[Federal Register Volume 69, Number 132 (Monday, July 12, 2004)]
[Notices]
[Pages 41838-41845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15704]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Fish and Wildlife Service and Council of Athabascan Tribal 
Governments Sign Annual Funding Agreement

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.

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SUMMARY: On April 30, 2004, the U.S. Fish and Wildlife Service (Service 
or we) signed an annual funding agreement (AFA or Agreement) with the 
Council of Athabascan Tribal Governments (CATG) 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 60-day public comment period. 
The Agreement was re-negotiated and slightly re-worded following the 
public comment period. The Agreement provides for the CATG to perform 
certain programs, services, functions, and activities (Activities) for 
the Yukon Flats National Wildlife Refuge (Yukon Flats Refuge) during a 
one-year period for $59,000. The regional director for the Service in 
Alaska signed a decision document on this action on Monday, April 26, 
2004. The Agreement was endorsed by the Secretary of the Interior on 
April 30, 2004, and forwarded to the U.S. Congress for a 90-day review 
period.

DATES: The agreement period is proposed for August 1, 2004, through 
July 31, 2005.

ADDRESSES: The final agreement and supporting documentation can be 
obtained at:
    1. Fairbanks--Yukon Flats National Wildlife Refuge Headquarters, 
101 12th Avenue, Room 264, Fairbanks, Alaska 99701.
    2. Anchorage--U.S. Fish and Wildlife Service Regional Office, 
National Wildlife Refuge System--Alaska, 1011 East Tudor Road, 
Anchorage, Alaska 99503.
    3. Internet--http://www.r7.fws.gov/media/catg/index.htm

FOR FURTHER INFORMATION CONTACT: Ted Heuer, Refuge Manager, (907) 456-
0407.

SUPPLEMENTARY INFORMATION:

    Authority: 16 U.S.C. 668dd et seq., Pub. L. 103-413, Pub. L. 93-
638, 25 CFR 1000.

    What Is the Yukon Flats National Wildlife Refuge? The Yukon Flats 
Refuge is the third largest refuge within the National Wildlife Refuge 
System, administered by the Service in accordance with the National 
Wildlife Refuge Administration Act, as amended, 16 U.S.C. 668dd. 
Established by the Alaska National Interest Lands Conservation Act of 
1980, the Refuge boundary encompasses 11 million acres. Village 
corporations and the Doyon, Ltd. regional Native Corporation for the 
area, established under the Alaska Native Claims Settlement Act (ANCSA, 
Pub. L.

[[Page 41839]]

92-203), own over 2 million acres within the boundary. A 300-mile reach 
of the Yukon River flows through the heart of the Refuge. There are 
over 20,000 shallow lakes, ponds, and wetlands in the Refuge, which is 
internationally recognized as a primary breeding area for North 
American waterfowl and water birds.
    What Is the CATG? The CATG is a qualified tribal consortium 
composed of Arctic Village, Beaver, Birch Creek, Canyon Village, 
Chalkyitsik, Circle, Gwichyaa Zhee Gwich'in Tribal Government of Fort 
Yukon, Rampart, Stevens Village, and Venetie. These are predominantly 
Athabascan Indian villages within the boundary or very near the Yukon 
Flats Refuge. The offices of the CATG are located in Fort Yukon, 
Alaska, within the refuge boundary.
    How Did the Service Develop the Agreement? The negotiations between 
the Service and the CATG were carried out in accordance with 
regulations in 25 CFR part 1000.
    What Events Led to This Action? On June 16, 2003, the Service 
received a proposal, dated May 30, 2003, from CATG to assume some 
Activities at the Yukon Flats Refuge under the Indian Self-
Determination and Education Assistance Act (Pub. L. 93-638), as amended 
by the Tribal Self-Governance Act, Public Law 103-413. The proposal 
asserted that in accordance with section 403(c) of Public Law 93-638, 
as amended, the Activities were of geographic, historical, and cultural 
significance to CATG and its member tribes. The parties first met on 
August 19, 2003, in a pre-negotiation meeting. Because of that meeting, 
CATG modified the proposal. The two parties agreed at the August 19 
meeting that the federally mandated 10-day Service response time would 
begin following receipt of the modified proposal. According to the 
regulations implementing Public Law 93-638, the agency must provide a 
reply within 10 days of the pre-negotiation meeting, explaining whether 
an Activity is available for negotiation. The Service received the 
modified proposal on August 29, 2003. On September 5, 2003, the Service 
sent a response to CATG indicating that eight listed Activities were 
available to be included in an AFA because they were not inherently 
Federal functions, and they were of geographic and cultural 
significance to the tribes that make up CATG. The parties agreed to 
begin official negotiations on September 28, 2003. After this first 
meeting, the two parties continued to negotiate specifics of the AFA 
and reached this Agreement in late December 2003. The regulations allow 
for a public consultation process. The public was officially notified 
of a tentative Agreement in a public notice on February 13, 2004. The 
Service called the Agreement tentative because it declined to sign the 
Agreement until after the public consultation process. The notice was 
published in newspapers and posted on the Service's Alaska Region Web 
site. The notice stated that we would accept public comments for 45 
days. Subsequently, we extended the comment period for an additional 15 
days, which placed the last day to postmark comments on April 13, 2004. 
We extended the comment period for two reasons. First, on March 15, 
2004, the Service's Internet and e-mail capabilities were disconnected 
due to a court order affecting several bureaus within the Department of 
the Interior (DOI). The public had been invited to submit comments to 
the Service via e-mail, and to read the tentative Agreement on the 
Service Web site. Nine days later, on March 24, 2004, our Internet and 
e-mail capabilities were re-established as allowed by a subsequent 
court order. The second reason to extend the comment period was based 
upon requests by numerous members of the public who requested an 
extension of the public comment period to 90 days.
    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 
identified self-governance tribes the opportunity to request AFAs with 
the Bureau of Indian Affairs (BIA) and non-BIA agencies within DOI. 
When dealing with non-BIA agencies, including the Service, identified 
tribes may enter into funding agreements that would allow them to 
conduct certain Activities of such non-BIA agencies. 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 part 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 most members of CATG that live within the boundary of 
the Yukon Flats Refuge or very close to it, have used the lands and 
resources of the Yukon Flats Refuge for most of their lives, as did 
their ancestors, and therefore feel very much a part of these lands.
    What Happens Now? The Service's regional director for Alaska signed 
a decision document on April 26, 2004. The Service and CATG signed the 
Agreement on April 30, 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 House 
Resources Committee, Office of Native American and Insular Affairs, and 
the Senate Committee on Indian 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

    The Service announced the public comment period on February 13, 
2004, by placing public notices in the principle daily newspapers in 
Anchorage, Fairbanks, and Juneau, Alaska. A joint Service-CATG news 
release was sent to Alaska media offices. The public notice, the news 
release, the Agreement with project work descriptions, and a series of 
questions and answers were posted on the Service's Alaska Web site, 
http://www.r7.fws.gov/media/catg/index.htm. When the Service's access 
to the internet and e-mail was stopped by court order, we placed 
announcements in the above newspapers and mailed an announcement to 77 
parties who had commented earlier or who we knew were interested in the 
draft Agreement. The announcements stated that we could no longer 
receive comments by e-mail and requested that comments be sent by mail 
or facsimile. This announcement also discussed the extension of the 
public comment period to 60 days. We held public meetings in Fairbanks 
and Anchorage on March 15 and 18, 2004, respectively. Separate 
newspaper advertisements announced these meetings.

Nature of Public Comments

    We received 147 public comments in a variety of ways. Several 
individuals submitted more than one comment. We received 63 letters by 
either mail or facsimile (or both), addressed to

[[Page 41840]]

President George W. Bush, Secretary of the Interior Gale A. Norton, 
Regional Director Rowan W. Gould, Refuge Manager Ted Heuer, Assistant 
Refuge Manager Jimmy Fox, Refuge Supervisor Jerry Stroebele, or other 
government officials. We received 66 different e-mail messages (often 
addressed to several recipients), including over 40 e-mail messages 
from one individual. At the Fairbanks public meeting, eight people made 
public statements. Seven people made statements at the Anchorage public 
meeting. All statements at the public meetings were recorded. Two 
individuals called Refuge Manager Ted Heuer during the official comment 
period and made statements over the telephone. One individual visited 
Refuge Headquarters to discuss the tentative Agreement and convey his 
concerns. Verbal comments were documented and added to the public 
record. Some comments were received before the formal notice of a 
public comment period, and a few were received following the public 
comment period. All comments were reviewed and placed in the public 
record. We received one letter of comment from the Alaska State 
Legislature. We received two comments from the Alaska Department of 
Fish and Game. We received 18 comments from organizations. We received 
11 comments from Indian tribes, tribal entities, or other Native 
American organizations, groups, or corporations. We received 115 
comments from individuals. The preponderance of comments recommended 
against the Service signing the Agreement; 126 comments did not support 
the Agreement as written. These comments ranged from outright 
opposition to support with specific modifications. We received 21 
comments supporting the Agreement unconditionally. The section below 
summarizes and/or characterizes comments and attempts to respond 
collectively.

Response to Public Comments

    Issue 1: Length of the public comment period and number of public 
meetings. Twenty-one responses urged that we extend the public comment 
period to 90 days and/or also hold public meetings in Juneau, 
Washington DC, and Missoula, Montana.
    Response: The Service initially planned a 30-day public comment 
period, consistent with most other Service public comment periods for 
actions on national wildlife refuges in Alaska. However, we decided to 
provide for a 45-day public comment period because we were aware of the 
public interest in and controversy over, negotiations between the 
Service and the Confederated Salish-Kootenai Tribes in Montana. After 
we announced the 45-day public comment period, we later extended the 
public comment period to 60 days, based on:
    (1) Public comments that recommended an extension of the public 
comment period; and (2) a court-ordered shutdown of DOI internet access 
which lasted for nine days, disrupting the Service's ability to receive 
comments by e-mail, and the ability of the public to review the 
Agreement on the Service's Web site. If it had not been for the 
interruption of our e-mail and internet, we would have waited longer in 
the 45-day comment period to decide whether to extend the comment 
period, and if so, for how long.
    We placed public notices in newspapers in Anchorage, Fairbanks, and 
Juneau announcing the extension of the public comment period, and 
providing information on where, when, and how additional information 
could be obtained and public comments could be submitted. As we neared 
the end of the 60-day public comment period, we had received comments 
from all of the conservation groups and other organizations that had 
expressed interest in this issue or had previously contacted us with 
questions. Given the brevity of the Agreement and supporting documents, 
the limited funding amount involved, the small number of public 
comments received, and the relatively low turnout for the public 
meetings in Fairbanks and Anchorage, the Service did not believe that 
another extension of the public comment period and additional public 
meetings were necessary or would be beneficial.
    Many of the comments we received addressed both the Agreement with 
CATG and the current negotiations between the Service and the 
Confederated Salish-Kootenai Tribes, concerning Activities at the 
National Bison Range in Montana. The National Bison Range is also a 
unit of the National Wildlife Refuge System, administered by the 
Service's Region 6 Headquarters in Denver, Colorado. We provided copies 
of all of these comments to Service officials in Montana and Denver. We 
decided that a public meeting to discuss the Agreement for Activities 
at the Yukon Flats Refuge in Alaska, if held in Missoula, Montana, 
would generate public interest and questions more specifically 
applicable to the National Bison Range, but of little applicability to 
the Yukon Flats Refuge Agreement.
    Issue 2: Preparation of an environmental impact statement. Twenty-
six responses requested that the Service prepare an environmental 
impact statement (EIS) on the Agreement.
    Response: In response to these comments, we once more reviewed DOI 
policy on compliance with the National Environmental Policy Act. The 
determination to proceed or not to proceed with this Agreement is an 
administrative decision. 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 Yukon Flats Refuge (whether done by Service 
employees, CATG 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 
National Environmental Policy Act compliance (part 516 of the 
Departmental Manual, chapter 6).
    The Service did complete a comprehensive conservation plan/
environmental impact statement/wilderness review of the Yukon Flats 
National Wildlife Refuge in October 1987. This CCP and EIS provide 
overall management direction and guidance for the Refuge. The 
Activities identified in the Agreement with CATG are not different from 
the management activities addressed in the Refuge CCP. Management of 
17(b) easements, environmental education, data collection and research, 
wildlife management, and subsistence management and monitoring are all 
addressed in the 1987 CCP/EIS. Departmental Policy, 516 DM 2, does 
require NEPA documentation if the proposed action:

    * * * establishes a precedent for future action or represents a 
decision in principle about future actions with potentially 
significant environmental effects.

    Because the Service is retaining all responsibility and authority 
for managing the Refuge, and the refuge manager is responsible for 
following existing laws, regulations, Service policies, and plans for 
management of the Refuge, we do not envision any adverse environmental 
impacts will result from this proposed action.
    Issue 3: Support more cooperation with local residents. A number of 
responses supported the Service's efforts to work more cooperatively 
with Yukon Flats residents. Several people

[[Page 41841]]

stated that local residents would have a better understanding and 
appreciation for the work of the Service if they were involved in the 
day-to-day activities of the Refuge.
    Response: The Agreement is the result of months of discussions with 
one main goal in mind: Adhere to our responsibilities as mandated in 
various laws, regulations, and policies. For instance, Public Law 93-
638 obligates a Department of the Interior agency to recognize a 
tribe's right to negotiate for an annual funding agreement. The Compact 
of Self-Governance between CATG and the United States of America 
(Compact) and the Service's Native American Policy dictate that the 
Service is to cooperate in a government-to-government relationship with 
Indian tribes. We are also legally bound by the purposes of the Yukon 
Flats Refuge and other management requirements set forth in the Alaska 
National Interest Lands Conservation Act (Pub. L. 96-487), which 
established the Refuge. We administer and manage the Refuge for all 
Americans in accordance with the National Wildlife Refuge System 
Administration Act (16 U.S.C. 668dd et seq.), as amended, and the 
implementing regulations and policies of that Act.
    Issue 4: Support for the Agreement. Twenty-one comments expressed 
unconditional support for the Agreement. An additional 12 comments were 
supportive of the Agreement in concept, but believed the language 
should be modified to clarify certain issues.
    Response: We negotiated an agreement that follows three key 
documents: Public Law 93-638, the Compact, and the National Wildlife 
Refuge System Administration Act (as amended). This is the first AFA in 
the history of the Service, and we had no Service examples to follow; 
however, we did utilize the framework of an existing AFA that we 
obtained from the National Park Service. After careful review of public 
comments, we re-negotiated with CATG and modified the Agreement to 
clarify several issues. This document notes those changes.
    Issue 5: This Agreement will set a bad precedent for national 
wildlife refuges and national parks. Thirty-seven comments, while 
sometimes applauding the Service and CATG for their efforts to work 
together more cooperatively, were very concerned about the precedent 
this Agreement would set for other national wildlife refuges, national 
parks, national monuments, national historic sites, Federal water 
projects, etc. (Several comments were unconditionally opposed to the 
Agreement because of this precedent.)
    Response: We are very aware that this Agreement will set an example 
for the National Wildlife Refuge System. We believe this Agreement, as 
currently amended to address some of the concerns raised by the public, 
sets a good standard for the National Wildlife Refuge System and is 
consistent with all applicable laws and regulations regarding Tribal 
Self-Governance and the National Wildlife Refuge System. It should also 
be noted that this is not the first non-BIA annual funding agreement 
for DOI programs of special geographic, historical, or cultural 
significance to participating Tribes (see 25 CFR subpart F). The 
National Park Service has had an annual funding agreement with the 
Grand Portage Band of Lake Superior Chippewa, for maintenance work at 
the Grand Portage National Monument in Minnesota, for several years. We 
recognize that, particularly in Alaska where Native Americans are still 
largely dependent on fish, wildlife, and plants on national wildlife 
refuges, a strong and continuing cooperative effort must be nurtured 
and maintained between Service employees and tribal members. This 
Agreement is one of many tools available to us to further cooperation. 
We very carefully exercised our discretion in entering this Agreement 
and would be equally careful in negotiating any future agreements with 
tribes.
    Issue 6: Competitive contracting would be better. Many comments 
suggested that competitive contracts would make more efficient use of 
limited refuge budgets and would be a more equitable way of doing 
business.
    Response: The Service has, and will continue to use, competitive 
contracts where appropriate. However, the law and DOI regulations (25 
CFR 1000.122-126) implementing Tribal Self-Governance, allow tribes to 
formally request negotiations for AFAs for programs, functions, 
services, and activities of special geographic, historical, or cultural 
significance to the tribe. The ten tribes which compose CATG have a 
special geographical and cultural relationship to the lands and 
resources within the refuge boundaries. The law and regulations provide 
a preference for these types of programs, and provide the agency 
discretion to award the AFAs on a non-competitive basis. It would not 
have been appropriate for the Service to enter good faith negotiations 
with CATG (as was required by the regulations), reach this Agreement, 
and then decide to award the same work through a competitive process.
    We believe that the dollar amounts awarded to CATG through this 
annual funding agreement are fair and reasonable for the work being 
performed, whether being done by CATG or another contractor. Because: 
(1) CATG's office and employees are located within the boundaries of 
the refuge; and (2) logistical costs would be very high for any 
individual or business outside of the Yukon Flats, it is unlikely that 
another contractor could do this same work as cost effectively as CATG.
    Federal conservation agency budgets, including the Service's 
budget, are forecast to decline in the next several years. For this 
reason, successor AFAs with CATG in future years, and any agreements 
requested by other tribes for national wildlife refuges, will continue 
to be subject to a high bar test for efficiency and cost-effectiveness.
    Issue 7: Request that we not use Public Law 93-638 authority to 
contract. One comment emphasized that the Service has the discretion to 
enter an AFA and urged us to enter a different contracting arrangement.
    Response: We agree that the Service has complete discretion to 
enter into this Agreement. We have received requests and formal 
proposals from CATG and other tribes, for several years, to negotiate 
agreements under provisions of Public Law 93-638. Until 2003, we 
declined to enter AFAs for several reasons. During this same period, 
however, the Service has contracted with CATG for work under other 
contract authorities. We have seen CATG build their capacity for this 
type of work and increase their expertise. Because CATG has agreed to 
perform the Activities under the terms that were mutually agreed upon, 
we choose to enter this Public Law 93-638 AFA with the hope and 
expectation that increased cooperation and coordination with the tribes 
will follow.
    Issue 8: Question about the Service's authority to enter this 
Agreement. One comment questioned whether the Service has the authority 
to enter into this Agreement and cited Section 5 of the National 
Wildlife Refuge System Improvement Act of 1997.
    Response: Section 5 of the Act does provide for the Service:

    * * * to enter into cooperative agreements with State fish and 
wildlife agencies for the management of programs on a refuge.

    However, the Act does not limit the authority of the Service to 
enter into other contracts or agreements for work on national wildlife 
refuges, as allowed by other Federal laws. It is also important to note 
that we did not enter into a cooperative agreement (or AFA)

[[Page 41842]]

for CATG to manage programs of the Refuge. We retained all of our 
refuge management responsibilities and authorities.
    Issue 9: Concerns about tribes' sovereign immunity. Ten comments 
expressed concern that if CATG has sovereign immunity there would be no 
way for the government to get money back if the work is not completed 
satisfactorily. Two comments were concerning legal recourse should a 
member of the public be accidentally injured by a CATG employee working 
under this Agreement.
    Response: The CATG does not have sovereign immunity. While the 
member tribes of CATG are federally recognized Indian tribes with 
sovereign immunity, CATG has no governmental status. The CATG is a 
nonprofit tribal organization as defined in Public Law 93-638, but it 
is not immune to legal action. Members of the public who might be 
injured because of actions by a CATG employee have legal recourse 
against CATG, and to the U.S. Government under the Federal Tort Claims 
Act.
    Issue 10: The Service should not pay CATG at the beginning of the 
contract. Several comments stated it was a bad business practice to 
give a contractor all of the money up-front.
    Response: The Compact of Self-Governance entered into by the 
Secretary of the Interior and the Council of Athabascan Tribal 
Governments on October 1, 1999, specifically states:

    For each fiscal year covered by an AFA negotiated under this 
Compact, the Secretary shall pay the funds specified for that fiscal 
year under the AFA by paying the total amount provided for in the 
AFA in one advance lump sum payment to the extent applicable.

    The Service is working with the member tribes of CATG in a 
government-to-government relationship under Public Law 93-638. Normal 
government contracting regulations do not apply to that Act. If the 
Federal government ``reassumes'' programs from a tribe (or consortium 
like CATG), based on a finding of imminent jeopardy to a physical trust 
asset, a natural resource, or public health and safety, then under 25 
CFR 100.315:

    * * * the Tribe/Consortium must repay funds to the Department as 
soon as practical after the effective date of the reassumption.

    Issue 11: Concerns that the Agreement could limit visitor access. A 
few comments expressed concern about the potential of this Agreement to 
have an adverse impact on their ability to access or use Refuge lands.
    Response: This Agreement will not affect whom, when, or where the 
public can use the Refuge for hunting, fishing, wildlife observation 
and photography, environmental education and interpretation, or other 
uses. It will not affect the management direction for the Refuge, which 
was defined with substantial public input through the refuge 
comprehensive conservation planning process. The Refuge CCP was 
approved and adopted in 1987.
    We do hope that the Agreement will improve the public's ability to 
access Refuge lands through the identification and marking of public 
access easements across Native corporation lands within the Refuge 
boundary. It is a federal responsibility to mark these easements. 
Similar programs have been underway on other national wildlife refuges 
in Alaska for several years.
    Issue 12: Waiver of regulations. Several comments objected to 
provisions in the Compact [Section 14 (b)] and the Agreement [Section 
8. C.] that allow CATG to request a waiver of any DOI regulation that 
CATG believes will present an obstacle to carrying out the Agreement. 
There was also concern expressed about the wording in the Compact, 
which states that a request for a waiver of regulations can be denied:

    * * * only upon a specific finding by the Secretary that 
identified language in the regulation may not be waived because such 
waiver is prohibited by federal law.

    Response: The regulation waiver provision in the Compact [Section 
14(b) (ii)] is qualified with the clause:

    * * * Until such time as regulations are promulgated * * *

    The Compact was signed on October 19, 1999. The regulations 
currently in effect at 25 CFR part 1000 became effective on January 16, 
2001, and codified the waiver provisions, which are now different and 
more comprehensive than in the Compact. In 25 CFR 1000.225, for a non-
Title I eligible Activity (such as those covered by this Agreement) the 
Secretary may deny a waiver request if it is:

    (b) (1) Prohibited by Federal law; or (b) (2) Inconsistent with 
the express provisions of the AFA.

    In 25 CFR 1000.222, the tribe must submit a written request for a 
waiver from the appropriate bureau director for non-BIA programs. 
Therefore, the tribe would have to address the request to the Director 
of the Service. The Director would consult with the Alaska Region in 
reviewing this request. The request could not be granted if it is 
prohibited by Federal law or is inconsistent with the Agreement.
    Issue 13: Federal management responsibility. Many comments were 
concerned about the Service turning over management responsibilities to 
a tribe. One comment said the Agreement is suggestive of co-management. 
Another said the Agreement would let CATG set priorities on the Refuge. 
They suggested that Sections 7(B) and 8(B) be revised. Some said all 
programs, functions, services, and activities of the National Wildlife 
Refuge System are inherently Federal.
    Response: The National Wildlife Refuge System Administration Act, 
as amended, is quite clear that the responsibility and authority for 
the administration and management of the National Wildlife Refuge 
System lies with the Service. We thought this was clear in the 
Agreement, but in response to this concern, and after re-negotiation 
with CATG, we changed the wording under Section 7A. (FWS Direction and 
Control) as follows: (Italics are added to the sentences below in this 
document to highlight the change.)
    From:

    A. Refuge Manager. Under this AFA, the Refuge Manager will 
retain ultimate responsibility and authority for directing and 
controlling the operation at the Yukon Flats NWR.

    To:

    A. Refuge Manager. Under this AFA, the Refuge Manager will 
retain all responsibility and authority for directing and 
controlling the administration, management, and operations at the 
Yukon Flats NWR.

    The Service did not give away any management responsibilities or 
authorities under this Agreement. We are aware of our public and 
resource management responsibilities. In this Agreement, we have 
included only Activities that we believe will benefit the Refuge, the 
public, and CATG. We agree that there are inherently Federal functions 
involved in managing a national wildlife refuge. However, we do not 
claim that all work that takes place on a national wildlife refuge is 
inherently federal and needs to be performed by Service employees. We 
often rely on contractors, universities, other agencies, and volunteers 
to provide some of our aircraft and/or logistical support, data 
collection (including harvest data) and analysis, education and 
outreach, maintenance of equipment, printing, fire suppression, etc.
    This Agreement does not establish co-management. The negotiation 
process set the priorities and the standards of the work to be done 
under the Agreement. If we decide that priorities or standards must be 
revised during the execution of the Agreement, we will re-

[[Page 41843]]

negotiate for those revisions, in order to include them in a cost-
effective manner.
    Issue 14: Reference to laws affecting national wildlife refuges. 
One comment noted that the Agreement did not refer to the National 
Wildlife Refuge System Improvement Act or the Alaska National Interest 
Lands Conservation Act.
    Response: The Agreement does refer to the Alaska National Interest 
Lands Conservation Act in Section 4 under the definition of the Yukon 
Flats National Wildlife Refuge. We agree that there should be a 
reference to the National Wildlife Refuge System Improvement Act in the 
Agreement, and have included it and the National Wildlife Refuge 
Administration Act in Section 4. (Note--the Improvement Act of 1997 
amended the Administration Act of 1966.)
    Issue 15: Replacing qualified Service personnel. Several comments 
expressed concern that this Agreement, and others that may follow, will 
replace our current dedicated, well-trained refuge staff with less 
qualified individuals.
    Response: This Agreement will not lead to the loss of existing 
Service employees. Employees will neither be replaced nor will their 
duties be diminished under this Agreement. We view this Agreement as an 
expansion of the Refuge's existing programs and services to the public. 
However, we have said during negotiations with CATG that whenever there 
is a vacancy in an existing Refuge position in Fairbanks (due to 
retirement, voluntary reassignment, or merit promotion), we will look 
at the duties performed by that position to see if some of the work 
could be efficiently performed by CATG. If feasible and cost efficient, 
we may then restructure the duties of the vacant position. This would 
likely be complex, because other personnel management issues are often 
at play in position management, and because in Fairbanks the 
headquarters of the Yukon Flats, Kanuti, and Arctic National Wildlife 
Refuges share some staff for some duties. While we have encouraged CATG 
to build natural resource management capacity, we have also made it 
clear that we will not reassign existing Refuge employees to free up 
new work for CATG.
    The Service also maintains a Student Career Experience Program 
where graduating student employees are reassigned to vacant refuge 
positions. These students have career-conditional employment status and 
have priority for placement. Most of them have advanced degrees in 
biology or natural resource management. The Service in Alaska has 
successfully used this program to recruit, train, and permanently hire 
several Alaska Natives and will continue to place a priority on this 
training program.
    Issue 16: The CATG personnel should meet certified wildlife 
biologist standards. One comment stated that CATG personnel performing 
biological investigations should be certified wildlife biologists under 
a program established by The Wildlife Society.
    Response: The Office of Personnel Management (OPM) sets standards 
of required college or other training coursework for specialized 
professional job series. The OPM does not require applicants to meet 
the standards set by The Wildlife Society for an individual to meet 
their Certified Wildlife Biologist classification. The CATG Liaison for 
the project, Eastern Yukon Flats Moose Population Estimation Survey, 
included in the Agreement, is a wildlife biologist and former employee 
of the Alaska Department of Fish and Game. Work to be performed under 
this project requires knowledge of wildlife management practices in 
general and of moose management specifically. The CATG Liaison has that 
knowledge and experience. Some of the work requires exceptional low-
level piloting skills and a good safety record. There are some charter 
pilots available in Alaska that meet these requirements who are also 
routinely contracted by the Service and the Alaska Department of Fish 
and Game.
    Some of this work only requires the skill to spot moose out of an 
airplane, to determine individual characteristics of the moose observed 
from a turning airplane, and to keep good records. This particular 
project grew out of earlier programs where local residents with good 
game spotting skills were employed as volunteer aerial observers to: 
(1) Utilize their skills, and (2) provide credibility with local people 
for the results of the agencies' moose surveys and census.
    Issue 17: The Service should hire Alaska Natives. One comment 
suggested we use the local hire authority granted under provisions of 
Section 1308 of the Alaska National Interest Lands Conservation Act. 
The Act provides for hiring of any individual, who because of having 
lived or worked in or near a conservation system unit, has special 
knowledge or expertise concerning the natural or cultural resources of 
such unit. The law provides that individuals with these attributes 
shall be considered for any position within the unit, without regard to 
any provision of the civil service laws or regulations that require 
minimum periods of formal training or experience (and other 
provisions).
    Response: The Service routinely reviews new or vacant positions on 
refuges in Alaska for consideration of recruitment under the local hire 
provisions of ANILCA. However, recruiting Alaska Natives under other 
hiring authorities can often be more advantageous to the individual by 
allowing better career mobility options. Currently the Refuge employs 
two Alaska Natives hired under the ANILCA local hire program, and one 
other Alaska Native hired through the Student Career Experience 
Program. The Service aggressively seeks to diversify its workforce 
through recruitment outreach efforts and the use of all available 
hiring regulations and programs. The Activities included in this 
Agreement require various skills that any one individual may not have. 
Under the Agreement, the CATG can assign the work to the appropriate 
existing employee.
    Issue 18: Concern about a conflict of interest. Two comments 
expressed concern that the Agreement creates an appearance of, or the 
potential for, conflict of interest because CATG members have actively 
pursued wildlife harvest allocation decisions that benefit their 
interests.
    Response: The wildlife harvest information will be collected 
according to protocols developed by the Federal Office of Subsistence 
Management, the Service's Migratory Bird Management Office, and by the 
Subsistence Division of the Alaska Department of Fish and Game. These 
offices have found that engaging local people to collect this 
information leads to better information than can be obtained by agency 
personnel. The harvest reporting is done by household, rather than by 
individual hunters and is more accurate. The information reported can 
not be traced back to the individual hunter. This encourages honest 
reporting.
    The moose population survey in this Agreement is a continuation of 
an existing program that has been, and will continue to be, well 
coordinated with the Service and the Alaska Department of Fish and 
Game. Usually these agencies are conducting similar surveys in adjacent 
areas at the same time. Information obtained from these surveys will be 
used in making management decisions--that is the purpose of the 
surveys. The CATG, or members of CATG, will likely comment on proposals 
affecting seasons, bag limits, and harvest allocations for the moose 
population of the surveyed area. However, due to the open, 
collaborative public processes used by the Federal Subsistence Board 
and the Alaska Board of Game in making management

[[Page 41844]]

decisions, and the collaborative and cooperative manner in which the 
moose surveys are conducted, we are not concerned that CATG's 
participation in surveys would result in either inaccurate information 
before the Boards or in undue influence on their decisions. We do not 
believe the issue would constitute a conflict of interest. Moreover, a 
positive result will be providing more credibility to agency 
information and the Boards' actions to the local residents.
    Issue 19: Concern about study design and approval. This comment 
from the Alaska Department of Fish and Game expressed concern that the 
survey designs lack sufficient detail and the proper involvement of the 
Department in management of resident wildlife in Alaska.
    Response: Upon receipt of this letter from the Alaska Department of 
Fish and Game, we discussed this issue with the Department and believe 
we resolved their concerns. The Service acknowledges that both the 
Alaska Department of Fish and Game and the Service share a mutual 
concern for fish and wildlife resources and their habitats, and both 
are engaged in extensive fish and wildlife conservation, management, 
and protection programs in Alaska. We desire to develop and maintain a 
cooperative relationship that will be in the best interests of both 
agencies, the concerned fish and wildlife resources and their habitats, 
and produce the best public benefits.
    We would not enter this Agreement with CATG, or negotiate future 
agreements, where specific wildlife management work was not 
accomplished by qualified individuals or according to recognized 
wildlife management techniques and procedures acceptable to both the 
Service and the Alaska Department of Fish and Game. The work to be 
performed in the projects, Eastern Yukon Flats Moose Population 
Estimation Survey and Wildlife Harvest Data Collection, has been, and 
will continue to be, extensively coordinated with the Alaska Department 
of Fish and Game. These projects are designed and will be conducted 
according to established and acceptable procedures. The results of 
Activities performed by CATG must be acceptable to, and useable in, 
management and allocation decisions by the Service, the Alaska 
Department of Fish and Game, the State Board of Game, and the Federal 
Subsistence Board. Because the information obtained from these projects 
will be subject to close scrutiny by these entities and by the general 
public, both the Service and CATG are aware that unacceptable results 
could jeopardize inclusion of this work in future agreements.
    Issue 20: Public review of amendments to the Agreement. A number of 
comments expressed belief that the public should be able to review all 
proposed changes to an active agreement.
    Response: We are strongly encouraged by the National Wildlife 
Refuge System Administration Act, as amended, to notify the public of 
our refuge management actions. The regulations implementing Pub. L. 93-
638 provide for an optional public consultation process in the 
negotiation of an AFA. (See 25 CFR subpart I--Public Consultation 
Process, part 1000.210-.214.) Because of our commitment to public 
involvement, the Service's Alaska region will be guided by the 
following operational standards for public notice when negotiating 
amendments or successor agreements. If during the course of this 
Agreement, the Service and CATG negotiate an amendment to the 2004-2005 
Agreement which does not materially change the type of work to be done, 
or does not increase the funding level by more than 25 percent, we will 
not notify the public until after the fact. If we propose to amend the 
2004-2005 Agreement by more than 25 percent of the funding level or 
materially change the work, we will first notify the public with a 
minimum 15-day public comment period. If we negotiate a successor 
agreement for 2005-2006 that materially changes the work to be done 
and/or exceeds the 2004-2005 Agreement amount by more than 25 percent, 
we will notify the public and have a minimum 30-day public comment 
period. If, over time or through negotiation, we have substantially 
increased the cost of successor agreements, we would consider changing 
the percentages discussed here. We are hopeful of a long-term, 
successful relationship with CATG and fully expect to negotiate 
successor agreements.
    Issue 21: Moose harvest information should be reported monthly. One 
comment suggested that the specifications for the Wildlife Harvest Data 
Collection include a requirement for monthly reporting of moose 
harvests in the deliverables section.
    Response: Originally, this was addressed in the timeline section of 
the proposal. We have moved the requirement to the deliverables 
section, and it now reads:

    A monthly report will be prepared that summarizes the moose 
harvested in each village. In addition, a summary will be prepared 
annually for all species on which harvest data has been collected. 
The summary will be reported to the FWS Liaison via phone, fax, or 
e-mail. The February 28th report will also include a summary of the 
moose harvested from August 25, 2004, to February 28, 2005. The 
report formats will follow CATG Technical Document 03-02.

    Issue 22: Random surveys may be required. One comment also 
suggested that random sampling of a subset of larger communities should 
be considered as a cost savings measure to ensure success of the 
survey.
    Response: To address this comment we have inserted the following 
two sentences in the second paragraph of the procedures section:

    If budget constraints limit the ability to survey 100% of Yukon 
Flats village households, for the Village of Fort Yukon only, a 
subset of households may be sampled. In this instance, 50-75% of the 
households would be randomly selected for survey and the results 
will be extrapolated to represent the Fort Yukon harvest.

    Issue 23: Concern that the Refuge would be managed for Native 
Americans. Three comments expressed their concern that the Agreement 
would subordinate the purposes of refuge management to the benefit of 
the tribes.
    Response: The Yukon Flats National Wildlife Refuge and other 
national wildlife refuges have always been, and will continue to be, 
managed for all Americans--present and future generations. The 
Agreement would allow some of the work of the Service on the Refuge to 
be accomplished by CATG. However, the refuge manager will retain all 
responsibility and authority for management and decision-making. The 
rights of the American public to use the Refuge will not be diminished 
in any manner.
    Issue 24: Section 403(k) precludes this Agreement. One comment 
suggested that the Service and the Department have downplayed Section 
403(k) of the Tribal Self-Governance Act.
    Response: We reviewed the applicable sections of the law and 
consulted with our attorney to ensure that our actions were correct. 
Here are the applicable sections of the law:

    Section 403(k): Disclaimer.--Nothing in this section is intended 
or shall be construed to expand or alter existing statutory 
authorities in the Secretary so as to authorize the Secretary to 
enter into any agreement under sections 403(b)(2) and 405(c)(1) with 
respect to functions that are inherently Federal or where the 
statute establishing the existing program does not authorize the 
type of participation sought by the tribe: Provided, however an 
Indian tribe or tribes need not be identified in the authorizing 
statute in order for a program or element of a program to be

[[Page 41845]]

included in a compact under section 403(b)(2).
    Section 403(b)(2) states: (b) Contents.--Each funding agreement 
shall--(2) subject to such terms as may be negotiated, authorize the 
tribe to plan, conduct, consolidate, and administer programs, 
services, functions, and activities, or portions thereof, 
administered by the Department of the Interior, other than through 
the Bureau of Indian Affairs, that are otherwise available to Indian 
tribes or Indians, as identified in section 405(c), except that 
nothing in this subsection may be construed to provide any tribe 
with a preference with respect to the opportunity of the tribe to 
administer programs, services, functions, and activities, or 
portions thereof, unless such preference is otherwise provided for 
by law.
    Section 405(c) states: Report on Non-BIA Programs.--(1) In order 
to optimize opportunities for including non-Bureau of Indian Affairs 
programs, services, functions, and activities, or portions thereof, 
in agreement with tribes participating in Self-Governance under this 
title, the Secretary shall--
    (A) Review all programs, services, functions, and activities, or 
portions thereof, administered by the Department of the Interior, 
other than through the Bureau of Indian Affairs, without regard to 
the agency or offense concerned; and
    (B) Not later than 90 days after the date of enactment of this 
title, provide to the appropriate committees of Congress a list of 
all such programs, services, functions, and activities, or portions 
thereof, that the Secretary determines, with concurrence of tribes 
participating in Self-Governance under this title, are eligible for 
inclusion in such agreements at the request of a participating 
Indian tribe.

    The list of eligible programs, services, functions, and activities 
required by Section 405(c) was last published in the Federal Register, 
Volume 67, No. 66, Friday, April 5, 2002, page 16434:

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

    For purposes of this review, we list below only those programs or 
elements listed in the Federal Register which are similar to those 
included in this Agreement.

1. Subsistence Programs within Alaska
2. Fish & Wildlife Technical Assistance, Restoration, & 
Conservation:
    a. Fish & wildlife population surveys
    b. Habitat surveys
    e. Fish & wildlife program planning
4. Education Programs:
    a. Interpretation
    b. Outdoor classrooms
9. National Wildlife Refuge Operations & Maintenance
    a. Construction
    d. Maintenance
    f. Biological program efforts

    The Agreement covers the following Activities only: (1) Wildlife 
harvest data collection; (2) moose surveys; (3) environmental education 
and outreach; (4) maintenance of equipment and facilities at Fort 
Yukon; and (5) locating and marking trails on private lands within the 
refuge boundary where the government retained an easement under 
provisions of section 17(b) of the Alaska Native Claims Settlement Act 
of 1971. [The lands on which these easements are located are privately 
owned by Native village corporations and Native regional corporations. 
The easements provide for legal access by the public across (and 
limited camping on) the private lands in order to access public lands 
beyond.] The Agreement does not give up any inherently federal 
responsibilities for budget allocation, planning, decisionmaking, 
assignment of priorities, or any other over-arching government 
responsibility for these Activities. The Service has retained the 
management responsibility for these Activities.

    Dated: May 18, 2004.
Rowan W. Gould,
Regional Director, Alaska Region, Fish and Wildlife Service.
[FR Doc. 04-15704 Filed 7-9-04; 8:45 am]
BILLING CODE 4310-JK-U