25 U.S.C. § 5328 — Rules and regulations

Page 742 TITLE 25—INDIANS § 5327 1 See References in Text note below. and also as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, and not as part of the Indian Self-Determination and Edu- cation Assistance Act which comprises this chapter. Section was formerly classified to section 450j–2 of this title prior to editorial reclassification and renum- bering as this section. § 5327. Department of the Interior: availability of funds for Indian self-determination or self- governance contract or grant support costs Notwithstanding any other provision of law, including but not limited to the Indian Self-De- termination Act of 1975, as amended [25 U.S.C. 5321 et seq.], on and after November 29, 1999, funds available to the Department of the Inte- rior for Indian self-determination or self-govern- ance contract or grant support costs may be ex- pended only for costs directly attributable to contracts, grants and compacts pursuant to the Indian Self-Determination Act of 1975 and on and after November 29, 1999, funds appropriated in this title 1 shall not be available for any con- tract support costs or indirect costs associated with any contract, grant, cooperative agree- ment, self-governance compact or funding agree- ment entered into between an Indian tribe or tribal organization and any entity other than an agency of the Department of the Interior. (Pub. L. 106–113, div. B, § 1000(a)(3) [title I, § 113], Nov. 29, 1999, 113 Stat. 1535, 1501A–157.) Editorial Notes REFERENCES IN TEXT The Indian Self-Determination Act of 1975, referred to in text, probably means the Indian Self-Determination Act, title I of Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2206, which is classified principally to this subchapter (§ 5321 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. This title, referred to in text, is title I of the Depart- ment of the Interior and Related Agencies Appropria- tions Act, 2000, as enacted by Pub. L. 106–113, div. B, § 1000(a)(3), Nov. 29, 1999, 113 Stat. 1535, 1501A–135. For complete classification of this title to the Code, see Ta- bles. CODIFICATION Section was enacted as part of the Department of the Interior and Related Agencies Appropriations Act, 2000, and not as part of the Indian Self-Determination and Education Assistance Act which comprises this chap- ter. Section was formerly classified to section 450j–3 of this title prior to editorial reclassification and renum- bering as this section. Statutory Notes and Related Subsidiaries SIMILAR PROVISIONS Similar provisions were contained in Pub. L. 105–277, div. A, § 101(e) [title I, § 114], Oct. 21, 1998, 112 Stat. 2681–231, 2681–255. § 5328. 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 chapter, 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 self-de- termination 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 chapter relating to chap- ter 171 of title 28, commonly known as the ‘‘Fed- eral Tort Claims Act’’, chapter 71 of title 41, dec- lination and waiver procedures, appeal proce- dures, reassumption procedures, discretionary grant procedures for grants awarded under sec- tion 5322 of this title, property donation proce- dures arising under section 5324(f) of this title, internal agency procedures relating to the im- plementation of this chapter, retrocession and tribal organization relinquishment procedures, contract proposal contents, conflicts of interest, construction, programmatic reports and data re- quirements, procurement standards, property management standards, and financial manage- ment standards. (2)(A) The regulations promulgated under this chapter, 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 chapter shall expire if final reg- ulations are not promulgated within 20 months after October 25, 1994. (b) Conflicting laws and regulations The provisions of this chapter shall supersede any conflicting provisions of law (including any conflicting regulations) in effect on the day be- fore October 25, 1994, and the Secretary is au- thorized to repeal any regulation inconsistent with the provisions of this chapter. (c) Revisions and amendments; procedures appli- cable The Secretary of the Interior and the Sec- retary of Health and Human Services are au- thorized, 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 revi- sion 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 Re- sources of the Senate and the Committee on Natural Resources of the House of Representa- tives and shall, to the extent practicable, con- sult with appropriate national or regional In- dian organizations and shall publish any pro- posed 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 (in- Page 743 TITLE 25—INDIANS § 5328 cluding 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 participa- tion by, representatives of Indian tribes, tribal organizations, and individual tribal members. (2)(A) In carrying out rulemaking processes under this chapter, 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, com- monly known as the ‘‘Negotiated Rulemaking Act of 1990’’; and (ii) the recommendations of the Administra- tive Conference of the United States numbered 82–4 and 85–5 entitled ‘‘Procedures for Negoti- ating Proposed Regulations’’ under sections 305.82–4 and 305.85–5 of title 1, Code of Federal Regulations, and any successor recommenda- tion or law (including any successor regula- tion). (B) The tribal participants in the negotiation process referred to in subparagraph (A) shall be nominated by and shall represent the groups de- scribed in this paragraph and shall include trib- al representatives from all geographic regions. (C) The negotiations referred to in subpara- graph (B) shall be conducted in a timely man- ner. Proposed regulations to implement the amendments made by the Indian Self-Deter- mination Contract Reform Act of 1994 shall be published in the Federal Register by the Sec- retary 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 estab- lish 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 chapter. (E) If the Secretary determines that an exten- sion 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 chapter, make excep- tions in the regulations promulgated to carry out this chapter, or waive such regulations, if the Secretary finds that such exception or waiv- er is in the best interest of the Indians served by the contract or is consistent with the policies of this chapter, 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 sec- tion 5321 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.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (b), (d)(2)(A), (D), and (e), was in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title 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 5329 of this title, amended this section and sec- tions 5304, 5305, 5307, 5321, 5324, 5325, 5330, and 5331 of this title, and enacted provisions set out as a note under section 5301 of this title. For complete classifica- tion of this Act to the Code, see Short Title of 1994 Amendment note set out under section 5301 of this title and Tables. CODIFICATION Section was formerly classified to section 450k of this title prior to editorial reclassification and renumbering as this section. In subsec. (a)(1), ‘‘chapter 71 of title 41’’ substituted for ‘‘the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Con- tracts. 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 sub- sec. (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 regula- tions as may be necessary and proper for the purposes of carrying out the provisions of this chapter: Provided, however, That all Federal requirements for self-deter- mination 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 di- rected that subsec. (b) be repealed, was itself repealed by Pub. L. 104–287, § 6(e). See Effective Date and Con- struction of 1996 Amendment note below. Pub. L. 103–435, which directed substitution of ‘‘Com- mittee on Natural Resources’’ for ‘‘Committee on Inte- rior and Insular Affairs’’ in par. (2), could not be exe- cuted because ‘‘Committee on Interior and Insular Af- fairs’’ 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 reg- ulations to implement the provisions of this Act, with the participation of Indian tribes. Such proposed regu- lations shall contain all Federal requirements applica- ble to self-determination contracts and grants under this Act. ‘‘(2) Within six months from October 5, 1988, the Sec- retary shall present the proposed regulations to the Se- lect 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. Page 744 TITLE 25—INDIANS § 5329 1 See References in Text note below. ‘‘(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 Sec- retary 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 sub- secs. (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 promul- gation 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 Sec- retary of the Interior and the Secretary of Health and Human Services shall each to the extent practicable, consult with national and regional Indian organiza- tions to consider and formulate appropriate rules and regulations to implement the provisions of this chap- ter. ‘‘(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 Sec- retary of the Interior and the Secretary of Health and Human Services shall promulgate rules and regulations to implement the provisions of this chapter.’’ Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (c), pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE AND CONSTRUCTION OF 1996 AMENDMENT Pub. L. 104–287, § 6(e), Oct. 11, 1996, 110 Stat. 3399, pro- vided 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 re- pealed and section 107(b) of the Indian Self-Determina- tion and Education Assistance Act (25 U.S.C. 450k(b)) [now 25 U.S.C. 5328(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.’’ § 5329. Contract or grant specifications (a) Terms Each self-determination contract entered into under this chapter shall— (1) contain, or incorporate by reference, the provisions of the model agreement described in subsection (c) of this section (with modi- fications where indicated and the blanks ap- propriately filled in), and (2) subject to subsections (a) and (b) of sec- tion 5321 of this title, contain such other pro- visions 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 pro- vided 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 SEC- RETARY AND THE llllll TRIBAL GOVERN- MENT. ‘‘(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 (re- ferred to in this agreement as the ‘Secretary’), for and on behalf of the United States pursu- ant to title I of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 1 and by the authority of the llllll tribal government or tribal organization (re- ferred to in this agreement as the ‘Con- tractor’). The provisions of title I of the In- dian Self-Determination and Education Assist- ance Act (25 U.S.C. 450 et seq.) 1 are incor- porated in this agreement. ‘‘(2) PURPOSE.—Each provision of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 1 and each provision of this Contract shall be liberally construed for the benefit of the Contractor to transfer the funding and the following related func- tions, services, activities, and programs (or portions thereof), that are otherwise contract- able under section 102(a) of such Act, including all related administrative functions, from the Federal Government to the Contractor: (List functions, services, activities, and programs). ‘‘(b) TERMS, PROVISIONS, AND CONDITIONS.— ‘‘(1) TERM.—Pursuant to section 105(c)(1) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450j(c)(1)),1 the term of this contract shall be ll years. Pursuant to section 105(d)(1) of such Act (25 U.S.C. 450j(d)) 1, upon the election by the Contractor, the period of this Contract shall be determined on the basis of a calendar year, unless the Sec- retary and the Contractor agree on a different period in the annual funding agreement incor- porated by reference in subsection (f)(2). ‘‘(2) EFFECTIVE DATE.—This Contract shall become effective upon the date of the approval and execution by the Contractor and the Sec- retary, unless the Contractor and the Sec- retary agree on an effective date other than the date specified in this paragraph.