[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 550 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 550

To amend the Indian Self-Determination and Education Assistance Act to 
      make certain technical improvements in the self-governance 
                         demonstration project.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               March 10 (legislative day, March 3), 1993

 Mr. McCain (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 to 
      make certain technical improvements in the self-governance 
                         demonstration project.

    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 ``Tribal Self-Governance Demonstration 
Project Technical Amendments Act of 1993''.

SEC. 2. TRIBAL FUNDING SHARES.

    Title III of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450f note) is amended by adding at the end thereof the 
following new sections:
    ``Sec. 311. (a) Unless directed otherwise by an express provision 
of law enacted after the date of the enactment of this section, the 
Secretary of the Interior and the Secretary of Health and Human 
Services, as the case may be, shall make available, through 
negotiations, a tribal share of all funds and resources requested by a 
tribe which are specifically or functionally related to the provision 
of services and benefits to the tribe or its members, including all 
funds and resources available to the Department of the Interior or the 
Department of Health and Human Services, as the case may be, to support 
the provision of services and benefits to Indian tribes and Indian 
individuals regardless of the organizational level where the affected 
Secretary would have otherwise spent the funds or provided the 
resources, and regardless of the origin of the funds or resources.
    ``(b) Unless directed otherwise by an express provision of law 
specific to a distribution or allocation enacted after the date of the 
enactment of this section, the Secretary of the Interior or the 
Secretary of Health and Human Services, as the case may be, shall make 
available, through negotiations, a tribal share of all funds and 
resources requested by a tribe which are available to Indian tribes or 
Indian individuals and which the affected Secretary could have 
otherwise distributed or allocated by competitive procedure, formula, 
priority list, or other mechanism. Tribal shares of such funds shall be 
determined by the Secretary in a manner similar to that used with other 
funds under this title.
    ``(c) The Secretary of the Interior and the Secretary of Health and 
Human Services shall designate the Director of the Office of Self-
Governance, established pursuant to section 315 of this title, to be 
the Federal negotiator for any agreement with each such Secretary, and 
delegate to the Director authority to initial and execute any agreement 
authorized under this title. The Director shall determine a specific 
Federal program residual and a tribe's tribal share after good faith 
consideration of the positions of the tribe and the appropriate Federal 
agency. The Director shall cooperate with the negotiating tribe to 
prepare and initial the appropriate Federal agency's and the tribe's 
preliminary approval of a negotiated agreement in accordance with 
section 315 of this title. Upon expiration of the appeal rights 
provided in subsection (d), the Secretary shall execute the agreement, 
the tribe shall execute the agreement on its own behalf, and the 
agreement shall be forwarded to Congress for review as provided in this 
title.
    ``(d) The tribe or the affected Federal agency may appeal the 
Director's determination of a specific Federal program residual or a 
tribe's tribal share by filing a written appeal to the appropriate 
Self-Governance Policy Council within 10 days of the initialing of the 
agreement by the tribe and the Director. The Council shall render a 
decision within 15 days of receipt of the appeal, after according the 
Director, the tribe, and the affected Federal agency the opportunity to 
file responses and make brief oral presentations to the Council. The 
Director shall have no vote on appeal decisions of the Council. Appeal 
decisions of the Council shall be final.
    ``(e) Unless otherwise agreed to by a tribe in negotiations, a 
tribal share of a tribe shall be determined as follows:
            ``(1) A residual amount for programs, activities, functions 
        and services directly related to the natural or financial trust 
        resources of a tribe or to the executive direction and 
        administrative services functions of the affected Federal 
        agency shall be determined and subtracted from the total funds 
        estimated to be available for the next fiscal year, which 
        estimate shall be based either upon the total in that agency's 
        budget request for that year or upon the total made available 
        by Congress for the appropriate year. The residual amount shall 
        be that amount which, if all Federal funds benefiting Indian 
        tribes and Indian individuals were administered by tribes under 
        agreements authorized by this title, would be necessary to 
        support an efficiently restructured Federal implementation of 
        the minimum core Federal activities specifically required by 
        law to be carried out by a Federal official.
            ``(2) The tribal share of a tribe shall be determined in 
        negotiations using factors directly related to the budget 
        account, fund or program being allocated, and shall be 
        separately calculated at each administrative level of the 
        Federal agency using factors specific to that level. In lieu of 
        negotiating a tribal share of funds from the central office or 
        other national-scope administrative level of a Federal agency, 
        a tribe may elect to receive the sum of $45,000 per year.
    ``(f) In preparing to negotiate a tribe's third and successive 
annual agreements under this title, the affected Secretary shall 
present a base budget to the tribe as the minimum amount to be 
negotiated. The base budget shall be calculated as the amount the tribe 
negotiated in the prior year, plus pay cost adjustment increases 
related to employee costs identical to those applied to Federal 
employees, and plus inflation increases on the remaining funds. The 
affected Secretary shall add to a tribe's base budget further increases 
and additions sought by the tribe in negotiations under the terms and 
conditions of this title.
    ``Sec. 312. (a) Subject to the availability of funds, the affected 
Secretary shall ensure that the contract support costs associated with 
a tribe's operation of its annual funding agreement with the Secretary 
are fully funded by the Secretary. Such costs shall be estimated at the 
time of negotiation by multiplying the tribe's most recent indirect 
cost rate negotiated with the inspector general of the tribe's 
cognizant Federal agency times the total amount of funds included 
within the annual funding agreement regardless of the origin of the 
funds and regardless of the purpose for which the funds are spent by 
the tribe; except that contract support costs shall be separately 
calculated for direct funds flowing through the tribe to an intertribal 
organization at the intertribal organization's negotiated indirect cost 
rate. The estimated contract support funds provided to a tribe shall be 
subsequently adjusted to a final amount based upon the tribe's final 
approved indirect cost rate for that funding year. The total amount of 
funds other than contract support included within an annual funding 
agreement shall be an agreement's direct funds base without exclusions.
    ``(b) Upon request of the appropriate tribe, a minimum of 80 
percent of the full amount of such tribe's estimated annual contract 
support cost funds shall be made available to it at the beginning of 
its funding year and the remainder made available either at the 
beginning of the second half of its funding year or when the tribe's 
final indirect cost rate has been approved for that funding year, 
whichever comes later.
    ``(c) If a tribe's indirect cost rate negotiated with the inspector 
general has not fluctuated more than 10 percent during the preceding 
36-month period, the affected Secretary shall, at the request of a 
tribe, negotiate a lump sum of contract support funds equal to the 
tribe's most recent indirect cost rate times the annual funding 
agreement's total direct funds base, which lump sum shall be added to 
the agreement and shall remain part of the tribe's base budget in 
successive years and be adjusted under the provisions of section 
311(f).
    ``Sec. 313. (a) The provisions of section 106 of this Act (25 
U.S.C. 450j(b)) shall apply to agreements under this title.
    ``(b) The provisions of subsections (c) and (d) of section 102 of 
this Act (25 U.S.C. 450f (c) and (d)) shall apply to agreements under 
this title, and in all such cases, an Indian tribe and its employees 
carrying out an agreement under this title shall be deemed to be part 
of the Bureau of Indian Affairs in the Department of the Interior or 
the Indian or Public Health Service in the Department of Health and 
Human Services, as the case may be, while carrying out any such 
agreement and the tribe's employees (including those acting on behalf 
of the tribe as provided in section 2671 of title 28, United States 
Code) are deemed employees of the Bureau or Service while acting within 
the scope of their employment in carrying out the agreement.
    ``Sec. 314. (a) General Federal program rules, the Office of 
Federal Procurement Policy Act (41 U.S.C. 401 et seq.), and all Federal 
acquisition regulations promulgated pursuant to such Act, shall not 
apply to agreements under this title, nor shall they apply to a tribe's 
activities, including construction and a tribe's contracts or 
subcontracts involving such activities, carried out with funds obtained 
from agreements under this title.
    ``(b) The Secretary of the Interior or the Secretary of Health and 
Human Services, as the case may be, shall, within 60 days after receipt 
of the request from an Indian tribe, approve the tribe's request to 
waive the application of a Federal regulation to the tribe's carrying 
out of activities under an agreement unless, within 30 days of receipt 
of the request, the affected Secretary makes a specific waiver 
declination finding, based upon a clear and convincing evidence 
standard, that--
            ``(1) adequate protection of trust resources will not 
        otherwise be provided under the terms of the agreement; or
            ``(2) specific language in the regulation sought to be 
        waived is expressly mandated by law.
    ``(c) Unless specific language in the regulation sought to be 
waived is expressly mandated by law, a tribe's request for waiver shall 
be treated as approved unless declined under the procedures of the 
foregoing subsection (b). In declining a waiver request, the Secretary 
shall--
            ``(1) immediately state all the Secretary's objections in 
        writing to the tribe;
            ``(2) within 30 days provide assistance to the tribe to 
        revise its waiver request to overcome the stated objections; 
        and
            ``(3) within 60 days provide the tribe with a hearing on 
        the record and the opportunity for appeal on the objections 
        raised under rules and regulations governing hearings and 
        appeals for self-determination contracts.
    ``Sec. 315. (a) The Secretary of the Interior and the Secretary of 
Health and Human Services shall establish an Office of Self-Governance 
for the appropriate department within the Office of the affected 
Secretary. The affected Secretary shall consult with all tribes with 
whom the affected Secretary has an agreement authorized under this 
title before making personnel hiring decisions concerning the Office of 
Self-Governance. The requirements of section 2 of Public Law 96-135 (25 
U.S.C. 472a) shall apply to all positions within each Office of Self-
Governance, except that, notwithstanding any provision of the Indian 
preference laws, such laws shall not apply in the case of any personnel 
action respecting an applicant or employee not entitled to Indian 
preference if a majority of the tribes with whom the affected Secretary 
has an agreement authorized under this title at the time the personnel 
action is initially implemented concur in writing with suspending the 
application of such laws with respect to such personnel action.
    ``(b) The Secretary of the Interior, with respect to the Department 
of the Interior, and the Secretary of Health and Human Services, with 
respect to the Department of Health and Human Services, shall vest in 
the Director all of the functions of the appropriate department with 
respect to formulation and establishment of Federal policy and 
procedure, and the supervision of Federal programs and expenditures of 
Federal funds supporting the Federal implementation of the self-
governance demonstration project. The Secretary shall carry out such 
functions through the Director under the provisions of this title.
    ``(c) The Secretary of the Interior, with respect to the Department 
of the Interior, and the Secretary of Health and Human Services, with 
respect to the Department of Health and Human Services, shall establish 
a Self-Governance Policy Council for each department, which shall meet 
in regularly scheduled monthly meetings to finally resolve departmental 
policy and administrative issues during the demonstration project. The 
Self-Governance Policy Council of the Department of the Interior shall 
be chaired by the Director of the Office of Self-Governance, with 
additional members including the Assistant Secretary for Indian 
Affairs, a representative of the Secretary of the Interior, the 
Associate Solicitor for Indian Affairs, and 2 non-Federal members 
appointed by the Secretary of the Interior representing tribes with 
self-governance agreements with the Department of the Interior. The 
Self-Governance Policy Council of the Department of Health and Human 
Services shall be chaired by the Director of the Office of Self-
Governance, with additional members including the Director of the 
Indian Health Service, a representative of the Secretary of Health and 
Human Services, a representative of the Office of General Counsel, and 
2 non-Federal members appointed by the Secretary of Health and Human 
Services representing tribes with self-governance agreements with the 
Department of Health and Human Services. In the case of each 
department's Policy Council, the 2 non-Federal members shall serve 1-
year, nonconsecutive terms, and shall be selected in such manner as to 
achieve geographic representation from among nominations made by tribes 
having agreements authorized under this title with the department. The 
2 non-Federal members shall have voice but no voting privileges on all 
matters before the Self-Governance Policy Council. Complete minutes of 
the Council shall be made and distributed to all tribes having 
agreements authorized under this title with the Department.
    ``Sec. 316. The Secretary of the Interior and the Secretary of 
Health and Human Services shall ensure that the Director and all other 
departmental officials negotiate agreements under this title in good 
faith and in a spirit of cooperation with each negotiating tribe.
    ``Sec. 317. (a) Shortfall or supplemental funding shall be used by 
each such Secretary for two purposes--
            ``(1) to make additional funds available to a Federal 
        agency organizational level to address the Director's 
        determination that, based on clear and convincing evidence, the 
        provision of a negotiated tribal share will have an adverse 
        effect on other tribes served by that organizational level; 
        except that such additional funds shall be made available from 
        the shortfall or supplemental funding account for only 1 year, 
        and in successive years shall be met from funds and resources 
        directly derived from restructuring and downsizing on the part 
        of the Federal agency at the particular organizational level 
        affected; and
            ``(2) to meet the ongoing, additional funding needs of 
        tribes assuming the increased responsibilities and obligations 
        inherent in agreements under this title.
    ``(b) The restructuring and downsizing on the part of the Federal 
agency in subsection (a) shall be accomplished in accordance with a 
plan and time frame that shall be prepared and submitted to the 
negotiating tribe, to the Committee on Indian Affairs of the Senate, 
and to the Committee on Natural Resources of the House of 
Representatives no later than 30 days after the effective date of the 
annual funding agreement giving rise to the restructuring and 
downsizing.''.

SEC. 3. FUNDS AVAILABLE.

    Title III of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450f note) is amended--
            (1) in section 303(a)(6), by striking ``paragraphs (1) and 
        (2)'' and inserting in lieu thereof ``paragraph (3)''; and
            (2) in section 303(a)(6), by inserting after ``amount'' the 
        following: ``which is, at a minimum,''.

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