[Federal Register: December 26, 2006 (Volume 71, Number 247)]
[Notices]
[Page 77368-77369]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de06-28]
[[Page 77368]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC45
Forest Service Interim Guidelines for Tribal Forest Protection
Act
AGENCY: Forest Service, USDA.
ACTION: Notice; request for comment.
-----------------------------------------------------------------------
SUMMARY: On December 13, 2005, the Forest Service issued an interim
directive to provide guidance for Tribal Forest Protection Act (TFPA)
proposals. This interim directive provides internal administrative
direction to guide Forest Service employees in planning, implementing,
and monitoring TFPA proposals. The interim directive is issued to
Forest Service Handbook (FSH) 2409.19, Renewable Resources Handbook,
Chapter 60, Stewardship Contracting, as Interim Directive No. 2409.19-
2005-2 and can be found at http://www.fs.fed.us/spf/tribalrelations/.
This direction was developed to implement the provisions as authorized
in Public Law 108-278, Tribal Forest Protection Act. The agency is
requesting comment on this interim directive to ensure that the public
has the opportunity to comment on the implementation of this new
authority. The public's comments will be considered prior to
development of final agency policy.
DATES: Public input must be received by February 26, 2007.
ADDRESSES: Written comments should be addressed to: USDA Forest
Service, Office of Tribal Relations, 1400 Independence Avenue, SW.,
Mail Stop Code 1109, Washington, DC 20250-1109. Public input on this
interim directive may also be submitted via facsimile to (202) 205-1773
or by e-mail to tribal_relations@fs.fed.us. The agency cannot confirm
receipt of comments sent via facsimile or e-mail. All comments,
including names and addresses when provided, are placed in the record
and are available for public inspection and copying. The public may
inspect comments during regular business hours (8:30 a.m. to 4 p.m.
Monday through Friday, except holidays) at the USDA Forest Service
Office of Tribal Relations, 2nd Floor Central, Sidney R. Yates
Building, 201 14th Street, SW., Washington, DC. Visitors are encouraged
to call ahead to (202) 205-1514 to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Marsha Butterfield, USDA Forest
Service, Office of Tribal Relations, (202) 205-4095.
SUPPLEMENTARY INFORMATION: The Tribal Forest Protection Act of 2004
(TFPA) was intended to strengthen Forest Service (FS) and Bureau of
Land Management (BLM) agency relationships with federally recognized
tribes and to restore forested lands. The TFPA authorizes the
Secretaries of Interior and Agriculture to enter into contracts and
agreements with tribes to carry out certain projects on FS and BLM-
administered lands that will reduce threats to adjacent or bordering
tribal lands. A copy of the TFPA and other information on the interim
directive can be found at: http://www.fs.fed.us/spf/tribalrelations.
Background
The TFPA was passed in July 2004 in response to devastating
wildfires that crossed from Federal onto tribal lands the prior summer.
The TFPA provides a tool for tribes to propose work and enter into
contracts and agreements with the FS or BLM to reduce threats on FS or
BLM-administered lands adjacent to or bordering on Indian trust land
and Indian communities. The Forest Service and BLM coordinated on
development of policy to implement the TFPA.
Forest Service policy to implement the TFPA is included with
Stewardship Contracting guidance in Forest Service Handbook (FSH)
2409.19, Chapter 60. Draft policy was sent to Regional Foresters for
tribal consultation and a comment period from April 25, 2005, to June
25, 2005. Comments were considered during development of the interim
directive.
Description of Interim Directive
Key points of the policy include:
1. Tribal proposals must focus on National Forest System (NFS)
lands that: (a) Border on or are adjacent to tribal forest lands; and
(b) pose a fire, disease, or other threat to the Indian trust land or
community, or need restoration; and (c) are not subject to some other
conflicting agreement or contract; and (d) involve a feature or
circumstance unique to the proposing (i.e. treaty rights, cultural,
archaeological, historical, or biological).
2. The Forest Service may utilize an array of legal instruments to
enter into contracts and agreements with tribes in response to their
proposals, including an emphasis on stewardship contracting.
3. To qualify, the Indian land must: (a) Border on or be adjacent
to NFS lands; and (b) be in trust or restricted status; and (c) be
forested or have grass, brush, or other vegetative cover; and (d) if
burned over land, be capable of regenerating vegetative cover.
4. Before initiating a project proposal, tribes are encouraged to
meet with Forest Service personnel and other interested stakeholders
prior to submitting formal requests to the Forest Supervisor or
District Ranger.
5. Within 120 days of a tribe submitting a request, the Forest
Service will issue a public notice indicating: (a) Initiation of any
necessary environmental review, (b) potential for entering into an
agreement or contract with the tribe, or (c) notify the tribe of the
denial of their proposal.
6. When the Forest Service evaluates and considers entering into
agreements or contracts with tribes under the TFPA, the FS may use a
best value basis and give specific consideration to tribally related
factors, including: status of the Indian tribe as an Indian tribe;
trust status of the Indian tribe's forest land or rangeland; treaty
rights or other reserved rights of the Indian tribe relating to the
land subject to the proposal; cultural, traditional, historic
affiliations; indigenous knowledge and skills of members of the Indian
tribe; landscape and vegetation features; coordination between the
tribe and the agencies; and tribal access to the land subject to the
proposal.
7. If the Forest Service denies a tribe's proposal to enter into an
agreement or contract, the agency will issue a notice of denial to the
tribe that identifies specific factors in, and reasons for, the denial,
identifies potential corrective courses of action when appropriate, and
provides for consultation with the tribe on how to protect the Indian
trust land and tribal interests on the Forest Service land. Before a
denial is issued, agency personnel may work with the tribes to attempt
to make the proposal acceptable.
Regulatory Certifications
Regulatory Impact
This interim directive has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. This interim
directive would not have an annual effect of $100 million or more on
the economy, nor adversely affect productivity, competition, jobs, the
environment, public health or safety, nor State or local Governments.
This interim directive would not interfere with an action taken or
planned by another agency, nor raise new legal or policy issues.
Finally, this interim directive would not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients of such programs. Accordingly, this interim
[[Page 77369]]
directive is not subject to OMB review under Executive Order 12866.
Proper Consideration of Small Entities
This interim directive has been considered in light of Executive
Order 13272 regarding proper consideration of small entities and the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It
has been determined that this interim directive would not have a
significant economic impact on a substantial number of small entities
as defined by SBREFA.
Environmental Impact
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;
September 18, 1992) excludes from documentation in an environmental
assessment or impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes, or
instructions'' that do not significantly affect the quality of the
human environment. This interim directive sets forth administrative
procedures for implementation of the TFPA and, as such, has no direct
effect on Forest Service decisions for land management activities.
No Takings Implications
This interim directive is limited to establishment of
administrative procedures to respond to American Indian and Alaska
Natives proposed work projects to enter into contracts and/or
agreements with the Forest Service. Projects would conduct land
management activities on Forest Service and BLM lands adjacent to
Indian trust land and Indian communities.
This interim directive has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and it has been determined that the interim directive
does not pose the risk of a taking of private property.
Federalism
Executive Order 13132, Federalism, requires consultation with State
and local officials when planned regulations and other policies have
substantial direct effects on the States. This interim directive
establishes procedures for the TFPA which will be administered by the
Forest Service and implemented by participating Indian tribes.
Therefore, the agency has determined that there are no direct effects
on the States and no further assessment of federalism implications is
necessary.
Consultation and Coordination With Indian Tribal Governments
In accordance with Forest Service policy and Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, formal
consultation was conducted with Indian tribes on development of this
new policy in 2005. The draft TFPA policy was sent to regional FS
offices, where it was then sent to tribes in their respective regions
that have tribal land, rangeland, or tribal communities bordering on or
adjacent to NFS land, for consultation with those tribes. A 60-day
comment period was provided for the consultation and comment.
Energy Effects
This interim directive has been reviewed under Executive Order
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use. It has been determined that this proposed
guideline does not constitute a significant energy action as defined in
the Executive Order.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
which the President signed into law on March 22, 1995, the Department
has assessed the effects of this interim directive on Tribal
governments and the private sector. This interim directive does not
compel the expenditure of $100 million or more by any Tribal government
or anyone in the private sector. Therefore, a statement under section
202 of the Act is not required.
Civil Justice
This interim directive has been reviewed under Executive Order
12988, Civil Justice Reform. After adoption of this interim directive
as final, (1) all State and local laws and regulations that conflict
with this policy or that would impede full implementation of this
policy will be preempted (2) no retroactive effect would be given to
this interim directive; and (3) this interim directive would not
require the use of administrative proceedings before parties could file
suit in court challenging its provisions.
Dated: November 27, 2006.
Sally Collins,
Associate Chief, Forest Service.
[FR Doc. E6-22061 Filed 12-22-06; 8:45 am]
BILLING CODE 3410-11-P