On February 14, 2002, the Department of Health and Human Services published a Notice of Proposed Rulemaking (NPRM) for "Tribal Self-Governance Amendments of 2000." (129) This NPRM added a new part 137 to new subchapter M - Indian Health Service. Part 137 Tribal Self-Governance regulations are the product of "consensus" reached by a negotiated rulemaking committee (130) whose representatives were composed of Federal and tribal officials. (131) Self-Governance tribal representatives made up a majority of the committee's representatives. The regulations are based on both Titles V and VI. They are comprehensive, detailed, and organized into 16 parts, A through P.
Subparts A and B of the regulations respectively provide for general provisions and definitions. Subpart C deals with the eligibility of Tribes as contracting parties. Up to 50 additional Tribes per year are to be selected for participation provided that they meet the eligibility requirements. Subpart D states the authority and content for negotiated compacts, and clarifies that compacts are separate documents from annual funding agreements. Subpart E states the authority, content and term of funding agreements, including a description of the required and optional terms. Subpart F describes how statutorily mandated grants may be added to a funding agreement. Subpart G describes what funds are to be transferred; when they are to be transferred; and the circumstances where the Secretary is prohibited from reducing or failing to transfer funds. The subpart also describes where the Secretary may increase funds and what funds may be included in a Tribe's stable base budget. Subpart H describes the final offer and rejection process; the process and timeframes for resolving disputes; and the process for a Tribe to follow in presenting a final offer as well as the procedures the Secretary must follow in rejecting such an offer. The burden of proof is placed on the Secretary to demonstrate the validity of the grounds for his rejection of a Tribe's final offer. Subpart I contains numerous operational provisions dealing with: Audits and cost principles; records; redesign; non-duplication; health status reports; savings; access to government furnished property; and matching and cost participation requirements. Subpart J authorizes the Secretary to waive regulations that have been promulgated to implement Title V or regulations promulgated under Section 505(b) of Title V. This subpart describes how a Tribe may apply for a waiver; the process; and the timeframes for approval or denial. Denial of a request for waiver may be appealed to a Federal court. Subpart K describes withdrawal from participation in an inter-tribal consortium or tribal organization; the impact on funds distribution; and future Title I contracting. Subparts L and M respectively describes procedures to be followed for retrocession and reassumption of contracts. Subpart N applies to construction projects undertaken under Section 509 of Title V. This subpart is comprehensive. It clarifies that Tribes may assume construction programs (but not projects) under the compact and funding agreement authorities. This subpart provides: Purpose and scope; construction definitions; process for Tribes to assume federal environmental responsibility under the National Environmental Policy Act (NEPA) and related laws; notification (prioritization process); project assumption process; roles of the Secretary and Self-Governance Tribes; and other provisions. Among the other provisions, Section 137.377 clarifies that Federal procurement laws and regulations do not apply to construction agreements performed under Section 509 of Title V, unless otherwise agreed. Subpart O describes the consultation and annual report to Congress process. Finally, Subpart P describes the appeals process.