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§ 137.166 Are there exceptions to the annual audit requirements?
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Yes, the exceptions are described in 31 U.S.C. 7502 of the Single Audit Act.
§ 137.167 What cost principles must a Self-Governance Tribe follow when participating in self-governance under Title V?
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A Self-Governance Tribe must apply the cost principles of the applicable OMB circular, except as modified by:
(a) Section 106 (k) of the Act [25 U.S.C. 450j–1],
(b) Other provisions of law, or
(c) Any exemptions to applicable OMB circulars subsequently granted by the OMB.
§ 137.168 May the Secretary require audit or accounting standards other than those specified in §137.167?
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No, no other audit or accounting standards shall be required by the Secretary.
§ 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?
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Any right of action or other remedy (other than those relating to a criminal offense) relating to any disallowance of costs is barred unless the Secretary provides notice of such a disallowance within 365 days from receiving any required annual agency single audit report or, for any period covered by law or regulation in force prior to enactment of the Single Agency Audit Act of 1984, any other required final audit report.
§ 137.170 When does the 365 day period commence?
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For the purpose of determining the 365 day period, an audit report is deemed received on the date of actual receipt by the Secretary, at the address specified in §137.172, if, within 60 days after receiving the audit report, the Secretary does not give notice of a determination by the Secretary to reject the single-agency audit report as insufficient due to non-compliance with chapter 75 of title 31, United States Code or noncompliance with any other applicable law.
§ 137.171 Where do Self-Governance Tribes send their audit reports?
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(a) For fiscal years ending on or before June 30, 1996, the audit report must be sent to: National External Audit Review Center, Lucas Place Room 514, 323 W. 8th St., Kansas City, MO 64105.
(b) For fiscal years, beginning after June 30, 1996, the audit report must be sent to: Single Audit Clearinghouse, 1201 E. 10th St., Jeffersonville, IN 47132.
§ 137.172 Should the audit report be sent anywhere else to ensure receipt by the Secretary?
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Yes, the Self-Governance Tribe should also send the audit report to: National External Audit Review Center, Lucas Place Room 514, 323 W. 8th St., Kansas City, MO 64105.
§ 137.173 Does a Self-Governance Tribe have a right of appeal from a disallowance?
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Yes, the notice must set forth the right of appeal and hearing to the Interior Board of Contract Appeals, pursuant to section 110 of the Act [25 U.S.C. 450m–1].
Records
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§ 137.175 Is a Self-Governance Tribe required to maintain a recordkeeping system?
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Yes. Tribes are required to maintain records and provide Federal agency access to those records as provided in §137.177.
§ 137.176 Are Tribal records subject to the Freedom of Information Act and Federal Privacy Act?
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No, except to the extent that a Self-Governance Tribe specifies otherwise in its compact or funding agreement, the records of the Self-Governance Tribe shall not be considered Federal records for purposes of chapter 5 of title 5, United States Code.
§ 137.177 Is the Self-Governance Tribe required to make its records available to the Secretary?
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Yes, after 30 days advance written notice from the Secretary, the Self-Governance Tribe must provide the Secretary with reasonable access to such records to enable the Department to meet its minimum legal recordkeeping system requirements under sections 3101 through 3106 of title 44 United States Code.
§ 137.178 May Self-Governance Tribes store patient records at the Federal Records Centers?
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Yes, at the option of a Self-Governance Tribe, patient records may be stored at Federal Records Centers to the same extent and in the same manner as other Department patient records in accordance with section 105(o) of the Act [25 U.S.C. 450j(o)].
§ 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?
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Yes, a Self-Governance Tribe may 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?
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Yes, a Tribe must consider the potential application of Tribal, Federal and state law and regulations that may apply to requests for access to Tribal patient records, such as the provisions 42 CFR 2.1–2.67 pertaining to records regarding drug and/or alcohol treatment.
Redesign
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§ 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?
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Yes, a Self-Governance Tribe may redesign or consolidate PSFAs included in a funding agreement and reallocate or redirect funds for such PSFAs in any manner which the Self-Governance Tribe deems to be in the best interest of the health and welfare of the Indian community being served, only if the redesign or consolidation does not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable Federal law.
Non-Duplication
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§ 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?
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For the period for which, and to the extent to which, funding is provided under the compact or funding agreement, the Self-Governance Tribe is not entitled to contract with the Secretary for the same funds or PSFA under section 102 of the Act [25 U.S.C. 450f]. Such Self-Governance Tribe is eligible for new programs on the same basis as other Indian Tribes.
Health Status Reports
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§ 137.200 Are there reporting requirements for Self-Governance Tribes under Title V?
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Yes, compacts or funding agreements negotiated between the Secretary and a Self-Governance Tribe must include a provision that requires the Self-Governance Tribe to report on health status and services delivery. These reports may only impose minimal burdens on the Self-Governance Tribes.
§ 137.201 What are the purposes of the Tribal reporting requirements?
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Tribal reports enable the Secretary to prepare reports required under Title V and to develop the budget request. The reporting requirements are not intended as a quality assessment or monitoring tool, although such provision may be included at the option of the Self-Governance Tribe. Under no circumstances will the reporting requirement include any confidential, proprietary or commercial information. For example, while staffing levels may be a part of a report, pay levels for the staff are considered confidential between the Self-Governance Tribe and the employee.
§ 137.202 What types of information will Self-Governance Tribes be expected to include in the reports?
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Reports will be derived from existing minimal data elements currently collected by Self-Governance Tribes, and may include patient demographic and workload data. Not less than 60 days prior to the start of negotiations or a mutually agreed upon timeframe, the IHS will propose a list of recommended minimal data elements, along with justification for their inclusion, to be used as a basis for negotiating these requirements into the Self-Governance Tribe's compact or funding agreement.
§ 137.203 May a Self-Governance Tribe participate in a voluntary national uniform data collection effort with the IHS?
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Yes, in order to advance Indian health advocacy efforts, each Self-Governance Tribe will be encouraged to participate, at its option, in national IHS data reporting activities such as Government Performance Results Act, epidemiologic and surveillance reporting.
§ 137.204 How will this voluntary national uniform data set be developed?
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IHS will work with representatives of Self-Governance Tribes, in coordination with the Tribal Self Governance Advisory Committee (TSGAC), to develop a mutually-defined annual voluntary uniform subset of data that is consistent with Congressional intent, minimizes reporting burdens, and responds to the needs of the Self-Governance Tribe.
§ 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?
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No, to the extent that specific resources are available or have not otherwise been provided to Self-Governance Tribes for this purpose, and if the Self-Governance Tribes choose to participate, the IHS will provide resources, hardware, software, and technical assistance to the Self-Governance Tribes to facilitate data gathering to ensure data consistency and integrity under this voluntary effort.
§ 137.206 Why does the IHS need this information?
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This information will be used to comply with sections 513 [25 U.S.C. 458aaa–12] and 514 [25 U.S.C. 458aaa–13] of the Act as well as to assist IHS in advocating for the Indian health system, budget formulation, and other reporting required by statute, development of partnerships with other organizations that benefit the health status of Indian Tribes, and sharing of best practices.
§ 137.207 Will funding be provided to the Self-Governance Tribe to compensate for the costs of reporting?
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Yes, reporting requirements are subject to the Secretary providing specific funds for this purpose in the funding agreement.
Savings
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§ 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?
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To the extent that PSFAs carried out by Self-Governance Tribes under Title V reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings that have not otherwise been included in the amount of Tribal shares and other funds determined under section 508(c) of the Act [25 U.S.C. 458aaa–7(c)], the Secretary must make such savings available to the Self-Governance Tribes, for the provision of additional services to program beneficiaries in a manner equitable to directly served, contracted, and compacted programs.
§ 137.211 How does a Self-Governance Tribe learn whether self-governance activities have resulted in savings as described in §137.210.
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The annual report prepared pursuant to section 514(b)(2) [25 U.S.C. 458aaa–13(b)(2)] of the Act must specifically identify any such savings.
Access to Government Furnished Property
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§ 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)]?
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(a) For government-furnished real and personal property made available to a Self-Governance Tribe, the Self-Governance Tribe must take title to all real or personal property unless the Self-Governance Tribe requests that the United States retain the title.
(b) For government-furnished personal property made available to a Self-Governance Tribe:
(1) The Secretary, in consultation with each Self-Governance Tribe, must develop a list of the property used in a compact, funding agreement, or construction project agreement.
(2) The Self-Governance Tribe must indicate any items on the list to which the Self-Governance Tribe wants the Secretary to retain title.
(3) The Secretary must provide the Self-Governance Tribe with any documentation needed to transfer title to the remaining listed property to the Self-Governance Tribe.
(c) For government-furnished real property made available to a Self-Governance Tribe:
(1) The Secretary, in consultation with the Self-Governance Tribe, must develop a list of the property furnished for use in a compact, funding agreement, or construction project agreement.
(2) The Secretary must inspect any real property on the list to determine the presence of any hazardous substance activity, as defined in 41 CFR 101–47.202–2(b)(10).
(3) The Self-Governance Tribe must indicate on the list to the Secretary any items of real property to which the Self-Governance Tribe wants the Secretary to retain title and those items of property to which the Self-Governance Tribe wishes to obtain title. The Secretary must take such steps as necessary to transfer title to the Self-Governance Tribe those items of real property which the Self-Governance Tribe wishes to acquire.
Matching and Cost Participation Requirements
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§ 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?
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Yes, funds provided under compacts, funding agreements, or grants made pursuant to Title V may be treated as non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.
Federal Tort Claims Act (FTCA)
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§ 137.220 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?
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Yes, regulations governing FTCA coverage are set out at 25 CFR Part 900, Subpart M.
Subpart J—Regulation Waiver
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§ 137.225 What regulations may be waived under Title V?
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A Self-Governance Tribe may request a waiver of regulation(s) promulgated under section 517 of the Act [25 U.S.C. 458aaa–16] or under the authorities specified in section 505(b) of the Act [25 U.S.C. 458aaa–4(b)] for a compact or funding agreement entered into with the IHS under Title V.
§ 137.226 How does a Self-Governance Tribe request a waiver?
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A Self-Governance Tribe may request a waiver by submitting a written request to the Secretary identifying the applicable Federal regulation(s) sought to be waived and the basis for the request.
§ 137.227 How much time does the Secretary have to act on a waiver request?
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The Secretary must either approve or deny the requested waiver in writing within 90 days after receipt by the Secretary.
§ 137.228 Upon what basis may the waiver request be denied?
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A denial may be made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because such waiver is prohibited by Federal law.
§ 137.229 What happens if the Secretary neither approves or denies a waiver request within the time specified in §137.227?
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The waiver request is deemed approved.
§ 137.230 Is the Secretary's decision on a waiver request final for the Department?
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Yes, the Secretary's decision on a waiver request is 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]?
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The decision may not be appealed under these regulations but may be appealed by the Self-Governance Tribe in Federal Court under applicable law.
Subpart K—Withdrawal
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§ 137.235 May an Indian Tribe withdraw from a participating inter-Tribal consortium or Tribal organization?
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Yes, an Indian Tribe may fully or partially withdraw from a participating inter-Tribal consortium or Tribal organization its share of any PSFAs included in a compact or funding agreement.
§ 137.236 When does a withdrawal become effective?
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A withdrawal becomes effective within the time frame specified in the resolution that authorizes withdrawal from the participating Tribal organization or inter-Tribal consortium. In the absence of a specific time frame set forth in the resolution, such withdrawal becomes effective on
(a) The earlier of 1 year after the date of submission of such request, or the date on which the funding agreement expires; or
(b) Such date as may be mutually agreed upon by the Secretary, the withdrawing Indian Tribe, and the participating Tribal organization or inter-Tribal consortium that has signed the compact or funding agreement on behalf of the withdrawing Indian Tribe, inter-Tribal consortium, or Tribal organization.
§ 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?
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When an Indian Tribe eligible to enter into a contract under Title I or a compact or funding agreement under Title V fully or partially withdraws from a participating inter-Tribal consortium or Tribal organization, and has proposed to enter into a contract or compact and funding agreement covering the withdrawn funds:
(a) The withdrawing Indian Tribe is entitled to its Tribal share of funds supporting those PSFAs that the Indian Tribe will be carrying out under its own contract or compact and funding agreement (calculated on the same basis as the funds were initially allocated in the funding agreement of the inter-Tribal consortium or Tribal organization); and
(b) the funds referred to in paragraph (a) of this section must be transferred from the funding agreement of the inter-Tribal consortium or Tribal organization, on the condition that the provisions of sections 102 [25 U.S.C. 450f] and 105(i) of the Act [25 U.S.C. 450j], as appropriate, apply to the withdrawing Indian Tribe.
§ 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?
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All funds not obligated by the inter-Tribal consortium or Tribal organization associated with the withdrawing Indian Tribe's returned PSFAs, less close out costs, shall be returned by the inter-Tribal consortium or Tribal organization to the IHS for operation of the PSFAs included in the withdrawal.
§ 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)]?
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Yes, 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, the resulting contract is considered a mature contract under section 4(h) of the Act [25 U.S.C. 450b(h)] at the option of the Indian Tribe.
Subpart L—Retrocession
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§ 137.245 What is retrocession?
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Retrocession means the return by a Self-Governance Tribe to the Secretary of PSFAs, that are included in a compact or funding agreement, for any reason, before the expiration of the term of the compact or funding agreement.
§ 137.246 How does a Self-Governance Tribe retrocede a PSFA?
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The Self-Governance Tribe submits a written notice to the Director of its intent to retrocede. The notice must specifically identify those PSFAs being retroceded. The notice may also include a proposed effective date of the retrocession.
§ 137.247 What is the effective date of a retrocession?
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Unless the request for retrocession is rescinded, the retrocession becomes effective within the timeframe specified by the parties in the compact or funding agreement. In the absence of a specification, the retrocession becomes effective on:
(a) The earlier of 1 year after:
(1) The date of submission of the request, or
(2) The date on which the funding agreement expires; or
(b) Whatever date is mutually agreed upon by the Secretary and the retroceding Self-Governance Tribe.
§ 137.248 What effect will a retrocession have on a retroceding Self-Governance Tribe's rights to contract or compact under the Act?
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A retrocession request shall not negatively affect:
(a) Any other contract or compact to which the retroceding Self-Governance Tribe is a party;
(b) Any other contracts or compacts the retroceding Self-Governance Tribe may request; and
(c) Any future request by such Self-Governance Tribe or an Indian Tribe to compact or contract for the same program.
§ 137.249 Will retrocession adversely affect funding available for the retroceded program?
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No, the Secretary shall provide no less than the same level of funding that would have been available if there had been no retrocession.
§ 137.250 How are funds distributed when a Self-Governance Tribe fully or partially retrocedes from its compact or funding agreement?
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Any funds not obligated by the Self-Governance Tribe and associated with the Self-Governance Tribe's returned PSFAs, less close out costs, must be returned by the Self-Governance Tribe to IHS for operation of the PSFA's associated with the compact or funding agreement from which the Self-Governance Tribe retroceded in whole or in part.
§ 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?
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On the effective date of any retrocession, the retroceding Self-Governance Tribe, shall, at the option of the Secretary, deliver to the Secretary all requested property and equipment provided by the Secretary under the compact or funding agreement, to the extent used to carry out the retroceded PSFAs, which at the time of retrocession has a per item current fair market value, less the cost of improvements borne by the Self-Governance Tribe in excess of $5,000 at the time of the retrocession.
Subpart M—Reassumption
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§ 137.255 What does reassumption mean?
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Reassumption means rescission by the Secretary without consent of the Self-Governance Tribe of PSFAs and associated funding in a compact or funding agreement and resuming responsibility to provide such PSFAs.
§ 137.256 Under what circumstances may the Secretary reassume a program, service, function, or activity (or portion thereof)?
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(a) Subject to the steps in §137.257, the Secretary may reassume a program, service, function, or activity (or portion thereof) and associated funding if the Secretary makes a specific finding relative to that PSFA of :
(1) Imminent endangerment of the public health caused by an act or omission of the Self-Governance Tribe, and the imminent endangerment arises out of a failure to carry out the compact or funding agreement; or
(2) Gross mismanagement with respect to funds transferred to the Self-Governance Tribe by a compact or funding agreement, as determined by the Secretary, in consultation with the Inspector General, as appropriate.
(b) Immediate reassumption may occur under additional requirements set forth in §137.261.
§ 137.257 What steps must the Secretary take prior to reassumption becoming effective?
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Except as provided in §137.261 for immediate reassumption, prior to a reassumption becoming effective, the Secretary must:
(a) Notify the Self-Governance Tribe in writing by certified mail of the details of findings required under §137.256(a)(1) and (2);
(b) Request specified corrective action within a reasonable period of time, which in no case may be less than 45 days;
(c) Offer and provide, if requested, the necessary technical assistance and advice to assist the Self-Governance Tribe to overcome the conditions that led to the findings described under (a); and
(d) Provide the Self-Governance Tribe with a hearing on the record as provided under Subpart P of this part.
§ 137.258 Does the Self-Governance Tribe have a right to a hearing prior to a non-immediate reassumption becoming effective?
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Yes, at the Self-Governance Tribe's request, the Secretary must provide a hearing on the record prior to or in lieu of the corrective action period identified in §137.257(b).
§ 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?
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(a) The Secretary shall provide a second written notice by certified mail to the Self-Governance Tribe served by the compact or funding agreement that the compact or funding agreement will be rescinded, in whole or in part.
(b) The second notice shall include:
(1) The intended effective date of the reassumption;
(2) The details and facts supporting the intended reassumption; and
(3) Instructions that explain the Indian Tribe's right to a formal hearing within 30 days of receipt of the notice.
§ 137.260 What is the earliest date on which a reassumption can be effective?
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Except as provided in §137.261, no PSFA may be reassumed by the Secretary until 30 days after the final resolution of the hearing and any subsequent appeals to provide the Self-Governance Tribe with an opportunity to take corrective action in response to any adverse final ruling.
§ 137.261 Does the Secretary have the authority to immediately reassume a PSFA?
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Yes, the Secretary may immediately reassume operation of a program, service, function, or activity (or portion thereof) and associated funding upon providing to the Self-Governance Tribe written notice in which the Secretary makes a finding:
(a) of imminent substantial and irreparable endangerment of the public health caused by an act or omission of the Indian Tribe; and
(b) the endangerment arises out of a failure to carry out the compact or funding agreement.
§ 137.262 If the Secretary reassumes a PSFA immediately, when must the Secretary provide the Self-Governance Tribe with a hearing?
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If the Secretary immediately reassumes a PSFA, the Secretary must provide the Self-Governance Tribe with a hearing under Subpart P of this part not later than 10 days after such reassumption, unless the Self-Governance Tribe and the Secretary agree to an extension.
§ 137.263 May the Secretary provide a grant to a Self-Governance Tribe for technical assistance to overcome conditions identified under §137.257?
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Yes, the Secretary may make a grant for the purpose of obtaining technical assistance as provided in section 103 of the Act [25 U.S.C. 458aaa-h].
§ 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?
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On the effective date of any reassumption, the Self-Governance Tribe, shall, at the option of the Secretary and only to the extent requested by the Secretary, deliver to the Secretary property and equipment provided by the Secretary under the compact or funding agreement, to the extent the property was used to directly carry out the reassumed program, service, function, or activity (or portion thereof), provided that at the time of reassumption the property has a per item current fair market value, less the cost of improvements borne by the Self-Governance Tribe, in excess of $5,000 at the time of the reassumption.
§ 137.265 May a Tribe be reimbursed for actual and reasonable close out costs incurred after the effective date of reassumption?
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Yes, a Tribe may be reimbursed for actual and reasonable close out costs incurred after the effective date of reassumption.
Subpart N—Construction
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Purpose and Scope
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§ 137.270 What is covered by this subpart?
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This subpart covers IHS construction projects carried out under section 509 of the Act [25 U.S.C. 458aaa-8].
§ 137.271 Why is there a separate subpart in these regulations for construction project agreements?
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Construction projects are separately defined in Title V and are subject to a separate proposal and review process. Provisions of a construction project agreement and this subpart shall be liberally construed in favor of the Self-Governance Tribe.
§ 137.272 What other alternatives are available for Self-Governance Tribes to perform construction projects?
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Self-Governance Tribes also have the option of performing IHS construction projects under a variety of other legal authorities, including but not limited to Title I of the Act, the Indian Health Care Improvement Act, Public Law 94–437, and Public Law 86–121. This subpart does not cover projects constructed pursuant to agreements entered into under these authorities.
§ 137.273 What are IHS construction PSFAs?
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IHS construction PSFAs are a combination of construction projects as defined in §137.280 and construction programs.
§ 137.274 Does this subpart cover construction programs?
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No, except as provided in §137.275, this subpart does not cover construction programs such as the:
(a) Maintenance and Improvement Program;
(b) Construction program functions; and,
(c) Planning services and construction management services.
§ 137.275 May Self-Governance Tribes include IHS construction programs in a construction project agreement or in a funding agreement?
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Yes, Self-Governance Tribes may choose to assume construction programs in a construction project agreement, in a funding agreement, or in a combination of the two. These programs may include the following:
(a) Maintenance and improvement program;
(b) Construction program functions; and
(c) Planning services and construction management services.
Construction Definitions
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§ 137.280 Construction Definitions.
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ALJ means administrative law judge.
APA means Administrative Procedures Act, 5 U.S.C. 701—706.
Budget means a statement of the funds required to complete the scope of work in a construction project agreement. For cost reimbursement agreements, budgets may be stated using broad categories such as planning, design, construction, project administration, and contingency. For fixed price agreements, budgets may be stated as lump sums, unit cost pricing, or a combination thereof.
Categorical exclusion means a category of actions that do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.
CEQ means Council on Environmental Quality in the Office of the President.
Construction management services (CMS) means activities limited to administrative support services; coordination; and monitoring oversight of the planning, design, and construction process. CMS activities typically include:
(1) Coordination and information exchange between the Self-Governance Tribe and the Federal Government;
(2) Preparation of a Self-Governance Tribe's project agreement; and
(3) A Self-Governance Tribe's subcontract scope of work identification and subcontract preparation, and competitive selection of construction contract subcontractors.
Construction phase is the phase of a construction project agreement during which the project is constructed, and includes labor, materials, equipment and services necessary to complete the work, in accordance with the construction project agreement.
Construction project means:
(1) An organized noncontinuous undertaking to complete a specific set of predetermined objectives for the planning, environmental determination, design, construction, repair, improvement, or expansion of buildings or facilities described in a project agreement, and
(2) Does not include construction program administration and activities described in sections 4(m)(1) through (3) of the Act [25 U.S.C. 4b(m)(1) through (3)], that may otherwise be included in a funding agreement under section 505 of the Act [25 U.S.C. 458aaa–4].
Construction project agreement means a negotiated agreement between the Secretary and a Self-Governance Tribe, that at a minimum:
(1) Establishes project phase start and completion dates;
(2) Defines a specific scope of work and standards by which it will be accomplished;
(3) Identifies the responsibilities of the Self-Governance Tribe and the Secretary;
(4) Addresses environmental considerations;
(5) Identifies the owner and operations and maintenance entity of the proposed work;
(6) Provides a budget;
(7) Provides a payment process; and
(8) Establishes the duration of the agreement based on the time necessary to complete the specified scope of work, which may be 1 or more years.
Design phase is the phase of a construction project agreement during which project plans, specifications, and other documents are prepared that are used to build the project. Site investigation, final site selection activities and environmental review and determination activities are completed in this phase if not conducted as a part of the planning phase.
Maintenance and improvement program:
(1) As used in this subpart means the program that provides funds for eligible facilities for the purpose of:
(i) Performing routine maintenance;
(ii) Achieving compliance with accreditation standards;
(iii) Improving and renovating facilities;
(iv) Ensuring that Indian health care facilities meet existing building codes and standards; and
(v) Ensuring compliance with public law building requirements.
(2) The maintenance and improvement program is comprised of routine maintenance and repair funding and project funding. Typical maintenance and improvement projects have historically been funded out of regional or national project pools and may include, but are not limited to, total replacement of a heating or cooling system, remodel of a medical laboratory, removal of lead based paint, abatement of asbestos and abatement of underground fuel storage tanks. Maintenance and repair program funding provided under a funding agreement is not covered under this subpart.
NEPA means the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.].
NHPA means the National Historic Preservation Act [16 U.S.C. 470 et seq.].
Planning phase is the phase of a construction project agreement during which planning services are provided.
Planning services may include performing a needs assessment, completing and/or verifying master plans, developing justification documents, conducting pre-design site investigations, developing budget cost estimates, conducting feasibility studies as needed, conducting environmental review activities and justifying the need for the project.
SHPO means State Historic Preservation Officer.
Scope of work or specific scope of work means a brief written description of the work to be accomplished under the construction project agreement, sufficient to confirm that the project is consistent with the purpose for which the Secretary has allocated funds.
THPO means Tribal Historic Preservation Officer.
NEPA Process
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§ 137.285 Are Self-Governance Tribes required to accept Federal environmental responsibilities to enter into a construction project agreement?
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Yes, under section 509 of the Act [25 U.S.C. 458aaa–8], Self-Governance Tribes must assume all Federal responsibilities under the NEPA of 1969 [42 U.S.C. 4321 et seq.] and the National Historic Preservation Act [16 U.S.C. 470 et seq.] and related provisions of law that would apply if the Secretary were to undertake a construction project, but only those responsibilities directly related to the completion of the construction project being assumed.
§ 137.286 Do Self-Governance Tribes become Federal agencies when they assume these Federal environmental responsibilities?
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No, while Self-Governance Tribes are required to assume Federal environmental responsibilities for projects in place of the Secretary, Self-Governance Tribes do not thereby become Federal agencies. However, because Self-Governance Tribes are assuming the responsibilities of the Secretary for the purposes of performing these Federal environmental responsibilities, Self-Governance Tribes will be considered the equivalent of Federal agencies for certain purposes as set forth in this subpart.
§ 137.287 What is the National Environmental Policy Act (NEPA)?
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The NEPA is a procedural law that requires Federal agencies to follow established environmental review procedures, which include reviewing and documenting the environmental impact of their actions. NEPA establishes a comprehensive policy for protection and enhancement of the environment by the Federal Government; creates the Council on Environmental Quality in the Office of the President; and directs Federal agencies to carry out the policies and procedures of the Act. CEQ regulations (40 CFR 1500–1508) establish three levels of environmental review: categorical exclusions, environmental assessments, and environmental impact statements.
§ 137.288 What is the National Historic Preservation Act (NHPA)?
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The NHPA requires Federal agencies to take into account the effects of their undertakings, such as construction projects, on properties covered by the NHPA, such as historic properties, properties eligible for listing on the National Register of Historic Places, or properties that an Indian Tribe regards as having religious and/or cultural importance. Section 106 of the NHPA [16 U.S.C. 470f] requires Federal agencies to afford the Advisory Council on Historic Preservation, acting through the SHPO or the THPO, a reasonable opportunity to comment on such undertakings.
§ 137.289 What is a Federal undertaking under NHPA?
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The Advisory Council on Historic Preservation has defined a Federal undertaking in 36 CFR 800.16(y) as a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.
§ 137.290 What additional provisions of law are related to NEPA and NHPA?
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(a) Depending upon the nature and the location of the construction project, environmental laws related to NEPA and NHPA may include:
(1) Archaeological and Historical Data Preservation Act [16 U.S.C. 469];
(2) Archeological Resources Protection Act [16 U.S.C. 470aa];
(3) Clean Air Act [42 U.S.C. 7401];
(4) Clean Water Act [33 U.S.C. 1251];
(5) Coastal Barrier Improvement Act [42 U.S.C. 4028 and 16 U.S.C. Sec. 3501];
(6) Coastal Barrier Resources Act [16 U.S.C. 3501];
(7) Coastal Zone Management Act [16 U.S.C. 1451];
(8) Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601];
(9) Endangered Species Act [16 U.S.C. 1531 et seq.];
(10) Farmland Protection Policy Act [7 U.S.C. 4201 et seq.];
(11) Marine Protection, Research, and Sanctuaries Act [33 U.S.C. 1401–1445; 16 U.S.C. 1431–1447F; 33 U.S.C. 2801–2805];
(12) National Historic Preservation Act [16 U.S.C. 470 et seq.];
(13) National Trails System Act [16 U.S.C. 1241];
(14) Native American Graves Protection and Repatriation Act [25 U.S.C. 3001];
(15) Noise Control Act [42 U.S.C.4901];
(16) Resource Conservation and Recovery Act [42 U.S.C. 6901];
(17) Safe Drinking Water Act [42 U.S.C. 300F];
(18) Toxic Substance Control Act [15 U.S.C. 2601];
(19) Wild and Scenic Rivers Act [16 U.S.C. 1271]; and
(20) Wilderness Act [16 U.S.C. 1131].
(b) This section provides a list of environmental laws for informational purposes only and does not create any legal rights or remedies, or imply private rights of action.
§ 137.291 May Self-Governance Tribes carry out construction projects without assuming these Federal environmental responsibilities?
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Yes, but not under section 509 of the Act [25 U.S.C. 458aaa–8]. Self-Governance Tribes may otherwise elect to perform construction projects, or phases of construction projects, under other legal authorities (see §137.272).
§ 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]?
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Self-Governance Tribes assume environmental responsibilities by:
(a) Adopting a resolution or taking an equivalent Tribal action which:
(1) Designates a certifying officer to represent the Self-Governance Tribe and to assume the status of a responsible Federal official under NEPA, NHPA, and related provisions of law; and
(2) Accepts the jurisdiction of the Federal court, as provided in §137.310 and §137.311 for purposes of enforcement of the Federal environmental responsibilities assumed by the Self-Governance Tribe; and
(b) Entering into a construction project agreement 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?
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No, the Self-Governance Tribe may adopt a single resolution or take equivalent Tribal action to assume environmental responsibilities for a single project, multiple projects, a class of projects, or all projects performed under section 509 of the Act [25 U.S.C. 458aaa–8].
§ 137.294 What is the typical IHS environmental review process for construction projects?
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(a) Most IHS construction projects normally do not have a significant impact on the environment, and therefore do not require environmental impact statements (EIS). Under current IHS procedures, an environmental review is performed on all construction projects. During the IHS environmental review process, the following activities may occur:
(1) Consult with appropriate Tribal, Federal, state, and local officials and interested parties on potential environmental effects;
(2) Document assessment of potential environmental effects; (IHS has developed a form to facilitate this process.)
(3) Perform necessary environmental surveys and inventories;
(4) Consult with the Advisory Council on Historic Preservation, acting through the SHPO or THPO, to ensure compliance with the NHPA;
(5) Determine if extraordinary or exceptional circumstances exist that would prevent the project from meeting the criteria for categorical exclusion from further environmental review under NEPA, or if an environmental assessment is required;
(6) Obtain environmental permits and approvals; and
(7) Identify methods to avoid or mitigate potential adverse effects;
(b) This section is for informational purposes only and does not create any legal rights or remedies, or imply private rights of action.
§ 137.295 May Self-Governance Tribes elect to develop their own environmental review process?
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Yes, Self-Governance Tribes may develop their own environmental review process or adopt the procedures of the IHS or the procedures of another Federal agency.
§ 137.296 How does a Self-Governance Tribe comply with NEPA and NHPA?
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Self-Governance Tribes comply with NEPA and the NHPA by adopting and following:
(a) their own environmental review procedures;
(b) the procedures of the IHS; and/or
(c) the procedures of another Federal agency.
§ 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?
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No, the Federal agency is responsible for ensuring its own policies and procedures meet the requirements of NEPA, NHPA, and related environmental laws, not the Self-Governance Tribe.
§ 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]?
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No, but Self-Governance Tribes may at their option, choose to voluntarily comply with Executive Orders. For facilities where ownership will vest with the Federal Government upon completion of the construction, Tribes and the Secretary may agree to include the goals and objectives of Executive Orders in the codes and standards of the construction project agreement.
§ 137.299 Are Federal funds available to cover the cost of Self-Governance Tribes carrying out environmental responsibilities?
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Yes, funds are available:
(a) for project-specific environmental costs through the construction project agreement; and
(b) for environmental review program costs through a funding agreement and/or a construction project agreement.
§ 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?
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Yes, the Secretary must transfer not less than the amount of funds that the Secretary would have otherwise used to carry out the Federal environmental responsibilities assumed by the Self-Governance Tribe.
§ 137.301 How are project and program environmental review costs identified?
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(a) The Self-Governance Tribe and the Secretary should work together during the initial stages of project development to identify program and project related costs associated with carrying out environmental responsibilities for proposed projects. The goal in this process is to identify the costs associated with all foreseeable environmental review activities.
(b) If unforeseen environmental review and compliance costs are identified during the performance of the construction project, the Self-Governance Tribe or, at the request of the Self-Governance Tribe, the Self-Governance Tribe and the Secretary (with or without amendment as required by §137.363) may do one or more of the following:
(1) Mitigate adverse environmental effects;
(2) Alter the project scope of work; and/or
(3) Add additional program and/or project funding, including seeking supplemental appropriations.
§ 137.302 Are Federal funds available to cover start-up costs associated with initial Tribal assumption of environmental responsibilities?
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(a) Yes, start-up costs are available as provided in section 508(c) of the Act [25 U.S.C. 458aaa–7(c)]. During the initial year that these responsibilities are assumed, the amount required to be paid under section 106(a)(2) of the Act [25 U.S.C. 450j–1(a)(2)] must include startup costs consisting of the reasonable costs that have been incurred or will be incurred on a one-time basis pursuant to the agreement necessary:
(1) To plan, prepare for, and assume operation of the environmental responsibilities; and
(2) To ensure compliance with the terms of the agreement and prudent management.
(b) Costs incurred before the initial year that the agreement is in effect may not be included in the amount required to be paid under section 106(a)(2) of the Act [25 U.S.C. 450j–1(a)(2)] if the Secretary does not receive a written notification of the nature and extent of the costs prior to the date on which such costs are incurred.
§ 137.303 Are Federal or other funds available for training associated with Tribal assumption of environmental responsibilities?
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Yes, Self-Governance Tribes may use construction program and project funds for training and program development. Training and program development funds may also be available from other Federal agencies, such as the Environmental Protection Agency and the National Park Service, state and local governments, and private organizations.
§ 137.304 May Self-Governance Tribes buy back environmental services from the IHS?
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Yes, Self-Governance Tribes may “buy back” project related services in their construction project agreement, including design and construction engineering, and environmental compliance services from the IHS in accordance with Section 508(f) of the Act [25 U.S.C. 458aaa–7(f)] and §137.95, subject to the availability of the IHS's capacity to conduct the work.
§ 137.305 May Self-Governance Tribes act as lead, cooperating, or joint lead agencies for environmental review purposes?
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Yes, Self-Governance Tribes assuming Federal environmental responsibilities for construction projects under section 509 of the Act [25 U.S.C. 458aaa–8] are entitled to receive equal consideration, on the same basis as any Federal agency, for lead, cooperating, and joint lead agency status. For informational purposes, the terms “lead,” “cooperating,” and “joint lead agency” are defined in the CEQ regulations at 40 CFR 1508.16, 1508.5, and 1501.5 respectively.
§ 137.306 How are Self-Governance Tribes recognized as having lead, cooperating, or joint lead agency status?
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Self-Governance Tribes may be recognized as having lead, cooperating, or joint lead agency status through funding or other agreements with other agencies. To the extent that resources are available, the Secretary will encourage and facilitate Federal, state, and local agencies to enter into agreements designating Tribes as lead, cooperating, or joint lead agencies for environmental review purposes. (continued)