II

103D CONGRESS

1ST SESSION S. 1410

To amend the Indian Self-Determination and Education Assistance Act.

IN THE SENATE OF THE UNITED STATES

AUGUST 6 (legislative day, JUNE 30), 1993

Mr. INOUYE (by request) introduced the following bill; which was read twice

and referred to the Committee on Indian Affairs

A BILL

To amend the Indian Self-Determination and Education

Assistance Act.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Indian Self—Deter5 mination and Education Assistance Act Amendments Act

6 of 1993.

7 SEC. 2. AMENDMENTS.

8 The Indian Self-Determination and Education Assist9 ance Act (25 U.S.C. 450 et seq.) is amended as follows:
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1 (1) at the beginning of section 4, insert the fol2 lowing new paragraph and redesignate all other

3 paragraphs accordingly:

4 ‘‘(a) ‘construction contract’ means a fixed-price

5 or cost-reimbursement self-determination contract

6 for a construction project. Contracts (i) limited to

7 providing architectural and engineering services,

8 planning services, and/or construction management

9 services; (ii) for the Housing Improvement Program

10 or roads construction and maintenance program ad11 ministered by the Secretary of the Interior; and (iii)

12 for the health facility maintenance and improvement

13 program administered by the Secretary of Health

14 and Human Services, shall not be deemed to be con15 struction contracts within the meaning of this Act’’;

16 (2) amend the text of section 5(f) to read as

17 follows:

18 ‘‘(f) For each fiscal year during which an Indian trib19 al organization receives or expends funds pursuant to a

20 contract or grant under this subchapter, the tribal organi21 zation which requested such contract or grant shall submit

22 to the appropriate Secretary a single agency audit report

23 as required by chapter 75 of title 31, United States Code.

24 Such tribal organization shall also submit such informa25 tion on the conduct of the program or service involved,
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1 and such other information as the appropriate Secretary

2 may request through regulations promulgated in conform3 ity with sections 552 and 553 of title 5, United States

4 Code, except that the Secretary shall only request the

5 minimal information necessary to assure the delivery of

6 satisfactory services and protection of trust resources, con7 sistent with the purposes of this Act to vest primary re8 sponsibility for the administration of contracted programs

9 in the tribal organization.’’.

10 (3) in section 7(a) delete ‘‘of subcontractors’’

11 and insert in lieu thereof ‘‘or subcontractors (exclud12 ing tribal organizations)’’;

13 (4) at the end of section 7, add the following

14 new subsection:

15 ‘‘(c) Notwithstanding subsections (a) and (b), where

16 a self-determination contract, or portion thereof, is in17 tended to benefit one tribe, a tribal organization contract18 ing under this Act shall comply with tribal employment

19 or contract preference laws adopted by such tribe.’’.

20 (5) at the end of section 102(a)(1), add the fol21 lowing new sentence: ‘‘Such programs shall include

22 administrative functions of the Department of the

23 Interior or the Department of Health and Human

24 services which support the delivery of services to In25 dians, including those administrative activities relat-
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1 ed to, but not part of, the service delivery program,

2 which are otherwise contractible, without regard to

3 the organizational level within the Department

4 where such functions are carried out.’’.

5 (6) amend the text of section 102(a)(2) to read

6 as follows:

7 ‘‘(2) If so authorized by an Indian tribe under

8 paragraph (1) of this subsection, a tribal organiza9 tion may submit a proposal for a self-determination

10 contract, or to amend or renew a self-determination

11 contract, to the Secretary for review. Subject to the

12 provisions of subsection (4) hereof, the Secretary

13 shall, within ninety days after receipt of the pro14 posal, approve the proposal unless, within sixty days

15 of receipt of the proposal, a specific finding is made

16 that—

17 ‘‘(A) the service to be rendered by the trib18 al organization to the Indian beneficiaries of

19 the particular program or function to be con20 tracted will not be satisfactory;

21 ‘‘(B) adequate protection of trust resources

22 by the tribal organization is not assured; or

23 ‘‘(C) the proposed project or function to be

24 contracted for cannot be properly completed or

25 maintained by the proposed contract, either be-
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1 cause (i) the amount of funds proposed in the

2 contract is in excess of the funding levels speci3 fied in section 106(a) of this Act, (ii) the pro4 gram (or portion thereof) to be contracted is

5 beyond the scope of paragraph (1) hereof, be6 cause the proposal includes activities which can7 not be lawfully carried out by the contractor, or

8 (iii) the existence of some other deficiency justi9 fying declination under this section.’’.

10 (7) at the end of section 102(a), add the follow11 ing new paragraph (4):

12 ‘‘(4) The Secretary shall approve any severable

13 portion of a contract proposal which does not sup14 port a declination finding as provided in paragraph

15 (3) of this subsection. Whenever the Secretary deter16 mines under paragraph (3) that a contract proposal

17 (A) proposes in part to plan, conduct or administer

18 a program that is beyond the scope of paragraph

19 (1), or (B) proposes a funding level in excess of the

20 funding levels specified in section 106(a) of this Act,

21 the Secretary shall approve the proposal to the ex22 tent authorized to paragraph (1) or section 106(a)

23 of this Act, as appropriate (subject to any agreed24 upon alteration in the proposed scope of work). In

25 the event the tribal organization elects to operate the
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1 severable portion of a contract proposal, subsection

2 (b) hereof shall apply only with respect to the de3 clined portion of the contract.’’.

4 (8) at the end of section 102, add the following:

5 ‘‘(e) In any hearing or appeal provided under sub6 section (b)(3), the Secretary shall carry the burden of

7 proof to establish by clear and convincing evidence that

8 the contract proposal should be declined. Final depart9 mental decisions in all such appeals shall be made at a

10 level not lower than the level of the Assistant Secretary.

11 ‘‘(f) A tribal organization in Alaska authorized by

12 tribal resolution(s) to contract under this Act the oper13 ation of one or more programs may redelegate that au14 thority, by formal action of the tribal organization’s gov15 erning body, to another tribal organization provided ad16 vance notice of such redelegation and a copy of the con17 tracting proposal, prior to its submission to the Secretary,

18 are provided to all tribes served by the tribal organization.

19 Nothing herein is to be construed as a limitation on the

20 authority of a tribe to limit, restrict or rescind its resolu21 tion at any time or in any manner whatsoever. A tribe

22 receiving such notice shall have sixty days from receipt

23 of the notice to notify the tribal organization in writing

24 of its intent to adopt a limiting resolution prohibiting or

25 conditioning the proposed redelegation, and thereafter
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1 shall have sixty days to adopt and transmit such resolution

2 to the tribal organization. A tribal organization so notified

3 of a tribe’s intent shall not proceed with any redelegation

4 proposal until the expiration of the sixty day period.

5 (9) amend the text of section 105(a), to read as

6 follows:

7 ‘‘(a) Contracts, grants and cooperative agreements

8 with tribal organizations pursuant to sections 102 and 103

9 of this title shall not be subject to general Federal con10 tracting, discretionary grant or cooperative agreement

11 laws and regulations, except to the extent such laws ex12 pressly apply to Indian tribes: Provided, That with respect

13 to construction contracts as defined in section 4 of this

14 Act (or subcontracts of such a construction contract), the

15 Office of Federal Procurement Policy Act (88 Stat. 796;

16 41 U.S.C. 401 et seq.) and Federal acquisition regulations

17 promulgated thereunder shall only apply to the limited ex18 tent such statute or regulations are necessary to assure

19 proper completion of the contract and are not inconsistent

20 with the provisions or policy of this Act.’’.

21 (10) amend the text of section 105(e) to read

22 as follows:

23 ‘‘(e) Whenever an Indian tribe or tribal organization

24 requests retrocession of the appropriate Secretary for any

25 contract, or portion thereof, entered into pursuant to this
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1 Act, such retrocession shall, unless the request for ret2 rocession is rescinded by such tribe or tribal organization,

3 become effective one year from the date of the request by

4 the Indian tribe or at such date as may be mutually agreed

5 by the Secretary and the Indian tribe.’’.

6 (11) amend the text of section 105(f)(2) to read

7 as follows:

8 ‘‘(2) donate to an Indian tribe or tribal organi9 zation the title to any personal or real property

10 found to be excess to the needs of the Bureau of In11 dian Affairs, the Indian Health Service, or the Gen12 eral Services Administration, except that title to

13 property and equipment furnished by the Federal

14 Government for use in the performance of the con15 tract or purchased with funds under any self-deter16 mination contract or grant agreement shall, unless

17 otherwise requested by the tribe or tribal organiza18 tion, vest in the appropriate tribe or tribal organiza19 tion, and upon retrocession, rescission or termi20 nation of such self-determination contract or grant,

21 title to such property having a present value in ex22 cess of $5,000 and remaining in use in support of

23 the contracted program shall, at the Secretary’s op24 tion, revert to the Secretary; and’’.
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1 (12) in section 105(g) add ‘‘for the provision of

2 personal services’’ after ‘‘make any contract’’;

3 (13) at the end of section 105, add the follow4 ing new subsections (i), (j), (k), and (l):

5 ‘‘(i) Where a self-determination contract requires the

6 Secretary to administratively divide a program which has

7 previously been administered for the benefit of a greater

8 number of tribes than are represented by the tribal organi9 zation that is a party to the contract, the Secretary

10 shall—

11 ‘‘(1) endeavor to minimize any adverse effect on

12 the level of services to be provided to all affected

13 tribes;

14 ‘‘(2) notify all affected tribes not party to the

15 contract of the receipt of the contract proposal at

16 the earliest possible date, and of the right of such

17 tribes to comment on how the Secretary’s program

18 should be divided to best meet the needs of all af19 fected tribes;

20 ‘‘(3) explore the feasibility of instituting cooper21 ative agreements amongst the affected tribes not a

22 party to the contract, the tribal organization operat23 ing the contract, and the Secretary; and

24 ‘‘(4) identify and report to Congress the nature

25 of any diminution in quality, level or quantity of
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1 services to any affected tribe resulting from the divi2 sion of the Secretary’s program, together with an es3 timate of the funds which would be required to cor4 rect such diminution. In determining whether to de5 cline a contract under section 102(a)(2), the Sec6 retary shall not consider the effect which a contract

7 proposal will have on tribes not represented by the

8 tribal organization submitting such proposal, nor on

9 Indians not served by the portion of the program to

10 be contracted. The Secretary shall make such special

11 provisions as may be necessary to assure that serv12 ices are provided to the tribes not served by a self13 determination contract.

14 ‘‘(j) Upon notice to the Secretary, tribal organiza15 tions carrying out self-determination contracts are author16 ized to redesign programs, activities, functions and serv17 ices under contract, including program standards, to best

18 meet the local geographic, demographic, economic, cul19 tural, health and institutional needs of the Indian people

20 and tribes served under the contract. The Secretary shall

21 evaluate any redesign proposal against the declination cri22 teria set forth in section 102 of this Act.

23 ‘‘(k) For purposes of section 201(a) of the Act of

24 June 30, 1949 (40 U.S.C. 481(a)) (involving Federal

25 sources of supply), an Indian tribe or tribal organization
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1 carrying out a contract, grant or cooperative agreement

2 under this Act shall be deemed an executive agency when

3 carrying out such contract, grant or agreement.

4 ‘‘(l) Upon the request of an Indian tribe or tribal or5 ganization, the Secretary shall enter into leases with In6 dian tribes and tribal organizations which hold title to,

7 a leasehold interest in, or a beneficial interest in, facilities

8 used by Indian tribes or tribal organizations for the ad9 ministration and delivery of contract services under the

10 Act. The Secretary shall compensate such Indian tribes

11 or tribal organizations for the use of leased facilities for

12 contract purposes. Lease compensation may include: rent,

13 depreciation based on the useful life of the building, prin14 cipal and interest paid or accrued, operation and mainte15 nance expenses, and such other reasonable expenses deter16 mined by regulation to be allowable.

17 (14) amend the text of section 106(a) to read

18 as follows:

19 ‘‘(a)(1) The amount of funds provided under the

20 terms of self-determination contracts entered into pursu21 ant to this Act shall not be less than the appropriate Sec22 retary would have otherwise provided for the operation of

23 the programs or portions thereof for the period covered

24 by the contract, without regard to the organizational level

25 or levels within the Department at which the program (or
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1 portion thereof), including supportive administrative func2 tions which are otherwise contractible, is operated.

3 ‘‘(2) There shall be added to the amount required by

4 paragraph (1) contract support costs which shall consist

5 of an amount for the reasonable costs for activities which

6 must be carried on by a tribal organization as a contractor

7 to ensure compliance with the terms of the contract and

8 prudent management, but which—

9 ‘‘(A) normally are not carried on by the respec10 tive Secretary in his direct operation of the program;

11 or

12 ‘‘(B) are provided by the Secretary in support

13 of the contracted program from resources other than

14 those under contract.

15 ‘‘Contract support costs shall include, without distinction,

16 funds to reimburse tribal contractors for reasonable and

17 allowable costs of contracting attributable to direct pro18 gram expenses, and reasonable administrative or other

19 overhead expenses in connection with tribal operation of

20 Federal programs. The amount of funds to which a tribe

21 or tribal organization is entitled pursuant to this subpara22 graph shall be negotiated annually with the Secretary.

23 ‘‘(3) Any savings in operation under a self-determina24 tion contract (including a cost reimbursement construction

25 contract) shall be utilized to provide additional services or
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1 benefits under the contract or be expended in the succeed2 ing fiscal year as provided in section 13a of this title.

3 ‘‘(4) During the initial year of a self-determination

4 contract there shall be included, in the amount required

5 to be paid under paragraph (2), start-up costs consisting

6 of the reasonable costs, either previously incurred or to

7 be incurred under the contract on a one-time basis, nec8 essary to plan, prepare for and take over operation of the

9 contracted program and to also ensure compliance with

10 the terms of the contract and prudent management: Pro11 vided, That previously incurred costs shall not be included

12 to the extent the Secretary was not notified in advance

13 and in writing of the nature and extent of the costs to

14 be incurred.’’;

15 (15) amend section 106(c) as follows:

16 (A) in clause (1) delete ‘‘and indirect

17 costs’’ and insert in lieu thereof ‘‘indirect costs

18 and negotiated contract support costs’’;

19 (B) in clause (2) insert immediately after

20 ‘‘indirect costs’’ the following: ‘‘and negotiated

21 contract support costs’’;

22 (C) delete ‘‘and’’ at the end of clause (4);

23 (D) delete the period at the end of clause

24 (5) and insert in lieu thereof a semicolon and

25 ‘‘and’’; and
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1 (E) at the end thereof, add the following:

2 ‘‘(6) a reporting of any deficiency of funds

3 needed to maintain the preexisting level of services

4 to any tribes affected by contracting activities under

5 this Act.’’.

6 (16) at the end of section 106(d)(2), add the

7 following new sentence: ‘‘Notwithstanding any other

8 provision of law, and subject to the availability of

9 appropriations, every Federal agency and every

10 State shall pay its full proportionate share of the in11 direct costs associated with federally funded con12 tracts or grants awarded to tribes or tribal organiza13 tions under any other law. In the event that appro14 priations are not sufficient for agencies other than

15 the Department of the Interior and the Department

16 of Health and Human Services, or for State govern17 ments or State agencies, to pay their full propor18 tionate share as provided herein, the Secretary shall,

19 subject to the availability of appropriations for this

20 purpose, fund and pay such shortfalls and report all

21 unfunded shortfalls to the Congress, as provided in

22 section 106(c)(2).’’;

23 (17) amend section 106(f) by inserting imme24 diately after the second sentence thereof the follow25 ing: ‘‘For the purpose of the three hundred and
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1 sixty-five day period, an audit report shall be

2 deemed received on the date of actual receipt by the

3 Secretary, absent a notice by the Secretary within

4 sixty days of receipt that the report will be rejected

5 as insufficient due to non-compliance with chapter

6 75 of title 31 of the United States Code, or other

7 applicable law.’’;

8 (18) amend the text of section 106(g) to read

9 as follows:

10 ‘‘(g) Upon approval of a self-determination contract,

11 the Secretary shall allocate to the contract the full amount

12 to which the contractor is entitled under section 106(a),

13 subject to adjustments for each subsequent year that Fed14 eral programs are administered by such tribe or tribal

15 organization.’’.

16 (19) amend the text of section 106(i) to read as

17 follows:

18 ‘‘(i) The Secretary shall consult annually with, and

19 solicit the participation of, Indian tribes and tribal organi20 zations in the development of the budget for the Indian

21 Health Service and the Bureau of Indian Affairs, includ22 ing participation in the formulation of annual budget re23 quests to Congress.’’.

24 (20) amend section 106 by adding at the end

25 thereof the following:
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1 ‘‘(j) A tribal organization may use funds provided

2 under a self-determination contract to meet matching or

3 cost participation requirements under other Federal and

4 non-Federal programs.

5 ‘‘(k) Without intending any limitation, a tribal orga6 nization may, without approval, expend funds provided

7 under a self-determination contract for the following pur8 poses to the extent supportive of a contracted program:

9 ‘‘(1) depreciation and use allowances not other10 wise specifically prohibited by law, including depre11 ciation of facilities owned by the tribe and tribal or12 ganization and constructed with Federal financial

13 assistance;

14 ‘‘(2) publication and printing costs;

15 ‘‘(3) building, realty and facilities costs, includ16 ing rental costs or mortgage expenses;

17 ‘‘(4) automated data processing and similar

18 equipment or services;

19 ‘‘(5) cost of capital assets and repairs;

20 ‘‘(6) management studies;

21 ‘‘(7) professional services other than services

22 provided in connection with judicial proceedings by

23 or against the United States;

24 ‘‘(8) insurance and indemnification, including

25 insurance covering the risk of loss of or damage to
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1 property used in connection with the contract with2 out regard to the ownership of such property;

3 ‘‘(9) costs incurred to raise funds or contribu4 tions from non-Federal sources for the purpose of

5 furthering the goals and objectives of a self-deter6 mination contract;

7 ‘‘(10) interest expenses paid on capital expendi8 tures such as buildings, building renovation, or ac9 quisition or fabrication of capital equipment, and in10 terest expenses on loans necessitated due to Sec11 retarial delays in providing funds under a contract;

12 and

13 ‘‘(11) expenses of a tribal organization’s gov14 erning body to the extent attributable to the man15 agement or operation of programs under this Act.

16 ‘‘(l) Within twelve months following the date of enact17 ment of this subsection, the Office of Management and

18 Budget, with the active participation of Indian tribes and

19 tribal organizations, the Department of the Interior, Of20 fice of the Inspector General, and the Health and Human

21 Services Department, Cost Determination Branch, shall

22 develop a separate set of cost principles applicable to In23 dian tribes and tribal organizations consistent with the

24 government-to-government Federal-tribal relationship em25 bodied in this Act.
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1 ‘‘(m) Except in connection with rescission and

2 reassumption of a contract under section 109 of this Act,

3 the Secretary shall in no circumstance suspend, withhold

4 or delay the payment of funds to a tribal organization

5 under a self-determination contract.

6 ‘‘(n) Program income earned by a tribal organization

7 in the course of carrying out a self-determination contract

8 shall be used by the tribal organization to further the gen9 eral purposes of the contract and shall not be a basis for

10 reducing the amount of funds otherwise obligated to the

11 contract, provided that use of collections made under title

12 IV of Public Law 94–437 shall be further limited to the

13 extent provided in that Act.

14 ‘‘(o) To the extent contracting activities under this

15 Act reduce the Secretary’s administrative or other respon16 sibilities in connection with the operation of Indian pro17 grams, resulting in savings which have not otherwise been

18 included in the contract amount specified in subsection (a)

19 hereof, and to the extent that doing so will not adversely

20 affect the Secretary’s ability to carry out his responsibil21 ities to other tribes and tribal organizations, the Secretary

22 shall make such savings available to tribal organizations

23 contracting under this Act.

24 ‘‘(p) Notwithstanding any laws or regulations to the

25 contrary, a tribal organization may rebudget within the
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1 approved budget of its contract to meet contract require2 ments, provided that such rebudgeting does not have a sig3 nificant and adverse effect upon the level or nature of

4 services.’’;

5 (21) amend the text of section 107(a) to read

6 as follows:

7 ‘‘(a) The Secretaries of the Interior and of Health

8 and Human Services are each authorized to perform any

9 and all acts and to make such rules and regulations as

10 may be necessary and proper for the purposes of carrying

11 out the provisions of this subchapter: Provided, however,

12 That all Federal requirements for self-determination con13 tracts and grants under this Act shall be promulgated as

14 a single set of regulations in title 25 of the Code of Fed15 eral Regulations and in conformity with sections 552 and

16 553 of title 5. Notwithstanding the preceding sentence, the

17 amendments made by the Indian Self-Determination and

18 Education Act Amendments of 1993 shall be effective as

19 of October 5, 1988.’’.

20 (22) amend the text of section 107(b) to read

21 as follows:

22 ‘‘(b) In drafting, and promulgating, regulations for

23 implementation of this Act, as amended, the Secretaries

24 shall comply with the following procedures:
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1 ‘‘(1) prior to publishing proposed regulations,

2 the Secretaries shall within forty-five days from the

3 date of enactment of these amendments convene re4 gional meetings and a national meeting to obtain

5 input from interested parties in the development of

6 proposed regulations to implement the provisions of

7 this Act, as amended. Such meetings shall include

8 representatives of Indian tribes, tribal organizations,

9 individual tribal members, and representatives of

10 other parties interested in the implementation of this

11 Act, as amended.

12 ‘‘(2) during the meetings identified in subpara13 graph (1), the tribal representatives shall identify

14 key issues concerning implementation of the Indian

15 Self-Determination Act, as amended. The Secretar16 ies shall provide for a comprehensive discussion and

17 exchange of information on these issues. Likewise,

18 the Secretaries may identify issues concerning imple19 mentation of the Indian Self-Determination Act, as

20 amended, and provide for a comprehensive discus21 sion and exchange of information on these issues.

22 The Secretaries shall take into account the informa23 tion received at such meetings in the development of

24 proposed regulations, and shall publish a summary
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1 of such information in the Federal Register along

2 with a notice of proposed rulemaking.

3 ‘‘(3) subsequent to the regional and national

4 meetings and prior to publication of proposed regu5 lations in the Federal Register, the Secretaries shall

6 prepare draft regulations implementing the Indian

7 Self-Determination Act, as amended, including regu8 lations addressing all key issues identified by the

9 tribal organizations and those key issues identified

10 by the Secretaries pursuant to paragraph (2), and

11 the Secretaries shall submit the draft regulations to

12 a negotiated rulemaking process. The process shall

13 waive application of the Federal Advisory Committee

14 Act (5 U.S.C. App. 2 § 1 et seq.). The rulemaking

15 process shall follow the guidance of the Negotiated

16 Rulemaking Act of 1990 and of the Administrative

17 Conference of the United States in Recommenda18 tions 82–4 and 85–5, ‘‘Procedures for Negotiating

19 Proposed Regulations’’ (1 CFR 305.82–4 and

20 305.85–5), and any successor recommendation, reg21 ulation or law. Participants in the negotiation shall

22 be chosen by the Secretaries from among partici23 pants in the regional and national meetings, rep24 resenting the groups described in paragraph (1) and

25 from all geographic regions. The Secretaries shall
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1 publish the product of the negotiated rulemaking

2 process in the Federal Register in the form of a pro3 posed rule. The Secretaries shall also include in the

4 final rule as much as the proposed rule as is prac5 ticable. The negotiations shall be conducted in a

6 timely manner and the proposed rule shall be pub7 lished in the Federal Register by the Secretaries

8 within six months from the date of enactment of

9 these Amendments.’’.

10 (23) amend section 107 by adding at the end

11 thereof the following new subsection (d):

12 ‘‘(d) Notwithstanding any laws or regulations to the

13 contrary, the Secretary shall retain the authority to waive

14 or make exceptions to his regulations where the Secretary

15 finds that such waiver or exception is in the best interest

16 of the Indians served by the contract. The Secretary shall

17 review a waiver request under the declination criteria con18 tained in section 102(a)(2) of this Act.’’.

19 (24) amend the text of section 109 to read as

20 follows: ‘‘Each contract or grant agreement entered

21 into pursuant to sections 102 and 103 of this title

22 shall provide that in any case where the appropriate

23 Secretary determines that the tribal organization’s

24 performance under such contract or grant agreement

25 involves (1) the violation of the rights or
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1 endangerment of the health, safety, or welfare of

2 any persons; or (2) gross negligence or mismanage3 ment in the handling or use of funds provided to the

4 tribal organization pursuant to such contract or

5 grant agreement, such Secretary may, under regula6 tions prescribed by him and after providing notice

7 and a hearing on the record to such tribal organiza8 tion, rescind such contract or grant agreement and

9 assume or resume control or operation of the pro10 gram, activity, or service involved if he determines

11 that the tribal organization has not taken corrective

12 action as prescribed by him to remedy the contract

13 deficiency: Provided, That the appropriate Secretary

14 may, upon written notice to a tribal organization,

15 and the tribe(s) served thereby, immediately rescind

16 a contract or grant and resume control or operation

17 of a program, activity, or service if he finds that

18 there is an immediate threat of imminent harm to

19 the safety of any person and that such threat arises

20 from the contractor’s failure to fulfill the require21 ments of the contract. In such cases, he shall pro22 vide the tribal organization with a hearing on the

23 record within ten days or such later date as the trib24 al organization may approve. Such Secretary may

25 decline to enter into a new contract or grant agree-
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1 ment and retain control of such program, activity, or

2 service until such time as he is satisfied that the vio3 lations of rights or endangerment of health, safety,

4 or welfare which necessitated the rescission has been

5 corrected. In any hearing or appeal provided for

6 under this section, the Secretary shall carry the bur7 den of proof to establish by clear and convincing evi8 dence that the contract should be rescinded, as9 sumed or reassumed. Nothing in this section shall be

10 construed as contravening the Occupational Safety

11 and Health Act of 1970, as amended.

12 (25) amend section 110(a) by inserting imme13 diately before the period at the end thereof the fol14 lowing: ‘‘(including immediate injunctive relief to

15 compel the Secretary to fund an approved self-deter16 mination contract)’’.

17 (26) amend section 110(d) by inserting imme18 diately before the period at the end thereof the fol19 lowing: ‘‘except that all such administrative appeals

20 shall be heard by the Interior Board of Contract Ap21 peals’’.

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