2010-11551. List of Programs Eligible for Inclusion in Fiscal Year 2010 Funding Agreements To Be Negotiated With Self-Governance Tribes by Interior Bureaus Other Than the Bureau of Indian Affairs

AGENCY:

Office of the Secretary, Interior.

ACTION:

Notice.

SUMMARY:

This notice lists programs or portions of programs that are eligible for inclusion in Fiscal Year 2010 funding agreements with self-governance tribes and lists programmatic targets for each of the non-BIA bureaus, pursuant to section 405(c)(4) of the Tribal Self-Governance Act.

DATES:

This notice expires on September 30, 2010.

ADDRESSES:

Inquiries or comments regarding this notice may be directed to Sharee M. Freeman, Director, Office of Self-Governance (MS 355-H—SIB), 1849 C Street, NW., Washington, DC 20240-0001, telephone: [phone], fax: [phone], or to the bureau points of contact listed below.

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”), 25 U.S.C. 458aa et seq., 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 Interior bureaus other than BIA are eligible to be planned, conducted, consolidated, and administered by a self-governance tribal government.

Under section 405(c) of the Tribal Self-Governance Act, 25 U.S.C. 458ee(c), 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 Tribal Self-Governance Act, two categories of non-BIA programs are eligible for self-governance funding agreements:

(1) Under section 403(b)(2) of the Act, 25 U.S.C. 458cc(b)(2), any non-BIA program, service, function or activity that is administered by Interior 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), 25 U.S.C. 458cc(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 for by law.”

(2) Under section 403(c) of the Act, 25 U.S.C. 458cc(c), the Secretary may include other programs, services, functions, and activities or portions thereof that are of “special geographic, historical, or cultural significance” to the self-governance tribe to assume them.

Section 403(k) of the Act, 25 U.S.C. 458cc(k), notes that the Act does not authorize funding agreements that include programs, services, functions, or activities that are inherently Federal or where the statute establishing the 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, each non-BIA bureau will determine whether a specific function is inherently Federal on a case-by-case basis considering the totality of circumstances.

Subparts F and G of the Self-Governance Regulations found at 25 CFR Part 1000 provides the process and timelines for negotiating self-governance funding agreements with non-BIA bureaus.

Response to Comments

Four comments on January 6, 2010 were received from an existing self-governance Tribe. (1) The suggestion was made to provide guidance on the negotiation process with non-BIA bureaus. A reference to Subparts F and G of the self-governance regulations was added to Section I Background; (2) The suggestion was made to clarify the term “we” in the last sentence of Section I Background as it relates to the entity responsible for deciding whether a function is an inherently Federal function. The word “we” was revised to read “each non-BIA bureau;” (3) A typographical error was identified and corrected; and (4) A suggestion was made strongly urging that consultation take place for the current listing. A consultation session on a Draft Notice for 2011 is planned to be held at the Self-Governance Conference being held in Phoenix, Arizona during the first week of May. Previously, non-BIA bureaus were delegated the responsibility publish their own listing. A decision was made late in the process to consolidate the listings into one Notice for 2010. Time was not available to hold a consultation session on the current listing. However, the opportunity to review and provide comments on the 2010 Draft Notice was provided to Self-Governance Tribes.

Five comments were received from two non-BIA agencies. For the National Park Service, a program entry was added to the list of eligible programs and three entries were added to the list of eligible parks in Alaska. Two format changes and one phone number correction was made for the Bureau of Reclamation entry.

II. Funding Agreements Between Self-Governance Tribes and Non-BIA Bureaus of the Department of the Interior for Fiscal Year 2010

A. Bureau of Land Management (none)

B. Bureau of Reclamation (5)

Gila River Indian Community

Chippewa Cree Tribe of Rocky Boy's Reservation

Hoopa Valley Tribe

Karuk Tribe of California

Yurok Tribe

C. Minerals Management Service (none)

D. National Park Service (3)

Grand Portage Band of Lake Superior Chippewa Indians

Lower Elwha S'Klallam Tribe

Yurok Tribe

E. Fish and Wildlife Service (2)

Council of Athabascan Tribal Governments

Confederated Salish and Kootenai Tribes of the Flathead Reservation

F. U.S. Geological Survey (none)

G. Office of the Special Trustee for American Indians (1)

Confederated Salish and Kootenai Tribes of the Flathead Reservation

III. Eligible Programs of the Department of the Interior Non-BIA Bureaus

Below is a listing by bureau 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 law, or may have “special geographic, historical, or cultural significance” to a participating tribe. The lists represent the most current information on programs potentially available to tribes under a self-governance funding agreement.

The Department will also consider for inclusion in funding agreements other programs or activities not included below, but which, upon request of a self-governance tribe, the Department determines to be eligible under either sections 403(b)(2) or 403(c) of the Act, 25 U.S.C. 458cc(b)(2) or (c). Tribes with an interest in such potential agreements are encouraged to begin discussions with the appropriate non-BIA bureau.

A. Eligible Non-BIA Programs of the Bureau of Land Management (BLM)

The BLM carries out some of its activities in the management of public lands through contracts and cooperative agreements. These and other activities may be available for inclusion in self-governance funding agreements, dependent upon availability of funds, the need for specific services, and the self-governance tribe demonstrating a special geographic, culture, or historical connection to the activity. Once a tribe has made initial contact with the BLM, more specific information will be provided by the respective BLM State office.

Some elements of the following programs may be eligible for inclusion in a self-governance funding agreement. This listing is not all-inclusive, but is representative of the types of programs that may be eligible for tribal participation through a funding agreement.

a. Tribal Services

1. Minerals Management. Inspection and enforcement of Indian oil and gas operations: Inspection, enforcement and production verification of Indian coal and sand and gravel operations are already available for contracts under Title I of the Act and, therefore, may be available for inclusion in a funding agreement.

2. Cadastral Survey. Tribal and allottee cadastral survey services are already available for contracts under Title I of the Act and, therefore, may be available for inclusion in a funding agreement.

b. Other Activities

1. Cultural heritage. Cultural heritage activities, such as research and inventory, may be available in specific States.

2. Forestry Management. Activities such as environmental studies, tree planting, thinning, and similar work may be available in specific States.

3. Range Management. Activities, such as revegetation, noxious weed control, fencing, construction and management of range improvements, grazing management experiments, range monitoring, and similar activities may be available in specific States.

4. Riparian Management. Activities, such as facilities construction, erosion control, rehabilitation, and other similar activities may be available in specific States.

5. Recreation Management. Activities, such as facilities construction and maintenance, interpretive design and construction, and similar activities may be available in specific States.

6. Wildlife and Fisheries Habitat Management. Activities, such as construction and maintenance, interpretive design and construction, and similar activities may be available in specific States.

7. Wild Horse Management. Activities, such as wild horse round-ups, adoption and disposition, including operation and maintenance of wild horse facilities, may be available in specific States.

For questions regarding self-governance, contact Jerry Cordova, Bureau of Land Management, 1849 C Street, MS L St—204, NW., Washington, DC 20240, telephone: [phone], fax: [phone].

B. Eligible Non-BIA Programs of the Bureau of Reclamation

The mission of the Bureau of Reclamation (Reclamation) is to manage, develop, and protect water and related resources in an environmentally and economically sound manner in the interest of the American public. To this end, most of Reclamation's activities involve the construction, operation and maintenance, and management of water resources projects and associated facilities, as well as research and development related to its responsibilities. Reclamation water resources projects provide water for agricultural, municipal and industrial water supplies; hydroelectric power generation; flood control; outdoor recreation; and enhancement of fish and wildlife habitats.

Components of the following water resource projects listed below may be eligible for inclusion in a self-governance annual funding agreement. This list was developed with consideration of the proximity of identified self-governance tribes to Reclamation projects.

1. Klamath Project, California and Oregon.

2. Trinity River Fishery, California.

3. Central Arizona Project, Arizona.

4. Rocky Boy's/North Central Montana Regional Water System, Montana.

5. Indian Water Rights Settlement Projects, as authorized by Congress.

Reclamation also has some programs (e.g., drought relief) under which funding may be provided for specific tribal projects which qualify under the applicable program criteria, subject to available funding. When such projects are for the benefit of self-governance tribes, the projects, or portions thereof, may be eligible for inclusion in self-governance funding agreements.

Upon the request of a self-governance tribe, Reclamation will also consider for inclusion in funding agreements, other programs or activities which Reclamation determines to be eligible under Section 403(b)(2) or 403(c) of the Ac, 25 U.S.C. 458cc (b)(2) or (c).

For questions regarding self-governance, contact Mr. Douglas Oellermann, Policy Analyst, Native American and International Affairs Office, Bureau of Reclamation (96-43200); 1849 C Street, NW., MS 7069—MIB, Washington, DC 20240, telephone: [phone], fax: [phone].

C. Eligible Non-BIA Programs of the Minerals Management Service (MMS)

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 Energy 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 to them.

Within the Minerals Revenue Management (MRM) program, the MMS also offers mineral-owning tribes opportunities to become involved in MRM programs. These programs are good preparation for assuming other technical functions. Generally, MRM program functions are available to tribes because of the Federal Oil and Gas Royalty Management Act of 1983 (FOGRMA) at 30 U.S.C. 1701. The MRM program functions that may be available to self-governance tribes include:

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. Online Monitoring of Royalties and Accounts. Online 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, Special Assistant to the Associate Director, Minerals Revenue Management, Minerals Management Service, (MS 5438—MIB), 1849 C Street, NW., Washington, DC 20240, telephone: [phone], fax: [phone].

D. Eligible Programs of the National Park Service (NPS)

The National Park Service administers the National Park System made up of national parks, monuments, historic sites, battlefields, seashores, lake shores and recreation areas. The National Park Service maintains the park units, protects the natural and cultural resources, and conducts a range of visitor services such as law enforcement, park maintenance, and interpretation of geology, history, and natural and cultural resources.

Some elements of the following programs may be eligible for inclusion in a self-governance funding agreement. This list was developed considering the proximity of an identified self-governance tribe to a national park, monument, preserve, or recreation area and programs with components that may be suitable for contracting through a self-governance funding agreement. This listing is not all inclusive, but is representative of the types of programs which may be eligible for tribal participation through funding agreements.

a. Archaeological Surveys

b. Comprehensive Management Planning

c. Cultural Resource Management Projects

d. Ethnographic Studies

e. Erosion Control

f. Fire Protection

g. Gathering Baseline Subsistence Data—Alaska

h. Hazardous Fuel Reduction

i. Housing Construction and Rehabilitation

j. Interpretation

k. Janitorial Services

l. Maintenance

m. Natural Resource Management Projects

n. Operation of Campgrounds

o. Range Assessment—Alaska

p. Reindeer Grazing—Alaska

q. Road Repair

r. Solid Waste Collection and Disposal

s. Trail Rehabilitation

t. Watershed Restoration and Maintenance

u. Beringia Research

v. Elwha River Restoration

w. Recycling Programs

Locations of National Park Service Units With Close Proximity to Self-Governance Tribes

1. Aniakchack National Monument & Preserve—Alaska.

2. Bering Land Bridge National Preserve—Alaska.

3. Cape Krusenstern National Monument—Alaska.

4. Denali National Park & Preserve—Alaska.

5. Gates of the Arctic National Park & Preserve—Alaska.

6. Glacier Bay National Park and Preserve—Alaska.

7. Katmai National Park and Preserve—Alaska.

8. Kenai Fjords National Park—Alaska.

9. Klondike Gold rush National Historical Park—Alaska.

10. Kobuk Valley National Park—Alaska.

11. Lake Clark National Park and Preserve—Alaska.

12. Noatak National Preserve—Alaska.

13. Sitka National Historical Park—Alaska.

14. Wrangell-St. Elias National Park and Preserve—Alaska.

15. Yukon-Charley Rivers National Preserve—Alaska.

16. Casa Grande Ruins National Monument—Arizona.

17. Hohokam Pima National Monument—Arizona.

18. Montezuma Castle National Monument—Arizona.

19. Organ Pipe Cactus National Monument—Arizona.

20. Saguaro National Park—Arizona.

21. Tonto National Monument—Arizona.

22. Tumacacori National Historical Park—Arizona.

23. Tuzigoot National Monument—Arizona.

24. Arkansas Post National Memorial—Arkansas.

25. Joshua Tree National Park—California.

26. Lassen Volcanic National Park—California.

27. Redwood National Park—California.

28. Whiskeytown National Recreation Area—California.

29. Hagerman Fossil Beds National Monument—Idaho.

30. Effigy Mounds National Monument—Iowa.

31. Fort Scott National Historic Site—Kansas.

32. Tallgrass Prairie National Preserve—Kansas.

33. Boston Harbor Islands National Recreation Area—Massachusetts.

34. Cape Cod National Seashore—Massachusetts.

35. New Bedford Whaling National Historical Park—Massachusetts.

36. Sleeping Bear Dunes National Lakeshore—Michigan.

37. Grand Portage National Monument—Minnesota.

38. Voyageurs National Park—Minnesota.

39. Bear Paw Battlefield, Nez Perce National Historical Park—Montana.

40. Glacier National Park—Montana.

41. Great Basin National Park—Nevada.

42. Aztec Ruins National Monument—New Mexico.

43. Bandelier National Monument—New Mexico.

44. Carlsbad Caverns National Park—New Mexico.

45. Chaco Culture National Historic Park—New Mexico.

46. White Sands National Monument—New Mexico.

47. Fort Stanwix National Monument—New York.

48. Cuyahoga Valley National Park—Ohio.

49. Hopewell Culture National Historical Park—Ohio.

50. Chickasaw National Recreation Area—Oklahoma.

51. John Day Fossil Beds National Monument—Oregon.

52. Alibates Flint Quarries National Monument—Texas.

53. Guadalupe Mountains National Park—Texas.

54. Lake Meredith National Recreation Area—Texas.

55. Ebey's Landing National Recreation Area—Washington.

56. Mt. Rainier National Park—Washington.

57. Olympic National Park—Washington.

58. San Juan Islands National Historic Park—Washington.

59. Whitman Mission National Historic Site—Washington.

For questions regarding self-governance, contact Dr. Patricia Parker, Chief, American Indian Liaison Office, National Park Service, 1201 Eye Street NW., (Org. 2560, 9th Floor), Washington, DC 20005-5905, telephone: [phone], fax: [phone].

E. Eligible Non-BIA Programs of the Fish and Wildlife Service (Service)

The mission of the Service is to conserve, protect, and enhance fish, wildlife, and their habitats for the continuing benefit of the American people. Primary responsibilities are for migratory birds, endangered species, freshwater and anadromous fisheries, and certain marine mammals. The Service also has 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 Service programs under the Tribal Self-Governance Act. This list is not all-inclusive, but is representative of the types of Service programs that may be eligible for tribal participation through an annual funding agreement.

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); candidate species under the ESA may be eligible for self-governance funding 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; and 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 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 that may be eligible for a self-governance funding agreement may include, but are not limited to: E.g. 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 funding 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.

Locations of Refuges and Hatcheries with Close Proximity to Self-Governance Tribes:

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

1. Alaska National Wildlife Refuges—Alaska

2. Alchesay National Fish Hatchery—Arizona

3. Humboldt Bay National Wildlife Refuge—California

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. Sequoyah National Wildlife Refuge—Oklahoma

9. Tishomingo National Wildlife Refute—Oklahoma

10. Bandon Marsh National Wildlife Refuge—Washington

11. Dungeness National Wildlife Refuge—Washington

12. Makah National Fish Hatchery—Washington

13. Nisqually National Wildlife Refuge—Washington

14. Quinault National Fish Hatchery—Washington

15. San Juan Islands National Wildlife Refuge—Washington

16. Tamarac National Wildlife Refuge—Wisconsin

For questions regarding self-governance, contact Patrick Durham, Fish and Wildlife Service (MS-330), 4401 N. Fairfax Drive, Arlington VA 22203, telephone: [phone], fax: [phone].

F. Eligible Non-BIA Programs of the U.S. Geological Survey (USGS)

The mission of the USGS is to collect, analyze, and provide information on biology, geology, hydrology, and geography that contributes to the wise management of the Nation's natural resources and to the health, safety, and well-being of the American people. This information is usually publicly available and includes maps, databases, and descriptions and analyses of the water, plants, animals, energy, and mineral resources, land surface, underlying geologic structure, and dynamic processes of the earth. The USGS does not manage lands or resources. Self-governance tribes may potentially assist the USGS in the data acquisition and analysis components of its activities.

For questions regarding self-governance, contact Kaye Cook, U.S. Geological Survey, 12201 Sunrise Valley Drive, Reston, VA 20192, telephone [phone], fax [phone].

G. Eligible Programs of the Office of the Special Trustee for American Indians (OST)

The Department of the Interior has responsibility for what may be the largest land trust in the world, approximately 56 million acres. OST oversees the management of Indian trust assets, including income generated from leasing and other commercial activities on Indian trust lands, by maintaining, investing and disbursing Indian trust financial assets, and reporting on these transactions. The mission of the OST is to serve Indian communities by fulfilling Indian fiduciary trust responsibilities. This is to be accomplished through the implementation of a Comprehensive Trust Management Plan (CTM) that is designed to improve trust beneficiary services, ownership information, management of trust fund assets, and self-governance activities.

A tribe operating under self-governance may include the following programs, services, functions, and activities or portions thereof in a funding agreement:

1. Beneficiary Processes Program (Individual Indian Money Accounting Technical Functions).

2. Appraisal Services Program.

Tribes/Consortia that currently perform these programs under a self-governance funding agreement with the BIA, may negotiate a separate Memorandum of Understanding (MOU) with OST that outlines the roles and responsibilities for management of these programs.

The MOU between the Tribe/Consortium and OST outlines the roles and responsibilities for the performance of the OST program by the Tribe/Consortium. If those roles and responsibilities are already fully articulated in the existing funding agreement with the BIA, an MOU is not necessary. To the extent that the parties desire specific program standards, an MOU will be negotiated between the Tribe/Consortium and OST, which will be binding on both parties and attached and incorporated into the BIA funding agreement.

If a Tribe/Consortium decides to assume the operation of an OST program, the new funding for performing that program will come from OST program dollars. A Tribe's newly-assumed operation of the OST program(s) will be reflected in the Tribe's funding agreement.

For questions regarding self-governance, contact Lee Frazier, Program Analyst, Office of External Affairs, Office of the Special Trustee for American Indians (MS 5140-MIB), 1849 C Street, NW., Washington, DC 20240-0001, phone: [phone], fax: [phone].

IV. Programmatic Targets

During Fiscal Year 2010, upon request of a self-governance tribe, each non-BIA bureau will negotiate funding agreements for its eligible programs beyond those already negotiated.

Dated: May 5, 2010.

Ken Salazar,

Secretary.