2003 Federal Register, 68 FR 44424; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: July 28, 2003 (Volume 68, Number 144)]
[Notices]
[Page 44423-44434]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy03-130]

[[Page 44423]]

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Part V

Department of the Interior

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Fish and Wildlife Service

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Fiscal Year 2003 Tribal Landowner Incentive Program and Tribal Wildlife
Grants; Request for Grant Proposals and Final Policy and Implementation
Guidelines; Notice

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

RIN 1018-AI59

Fiscal Year 2003 Tribal Landowner Incentive Program; Request for
Grant Proposals and Final Policy and Implementation Guidelines

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of request for proposals; final policy, and
implementation guidelines.

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SUMMARY: We, the Fish and Wildlife Service (Service) are soliciting
project proposals for Federal assistance under the Tribal Landowner
Incentive Program (TLIP). This document describes how you can apply for
funding under the TLIP and how we will determine which project
proposals will be funded. The Department of the Interior and Related
Agencies Appropriations Act of 2002 allocated $39,740,000 from the Land
and Water Conservation Fund for conservation grants to States, the
District of Columbia, Puerto Rico, Guam, the United States Virgin
Islands, the Northern Mariana Islands, American Samoa, and Tribes under
a Landowner Incentive Program. This notice sets forth guidance for the
dissemination of $3,974,000 which is the amount designated for TLIP.

DATES: Project proposals must be received by the appropriate Regional
Office (see Table 1 in ADDRESSES) no later than September 11, 2003.

ADDRESSES: For information regarding collection requirements,
applicants should contact the Native American Liaison in the Service's
Regional Office for the State in which the proposed project would
occur. The contact information for each Regional Office is listed in
Table 1 below. Information on the TLIP is also available from the U.S.
Fish and Wildlife Service, Office of the Native American Liaison, 1849
C Street, NW., Mail Stop 3251, Washington, DC 20240, and electronically
at http://grants.fws.gov/tribal.html.
Project proposals should be submitted to the Service's Regional
Office for the State in which the proposed project would occur (see
Table 1 under this section). You must submit one original and two
copies of the complete proposal. We will not accept facsimile project
proposals.

Table 1.--Where to Send Project Proposals and List of Regional Contacts
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Regional Native
Service region States where the project Where to send your project American liaison and
will occur proposal phone No.
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Region 1..................... Hawaii, Idaho, Oregon, Regional Director, U.S. Scott L. Aikin (503)
Washington, Nevada, and Fish and Wildlife Service, 231-6123.
California. Eastside Federal Complex,
911 N.E. 11th Avenue,
Portland, OR 97232-4181.
Region 2..................... Arizona, New Mexico, Regional Director, U.S. John Antonio (505) 248-
Oklahoma, and Texas. Fish and Wildlife Service, 6810.
500 Gold Avenue, SW, P.O.
Box 1306, Albuquerque, NM
87103-1306.
Region 3..................... Illinois, Indiana, Iowa, Regional Director, U.S. John Leonard (612) 713-
Michigan, Minnesota, Fish and Wildlife Service, 5108.
Missouri, Ohio, and 1 Federal Drive, Fort
Wisconsin. Snelling, MN 55111.
Region 4..................... Alabama, Arkansas, Florida, Regional Director, U.S. James D. Brown (404)
Georgia, Kentucky, Fish and Wildlife Service, 679-7125.
Louisiana, Mississippi, 1875 Century Boulevard,
North Carolina, South Rm. 410, Atlanta, GA 30345.
Carolina, and Tennessee.
Region 5..................... Connecticut, Delaware, Regional Director, U.S. D.J. Monette (413) 253-
District of Columbia, Fish and Wildlife Service, 8662.
Maine, Maryland, 300 Westgate Center Drive,
Massachusetts, New Hadley, MA 01035-9589.
Hampshire, New Jersey, New
York, Pennsylvania, Rhode
Island, Vermont, Virginia,
and West Virginia.
Region 6..................... Colorado, Kansas, Montana, Regional Director, U.S. David Redhorse (303)
Nebraska, North Dakota, Fish and Wildlife Service, 236-7905.
South Dakota, Utah, and PO Box 25486, Denver
Wyoming. Federal Center, Denver, CO
80225-0486.
Region 7..................... Alaska...................... Regional Director, U.S. Tony DeGange (907) 786-
Fish and Wildlife Service, 3492.
1011 East Tudor Road,
Anchorage, AK 99503-6199.
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FOR FURTHER INFORMATION CONTACT: For further information, contact the
Native American Liaison in the appropriate Regional Office (see Table 1
under ADDRESSES) or Patrick Durham, Office of the Native American
Liaison, U.S. Fish and Wildlife Service, 1849 C Street, Mail Stop 3012
MIB, Washington, DC 20240, 202/208-4133.

SUPPLEMENTARY INFORMATION:

I. Request for Proposals

The Service invites submission of grant proposals from federally
recognized Indian tribal governments (including Alaska Native Villages)
for the protection and management of habitat to benefit federally
listed, proposed, or candidate species, or other at-risk species. This
program supports the efforts of tribal governments in programs that
develop or augment the capacity to manage, conserve, or protect fish
and wildlife species of concern through the provision of funding and
technical support.

II. Definitions

The following definitions apply:
1. At-Risk Species--Any plant or animal species recognized as a
species of conservation concern, such as species listed or identified
by a State or a tribe.
2. Biological Opinion--Any document that includes: (1) The opinion
of the Fish and Wildlife Service or the National Marine Fisheries
Service as to whether or not a Federal action is likely to jeopardize
the continued existence of listed species, or result in the destruction
or adverse modification of designated critical habitat; (2) a summary
of the information on which the opinion is based; and (3) a detailed
discussion of the effects of the action on listed species or designated
critical habitat under the provisions of the Endangered Species Act.
3. Candidate Species--Plant and animal taxa considered for possible
addition to the List of Endangered and Threatened Species.
4. Conservation Recommendation--The Fish and Wildlife Service's
non-binding suggestions resulting from

[[Page 44425]]

formal or informal consultation, under the Endangered Species Act,
that: (1) Identify discretionary measures a Federal agency can take to
minimize or avoid the adverse effects of a proposed action on listed or
candidate species, or designated critical habitat; (2) identify
studies, monitoring, or research to develop new information on listed
or candidate species, or designated critical habitat; and (3) include
suggestions on how an agency can assist species conservation as part of
their action and in furtherance of its authorities under section
7(a)(1) of the Endangered Species Act.
5. Habitat--The area that provides direct support for a given
species, population, or community. It includes all environmental
features that comprise an area such as air quality, water quality,
vegetation and soil characteristics, and water supply.
6. Listed Species--Any species of fish, wildlife, or plant that has
been determined to be endangered or threatened under section 4 of the
Endangered Species Act.
7. Mitigation--Activities carried out under National Environmental
Policy Act regulations, for the purpose of moderating, reducing, or
alleviating the impacts of a proposed activity, including (a) avoiding
the impact by not taking a certain action; (b) minimizing impacts by
limiting the degree or magnitude of the action; (c) rectifying the
impact by repairing, rehabilitating, or restoring the affected
environment; (d) reducing or eliminating the impact over time by
undertaking preservation and maintenance operations during the life of
the action; and (e) compensating for the impact by replacing or
providing substitute resources or environments.
8. Proposed Species--Any species of fish, wildlife, or plant that
is proposed in the Federal Register to be listed under Section 4 of the
Endangered Species Act.
9. Tribal Lands--Lands held by the United States in trust for a
tribe or an individual Indian; or lands legally owned in fee simple by
a tribe or an individual Indian that are subject to Federal
restrictions against alienation or encumbrance. Also lands for which a
tribe or an individual Indian retained specific right-of-way or uses as
defined by treaty or other binding agreement (including Alaska Native
Corporation lands).

III. Background

The Department of the Interior and Related Agencies Appropriations
Act of 2002 allocated $39,740,000 from the Land and Water Conservation
Fund for conservation grants to States, the District of Columbia,
Puerto Rico, Guam, the United States Virgin Islands, the Northern
Mariana Islands, American Samoa, and Tribes under the Landowner
Incentive Program. The Service herein provides the implementation
guidance for the tribal component of the program.
In recent years, natural resource managers have increasingly
recognized that private lands play a pivotal role in linking or
providing important habitats for fish, wildlife, and plant species. To
protect and enhance these habitats through incentives for private
landowners, Congress appropriated $39,740,000 for the Service to
administer a new Landowner Incentive Program (LIP) for States and
tribes. The Service will award grants for actions and activities that
protect and restore habitats that benefit federally listed, proposed,
or candidate species, or other at-risk species on private lands. A
primary objective of LIP is to establish, or supplement existing,
landowner incentive programs that provide technical and financial
assistance, including habitat protection and restoration, to private
landowners for the protection and management of habitat to benefit
federally listed, proposed, or candidate species, or other at-risk
species on private lands as stated in the appropriations language. LIP
complements other Federal private lands conservation programs that
focus on conservation of habitat.
The Service is providing guidance to the public and, particularly,
to federally recognized tribes, in the administration of the $3,974,000
allocated for TLIP. This program will provide conservation monies to
federally recognized tribes for actions and activities that protect and
restore habitats that benefit federally listed, proposed, or candidate
species, or other at-risk species on tribal lands. TLIP was created
because of the unique relationship between the Federal Government and
tribes and because tribal lands are not private lands and would not be
eligible for funding under a State-administered LIP with a private
lands grant distribution system. Because the tribes directly administer
the funds rather than distribute them further to individual landowners,
the criteria used in evaluating program proposals differ to some extent
from those used in the LIP. The results of both the LIP and TLIP would
be similar in effect, because both encourage voluntary conservation of
natural resources. A series of questions and answers follows and
describes the guidelines in some detail.

IV. Implementation Guidelines

A. Eligibility

1. Who May Participate in the TLIP?
Federally recognized tribes in all parts of the United States,
including: federally recognized tribes, pueblos, rancherias, and Alaska
native villages or traditional councils as defined by the Alaska Native
Claims Settlement Act.
2. Are State-Recognized Tribes or Petitioning Tribes Eligible To
Receive Grants Under This Program?
No. Only federally recognized tribes are eligible to receive grants
under this program. Federally recognized tribes are listed in the
Federal Register (67 FR 46238; July 12, 2002).
3. Can Tribal Organizations or Other Entities (Including Individual
Indian Allottees) Receive Grants Under This Program?
No. However, organizations or entities may participate as
subgrantees or contractors to federally recognized tribes.
4. What Process Will the Service Use To Solicit and Receive Proposals
for Funding?
The Service will request proposals through a Federal Register
notice, direct contact, and other forms of outreach to eligible
applicants. The Service's Regional Directors will receive all
proposals.
5. Who Will Coordinate the Scoring of Grant Application Submissions?
The Regional Native American Liaisons of the Service will
coordinate the process to screen proposals to ensure that they are
complete and to score them according to nationally uniform criteria.
Tribes are encouraged to contact the Native American Liaison in the
appropriate Regional Office identified in Table 1 under ADDRESSES for
additional assistance in submitting proposals.
6. How Will the Various Grant Application Submissions Be Reviewed for
Funding?
A national panel will review regionally ranked proposals for
recommendations to the Director of the Service (Director).
7. Who Will Serve as the National Review Panel?
The Regional Native American Liaisons will serve on the panel in
addition to other Service and other Federal agency personnel, as
appropriate, and as may be identified by the Director.

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8. Will Tribal Representatives Be Involved in Reviewing or Ranking
Proposals?
No, only Federal employees will review and rank proposals in this
initial year.
9. Who Will Make the Final Determination for Grant Approval?
The Director will make the final determination for grant award.
10. How Will the Tribes Be Notified Whether or Not They Have Been
Awarded Grants?
Applicants will be notified by the Director through the Regional
Native American Liaison as to whether or not they have been awarded
grants.

B. Application Requirements

1. Is TLIP Exempt From Federal Grant Program Compliance?
No, the TLIP program must comply with all Federal grant program
compliance requirements as specified in 43 CFR part 12; OMB Circulars
A-133, A-102, and A-87; and Service Manual Chapters 522 FW1 and 523
FW1, except where specifically exempted. Tribal grantees are
responsible for ensuring that subgrantees and contractors adhere to
these requirements.
2. What Must Proposals Include for Participation in TLIP?
Proposals must include a cover letter, program summary, program
narrative, budget narrative, a completed Standard Form 424 Application
for Federal Assistance (SF-424), and tribal resolution of support as
described herein.

--A cover letter briefly states the main features of the proposed
program.
--A program summary describes, in one-half page, the type of activity
that would take place if the Service funds the proposal.
--A program narrative clearly identifies the problems that the proposal
will correct or help solve for the protection and management of habitat
to benefit federally listed, proposed, or candidate species, or other
at-risk species on tribal lands, and the expected results or benefits.
It must contain a needs assessment, objectives, timeline, methodology,
geographic location (with maps), monitoring plan, and identification of
clear, obtainable, and quantifiable goals and performance measures that
will help achieve the management goals and objectives of the TLIP and
relevant Service and tribal performance goals. The relevant Service
goals are Goal 1 Sustainability of Fish and Wildlife Populations,
including Migratory Bird Conservation (Goal 1.1), Imperiled Species
(Goal 1.2), Interjurisdictional Fish (Goal 1.3), Marine Mammal
Management (Goal 1.4), Species of International Concern (Goal 1.5), and
Invasive Species (Goal 1.6); Goal 2, Habitat Conservation including;
Habitat Conservation of Service Lands (Goal 2.3); and Mission Goal 4,
Partnerships in Natural Resources, including Tribal Governments (Goal
4.1) all of which can be found in the Service's Long-Term Strategic
Plan for 2000 to 2005 at http://planning.fws.gov/USFWStrategicPlanv3.pdf.
Related Service planning and results can be
found at http://planning.fws.gov/.
--A budget narrative clearly justifies all proposed costs and indicates
that the grantee will provide adequate management systems for fiscal
and contractual accountability, including annual monitoring and
evaluation of progress toward desired project objectives, goals, and
performance measures. It should include discussion of direct cost items
such as salaries, equipment, consultant services, subcontracts, and
travel, as well as program matching or cost sharing information. If
some partners will provide in-kind matching, they must be listed in the
grant proposal with a letter of commitment from each. Applicants may
cover new project administrative costs and the Tribal Indirect Cost
Rate, but they cannot include pre-existing administrative costs.
--An SF-424 form will be included with the Grant Application Package
and is available on the internet at http://training.fws.gov/fedaid/toolkit/sf424-f.pdf
.
--A resolution of support from the appropriate tribal governing body or
from an individual with delegated tribal authority stating support for
the proposal. If a resolution of support is not submitted with the
proposal, one will be required prior to awarding the grant.
3. Where Can Applicants Obtain a Grant Proposal Package?
Applicants can obtain a grant proposal package from the Native
American Liaison in the appropriate Regional Office (see Table 1 under
ADDRESSES) or at the Service's Grants Web site http://grants.fws.gov/tribal.html
.
4. Are Matching Funds Required?
Yes, the Service requires a minimum of 25 percent non-Federal
matching funds for participation in this program. This is the same
matching contribution requirement States must make under the LIP.
5. Are In-Kind Contributions Eligible as Matching Funds?
Yes, in-kind contributions provided by the tribe or a third party
may be counted towards the required 25 percent non-federal matching
requirement. Any in-kind contributions in excess of the required 25
percent may be used as a match to improve the potential ranking of a
proposal. The Federal Government has defined ``in-kind'' as non-cash
contributions made by the tribe. In-kind contributions must be
necessary and reasonable for carrying out the project, and must
represent the same value that the Service would have paid for similar
services or property if purchased on the open market. Allowable in-kind
contributions are defined in 43 CFR 12.64. Additional information can
be found at http://training.fws.gov/fedaid/toolkit/inkind.pdf.
6. Can a Tribe Submit More Than One Grant Proposal?
Tribes are encouraged to submit a single comprehensive grant
proposal but multiple proposals are allowable.
7. What Maximum Level of Project Funding Will Be Considered Under TLIP?
The Service will award grants up to a maximum of $200,000. If more
than one proposal is submitted by any one tribe, no more than $200,000
total can be awarded to that tribe. This amount is approximately 5
percent of the annual appropriation, and it allows for grants that are
large enough to make a significant impact and be widely distributed.
8. What Minimum Level of Project Funding Will Be Considered Under TLIP?
There is no proposal or grant award minimum, but the Service is
concerned that an excess number of small grants could result in an
undue administrative burden.

C. Ranking Criteria

What Ranking Criteria Will the Service Use?
The Service will score proposals based on the following criteria:
the Proposed Guidelines we assigned (67 FR 79131; December 27, 2002),
specific point values to these criteria for the purpose of gaining
public comment. Based on public comments and our understanding of
Congressional intent in creating this program, the following

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criteria were assigned relative values from 1 (lowest) to 5 (highest).
Benefit: What are the probable significant outcomes to protect and
restore habitats that benefit federally listed, proposed, or candidate
species, or other at-risk species on tribal lands if this program is
successfully completed? The Service requires that the tribe articulate
how the benefits of its proposal support the goals and objectives of
the TLIP and Service and tribal Performance Goals in its proposal
narratives. Relative Value: 5.
Performance Measures: To what extent does the proposal provide
obtainable and quantifiable performance measures and means to monitor,
evaluate, and report on these measures compared to an initial baseline?
The measures should be specific and clear and should provide
demonstrable benefits to the target species of the action. These
actions must support the goals and objectives of the TLIP, the Service,
and the tribe. Relative Value: 4.
Work Plan: Are the program activities and objectives well-designed
and achievable? Relative Value: 3.
Budget: Are all major budget items justified in relation to the
program objectives and clearly explained in the narrative description?
Relative Value: 3.
Capacity Building: To what extent does the program increase the
grantee's capacity to implement actions and activities that protect and
restore habitats that benefit federally listed, proposed, or candidate
species, or other at-risk species on tribal lands? Relative Value: 3.
Contributions and Partnerships: To what extent does the applicant
display commitment to the project proposal through in-kind contribution
or matching funds and to what extent does it incorporate contributions
from other non-Federal partners in the form of either cash or in-kind
services? Relative Value: 3.

D. TLIP Operations and Management

1. Can Grantees Use TLIP Funds To Cover Costs of Environmental Review,
Habitat Evaluation, Permit Review (e.g., Section 404), and Other
Environmental Compliance Activities Associated With a TLIP Project or
Program?
Yes, the TLIP funds can cover these activities, provided they are
directly related to the TLIP project or program being funded and are
included in the budget and discussed in the program and budget
narratives.
2. What Activities Are Eligible Under TLIP?
Eligible programs include those that improve, preserve, or maintain
habitat for endangered, threatened, candidate, or other at-risk
species. Examples of the types of projects within identified tribal
programs that the Service may fund include using prescribed burning to
restore grasslands that support imperiled species, fencing to exclude
animals from sensitive habitats, or planting native vegetation to
restore degraded habitat. Tribes may implement TLIP projects on a
variety of lands, including reservations, individual allotments, fee-
lands, and village corporation and regional corporation lands in
Alaska. Only activities that result in the protection and management of
habitat that benefit listed, proposed, candidate, or other at-risk
species are eligible for funding.
3. Are Any Specific Activities Not Allowable Under the Guidance of
TLIP?
A proposal cannot include activities required to comply with a
Biological Opinion under the Endangered Species Act or include
activities required to comply with a permit (e.g., mitigation
responsibilities). However, a proposal can include activities that
implement conservation recommendations or to cover the costs of
environmental review, habitat evaluation, permit review, and other
environmental compliance activities that are required because of the
TLIP project, provided they are included in the budget and discussed in
the Program and Budget Narratives. Research projects or archeological
projects are not eligible.
4. What Species Are Considered Endangered, Threatened, Candidate, or
At-Risk?
Those species federally listed as endangered or threatened under
the Endangered Species Act of 1973, as amended, or species proposed or
candidates for such listing, or at-risk species (e.g., species
recognized as a species of conservation concern, such as species listed
or identified by a State or a tribe).
5. Does the Term ``Private Lands'' in the Landowner Incentive Program
Appropriation Language Exclude Tribal Trust Lands From Participation in
TLIP?
No, tribal trust lands are not ``public lands.'' For the purposes
of inclusion under TLIP, federally recognized tribes are considered
landowners and are eligible.
6. Is the TLIP Program a Continuous Revenue Source for Tribal Wildlife
Programs?
No, there is no authorization for appropriation of funds beyond FY
2003. Funds appropriated in FY 2003 are available until spent.
7. Can the Grantee Hold TLIP Funds in an Interest-Bearing Account?
Funds can be held in an interest-bearing account, although any
interest earned in excess of $100 must be returned to the fiscally
responsible Federal agency (43 CFR 12.64).

E. Grant Award Procedures

1. What Additional Information Must Be Provided to the Service by the
Grantees Once Awards Are Announced?
Once the Director notifies grantees that their proposal was
selected for funding, the recipient must submit a grant agreement and
attachments as required by Federal regulations. As with our other
Federal programs, TLIP agreements must comply with 43 CFR part 12, the
National Environmental Policy Act, Section 7 of the Endangered Species
Act, the National Historic Preservation Act, and all other applicable
Federal laws and regulations. This grant program is also subject to
provisions of Office of Management and Budget Circulars No. A-87, A-
102, and A-133 (see http://www.whitehouse.gov/omb/circulars).
2. Once Grants Are Awarded, Who Should the Grantee Consider as the Lead
Contact Person?
Once grants have been awarded, the grantee should consider the
appropriate Regional Native American Liaison as the lead contact person
for all matters pertaining to the particular award. Financial matters
will be delegated to the Division of Federal Aid through the Native
American Liaison.
3. When Will the Service Award TLIP Grants?
Once the Service has reviewed and ranked all eligible TLIP grant
proposals, the Director will make his final decision within 30 days of
receiving the recommendations of the national review panel.
4. How Will Funds Be Disbursed Once the Service Has Awarded TLIP
Grants?
Subsequent to funding approval, grant funds are electronically
provided through the Department of Health and Human Services' SMARTLINK
payment management system. Through this electronic funds transfer
(EFT), grantees will be able to receive funds as needed. Some of the
tribal grantees may not be EFT compliant. In order for us to ensure
optimal service to potential grantees within the current Federal Aid
process, grantees will need to obtain EFT capabilities compatible with
the

[[Page 44428]]

SMARTLINK payment management system. Grantees may request an advance of
no more than 25 percent of the total grant if the advance is documented
in the grant agreement.
5. What Reporting Requirements Must Tribes Meet Once Funds Are
Obligated Under a TLIP Grant Agreement?
Quarterly Financial Status Reports (SF-272) which can be found at
http://www.whitehouse.gov/omb/grants/sf272.pdf, must be submitted
electronically. A final Financial Status Report (SF-269) which can be
found at http://www.whitehouse.gov/omb/grants/sf269.pdf, will be due to
the Regional Office within 90 days of the grant agreement ending date.
An annual performance report--including a list of project
accomplishments relative to those which were planned in the grant
agreement--will also be required within 90 days of the end of each 12-
month period. The effectiveness of each tribe's program, as reported in
the annual performance reports, will be an important factor considered
during the grant award selection process in subsequent years.
6. Is There a Limitation on the Amount of Funds That May Be Used for
Administrative Costs?
Yes, no more than 12 percent of program funds can be used for staff
and related administrative costs. If more than 12 percent is necessary
to properly and efficiently operate the program, a waiver of this
limitation may be provided by the Regional Director based on a written
justification explaining why such a waiver is necessary.

V. Procedural Requirements

A. Regulatory Planning and Review (Executive Order 12866)

This policy document identifies proposed eligibility criteria and
selection factors that may be used to award grants under TLIP. The
Service developed this policy to ensure consistent and adequate
evaluation of grant proposals that are voluntarily submitted and to
help prospective applicants understand how the Service will award
grants. According to Executive Order 12866, this policy document is
significant and has been reviewed by the Office of Management and
Budget (OMB) in accordance with the four criteria discussed below.
1. TLIP will not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, jobs, the environment, public
health or safety, or State or local communities. The Department of the
Interior and Related Agencies Appropriations Act for Fiscal Year (FY)
2002 allowed the Secretary to create TLIP. In addition, grants that are
funded will generate other, secondary benefits, including benefits to
natural systems (e.g., air, water) and local economies. All of these
benefits are widely distributed and are not likely to be significant in
any single location. It is likely that some residents where projects
are initiated will experience some level of benefit, but quantifying
these effects at this time is not possible. We do not expect the sum of
all the benefits from this program, however, to have an annual effect
on the economy of $100 million or more.
2. We do not believe the TLIP would create inconsistencies with
other agencies' actions. Congress has given the Service the
responsibility to administer this program.
3. As a new grant program, the TLIP would not materially alter the
budgetary impact of entitlements, user fees, loan programs, or the
rights and obligations of their recipients. This policy document
establishes a new grant program, authorized by Pub. L. 107-63, which
should make greater resources available to applicants. The submission
of grant proposals is completely voluntary, but necessary to receive
benefits. When an applicant decides to submit a grant proposal, the
proposed eligibility criteria and selection factors identified in this
policy can be construed as requirements placed on the awarding of the
grants. Additionally, we will place further requirements on grantees
who are selected to receive funding under the TLIP program in order to
obtain and retain the benefit they are seeking. These requirements
include specific Federal financial management and reporting
requirements as well as specific habitat improvements or other
management activities described in the applicant's grant proposal.
4. OMB has determined that this policy raises novel legal or policy
issues, and, as a result, this document has undergone OMB review.

B. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as
amended, whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (e.g., small
businesses, small organizations, and small government jurisdictions).
Indian tribes are not considered to be small entities for purposes of
the Act and, consequently, no regulatory flexibility analysis has been
done.

C. Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996

This implementation guidance is not considered a major rule under
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996
(5 U.S.C. 804(2)) because it does not have an annual effect on the
economy of $100 million or more. The yearly amount of TLIP program
funds is limited to $3,974,000.
This implementation guidance will not cause a major increase in
costs or prices for consumers, individual industries, Federal, State,
or local government agencies, or geographic regions. Actions under this
implementation guidance will distribute Federal funds to Indian tribal
governments and tribal entities for purposes consistent with activities
similar to other Service programs designed to enable landowners to
protect and conserve species as may be protected under the Endangered
Species Act and the habitat that supports such species.
This implementation guidance does not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based enterprises to
compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

This implementation guidance would not impose unfunded mandates as
defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4,
March 22, 1995, 109 Stat. 48). This guidance will not result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year (2
U.S.C. 1532).

E. Takings Implication Assessment (Executive Order 12630)

This implementation guidance does not have significant ``takings''
implications. This implementation guidance does not pertain to
``taking'' of private property interests, and its impact on private
property would be an incentive that is totally landowner driven.

F. Executive Order 13211--Energy Effects

On May 18, 2001, the President issued Executive Order 13211, which
speaks to regulations that significantly affect

[[Page 44429]]

energy supply, distribution, and use. The Executive Order requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This implementation guidance is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
no Statement of Energy Effects has been prepared.

G. Executive Order 13132--Federalism

This implementation guidance does not have significant Federalism
effects because it pertains solely to Federal-tribal relations and will
not interfere with the roles, rights, and responsibilities of States.

H. Civil Justice Reform (Executive Order 12988)

This implementation guidance does not unduly burden the judicial
system and meets the applicable standards provided in sections 3(a) and
3(b)(2) of the Executive Order 12988.

I. National Environmental Policy Act (NEPA)

This implementation guidance does not constitute a Federal action
significantly affecting the quality of the human environment. The
Service has determined that the issuance of the implementation guidance
is categorically excluded under the Department of the Interior's NEPA
procedures in 516 DM 2, Appendix 1, and 516 DM 6, Appendix 1. The
Service will be responsible for ensuring that grants funded through
TLIP are in compliance with NEPA.

J. Consultation and Coordination With Indian Tribal Governments
(Executive Order 13175)

Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' we
have committed to consulting with tribal representatives in the
finalization of the implementation guidance for the TLIP. We have
evaluated any potential effects on federally recognized Indian tribes
and have determined that there are no potential adverse effects. This
guidance expands tribal participation in Service programs and allows
for opportunities for tribal wildlife management and conservation
initiatives across Indian Country. We will continue to consult with
tribal governments and tribal entities as a part of the policymaking
process, and beyond in furthering our mutual goals for the TLIP.

K. Paperwork Reduction Act (44 U.S.C. 3501)

The information collection requirements of this program will be
largely met through the Federal Aid Grants Application Booklet. Federal
Aid has OMB approval for this information collection under Control
Number 1018-1019. This approval applies to grants managed by the
Division of Federal Aid, even if these grants are for other Divisions
of the Service. We are collecting this information relevant to the
eligibility, substantiality, relative value, and budget information
from applicants in order to make awards of grants under these programs.
We are collecting financial and performance information to track costs
and accomplishments of these grant programs. An agency may not conduct
or sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.

VI. Summary of Comments and Recommendations

On December 27, 2002, the Fish and Wildlife Service (Service)
published the proposed guidelines for the Tribal Wildlife Grant program
(TLIP) with an open comment period of 1 month (67 FR 79133). On January
27, 2003, the Service had received a total of 41 comment submissions.
Thirty tribes, 4 tribal organizations, 2 private enterprises, 1
organization, and 4 Federal entities provided suggestions for these
proposed guidelines. These comments are addressed below.
In part I,. Background, we asked several questions of particular
concern to the Service regarding a limit on the amount of funding to be
made available to any one tribe, our adherence to Congressional intent
in the proposed guidelines, and what type of entities were eligible to
participate in the TLIP. The responses for comments are summarized in
the corresponding sections below.
In part II., Proposed Implementation Guidelines, section A.,
Eligibility (1-3), we proposed a competitive program in which only
federally recognized tribes would be able to apply for funding, but
stipulated that tribal organizations and other non-Federal entities may
enter into grant agreements as contractors or subgrantees to federally
recognized tribes. It was also proposed that non-federally recognized
tribes be excluded from submitting proposals.
Seven comments specifically stated that only federally recognized
tribes should be eligible to enter into grant agreements, with one
asking that the term, ``federally recognized tribe'' be fully explained
by incorporating the inclusion of federally recognized tribes; pueblos;
rancherias; Alaska native villages or traditional councils as defined
by the Alaska Native Claims Settlement Act; and tribal governing bodies
as recognized by the Bureau of Indian Affairs (BIA), such as Indian
Reorganization Act councils or tribal entities that have received Self
Governance status under the Self Governance Act. No comments advocated
for the inclusion of tribes that are not recognized by the Federal
Government, although nine noted their agreement with their exclusion
from participating in TLIP. Two comments advocated for the inclusion of
individual Indian trust land allotment owners as eligible direct
participants.
Five comments agreed that tribal organizations may participate as
contractors or subgrantees but not as direct applicants to TLIP. Two
stated that only federally recognized tribes should be eligible. Three
comments advocated for the inclusion of consortia of federally
recognized tribes as eligible participants in TLIP as direct
applicants.
Response: Congress specified the TLIP is only for federally
recognized Indian tribes, which includes Alaskan Native Villages, but
Congress did not include tribal organizations or consortia. Tribal
organizations, consortia, commissions, or other non-tribal entities are
not directly eligible to receive grants, but may participate as
subgrantees or contractors to federally recognized Indian tribes.
Individual Indian allottees are not eligible grantees through TLIP but
are encouraged to work with States and tribes as subgrantees or
contractors.
In part II., Proposed Implementation Guidelines, section A.,
Eligibility (4), it was proposed that the Service would request
proposals through a Federal Register notice and other forms of outreach
and that proposals be received by the respective Regional Directors.
One comment suggested that proposals should be ranked and selected for
approval at the Regional level, and two others simply agreed with the
proposed system.
Response: The delivery of TLIP will be conducted by the Regional
Native American Liaisons at the Regional level. The submission of
proposals to the Regional Directors is consistent with the Regional
delivery process. However, because this is a national program, the
national review and screening of proposals is appropriate. The
authority to make final decisions on proposals to be funded lies with
the Director of the Service.

[[Page 44430]]

In part II., Proposed Implementation Guidelines, section A.,
Eligibility (5-9), the Service proposed that the Native American
Liaisons in each Regional Office coordinate the screening and ranking
of project proposals on the basis of nationally uniform criteria. A
national panel would then review the Regionally-ranked proposals for
recommendation to the Director for selection. The proposed panels would
be made up of Service and other Federal personnel. The Director will
make the final proposal selections on the basis of these
recommendations.
Four respondents noted their agreement with nationally uniform
ranking criteria, and two favored regional ranking. Three advocated for
a geographic or population based component to the selection of
proposals.
Response: TLIP is a competitive program for federally recognized
Indian tribes regardless of geographic, land, or population based
components. All tribes are equally eligible to submit proposals.
Therefore, the use of nationally uniform criteria is appropriate for
ranking proposals at both the Regional and National levels.
The Service will screen and score proposals in the Regional
Offices. A national panel will then make recommendations to the
Director based on these outcomes.
The Service examined various possible formulas for selecting
proposals based on land area and other factors but was unable to
identify any formula that adequately considered the wide variability
among tribes, including their land base, population, and distribution
across the United States.
Of the comments received on the proposed makeup of the panel, 21
agreed and provided suggestions as to which other Service or other
Federal personnel should be involved. One respondent stated that the
Regional Native American Liaisons should act in an advisory capacity to
the ranking team, and one stated that Regional Native American Liaisons
should be excused from ranking Regional proposals. Fourteen submissions
advocated for the inclusion of tribal representation in the ranking
process; of these, two specifically identified the Native American Fish
and Wildlife Society as an appropriate resource to serve this purpose.
Response: The Regional and National panels will consist of Service
fish and wildlife professionals and other Federal agency personnel
knowledgeable of Native American natural resource issues. The comments
received will be considered in the selection of panel members. Regional
Native American Liaisons will coordinate the screening and scoring of
proposals and will act in an advisory capacity to the Regional panels.
They will not participate in the actual screening or scoring of
proposals. The Regional Native American Liaisons will serve on the
national review panel along with other Service personnel to make
recommendations to the Director for selection.
TLIP Proposed Guidelines state that ``the Director will make the
final determination for grant approval.'' Six respondents stated their
agreement with this language. Three suggested that the national review
team be capable of making the final decision on accepting proposals
through consensus, and one stated that the Regional Native American
Liaisons should rank and award proposals in their respective Regions.
In addition to these comments, it was suggested that an appeal process
should be included for proposals that are not selected.
Response: Because this is a nationally competitive program, the
Secretary's authority is delegated solely to the Director, who will
review recommendations and make final selections. Proposals which are
not selected will receive information to improve their chances of
future selection.
Part II., Proposed Implementation Guidelines, section B.,
Application Requirements (1), states that TLIP is not exempt from any
of the Federal grant program compliance requirements as specified in 43
CFR part 12, OMB Circulars A-102 and A-87, and Service Manual Chapters
522 FW1 and 523 FW1. Two comments addressed this issue, both in
agreement, but one called for the inclusion of language that identified
the tribe's fiduciary responsibility over contractees.
Response: The language in the proposed notice will be amended to
indicate Tribal grantees' responsibility for ensuring that subgrantees
and contractors adhere to these requirements.
In part II., Proposed Implementation Guidelines, section B,.
Application Requirements (2), general inclusions for proposals in the
TLIP program are addressed. They include a Cover Letter, Program
Summary, Program Narrative, Budget Narrative, and Resolution of
Support. Two general comments on this section were received; one stated
approval of the proposed components of the grant proposal, and another
noted the necessity of keeping the process as simple as possible to
alleviate the administrative burden on the applicant.
Response: Comments noted.
No comments were received on the requirement of a Cover Letter or
Program Summary.
Nine respondents commented on the requirement of a Program
Narrative. Eight advocated for the inclusion and/or prioritization of
tribal goals rather than ``relevant Service Performance Goals.'' Two
asked that Service Goals, 1.4, 1.5, 1.6, and Mission Goal in
Partnerships 4.1 be included, and one respondent stated that the
Service should delete this criterion or incorporate tribal goals.
Response: TLIP funding is to establish, or supplement existing,
landowner incentive programs that provide technical and financial
assistance, including habitat protection and restoration, to private
landowners for the protection and management of habitat to benefit
federally listed, proposed, or candidate species, or other at-risk
species on private lands as stated in the appropriations language. The
care and maintenance of the nation's fish and wildlife resources is
dependent on cooperative efforts of partners. The Service's performance
goals articulate the importance of tribal partnerships in Mission Goal
4.1 and the broad range of mutually beneficial resource accomplishments
that can result from partnership actions. The final guidance has been
modified to include Mission Goal 4.1 Tribal Partnerships, and resource-
related goals, including 1.1; 1.2; 1.3; 1.4; 1.5; 1.6, Sustainability
of Fish and Wildlife Populations http://planning.fws.gov/tableofcon.html
.
No comments were received on the material under the heading Budget
Narrative.
Seven comments were submitted regarding the requirement of a
Resolution of Support from the appropriate tribal governing body that
supports the proposed project. One expressly opposed this requirement.
Six said that often it is not reasonable to expect a tribal governing
body to meet during the open period for submitting grant proposals.
Several comments proposed remedies that would allow for a letter of
support from the ``duly elected leader of the tribe'' or the ``tribal
Chair or Councilperson.''
Response: The requirement for a Resolution of Support is an
assurance that the tribal governing body supports the proposed project
and the actions necessary to realize the natural resource benefits
identified in the proposal. The Service recognizes that there could be
times when a tribal resolution of support for a proposal may not be
logistically possible. The Service will amend the requirement to accept
a letter or signed endorsement from an

[[Page 44431]]

individual with delegated tribal authority. If a resolution of support
is not submitted with the proposal, one will be required from the
tribal governing body prior to the Service's awarding of the grant.
Part II., Proposed Implementation Guidelines, section B.,
Application Requirements (3), states that the proposal package will be
made available through the Service's Regional Native American Liaisons.
Two comments pointed out that they would like to be able to download
the proposal package from the Internet and one comment noted support
for the proposed process.
Response: The Service is required to provide access to application
packages through as many sources as available. Therefore, application
guidelines and packages for this grant program can be obtained through
Regional Native American Liaisons as well as through the Service's Web
site at http://grants.fws.gov/tribal.html.
Part II., Proposed Implementation Guidelines, section B.,
Application Requirements (4), states that matching funds are required
in the amount of 25 percent derived from non-Federal sources. One
respondent stated that tribal support is nonenforceable and could be
used as a tool by applicants to unfairly weight their proposals (either
unwittingly or intentionally) and that this criterion is not meaningful
and should be waived. Fourteen comments asked that the Service
eliminate or decrease matching funds requirement and cited the Service
Policy on Waivers for tribal governments as justification for doing so.
One asked that we implement a provision to waive this criterion for
tribes with demonstrated hardship, and three agreed with the 25 percent
match.
Response: The Service has identified those costs that are
considered allowable as in-kind contributions or matching funds in
Service Manual 522 FW 1 and in 43 CFR 12.64. A grantee can provide
materials, equipment, or other services as a noncash match for portions
of the grantee's matching share. The value of land may be provided,
including the land proposed for restoration, enhancement, or management
as a non-cash match, provided that the land or associated costs are
necessary and reasonable for completing the project. We will keep the
match requirement to encourage partnerships and leverage funds whenever
possible.
In part II., Proposed Implementation Guidelines, section B.,
Application Requirements (5), the Service outlines the proposed
allowance for in-kind contributions as meeting a matching funds
requirement and provides additional information as to how it defines
in-kind Contributions. One respondent agreed, and one disagreed,
stating that doing so would add no value to a proposal. Three asked
that funds derived from Pub. L. 93-638 be considered as allowable for
matching funds, in accordance with established BIA protocol.
Response: The Service, recognizes the benefits of partnering with
private, local, or State agencies, and wishes to encourage the efforts
of those that do provide partnership opportunities for the benefit of
fish and wildlife resources. Funds derived from Pub. L. 93-638 can be
identified to meet the matching funds requirement.
In part II., Proposed Implementation Guidelines, section B.,
Application Requirements (6), the Service indicated that tribes are
encouraged to submit a single proposal but may submit additional
proposals if all of the funds are not expended. Three comments agreed
that one proposal is sufficient long as the tribe can bundle, several
projects, with the understanding that portions may be rejected. One
stated that a single proposal is a good target but should not exclude
multiple proposals outright. Two advocated for multiple proposals and
one asked the Service to definitively state whether one or multiple
proposals are allowable. A final comment noted that one proposal is
reasonable but should not preclude a tribe from participating if it is
part of a consortium (if allowed) that has been awarded funds as a
subgrantee or contractor.
Response: Tribes are encouraged to submit one proposal, but
multiple proposals are allowable.
Part II., Proposed Implementation Guidelines, section B.,
Application Requirements (7 and 8), recommends no minimum and that a
maximum of approximately 5 percent of available funds ($200,000) be
implemented. Depending upon the number of proposals submitted and the
relative merit of each, some applicants may receive greater amounts.
One recommendation stated that a $5,000 minimum be placed on proposals
to relieve administrative burden on the Service. Sixteen comments
supported 5 percent as a nonbinding target but not as a strict cap.
Other comments suggested a 1, 2 or 2.5 percent or a $75,000 cap on
proposals. One comment advocated for a cap based on the land base of
projects, but did not offer any further explanation. Three disagreed
with the proposed 5 percent and advocated for no cap at all. It was
also suggested that the Service state clearly if a limit is an actual
cap or simply a target. Another agreed that a maximum needs to be
established but offered no recommendation.
Response: The Service will award grants up to a maximum of $200,000
per proposal with no more than $200,000 total awarded to any one tribe.
There is no proposal or grant award minimum but the Service is
concerned that an excess number of small grants could result in an
undue administrative burden.
Part II., Proposed Implementation Guidelines, section C., Ranking
Criteria offers a proposed weighting system by which the Service can
determine a relative score for proposals, including Benefit,
Performance Measures, Work Plan, Budget, Capacity Building, Commitment,
Partnerships, and Administrative Costs. One general comment on the
Ranking Criteria was to make them as close as possible to those of the
Service's Landowner Incentive Program (LIP). An additional comment asks
that the Service better define what this program's priorities are.
Response: TLIP funds are handled differently from LIP funds because
tribal lands are not predominantly private lands and because tribes are
inherently different from States. Congress included tribes in the LIP
program but did not provide further guidance in accounting for these
inherent differences. TLIP accommodates these differences as necessary
but is similar to LIP where possible. Ranking criteria will be more
clearly defined in the TLIP guidance.
Regarding the Benefit of proposals, 13 comments advocated adding
emphasis to this criterion. Two agreed, provided tribes are permitted
to set their own goals and priorities to determine which species are to
benefit. Two respondents stated that tribal priorities should take
precedence over the Service's. One comment favored increasing the
emphasis on federally listed endangered species (as identified in the
Endangered Species Act), and another specifically suggested that no
special preference be placed upon them. A final comment stated that
preference should be given to tribes with Integrated Resource
Management Plans or Natural Resource Management Plans.
Response: The cumulative maximum of 25 points for Benefit (0-25)
and 20 points for Performance Measures (0-20) already places high value
on the extent to which the project will benefit fish and wildlife
resources. Together these criteria measure value or benefit, for a
total score of 30 points. The Service agrees that benefits will be
measured against tribal fish and wildlife goals. The Service requires
that tribes

[[Page 44432]]

articulate how their proposals help support the goals and objectives of
the TLIP and Service Performance Goals in their proposal narratives.
By including ``activities that protect and restore habitats that
benefit federally listed, proposed, or candidate species, or other at-
risk species'' tribes are provided with discretion to implement
projects that benefit species of conservation concern and species of
cultural importance. Special emphasis will not be placed on federally
listed endangered species as this is not the focus of this grant
program.
Under the heading Performance Measures, five comments called for an
emphasis to this criterion. Two suggested that the Service de-emphasize
it. Three comments suggested that tribal goals be included, and three
others called for the inclusion of Service Goals, 1.4, 1.5, 1.6, and
Mission Goal in Partnerships 4.1.
Response: The Service believes that quantifiable performance
measures are an important ranking criterion. This criterion is weighted
adequately in the ranking process. Tribes are required to articulate
how their proposals help support the goals and objectives of the TLIP
and Service and tribal Performance Goals in their proposal narratives
in the Benefit criterion. Four comments suggested an added emphasis to
the Work Plan criterion, and one supported the proposed emphasis on the
Budget criterion.
Response: The Service believes these criteria are adequately
emphasized in the ranking process.
Six respondents felt that emphasis should be added to the Capacity
Building criterion, and one stated further that such projects should be
favored in future funding periods. Two asked that the Service remove or
de-emphasize this criterion, and two agreed with it as proposed.
Response: The Service believes that this criterion is adequately
emphasized. Many tribes have limited capacity to develop and implement
programs for the protection and management of habitat to benefit
federally listed, proposed, or candidate species, or other at-risk
species, and TLIP provides an excellent opportunity to increase their
capacity. The Service believes that TLIP can enhance the capacity for
all tribes to implement programs for the benefit of fish and wildlife,
even tribes with relatively sophisticated fish and wildlife
departments.
Under the heading Commitment, 17 respondents asked that the Service
remove or de-emphasize this criterion, 1 agreed with it and 1 advocated
for further emphasis. One final respondent suggested that if this match
is a ``requirement,'' we should consider lessening the commitment or
waiving it in cases of demonstrated hardship.
Response: The Service is sensitive to the concerns expressed by
many of those commenting on the matching requirements for TLIP.
However, Congress specifically requires that tribes make a commitment
to their projects and provide a match for these funds in order to
leverage Federal dollars. The Service specifically set a low match
requirement (25 percent) relative to other Federal grant programs to
address this. Many grant programs now require a 100 percent match. In
addition, the Service will accept a variety of forms of support from
the tribes to meet the match requirement, including cash, in-kind
support, equipment, and materials.
Eighteen comments on the Partnerships criterion ask that the
Service remove or de-emphasize this criterion as proposed. One
suggested that letters of support should be considered if funds for a
match are not available, and one advocated for an allowance for
``partnerships'' that include non-Federal partners.
Response: Partnerships are an increasingly essential tool in the
management of natural resources. The Service believes that tribes
developing partnerships with other organizations to implement projects
under TLIP should be rewarded in the proposal ranking process. The
Service agrees that this criterion should be de-emphasized and has
reduced the relative value of this criterion. Tribes are especially
encouraged to partner with non-Federal entities in order to better
leverage Federal dollars and provide greater benefit to Federal
taxpayers. In the final guidance Partnerships and Commitment criteria
have been combined into a new category, Contributions and Partnerships.
Five comments asked that the Service remove or de-emphasize the
proposed Administrative Costs criterion, and two agreed with this
criterion as proposed. Four comments advocated for not considering the
tribal indirect cost rate as administrative cost, and one suggested
that the Service specify an allowable amount for indirect cost rates.
One comment suggested a limit on allowable administrative costs. Nine
comments advocated for making an allowance for staff or seasonal
employees by removing the word ``staff'' from the proposed language.
Two agreed with the proposed emphasis on Administrative Costs.
Response: Administrative Costs is eliminated from the ranking
criteria. We have, however, limited the total amount of the grant that
can be used for administrative costs to 12 percent unless a waiver is
granted by the Regional Director.
Under Part II., Proposed Implementation Guidelines, section D.,
TLIP Operations and Management (1), proposes that TLIP funds can be
used to cover the costs of environmental review, habitat evaluation,
permit review, and other environmental compliance activities associated
with a TLIP project, provided they are included in the budget and
discussed in the Program and Budget Narratives. Two comments agreed
with this language, and one asked that the allowable activities further
specify that TLIP funds may be used to address the costs of adhering to
tribal environmental compliance activities.
The Service concurs and does not specify at what level of
environmental compliance (Federal, State, tribal, etc.) TLIP funds can
be used, so long as they are directly related to the TLIP project or
program being funded and are included in the budget and discussed in
the program and budget narratives.
Part II., Proposed Implementation Guidelines, section D., TLIP
Operations and Management (2), broadly defines the activities that are
eligible for funding under TLIP. Three comments called for greater
detail in definitions and explanation of the intent of TLIP and
provided suggested language to better define tribal lands, wildlife,
conservation, Tribal Fish and Game department or Tribal Fish and
Wildlife department and wildlife restoration project. One other comment
called for the allowance of research projects, and another advocated
for the inclusion of archeological surveys by Tribal Historic
Preservation Officers.
Response: Congress specified that TLIP grants are to be used to
establish or supplement programs that provide technical and financial
assistance, including habitat protection and restoration, to tribes for
the protection and management of habitat to benefit federally listed,
proposed, or candidate species, or other at-risk species on private
lands. The Service believes that tribes may implement TLIP projects on
a variety of lands in ``Indian Country,'' including reservations,
individual allotments, fee-lands, and village corporation and regional
corporation lands in Alaska. Only activities that result in the
protection and management of habitat and benefit listed, proposed,
candidate, or other at-risk species are eligible for funding. Research
projects or archeological projects are not eligible.
Part II., Proposed Implementation Guidelines, section D., TLIP
Operations

[[Page 44433]]

and Management (3), defines which activities are not allowable under
TLIP. It states that inclusion of activities required to comply with a
Biological Opinion or activities required to comply with a permit
(e.g., mitigation activities) is not allowable. However, a proposal can
include activities that implement conservation recommendations. Two
comments expressed concern that no TLIP funds should be diverted to any
nontribal mandates, court directives, or Federal activities required to
uphold the trust responsibility. One comment asked that ``Biological
Opinion'' be further defined. Two comments advocated for allowing for
mitigation costs associated with compliance activities related to the
Endangered Species Act.
Response: All TLIP funds will be awarded to Tribes and will not be
diverted to any nontribal mandates, court directives, or Federal
activities required to uphold the trust responsibility. The Service
appreciates the proposed language but disagrees with the inclusion of
``court directive and Federal agency mandate or directive'' to excluded
activities because it would place additional restrictions on tribal
proposals. ``Biological Opinion'' refers to Biological Opinions with
regard to the Endangered Species Act and this is clarified in the
``Definitions'' section.
Part II., Proposed Implementation Guidelines, section D., TLIP
Operations and Management (4), defines what species are considered
endangered, threatened, candidate or, at risk. Seven respondents asked
that ``species at risk'' be further defined. One of these suggested
that the Service define ``species at risk'' as any federally listed,
proposed, candidate animal or plant species or other species of concern
as determined by a tribe or a State and, further, that species
classified as such should be identified in the proposal. One respondent
asked that it should be made clear whether plant species are included.
Response: For the purposes of TLIP, the Service defines ``species
at risk'' as any federally listed, proposed, candidate animal or plant
species or other species of concern as determined by a tribe or a State
and, further, that species classified as such should be identified in
the proposal.
Part II., Proposed Implementation Guidelines, section D., TLIP
Operations and Management (5), indicates that tribal trust lands are
not public lands and that federally recognized tribes are, for the
purposes of participation in TLIP, considered the ``landowners.'' Two
comments stated that all tribal (land) interests be eligible for
projects.
Response: TLIP project funds may be expended on all ``Tribal
Lands'' as defined in Section II. Of this Notice.
Part II., Proposed Implementation Guidelines, section D., TLIP
Operations and Management (6), states that TLIP is not a continuous
revenue source. Two comments advocated for making the TLIP program a
continuing source for funding.
Response: Because TLIP is an annual Congressional allocation, it is
subject to further actions by Congress and cannot be considered a
continuing source for funding.
Part II., Proposed Implementation Guidelines, section D., TLIP
Operations and Management (7), states that TLIP funds cannot be held in
an interest-bearing account. Two comments suggested otherwise.
Response: Federal law allows funds to be held in an interest-
bearing account, although any interest earned on such funds in excess
of $100 must be returned to the fiscally responsible Federal agency (43
CFR 12.64).
Part II., Proposed Implementation Guidelines, section E., Grant
Award Procedures (1), defines what additional information must be
included by the grantees once awards are announced. One comment
supported the proposed language.
Part II., Proposed Implementation Guidelines, section E., Grant
Award Procedures (2), states that the lead contact after award
announcements should be the Native American Liaison in the grantee's
respective Region. One comment advocated for a contact in the Service's
Division of Federal Aid to be identified as the initial contact, and
one comment agreed with the proposed language.
Response: The Native American Liaison will be the lead contact for
technical implementation assistance, and the Division of Federal Aid
will serve as the principal financial contact.
Part II., Proposed Implementation Guidelines, section E., Grant
Award Procedures (3), states that the Service will award grants within
30 days of the recommendations provided by the national review panel.
One comment suggested that a timeline be provided for acceptance and
selection of awards, and one comment simply agreed with the stipulated
language.
Response: A timeline for acceptance and selection of awards is
included in the Grant Application Package.
Part II., Proposed Implementation Guidelines, section E., Grant
Award Procedures (4), states that funds will be disbursed, subsequent
to funding approval, through the Department of Health and Human
Services' SMARTLINK electronic funds transfer (EFT) system. And, that
in the instance of demonstrated hardship or need, grantees may request
up to 25 percent of the grant award.
One comment said that the Service's Division of Federal Aid be
contacted for guidance on compliance with Cash Management Act regarding
``Reimbursable'' as stated in the complete text. Six comments stated
that if the Service has the ability to allocate 25 percent of the
project funds up front, given demonstrated hardship or need, then all
grantees should be eligible without demonstrating hardship or need. Two
comments advocated for increasing the initial draw down, one suggested
40 percent, and the other was nonspecific.
Response: The Service will advance up to 25 percent of the total
award upon request by the grantee.
Three disagreed with the proposed reimbursable mechanism, saying it
presents an undue burden on tribes, and asked to have access to funds
quarterly or as a lump sum transfer at the onset of a project. Two
comments asked if all tribes are EFT compliant, and one suggested that
the Service explore a similar process for allocating funds through
contracting as in Pub. L. 93-638.
Response: Further clarification of the proposed EFT is necessary to
explain that funds will be ``reimbursed'' as needed, rather than upon
receipt of proof of expenditure. We feel that this does not place a
financial burden on the tribes. All Tribes are capable of EFT. Pub. L.
93-638 is a unique mechanism that transfers funds to a tribe for
programs that are specifically established for a tribe because of its
status as a tribe and enables the recipient tribe to allocate such
funds to address other relevant needs and is therefore not consistent
with Congressional intent to use such a device.
Part II., Proposed Implementation Guidelines, section E., Grant
Award Procedures (5), addresses the reporting requirements tribes must
meet once funds are obligated under a TLIP grant agreement. One comment
suggested that language be included to indicate that tribes will be
obligated to comply with NEPA, ESA, National Historic Preservation Act,
and other relevant Acts. Another comment suggested that the benefits
and outcomes of the TWG program be reported to Congress.
Response: TLIP projects are subject to legal requirements of
Federal regulatory Acts in the context of established Federal/Tribal
protocol.

[[Page 44434]]

Response: A summary of benefits and outcomes of the TWG program
will be made available to interested Congressional representatives.
Part III., Procedural Requirements, sections A., Regulatory
Planning and Review; B., Regulatory Flexibility Act; C., Small Business
Regulatory Enforcement Fairness Act; D., Unfunded Mandates Reform Act;
E., Takings Implications Order; F., Energy Effects; G., Federalism; and
H., Civil Justice Reform, received no comments, although two pertinent
general comments suggested that a section be added to clarify how the
Freedom of Information Act (FOIA) will apply to information submitted
by tribes.
Response: The Service will work with the Tribes to ensure that
sensitive information is protected.
Part III., Procedural Requirements, sections I., National
Environmental Policy Act, drew one comment that asked the Service to
better determine what is meant in the proposed guidelines by the phrase
``Service will ensure that grants funded through the TLIP program are
in compliance with NEPA.''
Response: A completed NEPA Checklist and appropriate environmental
information will be required in the Grant Narrative from the grantee
for review and concurrence by the Service.
Part III., Procedural Requirements, section J., Consultation and
Coordination with Indian Tribal Governments, and K., Paperwork
Reduction Act, were not commented on.
Part IV., Native American Liaisons for the Fish and Wildlife
Service, was not commented upon.
General Comments: Several comments did not readily fit into the
above categories. The Service has responded to these comments below.
1. Three comments asked that the Service distinguish between treaty
and nontreaty rights.
Response: The Service recognizes that treaty rights involve unique
responsibilities defining specific rights to treaty-recognized tribes
and will work to address them where appropriate within the grant
processes.
2. Two general comments stated that there should be no Service
administrative cost associated with implementation of this program.
Response: There is no provision to fund the Service's
administrative costs incurred in the implementation of this program
elsewhere. Therefore, 3 percent of the available funds may be used to
cover these costs.
3. One comment suggested that the funds for FY 02 and FY 03 be
lumped into one proposal period. This same comment recommends that the
Service allow for multiyear projects.
Response: In the adoption of the Department of the Interior and
Related Agencies Appropriations Act of 2003, FY 02 funds under the
Landowner Incentive Program (including TLIP) were rescinded by
Congress.
4. One respondent advocated for increasing the amount of available
funds in TLIP, and three advocated for future funding.
Response: TLIP is a 10 percent internal earmark by the Service on
the Landowner Incentive Program, which is a Congressional
appropriation. The Service is committed under current funding
conditions to continue to support the TLIP program.
5. One respondent asked that the Service define the role of public
opinion in ranking/selection of proposals.
Response: The Service will work to address public comments with the
intent of enhancing the administration of TLIP for the benefit of
federally recognized tribes.
6. One comment suggested that the Service allow for proposals that
combine TLIP and Tribal Wildlife Grant funds.
Response: The Service must administer each grant as directed by
Congress, and each program differs to some degree, limiting our ability
to establish identical criteria.
7. Two respondents stated that there should be no time limit on
expenditure of funds.
Response: After appropriation, TLIP funds are available until
expended. However, grant agreements will be written for an appropriate
amount of time to complete the project. Grant agreement periods are
negotiable, and funds must be expended within 90 days following the end
date of the grant agreement.
8. Two respondents suggested that the Service require postmarks on
proposals showing the due date.
Response: Proposals postmarked, hand-delivered or otherwise sent in
by the due date will be accepted for the grant review process.
9. One comment advocated allowing funds to roll over into the next
fiscal year.
Response: This is allowable under Service guidelines and is
recognized as a necessary option for the success of project
initiatives.
10. One comment suggested that the Service allow for an 8-week
response period for the Request For Proposals (RFP).
Response: In order to address the need to expedite the selection
and awarding of proposals, the Service has set the RFP period for the
TLIP 45 days. The Service feels that this period is sufficient for
tribes to prepare proposals.
11. One comment suggested that the Service allocate funds as
quickly as possible after awards are made.
Response: It is the Service's intent to accomplish this task, and a
timeline will be provided in the Grant Application Kit.
12. One comment suggested that the Service apply the same criteria
to both TLIP and TWG.
Response: The Service must administer each grant as directed by
Congressional appropriation language which differ to some degree for
each grant, thus limiting our ability to establish identical criteria
for the two grant processes.

Dated: May 3, 2003.
H. Craig Manson,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 03-19120 Filed 7-25-03; 8:45 am]

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