32482 Federal Register Vol 61. No. 122 Mon June 24. 1996 Rules and Regulations DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service 25 CFR Part 900 RINS 1076-AD21; 0905-AC98 Indian Self-Determination and AGENCIES: Departments of the Interior SUMMARY: The Secretaries of the Department of Interior (DOI) and the Department of Health and Human Services (DHHS) hereby issue a joint rule to implement section 107 of the Indian Self-Determination Act. as amended, including Title I. Pub. L. 103413, the Indian Self-Determination Contract Reform Act of 1994. This 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 final rule with active tribal participation, using the guidance of the Negotiated Rulemaking Act. DATES: This rule will become effective on August 23, 1996. FOR FURTHER INFORMATION CONTACT: James Thomas, Division of SelfDetermination Services, Bureau of Indian Affairs, Department of the Interior, Room 4627, 1849 C Street N.W., Washington, DC 20240, Telephone (202) 208-5727 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, Pub. L. 93638, gave Indian 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. Pub. L. 98-250; Pub. L. 100-202: Interior Appropriations Act for Fiscal Year 1988. Pub. L. 100- 446; Indian Self Determination and Education Assistance Act Amendments of 1988. Pub. L. 100-472: Indian Reorganization Act Amendments of 1988. Pub. L. 100581: miscellaneous Indian Law Amendments. Pub. L. 101-301; Pub. L. 101-512: Indian Self-Determination and Education Assistance Act Amendments of 1990. Pub. L. 101-644; Pub. L. 102184: Pub. L. 103–138; Indian SelfDetermination Act Amendments of 1994. Pub. L. 103–13; and Pub. L. 103435. Of these, the most significant were Pub. L. 100-472 (the 1988 Amendments) and Pub. L. 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 IndianSelf-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 Indian 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 (1994 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 review the 1994 NPRM closely 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 1994 NPRM and its length. running over 80 pages in the Federal Register. To address tribal concerns in revising the proposed regulations into final forni, the Departments committed to establish 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: Section 105 of the bill addresses the Secretaries' authority to promulgate interpretative regulations in carrying out the mandates of the Act. It amends section 107 (a) and (b) of the Act by limiting the delegated authorization of the Secretaries to promulgate regulations. This action is a direct result of the failure of the Secretaries to respond promptly and appropriately to the comprehensive amendments developed by this committee six years ago. Section 105(1) amends section 107(a) by delegating to the Secretary the authority only to promulgate implementing regulations in certain limited subject matter areas. By and large these areas correspond to the areas of concern identified by the Departments in testimony and in discussions. Beyond the areas specified in subsection (a) ・ ・ ・ no further delegated authority is conferred. Sen. Rep. No. 103-374 at 14. For this reason, the new rule covers substantially fewer topics than the January 1994 NPRM. As specified by Congress, the new rule is limited to regulations relating to chapter 171 of title 28 of the United States Code, 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 Federal Register Vol 1. No. 122 ..nder sertion 103 of the Act: property implementation of this Act: retrocession To remain consistent with the original intent of the Act and to ensure that the input received from the tribes and tribal organizations in the regulation drafting process is not disregarded as has previously been the case. section 107 also has been amended by adding a new subsection (d). requiring the Secretaries to employ the negotiated rulemaking process. Sen. Rep. No. 103-374 at 14. As a result of the October 1994 amendments and earlier initiatives previously discussed. the Departments chartered a negotiated rulemaking committee under the Federal Advisory Committee Act. The committee's purpose was to develop regulations that implement amendments to the Act. The advisory committee had 63 members. Forty-eight of these members represented Indian tribes-two tribal members from each BLA area and two from each IHS area. Nine members were from the Department of the Interior and six members were from the Department of Health and Human Services. Additionally, four individuals from the Federal Mediation and Conciliation Service served as facilitators. The committee was co-chaired by four tribal representatives and two Federal representatives. While the committee was much larger than those usually chartered under the Negotiated Rulemaking Act, its larger size was justified due to the diversity of tribal Monday. June 24. 1996 interests and programs available for In order to complete the regulations recommendations to the committee on The first meeting of the committee The policy of the Departments was. The Departments published draft Ultimately, the Departments received As a result of that meeting, the full reports on these four issues. which were In developing regulatory language. The narrative and discussion of comments below is keyed to specific subparts of the rule. Matters addressed under the heading "Key Areas of Disagreement" in the Notice of Proposed Rulemaking are discussed under the appropriate Subpart. Subpart A-Policy Summary of Subpar Compart contains key congressional policies cons and Tods several Secretarial policies implementation of the of comments recommended the statement that tribal records are the exempt from ors Freedom of Information Act (5900.21 be further explained to include annual audit repo pered by tribal Contractors and tribal records archived the Federal government. The suggestion regarong and tribal records has been adopted. However section 7502(1) of the Single Audit Act 7502(1), and OMB of 1984 Circ No. A-128, Audits of State and Local Governuentor ope -canh 13(e). available for public spotte Several comments usted that $900.152 beamed to provide that Indian tribes may appeal decisions de by agencies of DHHS besides the mmendation was adopted, and the question in was amended to reflect this clarification. 152 One comment suggested that 5955(b) be redrafted to define the Words adequate representation and suggested that the section be redacted so that the costs of the apport de chargeable either in the contract, if the tribe prends on the appeal, or to the tribe if the appeal is unsuccessful. These were not dogpu Federal agencies reserve th determine what adequate representation in specific cases. To force by me expense of appear ther through a charge to the c or through tribal funds and be unjust and would discourage appeals which are well-arkin. Many comments objected to a pamon in § 900.152 and $900.150 which provides that "the IBIA will determine whether you an outled to a hearing." Thisesvitence was deleted from stress twn sections. As pointed out many.coms governing these decisions amo in § 900.160. Several comments objected to the comification requirement in $ 900.158(d) because it is not a satutory requireme of the Act, and conflicts with the government-to-government en tionship between tribes and L. Government. This recomingsvention, was not adopted. The cacation requirements here are the same as in courts and other rative appear torums. Που purpose of the requirement is simples ensure that the deciding offer has been informed therms/her decision has been appeared, and that the IBIA be informed of this notification. Il is not requirement, bus veroty a certification that is obtained for information purposes. Pursom to a comment, t Words "good reason" in § 900 150. changed to the words "valid reason. ded deletion of $900.159 because any request fo extension should be made within 30-day time frame in 960.158. This recommendation was not adopted be use, although a matter of ble debate during the Committee's negotiations, it was aga that there could be extenuating circumstances that could prevent Indian tribe or tribal gudization from filing its not appeal within the 30dave frame in § 900.158. One comment sought clarification of What happens if US DOS QU to grant an extension. If the IBLA determines that the appellant des not have a valid reason entend the deadline, and the tribe disagrees with is determination, it can appeal that Federal District Court pursuant to Section 110 ore Section 900.160(a) was restru-red into two sentences for clasification purposes. Thecond sentence of $900 now begins with the words jf so. e comment recommended changing them miame in $900.181(b) to a longer periodis recommendation was not adond because it is the Committees belief that the time is adequate to hoid a preheang conference. Several comments suggested that $900.163 be amended to impose a clear meeridence burden of proof on the Secrebryan recommendation was rejected ben seit is different from the statutory burden of proof in Section 102(a)(2)abang Act. Several comment Commended rewriting question in § 900.163 to inches all appealable issues. This ommendation was not adopted the burden of proof is on the appelle a preponderance of the evidence the ared for issues under appeals in $5 900 (i), and (j). This is consistent with the usual Administrative Procedure Act standard. One ca with objected to the agency whi is one of the parties to the appeal Enai decision in $900.167. Lis consistent mak fthe The regulatory p with the Act. Section 128 Act provides that any decision represents final agency action shal made "by an official of the Department who holds a position organizatio Dypartment • * than ihu agency in which the incision was made" seizmijve judge. or by gner within the aments noted that Subpart does not address me "Statu gnt o: Indian tribes to pres attorney fees under the quai Access to Justice Act (EA) In In response to these comments. a new section was added at moi Subpart L clarifying the JA applies to administrative appeals under this appropriate EAJA regulations. Subpart M-Federal Tort Claims Act Coverage Summary of Subpart Coverage of the Federal Tort Claims Act (FTCA) has been extended to Indian tribes, tribal organizations and Indian contractors carrying out contracts. grants, and cooperative agreements under the Act. This subpart explains which tort claims are covered by the FTCA and which tort claims are not covered by the FTCA, for both medical and non-medical related claims. It also provides for tribal assistance in giving notice of tort claims to the Federal agency involved, and in providing assistance during the administrative claim or litigation process. Summary of Comments Two comments stated that there should be no distinction between medical-related and non-medicalrelated functions under self determination contracts for purposes of FTCA coverage, defense or payment. This comment was rejected because the medical provisions have a unique history grounded in the Public Health Service Act, and in Section 102(d) of the Act. Several comments expressed concern that the proposed regulations lacked guidance regarding insurance. Insurance is beyond the scope of FTCA authority for these regulations. Several comments stated that portions of this Subpart reflect a fundamental misunderstanding of the scope of the Federal government's obligation to defend and indemnify tribal contractors for non-tort claims and claims outside the contract. Another set of comments requested that § 900.183 be aniended to explain that an Indian tribe or tribal organization may not be sued for claims beyond the scope of the FTCA arising out of the performance of selfdetermination contacts. In amending $900.183, the Committee determined to narrow the scope of the regulation strictly to the remedial FTCA provision of section 102(d) of the Act and section 314 of Public Law 101-512, as required by section 107(a)(1) of the Act. The Committee therefore chose not to address the extent to which Indiar tribes or tribal organizations are protected from suits on other claims. which is beyond the scope of these regulations. One comment recommended that "Indian contractor," as defined in $900.181(a), should be expanded to include non-medical services as well as medical services. Although the Eighth Circuit Court of Appeals (see FGS Constructors, Inc. v. Carlow, 64 F.3d 1230) has interpreted this provision as applying only to health programs, $900.181(a)(3) was added to reflect the desire of some Indian tribes to continue disputing the scope of this term. One comment recommended deleting $900.181(b) since "contract" is defined elsewhere. The comment was adopted. One comment suggested clarifying $900.183(a) by stating with specificity which tort claims are barred. The comment was adopted and this section was changed. One comment recommended $900.183(b) be amended by adding a new subsection including activities performed by an employee which are outside of the scope of employment. The comment was adopted. One comment asked what law will be used to implement breach of contract claims and whether tribal contractors are subject to Federal employment statutes. The comment was rejected because this subject is beyond the scope of regulatory authority under section 107(a)(1) of the Act. One comment questioned the reference to violations of the U.S. Constitution in § 900.183(b)(4). The provision was deleted. As sovereigns pre-existing the Constitution, Indian tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on Federal and state authority. See Santa Clara Pueblo v. Martinez, 438 U.S. 49. 56 (1978). To the extent applicable. 28 U.S.C. 2879(b)(2) continues to be relevant. Several comments asked whether tribal law applied to tort claims. No change was made because state law applies to the determination of liability for tort claims under the FTCA. One comment suggested amending $900.188(c)(7) to add "Including Federal employees assigned to the contractor," after the word "employees." The comment was adopted and the sentence re-written. Two comments recommended that the notice requirements of 28 U.S.C. 2679(c) be referenced in §900.188(b). Also, one comment suggested adding the same notice provision to § 900.203. The coinments were adopted. Semeral comments recommended that language from the withdrawn 1994 PRM regarding the application of the wal Access to Justice Act be incorporatdar maveske Subpart. The comments were adopted by Bading $900.216(c). Several comments recommended. adding paragraph 900-200twy mom the withdraw 1994 NPRM regarding using ounting principles as "guides" rather “rigid measures" in IBCA appeals. The comments were adopted and a new section was kind One comment was concura $900.217 was silent regarding the Th Court system alternative for alternative disputes resolution. A chame in $900.2170 Hopt this recommendation. Two comments indicated that $ 900.217(b) needs to add the right of the 18 it desires, to file in Federal District Court or the Cour Federal Claims. This concern is alread addressed in § 900.222 Severalesmantents recommended that $999z0(b) be revised to read: "supporting documents or data are Lcomplete to the best of the Indian tribe or tribur organization's knowledge and belief." The comments were adopted. Two comments recommended that $900.224 be amended so that demy of the awardi karta making a final decisieur should be treated as though the Tim were approved, rather than hese comments were rejected because the Gaubung language is statutory. Several comments recommended adding the following lang $900.222 Tuccision is withdrawn new decision acceptable to the Contractor is not issued, the contractor may proceed with the anneal based on the new decision or, if no how decision is issued, proceed under § 900.224." The comments were adopted and a new $900.227 Taded. O comment expressed concern that ninag an Indian tribe to keep performing its contra in spite of the possibility that them being appealed ransoms crucial operating funds from the contact. This is magged by the limitation of cost clause of the modal". Subnar Conflicts of Interest Summary of Subpan Secto Ras defines an organizational conflict osmand $900.233 de personal conflicts of inte which could affect selfdomination.contracts. The balance of the subpart advises that are what must be done in the event. arises. The subas perso provides that Indians may elect to negotiate specie conflicts provisions on contract-by-contract basis. Summary of C ments The of conflict of interests— where or me estribal organization's and/or their empl administrations of a self-determination contract affecting allottees and outers could be impai by financial biasraises dificult questions for DOI, inclung the proper balance between the Feder alcavernment-to government relationsap Secretary's mandated trust responsibility. Additional include the degran monitoring require conflicts, if any, where the Unit States contracts with Indian tribes to perform duting that directly affect the statutory rights or blad parties. In attempting to reconcile bese difficult questions, the Popted for an anae ruuat seeks to minimize inion and burden to Indian tribes and t manizations, vet provides for a degree of accountability conflicts arise. |