25 U.S.C. § 1632 — Safe water and sanitary waste disposal fa-

Page 290 TITLE 25—INDIANS § 1632 CODIFICATION Amendment by Pub. L. 111–148 is based on sections 141 and 142 of title I of S. 1790, One Hundred Eleventh Con- gress, as reported by the Committee on Indian Affairs of the Senate in Dec. 2009, which were enacted into law by section 10221(a) of Pub. L. 111–148. AMENDMENTS 2010—Pub. L. 111–148 added subsecs. (c) to (f), redesig- nated former subsec. (d) as (h), added subsec. (g) at end, and struck out former subsec. (c) which related to an- nual report on health facility priority system. 1992—Subsec. (a)(2). Pub. L. 102–573, § 301(1), sub- stituted ‘‘Health Care Organizations’’ for ‘‘Hospitals’’. Subsec. (b)(1). Pub. L. 102–573, § 301(2), struck out ‘‘other’’ before ‘‘outpatient health care facility’’ in in- troductory provisions and added subpars. (F) and (G). Subsec. (c). Pub. L. 102–573, § 301(3), redesignated sub- sec. (d) as (c) and struck out former subsec. (c) which read as follows: ‘‘The President shall include with the budget submitted under section 1105 of title 31, for each of the fiscal years 1990, 1991, and 1992, program informa- tion documents for the construction of 10 Indian health facilities which— ‘‘(1) comply with applicable construction standards, and ‘‘(2) have been approved by the Secretary.’’ Subsec. (c)(1). Pub. L. 102–573, § 301(4), amended intro- ductory provisions generally. Prior to amendment, in- troductory provisions read as follows: ‘‘The Secretary shall submit to the Congress an annual report which sets forth—’’. Subsec. (c)(2) to (5). Pub. L. 102–573, § 301(5), redesig- nated pars. (3) to (5) as (2) to (4), respectively, and struck out former par. (2) which read as follows: ‘‘The first report required under paragraph (1) shall be sub- mitted by no later than the date that is 180 days after November 23, 1988, and, beginning in 1990, each subse- quent annual report shall be submitted by the date that is 60 days after the date on which the President submits the budget to the Congress under section 1105 of title 31.’’ Subsecs. (d), (e). Pub. L. 102–573, §§ 301(3), 902(4)(B), re- designated subsec. (e) as (d) and substituted ‘‘section 102 of the Indian Self-Determination Act’’ for ‘‘sections 102 and 103(b) of the Indian Self-Determination Act’’. Former subsec. (d) redesignated (c). 1988—Pub. L. 100–713 amended section generally, sub- stituting subsecs. (a) to (e) relating to consultation, closure of facilities, and reports for former subsecs. (a) to (c) relating to construction and renovation of Serv- ice facilities. § 1632. Safe water and sanitary waste disposal fa- cilities (a) Congressional findings The Congress hereby finds and declares that— (1) the provision of safe water supply sys- tems and sanitary sewage and solid waste dis- posal systems is primarily a health consider- ation and function; (2) Indian people suffer an inordinately high incidence of disease, injury, and illness di- rectly attributable to the absence or inad- equacy of such systems; (3) the long-term cost to the United States of treating and curing such disease, injury, and illness is substantially greater than the short-term cost of providing such systems and other preventive health measures; (4) many Indian homes and communities still lack safe water supply systems and sani- tary sewage and solid waste disposal systems; and (5) it is in the interest of the United States, and it is the policy of the United States, that all Indian communities and Indian homes, new and existing, be provided with safe and ade- quate water supply systems and sanitary sew- age waste disposal systems as soon as possible. (b) Authority; assistance; transfer of funds (1) In furtherance of the findings and declara- tions made in subsection (a), Congress reaffirms the primary responsibility and authority of the Service to provide the necessary sanitation fa- cilities and services as provided in section 2004a of title 42. (2) The Secretary, acting through the Service, is authorized to provide under section 2004a of title 42— (A) financial and technical assistance to In- dian tribes and communities in the establish- ment, training, and equipping of utility orga- nizations to operate and maintain Indian sani- tation facilities; (B) ongoing technical assistance and train- ing in the management of utility organiza- tions which operate and maintain sanitation facilities; and (C) operation and maintenance assistance for, and emergency repairs to, tribal sanita- tion facilities when necessary to avoid a health hazard or to protect the Federal invest- ment in sanitation facilities. (3) Notwithstanding any other provision of law— (A) the Secretary of Housing and Urban Af- fairs is authorized to transfer funds appro- priated under the Housing and Community De- velopment Act of 1974 (42 U.S.C. 5301, et seq.) to the Secretary of Health and Human Serv- ices, and (B) the Secretary of Health and Human Services is authorized to accept and use such funds for the purpose of providing sanitation facilities and services for Indians under sec- tion 2004a of title 42. (c) 10-year plan Beginning in fiscal year 1990, the Secretary, acting through the Service, shall develop and begin implementation of a 10-year plan to pro- vide safe water supply and sanitation sewage and solid waste disposal facilities to existing In- dian homes and communities and to new and renovated Indian homes. (d) Tribal capability The financial and technical capability of an Indian tribe or community to safely operate and maintain a sanitation facility shall not be a pre- requisite to the provision or construction of sanitation facilities by the Secretary. (e) Amount of assistance (1) The Secretary is authorized to provide fi- nancial assistance to Indian tribes and commu- nities in an amount equal to the Federal share of the costs of operating, managing, and main- taining the facilities provided under the plan de- scribed in subsection (c). (2) For the purposes of paragraph (1), the term ‘‘Federal share’’ means 80 percent of the costs described in paragraph (1). (3) With respect to Indian tribes with fewer than 1,000 enrolled members, the non-Federal portion of the costs of operating, managing, and Page 291 TITLE 25—INDIANS § 1632 maintaining such facilities may be provided, in part, through cash donations or in kind prop- erty, fairly evaluated. (f) Eligibility of programs administered by In- dian tribes Programs administered by Indian tribes or tribal organizations under the authority of the Indian Self-Determination Act [25 U.S.C. 5321 et seq.] shall be eligible for— (1) any funds appropriated pursuant to this section, and (2) any funds appropriated for the purpose of providing water supply or sewage disposal services, on an equal basis with programs that are admin- istered directly by the Service. (g) Annual report; sanitation deficiency levels (1) The Secretary shall submit to the Presi- dent, for inclusion in each report required to be transmitted to the Congress under section 1671 of this title, a report which sets forth— (A) the current Indian sanitation facility priority system of the Service; (B) the methodology for determining sanita- tion deficiencies; (C) the level of sanitation deficiency for each sanitation facilities project of each In- dian tribe or community; (D) the amount of funds necessary to raise all Indian tribes and communities to a level I sanitation deficiency; and (E) the amount of funds necessary to raise all Indian tribes and communities to zero sani- tation deficiency. (2) In preparing each report required under paragraph (1) (other than the initial report), the Secretary shall consult with Indian tribes and tribal organizations (including those tribes or tribal organizations operating health care pro- grams or facilities under any contract entered into with the Service under the Indian Self-De- termination Act [25 U.S.C. 5321 et seq.]) to deter- mine the sanitation needs of each tribe. (3) The methodology used by the Secretary in determining sanitation deficiencies for purposes of paragraph (1) shall be applied uniformly to all Indian tribes and communities. (4) For purposes of this subsection, the sanita- tion deficiency levels for an Indian tribe or com- munity are as follows: (A) level I is an Indian tribe or community with a sanitation system— (i) which complies with all applicable water supply and pollution control laws, and (ii) in which the deficiencies relate to rou- tine replacement, repair, or maintenance needs; (B) level II is an Indian tribe or community with a sanitation system— (i) which complies with all applicable water supply and pollution control laws, and (ii) in which the deficiencies relate to cap- ital improvements that are necessary to im- prove the facilities in order to meet the needs of such tribe or community for domes- tic sanitation facilities; (C) level III is an Indian tribe or community with a sanitation system which— (i) has an inadequate or partial water sup- ply and a sewage disposal facility that does not comply with applicable water supply and pollution control laws, or (ii) has no solid waste disposal facility; (D) level IV is an Indian tribe or community with a sanitation system which lacks either a safe water supply system or a sewage disposal system; and (E) level V is an Indian tribe or community that lacks a safe water supply and a sewage disposal system. (5) For purposes of this subsection, any Indian tribe or community that lacks the operation and maintenance capability to enable its sanita- tion system to meet pollution control laws may not be treated as having a level I or II sanita- tion deficiency. (Pub. L. 94–437, title III, § 302, Sept. 30, 1976, 90 Stat. 1407; Pub. L. 100–713, title III, § 302, Nov. 23, 1988, 102 Stat. 4814; Pub. L. 102–573, title III, §§ 302, 307(b)(1), Oct. 29, 1992, 106 Stat. 4560, 4564.) Editorial Notes REFERENCES IN TEXT The Housing and Community Development Act of 1974, referred to in subsec. (b)(3)(A), is Pub. L. 93–383, Aug. 22, 1974, 88 Stat. 633. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 42, The Public Health and Welfare, and Tables. The Indian Self-Determination Act, referred to in subsecs. (f) and (g)(2), is title I of Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2206, which is classified principally to subchapter I (§ 5321 et seq.) of chapter 46 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. AMENDMENTS 1992—Subsec. (e). Pub. L. 102–573, § 302(1), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: ‘‘The provisions of this section shall not diminish the primary responsibility of the Indian family, community, or tribe to establish, collect, and utilize reasonable user fees, or otherwise set aside fund- ing, for the purpose of operating and maintaining sani- tation facilities.’’ Subsec. (f)(1). Pub. L. 102–573, § 302(2), substituted ‘‘this section’’ for ‘‘subsection (h)’’. Subsec. (g)(1). Pub. L. 102–573, § 302(3)(A), substituted ‘‘The Secretary shall submit to the President, for in- clusion in each report required to be transmitted to the Congress under section 1671 of this title, a report’’ for ‘‘The Secretary shall submit to the Congress an annual report’’. Subsec. (g)(2) to (6). Pub. L. 102–573, § 302(3)(B), redes- ignated pars. (3) to (6) as (2) to (5), respectively, and struck out former par. (2) which read as follows: ‘‘The first report required under paragraph (1) shall be sub- mitted by no later than the date that is 180 days after November 23, 1988, and, beginning in 1990, each subse- quent annual report shall be submitted by the date that is 60 days after the date on which the President submits the budget to the Congress under section 1105 of title 31.’’ Subsec. (h). Pub. L. 102–573, § 307(b)(1), struck out sub- sec. (h) which authorized appropriations to carry out subsec. (b)(2) for fiscal years 1990 to 1992. 1988—Pub. L. 100–713 amended section generally, sub- stituting subsecs. (a) to (h) relating to safe water and sanitary waste disposal facilities for former subsecs. (a) to (c) relating to construction of safe water and sani- tary waste disposal facilities. Page 292 TITLE 25—INDIANS § 1633 § 1633. Preferences to Indians and Indian firms (a) Discretionary authority; covered activities The Secretary, acting through the Service, may utilize the negotiating authority of section 47 of this title, to give preference to any Indian or any enterprise, partnership, corporation, or other type of business organization owned and controlled by an Indian or Indians including former or currently federally recognized Indian tribes in the State of New York (hereinafter re- ferred to as an ‘‘Indian firm’’) in the construc- tion and renovation of Service facilities pursu- ant to section 1631 of this title and in the con- struction of safe water and sanitary waste dis- posal facilities pursuant to section 1632 of this title. Such preference may be accorded by the Secretary unless he finds, pursuant to rules and regulations promulgated by him, that the project or function to be contracted for will not be satisfactory or such project or function can- not be properly completed or maintained under the proposed contract. The Secretary, in arriv- ing at his finding, shall consider whether the In- dian or Indian firm will be deficient with respect to (1) ownership and control by Indians, (2) equipment, (3) bookkeeping and accounting pro- cedures, (4) substantive knowledge of the project or function to be contracted for, (5) adequately trained personnel, or (6) other necessary compo- nents of contract performance. (b) Pay rates For the purpose of implementing the provi- sions of this subchapter, the Secretary shall as- sure that the rates of pay for personnel engaged in the construction or renovation of facilities constructed or renovated in whole or in part by funds made available pursuant to this sub- chapter are not less than the prevailing local wage rates for similar work as determined in ac- cordance with sections 3141–3144, 3146, and 3147 of title 40. (Pub. L. 94–437, title III, § 303, Sept. 30, 1976, 90 Stat. 1407.) Editorial Notes CODIFICATION ‘‘Sections 3141–3144, 3146, and 3147 of title 40’’ sub- stituted in subsec. (b) for ‘‘the Act of March 3, 1931 (40 U.S.C. 276a—276a–5, known as the Davis-Bacon Act)’’ on authority of Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116 Stat. 1303, the first section of which enacted Title 40, Public Buildings, Property, and Works. § 1634. Expenditure of non-Service funds for ren- ovation (a) Authority of Secretary (1) Notwithstanding any other provision of law, the Secretary is authorized to accept any major renovation or modernization by any In- dian tribe of any Service facility, or of any other Indian health facility operated pursuant to a contract entered into under the Indian Self- Determination Act [25 U.S.C. 5321 et seq.], in- cluding— (A) any plans or designs for such renovation or modernization; and (B) any renovation or modernization for which funds appropriated under any Federal law were lawfully expended, but only if the requirements of subsection (b) are met. (2) The Secretary shall maintain a separate priority list to address the needs of such facili- ties for personnel or equipment. (3) The Secretary shall submit to the Presi- dent, for inclusion in each report required to be transmitted to the Congress under section 1671 of this title, the priority list maintained pursu- ant to paragraph (2). (b) Requirements The requirements of this subsection are met with respect to any renovation or modernization if— (1) the tribe or tribal organization— (A) provides notice to the Secretary of its intent to renovate or modernize; and (B) applies to the Secretary to be placed on a separate priority list to address the needs of such new facilities for personnel or equipment; and (2) the renovation or modernization— (A) is approved by the appropriate area di- rector of the Service; and (B) is administered by the tribe in accord- ance with the rules and regulations pre- scribed by the Secretary with respect to con- struction or renovation of Service facilities. (c) Recovery for non-use as Service facility If any Service facility which has been ren- ovated or modernized by an Indian tribe under this section ceases to be used as a Service facil- ity during the 20-year period beginning on the date such renovation or modernization is com- pleted, such Indian tribe shall be entitled to re- cover from the United States an amount which bears the same ratio to the value of such facility at the time of such cessation as the value of such renovation or modernization (less the total amount of any funds provided specifically for such facility under any Federal program that were expended for such renovation or mod- ernization) bore to the value of such facility at the time of the completion of such renovation or modernization. (Pub. L. 94–437, title III, § 305, as added Pub. L. 96–537, § 5, Dec. 17, 1980, 94 Stat. 3175; amended Pub. L. 100–713, title III, § 303(a), Nov. 23, 1988, 102 Stat. 4816; Pub. L. 102–573, title III, § 305, Oct. 29, 1992, 106 Stat. 4563.) Editorial Notes REFERENCES IN TEXT The Indian Self-Determination Act, referred to in subsec. (a)(1), is title I of Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2206, which is classified principally to subchapter I (§ 5321 et seq.) of chapter 46 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. AMENDMENTS 1992—Pub. L. 102–573 amended section generally, sub- stituting present provisions for former provisions which related to: in subsec. (a), authority of Secretary; in subsec. (b), requirements; in subsec. (c), higher pri- ority project; and in subsec. (d), recovery for non-use as Service facility. 1988—Pub. L. 100–713 amended section generally, sub- stituting ‘‘Expenditure of non-Service funds for renova-