[Congressional Record Volume 149, Number 139 (Friday, October 3, 2003)]
[Senate]
[Pages S12462-S12468]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL (for himself and Mr. Inouye):
  S. 1715. A bill to amend the Indian Self-Determination and Education 
Assistance Act to provide further self-governance by Indian tribes; to 
the Committee on Indian Affairs.
  Mr. CAMPBELL. Mr. President, today I am pleased to be joined by 
Senator Inouye in introducing the Department of Interior Tribal Self 
Governance Amendments of 2003, a bill that is a companion to the bill 
we introduced yesterday, the Department of Health and Human Services 
Tribal Self Governance Amendments of 2003.
  Taken together, these bills will strengthen the government-to-
government relationship between the United States and Indian tribes by 
shepherding in the next phase of Indian Self Governance.
  Due to the Federal reservation status of Indian lands, the Department 
of the Interior, among all Federal agencies, has historically had the 
most significant impact on the lives of Indians.
  This longstanding relationship with Indian tribes has often been 
stormy, with Federal bureaucrats providing all or nearly all services 
to Indian tribes and their members, including police, fire, education 
and health care services.
  The Federal-tribal relationship took a decided turn for the better in 
1975 with the enactment of the Indian Self Determination and Education 
Assistance Act of 1975, Pub. L. 93-638. Since passage of Pub. L. 93-
638, Congress has systematically devolved to Indian tribes the 
authority and responsibility to manage Federal programs within the 
Bureau of Indian Affairs and the Indian Health Service.
  The bill I am introducing today will expand the provisions of Self 
Governance within the Department of the Interior by creating a 
Demonstration Project within the Department of the Interior for non-BIA 
programs.
  This Demonstration Project is integral to the continued success of 
Self Governance for Indians, as there remain many non-BIA programs with 
the Department that affect the ability of Indian tribes to better serve 
their members.
  I urge my colleagues to join me in supporting this important bill.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1715

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Department of the Interior 
     Tribal Self-Governance Act of 2003''.

     SEC. 2. AMENDMENT.

       The Indian Self-Determination and Education Assistance Act 
     is amended by striking title IV (25 U.S.C. 458aa et seq.) and 
     inserting the following:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

     ``SEC. 401. DEFINITIONS.

       ``In this title:
       ``(1) Compact.--The term `compact' means a compact under 
     section 404.
       ``(2) Construction program.--The term `construction 
     program' means a tribal undertaking to complete any or all 
     included programs relating to the administration, planning, 
     environmental determination, design, construction, repair, 
     improvement, or expansion of roads, bridges, buildings, 
     structures, systems, or other facilities for purposes of 
     housing, law enforcement, detention, sanitation, water 
     supply, education, administration, community health, 
     irrigation, agriculture, conservation, flood control, 
     transportation, or port facilities or for other tribal 
     purposes.
       ``(3) Construction project.--The term `construction 
     project' means a tribal undertaking that constructs 1 or more 
     roads, bridges, buildings, structures, systems, or other 
     facilities for purposes of housing, law enforcement, 
     detention, sanitation, water supply, education, 
     administration, community health, irrigation, agriculture, 
     conservation, flood control, transportation, or port 
     facilities or for other tribal purposes.
       ``(4) Department.--The term `Department' means the 
     Department of the Interior.
       ``(5) Funding agreement.--The term `funding agreement' 
     means a funding agreement under section 405(b).
       ``(6) Gross mismanagement.--The term `gross mismanagement' 
     means a significant violation, shown by clear and convincing 
     evidence, of a compact, funding agreement, or statutory or 
     regulatory requirement applicable to Federal funds 
     transferred to an Indian tribe by a compact or funding 
     agreement that results in a significant reduction of funds 
     being made available for the included programs assumed by an 
     Indian tribe.
       ``(7) Included program.--The term `included program' means 
     a program that is eligible for inclusion under a funding 
     agreement (including any portion of such a program and any 
     function, service, or activity performed under such a 
     program).
       ``(8) Indian tribe.--The term `Indian tribe', in a case in 
     which an Indian tribe authorizes another Indian tribe, an 
     inter-tribal consortium, or a tribal organization to plan for 
     or carry out an included program on its behalf in accordance 
     with section 403(a)(3), includes

[[Page S12463]]

     the other authorized Indian tribe, inter-tribal consortium, 
     or tribal organization.
       ``(9) Inherent federal function.--The term `inherent 
     Federal function' means a Federal function that cannot 
     legally be delegated to an Indian tribe.
       ``(10) Inter-tribal consortium.--
       ``(A) In general.--The term `inter-tribal consortium' means 
     a coalition of 2 more separate Indian tribes that join 
     together for the purpose of participating in self-governance.
       ``(B) Inclusion.--The term `inter-tribal organization' 
     includes a tribal organization.
       ``(11) Secretary.--The term `Secretary' means the Secretary 
     of the Interior.
       ``(12) Self-governance.--The term `self-governance' means 
     the program of self-governance established under section 402.
       ``(13) Tribal share.--The term `tribal share' means an 
     Indian tribe's portion of all funds and resources that 
     support secretarial included programs that are not required 
     by the Secretary for the performance of inherent Federal 
     functions.

     ``SEC. 402. ESTABLISHMENT.

       ``The Secretary shall carry out a program within the 
     Department to be known as the `Tribal Self-Governance 
     Program'.

     ``SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

       ``(a) In General.--
       ``(1) Continuing participation.--An Indian tribe that was 
     participating in the Tribal Self-Governance Demonstration 
     Project at the Department under title III on October 25, 
     1994, may elect to participate in self-governance under this 
     title.
       ``(2) Additional participants.--
       ``(A) In general.--In addition to Indian tribes 
     participating in self-governance under paragraph (1), an 
     Indian tribe that meets the eligibility criteria specified in 
     subsection (b) shall be entitled to participate in self-
     governance.
       ``(B) No limitation.--The Secretary shall not limit the 
     number of additional Indian tribes to be selected each year 
     from among Indian tribes that are eligible under subsection 
     (b).
       ``(3) Other authorized indian tribe, inter-tribal 
     consortium, or tribal government.--If an Indian tribe 
     authorizes another Indian tribe, an inter-tribal consortium, 
     or a tribal organization to plan for or carry out an included 
     program on its behalf under this title, the authorized Indian 
     tribe, inter-tribal consortium, or tribal organization shall 
     have the rights and responsibilities of the authorizing 
     Indian tribe (except as otherwise provided in the authorizing 
     resolution).
       ``(4) Joint participation.--Two or more Indian tribes that 
     are not otherwise eligible under subsection (b) may be 
     treated as a single Indian tribe for the purpose of 
     participating in self-governance as a consortium if--
       ``(A) if each Indian tribe so requests; and
       ``(B) the consortium itself is eligible under subsection 
     (b).
       ``(5) Tribal withdrawal from a consortium.--
       ``(A) In general.--An Indian tribe that withdraws from 
     participation in an inter-tribal consortium or tribal 
     organization, in whole or in part, shall be entitled to 
     participate in self-governance if the Indian tribe is 
     eligible under subsection (b).
       ``(B) Effect of withdrawal.--If an Indian tribe withdraws 
     from participation in an inter-tribal consortium or tribal 
     organization, the Indian tribe shall be entitled to its 
     tribal share of funds and resources supporting the included 
     programs that the Indian tribe will be carrying out under the 
     compact and funding agreement of the Indian tribe.
       ``(C) Participation in self-governance.--The withdrawal of 
     an Indian tribe from an inter-tribal consortium or tribal 
     organization shall not affect the eligibility of the inter-
     tribal consortium or tribal organization to participate in 
     self-governance on behalf of 1 or more other Indian tribes.
       ``(D) Withdrawal process.--
       ``(i) In general.--An Indian tribe may fully or partially 
     withdraw from a participating inter-tribal consortium or 
     tribal organization its tribal share of any included program 
     that is included in a compact or funding agreement.
       ``(ii) Effective date.--

       ``(I) In general.--A withdrawal under clause (i) shall 
     become effective on the date specified in the resolution that 
     authorizes transfer to the participating tribal organization 
     or inter-tribal consortium.
       ``(II) No specified date.--In the absence of a date 
     specified in the resolution, the withdrawal shall become 
     effective on--

       ``(aa) the earlier of--
       ``(AA) 1 year after the date of submission of the request; 
     or
       ``(BB) the date on which the funding agreement expires; or
       ``(bb) such date as may be agreed on by the Secretary, the 
     withdrawing Indian tribe, and the tribal organization or 
     inter-tribal consortium that signed the compact or funding 
     agreement on behalf of the withdrawing Indian tribe, inter-
     tribal consortium, or tribal organization.
       ``(E) 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 inter-tribal consortium or tribal organization, 
     the withdrawing Indian tribe--
       ``(i) may elect to enter into a self-determination contract 
     or compact, in which case--

       ``(I) the withdrawing Indian tribe or tribal organization 
     shall be entitled to its tribal share of funds and resources 
     supporting the included programs 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 to the funding 
     agreement of the inter-tribal consortium or tribal 
     organization); and
       ``(II) the funds referred to in subclause (I) shall be 
     withdrawn by the Secretary from the funding agreement of the 
     inter-tribal consortium or tribal organization and 
     transferred to the withdrawing Indian tribe, on the condition 
     that sections 102 and 105(i), as appropriate, shall apply to 
     the withdrawing Indian tribe; or

       ``(ii) may elect not to enter into a self-determination 
     contract or compact, in which case all funds not obligated by 
     the inter-tribal consortium associated with the withdrawing 
     Indian tribe's returned included programs, less closeout 
     costs, shall be returned by the inter-tribal consortium to 
     the Secretary for operation of the included programs included 
     in the withdrawal.
       ``(F) Return to mature contract status.--If an Indian tribe 
     elects to operate all or some included programs carried out 
     under a compact or funding agreement under this title through 
     a self-determination contract under title I, at the option of 
     the Indian tribe, the resulting self-determination contract 
     shall be a mature self-determination contract.
       ``(b) Eligibility.--To be eligible to participate in self-
     governance, an Indian tribe shall--
       ``(1) complete the planning phase described in subsection 
     (c);
       ``(2) request participation in self-governance by 
     resolution or other official action by the tribal governing 
     body; and
       ``(3) demonstrate, for the 3 fiscal years preceding the 
     date on which the Indian tribe requests participation, 
     financial stability and financial management capability as 
     evidenced by the Indian tribe's having no uncorrected 
     significant and material audit exceptions in the required 
     annual audit of its self-determination or self-governance 
     agreements with any Federal agency.
       ``(c) Planning Phase.--
       ``(1) In general.--An Indian tribe seeking to participate 
     in self-governance shall complete a planning phase in 
     accordance with this subsection.
       ``(2) Activities.--The planning phase--
       ``(A) shall be conducted to the satisfaction of the Indian 
     tribe; and
       ``(B) shall include--
       ``(i) legal and budgetary research; and
       ``(ii) internal tribal government planning and 
     organizational preparation.
       ``(d) Grants.--
       ``(1) In general.--Subject to the availability of 
     appropriations, an Indian tribe that meets the requirements 
     of paragraphs (2) and (3) of subsection (b) shall be eligible 
     for grants--
       ``(A) to plan for participation in self-governance; and
       ``(B) to negotiate the terms of participation by the Indian 
     tribe or tribal organization in self-governance, as set forth 
     in a compact and a funding agreement.
       ``(2) Receipt of grant not required.--Receipt of a grant 
     under paragraph (1) shall not be a requirement of 
     participation in self-governance.

     ``SEC. 404. COMPACTS.

       ``(a) In General.--The Secretary shall negotiate and enter 
     into a written compact with as Indian tribe participating in 
     self-governance in a manner that is consistent with the trust 
     responsibility of the Federal Government, treaty obligations, 
     and the government-to-government relationship between Indian 
     tribes and the United States.
       ``(b) Contents.--A compact under subsection (a) shall--
       ``(1) specify the general terms of the government-to-
     government relationship between the Indian tribe and the 
     Secretary; and
       ``(2) include such terms as the parties intend shall 
     control year after year.
       ``(c) Amendment.--A compact under subsection (a) may be 
     amended only by agreement of the parties.
       ``(d) Effective Date.--The effective date of a compact 
     under subsection (a) shall be--
       ``(1) the date of the execution of the compact by the 
     Indian tribe; or
       ``(2) another date agreed to by the parties.
       ``(e) Duration.--A compact under subsection (a) shall 
     remain in effect for so long as permitted by Federal law or 
     until terminated by written agreement, retrocession, or 
     reassumption.
       ``(f) Existing Compacts.--An Indian tribe participating in 
     self-governance under this title, as in effect on the date of 
     enactment of the Department of the Interior Tribal Self-
     Governance Act of 2003, shall have the option at any time 
     after that date--
       ``(1) to retain its negotiated compact (in whole or in 
     part) to the extent that the provisions of the compact are 
     not directly contrary to any express provision of this title; 
     or
       ``(2) to negotiate a new compact in a manner consistent 
     with this title.

     ``SEC. 405. FUNDING AGREEMENTS.

       ``(a) In General.--The Secretary shall negotiate and enter 
     into a written funding agreement with the governing body of 
     an Indian tribe in a manner that is consistent with the trust 
     responsibility of the Federal Government, treaty obligations, 
     and the government-to-government relationship between Indian 
     tribes and the United States.

[[Page S12464]]

       ``(b) Included Programs.--
       ``(1) Bureau of indian affairs and office of special 
     trustee.--
       ``(A) In general.--A funding agreement shall, as determined 
     by the Indian tribe, authorize the Indian tribe to plan, 
     conduct, consolidate, administer, and receive full tribal 
     share funding for all programs carried out by the Bureau of 
     Indian Affairs and the Office of Special Trustee, without 
     regard to the agency or office within which the program is 
     performed (including funding for agency, area, and central 
     office functions in accordance with section 409(c)), that--
       ``(i) are provided for in the Act of April 16, 1934 (25 
     U.S.C. 452 et seq.);
       ``(ii) the Secretary administers for the benefit of Indians 
     under the Act of November 2, 1921 (25 U.S.C. 13), or any 
     subsequent Act;
       ``(iii) the Secretary administers for the benefit of 
     Indians with appropriations made to agencies other than the 
     Department of the Interior; or
       ``(iv) are provided for the benefit of Indians because of 
     their status as Indians.
       ``(B) Inclusions.--Programs described in subparagraph (A) 
     shall include all programs with respect to which Indian 
     tribes or Indians are primary or significant beneficiaries.
       ``(2) Other agencies.--A funding agreement under subsection 
     (a) shall, as determined by the Indian tribe, authorize the 
     Indian tribe to plan, conduct, consolidate, administer, and 
     receive full tribal share funding for all programs carried 
     out by the Secretary outside the Bureau of Indian Affairs, 
     without regard to the agency or office within which the 
     program is performed, including funding for agency, area, and 
     central office functions in accordance with subsection 
     409(c), to the extent that the included programs are within 
     the scope of paragraph (1).
       ``(3) Discretionary programs.--A funding agreement under 
     subsection (a) may, in accordance with such additional terms 
     as the parties consider to be appropriate, include programs 
     administered by the Secretary, in addition to programs 
     described in paragraphs (1) and (2), that are of special 
     geographical, historical, or cultural significance to the 
     Indian tribe.
       ``(4) Competitive bidding.--Nothing in this section--
       ``(A) supersedes any express statutory requirement for 
     competitive bidding; or
       ``(B) prohibits the inclusion in a funding agreement of a 
     program in which non-Indians have an incidental or legally 
     identifiable interest.
       ``(5) Excluded funding.--A funding agreement shall not 
     authorize an Indian tribe to plan, conduct, administer, or 
     receive tribal share funding under any program that--
       ``(A) is provided under the Tribally Controlled Community 
     College Assistance Act of 1978 (25 U.S.C. 1801 et seq.);
       ``(B) is provided for elementary and secondary schools 
     under the formula developed under section 1128 of the 
     Education Amendments of 1978 (25 U.S.C. 2008); and
       ``(C) is provided for the Flathead Agency Irrigation 
     Division or the Flathead Agency Power Division (except that 
     nothing in this section affects the contract authority of the 
     Flathead Agency Irrigation Division or the Flathead Agency 
     Power Division under section 102).
       ``(6) Services, functions, and responsibilities.--A funding 
     agreement shall specify--
       ``(A) the services to be provided under the funding 
     agreement;
       ``(B) the functions to be performed under the funding 
     agreement; and
       ``(C) the responsibilities of the Indian tribe and the 
     Secretary under the funding agreement.
       ``(7) Base budget.--A funding agreement shall, at the 
     option of the Indian tribe, provide for a stable base budget 
     specifying the recurring funds (including funds available 
     under section 106(a)) to be transferred to the Indian tribe, 
     for such period as the Indian tribe specifies in the funding 
     agreement, subject to annual adjustment only to reflect 
     changes in congressional appropriations.
       ``(8) No waiver of trust responsibility.--A funding 
     agreement shall prohibit the Secretary from waiving, 
     modifying, or diminishing in any way the trust responsibility 
     of the United States with respect to Indian tribes and 
     individual Indians that exists under treaties, Executive 
     orders, court decisions, and other laws.
       ``(c) Amendment.--The Secretary shall not revise, amend, or 
     require additional terms in a new or subsequent funding 
     agreement without the consent of the Indian tribe.
       ``(d) Effective Date.--A funding agreement shall become 
     effective on the date specified in the funding agreement.
       ``(e) Existing and Subsequent Funding Agreements.--
       ``(1) Subsequent funding agreements.--Absent notification 
     from an Indian tribe that is withdrawing or retroceding the 
     operation of 1 or more included programs identified in a 
     funding agreement, or unless otherwise agreed to by the 
     parties to the funding agreement--
       ``(A) a funding agreement shall remain in effect until a 
     subsequent funding agreement is executed; and
       ``(B) the term of the subsequent funding agreement shall be 
     retroactive to the end of the term of the preceding funding 
     agreement.
       ``(2) 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 2003 shall have the option at any time 
     after that date--
       ``(A) to retain its existing funding agreement (in whole or 
     in part) to the extent that the provisions of that funding 
     agreement are not directly contrary to any express provision 
     of this title; or
       ``(B) to negotiate a new funding agreement in a manner 
     consistent with this title.
       ``(3) Multiyear funding agreements.--An Indian tribe may, 
     at the discretion of the Indian tribe, negotiate with the 
     Secretary for a funding agreement with a term that exceeds 1 
     year.

     ``SEC. 406. GENERAL PROVISIONS.

       ``(a) Applicability.--An Indian tribe may include in any 
     compact or funding agreement provisions that reflect the 
     requirements of this title.
       ``(b) Conflicts of Interest.--An Indian tribe participating 
     in self-governance shall ensure that internal measures are in 
     place to address, pursuant to tribal law and procedures, 
     conflicts of interest in the administration of included 
     programs.
       ``(c) Audits.--
       ``(1) Single agency audit act.--Chapter 75 of title 31, 
     United States Code, shall apply to a funding agreement 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--
       ``(A) section 106 of this Act or any other provision of 
     law; or
       ``(B) any exemptions to applicable Office of Management and 
     Budget circulars granted by the Office of Management and 
     Budget.
       ``(3) Federal claims.--Any claim by the Federal Government 
     against an Indian tribe relating to funds received under a 
     funding agreement based on an audit under this subsection 
     shall be subject to section 106(f).
       ``(d) Redesign and Consolidation.--An Indian tribe may 
     redesign or consolidate included programs or reallocate funds 
     for included programs in any manner that the Indian tribe 
     determines to be in the best interest of the Indian community 
     being served, so long as 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 law.
       ``(e) Retrocession.--
       ``(1) In general.--An Indian tribe may fully or partially 
     retrocede to the Secretary any included program under a 
     compact or funding agreement.
       ``(2) Effective date.--
       ``(A) Agreement.--Unless the Indian tribe rescinds a 
     request for retrocession, the retrocession shall become 
     effective on the date specified by the parties in the compact 
     or funding agreement.
       ``(B) No agreement.--In the absence of such a 
     specification, the retrocession shall become effective on--
       ``(i) the earlier of--

       ``(I) the date that is 1 year after the date of submission 
     of the request; or
       ``(II) the date on which the funding agreement expires; or

       ``(ii) such date as may be agreed on by the Secretary and 
     the Indian tribe.
       ``(f) Nonduplication.--A funding agreement shall provide 
     that, for the period for which, and to the extent to which, 
     funding is provided to an Indian tribe under this title, the 
     Indian tribe--
       ``(1) shall not be entitled to enter into a contract with 
     the Secretary for funds under section 102, except that the 
     Indian tribe shall be eligible for new included programs on 
     the same basis as other Indian tribes; and
       ``(2) shall be responsible for the administration of 
     included programs in accordance with the compact or funding 
     agreement.
       ``(g) Records.--
       ``(1) In general.--Unless an Indian tribe specifies 
     otherwise in the compact or funding agreement, records of an 
     Indian tribe shall not be treated as agency records for 
     purposes of chapter 5 of title 5, United States Code.
       ``(2) Recordkeeping system.--An Indian tribe shall--
       ``(A) maintain a recordkeeping system; and
       ``(B) on 30 days' notice, provide the Secretary with 
     reasonable access to the records to enable the Department to 
     meet the requirements of sections 3101 through 3106 of title 
     44, United States Code.

     ``SEC. 407. PROVISIONS RELATING TO THE SECRETARY.

       ``(a) Trust Evaluations.--A funding agreement shall include 
     a provision to monitor the performance of trust functions by 
     the Indian tribe through the annual trust evaluation.
       ``(b) Reassumption.--
       ``(1) In general.--A compact or funding agreement shall 
     include provisions for the Secretary to reassume an included 
     program and associated funding if there is a specific finding 
     relating to that included program of--
       ``(A) imminent jeopardy to a physical trust asset, natural 
     resource, or public health and safety that--
       ``(i) is caused by an act or omission of the Indian tribe; 
     and
       ``(ii) arises out of a failure to carry out the compact or 
     funding agreement; or
       ``(B) gross mismanagement with respect to funds transferred 
     to an Indian tribe by a compact or funding agreement, as 
     determined by the Secretary in consultation with the 
     Inspector General, as appropriate.
       ``(2) Prohibition.--The Secretary shall not reassume 
     operation of an included program unless--

[[Page S12465]]

       ``(A) the Secretary first provides written notice and a 
     hearing on the record to the Indian tribe; and
       ``(B) the Indian tribe does not take corrective action to 
     remedy gross mismanagement or the imminent jeopardy to a 
     physical trust asset, natural resource, or public health and 
     safety.
       ``(3) Exception.--
       ``(A) In general.-- Notwithstanding subparagraph (2), the 
     Secretary may, on written notice to the Indian tribe, 
     immediately reassume operation of an included program if--
       ``(i) the Secretary makes a finding of both imminent and 
     substantial jeopardy and irreparable harm to a physical trust 
     asset, a natural resource, or the public health and safety 
     caused by an act or omission of the Indian tribe; and
       ``(ii) the imminent and substantial jeopardy and 
     irreparable harm to the physical trust asset, natural 
     resource, or public health and safety arises out of a failure 
     by the Indian tribe to carry out its compact or funding 
     agreement.
       ``(B) Reassumption.--If the Secretary reassumes operation 
     of an included program under subparagraph (A), the Secretary 
     shall provide the Indian tribe with a hearing on the record 
     not later than 10 days after the date of reassumption.
       ``(c) Inability To Agree on Compact or Funding Agreement.--
       ``(1) Final offer.--If the Secretary and a participating 
     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.
       ``(2) Determination.--Not more than 45 days after the date 
     of submission of a final offer, or as otherwise agreed to by 
     the Indian tribe, the Secretary shall review and make a 
     determination with respect to the final offer.
       ``(3) No timely determination.--If the Secretary fails to 
     make a determination with respect to a final offer within the 
     time specified in paragraph (2), the Secretary shall be 
     deemed to have agreed to the offer.
       ``(4) Rejection of final offer.--
       ``(A) In general.--If the Secretary rejects a final offer 
     (or 1 or more provisions or funding levels in a final offer), 
     the Secretary shall--
       ``(i) provide 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 included program that is the subject of the 
     final offer is an inherent Federal function;
       ``(III) the Indian tribe cannot carry out the included 
     program 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 403(b);

       ``(ii) provide technical assistance to overcome the 
     objections stated in the notification required by clause (i);
       ``(iii) provide the Indian tribe 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 an appeal, directly proceed to bring a civil 
     action in United States district court under section 110(a)); 
     and
       ``(iv) provide the Indian tribe the option of entering into 
     the severable portions of a final proposed compact or funding 
     agreement (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 provisions.
       ``(B) Effect of exercising certain option.--If an Indian 
     tribe exercises the option specified in subparagraph 
     (A)(iv)--
       ``(i) the Indian tribe shall retain the right to appeal the 
     rejection by the Secretary under this section; and
       ``(ii) clauses (i), (ii), and (iii) of that subparagraph 
     shall apply only to the portion of the proposed final compact 
     or funding agreement that was rejected by the Secretary.
       ``(d) Burden of Proof.--In any administrative hearing or 
     appeal or civil action brought under this section, the 
     Secretary shall have the burden of demonstrating by clear and 
     convincing evidence the validity of the grounds for rejecting 
     a final offer made under subsection (c) or the grounds for a 
     reassumption under subsection (b).
       ``(e) Good Faith.--
       ``(1) In general.--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.
       ``(2) Policy.--The Secretary shall carry out this Act in a 
     manner that maximizes the policy of tribal self-governance.
       ``(f) Savings.--To the extent that included programs 
     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 409(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 included programs.
       ``(g) Trust Responsibility.--The Secretary may not waive, 
     modify, or diminish in any way the trust responsibility of 
     the United States with respect to Indian tribes and 
     individual 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 
     brought under subsection (c)(4) may be made--
       ``(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 law judge.
       ``(i) Rule of Construction.--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-governance, and any ambiguity shall be 
     resolved in favor of the Indian tribe.

     ``SEC. 408. CONSTRUCTION PROGRAMS AND CONSTRUCTION PROJECTS.

       ``(a) In General.--An Indian tribe participating in self-
     governance may carry out a construction program or 
     construction project under this title in the same manner as 
     the Indian tribe carries out other included programs under 
     this title, consistent with the provisions of all applicable 
     Federal laws.
       ``(b) Federal Functions.--An Indian tribe participating in 
     self-governance may, in carrying out construction projects 
     under this title, 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 
     carry out a construction project, by adopting a resolution--
       ``(1) designating a certifying officer to represent the 
     Indian tribe and to assume the status of a responsible 
     Federal official under those laws; and
       ``(2) accepting the jurisdiction of the Federal courts for 
     the purpose of enforcement of the responsibilities of the 
     responsible Federal official under applicable environmental 
     law.
       ``(c) Negotiations.--
       ``(1) In general.--In accordance with all applicable 
     Federal laws, a construction program or construction project 
     shall be treated in the same manner and be subject to all 
     provisions of this Act as are all other tribal assumptions of 
     included programs under this Act.
       ``(2) Construction projects.--A provision shall be included 
     in the funding agreement that, for each construction 
     project--
       ``(A) states the approximate start and completion dates of 
     the construction project, which may extend for 1 or more 
     years;
       ``(B) provides a general description of the construction 
     project;
       ``(C) states the responsibilities of the Indian tribe and 
     the Secretary with respect to the construction project;
       ``(D) describes--
       ``(i) the ways in which the Indian tribe will address 
     project-related environmental considerations; and
       ``(ii) the standards by which the Indian tribe will 
     accomplish the construction project; and
       ``(E) the amount of funds provided for the construction 
     project.
       ``(d) Codes and Standards; Tribal Assurances.--A funding 
     agreement shall contain a certification by the Indian tribe 
     that the Indian tribe will establish and enforce procedures 
     designed to ensure that all construction-related included 
     programs carried out through the funding agreement adhere to 
     building codes and other codes and architectural and 
     engineering standards (including public health and safety 
     standards) identified by the Indian tribe in the funding 
     agreement, which codes and standards shall be in conformity 
     with nationally recognized standards for comparable projects 
     in comparable locations.
       ``(e) Responsibility for Completion.--The Indian tribe 
     shall assume responsibility for the successful completion of 
     a construction project in accordance with the funding 
     agreement.
       ``(f) Funding.--
       ``(1) In general.--At the option of an Indian tribe, full 
     funding for a construction program or construction project 
     carried out under this title shall be included in a funding 
     agreement as an annual advance payment.
       ``(2) Entitlement.--Notwithstanding the annual advance 
     payment provisions or any other provision of law, an Indian 
     tribe shall be entitled to receive in its initial funding 
     agreement all funds made available to the Secretary for 
     multiyear construction programs and projects carried out 
     under this title.
       ``(3) Contingency funds.--The Secretary shall include 
     associated project contingency funds in an advance payment 
     described in paragraph (1), and the Indian tribe shall be 
     responsible for the management of the contingency funds 
     included in the funding agreement.
       ``(4) Reallocation of savings.--
       ``(A) In general.--Notwithstanding any other provision of 
     an annual Act of appropriation or other Federal law, an 
     Indian tribe may reallocate any financial savings realized by 
     the Indian tribe arising from efficiencies in the design, 
     construction, or any

[[Page S12466]]

     other aspect of a construction program or construction 
     project.
       ``(B) Purposes.--A reallocation under subparagraph (A) 
     shall be for construction-related activity purposes generally 
     similar to those for which the funds were appropriated and 
     distributed to the Indian tribe under the funding agreement.
       ``(g) Approval.--
       ``(1) In general.--If the planning and design documents for 
     a construction project are prepared by an Indian tribe in a 
     manner that is consistent with the certification given by the 
     Indian tribe as required under subsection (d), approval by 
     the Secretary of a funding agreement providing for the 
     assumption of the construction project shall be deemed to be 
     an approval by the Secretary of the construction project 
     planning and design documents.
       ``(2) Reports.--The Indian tribe shall provide the 
     Secretary with construction project progress and financial 
     reports not less than semiannually.
       ``(3) Inspections.--The Secretary may conduct onsite 
     project inspections at a construction project semiannually or 
     on an alternate schedule agreed to by the Secretary and the 
     Indian tribe.
       ``(h) Wages.--
       ``(1) In general.--All laborers and mechanics employed by a 
     contractor or subcontractor in the construction, alteration, 
     or repair (including painting and decorating) of a building 
     or other facility in connection with a construction project 
     funded by the United States under this title shall be paid 
     wages at not less than the amounts of wages prevailing on 
     similar construction in the locality as determined by the 
     Secretary of Labor in accordance with subchapter IV of 
     chapter 31 of title 40, United States Code.
       ``(2) Authority.--With respect to construction, alteration, 
     or repair work to which that subchapter is applicable under 
     this subsection, the Secretary of Labor shall have the 
     authority and functions specified in the Reorganization Plan 
     numbered 14, of 1950.
       ``(3) Applicability of subsection.--Notwithstanding any 
     other provision of law, this subsection does not apply to any 
     portion of a construction project carried out under this 
     Act--
       ``(A) that is funded from a non-Federal source, regardless 
     of whether the non-Federal funds are included with Federal 
     funds for administrative convenience; or
       ``(B) that is performed by a laborer or mechanic employed 
     directly by an Indian tribe or tribal organization.
       ``(4) Applicability of tribal law.--This subsection does 
     not apply to a compact or funding agreement if the compact, 
     self-determination contract, or funding agreement is 
     otherwise covered by a law (including a regulation) adopted 
     by an Indian tribe that requires the payment of not less than 
     prevailing wages, as determined by the Indian tribe.
       ``(i) Applicability of Other Law.--Unless otherwise agreed 
     to by the Indian tribe, no provision of the Office of Federal 
     Procurement Policy Act (41 U.S.C. 401 et seq.), the Federal 
     Acquisition Regulation, or any other law or regulation 
     pertaining to Federal procurement (including Executive 
     orders) shall apply to any construction program or project 
     conducted under this title.

     ``SEC. 409. PAYMENT.

       ``(a) In General.--At the request of the governing body of 
     the Indian tribe and under the terms of a 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.--Subject to subsection (e) and sections 405 
     and 406 of this title, the Secretary shall provide funds to 
     the Indian tribe under a funding agreement for included 
     programs in the amount that is equal to the amount that the 
     Indian tribe would have been entitled to receive under 
     contracts and grants under this Act (including 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 benefits to 
     the Indian tribe or its members) without regard to the 
     organization level within the Federal agency in which the 
     included programs are carried out.
       ``(d) Timing.--Unless the funding agreement provides 
     otherwise, the transfer of funds shall be made not later than 
     10 days after the apportionment of funds by the Office of 
     Management and Budget to the Department.
       ``(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) Limitation 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 Act, 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 Act--
       ``(A) to make funding available for self-governance 
     monitoring or administration by the Secretary;
       ``(B) in subsequent years, except as necessary 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 agreement;
       ``(ii) a congressional directive in legislation 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 an included program 
     for which the funds were provided;
       ``(C) to pay for Federal functions, including--
       ``(i) Federal pay costs;
       ``(ii) Federal employee retirement benefits;
       ``(iii) automated data processing;
       ``(iv) technical assistance; and
       ``(v) monitoring of activities under this Act; or
       ``(D) to pay for costs of Federal personnel displaced by 
     self-determination contracts under this Act or self-
     governance.
       ``(h) Federal Resources.--If 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 contracts in which the Department is 
     eligible to participate), the Secretary shall acquire and 
     transfer such personnel, supplies, or resources to the Indian 
     tribe.
       ``(i) 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 Act.
       ``(j) Interest or Other Income.--
       ``(1) 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 purposes.
       ``(2) No effect on other amounts.--The retention of 
     interest or income under paragraph (1) shall not diminish the 
     amount of funds that an Indian tribe is entitled to receive 
     under a funding agreement in the year in which the interest 
     or income is earned or in any subsequent fiscal year.
       ``(3) Investment standard.--Funds transferred under this 
     title shall be managed using the prudent investment standard.
       ``(k) Carryover of Funds.--
       ``(1) In general.--Notwithstanding any provision of an Act 
     of appropriation, all funds paid to an Indian tribe in 
     accordance with a compact or funding agreement shall remain 
     available until expended.
       ``(2) Effect of carryover.--If an Indian tribe elects to 
     carry over funding from 1 year to the next, the carryover 
     shall not diminish the amount of funds that the Indian tribe 
     is entitled to receive under a funding agreement in that 
     fiscal year or any subsequent fiscal year.
       ``(l) Limitation of Costs.--
       ``(1) 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 agreement.
       ``(2) Notice of insufficiency.--If at any time an 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 the insufficiency to the Secretary.
       ``(3) Suspension of performance.--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. 410. CIVIL ACTIONS.

       ``(a) Inclusion as Contract.--Except as provided in 
     subsection (b), for the purposes of section 110, the term 
     `contract' shall include a funding agreement.
       ``(b) Contracts With Professionals.--For the period during 
     which a funding agreement is in effect, section 2103 of the 
     Revised Statutes (25 U.S.C. 81), and section 16 of the Act of 
     June 18, 1934 (25 U.S.C. 476) shall not apply to a contract 
     between an attorney or other professional and an Indian 
     tribe.

     ``SEC. 411. FACILITATION.

       ``(a) In General.--Except as otherwise provided by law, the 
     Secretary shall interpret each Federal law (including a 
     regulation) in a manner that facilitates--
       ``(1) the inclusion of included programs in funding 
     agreements; and
       ``(2) the implementation of funding agreements.
       ``(b) Regulation Waiver.--
       ``(1) Request.--An Indian tribe may submit a written 
     request for a waiver to the Secretary identifying the 
     specific text in regulation sought to be waived and the basis 
     for the request.
       ``(2) Determination by the secretary.--Not later than 60 
     days after the date of receipt by the Secretary of a request 
     under paragraph (1), the Secretary shall approve or deny the 
     requested waiver in writing to the Indian tribe.
       ``(3) Ground for denial.--The Secretary may deny a request 
     for a waiver only on 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 law.

[[Page S12467]]

       ``(4) Failure to make determination.--If the Secretary 
     fails to approve or deny a waiver request within the time 
     required under paragraph (2), the Secretary shall be deemed 
     to have approved the request.
       ``(5) Finality.--The Secretary's decision shall be final 
     for the Department.

     ``SEC. 412. DISCLAIMERS.

       ``Nothing in this title expands or alters any statutory 
     authority of the Secretary so as to authorize the Secretary 
     to enter into any funding agreement under section 405(b)(2) 
     or 415(c)(1)--
       ``(1) with respect to an inherent Federal function;
       ``(2) in a case in which the statute establishing a program 
     does not authorize the type of participation sought by the 
     Indian tribe (without regard to whether 1 or more Indian 
     tribes are identified in the authorizing statute); or
       ``(3) limits or reduces in any way the services, contracts, 
     or funds that any other Indian tribe or tribal organization 
     is eligible to receive under section 102 or any other 
     applicable Federal law.

     ``SEC. 413. APPLICABILITY OF OTHER PROVISIONS.

       ``(a) Mandatory Application.--Sections 5(d), 6, 102(c), 
     104, 105(f), 110, and 111 apply to compacts and funding 
     agreements under this title.
       ``(b) Discretionary Application.--
       ``(1) In general.--At the option of a participating Indian 
     tribe, any or all of the provisions of title I or title V 
     shall be incorporated in a compact or funding agreement.
       ``(2) Effect.--Each incorporated provision--
       ``(A) shall have the same effect as if the provision were 
     set out in full in this title; and
       ``(B) shall be deemed to supplement or replace any related 
     provision in this title and to apply to any agency otherwise 
     governed by this title.
       ``(3) Effective date.--If an Indian tribe requests 
     incorporation at the negotiation stage of a compact or 
     funding agreement, the incorporation--
       ``(A) shall be effective immediately; and
       ``(B) shall control the negotiation and resulting compact 
     and funding agreement.

     ``SEC. 414. BUDGET REQUEST.

       ``(a) Requirement of Annual Budget Request.--
       ``(1) In general.--The President shall identify in the 
     annual budget request submitted to Congress under section 
     1105 of title 31, United States Code, all funds necessary to 
     fully fund all funding agreements authorized under this 
     title.
       ``(2) Duty of secretary.-- The Secretary shall ensure that 
     there are included, in each budget request, requests for 
     funds in amounts that are sufficient for planning and 
     negotiation grants and sufficient to cover any shortfall in 
     funding identified under subsection (b).
       ``(3) Timing.--All funds included within funding agreements 
     shall be provided to the Office of Self-Governance not later 
     than 15 days after the date on which funds are apportioned to 
     the Department.
       ``(4) Distribution of funds.--The Office of Self-Governance 
     shall be responsible for distribution of all funds provided 
     under this title.
       ``(5) Rule of construction.--Nothing in this subsection 
     authorizes the Secretary to reduce the amount of funds that 
     an Indian tribe is otherwise entitled to receive under a 
     funding agreement or other applicable law.
       ``(b) Present Funding; Shortfalls.--In all budget requests, 
     the President shall identify the level of need presently 
     funded and any shortfall in funding (including direct program 
     costs, tribal shares and contract support costs) for each 
     Indian tribe, either directly by the Secretary of Interior, 
     under self-determination contracts, or under compacts and 
     funding agreements.

     ``SEC. 415. REPORTS.

       ``(a) In General.--
       ``(1) Requirement.--On January 1 of each year, the 
     Secretary shall submit to Congress a report regarding the 
     administration of this title.
       ``(2) Analysis.--A report under paragraph (1) shall include 
     a detailed analysis of tribal unmet need for each Indian 
     tribe, either directly by the Secretary, under self-
     determination contracts under title I, or under compacts and 
     funding agreements authorized under this subchapter.
       ``(3) No additional reporting requirements.--In preparing 
     reports under paragraph (1), the Secretary may not impose any 
     reporting requirement on participating Indian tribes not 
     otherwise provided for by this Act.
       ``(b) Contents.--A report under subsection (a) shall--
       ``(1) be compiled from information contained in funding 
     agreements, annual audit reports, and data of the Secretary 
     regarding the disposition of Federal funds;
       ``(2) identify--
       ``(A) the relative costs and benefits of self-governance;
       ``(B) with particularity, 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 tribes;
       ``(C) the funds transferred to each Indian tribe and the 
     corresponding reduction in the Federal bureaucracy;
       ``(D) the funding formula for individual tribal shares of 
     all Central Office funds, with the comments of affected 
     Indian tribes, developed under subsection (d); and
       ``(E) amounts expended in the preceding fiscal year to 
     carry out inherent Federal functions, including an 
     identification of inherent Federal functions by type and 
     location;
       ``(3) contain a description of the methods used to 
     determine the individual tribal share of funds controlled by 
     all components of the Department (including funds assessed by 
     any other Federal agency) for inclusion in compacts or 
     funding agreements;
       ``(4) before being submitted to Congress, be distributed to 
     the Indian tribes for comment (with a comment period of not 
     less than 30 days); and
       ``(5) include the separate views and comments of each 
     Indian tribe or tribal organization.
       ``(c) Report on Non-BIA Programs.--
       ``(1) In general.--In order to optimize opportunities for 
     including non-Bureau of Indian Affairs included programs in 
     agreements with Indian tribes participating in self-
     governance under this title, the Secretary shall--
       ``(A) review all included programs administered by the 
     Department, other than through the Bureau of Indian Affairs, 
     without regard to the agency or office concerned;
       ``(B) not later than January 1, 2004, submit to Congress--
       ``(i) a list of all such included programs that the 
     Secretary determines, with the concurrence of Indian tribes 
     participating in self-governance, are eligible to be included 
     in a funding agreement at the request of a participating 
     Indian tribe; and
       ``(ii) a list of all such included programs for which 
     Indian tribes have requested to include in a funding 
     agreement under section 405(b)(3) due to the special 
     geographic, historical, or cultural significance to the 
     Indian tribe, indicating whether each request was granted or 
     denied and stating the grounds for any denial.
       ``(2) Programmatic targets.--The Secretary shall establish 
     programmatic targets, after consultation with Indian tribes 
     participating in self-governance, to encourage bureaus of the 
     Department to ensure that a significant portion of those 
     included programs are included in funding agreements.
       ``(3) Publication.--The lists and targets under paragraphs 
     (1) and (2) shall be published in the Federal Register and be 
     made available to any Indian tribe participating in self-
     governance.
       ``(4) Annual review.--
       ``(A) In general.--The Secretary shall annually review and 
     publish in the Federal Register, after consultation with 
     Indian tribes participating in self-governance, revised lists 
     and programmatic targets.
       ``(B) Contents.--The revised lists and programmatic targets 
     shall include all included programs that were eligible for 
     contracting in the original list published in the Federal 
     Register in 1995, except for included programs specifically 
     determined not to be contractible as a matter of law.
       ``(d) Report on Central Office Funds.--Not later than 
     January 1, 2004, the Secretary shall, in consultation with 
     Indian tribes, develop a funding formula to determine the 
     individual tribal share of funds controlled by the Central 
     Office of the Bureau of Indian Affairs for inclusion in the 
     self-governance compacts.

     ``SEC. 416. REGULATIONS.

       ``(a) In General.--
       ``(1) Promulgation.--Not later than 90 days after the date 
     of the enactment of the Department of the Interior Tribal 
     Self-Governance Act of 2003, the Secretary shall initiate 
     procedures under subchapter III of chapter 5, of title 5, 
     United States Code, to negotiate and promulgate such 
     regulations as are necessary to carry out the amendments made 
     by that Act.
       ``(2) Publication of proposed regulations.--Proposed 
     regulations to implement the amendments shall be published in 
     the Federal Register not later than 1 year after the date of 
     enactment of that Act.
       ``(3) Expiration of authority.--The authority to promulgate 
     regulations under paragraph (1) shall expire on the date that 
     is 18 months after the date of enactment of that Act.
       ``(b) Committee.--
       ``(1) Memebership.--A negotiated rulemaking committee 
     established under section 565 of title 5, United States Code, 
     to carry out this section shall have as its members only 
     Federal and tribal government representatives.
       ``(2) Lead agency.-- Among the Federal representatives, the 
     Office of Self-Governance shall be the lead agency for the 
     Department of the Interior.
       ``(c) 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 tribes.
       ``(d) Effect.--
       ``(1) Repeal.--All regulatory provisions under part 1000 of 
     title 25, Code of Federal Regulations, are repealed on the 
     date of enactment of the Department of the Interior Tribal 
     Self-Governance Act of 2003.
       ``(2) Effectiveness without regard to regulations.--The 
     lack of promulgated regulations shall not limit the effect of 
     this Act.
       ``(3) Interim provision.--Notwithstanding this subsection, 
     any regulation under part 1000 of title 25, Code of Federal 
     Regulations,

[[Page S12468]]

     shall remain in effect, at an Indian tribe's option, in 
     implementing compacts until regulations are promulgated.

     ``SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS, 
                   GUIDANCES, AND RULES.

       ``Unless expressly agreed to by a participating Indian 
     tribe in a compact or funding agreement, the participating 
     Indian tribe shall not be subject to any agency circular, 
     policy, manual, guidance, or rule adopted by the Department, 
     except for--
       ``(1) the eligibility provisions of section 105(g); and
       ``(2) regulations promulgated under section 416.

     ``SEC. 418. APPEALS.

       ``In any administrative appeal or civil action for judicial 
     review of any decision made by the Secretary under this 
     title, the Secretary shall have the burden of proof of 
     demonstrating by clear and convincing evidence--
       ``(1) the validity of the grounds for the decision; and
       ``(2) the consistency of the decision with the provisions 
     and policies of this title.

     ``SEC. 419. AUTHORIZATION OF APPROPRIATIONS.

       ``There are authorized to be appropriated such sums as are 
     necessary to carry out this title.''.

                                S. 1716

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PHASE II STORM WATER PROGRAM IMPLEMENTATION AND 
                   MANAGEMENT.

       Section 319(h) of the Federal Water Pollution Control Act 
     (33 U.S.C. 1329(h)) is amended by adding at the end the 
     following:
       ``(13) Phase ii storm water implementation.--A State may 
     use funds from a grant provided under this subsection--
       ``(A) to carry out a project or activity relating to the 
     development or implementation of phase II of the storm water 
     program of the Environmental Protection Agency established by 
     the final rule entitled `National Pollutant Discharge 
     Elimination System--Regulations for Revision of the Water 
     Pollution Control Program Addressing Storm Water 
     Discharges'', promulgated by the Administrator on December 8, 
     1999 (64 Fed. Reg. 68722); and
       ``(B) to implement a management program in a geographic 
     jurisdiction for phase II of the program described in 
     subparagraph (A).''.
                                 ______