Title 42, Part 137 — Tribal Self-governance

Authority, purpose and scope

Congressional policy.

Effect on existing Tribal rights.

May Title V be construed to limit or reduce in any way the funding for any program, project, or activity serving an Indian Tribe under this or other applicable Federal law?

Effect of these regulations on Federal program guidelines, manual, or policy directives.

Secretarial policy.

Definitions.

Who may participate in Tribal Self-Governance?

What if more than 50 Indian Tribes apply to participate in self-governance?

May more than one Indian Tribe participate in the same compact and/or funding agreement?

What criteria must an Indian Tribe satisfy to be eligible to participate in self-governance?

What is required during the planning phase?

How does an Indian Tribe demonstrate financial stability and financial management capacity?

May the Secretary consider uncorrected significant and material audit exceptions identified regarding centralized financial and administrative functions?

For purposes of determining eligibility for participation in self-governance, may the Secretary consider any other information regarding the Indian Tribe's financial stability and financial management capacity?

Are there grants available to assist the Indian Tribe to meet the requirements to participate in self-governance?

Are planning and negotiation grants available?

Must an Indian Tribe receive a planning or negotiation grant to be eligible to participate in self-governance?

What is a self-governance compact?

What is included in a compact?

Is a compact required to participate in self-governance?

May an Indian Tribe negotiate a funding agreement at the same time it is negotiating a compact?

May a funding agreement be executed without negotiating a compact?

What is the term of a self-governance compact?

What is a funding agreement?

What PSFAs must be included in a funding agreement?

What Tribal shares may be included in a funding agreement?

May a Tribe negotiate and leave funds with IHS for retained services?

What terms must be included in a funding agreement?

May additional terms be included in a funding agreement?

Do any provisions of Title I apply to compacts, funding agreements, and construction project agreements negotiated under Title V of the Act?

What is the effect of incorporating a Title I provision into a compact or funding agreement?

What if a Self-Governance Tribe requests such incorporation at the negotiation stage of a compact or funding agreement?

What is the term of a funding agreement?

Does a funding agreement remain in effect after the end of its term?

How is a funding agreement amended during the effective period of the funding agreement?

May a statutorily mandated grant be added to a funding agreement?

May a Self-Governance Tribe receive statutorily mandated grant funding in an annual lump sum advance payment?

May a Self-Governance Tribe keep interest earned on statutorily mandated grant funds?

How may a Self-Governance Tribe use interest earned on statutorily mandated grant funds?

May funds from a statutorily mandated grant added to a funding agreement be reallocated?

May a statutorily mandated grant program added to a funding agreement be redesigned?

Are the reporting requirements different for a statutorily mandated grant program added to a funding agreement?

May the Secretary and the Self-Governance Tribe develop separate programmatic reporting requirements for statutorily mandated grants?

Are Self-Governance Tribes and their employees carrying out statutorily mandated grant programs added to a funding agreement covered by the Federal Tort Claims Act (FTCA)?

What provisions of Title V apply to statutorily mandated grants added to the funding agreement?

What funds must the Secretary transfer to a Self-Governance Tribe in a funding agreement?

When must the Secretary transfer to a Self-Governance Tribe funds identified in a funding agreement?

When must the Secretary transfer funds that were not paid as part of the initial lump sum payment?

May a Self-Governance Tribe negotiate a funding agreement for a term longer or shorter than one year?

What funds must the Secretary include in a funding agreement?

Is the Secretary prohibited from failing or refusing to transfer funds that are due to a Self-Governance Tribe under Title V?

Is the Secretary prohibited from reducing the amount of funds required under Title V to make funding available for self-governance monitoring or administration by the Secretary?

May the Secretary reduce the amount of funds due under Title V in subsequent years?

May the Secretary reduce the amount of funds required under Title V to pay for Federal functions, including Federal pay costs, Federal employee retirement benefits, automated data processing, technical assistance, and monitoring of activities under the Act?

May the Secretary reduce the amount of funds required under Title V to pay for costs of Federal personnel displaced by contracts under Title I or Self-Governance under Title V?

May the Secretary increase the funds required under the funding agreement?

May a Self-Governance Tribe purchase goods and services from the IHS on a reimbursable basis?

Does the Prompt Payment Act apply to funds transferred to a Self-Governance Tribe in a compact or funding agreement?

May a Self-Governance Tribe retain and spend interest earned on any funds paid under a compact or funding agreement?

What standard applies to a Self-Governance Tribe's management of funds paid under a compact or funding agreement?

May a Self-Governance Tribe carryover from one year to the next any funds that remain at the end of the funding agreement?

May a Self-Governance Tribe retain and expend any program income earned pursuant to a compact and funding agreement?

Is a Self-Governance Tribe obligated to continue performance under a compact or funding agreement if the Secretary does not transfer sufficient funds?

May a Self-Governance Tribe's funding agreement provide for a stable base budget?

What funds may be included in a stable base budget amount?

May a Self-Governance Tribe with a stable base budget receive other funding under its funding agreement?

Once stable base funding is negotiated, do funding amounts change from year to year?

Does the effective period of a stable base budget have to be the same as the term of the funding agreement?

What is covered by this subpart?

When should a final offer be submitted?

How does the Indian Tribe submit a final offer?

What does a final offer contain?

When does the 45 day review period begin?

May the Secretary request and obtain an extension of time of the 45 day review period?

What happens if the agency takes no action within the 45 day review period (or any extensions thereof)?

If the 45 day review period or extension thereto, has expired, and the Tribes offer is deemed accepted by operation of law, are there any exceptions to this rule?

Once the Indian Tribe's final offer has been accepted or deemed accepted by operation of law, what is the next step?

On what basis may the Secretary reject an Indian Tribe's final offer?

How does the Secretary reject a final offer?

What is a “significant danger” or “risk” to the public health?

How is the funding level to which the Indian Tribe is entitled determined?

Is technical assistance available to an Indian Tribe to avoid rejection of a final offer?

If the Secretary rejects a final offer, is the Secretary required to provide the Indian Tribe with technical assistance?

If the Secretary rejects all or part of a final offer, is the Indian Tribe entitled to an appeal?

Do those portions of the compact, funding agreement, or amendment not in dispute go into effect?

Does appealing the decision of the Secretary prevent entering into the compact, funding agreement, or amendment?

What is the burden of proof in an appeal from rejection of a final offer?

What constitutes a final agency action?

Are Self-Governance Tribes required to address potential conflicts of interest?

Are Self-Governance Tribes required to undertake annual audits?

Are there exceptions to the annual audit requirements?

What cost principles must a Self-Governance Tribe follow when participating in self-governance under Title V?

May the Secretary require audit or accounting standards other than those specified in § 137.167?

How much time does the Federal Government have to make a claim against a Self-Governance Tribe relating to any disallowance of costs, based on an audit conducted under § 137.165?

When does the 365 day period commence?

Where do Self-Governance Tribes send their audit reports?

Should the audit report be sent anywhere else to ensure receipt by the Secretary?

Does a Self-Governance Tribe have a right of appeal from a disallowance?

Is a Self-Governance Tribe required to maintain a recordkeeping system?

Are Tribal records subject to the Freedom of Information Act and Federal Privacy Act?

Is the Self-Governance Tribe required to make its records available to the Secretary?

May Self-Governance Tribes store patient records at the Federal Records Centers?

May a Self-Governance Tribe make agreements with the Federal Records Centers regarding disclosure and release of the patient records stored pursuant to § 137.178?

Are there other laws that govern access to patient records?

May a Self-Governance Tribe redesign or consolidate the PSFAs that are included in a funding agreement and reallocate or redirect funds for such PSFAs?

Is a Self-Governance Tribe that receives funds under Title V also entitled to contract under section 102 of the Act [25 U.S.C. 450(f)] for such funds?

Are there reporting requirements for Self-Governance Tribes under Title V?

What are the purposes of the Tribal reporting requirements?

What types of information will Self-Governance Tribes be expected to include in the reports?

May a Self-Governance Tribe participate in a voluntary national uniform data collection effort with the IHS?

How will this voluntary national uniform data set be developed?

Will this voluntary uniform data set reporting activity be required of all Self-Governance Tribes entering into a compact with the IHS under Title V?

Why does the IHS need this information?

Will funding be provided to the Self-Governance Tribe to compensate for the costs of reporting?

What happens if self-governance activities under Title V reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings?

How does a Self-Governance Tribe learn whether self-governance activities have resulted in savings as described in § 137.210.

How does a Self-Governance Tribe obtain title to real and personal property furnished by the Federal Government for use in the performance of a compact, funding agreement, construction project agreement, or grant agreement pursuant to section 512(c) of the Act [25 U.S.C. 458aaa-11(c)]?

May funds provided under compacts, funding agreements, or grants made pursuant to Title V be treated as non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program?

Do section 314 of Public Law 101-512 [25 U.S.C. 450f note] and section 102(d) of the Act [25 U.S.C. 450f(d)] (regarding, in part, FTCA coverage) apply to compacts, funding agreements and construction project agreements?

What regulations may be waived under Title V?

How does a Self-Governance Tribe request a waiver?

How much time does the Secretary have to act on a waiver request?

Upon what basis may the waiver request be denied?

What happens if the Secretary neither approves or denies a waiver request within the time specified in § 137.227?

Is the Secretary's decision on a waiver request final for the Department?

May a Self-Governance Tribe appeal the Secretary's decision to deny its request for a waiver of a regulation promulgated under section 517 of the Act [25 U.S.C. 458aaa-16]?

May an Indian Tribe withdraw from a participating inter-Tribal consortium or Tribal organization?

When does a withdrawal become effective?

How are funds redistributed when an Indian Tribe fully or partially withdraws from a compact or funding agreement and elects to enter a contract or compact?

How are funds distributed when an Indian Tribe fully or partially withdraws from a compact or funding agreement administered by an inter-Tribal consortium or Tribal organization serving more than one Indian Tribe and the withdrawing Indian Tribe elects not to enter a contract or compact?

If the withdrawing Indian Tribe elects to operate PSFAs carried out under a compact or funding agreement under Title V through a contract under Title I, is the resulting contract considered a mature contract under section 4(h) of the Act [25 U.S.C. 450b(h)]?

What is retrocession?

How does a Self-Governance Tribe retrocede a PSFA?

What is the effective date of a retrocession?

What effect will a retrocession have on a retroceding Self-Governance Tribe's rights to contract or compact under the Act?

Will retrocession adversely affect funding available for the retroceded program?

How are funds distributed when a Self-Governance Tribe fully or partially retrocedes from its compact or funding agreement?

What obligation does the retroceding Self-Governance Tribe have with respect to returning property that was provided by the Secretary under the compact or funding agreement and that was used in the operation of the retroceded program?

What does reassumption mean?

Under what circumstances may the Secretary reassume a program, service, function, or activity (or portion thereof)?

What steps must the Secretary take prior to reassumption becoming effective?

Does the Self-Governance Tribe have a right to a hearing prior to a non-immediate reassumption becoming effective?

What happens if the Secretary determines that the Self-Governance Tribe has not corrected the conditions that the Secretary identified in the notice?

What is the earliest date on which a reassumption can be effective?

Does the Secretary have the authority to immediately reassume a PSFA?

If the Secretary reassumes a PSFA immediately, when must the Secretary provide the Self-Governance Tribe with a hearing?

May the Secretary provide a grant to a Self-Governance Tribe for technical assistance to overcome conditions identified under § 137.257?

To what extent may the Secretary require the Self-Governance Tribe to return property that was provided by the Secretary under the compact or funding agreement and used in the operation of the reassumed program?

May a Tribe be reimbursed for actual and reasonable close out costs incurred after the effective date of reassumption?

What is covered by this subpart?

Why is there a separate subpart in these regulations for construction project agreements?

What other alternatives are available for Self-Governance Tribes to perform construction projects?

What are IHS construction PSFAs?

Does this subpart cover construction programs?

May Self-Governance Tribes include IHS construction programs in a construction project agreement or in a funding agreement?

Construction Definitions.

Are Self-Governance Tribes required to accept Federal environmental responsibilities to enter into a construction project agreement?

Do Self-Governance Tribes become Federal agencies when they assume these Federal environmental responsibilities?

What is the National Environmental Policy Act (NEPA)?

What is the National Historic Preservation Act (NHPA)?

What is a Federal undertaking under NHPA?

What additional provisions of law are related to NEPA and NHPA?

May Self-Governance Tribes carry out construction projects without assuming these Federal environmental responsibilities?

How do Self-Governance Tribes assume environmental responsibilities for construction projects under section 509 of the Act [25 U.S.C. 458aaa-8]?

Are Self-Governance Tribes required to adopt a separate resolution or take equivalent Tribal action to assume environmental responsibilities for each construction project agreement?

What is the typical IHS environmental review process for construction projects?

May Self-Governance Tribes elect to develop their own environmental review process?

How does a Self-Governance Tribe comply with NEPA and NHPA?

If the environmental review procedures of a Federal agency are adopted by a Self-Governance Tribe, is the Self-Governance Tribe responsible for ensuring the agency's policies and procedures meet the requirements of NEPA, NHPA, and related environmental laws?

Are Self-Governance Tribes required to comply with Executive Orders to fulfill their environmental responsibilities under section 509 of the Act [25 U.S.C. 458aaa-8]?

Are Federal funds available to cover the cost of Self-Governance Tribes carrying out environmental responsibilities?

Since Federal environmental responsibilities are new responsibilities, which may be assumed by Tribes under section 509 of the Act [25 U.S.C. 458aaa-8], are there additional funds available to Self-Governance Tribes to carry out these formerly inherently Federal responsibilities?

How are project and program environmental review costs identified?

Are Federal funds available to cover start-up costs associated with initial Tribal assumption of environmental responsibilities?

Are Federal or other funds available for training associated with Tribal assumption of environmental responsibilities?

May Self-Governance Tribes buy back environmental services from the IHS?

May Self-Governance Tribes act as lead, cooperating, or joint lead agencies for environmental review purposes?

How are Self-Governance Tribes recognized as having lead, cooperating, or joint lead agency status?

What Federal environmental responsibilities remain with the Secretary when a Self-Governance Tribe assumes Federal environmental responsibilities for construction projects under section 509 of the Act [25 U.S.C. 458aaa-8]?

Does the Secretary have any enforcement authority for Federal environmental responsibilities assumed by Tribes under section 509 of the Act [25 U.S.C. 458aaa-8]?

How are NEPA and NHPA obligations typically enforced?

Are Self-Governance Tribes required to grant a limited waiver of their sovereign immunity to assume Federal environmental responsibilities under section 509 of the Act [25 U.S.C. 458aaa-8]?

Are Self-Governance Tribes entitled to determine the nature and scope of the limited immunity waiver required under section 509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)]?

Who is the proper defendant in a civil enforcement action under section 509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)]?

Is the Secretary required to consult with affected Indian Tribes concerning construction projects and programs?

How do Indian Tribes and the Secretary identify and request funds for needed construction projects?

Is the Secretary required to notify an Indian Tribe that funds are available for a construction project or a phase of a project?

What does a Self-Governance Tribe do if it wants to perform a construction project under section 509 of the Act [25 U.S.C. 458aaa-8]?

What must a Tribal proposal for a construction project agreement contain?

May multiple projects be included in a single construction project agreement?

Must a construction project proposal incorporate provisions of Federal construction guidelines and manuals?

What environmental considerations must be included in the construction project agreement?

What happens if the Self-Governance Tribe and the Secretary cannot develop a mutually agreeable construction project agreement?

May the Secretary reject a final construction project proposal based on a determination of Tribal capacity or capability?

On what basis may the Secretary reject a final construction project proposal?

What procedures must the Secretary follow if the Secretary rejects a final construction project proposal, in whole or in part?

What happens if the Secretary fails to notify the Self-Governance Tribe of a decision to approve or reject a final construction project proposal within the time period allowed?

What costs may be included in the budget for a construction agreement?

What is the difference between fixed-price and cost-reimbursement agreements?

What funding must the Secretary provide in a construction project agreement?

Must funds from other sources be incorporated into a construction project agreement?

May a Self-Governance Tribe use project funds for matching or cost participation requirements under other Federal and non-Federal programs?

May a Self-Governance Tribe contribute funding to a project?

How will a Self-Governance Tribe receive payment under a construction project agreement?

What happens to funds remaining at the conclusion of a cost reimbursement construction project?

What happens to funds remaining at the conclusion of a fixed price construction project?

May a Self-Governance Tribe reallocate funds among construction project agreements?

Is a Self-Governance Tribe responsible for completing a construction project in accordance with the negotiated construction project agreement?

Is a Self-Governance Tribe required to submit construction project progress and financial reports for construction project agreements?

What is contained in a construction project progress report?

What is contained in a construction project financial report?

Does the Secretary approve project planning and design documents prepared by the Self-Governance Tribe?

Does the Secretary have any other opportunities to approve planning or design documents prepared by the Self-Governance Tribe?

May construction project agreements be amended?

What is the procedure for the Secretary's review and approval of amendments?

What constitutes a significant change in the original scope of work?

What is the procedure for the Secretary's review and approval of project planning and design documents submitted by the Self-Governance Tribe?

May the Secretary conduct onsite project oversight visits?

May the Secretary issue a stop work order under a construction project agreement?

Is the Secretary responsible for oversight and compliance of health and safety codes during construction projects being performed by a Self-Governance Tribe under section 509 of the Act [25 U.S.C. 488aaa-8]?

Do all provisions of this part apply to construction project agreements under this subpart?

Who takes title to real property purchased with funds provided under a construction project agreement?

Does the Secretary have a role in the fee-to-trust process when real property is purchased with construction project agreement funds?

Do Federal real property laws, regulations and procedures that apply to the Secretary also apply to Self-Governance Tribes that purchase real property with funds provided under a construction project agreement?

Does the Secretary have a role in reviewing or monitoring a Self-Governance Tribe's actions in acquiring or leasing real property with funds provided under a construction project agreement?

Are Tribally-owned facilities constructed under section 509 of the Act [25 U.S.C. 458aaa-8] eligible for replacement, maintenance, and improvement funds on the same basis as if title to such property were vested in the United States?

Are design and construction projects performed by Self-Governance Tribes under section 509 of the Act [25 U.S.C. 458aaa-8] subject to Federal metric requirements?

Do Federal procurement laws and regulations apply to construction project agreements performed under section 509 of the Act [25 U.S.C. 458aaa-8]?

Do the Federal Davis-Bacon Act and wage rates apply to construction projects performed by Self-Governance Tribes using their own funds or other non-Federal funds?

Do Davis-Bacon wage rates apply to construction projects performed by Self-Governance Tribes using Federal funds?

What role does Tribal consultation play in the IHS annual budget request process?

Is the Secretary required to report to Congress on administration of Title V and the funding requirements presently funded or unfunded?

In compiling reports pursuant to this section, may the Secretary impose any reporting requirements on Self-Governance Tribes, not otherwise provided in Title V?

What guidelines will be used by the Secretary to compile information required for the report?

For the purposes of section 110 of the Act [25 U.S.C. 450m-1] does the term contract include compacts, funding agreements, and construction project agreements entered into under Title V?

Do the regulations at 25 CFR Part 900, Subpart N apply to compacts, funding agreements, and construction project agreements entered into under Title V?

What decisions may an Indian Tribe appeal under § 137.415 through 137.436?

Do §§ 137.415 through 137.436 apply to any other disputes?

What procedures apply to Interior Board of Indian Appeals (IBIA) proceedings?

How does an Indian Tribe know where and when to file its appeal from decisions made by IHS?

What authority does the IBIA have under §§ 137.415 through 137.436?

Does an Indian Tribe have any options besides an appeal?

How does an Indian Tribe request an informal conference?

How is an informal conference held?

What happens after the informal conference?

Is the recommended decision from the informal conference final for the Secretary?

How does an Indian Tribe appeal the initial decision if it does not request an informal conference or if it does not agree with the recommended decision resulting from the informal conference?

May an Indian Tribe get an extension of time to file a notice of appeal?

What happens after an Indian Tribe files an appeal?

How is a hearing arranged?

What happens when a hearing is necessary?

What is the Secretary's burden of proof for appeals covered by § 137.415?

What rights do Indian Tribes and the Secretary have during the appeal process?

What happens after the hearing?

Is the recommended decision always final?

If an Indian Tribe objects to the recommended decision, what will the Secretary do?

Will an appeal adversely affect the Indian Tribe's rights in other compact, funding negotiations, or construction project agreement?

Will the decisions on appeal be available for the public to review?

What happens in the case of an immediate reassumption under section 507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)]?

Will there be a hearing?

What happens after the hearing?

Is the recommended decision always final?

If a Self-Governance Tribe objects to the recommended decision, what action will the Secretary take?

Will an immediate reassumption appeal adversely affect the Self-Governance Tribe's rights in other self-governance negotiations?

Does the Equal Access to Justice Act (EAJA) apply to appeals under this subpart?