[Federal Register: January 24, 1996 (Volume 61, Number 16)]
[Proposed Rules ]               
[Page 2037-2077]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja96-49]
[[Page 2037]]
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Part III
Department of the Interior
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Bureau of Indian Affairs
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Department of Health and Human Services
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Indian Health Service
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25 CFR Chapter V and Part 900

Indian Self-Determination and Education Assistance Act Amendments; 
Proposed Rule


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Indian Health Service

25 CFR Chapter V and Part 900

RINs 1076-AC20; 0905-AC98

 
Indian Self-Determination and Education Assistance Act Amendments

AGENCIES: Bureau of Indian Affairs, Indian Health Service, Departments 
of the Interior and Health and Human Services.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretaries of the Department of Interior (DOI) and the 
Department of Health and Human Services (DHHS) propose a joint rule to 
implement section 107 of the Indian Self-Determination Act, as amended, 
including Title I, Public Law 103-413, the Indian Self-Determination 
Contract Reform Act of 1994. A joint rule, as required by section 
107(a)(2)(A)(ii) of the Act, will permit the Departments to award 
contracts and grants to Indian tribes without the unnecessary burden or 
confusion associated with having two sets of rules for single program 
legislation. In section 107(a)(1) of the Act Congress delegated to the 
Departments limited legislative rulemaking authority in certain 
specified subject matter areas, and the joint rule addresses only those 
specific areas. As required by section 107(d) of the Act, the 
Departments have developed this proposed rule with active tribal 
participation, using the guidance of the Negotiated Rulemaking Act.

DATES: Comments must be submitted on or before March 25, 1996. We will 
send copies of this notice of proposed rulemaking (NPRM) to each tribe. 
We especially invite comments from individual tribes, tribal members 
and tribal organizations.

ADDRESSES: Written comments to these rules may be sent to Betty J. 
Penn, Indian Self-Determination Amendments Regulations Comments, Indian 
Health Service, Room 6-34, 5600 Fishers Lane, Parklawn Building, 
Rockville, MD 20857. Comments will be made available for public 
inspection at this address from 8:30 a.m. to 5:00 p.m., Monday through 
Friday beginning approximately 2 weeks after publication. Comments will 
also be available for public inspection at the Department of the 
Interior, Room 4627, Main Interior Building, 1849 C Street NW, 
Washington, DC 20240. These comments will be available at the same time 
as in Rockville.

FOR FURTHER INFORMATION CONTACT: James Thomas, Division of Self-
Determination Services, Bureau of Indian Affairs, Department of the 
Interior, Room 4627, 1849 C Street N.W., Washington, DC 20240, 
Telephone (202) 208-3708 or Merry Elrod, Division of Self-Determination 
Services, Office of Tribal Activities, Indian Health Service, Room 6A-
19, 5600 Fishers Lane, Parklawn Building, Rockville, MD 20857, 
Telephone (301) 443-6840/1104/1044.

SUPPLEMENTARY INFORMATION: The 1975 Indian Self-Determination and 
Education Assistance Act gave tribes the authority to contract with the 
Federal government to operate programs serving their tribal members and 
other eligible persons. The Act was further amended by the Technical 
Assistance Act and other Acts, Public Law 98-250; Public Law 100-202; 
Interior Appropriations Act for Fiscal Year 1988, Public Law 100-446; 
Indian Self-Determination and Education Assistance Act Amendments of 
1988, Public Law 100-472; Indian Reorganization Act Amendments of 1988, 
Public Law 100-581; miscellaneous Indian Law Amendments, Public Law 
101-301; Public Law 101-512; Indian Self-Determination and Education 
Assistance Act Amendments of 1990, Public Law 101-644; Public Law 102-
184; Public Law 103-138; Indian Self-Determination Act Amendments of 
1994, Public Law 103-413; and Public Law 103-435. Of these, the most 
significant were Public Law 100-472 (the 1988 Amendments) and Public 
Law 103-413 (the 1994 Amendments).
    The 1988 Amendments substantially revised the Act in order ``to 
increase tribal participation in the management of Federal Indian 
programs and to help ensure long-term financial stability for tribally-
run programs.'' Senate Report 100-274 at 2. The 1988 Amendments were 
also ``intended to remove many of the administrative and practical 
barriers that seem to persist under the Indian Self-Determination 
Act.'' Id. at 2. In fashioning the amendments, Congress directed that 
the two Departments develop implementing regulations over a 10-month 
period with the active participation of tribes and tribal 
organizations. In this regard, Congress delegated to the Departments 
broad legislative rulemaking authority.
    Initially the two Departments worked closely with tribes and tribal 
organizations to develop new implementing regulations, culminating in a 
joint compromise September 1990 draft regulation reflecting substantial 
tribal input. Thereafter, however, the two Departments continued work 
on the draft regulation without any further tribal input. The revised 
proposed regulation was completed under the previous administration, 
and the current administration published the proposed regulation (NPRM) 
for public comment on January 20, 1994, at 59 FR 3166. In so doing, the 
current administration expressed its concern over the absence of tribal 
participation in the regulation drafting process in the years following 
August 1990, and invited tribes to closely review the NPRM for possible 
revisions.
    Tribal reaction to the January 1994 proposed regulation was 
extremely critical. Tribes, tribal organizations, and national Indian 
organizations criticized both the content of the NPRM and its length, 
running over 80 pages in the Federal Register. To address tribal 
concerns in revising the proposed regulations into final form, the 
Departments committed to establish a Federal advisory committee that 
would include at least 48 tribal representatives from throughout the 
country, and be jointly funded by the two Departments.
    In the meantime, Congress renewed its examination into the 
regulation drafting process, and the extent to which events since the 
1988 amendments, including the lengthy and controversial regulation 
development process, justified revisiting the Act anew. This 
Congressional review eventually led to the October 1994 amendments. 
(Similar efforts by tribal representatives to secure amendments to the 
Act in response to the developing regulations had been considered by 
Congress in 1990 and 1992.)
    The 1994 amendments comprehensively revisit almost every section of 
the original Act, including amending the Act to override certain 
provisions in the January 1994 NPRM. Most importantly for this new 
NPRM, the 1994 amendments also remove Congress' prior delegation to the 
Departments of general legislative rulemaking authority. Instead, the 
Departments' authority is strictly limited to certain areas, a change 
explained in the Senate report that accompanied the final version of 
the bill: