[Federal Register Volume 70, Number 20 (Tuesday, February 1, 2005)]
[Notices]
[Pages 5205-5210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1785]


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DEPARTMENT OF INTERIOR

Fish and Wildlife Service


Fish and Wildlife Service and Confederated Salish and Kootenai 
Tribal Governments Sign Annual Funding Agreement

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.

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SUMMARY: On December 15, 2004, the U.S. Fish and Wildlife Service 
(Service or we) signed an annual funding agreement (AFA or Agreement) 
with the Confederated Salish and Kootenai Tribal Governments (CSKT) 
under the Tribal Self-Governance Act of 1994. The action was taken at 
the discretion of the Service. The decision reflects review and 
consideration of concerns, issues, and comments received during a 90-
day public comment period which began on July 14, 2004, and ended on 
October 12, 2004. The public comment period was reopened for an 
additional 15 days on October 20, 2004, and closed on November 4, 2004. 
The Agreement was re-negotiated and slightly re-worded following the 
public comment period. The Agreement provides for the CSKT to perform 
certain programs, services, functions, and activities (Activities) for 
the National Bison Range and ancillary properties (Northwest Montana 
Wetland Management District, Pablo, and Ninepipe NWRs) during an 18-
month period. The Regional Director for the Service in Denver, 
Colorado, signed the agreement December 15, 2004. The Secretary of the 
Interior immediately endorsed the Agreement, and forwarded it to the 
U.S. Congress for a 90-day review period.

DATES: The agreement period is March 15, 2005, through September 30, 
2006. As provided by the Tribal Self-Governance Regulations at 25 CFR 
1000.146, and subject to applicable laws and regulations, the Service 
and the CSKT may agree in writing to extend to a date after September 
30, 2006, the term for performing any Activity covered by the AFA. All 
of the terms and conditions of the AFA will apply during any extension 
of the term of the AFA. The Service and CSKT may modify the Activities 
covered by the AFA or the consideration paid by the Service to the CSKT 
for performing an Activity only by amending the AFA as provided in 
section 20.A of the AFA.

ADDRESSES: You may obtain the final agreement and supporting 
documentation at:
    1. Montana--National Bison Range Headquarters, 132 Bison Range 
Road, Moiese, Montana 59824;
    2. Denver--U.S. Fish and Wildlife Service Regional Office, National 
Wildlife Refuge System--Mountain-Prairie Region, P.O. Box 25486, DFC, 
Denver, Colorado 80225;
    3. Confederated Salish and Kootenai Tribes, P.O. Box 278, Pablo, 
Montana 59855; or
    4. Internet--http://mountain-prairie.fws.gov/cskt-fws-negotiation.

FOR FURTHER INFORMATION CONTACT: Steve Kallin, Refuge Manager, (406) 
644-2211, extension 204.

SUPPLEMENTARY INFORMATION:
    What is the National Bison Range Complex? The National Bison Range 
Complex (NBRC), part of the National Wildlife Refuge System (NWRS), and 
consists of the National Bison Range, Swan Lake, Lost Trail, Pablo, and 
Ninepipe National Wildlife Refuges, and the Northwest Montana Wetland 
Management District. Established in 1908 to conserve the American 
bison, the Bison Range and ancillary properties provide important 
habitat for a variety of species such as elk, pronghorn antelope, and 
migratory birds.
    How Did the Service Develop the Agreement? The Service and the CKST 
carried out negotiations in accordance with regulations in 25 CFR part 
1000.
    What Events Led to This Action? In spring 2003, the CSKT submitted 
a formal request to reinitiate negotiations related to compacting of 
activities at the National Bison Range and ancillary properties 
(Northwest Montana Wetland Management District, Pablo, and Ninepipe 
NWRs) pursuant to the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-638). In response to this request, 
negotiations between CSKT and the Service on an AFA for that portion of 
the National Bison Range Complex within the Flathead Indian Reservation 
began in the summer of 2003.
    What is the Tribal Self-Governance Act? The Tribal Self-Governance 
Act of 1994 was enacted as an amendment to Public Law 93-638 and 
incorporated as Title IV of that Act. The Self-Governance Act allows 
qualifying self-

[[Page 5206]]

governance tribes the opportunity to request AFAs with the Bureau of 
Indian Affairs (BIA) and nonBIA bureaus within the Department of the 
Interior. When dealing with nonBIA bureaus, including the Service, 
qualifying tribes may enter into AFAs that would allow them to conduct 
certain activities of such nonBIA bureaus. Eligible activities include 
Indian programs (programs created for the benefit of Indians because of 
their status as Indians); activities otherwise available to Indian 
tribes (any activity that a Federal agency might otherwise contract to 
outside entities); and activities that have a special geographic, 
historical, or cultural significance to an Indian tribe.
    Public Law 93-638 and the regulations that implement the law (25 
CFR 1000.129) prohibit the inclusion of activities in an AFA that are 
inherently Federal functions. The Refuge has no special Indian 
programs. All activities of the Service on national wildlife refuges 
are for the benefit of the fish and wildlife resources, their habitats, 
and the American public. Activities that may have a special 
relationship with a tribe are the most promising for inclusion in an 
AFA. Whether to enter into an agreement with a tribe for these 
activities is discretionary on the part of the Service. The Service 
recognizes that many members of the CSKT who live near the National 
Bison Range have a cultural, historical, and/or geographical connection 
to the land and resources of the National Bison Range and; therefore, 
may feel very much a part of these lands. The proposed agreement 
provides for the CSKT to perform certain programs, services, functions, 
and activities for the National Bison Range Complex during an 18-month 
period.
    What Happens Now? The Service and CSKT signed the Agreement on 
December 15, 2004. The Secretary of the Interior accepted and endorsed 
the Agreement the same day. In accordance with 25 CFR 1000.177, the 
Secretary then forwarded the Agreement to the Senate Indian Affairs 
Committee and the House Resources Committee Office of Insular and 
Native American Affairs. If there are no objections to the Agreement, 
it will go into effect 90 days after it was submitted to Congress.

Summary of Public Involvement

    On July 6, 2004, the Service issued a press release in Montana 
announcing a future Federal Register notice and present availability of 
the AFA on the joint Service and CSKT Web site. It provided the Web 
site where the public could obtain the draft agreement, an address to 
obtain a hard copy of the document, and an address for submitting 
comments. The Service announced the public comment period (July 14-
October 12, 2004) in the Federal Register (69 FR 42199, July 14, 2004). 
In addition, we issued a joint news release with the CSKT on July 14, 
2004, in Montana and provided interviews with local media. We provided 
the news release, draft Agreement, and an opportunity to provide 
questions and/or comments on the joint Web site. The Service and the 
CSKT also provided a joint news release (August 25, 2004) in advance of 
public meetings held in September 2004, in Polson, Montana, and 
Missoula, Montana, and an open house at the National Bison Range 
Complex. On October 12, 2004, the Service and the Tribes issued a joint 
news release containing information on the cost of the AFA. As a result 
of the comment period reopening until November 4, 2004, on October 13, 
2004, the Service, Congressman Denny Rehberg of Montana, and the CSKT 
issued a joint news release to the Montana community. The Service 
issued another news release on October 20, indicating that we published 
a Federal Register notice [69 FR 61692, October 20, 2004] that day 
announcing the reopening of the comment period. Media contacts, 
resulting in many newspaper articles and inquiries, occurred regularly 
throughout the process. Local Montana newspapers carried each 
announcement as well as some national newsletters of refuge-oriented 
organizations and Native American publications. We also provided the 
announcement electronically to private citizens nationally who are 
members of various conservation and refuge-oriented organizations. We 
provided Congressional updates throughout the public comment period. We 
expect a 90-day review by Congress to occur over the next few months.

Nature of Public Comments

    We received 1,356 comments by a variety of means. Several 
individuals and/or groups submitted more than one comment. Comments 
were addressed to President George W. Bush, Secretary of the Interior 
Gale A. Norton, FWS Director Steve Williams, Regional Director Ralph O. 
Morgenweck, Refuge Manager Steve Kallin, Refuge Supervisor Steve 
Berendzen, or other government officials. Of the comments received, 
approximately 720 were preprinted postcards; approximately 115 were 
form letters; and approximately 520 letters/emails were from 
individuals, environmental groups, Indian tribes, and businesses that 
contained specific substantive comments. However, some of those 
comments were third party comments that were forwarded to the Service 
and those third party comments predated the draft AFA that was 
available for public comment. Included in the 1,356 comments were 
approximately 420 pages of petitions containing approximately 8,380 
unverified signatures. We received comments from 44 States, 1 from 
Canada, and several unknown locations. We received more than 900 
comments from Montana.

Response to Public Comments

    Issue 1: Draft AFA hinders Service ability to fulfill mission of 
NWRS at the NBRC.
    Concerns: This agreement weakens Service's ability to fulfill its 
trust responsibilities and limits accountability to the public.
    Comment: ``Although the draft AFA reserves to FWS the ultimate 
responsibility and authority for operation and management of the NBRC, 
many of its provisions hamstring the ability of the FWS to fulfill its 
duty and public trust obligation under the National Wildlife Refuge 
System Administration Act to manage the refuge units or inappropriately 
shift management responsibility to CSKT * * *.''
    Response: The National Bison Range Complex (NBRC) and the 
Confederated Salish and Kootenai Tribes (CSKT) have worked 
cooperatively in the past on a number of different projects and 
initiatives. The Service remains committed to fulfilling the mission of 
the NWRS by working with the CSKT to achieve refuge goals at the NBRC 
through the Annual Funding Agreement (AFA). The AFA states in Section 7 
that the Refuge Manager retains final authority for directing and 
controlling the operation of the NBRC, as well as the CSKT's 
performance of duties covered under this AFA.

    Issue 2: Draft AFA lacks sufficient specificity to ensure CSKT 
accountability.
    Concern: Lack of specificity prevents successful implementation or 
meaningful performance assessments, which are essential for enforcing 
accountability.
    Comment: ``From our years of experience and perspectives as 
managers of National Wildlife Refuges and National Fish Hatcheries, the 
agreement as written is too broad and comprehensive and lacks the 
specificity needed to make it work, or even support a meaningful 
review.'' Also, ``No Refuge Manager, no matter how skilled, could 
successfully implement this agreement as it is written.''

[[Page 5207]]

    Response: In this AFA, the Refuge Manager retains the 
responsibility and authority to provide additional direction to the 
CSKT, to ensure tasks are completed according to Service standards and 
applicable policy, regulations, and laws. This AFA has great detail and 
attempts to strike a balance between specificity and flexibility to 
enable the Service and the CSKT to adapt to changing conditions.

    Issue 3: Reduced financial accountability.
    Concern: Records of expenditures are provided ``to the FWS to the 
extent the FWS requires them for its budget appropriation and 
apportionment processes * * *'' This requirement is insufficient for a 
detailed audit necessary to ensure fiscal accountability.
    Comment: ``Section 9 of the agreement, ``Records and Other 
Information,'' lacks any requirements for auditing the CSKT budget or 
financial records related to the AFA. Specifically, the agreement only 
calls for the CSKT to provide such information to the FWS ``to the 
Extent the FWS requires them for its budget appropriation and 
apportionment processes * * *'' To ensure the FWS's ability to 
effectively manage operations at the NBRC, while remaining accountable 
to the public, the CSKT's financial records and other documents related 
to administering the AFA must be made available to the FWS, and a 
comprehensive auditing of activities and expenditures of funds must be 
performed by the FWS prior to negotiation of any subsequent AFAs.''
    Response: Since the CSKT is already statutorily mandated to submit 
single-agency audit reports under 31 U.S.C. 7501 et seq., there is no 
need for the Agreement to duplicate existing Federal audit 
requirements. In order to qualify as a Self-Governance Tribe, the CSKT 
has already had to demonstrate financial accountability under existing 
Federal statutes and regulations. Section 9 of the Agreement contains 
additional assurances concerning the CSKT's records, expenditures, and 
financial report. We do not believe that this AFA reduces the financial 
accountability of either the CSKT or the NBRC.

    Issue 4: Separation of FWS employees from Refuge Manager's 
supervisory authority.
    Concern: Transferring supervision of Service staff to CSKT creates 
an unworkable management structure and separates the responsibility to 
manage the NBRC from the authority to accomplish these 
responsibilities. The Manager is still held accountable for management 
of the NBRC, but lacks the ability, authority, and flexibility to 
direct staff efforts on a daily basis to accomplish refuge objectives.
    Comment: ``We fear that the proposed structure would eliminate the 
Refuge Manager's direct authority over refuge employees. It is 
important that these issues be clarified in the AFA, in an effort to 
retain the management authority of the Refuge Manager. The Refuge 
Manager must retain direct supervisory authority over all employees 
operating on the Bison Range and retain control of the day-to-day 
implementation of the Range's programs and plans.
    The proposed ``transfer'' of staff to CSKT control, a splitting of 
resources that results in untenable managerial arrangements, should be 
abandoned. No successful business or government agency would attempt to 
operate with such a bifurcated supervision. The proposed concept of 
meeting weekly, or more often, just to initiate the process of 
describing upcoming tasks, setting objectives and priorities, and then 
going through an uncertain, time-consuming reconciliation whenever CSKT 
inserts disagreement or wants changes, is an inherently complicated, 
weak, and costly managerial process. The NWRS cannot afford such 
unproductive and costly methods and practices.''
    Response: We acknowledge that, while some Service employees will be 
separated from the direct supervisory control of the Refuge Manager, 
the Refuge Manager and the Coordinator will work cooperatively to 
oversee the successful implementation of this AFA. However, under the 
AFA, the Refuge Manager retains final responsibility and authority for 
the NBRC operations (see Section 7 A-C of the Agreement), and thus also 
retains oversight necessary to exercise such authority. The Service has 
been careful to insure that this AFA does not contravene the spirit or 
letter of the National Wildlife Refuge System Administration Act (16 
U.S.C. 668dd-668ee, as amended). The Service will evaluate the 
effectiveness of this supervisory structure and will be open to 
suggested modifications in the future. CSKT will only manage those NBRC 
employees contracted under this AFA, and CSKT's performance of the 
Activities under this AFA remains subject to the Refuge Manager's 
authority.

    Issue 5: CSKT may lobby Congress for additional AFA funding.
    Concern: If CSKT successfully lobbies Congress to earmark funding 
for NBRC AFA, national wildlife refuges in Montana, and throughout the 
NWRS will suffer from reduced funding.
    Comment: ``Explicit language throws wide open the door for CSKT to 
lobby Congress for even greater, and more certain funding and favors 
(normally a violation of law), at the expense of other units of the 
NWRS throughout the country.''
    Response: The CSKT is already subject to the generally applicable 
Federal laws that prohibit Federal funds from being used to lobby 
Congress and other government entities [18 U.S.C. 1913 and 25 CFR 
1000.397]. This Agreement does not alter the applicability of those 
laws to CSKT.
    In response to the public comment, we amended the AFA to reflect 
that the applicable Federal laws prohibit use of Federal funds to lobby 
any governmental entity, not just Congress. The revised Section 12.G 
will now read as follows:
    G. Lobbying. The CSKT will not use any of the funds the FWS pays 
the CSKT under this AFA to lobby Congress or any other government 
entity in any manner prohibited by Federal law.

    Issue 6: NEPA Compliance.
    Concern: This draft AFA is precedent setting, both for the NBRC and 
the NWRS. The Categorical Exclusion prepared for the draft AFA is 
insufficient to address this precedent and is inconsistent with the 
Service's standard National Environmental Policy Act (NEPA) approach to 
issues of this magnitude.
    Comment: ``Such a broad change in management of critical wildlife 
resources and public lands and the broad controversy over this transfer 
clearly mandates an EIS [Environmental Impact Statement], or at 
minimum, an Environmental Assessment of the impacts.''
    Response: The Service does not believe the Agreement is a major 
Federal action that will result in significant environmental impacts. 
The Service considers the work that is identified in the Agreement to 
be part of the routine operations, maintenance, and management of the 
National Bison Range Complex (whether done by Service employees, CSKT 
employees, or another contractor). The Service has found that routine 
operation, maintenance, and management activities do not (individually 
or cumulatively) have a significant effect on the human environment and 
are, therefore, categorically excluded from NEPA compliance (516 DM 6).

    Issue 7: Waiver of Regulations.
    Concern: Using waivers, CSKT may bypass refuge regulations, 
operational standards, procedures, protocols.
    Comment: ``The Federal laws and regulations governing the NBRC have

[[Page 5208]]

been shaped by decades of Congressional, agency, and public interest 
and should not be waived lightly. Language similar to the CATG [Council 
of Athabascan Tribal Governments] AFA should be included in the CSKT 
AFA.''
    Response: Neither the AFA nor the Tribal Self-Governance Act allows 
the CSKT to waive any Federal law. However, Section 8.C of the AFA does 
recognize the Tribal Self-Governance Act provision allowing the CSKT to 
request a waiver of a regulation (25 U.S.C. 458cc(i)(2)). The waiver 
would be addressed to the Service Director pursuant to 25 CFR 
1000.222(a). According to 25 CFR 1000.226, The Secretary may deny a 
waiver request if:
    (b) For a non-Title-I-eligible program, the requested waiver is:
    (1) Prohibited by Federal law; or
    (2) Inconsistent with the express provisions of the AFA.
    In response to the public comment, the parties have agreed that the 
CSKT will only make a waiver request after consultation with the Refuge 
Manager. The revised Section 8.C reads as follows:
    C. Waivers. The CSKT may request, after consulting with the Refuge 
Manager, that the Secretary waive a regulation in accordance with the 
procedures in Sec.  403(i)(2) of the Act, 25 U.S.C. 458cc(i)(2), and 
the Tribal Self-Governance Regulations at 25 CFR part 1000, subpart J.

    Issue 8: Federal Tort Claims Act protection for Service volunteers.
    Concern: Volunteers are vital to the safe, effective, and timely 
completion of numerous Activities on the NBRC. We routinely involve 
volunteers in completion of potentially dangerous activities such as 
moving the bison herd between grazing units and handling bison during 
the annual roundup. Under the draft AFA, volunteers for these 
activities would become CSKT volunteers, and would not be afforded 
protection under the Federal Tort Claims Act. This lack of protection 
may preclude many current Service volunteers from volunteering with 
CSKT.
    Comment: ``FWS has stated volunteers for the contractor (CSKT) will 
not be covered for liability or be compensated in case of injury or 
accident. I have been a volunteer assisting in bison roundup corral 
work since 1994. However, because of this lack of protection, I will 
decline to volunteer if this operation is taken over by contract. 
Others who have been volunteering will no doubt have no choice but to 
do the same.''
    Response: As to the concern about whether there is compensation for 
the volunteer in the event of injury or accident, the AFA requires the 
Tribe to provide workers' compensation ``commensurate with that 
provided to other CSKT Tribal government employees.'' Accordingly, this 
should not be an issue for volunteers to the Tribe.
    With respect to the liability concern, the Indian Self-
Determination Act and the Tribal Self-Governance Act directly focused 
on the question of liability for activities conducted under those Acts' 
agreements:

[T]he Secretary shall be responsible for obtaining or providing 
liability insurance or equivalent coverage, on the most cost-
effective basis, for Indian tribes, tribal organizations, and tribal 
contractors carrying out contracts, grant agreements and cooperative 
agreements pursuant to this subchapter. In obtaining or providing 
such coverage, the Secretary shall take into consideration the 
extent to which liability under such contracts or agreements are 
covered by the Federal Tort Claims Act [25 U.S.C. 450f(c)(1)]

    The AFA indicates that the Federal Tort Claims Act (FTCA) applies 
as authorized by applicable statutes and the Self-Governance 
Regulations. As the regulations make clear, the FTCA is applicable to 
the tribe and its employees even if the AFA were silent on this issue. 
However, applicability of the FTCA has never been absolute, but 
dependent upon a case-by-case determination of the particular facts and 
circumstances surrounding each incident. For example, no coverage 
exists at all under the FTCA for intentional torts. Depending upon the 
particular circumstances, volunteers may or may not be considered to be 
employees of the Tribe who specifically fall within the coverage 
extended by the Tribal Self-Governance Act. The AFA requires that all 
persons working on this AFA have sufficient professional requirements, 
skill, and/or experience to properly and safely perform their assigned 
activities under the AFA. It is hoped that many of the same persons who 
have volunteered in the past will continue to do so in the future, and 
thus the Bison Range will operate much the same as it has in the past. 
Over the past 5 years, two liability claims have been brought. There is 
no reason to anticipate a change in the future.
    The FTCA itself specifically encompasses persons who serve without 
compensation. The FTCA defines ``employee of the government'' to 
include both ``employees'' and ``persons acting on behalf of a Federal 
agency in an official capacity, temporarily or permanently in the 
service of the United States, whether with or without compensation'' 
[28 U.S.C. 2671, emphasis added].

    Issue 9: Personal safety of employees, volunteers, and visitors.
    Concern: The Service will not have direct supervision of, or 
adequate interaction with CSKT employees and volunteers, in order to 
anticipate and prevent unsafe situations. This will hinder the 
Service's ability to provide the normal Service standard of safety.
    Comment: ``* * * [S]ome activities on the National Bison Range are 
unique and dangerous. Sudden loss of the majority of the affected 
employees would leave management of the refuge and safety of employees 
and the public in jeopardy.''
    Response: Although the Refuge Manager will no longer be directly 
responsible for the supervision of some employees, this reduced 
interaction with the staff is not anticipated to result in unsafe 
conditions. The Refuge Manager retains the responsibility and authority 
over the NBRC and can address any safety concerns or unsafe situations 
that come to his attention. The Service will evaluate the effectiveness 
of this structure on public and employee safety and will be open to 
suggested adjustments in the future. However, in response to this 
public concern and in the interest of making this point clear, the AFA 
has been modified by adding a new Section 7.E which reads as follows:
    E. Safety. Nothing in this Agreement shall be interpreted as 
restricting the authority of either the Refuge Manager or the 
Coordinator to take immediate steps to address any safety concerns.

    Issue 10: Qualifications of CSKT employees and volunteers.
    Concern: The draft AFA does not provide the Refuge Manager with 
adequate oversight authority to determine whether CSKT employees and 
volunteers are adequately qualified to safely, effectively, and 
efficiently perform assigned Activities.
    Comment: ``* * * [W]e recommend that a more descriptive set of 
standards be developed to ensure qualified professionals are doing the 
work. Relegating work from federal fish and wildlife biologists and 
managers with known credentials to persons unknown and potentially 
unqualified could be detrimental to management efforts on the Refuge.''
    Response: The CSKT has an existing Natural Resources Department and 
has assured the Service that only qualified personnel will be working 
on the NBRC. To make the issue of qualifications

[[Page 5209]]

clearer in response to this public comment, Section 11, C of the AFA 
was modified to include ``knowledge, skills and abilities'' in the list 
of items identified in the provision addressing ``Training and Skill.'' 
The revised section would read as follows:
    C. Training and Skill. The CSKT will ensure that each CSKT 
Employee, CSKT Contractor, and CSKT Volunteer has sufficient knowledge, 
skills, and abilities to properly and safely perform each Activity the 
CSKT assigns her or him to perform.

    Issue 11: Affected [FWS] employees.
    Concern: Under the draft AFA, career Service employees are forced 
to select from employment options they consider completely 
unacceptable. Many comments characterize the offered employment options 
as ``unfair treatment'' of the Service's most valuable resource, its 
employees.
    Comment: ``These faithful staff are now being told they have the 
choice of taking a position with CSKT, taking an IPA position paid for 
by the refuge, but under full control and supervision of CSKT, 
transferring to another refuge (fully restricted to time limits and 
availability) or they face the loss of their job. All of their years of 
service have been wiped away by the CSKT demands, and the lack of 
forceful defense by the FWS. What has happened to the often vaunted 
Federal employee protection and rights? Since when does a decade or 
more of dependable, timely, and successful work not bring some job 
protection? How can this heavy-handed and unwarranted abridgement of 
sound employee practices be permitted to occur on the basis of applying 
a discretionary authority to sign an AFA as against their long held 
rights?''
    Response: The AFA provides four different options for the existing 
NBRC employees whose positions will be contracted by CSKT. These 
options include: (1) Remaining a Service employee and being assigned to 
CSKT under an Intergovernmental Personnel Act (IPA) Agreement; (2) 
becoming a CSKT employee but retaining Federal benefits; (3) becoming a 
CSKT employee with tribal benefits; and (4) reassignment by the Service 
to another duty station. See Section 11.E.3 of the Agreement.
    This practice of IPA assignments has also taken place with a nonBIA 
agency: The National Park Service (NPS) has an AFA with the Grand 
Portage Band of Chippewa Indians in which an NPS employee is assigned 
to the Grand Portage Band via an Intergovernmental Personnel Act (IPA) 
agreement. That option and more are available to NBRC employees under 
Section 11.E.3 of the NBRC AFA.
    In response to related concerns that seasonal NBRC employees may 
somehow be restricted from extending their employment at the NBRC, the 
parties have agreed to modify the Agreement to make clear that seasonal 
employees assigned to CSKT via an IPA agreement can have their 
assignments extended beyond their 6-month standard period of employment 
(contingent upon funding from the Service). A new Section 11.E.5.d 
reads as follows:
    d. Seasonal IPA Employees. Contingent upon funding provided by FWS, 
the IPA agreement of any seasonal Affected Federal Employee may be 
extended beyond the original six month duration specified in the AFA, 
provided that such extension does not result in such employee working 
more than 50 weeks of the year, in which case the employee would no 
longer have seasonal status.

    Issue 12: AFA implementation costs.
    Concern: Additional costs (i.e., costs above existing station 
budget) associated with implementing an AFA will reduce available 
funding for NBRC operations and other NWRs.
    Comments: ``In these days of Federal Budget shortages, any increase 
in operation costs for the National Bison Range will be diverted from 
budgets of other Refuges.'' And, ``As similar agreements are requested 
for more refuges, a reasonable person must presume that extra costs 
will continue to multiply. Negative financial impacts to the Refuge 
System, as a whole, will compound with each additional agreement.''
    Response: The cost estimate that the Service provided to Senator 
Conrad Burns found that, for fiscal year 2005, the Agreement would cost 
approximately $23,460, or about 2.45 percent more than it would cost 
the Service to conduct the same activities within the external boundary 
of the Flathead Indian Reservation based on FY 2004 operational budgets 
for the NBRC. The cost estimate also found that, over a 5-year period, 
there could be cost savings to the NBRC if a supervisory position were 
to be contracted to CSKT under a future AFA, eliminating the need for 
the Coordinator position currently provided in the AFA.

    Issue 13: Unresolved Incompatible uses on Pablo and Ninepipes NWRs.
    Concern: Unresolved CSKT issues with applicability of Service 
compatibility requirements may extend into other aspects of the AFA.
    Comment: ``Because of the importance of the compatibility 
requirement in refuge system law we request that concrete measures be 
taken by FWS and CSKT to resolve these compatibility issues before the 
AFA is finalized. We believe that all parties should act in good faith 
and begin the important relationship established in the AFA with a 
``Clean Slate, unmarred by the compatibility issue.' ''
    Response: Most of the incompatible uses on the Pablo and Ninepipes 
NWRs have been resolved; however, the Service acknowledges that a few 
agricultural issues are still unresolved pending resolution of Service 
authority in this matter. The parties continue to discuss these issues 
and work toward a mutually satisfactory resolution. As long as these 
issues are being addressed in good faith by both sides, there has been 
a policy decision that they should not have any bearing on this 
Agreement.

    Issue 14: Service AFAs are inconsistent due to the lack of policy 
guidance.
    Concern: Too many Activities contracted under NBRC draft AFA; ``too 
much too fast.''
    Comments: ``In the interest of future success, I urge a serious 
consideration of immediate action to suspend the processes now under 
way. * * *'' And, ``I earnestly recommend the prompt initiation of a 
policy development process to give proper guidance to FWS managers as 
more requests for participation are presented by Tribal authorities. To 
be most profitable, this process should be a thoroughly transparent 
one, preferably involving the public, representatives of Tribes, and 
others, employing the processes widely prescribed for public 
involvement in important policy considerations.''
    Response: While the Service may not have a great deal of experience 
with Tribal AFAs, other Interior agencies have been administering them 
for years. Four existing AFAs between Tribes and the National Park 
Service have established a record of success, as have numerous other 
BIA AFAs, and we are confident that the NBRC AFA will be equally 
successful. Nonetheless, we agree that, because of the greater amount 
of public interest in the negotiation process for the NBRC AFA, policy 
questions were raised that were not at issue in other AFA negotiations. 
The Service agrees that the development of a policy to guide future AFA 
negotiations would improve the negotiation process. The Service is 
beginning the process of developing its policy to address and clarify 
various

[[Page 5210]]

issues including, but not limited to, the role of public comment, the 
government-to-government relationship, affected employee 
considerations, and other issues as may be raised during the process of 
developing this policy. The Service will seek input from Indian 
Country, nongovernment organizations, and the public as it develops its 
policy.

    Issue 15: No process identified to resolve disagreements over 
performance deficiencies.
    Concern: Section 10.3.b provides no final guidance for resolution 
of disagreements on performance.
    Comment: ``This says that after the Refuge Manager informs CSKT of 
a deficiency, the CSKT will have a `reasonable amount of time to either 
remedy the performance deficiency or establish that no deficiency 
exists. * * *' This implies that CSKT can unilaterally decide that the 
Refuge Manager is wrong and that they are not deficient in 
performance.''
    Response: Section 18 of the AFA refers to 25 CFR part 1000, subpart 
R (``Appeals''), as well as 25 U.S.C. 450m-1, as the authority and 
process for dispute resolution. To address this public concern, the AFA 
was amended to read that the CSKT would ``demonstrate to the Refuge 
Manager'' that an alleged deficiency does not exist. The revised 
Section 10.A.3.b(2) now reads as follows:
    (2) Written Notice. The Refuge Manager will notify the Tribal 
Council in writing of any other performance deficiency, including any 
performance deficiency that constitutes grounds for reassumption under 
Section 16.C of this AFA. The written notice will identify the Activity 
and describe the performance deficiency at issue, the applicable 
Operational Standard or term or condition of this AFA, and why the 
performance of the CSKT does not meet the Operational Standard or term 
or condition. The notice will give the CSKT a reasonable amount of time 
to either remedy the performance deficiency or demonstrate to the 
Refuge Manager that no performance deficiency exists, the amount of 
time to be set by the Refuge Manager depending on the nature of the 
deficiency.

    Dated: January 6, 2005.
Matt Hogan,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 05-1785 Filed 1-31-05; 8:45 am]
BILLING CODE 4310-55-P