Page 165 TITLE 25—INDIANS § 450k

proved budget of the contract, rebudget to meet

contract requirements, if such rebudgeting

would not have an adverse effect on the performance of the contract.

(Pub. L. 93–638, title I, §106, as added Pub. L.

100–472, title II, §205, Oct. 5, 1988, 102 Stat. 2292;

amended Pub. L. 101–301, §2(a)(8), (9), May 24,

1990, 104 Stat. 207; Pub. L. 101–644, title II,

§203(a), Nov. 29, 1990, 104 Stat. 4666; Pub. L.

103–413, title I, §102(14)–(19), Oct. 25, 1994, 108

Stat. 4257–4259.)

PRIOR PROVISIONS

A prior section 106 of Pub. L. 93–638 was renumbered

section 105 by Pub. L. 100–472 and is classified to section

450j of this title.

AMENDMENTS

1994—Subsec. (a)(1). Pub. L. 103–413, §102(14)(A), inserted before period at end ‘‘, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services,

as appropriate, at which the program, function, service,

or activity or portion thereof, including supportive administrative functions that are otherwise contractable,

is operated’’.

Subsec. (a)(2). Pub. L. 103–413, §102(14)(B), inserted

‘‘an amount for’’ after ‘‘consist of’’.

Subsec. (a)(3). Pub. L. 103–413, §102(14)(C), added par.

(3) and struck out former par. (3) which read as follows:

‘‘Any savings in operation under a self-determination

contract shall be utilized to provide additional services

or benefits under the contract or be expended in the

succeeding fiscal year as provided in section 13a of this

title.’’

Subsec. (a)(4) to (6). Pub. L. 103–413, §102(14)(C), added

pars. (4) to (6).

Subsec. (c). Pub. L. 103–413, §102(15)(A), substituted

‘‘May 15’’ for ‘‘March 15’’ in introductory provisions.

Subsec. (c)(1), (2). Pub. L. 103–413, §102(15)(B), substituted ‘‘contract support costs’’ for ‘‘indirect costs’’.

Subsec. (c)(6). Pub. L. 103–413, §102(15)(C)–(E), added

par. (6).

Subsec. (f). Pub. L. 103–413, §102(16), inserted after

second sentence ‘‘For the purpose of determining the

365-day period specified in this paragraph, an audit report shall be deemed to have been received on the date

of actual receipt by the Secretary, if, within 60 days

after receiving the report, the Secretary does not give

notice of a determination by the Secretary to reject

the single-agency report as insufficient due to noncompliance with chapter 75 of title 31 or noncompliance

with any other applicable law.’’

Subsec. (g). Pub. L. 103–413, §102(17), added subsec. (g)

and struck out former subsec. (g) which read as follows:

‘‘Upon the approval of a self-determination contract

and at the request of an Indian tribe or tribal organization, the Secretary shall add the indirect cost funding

amount awarded for a self-determination contract to

the amount awarded for direct program funding for the

first year and, subject to adjustments in the amount of

direct program costs for the contract, for each subsequent year that the program remains continuously

under contract.’’

Subsec. (i). Pub. L. 103–413, §102(18), added subsec. (i)

and struck out former subsec. (i) which read as follows:

‘‘Within one month after October 5, 1988, the Secretary

is mandated to establish a team in each area of the Bureau of Indian Affairs which consists of agency personnel (area personnel in the Navajo Area and in the case

of Indian tribes not served by an agency) and tribal representatives for the purpose of analyzing the ‘Indian

Priority System’ and other aspects of the budgeting

and funding allocation process of the Bureau of Indian

Affairs for the purpose of making a report to Congress

with appropriate recommendations for changes and legislative actions to achieve greater tribal decision-making authority over the use of funds appropriated for the

benefit of the tribes and their members. The report

along with the analysis, findings and recommendations

of the area teams shall be submitted to Congress within

six months of October 5, 1988. The Secretary may submit to Congress separate comments on the information

and recommendations on the report.’’

Subsecs. (j) to (o). Pub. L. 103–413, §102(19), added subsecs. (j) to (o).

1990—Subsec. (e). Pub. L. 101–644 substituted ‘‘1992’’

for ‘‘1988’’.

Subsec. (f). Pub. L. 101–301, §2(a)(8), substituted

‘‘prior to enactment of chapter 75 of title 31’’ for ‘‘prior

to enactment of the Single Agency Audit Act of 1984

(chapter 75 of title 31)’’, which for purposes of codification was translated as ‘‘prior to October 19, 1984’’, requiring no change in text.

Subsec. (i). Pub. L. 101–301, §2(a)(9), substituted

‘‘agency personnel (area personnel in the Navajo Area

and in the case of Indian tribes not served by an agency)’’ for ‘‘agency personnel’’.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 13a, 450b, 450c,

450f, 450j, 450l, 2508 of this title.

§ 450k. Rules and regulations

(a) Authority of Secretaries of the Interior and of

Health and Human Services to promulgate;

time restriction

(1) Except as may be specifically authorized in

this subsection, or in any other provision of this

subchapter, the Secretary of the Interior and

the Secretary of Health and Human Services

may not promulgate any regulation, nor impose

any nonregulatory requirement, relating to selfdetermination contracts or the approval, award,

or declination of such contracts, except that the

Secretary of the Interior and the Secretary of

Health and Human Services may promulgate

regulations under this subchapter relating to

chapter 171 of title 28, commonly known as the

‘‘Federal Tort Claims Act’’, the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.), declination and waiver procedures, appeal procedures,

reassumption procedures, discretionary grant

procedures for grants awarded under section

450h of this title, property donation procedures

arising under section 450j(f) of this title, internal agency procedures relating to the implementation of this subchapter, retrocession and tribal organization relinquishment procedures, contract proposal contents, conflicts of interest,

construction, programmatic reports and data requirements, procurement standards, property

management standards, and financial management standards.

(2)(A) The regulations promulgated under this

subchapter, including the regulations referred to

in this subsection, shall be promulgated—

(i) in conformance with sections 552 and 553

of title 5 and subsections (c), (d), and (e) of

this section; and

(ii) as a single set of regulations in title 25

of the Code of Federal Regulations.

(B) The authority to promulgate regulations

set forth in this subchapter shall expire if final

regulations are not promulgated within 20

months after October 25, 1994.

(b) Conflicting laws and regulations

The provisions of this subchapter shall supersede any conflicting provisions of law (including
§ 450k TITLE 25—INDIANS Page 166

any conflicting regulations) in effect on the day

before October 25, 1994, and the Secretary is authorized to repeal any regulation inconsistent

with the provisions of this subchapter.

(c) Revisions and amendments; procedures applicable

The Secretary of the Interior and the Secretary of Health and Human Services are authorized, with the participation of Indian tribes

and tribal organizations, to revise and amend

any rules or regulations promulgated pursuant

to this section: Provided, That prior to any revision or amendment to such rules or regulations,

the respective Secretary or Secretaries shall

present the proposed revision or amendment to

the Committee on Energy and Natural Resources of the Senate and the Committee on

Natural Resources of the House of Representatives and shall, to the extent practicable, consult with appropriate national or regional Indian organizations and shall publish any proposed revisions in the Federal Register not less

than sixty days prior to the effective date of

such rules and regulations in order to provide

adequate notice to, and receive comments from,

other interested parties.

(d) Consultation in drafting and promulgating;

negotiation process; interagency committees;

extension of deadlines

(1) In drafting and promulgating regulations

as provided in subsection (a) of this section (including drafting and promulgating any revised

regulations), the Secretary of the Interior and

the Secretary of Health and Human Services

shall confer with, and allow for active participation by, representatives of Indian tribes, tribal

organizations, and individual tribal members.

(2)(A) In carrying out rulemaking processes

under this subchapter, the Secretary of the Interior and the Secretary of Health and Human

Services shall follow the guidance of—

(i) subchapter III of chapter 5 of title 5, commonly known as the ‘‘Negotiated Rulemaking

Act of 1990’’; and

(ii) the recommendations of the Administrative Conference of the United States numbered

82–4 and 85–5 entitled ‘‘Procedures for Negotiating Proposed Regulations’’ under sections

305.82–4 and 305.85–5 of title 1, Code of Federal

Regulations, and any successor recommendation or law (including any successor regulation).

(B) The tribal participants in the negotiation

process referred to in subparagraph (A) shall be

nominated by and shall represent the groups described in this paragraph and shall include tribal representatives from all geographic regions.

(C) The negotiations referred to in subparagraph (B) shall be conducted in a timely manner. Proposed regulations to implement the

amendments made by the Indian Self-Determination Contract Reform Act of 1994 shall be

published in the Federal Register by the Secretary of the Interior and the Secretary of

Health and Human Services not later than 180

days after October 25, 1994.

(D) Notwithstanding any other provision of

law (including any regulation), the Secretary of

the Interior and the Secretary of Health and

Human Services are authorized to jointly establish and fund such interagency committees or

other interagency bodies, including advisory

bodies comprised of tribal representatives, as

may be necessary or appropriate to carry out

the provisions of this subchapter.

(E) If the Secretary determines that an extension of the deadlines under subsection (a)(2)(B)

of this section and subparagraph (C) of this

paragraph is appropriate, the Secretary may

submit proposed legislation to Congress for the

extension of such deadlines.

(e) Exceptions in or waiver of regulations

The Secretary may, with respect to a contract

entered into under this subchapter, make exceptions in the regulations promulgated to carry

out this subchapter, or waive such regulations,

if the Secretary finds that such exception or

waiver is in the best interest of the Indians

served by the contract or is consistent with the

policies of this subchapter, and is not contrary

to statutory law. In reviewing each request, the

Secretary shall follow the timeline, findings, assistance, hearing, and appeal procedures set

forth in section 450f of this title.

(Pub. L. 93–638, title I, §107, Jan. 4, 1975, 88 Stat.

2212; Pub. L. 96–88, title V, §509(b), Oct. 17, 1979,

93 Stat. 695; Pub. L. 100–472, title II, §207, Oct. 5,

1988, 102 Stat. 2295; Pub. L. 101–644, title II,

§203(f), Nov. 29, 1990, 104 Stat. 4666; Pub. L.

103–413, title I, §105, Oct. 25, 1994, 108 Stat. 4269;

Pub. L. 103–435, §22(a)(1), Nov. 2, 1994, 108 Stat.

4575; Pub. L. 103–437, §10(c)(2), Nov. 2, 1994, 108

Stat. 4589; Pub. L. 104–133, §1, Apr. 25, 1996, 110

Stat. 1320; Pub. L. 104–287, §6(e), Oct. 11, 1996, 110

Stat. 3399.)

REFERENCES IN TEXT

The Contract Disputes Act of 1978, referred to in subsec. (a)(1), is Pub. L. 95–563, Nov. 1, 1978, 92 Stat. 2383,

as amended, which is classified principally to chapter 9

(§601 et seq.) of Title 41, Public Contracts. For complete

classification of this Act to the Code, see Short Title

note set out under section 601 of Title 41 and Tables.

The Indian Self-Determination Contract Reform Act

of 1994, referred to in subsec. (d)(2)(C), is title I of Pub.

L. 103–413, Oct. 25, 1994, 108 Stat. 4250, which enacted

section 450l of this title, amended this section and sections 450b, 450c, 450e, 450f, 450j, 450j–1, 450m, and 450m–1

of this title, and enacted provisions set out as a note

under section 450 of this title. For complete classification of this Act to the Code, see Short Title of 1994

Amendment note set out under section 450 of this title

and Tables.

AMENDMENTS

1996—Subsec. (a)(2)(B). Pub. L. 104–133 substituted ‘‘20

months’’ for ‘‘18 months’’.

Subsec. (b). Pub. L. 104–287 repealed Pub. L. 103–437,

§10(c)(2)(A). See 1994 Amendment note below.

1994—Subsec. (a). Pub. L. 103–413, §105(1), added subsec. (a) and struck out former subsec. (a) which read as

follows: ‘‘The Secretaries of the Interior and of Health

and Human Services are each authorized to perform

any and all acts and to make such rules and regulations as may be necessary and proper for the purposes

of carrying out the provisions of this subchapter: Provided, however, That all Federal requirements for selfdetermination contracts and grants under this Act

shall be promulgated as regulations in conformity with

sections 552 and 553 of title 5.’’

Subsec. (b). Pub. L. 103–437, §10(c)(2)(A), which directed that subsec. (b) be repealed, was itself repealed

by Pub. L. 104–287, §6(e). See Effective Date and Construction of 1996 Amendment note below.
Page 167 TITLE 25—INDIANS § 450l

Pub. L. 103–435, which directed substitution of ‘‘Committee on Natural Resources’’ for ‘‘Committee on Interior and Insular Affairs’’ in par. (2), could not be executed because ‘‘Committee on Interior and Insular Affairs’’ did not appear in text subsequent to amendment

by Pub. L. 103–413, §105(1). See below.

Pub. L. 103–413, §105(1), added subsec. (b) and struck

out former subsec. (b) which read as follows:

‘‘(b)(1) Within three months from October 5, 1988, the

Secretary shall consider and formulate appropriate regulations to implement the provisions of this Act, with

the participation of Indian tribes. Such proposed regulations shall contain all Federal requirements applicable to self-determination contracts and grants under

this Act.

‘‘(2) Within six months from October 5, 1988, the Secretary shall present the proposed regulations to the Select Committee on Indian Affairs of the United States

Senate and to the Committee on Interior and Insular

Affairs of the United States House of Representatives.

‘‘(3) Within seven months from October 5, 1988, the

Secretary shall publish proposed regulations in the

Federal Register for the purpose of receiving comments

from tribes and other interested parties.

‘‘(4) Within ten months from October 5, 1988, the Secretary shall promulgate regulations to implement the

provisions of such Act.’’

Subsec. (c). Pub. L. 103–437, §10(c)(2)(B), substituted

‘‘Committee on Energy and Natural Resources of the

Senate and the Committee on Natural Resources of the

House of Representatives’’ for ‘‘Committees on Interior

and Insular Affairs of the United States Senate and

House of Representatives’’.

Subsecs. (d), (e). Pub. L. 103–413, §105(2), added subsecs. (d) and (e).

1990—Subsec. (c). Pub. L. 101–644 inserted ‘‘, with the

participation of Indian tribes and tribal organizations,’’

after ‘‘authorized’’.

1988—Subsec. (a). Pub. L. 100–472, §207(a), substituted

‘‘Health and Human Services’’ for ‘‘Health, Education,

and Welfare’’, and inserted proviso relating to promulgation of Federal requirements for self-determination

contracts as regulations.

Subsec. (b). Pub. L. 100–472, §207(b), amended subsec.

(b) generally. Prior to amendment, subsec. (b) read as

follows:

‘‘(1) Within six months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and

Human Services shall each to the extent practicable,

consult with national and regional Indian organizations to consider and formulate appropriate rules and

regulations to implement the provisions of this subchapter.

‘‘(2) Within seven months from January 4, 1975, the

Secretary of the Interior and the Secretary of Health

and Human Services shall each present the proposed

rules and regulations to the Committees on Interior

and Insular Affairs of the United States Senate and

House of Representatives.

‘‘(3) Within eight months from January 4, 1975, the

Secretary of the Interior and the Secretary of Health

and Human Services shall publish proposed rules and

regulations in the Federal Register for the purpose of

receiving comments from interested parties.

‘‘(4) Within ten months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and

Human Services shall promulgate rules and regulations

to implement the provisions of this subchapter.’’

CHANGE OF NAME

‘‘Secretary of Health and Human Services’’ substituted for ‘‘Secretary of Health, Education, and Welfare’’ in subsec. (c), pursuant to section 509(b) of Pub.

L. 96–88, which is classified to section 3508(b) of Title 20,

Education.

Committee on Natural Resources of House of Representatives treated as referring to Committee on Resources of House of Representatives by section 1(a) of

Pub. L. 104–14, set out as a note preceding section 21 of

Title 2, The Congress.

EFFECTIVE DATE AND CONSTRUCTION OF 1996

AMENDMENT

Section 6(e) of Pub. L. 104–287 provided that: ‘‘Effective November 2, 1994, section 10(c)(2)(A) of the Act of

November 2, 1994 (Public Law 103–437, 108 Stat. 4589)

[amending this section], is repealed and section 107(b)

of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450k(b)), as amended by section

105(1) of the Indian Self-Determination Act (Public Law

103–413, 108 Stat. 4269), is revived and shall read as if

section 10(c)(2)(A) of the Act of November 2, 1994 (Public Law 103–437, 108 Stat. 4589), had not been enacted.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 450b, 450h of

this title.

§ 450l. Contract or grant specifications

(a) Terms

Each self-determination contract entered into

under this subchapter shall—

(1) contain, or incorporate by reference, the

provisions of the model agreement described

in subsection (c) of this section (with modifications where indicated and the blanks appropriately filled in), and

(2) contain such other provisions as are

agreed to by the parties.

(b) Payments; Federal records

Notwithstanding any other provision of law,

the Secretary may make payments pursuant to

section 1(b)(6) of such model agreement. As provided in section 1(b)(7) of the model agreement,

the records of the tribal government or tribal

organization specified in such section shall not

be considered Federal records for purposes of

chapter 5 of title 5.

(c) Model agreement

The model agreement referred to in subsection

(a)(1) of this section reads as follows:

‘‘SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE llllll TRIBAL GOVERNMENT.

‘‘(a) AUTHORITY AND PURPOSE.—

‘‘(1) AUTHORITY.—This agreement, denoted a

Self-Determination Contract (referred to in

this agreement as the ‘Contract’), is entered

into by the Secretary of the Interior or the

Secretary of Health and Human Services (referred to in this agreement as the ‘Secretary’),

for and on behalf of the United States pursuant to title I of the Indian Self-Determination

and Education Assistance Act (25 U.S.C. 450 et

seq.) and by the authority of the llllll

tribal government or tribal organization (referred to in this agreement as the ‘Contractor’). The provisions of title I of the Indian

Self-Determination and Education Assistance

Act (25 U.S.C. 450 et seq.) are incorporated in

this agreement.

‘‘(2) PURPOSE.—Each provision of the Indian

Self-Determination and Education Assistance

Act (25 U.S.C. 450 et seq.) and each provision of

this Contract shall be liberally construed for

the benefit of the Contractor to transfer the

funding and the following related functions,

services, activities, and programs (or portions

thereof), that are otherwise contractable

under section 102(a) of such Act, including all

related administrative functions, from the