Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Notices 5205

and installed from private agricultural 

land 800 feet east of the Refuge using 

directional drilling equipment, 

construction and operation of the 

pipeline would not be detectable at the 

surface of the Refuge and cause no 

detectable ground surface disturbances 

to terrestrial or aquatic habitats within 

Stone Lakes NWR at any time during it’s 

construction or operation. Therefore the 

proposed use would not negatively 

affect the purposes of Stone Lakes NWR 

or the mission of the Service or impact 

existing or potential wildlife-dependent 

recreational uses.

DATES: Written comments should be 

received on or before March 3, 2005 to 

receive consideration by the Service.

ADDRESSES: Comments should be 

addressed to: Manager; California/

Nevada Operations Office, Attention 

Realty Officer, U.S. Fish and Wildlife 

Service, 2800 Cottage Way, W–2610, 

Sacramento, CA 95825.

FOR FURTHER INFORMATION CONTACT:

Realty Specialist Steve Lay at the above 

California/Nevada Operations Office 

address, (916) 414–6447.

SUPPLEMENTARY INFORMATION: The 

purpose of this Notice is to inform the 

public that the Service will be 

proceeding with the processing of this 

application, the compatibility 

determination, and the approval 

processing which includes the 

preparation of the terms and conditions 

of the permit. The purpose of the 

natural gas pipeline is to provide 

reliable and cost effective energy to the 

residential, commercial, and industrial 

customers within Sacramento and 

adjacent counties. The total width of the 

subsurface right-of-way is twenty feet to 

be located ten feet on either side of the 

centerline. The total length of the rightof-way is 170.85 feet . Therefore the 

total area of the subsurface right-of-way 

would comprise approximately 3,417 

square feet or 0.0784 acres. The depth 

of the subsurface right-of-way would be 

approximately 15–20 feet underground. 

The pipeline itself is six inches in 

diameter Schedule 20 ERW carbon steel 

API 5L Grade B or Grade x 42 steel pipe 

and will be inserted into a slightly larger 

diameter (7 inches) hole. An 

Environmental Action Statement has 

been prepared by the Stone Lakes NWR 

Refuge Manager stating the relevant 

categorical exclusion pertaining to this 

proposed right-of-way. A Compatibility 

Determination has been written and has 

concluded that the proposed use would 

not negatively affect the purposes of 

Stone Lakes NWR or the mission of the 

Service or impact existing or potential 

wildlife-dependent recreational uses.

Authority: Right-of-way applications for 

pipelines are to be filed in accordance with 

Section 28 of the Mineral Leasing Act of 1920 

(41 Stat. 449; 30 U.S.C. 185 amended by Pub 

L. 93–153).

Dated: January 26, 2005. 

Ken McDermond, 

Acting Manager, California/Nevada 

Operations Office, Sacramento, California.

[FR Doc. 05–1810 Filed 1–31–05; 8:45 am] 

BILLING CODE 4310–55–P

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.

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 SelfGovernance 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—MountainPrairie 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://mountainprairie.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 SelfGovernance Act allows qualifying selfVerDate jul<14>2003 15:06 Jan 31, 2005 Jkt 205001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\01FEN1.SGM 01FEN1
5206 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Notices 

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.’’

Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Notices 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 singleagency 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 

5208 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Notices 

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 § 403(i)(2) of the Act, 25 

U.S.C. 458cc(i)(2), and the Tribal SelfGovernance 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 costeffective 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 

Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Notices 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 

5210 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Notices 

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. 450m1, 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

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs 

Rate Adjustments for Indian Irrigation 

Projects

AGENCY: Bureau of Indian Affairs, 

Interior.

ACTION: Notice of proposed rate 

adjustments. 

SUMMARY: The Bureau of Indian Affairs 

(BIA) owns, or has an interest in, 

irrigation facilities located on various 

Indian reservations throughout the 

United States. We are required to 

establish rates to recover the costs to 

administer, operate, maintain, and 

rehabilitate those facilities. We request 

your comments on the proposed rate 

adjustments.

DATES: Interested parties may submit 

comments on the proposed rate 

adjustments on or before April 4, 2005.

ADDRESSES: All comments on the 

proposed rate adjustments must be in 

writing and addressed to: Arch Wells, 

Director, Office of Trust Services, Attn: 

Irrigation and Power, MS–4655–MIB, 

Code 210, 1849 C Street, NW., 

Washington, DC 20240, Telephone (202) 

208–5480.

FOR FURTHER INFORMATION CONTACT: For 

details about a particular irrigation 

project, please use the tables in 

SUPPLEMENTARY INFORMATION section to 

contact the regional or local office 

where the project is located.

SUPPLEMENTARY INFORMATION: The tables 

in this notice list the irrigation project 

contacts where the BIA recovers its 

costs for local administration, operation, 

maintenance, and rehabilitation, the 

current irrigation assessment rates, and 

the proposed rates for the 2005 

irrigation season and subsequent years 

where applicable. 

What Are Some of the Terms I Should 

Know for This Notice? 

The following are terms we use that 

may help you understand how we are 

applying this notice. 

Administrative costs means all costs 

we incur to administer our irrigation 

projects at the local project level. Local 

project level does not normally include 

the Agency, Region, or Central Office 

costs unless we state otherwise in 

writing. 

Assessable acre means lands 

designated by us to be served by one of 

our irrigation projects and to which we 

provide irrigation service and recover 

our costs. (See Total assessable acres.) 

BIA means the Bureau of Indian 

Affairs. 

Bill means our statement to you of the 

assessment charges and/or fees you owe 

the United States for administration, 

operation, maintenance, and/or 

rehabilitation. The date we mail or hand 

deliver your bill will be stated on it. 

Costs mean the costs we incur for 

administration, operation, maintenance, 

and rehabilitation to provide direct 

support or benefit to an irrigation 

facility. 

Customer means any person or entity 

that we provide irrigation service to. 

Due date is the date on which your 

bill is due and payable. This date will 

be stated on your bill. 

I, me, my, you, and your means all 

interested parties, especially persons or 

entities that we provide irrigation 

service to and who receive beneficial 

use of our irrigation projects affected by 

this notice and our supporting policies, 

manuals, and handbooks. 

Irrigation project means, for the 

purposes of this notice, the facility or 

portions thereof, that we own, or have 

an interest in, including all appurtenant 

works, for the delivery, diversion, and 

storage of irrigation water to provide 

irrigation service to customers for whom 

we assess periodic charges to recover 

our costs to administer, operate, 

maintain, and rehabilitate. These 

projects may be referred to as facilities, 

systems, or irrigation areas. 

Irrigation service means the full range 

of services we provide customers of our 

irrigation projects, including, but not 

limited to, water delivery. This includes 

our activities to administer, operate, 

maintain, and rehabilitate our projects. 

Maintenance costs means all costs we 

incur to maintain and repair our 

irrigation projects and equipment of our 

irrigation projects and is a cost factor 

included in calculating your operation 

and maintenance (O&M) assessment. 

Must means an imperative or 

mandatory act or requirement. 

Operation and maintenance (O&M) 

assessment means the periodic charge 

you must pay us to reimburse our costs. 

Operation or operating costs means 

costs we incur to operate our irrigation 

projects and equipment and is a cost 

factor included in calculating your O&M 

assessment. 

Past due bill means a bill that has not 

been paid by the close of business on 

the 30th day after the due date, as stated 

on the bill. Beginning on the 31st day 

after the due date we begin assessing 

additional charges accruing from the 

due date. 

Rehabilitation costs means costs we 

incur to restore our irrigation projects or 

features to original operating condition 

or to the nearest state which can be 

achieved using current technology and