2002 CFR Title 42, Volume 1

Title 42--Public Health CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 137--TRIBAL SELF-GOVERNANCE
	137.1	Authority, purpose and scope
	137.2	Congressional policy.
	137.3	Effect on existing Tribal rights.
	137.4	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?
	137.5	Effect of these regulations on Federal program guidelines, manual, or policy directives.
	137.6	Secretarial policy.
	137.10	Definitions.
	137.15	Who may participate in Tribal Self-Governance?
	137.16	What if more than 50 Indian Tribes apply to participate in self-governance?
	137.17	May more than one Indian Tribe participate in the same compact and/or funding agreement?
	137.18	What criteria must an Indian Tribe satisfy to be eligible to participate in self-governance?
	137.20	What is required during the planning phase?
	137.21	How does an Indian Tribe demonstrate financial stability and financial management capacity?
	137.22	May the Secretary consider uncorrected significant and material audit exceptions identified regarding centralized financial and administrative functions?
	137.23	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?
	137.24	Are there grants available to assist the Indian Tribe to meet the requirements to participate in self-governance?
	137.25	Are planning and negotiation grants available?
	137.26	Must an Indian Tribe receive a planning or negotiation grant to be eligible to participate in self-governance?
	137.30	What is a self-governance compact?
	137.31	What is included in a compact?
	137.32	Is a compact required to participate in self-governance?
	137.33	May an Indian Tribe negotiate a funding agreement at the same time it is negotiating a compact?
	137.34	May a funding agreement be executed without negotiating a compact?
	137.35	What is the term of a self-governance compact?
	137.40	What is a funding agreement?
	137.41	What PSFAs must be included in a funding agreement?
	137.42	What Tribal shares may be included in a funding agreement?
	137.43	May a Tribe negotiate and leave funds with IHS for retained services?
	137.45	What terms must be included in a funding agreement?
	137.46	May additional terms be included in a funding agreement?
	137.47	Do any provisions of Title I apply to compacts, funding agreements, and construction project agreements negotiated under Title V of the Act?
	137.48	What is the effect of incorporating a Title I provision into a compact or funding agreement?
	137.49	What if a Self-Governance Tribe requests such incorporation at the negotiation stage of a compact or funding agreement?
	137.55	What is the term of a funding agreement?
	137.56	Does a funding agreement remain in effect after the end of its term?
	137.57	How is a funding agreement amended during the effective period of the funding agreement?
	137.60	May a statutorily mandated grant be added to a funding agreement?
	137.65	May a Self-Governance Tribe receive statutorily mandated grant funding in an annual lump sum advance payment?
	137.66	May a Self-Governance Tribe keep interest earned on statutorily mandated grant funds?
	137.67	How may a Self-Governance Tribe use interest earned on statutorily mandated grant funds?
	137.68	May funds from a statutorily mandated grant added to a funding agreement be reallocated?
	137.69	May a statutorily mandated grant program added to a funding agreement be redesigned?
	137.70	Are the reporting requirements different for a statutorily mandated grant program added to a funding agreement?
	137.71	May the Secretary and the Self-Governance Tribe develop separate programmatic reporting requirements for statutorily mandated grants?
	137.72	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)?
	137.73	What provisions of Title V apply to statutorily mandated grants added to the funding agreement?
	137.75	What funds must the Secretary transfer to a Self-Governance Tribe in a funding agreement?
	137.76	When must the Secretary transfer to a Self-Governance Tribe funds identified in a funding agreement?
	137.77	When must the Secretary transfer funds that were not paid as part of the initial lump sum payment?
	137.78	May a Self-Governance Tribe negotiate a funding agreement for a term longer or shorter than one year?
	137.79	What funds must the Secretary include in a funding agreement?
	137.85	Is the Secretary prohibited from failing or refusing to transfer funds that are due to a Self-Governance Tribe under Title V?
	137.86	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?
	137.87	May the Secretary reduce the amount of funds due under Title V in subsequent years?
	137.88	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?
	137.89	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?
	137.90	May the Secretary increase the funds required under the funding agreement?
	137.95	May a Self-Governance Tribe purchase goods and services from the IHS on a reimbursable basis?
	137.96	Does the Prompt Payment Act apply to funds transferred to a Self-Governance Tribe in a compact or funding agreement?
	137.100	May a Self-Governance Tribe retain and spend interest earned on any funds paid under a compact or funding agreement?
	137.101	What standard applies to a Self-Governance Tribe's management of funds paid under a compact or funding agreement?
	137.105	May a Self-Governance Tribe carryover from one year to the next any funds that remain at the end of the funding agreement?
	137.110	May a Self-Governance Tribe retain and expend any program income earned pursuant to a compact and funding agreement?
	137.115	Is a Self-Governance Tribe obligated to continue performance under a compact or funding agreement if the Secretary does not transfer sufficient funds?
	137.120	May a Self-Governance Tribe's funding agreement provide for a stable base budget?
	137.121	What funds may be included in a stable base budget amount?
	137.122	May a Self-Governance Tribe with a stable base budget receive other funding under its funding agreement?
	137.123	Once stable base funding is negotiated, do funding amounts change from year to year?
	137.124	Does the effective period of a stable base budget have to be the same as the term of the funding agreement?
	137.130	What is covered by this subpart?
	137.131	When should a final offer be submitted?
	137.132	How does the Indian Tribe submit a final offer?
	137.133	What does a final offer contain?
	137.134	When does the 45 day review period begin?
	137.135	May the Secretary request and obtain an extension of time of the 45 day review period?
	137.136	What happens if the agency takes no action within the 45 day review period (or any extensions thereof)?
	137.137	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?
	137.138	Once the Indian Tribe's final offer has been accepted or deemed accepted by operation of law, what is the next step?
	137.140	On what basis may the Secretary reject an Indian Tribe's final offer?
	137.141	How does the Secretary reject a final offer?
	137.142	What is a ``significant danger'' or ``risk'' to the public health?
	137.143	How is the funding level to which the Indian Tribe is entitled determined?
	137.144	Is technical assistance available to an Indian Tribe to avoid rejection of a final offer?
	137.145	If the Secretary rejects a final offer, is the Secretary required to provide the Indian Tribe with technical assistance?
	137.146	If the Secretary rejects all or part of a final offer, is the Indian Tribe entitled to an appeal?
	137.147	Do those portions of the compact, funding agreement, or amendment not in dispute go into effect?
	137.148	Does appealing the decision of the Secretary prevent entering into the compact, funding agreement, or amendment?
	137.150	What is the burden of proof in an appeal from rejection of a final offer?
	137.155	What constitutes a final agency action?
	137.160	Are Self-Governance Tribes required to address potential conflicts of interest?
	137.165	Are Self-Governance Tribes required to undertake annual audits?
	137.166	Are there exceptions to the annual audit requirements?
	137.167	What cost principles must a Self-Governance Tribe follow when participating in self-governance under Title V?
	137.168	May the Secretary require audit or accounting standards other than those specified in 137.167?
	137.169	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?
	137.170	When does the 365 day period commence?
	137.171	Where do Self-Governance Tribes send their audit reports?
	137.172	Should the audit report be sent anywhere else to ensure receipt by the Secretary?
	137.173	Does a Self-Governance Tribe have a right of appeal from a disallowance?
	137.175	Is a Self-Governance Tribe required to maintain a recordkeeping system?
	137.176	Are Tribal records subject to the Freedom of Information Act and Federal Privacy Act?
	137.177	Is the Self-Governance Tribe required to make its records available to the Secretary?
	137.178	May Self-Governance Tribes store patient records at the Federal Records Centers?
	137.179	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?
	137.180	Are there other laws that govern access to patient records?
	137.185	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?
	137.190	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?
	137.200	Are there reporting requirements for Self-Governance Tribes under Title V?
	137.201	What are the purposes of the Tribal reporting requirements?
	137.202	What types of information will Self-Governance Tribes be expected to include in the reports?
	137.203	May a Self-Governance Tribe participate in a voluntary national uniform data collection effort with the IHS?
	137.204	How will this voluntary national uniform data set be developed?
	137.205	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?
	137.206	Why does the IHS need this information?
	137.207	Will funding be provided to the Self-Governance Tribe to compensate for the costs of reporting?
	137.210	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?
	137.211	How does a Self-Governance Tribe learn whether self-governance activities have resulted in savings as described in 137.210.
	137.215	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)]?
	137.217	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?
	137.220Dosection314ofPublicLaw101-512	[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?
	137.225	What regulations may be waived under Title V?
	137.226	How does a Self-Governance Tribe request a waiver?
	137.227	How much time does the Secretary have to act on a waiver request?
	137.228	Upon what basis may the waiver request be denied?
	137.229	What happens if the Secretary neither approves or denies a waiver request within the time specified in 137.227?
	137.230	Is the Secretary's decision on a waiver request final for the Department?
	137.231	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]?
	137.235	May an Indian Tribe withdraw from a participating inter-Tribal consortium or Tribal organization?
	137.236	When does a withdrawal become effective?
	137.237	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?
	137.238	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?
	137.239	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)]?
	137.245	What is retrocession?
	137.246	How does a Self-Governance Tribe retrocede a PSFA?
	137.247	What is the effective date of a retrocession?
	137.248	What effect will a retrocession have on a retroceding Self-Governance Tribe's rights to contract or compact under the Act?
	137.249	Will retrocession adversely affect funding available for the retroceded program?
	137.250	How are funds distributed when a Self-Governance Tribe fully or partially retrocedes from its compact or funding agreement?
	137.251.	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?
	137.255	What does reassumption mean?
	137.256	Under what circumstances may the Secretary reassume a program, service, function, or activity (or portion thereof)?
	137.257	What steps must the Secretary take prior to reassumption becoming effective?
	137.258	Does the Self-Governance Tribe have a right to a hearing prior to a non-immediate reassumption becoming effective?
	137.259	What happens if the Secretary determines that the Self-Governance Tribe has not corrected the conditions that the Secretary identified in the notice?
	137.260	What is the earliest date on which a reassumption can be effective?
	137.261	Does the Secretary have the authority to immediately reassume a PSFA?
	137.262	If the Secretary reassumes a PSFA immediately, when must the Secretary provide the Self-Governance Tribe with a hearing?
	137.263	May the Secretary provide a grant to a Self-Governance Tribe for technical assistance to overcome conditions identified under 137.257?
	137.264	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?
	137.265	May a Tribe be reimbursed for actual and reasonable close out costs incurred after the effective date of reassumption?
	137.270	What is covered by this subpart?
	137.271	Why is there a separate subpart in these regulations for construction project agreements?
	137.272	What other alternatives are available for Self-Governance Tribes to perform construction projects?
	137.273	What are IHS construction PSFAs?
	137.274	Does this subpart cover construction programs?
	137.275	May Self-Governance Tribes include IHS construction programs in a construction project agreement or in a funding agreement?
	137.280	Construction Definitions.
	137.285	Are Self-Governance Tribes required to accept Federal environmental responsibilities to enter into a construction project agreement?
	137.286	Do Self-Governance Tribes become Federal agencies when they assume these Federal environmental responsibilities?
	137.287	What is the National Environmental Policy Act (NEPA)?
	137.288	What is the National Historic Preservation Act (NHPA)?
	137.289	What is a Federal undertaking under NHPA?
	137.290	What additional provisions of law are related to NEPA and NHPA?
	137.291	May Self-Governance Tribes carry out construction projects without assuming these Federal environmental responsibilities?
	137.292	How do Self-Governance Tribes assume environmental responsibilities for construction projects under section 509 of the Act [25 U.S.C. 458aaa-8]?
	137.293	Are Self-Governance Tribes required to adopt a separate resolution or take equivalent Tribal action to assume environmental responsibilities for each construction project agreement?
	137.294	What is the typical IHS environmental review process for construction projects?
	137.295	May Self-Governance Tribes elect to develop their own environmental review process?
	137.296	How does a Self-Governance Tribe comply with NEPA and NHPA?
	137.297	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?
	137.298	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]?
	137.299	Are Federal funds available to cover the cost of Self-Governance Tribes carrying out environmental responsibilities?
	137.300	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?
	137.301	How are project and program environmental review costs identified?
	137.302	Are Federal funds available to cover start-up costs associated with initial Tribal assumption of environmental responsibilities?
	137.303	Are Federal or other funds available for training associated with Tribal assumption of environmental responsibilities?
	137.304	May Self-Governance Tribes buy back environmental services from the IHS?
	137.305	May Self-Governance Tribes act as lead, cooperating, or joint lead agencies for environmental review purposes?
	137.306	How are Self-Governance Tribes recognized as having lead, cooperating, or joint lead agency status?
	137.307	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]?
	137.308	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]?
	137.309	How are NEPA and NHPA obligations typically enforced?
	137.310	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]?
	137.311	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)]?
	137.312	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)]?
	137.320	Is the Secretary required to consult with affected Indian Tribes concerning construction projects and programs?
	137.321	How do Indian Tribes and the Secretary identify and request funds for needed construction projects?
	137.322	Is the Secretary required to notify an Indian Tribe that funds are available for a construction project or a phase of a project?
	137.325	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]?
	137.326	What must a Tribal proposal for a construction project agreement contain?
	137.327	May multiple projects be included in a single construction project agreement?
	137.328	Must a construction project proposal incorporate provisions of Federal construction guidelines and manuals?
	137.329	What environmental considerations must be included in the construction project agreement?
	137.330	What happens if the Self-Governance Tribe and the Secretary cannot develop a mutually agreeable construction project agreement?
	137.331	May the Secretary reject a final construction project proposal based on a determination of Tribal capacity or capability?
	137.332	On what basis may the Secretary reject a final construction project proposal?
	137.333	What procedures must the Secretary follow if the Secretary rejects a final construction project proposal, in whole or in part?
	137.334	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?
	137.335	What costs may be included in the budget for a construction agreement?
	137.336	What is the difference between fixed-price and cost-reimbursement agreements?
	137.337	What funding must the Secretary provide in a construction project agreement?
	137.338	Must funds from other sources be incorporated into a construction project agreement?
	137.339	May a Self-Governance Tribe use project funds for matching or cost participation requirements under other Federal and non-Federal programs?
	137.340	May a Self-Governance Tribe contribute funding to a project?
	137.341	How will a Self-Governance Tribe receive payment under a construction project agreement?
	137.342	What happens to funds remaining at the conclusion of a cost reimbursement construction project?
	137.343	What happens to funds remaining at the conclusion of a fixed price construction project?
	137.344	May a Self-Governance Tribe reallocate funds among construction project agreements?
	137.350	Is a Self-Governance Tribe responsible for completing a construction project in accordance with the negotiated construction project agreement?
	137.351	Is a Self-Governance Tribe required to submit construction project progress and financial reports for construction project agreements?
	137.352	What is contained in a construction project progress report?
	137.353	What is contained in a construction project financial report?
	137.360	Does the Secretary approve project planning and design documents prepared by the Self-Governance Tribe?
	137.361	Does the Secretary have any other opportunities to approve planning or design documents prepared by the Self-Governance Tribe?
	137.362	May construction project agreements be amended?
	137.363	What is the procedure for the Secretary's review and approval of amendments?
	137.364	What constitutes a significant change in the original scope of work?
	137.365	What is the procedure for the Secretary's review and approval of project planning and design documents submitted by the Self-Governance Tribe?
	137.366	May the Secretary conduct onsite project oversight visits?
	137.367	May the Secretary issue a stop work order under a construction project agreement?
	137.368	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]?
	137.370	Do all provisions of this part apply to construction project agreements under this subpart?
	137.371	Who takes title to real property purchased with funds provided under a construction project agreement?
	137.372	Does the Secretary have a role in the fee-to-trust process when real property is purchased with construction project agreement funds?
	137.373	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?
	137.374	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?
	137.375	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?
	137.376	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?
	137.377	Do Federal procurement laws and regulations apply to construction project agreements performed under section 509 of the Act [25 U.S.C. 458aaa-8]?
	137.378	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?
	137.379	Do Davis-Bacon wage rates apply to construction projects performed by Self-Governance Tribes using Federal funds?
	137.401	What role does Tribal consultation play in the IHS annual budget request process?
	137.405	Is the Secretary required to report to Congress on administration of Title V and the funding requirements presently funded or unfunded?
	137.406	In compiling reports pursuant to this section, may the Secretary impose any reporting requirements on Self-Governance Tribes, not otherwise provided in Title V?
	137.407	What guidelines will be used by the Secretary to compile information required for the report?
	137.410Forthepurposesofsection110oftheAct	[25 U.S.C. 450m-1] does the term contract include compacts, funding agreements, and construction project agreements entered into under Title V?
	137.412	Do the regulations at 25 CFR Part 900, Subpart N apply to compacts, funding agreements, and construction project agreements entered into under Title V?
	137.415	What decisions may an Indian Tribe appeal under 137.415 through 137.436?
	137.416	Do 137.415 through 137.436 apply to any other disputes?
	137.417	What procedures apply to Interior Board of Indian Appeals (IBIA) proceedings?
	137.418	How does an Indian Tribe know where and when to file its appeal from decisions made by IHS?
	137.419	What authority does the IBIA have under 137.415 through 137.436?
	137.420	Does an Indian Tribe have any options besides an appeal?
	137.421	How does an Indian Tribe request an informal conference?
	137.422	How is an informal conference held?
	137.423	What happens after the informal conference?
	137.424	Is the recommended decision from the informal conference final for the Secretary?
	137.425	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?
	137.426	May an Indian Tribe get an extension of time to file a notice of appeal?
	137.427	What happens after an Indian Tribe files an appeal?
	137.428	How is a hearing arranged?
	137.429	What happens when a hearing is necessary?
	137.430	What is the Secretary's burden of proof for appeals covered by 137.415?
	137.431	What rights do Indian Tribes and the Secretary have during the appeal process?
	137.432	What happens after the hearing?
	137.433	Is the recommended decision always final?
	137.434	If an Indian Tribe objects to the recommended decision, what will the Secretary do?
	137.435	Will an appeal adversely affect the Indian Tribe's rights in other compact, funding negotiations, or construction project agreement?
	137.436	Will the decisions on appeal be available for the public to review?
	137.440	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)]?
	137.441	Will there be a hearing?
	137.442	What happens after the hearing?
	137.443	Is the recommended decision always final?
	137.444	If a Self-Governance Tribe objects to the recommended decision, what action will the Secretary take?
	137.445	Will an immediate reassumption appeal adversely affect the Self-Governance Tribe's rights in other self-governance negotiations?
	137.450	Does the Equal Access to Justice Act (EAJA) apply to appeals under this subpart?