Except as otherwise provided in section 201(d) of the PROGRESS for Indian Tribes Act, at the