§ 5328. Rules and regulations

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1975

   Indian Self-Determination and Education Assistance Act

   Pub. L. 93–638 title I § 107 · 88 Stat. 2204

   Enacted · 25 U.S.C. § 5328

   Pub. L. 93–638, title I, § 107, Jan. 4, 1975, 88 Stat. 2212

   Source evidence

   Code source credit
   Pub. L. 93–638, title I, § 107, Jan. 4, 1975, 88 Stat. 2212

   Enacted provision · exact public law section
   Sec. 107. promulgation of rules and regulations (a) The Secretaries of the Interior and of Health, Education, 25 USC 450k. and Welfare are each authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purposes of carrying out the provisions of this title. (b) (1) Within six months from the date of enactment of this Act, the Secretary of the Interior and the Secretary of Health, Education, and Welfare shall each to the extent practicable, consult with national and regional Indian organizations to consider and formulate appropriate rules and regulations to implement the provisions of this title. (2) Within seven months from the date of enactment of this Act, the Secretary of the Interior and the Secretary of Health, Education, and Welfare 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 the date of enactment of this Act, Publication in Federal Register. the Secretary of the Interior and the Secretary of Health, Education, and Welfare shall publish proposed rules and regulations in the Federal Register for the purpose of receiving comments from interested parties. (4) Within ten months from the date of enactment of this Act, the Secretary of the Interior and the Secretary of Health, Education, and Welfare shall promulgate rules and regulations to implement the provisions of this title. (c) The Secretary of the Interior and the Secretary of Health, Education, and Welfare are authorized to revise and amend any rules or regulations promulgated pursuant to this section: Provided, That prior to any revision or amendment to such rules or regulations, the respective Secretary or Secretaries shall present the proposed revision or amendment to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives and shall, to the extent practicable, consult with appropriate national or regional Indian organizations and shall publish any proposed revisions in the Publication in Federal Register. 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.

2. 1988

   Pub. L. 100–472 § 207(a) · 102 Stat. 2285

   1. Substituted · 25 U.S.C. § 5328(a)

      Pub. L. 100–472, § 207(a), substituted “Health and Human Services” for “Health, Education, and Welfare”

   2. Inserted · 25 U.S.C. § 5328(a)

      Pub. L. 100–472, § 207(a), inserted proviso relating to promulgation of Federal requirements for self-determination contracts as regulations

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 100–472, § 207(a), substituted “Health and Human Services” for “Health, Education, and Welfare”, and inserted proviso relating to promulgation of Federal requirements for self-determination contracts as regulations.

   Enacted provision · exact public law section
   (a) Section 107(a) of the Indian Self-Determination Act is amended 25 USC 450k. by— (1) striking the phrase “Health, Education, and Welfare” and inserting, in lieu thereof, the phrase “Health and Human Services”; and (2) striking the period at the end thereof and inserting, in lieu thereof, a colon and the following: “Provided, however, That all Grants. Federal requirements for Self-Determination contracts and grants under this Act shall be promulgated as regulations in conformity with sections 552 and 553 of title 5, United States Code.”.

3. 1988

   Pub. L. 100–472 § 207(b) · 102 Stat. 2285

   Amended · 25 U.S.C. § 5328(b)

   Pub. L. 100–472, § 207(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows:

   Source evidence

   Code amendment note
   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 Secretary of the Interior and the Secretary of Health and Human Services shall each to the extent practicable, consult with national and regional Indian organizations to consider and formulate appropriate rules and regulations to implement the provisions of this chapter. “(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 Secretary of the Interior and the Secretary of Health and Human Services shall promulgate rules and regulations to implement the provisions of this chapter.”

   Enacted provision · exact public law section
   (b) Section 107(b) of the Indian Self-Determination Act is amended to read as follows: “(b) (1) Within three months from the date of enactment of the Indian Self-Determination and Education Assistance Act Amendments of 1988, the Secretary shall consider and formulate appropriate regulations to implement the provisions of this Act, with the participation of Indian tribes. Such proposed regulations shall contain Grants. all Federal requirements applicable to Self-Determination con-tracts and grants under this Act. “(2) Within six months from the date of enactment of the Indian Self-Determination and Education Assistance Act Amendments of 1988, the Secretary shall present the proposed regulations to the Select 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. “(3) Within seven months from the date of enactment of the Indian Self-Determination and Education Assistance Act Amendments of 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 the date of enactment of the Indian Self-Determination and Education Assistance Act Amendments of 1988, the Secretary shall promulgate regulations to implement the provisions of such Act.”.

4. 1990

   Indian Arts and Crafts Act of 1990

   Pub. L. 101–644 title II § 203(f) · 104 Stat. 4662

   Inserted · 25 U.S.C. § 5328(c)

   Pub. L. 101–644 inserted “, with the participation of Indian tribes and tribal organizations,” after “authorized”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 101–644 inserted “, with the participation of Indian tribes and tribal organizations,” after “authorized”.

   Enacted provision · exact public law section
   (f) In section 107(c) of such Act (25 U.S.C. 450k(c)), immediately after “authorized”, insert the following: “, with the participation of Indian tribes and tribal organizations,”.

5. 1994

   Indian Self-Determination Contract Reform Act of 1994

   Pub. L. 103–413 § 105(1) · 108 Stat. 4250

   1. Added · 25 U.S.C. § 5328(a)

      Pub. L. 103–413, § 105(1), added subsec. (a)

   2. Struck · 25 U.S.C. § 5328(a)

      Pub. L. 103–413, § 105(1), 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 regulations 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-determination contracts and grants under this Act shall be promulgated as regulations in conformity with sections 552 and 553 of title 5.”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 103–413, § 105(1), added subsec. (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 regulations 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-determination contracts and grants under this Act shall be promulgated as regulations in conformity with sections 552 and 553 of title 5.”

   Enacted provision · exact public law section
   (1) by striking subsections (a) and (b) of section 107 25 USC 450k. and inserting the following new subsections: “(a) (1) Except as may be specifically authorized in this subsection, or in any other provision of this Act, 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-determination 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 Act relating to chapter 171 of title 28, 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 under section 103, property donation procedures arising under section 105(f), internal agency procedures relating to the implementation of this 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. “(2) (A) The regulations promulgated under this Act, including the regulations referred to in this subsection, shall be promulgated— “(i) in conformance with sections 552 and 553 of title 5, United States Code 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 Act shall expire if final regulations are not promulgated within 18 months after the date of enactment of the Indian Self-Determination Contract Reform Act of 1994. “(b) The provisions of this Act shall supersede any conflicting provisions of law (including any conflicting regulations) in effect on the day before the date of enactment of the Indian Self-Determination Contract Reform Act of 1994, and the Secretary is authorized to repeal any regulation inconsistent with the provisions of this Act.”; and

6. 1994

   Indian Self-Determination Contract Reform Act of 1994

   Pub. L. 103–413 § 105(1) · 108 Stat. 4250

   1. Added · 25 U.S.C. § 5328(b)

      Pub. L. 103–413, § 105(1), added subsec. (b)

   2. Struck · 25 U.S.C. § 5328(b)

      Pub. L. 103–413, § 105(1), struck out former subsec. (b) which read as follows:

   Target inherited from the preceding amendment note.

   Source evidence

   Code amendment note
   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 regulations to implement the provisions of this Act, with the participation of Indian tribes. Such proposed regulations shall contain all Federal requirements applicable to self-determination contracts and grants under this Act. “(2) Within six months from October 5, 1988, the Secretary shall present the proposed regulations to the Select 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. “(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 Secretary shall promulgate regulations to implement the provisions of such Act.”

   Enacted provision · exact public law section
   (1) by striking subsections (a) and (b) of section 107 25 USC 450k. and inserting the following new subsections: “(a) (1) Except as may be specifically authorized in this subsection, or in any other provision of this Act, 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-determination 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 Act relating to chapter 171 of title 28, 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 under section 103, property donation procedures arising under section 105(f), internal agency procedures relating to the implementation of this 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. “(2) (A) The regulations promulgated under this Act, including the regulations referred to in this subsection, shall be promulgated— “(i) in conformance with sections 552 and 553 of title 5, United States Code 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 Act shall expire if final regulations are not promulgated within 18 months after the date of enactment of the Indian Self-Determination Contract Reform Act of 1994. “(b) The provisions of this Act shall supersede any conflicting provisions of law (including any conflicting regulations) in effect on the day before the date of enactment of the Indian Self-Determination Contract Reform Act of 1994, and the Secretary is authorized to repeal any regulation inconsistent with the provisions of this Act.”; and

7. 1994

   Indian Self-Determination Contract Reform Act of 1994

   Pub. L. 103–413 § 105(2) · 108 Stat. 4250

   Added · 25 U.S.C. § 5328(d); 25 U.S.C. § 5328(e)

   Pub. L. 103–413, § 105(2), added subsecs. (d) and (e)

   Source evidence

   Code amendment note
   Subsecs. (d), (e). Pub. L. 103–413, § 105(2), added subsecs. (d) and (e).

   Enacted provision · exact public law section
   (2) by adding at the end of section 107, the following new subsections: “(d) (1) In drafting and promulgating regulations as provided in subsection (a) (including 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 participation by, representatives of Indian tribes, tribal organizations, and individual tribal members. “(2) (A) In carrying out rulemaking processes under this Act, 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, United States Code, commonly known as the ‘Negotiated Rulemaking Act of 1990’; and “(ii) the recommendations of the Administrative Conference of the United States numbered 82–4 and 85–5 entitled ‘Procedures for Negotiating Proposed Regulations’ under sections 305.82–4 and 305.85–5 of title 1, Code of Federal Regulations, and any successor recommendation or law (including any successor regulation). “(B) The tribal participants in the negotiation process referred to in subparagraph (A) shall be nominated by and shall represent the groups described in this paragraph and shall include tribal representatives from all geographic regions. “(C) The negotiations referred to in subparagraph (B) shall be conducted in a timely manner. Proposed regulations to implement the amendments made by the Indian Self-Determination Con-tract Reform Act of 1994 shall be published in the Federal Register by the Secretary of the Interior and the Secretary of Health and Human Services not later than 180 days after the date of enactment of such Act. “(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 establish 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 Act. “(E) If the Secretary determines that an extension of the deadlines under subsection (a)(2)(B) and subparagraph (C) of this paragraph is appropriate, the Secretary may submit proposed legislation to Congress for the extension of such deadlines. “(e) The Secretary may, with respect to a contract entered into under this Act, make exceptions in the regulations promulgated to carry out this Act, or waive such regulations, if the Secretary finds that such exception or waiver is in the best interest of the Indians served by the contract or is consistent with the policies of this Act, 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 section 102.”.

8. 1994

   Pub. L. 103–437 § 10(c)(2)(A) · 108 Stat. 4581

   Repealed · 25 U.S.C. § 5328(b)

   Pub. L. 103–437, § 10(c)(2)(A), which directed that subsec. (b) be repealed, was itself repealed by Pub. L. 104–287, § 6(e). See Effective Date and Construction of 1996 Amendment note below

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 103–437, § 10(c)(2)(A), which directed that subsec. (b) be repealed, was itself repealed by Pub. L. 104–287, § 6(e). See Effective Date and Construction of 1996 Amendment note below.

   Enacted provision · exact public law section
   (A) subsection (b) is repealed; and

9. 1994

   Pub. L. 103–435 § 22(a)(1) · 108 Stat. 4566

   Substituted · 25 U.S.C. § 5328(b)

   Pub. L. 103–435, which directed substitution of “Committee on Natural Resources” for “Committee on Interior and Insular Affairs” in par. (2), could not be executed because “Committee on Interior and Insular Affairs” did not appear in text subsequent to amendment by Pub. L. 103–413, § 105(1). See below

   Target inherited from the preceding amendment note.

   Source evidence

   Code amendment note
   Pub. L. 103–435, which directed substitution of “Committee on Natural Resources” for “Committee on Interior and Insular Affairs” in par. (2), could not be executed because “Committee on Interior and Insular Affairs” did not appear in text subsequent to amendment by Pub. L. 103–413, § 105(1). See below.

   Enacted provision · exact public law section
   (1) in section 107(b)(2) (25 U.S.C. 450k(b)(2)), by striking “Committee on Interior and Insular Affairs” and inserting “Committee on Natural Resources”;

10. 1994

    Pub. L. 103–437 § 10(c)(2)(B) · 108 Stat. 4581

    Substituted · 25 U.S.C. § 5328(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”

    Source evidence

    Code amendment note
    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”.

    Enacted provision · exact public law section
    (B) in subsection (c), strike “Committees on Interior and Insular Affairs of the United States Senate and House of Representatives” and substitute “Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives”.

11. 1996

    Pub. L. 104–133 § 1 · 110 Stat. 1320

    Substituted · 25 U.S.C. § 5328(a)(2)(B)

    Pub. L. 104–133 substituted “20 months” for “18 months”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(B). Pub. L. 104–133 substituted “20 months” for “18 months”.

    Enacted provision · exact public law section
    SECTION 1. EXTENSION OF AUTHORITY TO PROMULGATE REGULATIONS. Section 107(a)(2)(B) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450k(a)(2)(B)) is amended by striking “18 months” and inserting “20 months”.

12. 1996

    Pub. L. 104–287 § 6(e) · 110 Stat. 3388

    Repealed · 25 U.S.C. § 5328(b)

    Pub. L. 104–287 repealed Pub. L. 103–437, § 10(c)(2)(A). See 1994 Amendment note below

    Source evidence

    Code amendment note
    Subsec. (b). Pub. L. 104–287 repealed Pub. L. 103–437, § 10(c)(2)(A). See 1994 Amendment note below.

    Enacted provision · exact public law section
    (6) In section 702, strike “the effective date of such Act” and substitute “January 1, 1996”.

15 of 15 references resolved to an enrolled provision