[Federal Register Volume 71, Number 247 (Tuesday, December 26, 2006)]
[Notices]
[Pages 77368-77369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22061]



[[Page 77368]]

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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.

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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 [email protected]. 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]
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