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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1410 Introduced in Senate (IS)]

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.

    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 ``Indian Self--Determination and 
Education Assistance Act Amendments Act of 1993.

SEC. 2. AMENDMENTS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.) is amended as follows:
            (1) at the beginning of section 4, insert the following new 
        paragraph and redesignate all other paragraphs accordingly:
            ``(a) `construction contract' means a fixed-price or cost-
        reimbursement self-determination contract for a construction 
        project. Contracts (i) limited to providing architectural and 
        engineering services, planning services, and/or construction 
        management services; (ii) for the Housing Improvement Program 
        or roads construction and maintenance program administered by 
        the Secretary of the Interior; and (iii) for the health 
        facility maintenance and improvement program administered by 
        the Secretary of Health and Human Services, shall not be deemed 
        to be construction contracts within the meaning of this Act'';
            (2) amend the text of section 5(f) to read as follows:
    ``(f) For each fiscal year during which an Indian tribal 
organization receives or expends funds pursuant to a contract or grant 
under this subchapter, the tribal organization which requested such 
contract or grant shall submit to the appropriate Secretary a single 
agency audit report as required by chapter 75 of title 31, United 
States Code. Such tribal organization shall also submit such 
information on the conduct of the program or service involved, and such 
other information as the appropriate Secretary may request through 
regulations promulgated in conformity with sections 552 and 553 of 
title 5, United States Code, except that the Secretary shall only 
request the minimal information necessary to assure the delivery of 
satisfactory services and protection of trust resources, consistent 
with the purposes of this Act to vest primary responsibility for the 
administration of contracted programs in the tribal organization.''.
            (3) in section 7(a) delete ``of subcontractors'' and insert 
        in lieu thereof ``or subcontractors (excluding tribal 
        organizations)'';
            (4) at the end of section 7, add the following new 
        subsection:
    ``(c) Notwithstanding subsections (a) and (b), where a self-
determination contract, or portion thereof, is intended to benefit one 
tribe, a tribal organization contracting under this Act shall comply 
with tribal employment or contract preference laws adopted by such 
tribe.''.
            (5) at the end of section 102(a)(1), add the following new 
        sentence: ``Such programs shall include administrative 
        functions of the Department of the Interior or the Department 
        of Health and Human services which support the delivery of 
        services to Indians, including those administrative activities 
        related to, but not part of, the service delivery program, 
        which are otherwise contractible, without regard to the 
        organizational level within the Department where such functions 
        are carried out.''.
            (6) amend the text of section 102(a)(2) to read as follows:
            ``(2) If so authorized by an Indian tribe under paragraph 
        (1) of this subsection, a tribal organization may submit a 
        proposal for a self-determination contract, or to amend or 
        renew a self-determination contract, to the Secretary for 
        review. Subject to the provisions of subsection (4) hereof, the 
        Secretary shall, within ninety days after receipt of the 
        proposal, approve the proposal unless, within sixty days of 
        receipt of the proposal, a specific finding is made that--
                    ``(A) the service to be rendered by the tribal 
                organization to the Indian beneficiaries of the 
                particular program or function to be contracted will 
                not be satisfactory;
                    ``(B) adequate protection of trust resources by the 
                tribal organization is not assured; or
                    ``(C) the proposed project or function to be 
                contracted for cannot be properly completed or 
                maintained by the proposed contract, either because (i) 
                the amount of funds proposed in the contract is in 
                excess of the funding levels specified in section 
                106(a) of this Act, (ii) the program (or portion 
                thereof) to be contracted is beyond the scope of 
                paragraph (1) hereof, because the proposal includes 
                activities which cannot be lawfully carried out by the 
                contractor, or (iii) the existence of some other 
                deficiency justifying declination under this 
                section.''.
            (7) at the end of section 102(a), add the following new 
        paragraph (4):
            ``(4) The Secretary shall approve any severable portion of 
        a contract proposal which does not support a declination 
        finding as provided in paragraph (3) of this subsection. 
        Whenever the Secretary determines under paragraph (3) that a 
        contract proposal (A) proposes in part to plan, conduct or 
        administer a program that is beyond the scope of paragraph (1), 
        or (B) proposes a funding level in excess of the funding levels 
        specified in section 106(a) of this Act, the Secretary shall 
        approve the proposal to the extent authorized to paragraph (1) 
        or section 106(a) of this Act, as appropriate (subject to any 
        agreed-upon alteration in the proposed scope of work). In the 
        event the tribal organization elects to operate the severable 
        portion of a contract proposal, subsection (b) hereof shall 
        apply only with respect to the declined portion of the 
        contract.''.
            (8) at the end of section 102, add the following:
    ``(e) In any hearing or appeal provided under subsection (b)(3), 
the Secretary shall carry the burden of proof to establish by clear and 
convincing evidence that the contract proposal should be declined. 
Final departmental decisions in all such appeals shall be made at a 
level not lower than the level of the Assistant Secretary.
    ``(f) A tribal organization in Alaska authorized by tribal 
resolution(s) to contract under this Act the operation of one or more 
programs may redelegate that authority, by formal action of the tribal 
organization's governing body, to another tribal organization provided 
advance notice of such redelegation and a copy of the contracting 
proposal, prior to its submission to the Secretary, are provided to all 
tribes served by the tribal organization. Nothing herein is to be 
construed as a limitation on the authority of a tribe to limit, 
restrict or rescind its resolution at any time or in any manner 
whatsoever. A tribe receiving such notice shall have sixty days from 
receipt of the notice to notify the tribal organization in writing of 
its intent to adopt a limiting resolution prohibiting or conditioning 
the proposed redelegation, and thereafter shall have sixty days to 
adopt and transmit such resolution to the tribal organization. A tribal 
organization so notified of a tribe's intent shall not proceed with any 
redelegation proposal until the expiration of the sixty day period.
            (9) amend the text of section 105(a), to read as follows:
    ``(a) Contracts, grants and cooperative agreements with tribal 
organizations pursuant to sections 102 and 103 of this title shall not 
be subject to general Federal contracting, discretionary grant or 
cooperative agreement laws and regulations, except to the extent such 
laws expressly apply to Indian tribes: Provided, That with respect to 
construction contracts as defined in section 4 of this Act (or 
subcontracts of such a construction contract), the Office of Federal 
Procurement Policy Act (88 Stat. 796; 41 U.S.C. 401 et seq.) and 
Federal acquisition regulations promulgated thereunder shall only apply 
to the limited extent such statute or regulations are necessary to 
assure proper completion of the contract and are not inconsistent with 
the provisions or policy of this Act.''.
            (10) amend the text of section 105(e) to read as follows:
    ``(e) Whenever an Indian tribe or tribal organization requests 
retrocession of the appropriate Secretary for any contract, or portion 
thereof, entered into pursuant to this Act, such retrocession shall, 
unless the request for retrocession is rescinded by such tribe or 
tribal organization, become effective one year from the date of the 
request by the Indian tribe or at such date as may be mutually agreed 
by the Secretary and the Indian tribe.''.
            (11) amend the text of section 105(f)(2) to read as 
        follows:
            ``(2) donate to an Indian tribe or tribal organization the 
        title to any personal or real property found to be excess to 
        the needs of the Bureau of Indian Affairs, the Indian Health 
        Service, or the General Services Administration, except that 
        title to property and equipment furnished by the Federal 
        Government for use in the performance of the contract or 
        purchased with funds under any self-determination contract or 
        grant agreement shall, unless otherwise requested by the tribe 
        or tribal organization, vest in the appropriate tribe or tribal 
        organization, and upon retrocession, rescission or termination 
        of such self-determination contract or grant, title to such 
        property having a present value in excess of $5,000 and 
        remaining in use in support of the contracted program shall, at 
        the Secretary's option, revert to the Secretary; and''.
            (12) in section 105(g) add ``for the provision of personal 
        services'' after ``make any contract'';
            (13) at the end of section 105, add the following new 
        subsections (i), (j), (k), and (l):
    ``(i) Where a self-determination contract requires the Secretary to 
administratively divide a program which has previously been 
administered for the benefit of a greater number of tribes than are 
represented by the tribal organization that is a party to the contract, 
the Secretary shall--
            ``(1) endeavor to minimize any adverse effect on the level 
        of services to be provided to all affected tribes;
            ``(2) notify all affected tribes not party to the contract 
        of the receipt of the contract proposal at the earliest 
        possible date, and of the right of such tribes to comment on 
        how the Secretary's program should be divided to best meet the 
        needs of all affected tribes;
            ``(3) explore the feasibility of instituting cooperative 
        agreements amongst the affected tribes not a party to the 
        contract, the tribal organization operating the contract, and 
        the Secretary; and
            ``(4) identify and report to Congress the nature of any 
        diminution in quality, level or quantity of services to any 
        affected tribe resulting from the division of the Secretary's 
        program, together with an estimate of the funds which would be 
        required to correct such diminution. In determining whether to 
        decline a contract under section 102(a)(2), the Secretary shall 
        not consider the effect which a contract proposal will have on 
        tribes not represented by the tribal organization submitting 
        such proposal, nor on Indians not served by the portion of the 
        program to be contracted. The Secretary shall make such special 
        provisions as may be necessary to assure that services are 
        provided to the tribes not served by a self-determination 
        contract.
    ``(j) Upon notice to the Secretary, tribal organizations carrying 
out self-determination contracts are authorized to redesign programs, 
activities, functions and services under contract, including program 
standards, to best meet the local geographic, demographic, economic, 
cultural, health and institutional needs of the Indian people and 
tribes served under the contract. The Secretary shall evaluate any 
redesign proposal against the declination criteria set forth in section 
102 of this Act.
    ``(k) For purposes of section 201(a) of the Act of June 30, 1949 
(40 U.S.C. 481(a)) (involving Federal sources of supply), an Indian 
tribe or tribal organization carrying out a contract, grant or 
cooperative agreement under this Act shall be deemed an executive 
agency when carrying out such contract, grant or agreement.
    ``(l) Upon the request of an Indian tribe or tribal organization, 
the Secretary shall enter into leases with Indian tribes and tribal 
organizations which hold title to, a leasehold interest in, or a 
beneficial interest in, facilities used by Indian tribes or tribal 
organizations for the administration and delivery of contract services 
under the Act. The Secretary shall compensate such Indian tribes or 
tribal organizations for the use of leased facilities for contract 
purposes. Lease compensation may include: rent, depreciation based on 
the useful life of the building, principal and interest paid or 
accrued, operation and maintenance expenses, and such other reasonable 
expenses determined by regulation to be allowable.
            (14) amend the text of section 106(a) to read as follows:
    ``(a)(1) The amount of funds provided under the terms of self-
determination contracts entered into pursuant to this Act shall not be 
less than the appropriate Secretary would have otherwise provided for 
the operation of the programs or portions thereof for the period 
covered by the contract, without regard to the organizational level or 
levels within the Department at which the program (or portion thereof), 
including supportive administrative functions which are otherwise 
contractible, is operated.
    ``(2) There shall be added to the amount required by paragraph (1) 
contract support costs which shall consist of an amount for the 
reasonable costs for activities which must be carried on by a tribal 
organization as a contractor to ensure compliance with the terms of the 
contract and prudent management, but which--
            ``(A) normally are not carried on by the respective 
        Secretary in his direct operation of the program; or
            ``(B) are provided by the Secretary in support of the 
        contracted program from resources other than those under 
        contract.
``Contract support costs shall include, without distinction, funds to 
reimburse tribal contractors for reasonable and allowable costs of 
contracting attributable to direct program expenses, and reasonable 
administrative or other overhead expenses in connection with tribal 
operation of Federal programs. The amount of funds to which a tribe or 
tribal organization is entitled pursuant to this subparagraph shall be 
negotiated annually with the Secretary.
    ``(3) Any savings in operation under a self-determination contract 
(including a cost reimbursement construction 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.
    ``(4) During the initial year of a self-determination contract 
there shall be included, in the amount required to be paid under 
paragraph (2), start-up costs consisting of the reasonable costs, 
either previously incurred or to be incurred under the contract on a 
one-time basis, necessary to plan, prepare for and take over operation 
of the contracted program and to also ensure compliance with the terms 
of the contract and prudent management: Provided, That previously 
incurred costs shall not be included to the extent the Secretary was 
not notified in advance and in writing of the nature and extent of the 
costs to be incurred.'';
            (15) amend section 106(c) as follows:
                    (A) in clause (1) delete ``and indirect costs'' and 
                insert in lieu thereof ``indirect costs and negotiated 
                contract support costs'';
                    (B) in clause (2) insert immediately after 
                ``indirect costs'' the following: ``and negotiated 
                contract support costs'';
                    (C) delete ``and'' at the end of clause (4);
                    (D) delete the period at the end of clause (5) and 
                insert in lieu thereof a semicolon and ``and''; and
                    (E) at the end thereof, add the following:
            ``(6) a reporting of any deficiency of funds needed to 
        maintain the preexisting level of services to any tribes 
        affected by contracting activities under this Act.''.
            (16) at the end of section 106(d)(2), add the following new 
        sentence: ``Notwithstanding any other provision of law, and 
        subject to the availability of appropriations, every Federal 
        agency and every State shall pay its full proportionate share 
        of the indirect costs associated with federally funded 
        contracts or grants awarded to tribes or tribal organizations 
        under any other law. In the event that appropriations are not 
        sufficient for agencies other than the Department of the 
        Interior and the Department of Health and Human Services, or 
        for State governments or State agencies, to pay their full 
        proportionate share as provided herein, the Secretary shall, 
        subject to the availability of appropriations for this purpose, 
        fund and pay such shortfalls and report all unfunded shortfalls 
        to the Congress, as provided in section 106(c)(2).'';
            (17) amend section 106(f) by inserting immediately after 
        the second sentence thereof the following: ``For the purpose of 
        the three hundred and sixty-five day period, an audit report 
        shall be deemed received on the date of actual receipt by the 
        Secretary, absent a notice by the Secretary within sixty days 
        of receipt that the report will be rejected as insufficient due 
        to non-compliance with chapter 75 of title 31 of the United 
        States Code, or other applicable law.'';
            (18) amend the text of section 106(g) to read as follows:
    ``(g) Upon approval of a self-determination contract, the Secretary 
shall allocate to the contract the full amount to which the contractor 
is entitled under section 106(a), subject to adjustments for each 
subsequent year that Federal programs are administered by such tribe or 
tribal organization.''.
            (19) amend the text of section 106(i) to read as follows:
    ``(i) The Secretary shall consult annually with, and solicit the 
participation of, Indian tribes and tribal organizations in the 
development of the budget for the Indian Health Service and the Bureau 
of Indian Affairs, including participation in the formulation of annual 
budget requests to Congress.''.
            (20) amend section 106 by adding at the end thereof the 
        following:
    ``(j) A tribal organization may use funds provided under a self-
determination contract to meet matching or cost participation 
requirements under other Federal and non-Federal programs.
    ``(k) Without intending any limitation, a tribal organization may, 
without approval, expend funds provided under a self-determination 
contract for the following purposes to the extent supportive of a 
contracted program:
            ``(1) depreciation and use allowances not otherwise 
        specifically prohibited by law, including depreciation of 
        facilities owned by the tribe and tribal organization and 
        constructed with Federal financial assistance;
            ``(2) publication and printing costs;
            ``(3) building, realty and facilities costs, including 
        rental costs or mortgage expenses;
            ``(4) automated data processing and similar equipment or 
        services;
            ``(5) cost of capital assets and repairs;
            ``(6) management studies;
            ``(7) professional services other than services provided in 
        connection with judicial proceedings by or against the United 
        States;
            ``(8) insurance and indemnification, including insurance 
        covering the risk of loss of or damage to property used in 
        connection with the contract without regard to the ownership of 
        such property;
            ``(9) costs incurred to raise funds or contributions from 
        non-Federal sources for the purpose of furthering the goals and 
        objectives of a self-determination contract;
            ``(10) interest expenses paid on capital expenditures such 
        as buildings, building renovation, or acquisition or 
        fabrication of capital equipment, and interest expenses on 
        loans necessitated due to Secretarial delays in providing funds 
        under a contract; and
            ``(11) expenses of a tribal organization's governing body 
        to the extent attributable to the management or operation of 
        programs under this Act.
    ``(l) Within twelve months following the date of enactment of this 
subsection, the Office of Management and Budget, with the active 
participation of Indian tribes and tribal organizations, the Department 
of the Interior, Office of the Inspector General, and the Health and 
Human Services Department, Cost Determination Branch, shall develop a 
separate set of cost principles applicable to Indian tribes and tribal 
organizations consistent with the government-to-government Federal-
tribal relationship embodied in this Act.
    ``(m) Except in connection with rescission and reassumption of a 
contract under section 109 of this Act, the Secretary shall in no 
circumstance suspend, withhold or delay the payment of funds to a 
tribal organization under a self-determination contract.
    ``(n) Program income earned by a tribal organization in the course 
of carrying out a self-determination contract shall be used by the 
tribal organization to further the general purposes of the contract and 
shall not be a basis for reducing the amount of funds otherwise 
obligated to the contract, provided that use of collections made under 
title IV of Public Law 94-437 shall be further limited to the extent 
provided in that Act.
    ``(o) To the extent contracting activities under this Act reduce 
the Secretary's administrative or other responsibilities in connection 
with the operation of Indian programs, resulting in savings which have 
not otherwise been included in the contract amount specified in 
subsection (a) hereof, and to the extent that doing so will not 
adversely affect the Secretary's ability to carry out his 
responsibilities to other tribes and tribal organizations, the 
Secretary shall make such savings available to tribal organizations 
contracting under this Act.
    ``(p) Notwithstanding any laws or regulations to the contrary, a 
tribal organization may rebudget within the approved budget of its 
contract to meet contract requirements, provided that such rebudgeting 
does not have a significant and adverse effect upon the level or nature 
of services.'';
            (21) amend the text of section 107(a) to read as follows:
    ``(a) 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 self-determination contracts 
and grants under this Act shall be promulgated as a single set of 
regulations in title 25 of the Code of Federal Regulations and in 
conformity with sections 552 and 553 of title 5. Notwithstanding the 
preceding sentence, the amendments made by the Indian Self-
Determination and Education Act Amendments of 1993 shall be effective 
as of October 5, 1988.''.
            (22) amend the text of section 107(b) to read as follows:
    ``(b) In drafting, and promulgating, regulations for implementation 
of this Act, as amended, the Secretaries shall comply with the 
following procedures:
            ``(1) prior to publishing proposed regulations, the 
        Secretaries shall within forty-five days from the date of 
        enactment of these amendments convene regional meetings and a 
        national meeting to obtain input from interested parties in the 
        development of proposed regulations to implement the provisions 
        of this Act, as amended. Such meetings shall include 
        representatives of Indian tribes, tribal organizations, 
        individual tribal members, and representatives of other parties 
        interested in the implementation of this Act, as amended.
            ``(2) during the meetings identified in subparagraph (1), 
        the tribal representatives shall identify key issues concerning 
        implementation of the Indian Self-Determination Act, as 
        amended. The Secretaries shall provide for a comprehensive 
        discussion and exchange of information on these issues. 
        Likewise, the Secretaries may identify issues concerning 
        implementation of the Indian Self-Determination Act, as 
        amended, and provide for a comprehensive discussion and 
        exchange of information on these issues. The Secretaries shall 
        take into account the information received at such meetings in 
        the development of proposed regulations, and shall publish a 
        summary of such information in the Federal Register along with 
        a notice of proposed rulemaking.
            ``(3) subsequent to the regional and national meetings and 
        prior to publication of proposed regulations in the Federal 
        Register, the Secretaries shall prepare draft regulations 
        implementing the Indian Self-Determination Act, as amended, 
        including regulations addressing all key issues identified by 
        the tribal organizations and those key issues identified by the 
        Secretaries pursuant to paragraph (2), and the Secretaries 
        shall submit the draft regulations to a negotiated rulemaking 
        process. The process shall waive application of the Federal 
        Advisory Committee Act (5 U.S.C. App. 2 Sec. 1 et seq.). The 
        rulemaking process shall follow the guidance of the Negotiated 
        Rulemaking Act of 1990 and of the Administrative Conference of 
        the United States in Recommendations 82-4 and 85-5, 
        ``Procedures for Negotiating Proposed Regulations'' (1 CFR 
        305.82-4 and 305.85-5), and any successor recommendation, 
        regulation or law. Participants in the negotiation shall be 
        chosen by the Secretaries from among participants in the 
        regional and national meetings, representing the groups 
        described in paragraph (1) and from all geographic regions. The 
        Secretaries shall publish the product of the negotiated 
        rulemaking process in the Federal Register in the form of a 
        proposed rule. The Secretaries shall also include in the final 
        rule as much as the proposed rule as is practicable. The 
        negotiations shall be conducted in a timely manner and the 
        proposed rule shall be published in the Federal Register by the 
        Secretaries within six months from the date of enactment of 
        these Amendments.''.
            (23) amend section 107 by adding at the end thereof the 
        following new subsection (d):
    ``(d) Notwithstanding any laws or regulations to the contrary, the 
Secretary shall retain the authority to waive or make exceptions to his 
regulations where the Secretary finds that such waiver or exception is 
in the best interest of the Indians served by the contract. The 
Secretary shall review a waiver request under the declination criteria 
contained in section 102(a)(2) of this Act.''.
            (24) amend the text of section 109 to read as follows: 
        ``Each contract or grant agreement entered into pursuant to 
        sections 102 and 103 of this title shall provide that in any 
        case where the appropriate Secretary determines that the tribal 
        organization's performance under such contract or grant 
        agreement involves (1) the violation of the rights or 
        endangerment of the health, safety, or welfare of any persons; 
        or (2) gross negligence or mismanagement in the handling or use 
        of funds provided to the tribal organization pursuant to such 
        contract or grant agreement, such Secretary may, under 
        regulations prescribed by him and after providing notice and a 
        hearing on the record to such tribal organization, rescind such 
        contract or grant agreement and assume or resume control or 
        operation of the program, activity, or service involved if he 
        determines that the tribal organization has not taken 
        corrective action as prescribed by him to remedy the contract 
        deficiency: Provided, That the appropriate Secretary may, upon 
        written notice to a tribal organization, and the tribe(s) 
        served thereby, immediately rescind a contract or grant and 
        resume control or operation of a program, activity, or service 
        if he finds that there is an immediate threat of imminent harm 
        to the safety of any person and that such threat arises from 
        the contractor's failure to fulfill the requirements of the 
        contract. In such cases, he shall provide the tribal 
        organization with a hearing on the record within ten days or 
        such later date as the tribal organization may approve. Such 
        Secretary may decline to enter into a new contract or grant 
        agreement and retain control of such program, activity, or 
        service until such time as he is satisfied that the violations 
        of rights or endangerment of health, safety, or welfare which 
        necessitated the rescission has been corrected. In any hearing 
        or appeal provided for under this section, the Secretary shall 
        carry the burden of proof to establish by clear and convincing 
        evidence that the contract should be rescinded, assumed or 
        reassumed. Nothing in this section shall be construed as 
        contravening the Occupational Safety and Health Act of 1970, as 
        amended.
            (25) amend section 110(a) by inserting immediately before 
        the period at the end thereof the following: ``(including 
        immediate injunctive relief to compel the Secretary to fund an 
        approved self-determination contract)''.
            (26) amend section 110(d) by inserting immediately before 
        the period at the end thereof the following: ``except that all 
        such administrative appeals shall be heard by the Interior 
        Board of Contract Appeals''.

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