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HHS/IHS RIN: 0917-AA18 Publication ID: Fall 2021 
Title: Acquisition Regulations; Buy Indian Act; Procedures for Contracting 
Abstract:

The Indian Health Service (IHS) is proposing to issue regulations guiding implementation of the Buy Indian Act, which provides IHS with authority to set-aside procurement contracts for Indian-owned and controlled businesses. This rule supplements the Federal Acquisition Regulation (FAR) and the current HHS Acquisition Regulations (HHSAR).  IHS may use the Buy Indian Act procurement authority for acquisitions in connection with those functions. This rule is proposed to describe administration procedures that the IHS will use in all of its locations to encourage procurement relationships with eligible Indian Economic Enterprises in the execution of the Buy Indian Act. These proposed rules are intended to be consistent with Buy Indian Act rules previously promulgated by the Department of Interior.  IHS published the proposed rule on November 10, 2020, with a 60-day comment period ending January 11, 2021 (85 FR 71596).  Comments were received from tribes and tribal entities requesting an extension of the comment period due to the encompassing of the holiday season during the original comment period, as well as the disproportionately high impact of the pandemic on Indian Country.  Both of these events delayed stakeholders from being able to perform a complete and full review and provide comments within the initial 60-day comment period.  On April 21, 2021, HHS reopened the NPRM and extended the comment period for 60 days. The comment period closed on June 21, 2021.

 
Agency: Department of Health and Human Services(HHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: Not Yet Determined     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: Transfer Act of 1954 (42 U.S.C. 2001 et seq.)    Transfer Act (42 U.S.C. 2003)    25 U.S.C. 1633    Buy Indian Act 1910    Indian Community Economic Enhancement Act of 2020 (Pub. L. 116-261)    ...   
Legal Deadline:  None

Statement of Need:

Due to the unique legal and political relationship with Indian Tribes, the Federal government has a number of programs and authorities to support and expand the economic development of tribal entities and their individual members. The Buy Indian Act of 1910 is one of these programs that allows for the Department of Health and Human Services’ IHS and the Department of the Interior’s BIA to award federal contracts to Indian-owned businesses without using the standard competitive process. The IHS annually obligates over $1 billion in commercial contracts. Much of this can be set-aside under the Buy Indian Act. The established use of this rule will promote the growth and development of Indian industries and in turn, foster economic development and sustainability in Indian Country.

Summary of the Legal Basis:

This rule proposes to amend the HHSAR, which is maintained by Assistant Secretary for Financial Resources (ASFR) pursuant to 48 CFR 301.103, to establish Buy Indian Act acquisition policies and procedures for IHS that are consistent with rules proposed and/or adopted by the Department of the Interior. This rule is to provide uniform administration procedures that the IHS will use in all of its locations to encourage procurement relationships with Indian labor and industry in the execution of the Buy Indian Act. IHS' current rules are codified at HHSAR, 48 CFR part 326, subpart 326.6. The Transfer Act authorizes the Secretary of HHS to make such other regulations as he deems desirable to carry out the provisions of the [Transfer Act]. 42 U.S.C. 2003. The Secretary's authority to carry out functions under the Transfer Act has been vested in the Director of the Indian Health Service under 25 U.S.C. 1661. Because of these authorities, use of the Buy Indian Act is reserved to IHS and is not available for use by any other HHS component. IHS authority to use the Buy Indian Act is further governed by 25 U.S.C.1633, which directs the Secretary to issue regulations governing the application of the Buy Indian Act to construction activities. Additionally, when Congress amended the Buy Indian Act, they added a requirement to harmonize the Buy Indian Act regulations. As such, the Secretaries shall promulgate regulations to harmonize the procurement procedures of the Department of the Interior and the Department of Health and Human Services, to the maximum extent practicable.

Alternatives:

There are no apparent alternatives to ensure compliance with this law.

Anticipated Costs and Benefits:

The benefits of this rule include, policy and compliance objectives such as: supporting procurement relationships with Indian labor and industry as well as overall Tribal relationships, in the execution of the Buy Indian Act; consistent IHS use with the DOI/BIA regulations; and fostering economic development and sustainability in Indian Country. To avoid additional costs, the rule supports utilization of fair and reasonable price requirements, pursuant to the Federal Acquisition Regulations (FAR). Additionally, IHS intends to conduct all training on the Buy Indian Act in-house and/or in collaboration with the DOI/BIA.

Risks:

IHS foresees minimal risks in the implementation of this rule. One potential risk is an increased number of Buy Indian Act challenges to representation requirement but IHS views this more as a benefit in ensuring Buy Indian Act set-aside commercial contracts are appropriately awarded to confirmed Indian Economic Enterprises.

Timetable:
Action Date FR Cite
NPRM  11/11/2020  85 FR 71596   
NPRM Comment Period End  01/11/2021 
NPRM Comment Period Reopened  04/21/2021  86 FR 20648   
NPRM Comment Period Reopened End  06/21/2021 
Final Action  02/00/2022 
Regulatory Flexibility Analysis Required: Undetermined  Government Levels Affected: Undetermined 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Santiago Almaraz
Acting Director, Office of Management Service
Department of Health and Human Services
Indian Health Service
5600 Fishers Lane, Suite 09E45,
Rockville, MD 20857
Phone:301 443-4872
Email: santiago.almaraz@ihs.gov