og96023.txt

Office of the General Counsel
B-272364.1
July 5, 1996
The Honorable John McCain Chairman The Honorable Daniel K.
Inouye Vice Chairman Committee on Indian Affairs United States
Senate
The Honorable Don Young Chairman The Honorable George Miller
Ranking Minority Member Committee on Resources House of
Representatives
Subject: Contracts Under the Indian Self-Determination and
Education Assistance Act
Pursuant to section 801(a)(2)(A) of title 5, United States Code,
this is our report on a major rule promulgated by the Department of
the Interior, Bureau of Indian Affairs and the Department of Health
and Human Services, Indian Health Services, entitled "Contracts
Under the Indian Self-Determination and Education Assistance Act"
(RINs: 1076-AD21 and 0905-AC98). We received the rule on June 21,
1996. It was published in the Federal Register as a final rule on
June 24, 1996. 61 Fed. Reg. 32481.
The joint rule is issued to permit the Departments to award
contracts and grants to Indian tribes without the confusion
associated with having two sets of rules for a single program.
This is the second attempt by the Departments to issue such a
rule. In 1988, Congress directed the two Departments to develop
regulations to implement amendments to the Indian
Self-Determination Act (Pub. L. 93-638) contained in the Indian
Self-Determination and Education Assistance Act Amendments of
1988
GAO/OGC-96-23
(Pub. L. 100-472). Those amendments were intended to increase
tribal participation in the management of Federal Indian Programs
and to help ensure long-term financial stability for tribal-run
programs. When the proposed regulation was published for public
comment (59 Fed. Reg. 3166), reaction was critical over the lack of
tribal participation in the latter stages of the drafting process
and the overall length of the proposed regulation.
A Congressional reexamination of the regulation drafting process
led to the passage of the Indian Self-Determination Act Amendments
of 1994 (Pub. L. 103-413). This Act removed Congress' prior
delegation of the Departments' general legislative rulemaking
authority under the Act and limited it to certain subject matter
areas enumerated in the Act. Moreover, the Act required the
Departments, in issuing any new rules in those areas, to utilize
the Negotiated Rulemaking Act of 1990 as a guide with the direct
participation of tribal representatives in the rulemaking.
The Departments chartered a negotiated rulemaking committee
under the Federal Advisory Committee Act to develop this rule. The
Committee had 63 members including 48 members representing Indian
tribes. The Committee met between April 1995 and May 1996.
The rule is the result of consensus by the Committee except in
four areas: internal agency procedures, contract renewal
procedures, conflicts of interest and construction management
services. A delegation of tribal representatives met with the
Chiefs of Staff of the two Departments to present the tribal views
of the unresolved areas and the rule incorporates the decisions
made based on that meeting.
Enclosed is our assessment of the Department of the Interior and
the Department of Health and Human Services' compliance with the
procedural steps required by section 801(a)(1)(B)(i) through (iv)
of title 5 with respect to the rule. Our review indicates that the
Departments complied with the applicable requirements.
If you have any questions about this report, please contact
James W. Vickers, Senior Attorney, at [phone]. The official
responsible for GAO evaluation work relating to the Department of
the Interior, Bureau of Indian Affairs is Victor S. Rezendes,
Director for Energy, Resources, and Science Issues. Mr. Rezendes
can be reached at [phone]. The official responsible for GAO
evaluation work relating to the Department of Health and Human
Services, Indian Health Services is David P. Baine, Director of
Health Care Delivery and Quality Issues. Mr. Baine can be reached
at [phone].
Robert P. Murphy General Counsel
Enclosure
cc: Ada E. Deer Assistant Secretary-Indian Affairs Department of
the Interior
Michael H. Trujillo, M.D., M.Ph. Director, Indian Health Service
Department of Health and Human Services
ENCLOSURE
ANALYSIS UNDER 5 U.S.C. § 801(a)(1)(B)(i)-(iv) OF A MAJOR RULE
ISSUED BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS
AND THE DEPARTMENT OF HEALTH AND HUMAN SERVICE, INDIAN HEALTH
SERVICE ENTITLED "CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND
EDUCATION ASSISTANCE ACT" (RINs: 1076-AD21 and 0905-AC98)



(i)
Cost-benefit analysis

The Departments have advised our Office that they were not
required to prepare and did not prepare a cost-benefit analysis of
the rule.


(ii)
Agency actions relevant to the Regulatory Flexibility
Act, 5 U.S.C. §§ 603-605, 607 and 609


Pursuant to section 605(b) of the Act, the Departments certified
in the preambles to both the proposed rulemaking (61 Fed. Reg.
2038, 2044 (January 24, 1996)) and the final rulemaking (61 Fed.
Reg. 32481, 32500 (June 24, 1996)) that the rule would not have a
substantial effect on a significant number of small entities.
Therefore, they were not required to prepare an initial or final
regulatory flexibility analysis under sections 603 or 604 of the
Act. For the same reason, section 607 is inapplicable. While
section 609 likewise is inapplicable, the preamble in the Federal
Register notes that the Departments wanted to afford public
participation to the maximum extent and, therefore, the negotiated
rulemaking committee meetings were open to the public and all
sessions were announced in the Federal Register.
According to an official at the Department of the Interior,
publication of the certifications in the Federal Register was
treated as providing notice under section 605(b) to the Small
Business Administration's (SBA) Chief Counsel for Advocacy. The SBA
has confirmed that some agencies follow this practice without
objection from SBA.
(iii) Agency actions relevant to sections 202-205 of the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532-1535
According to the Departments, this rulemaking action does not
impose unfunded mandates under the Unfunded Mandates Reform Act of
1995. 61 Fed. Reg. 32500.
GAO/OGC-96-23
(iv) Other relevant information or requirements under Acts and
Executive orders
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
The rule was promulgated through the notice and comment
rulemaking procedures of the Act, 5 U.S.C. § 553. The Departments
afforded interested persons the opportunity to comment on the
proposed rule, and evaluated and responded to the comments in
connection with publication of the final rule.
Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520
The rule contains information collection requirements regarding
contract proposal contents, programmatic reports and data
requirements, property donation procedures and construction
contracts. The requirements were negotiated and agreed upon by the
Departments and the tribal representatives during the negotiated
rulemaking process.
The preamble to the proposed rulemaking set forth the reasons
for collecting the information and the burden estimates and
solicited comments regarding the collection to be submitted to both
the Departments and the Office of Management and Budget (OMB). The
Departments submitted the proposed collection requirements to OMB
as required by the Paperwork Reduction Act and OMB has approved the
information collection requirements and assigned control number
1076-0136.
Statutory authorization for the rule
Section 107(a)(1) of the Indian Self-Determination Act, as
amended by the Indian Self-Determination Contract Reform Act of
1994 (Pub. L. 103-413) authorized the Departments to jointly
promulgate regulations limited solely to self-determination
contracts or the approval, award or declination of such contract
regarding the Federal Tort Claims Act, the Contract Disputes Act,
declination and waiver procedures, appeal procedures, reassumption
procedures, discretionary grant procedures, property donation
procedures, internal agency procedures relating to implementation
of the Act, retrocession and tribal organization relinquishment
procedures, contract proposal contents, conflicts of interest,
construction, programmatic reports and data requirements,
procurement standards, property management standards and financial
management standards. Section 107(d)(2)(A) required that the
Departments use the negotiated rulemaking procedures contained in
the Negotiated Rule Making Act of 1990 (5 U.S.C. §§ 561-570).
Executive Order No. 12866
The rule was determined to be a "significant regulatory action"
under Executive Order 12866 requiring review by the Office of
Management and Budget, Office of Information and Regulatory Affairs
(OIRA). OIRA approved the final rule on June 19, 1996 as complying
with the requirements of the Order based on the information
supplied by the Departments, including a planned regulatory action
document describing the reason for the rule and an assessment of
the costs and budgetary impact of the rule.
Other Executive Orders and Statutes
The preamble to the final rule states that the rule is not
subject to review under Executive Orders 12630 (Property rights)
and 12612 (Federalism). Also, the rule does not significantly
affect the quality of the human environment and no detailed
statement is required under the National Environmental Policy Act
of 1969. 61 Fed. Reg. 32500. Further, the rule is not subject to
the requirements of Executive Orders 12606 (family issues), 12875
(intergovernmental partnership), 12988 (civil justice reform) and
12948 (environmental justice).
The Departments did not identify any other statute or executive
order imposing procedural requirements relevant to the rule.