§3406. Plan review

(a) In general

Upon receipt of a plan from an Indian tribe, the Secretary shall consult with-

(1) the head of each Federal agency overseeing a program identified in the plan; and

(2) the Indian tribe that submitted the plan.

(b) Identification of waivers

The parties identified in subsection (a) shall identify any waivers of applicable statutory, regulatory, or administrative requirements, or of Federal agency policies or procedures necessary to enable the Indian tribe to efficiently implement the plan.

(c) Tribal waiver request

In consultation with the Secretary, a participating Indian tribe may request that the head of each affected agency waive any statutory, regulatory, or administrative requirement, policy, or procedure identified subsection ¹ (b).

(d) Waiver authority

(1) In general

Except as provided in paragraph (2), notwithstanding any other provision of law, the head of each affected Federal agency shall waive any applicable statutory, regulatory, or administrative requirement, regulation, policy, or procedure promulgated by the agency that has been identified by the parties under subparagraph ² (b).

(2) Exception

The head of an affected Federal agency shall not grant a waiver under paragraph (1) if the head of the affected agency determines that a waiver will be inconsistent with-

(A) the purposes of this chapter; or

(B) the provision of law from which the program included in the plan derives its authority that is specifically applicable to Indians.

(e) Decision on waiver request

(1) In general

Not later than 90 days after the head of an affected agency receives a waiver request, the head of the affected agency shall decide whether to grant or deny the request.

(2) Denial of request

If the head of the affected agency denies a waiver request, not later than 30 days after the date on which the denial is made, the head of the affected agency shall provide the requesting Indian tribe and the Secretary with written notice of the denial and the reasons for the denial.

(3) Failure to act on request

If the head of an affected agency does not make a decision under paragraph (1) by the deadline identified in that paragraph, the request shall be considered to be granted.

(f) Secretarial review

If the head of an affected agency denies a waiver request under subsection (e)(2), not later than 30 days after the date on which the request is denied, the Secretary shall review the denial and determine whether granting the waiver-

(1) will be inconsistent with the provisions of this chapter; or

(2) will prevent the affected agency from fulfilling the obligations of the affected agency under this chapter.

(g) Interagency dispute resolution

(1) In general

Not later than 30 days after the date on which the Secretary determines that granting the waiver will not be inconsistent with the provisions of this chapter and will not prevent the affected agency from fulfilling the obligations of the affected agency under this chapter, the Secretary shall establish and initiate an interagency dispute resolution process involving-

(A) the Secretary;

(B) the participating Indian tribe; and

(C) the head of the affected agency.

(2) Duration

A dispute subject to paragraph (1) shall be resolved not later than 30 days after the date on which the process is initiated.

(h) Final authority

If the dispute resolution process fails to resolve the dispute between a participating Indian tribe and an affected agency, the head of the affected agency shall have the final authority to resolve the dispute.

(i) Final decision

Not later than 10 days after the date on which the dispute is resolved under this section, the Secretary shall provide the requesting Indian tribe with-

(1) the final decision on the waiver request; and

(2) notice of the right to file an appeal in accordance with the applicable provisions described in section 3407(d) of this title.

( Pub. L. 102–477, §7, Oct. 23, 1992, 106 Stat. 2303 ; Pub. L. 106–568, title XI, §1103(c), Dec. 27, 2000, 114 Stat. 2932 ; Pub. L. 115–93, §8, Dec. 18, 2017, 131 Stat. 2029 .)

Editorial Notes

Amendments

2017-Pub. L. 115–93 amended section generally. Prior to amendment, text read as follows: "Upon receipt of the plan from a tribal government, the Secretary of the Interior shall consult with the Secretary of each Federal agency providing funds to be used to implement the plan, and with the tribal government submitting the plan. The parties so consulting shall identify any waivers of statutory requirements or of Federal agency regulations, policies, or procedures necessary to enable the tribal government to implement its plan. Notwithstanding any other provision of law, the Secretary of the affected agency shall have the authority to waive any statutory requirement, regulation, policy, or procedure promulgated by that agency that has been so identified by such tribal government or agency, unless the Secretary of the affected agency determines that such a waiver is inconsistent with the purposes of this chapter or those provisions of the statute from which the program involved derives its authority which are specifically applicable to Indian programs."

2000-Pub. L. 106–568 substituted "Federal agency" for "Federal department" and "Federal agency regulations" for "Federal departmental regulations", substituted "agency" for "department" wherever appearing, and inserted "statutory requirement," after "to waive any".

¹ So in original.

² So in original. Probably should be "subsection".