E8-6180. List of Programs Eligible for Inclusion in Fiscal Year 2008 Funding Agreements With Self-Governance Tribes

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice.

SUMMARY:

We, the Fish and Wildlife Service (Service), publish this notice to list programs or portions of programs that are eligible for inclusion in Fiscal Year 2008 funding agreements with self-governance tribes, and to list programmatic targets under section 405(c)(4) of the Tribal Self-Governance Act.

DATES:

The programs and targets we list in this notice expire on September 30, 2008.

FOR FURTHER INFORMATION CONTACT:

Native American Liaison, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, MS 330, Arlington, VA 22203; telephone, 703-358-2550; fax [phone] or Assistant Director for External Affairs, U.S. Fish and Wildlife Service, 1849 C Street, NW., Washington, DC 20240, telephone [phone], fax [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Title II 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 (DOI). Under the self-governance program certain programs, services, functions, and activities, or portions thereof, in DOI 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 (Secretary) 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 each non-BIA bureau.

Under the Act, two categories of non-BIA programs are eligible for self-governance annual funding agreements (AFAs):

(1) Under section 403(b)(2) of the Act, any non-BIA program, service, function or activity that is administered by DOI that is “otherwise available to Indian tribes or Indians” can be administered by a tribal government through a self-governance AFA. DOI 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 that “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, AFAs 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 AFA. 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.

II. Existing AFAs Between Self-Governance Tribes and the Service

1. Council of Athabascan Tribal Governments. The Council of Athabascan Governments (CATG) has successfully implemented annual funding agreements (AFAs) since 2004 to perform activities in the Yukon Flats National Wildlife Refuge in Interior Alaska. The activities subject to the AFA have included marking boundaries for public easements, assisting with environmental education and outreach, monitoring wildlife harvest, surveying moose populations, and maintaining Federal property in and around Fort Yukon. Negotiations have resumed between the U.S. Fish and Wildlife Service and the Confederated Salish and Kootenai Tribes (CSKT) of the Flathead Nation regarding an Annual Funding Agreement for management at the National Bison Range Complex in Montana.

III. Eligible non-BIA Programs of the 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, 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. This list is not all-inclusive, but is representative of the types of Service programs that may be eligible for tribal participation through an AFA.

1. Subsistence Programs Within the State of Alaska

Evaluate and analyze data for annual subsistence regulatory cycles and other data trends related to subsistence harvest needs.

2. Technical Assistance, Restoration and Conservation

Conduct planning and implementation of population surveys, habitat surveys, restoration of sport fish, capture of depredating migratory birds, and habitat restoration activities.

3. Endangered Species Programs

Conduct activities associated with the conservation and recovery of threatened or endangered species protected under the Endangered Species Act (ESA) and candidate species under the ESA may be eligible for self-governance agreements. These activities may include, but are not limited to, cooperative conservation programs, development of recovery plans and implementation of recovery actions for threatened and endangered species, and implementation of status surveys for high priority candidate species.

4. Education Programs

Provide services in interpretation, outdoor classroom instruction, visitor center operations, and volunteer coordination both on and off National Wildlife Refuge lands in a variety of communities. Also assisting with environmental education and outreach efforts in local villages.

5. Environmental Contaminants Program

Conduct activities associated with identifying and removing toxic chemicals, which help prevent harm to fish, wildlife and their habitats. The activities required for environmental contaminant management may include, but are not limited to, analysis of pollution data, removal of underground storage tanks, specific cleanup activities, and field data gathering efforts.

6. Wetland and Habitat Conservation and Restoration

Provide services for construction, planning, and habitat monitoring and activities associated with conservation and restoration of wetland habitat.

7. Fish Hatchery Operations

Conduct activities to recover aquatic species listed under the Endangered Species Act, restore native aquatic populations, and provide fish to benefit Tribes and National Wildlife Refuges. Activities that may be eligible for a self-governance agreement may include, but are not limited to: egg taking, rearing and feeding of fish, disease treatment, tagging, and clerical or facility maintenance at a fish hatchery.

8. National Wildlife Refuge Operations and Maintenance

Conduct activities to assist the National Wildlife Refuge System, a national network of lands and waters for conservation, management and restoration of fish, wildlife and plant resources and their habitats within the United States. Activities that may be eligible for a self-governance agreement may include, but are not limited to: construction, farming, concessions, maintenance, biological program efforts, habitat management, fire management, and implementation of comprehensive conservation planning.

We will also consider for inclusion in AFAs other programs or activities not listed above, but which, upon request of a self-governance tribe, we determine 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.

Our mission is to conserve, protect, and enhance fish, wildlife, and their habitats for the continuing benefit of the American people. Our primary responsibilities are for migratory birds, endangered species, freshwater and anadromous fisheries, and certain marine mammals. We also have a continuing cooperative relationship with a number of Indian tribes throughout the National Wildlife Refuge System and the Service's fish hatcheries. Any self-governance tribe may contact a national wildlife refuge or national fish hatchery directly concerning participation in our programs under the Act.

IV. Locations of Refuges and Hatcheries With Close Proximity to Self-Governance Tribes

We developed the list below based on the proximity of an identified self-governance tribe to Service facilities that have components that may be suitable for contracting through a self-governance agreement.

1. All Alaska National Wildlife Refuges, Alaska.

2. Alchesay National Fish Hatchery, Arizona.

3. Humboldt Bay National Wildlife Refuge, Idaho.

4. Kootenai National Wildlife Refuge, Idaho.

5. Agassiz National Wildlife Refuge, Minnesota.

6. Mille Lacs National Wildlife Refuge, Minnesota.

7. Rice Lake National Wildlife Refuge, Minnesota.

8. National Bison Range, Montana.

9. Ninepipe National Wildlife Refuge, Montana.

10. Pablo National Wildlife Refuge, Montana.

11. Sequoyah National Wildlife Refuge, Oklahoma.

12. Tishomingo National Wildlife Refuge, Oklahoma.

13. Bandon Marsh National Wildlife Refuge, Washington.

14. Dungeness National Wildlife Refuge, Washington.

15. Makah National Fish Hatchery, Washington.

16. Nisqually National Wildlife Refuge, Washington.

17. Quinalt National Fish Hatchery, Washington.

18. San Juan Islands National Wildlife Refuge, Washington.

V. Programmatic Targets

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

Dated: February 27, 2008.

Lyle Laverty,

Assistant Secretary for Fish and Wildlife and Parks.