E8-766. List of Programs Eligible for Inclusion in Fiscal Year 2008 Funding Agreements To Be Negotiated With Self-Governance Tribes

AGENCY:

Minerals Management Service, Interior.

ACTION:

Notice.

SUMMARY:

This notice lists programs or portions of programs that are eligible for inclusion in Fiscal Year 2008 funding agreements with self-governance tribes and lists programmatic targets.

DATES:

This notice expires on September 30, 2008.

ADDRESSES:

Inquiries or comments regarding this notice may be directed to Shirley M. Conway, Regulations Manager, Minerals Revenue Management, Minerals Management Service, 1849 C Street, NW., MS 5557 MIB, Washington, DC 20240.

SUPPLEMENTARY INFORMATION:

I. Background

Title IV of the Indian Self-Determination Act Amendments of 1994 (Pub.L. 103-413, the “Tribal Self-Governance Act” or the “Act”) instituted a permanent self-governance program at the Department of the Interior. Under the self-governance program certain programs, services, functions, and activities, or portions thereof, in the Department's bureaus other than the Bureau of Indian Affairs (BIA) are eligible to be planned, conducted, consolidated, and administered by a self-governance tribal government.

Under section 405(c) of the Act, the Secretary of the Interior is required to publish annually: (1) A list of non-BIA programs, services, functions, and activities, or portions thereof, that are eligible for inclusion in agreements negotiated under the self-governance program; and (2) programmatic targets for these bureaus.

Under the Act, two categories of non-BIA programs are eligible for self-governance funding agreements: (1) Under section 403(b)(2) of the Act, any non-BIA program, service, function or activity that is administered by the Department that is “otherwise available to Indian tribes or Indians,” can be administered by a tribal government through a self-governance funding agreement. The Department interprets this provision to authorize the inclusion of programs eligible for self-determination contracts under Title I of the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638, as amended). Section 403(b)(2) also specifies “nothing in this subsection may be construed to provide any tribe with a preference with respect to the opportunity of the tribe to administer programs, services, functions and activities, or portions thereof, unless such preference is otherwise provided by law.” (2) Under section 403(c) of the Act, the Secretary may include other programs, services, functions, and activities or portions thereof that are of “special geographic, historical, or cultural significance” to a self-governance tribe.

Under section 403(k) of the Act, funding agreements cannot include programs, services, functions, or activities that are inherently Federal or where the statute establishing the existing program does not authorize the type of participation sought by the tribe. However, a tribe (or tribes) need not be identified in the authorizing statutes in order for a program or element to be included in a self-governance funding agreement. While general legal and policy guidance regarding what constitutes an inherently Federal function exists, we will determine whether a specific function is inherently Federal on a case-by-case basis considering the totality of circumstances.

The Office of Self-Governance requested comments on the proposed list on June 14, 2006. A number of editorial and technical changes were provided by Interior's bureaus and incorporated into this Notice. While the Notice of June 14, 2006, illustrated all eligible non-BIA programs for the Department, this Notice is particular to Minerals Management Service (MMS).

II. Eligible Non-BIA Programs of the Minerals Management Service

Below is a listing of the types of non-BIA programs, or portions thereof, that may be eligible for self-governance funding agreements because they are either “otherwise available to Indians” under Title I and not precluded by any other law, or may have “special geographic, historical, or cultural significance” to a participating tribe. The list represents the most current information on programs potentially available to tribes under a self-governance funding agreement.

The MMS will also consider for inclusion in funding agreements other programs or activities not included below, but which, upon request of a self-governance tribe, MMS determines to be eligible under either sections 403(b)(2) or 403(c) of the Act. Tribes with an interest in such potential agreements are encouraged to begin such discussions.

The MMS provides stewardship of America's offshore resources and collects revenues generated from mineral leases on Federal and Indian lands. The MMS is responsible for the management of the Federal Outer Continental Shelf, which are submerged lands off the coasts that have significant energy and mineral resources. Within the Offshore Minerals Management program, environmental impact assessments and statements, and environmental studies may be available if a self-governance tribe demonstrates a special geographic, cultural or historical connection.

The MMS also offers mineral-owning tribes other opportunities to become involved in its Minerals Revenue Management (MRM) functions. These programs address the intent of tribal self-governance but are available regardless of self-governance intentions or status and are a good prerequisite for assuming other technical functions. Generally, MRM functions are available to tribes because of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA) at 30 U.S.C. 1701. The MRM functions that may be available to self-governance tribes includes:

1. Audit of Tribal Royalty Payments. Audit activities for tribal leases, except for the issuance of orders, final valuation decisions, and other enforcement activities. (For tribes already participating in MMS cooperative audits, this program is offered as an option.)

2. Verification of Tribal Royalty Payments. Financial compliance verification and monitoring activities, and production verification.

3. Tribal Royalty Reporting, Accounting, and Data Management. Establishment and management of royalty reporting and accounting systems including document processing, production reporting, reference data (lease, payor, agreement) management, billing and general ledger.

4. Tribal Royalty Valuation. Preliminary analysis and recommendations for valuation and allowance determinations and approvals.

5. Royalty Management of Allotted Leases. Mineral revenue collections of allotted leases, provided that MMS consults with and obtains written approval from affected individual Indian mineral owners to delegate this responsibility to the tribe.

6. On-line Monitoring of Royalties and Accounts. On-line computer access to reports, payments, and royalty information contained in MMS accounts. The MMS will install equipment at tribal locations, train tribal staff, and assist tribes in researching and monitoring all payments, reports, accounts, and historical information regarding their leases.

7. Royalty Internship Program. An orientation and training program for auditors and accountants from mineral producing tribes to acquaint tribal staff with royalty laws, procedures, and techniques. This program is recommended for tribes that are considering a self-governance funding agreement, but have not yet acquired mineral revenue expertise via a FOGRMA section 202 cooperative agreement, as this is the term contained in FOGRMA and implementing regulations at 30 CFR 228.4.

For questions regarding self-governance contact Shirley M. Conway, Regulations Manager, Minerals Revenue Management, Minerals Management Service, MS 5557 MIB,1849 C Street, NW., Washington, DC 20240, telephone [phone], fax [phone].

III. Programmatic Targets

During Fiscal Year 2008, upon request of a self-governance tribe, MMS will negotiate funding agreements for its eligible programs beyond those already negotiated.

Dated: December 27, 2007.

Randall B. Luthi,

Director, Minerals Management Service.