[Federal Register Volume 73, Number 204 (Tuesday, October 21, 2008)]
[Notices]
[Pages 62463-62465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25066]



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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AC45


Stewardship Contracting, FSH 2409.19, Chapter 60

AGENCY: Forest Service, USDA.

ACTION: Notice of issuance of final directive; response to comment.

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SUMMARY: The Forest Service is issuing a final directive to Forest 
Service Handbook 2409.19, chapter 60, Stewardship Contracting. The 
directive provides direction to implement the provisions as authorized 
in the Tribal Forest Protection Act (TFPA) of 2004 (25 U.S.C. 3115a). 
On December 26, 2006, the Forest Service published in the Federal 
Register for public notice and comments an interim directive regarding 
guidance for, TFPA proposals. The agency considered all the comments 
and made a number of changes to the final directive in response.

DATES: Final directive 2409.19--60 is effective October 21, 2008.

ADDRESSES: The full text of the final directive is available 
electronically on the World Wide Web at http://www.fs.fed.us/im/directives. The administrative record for this final directive is 
available for inspection and copying at the office of the Director, 
Office of Tribal Relations, USDA Forest Service, 2nd Floor Central, 
Sidney R. Yates Federal Building, 1400 Independence Avenue, SW., 
Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday, except 
holidays. Those wishing to inspect the administrative record are 
encouraged to call Marsha Butterfield at (202) 205-4095 beforehand to 
facilitate access to the building.

FOR FURTHER INFORMATION CONTACT: Marsha Butterfield, Office of Tribal 
Relations, USDA Forest Service, (202) 205-4095.

SUPPLEMENTARY INFORMATION: The Forest Service Directive System consists 
of the Forest Service Manual (FSM) and the Forest Service Handbook 
(FSH), which contain the Agency's policies, practices, and procedures 
and serve as the primary basis for the internal management and control 
of programs and administrative direction to Forest Service employees. 
The directives for all agency programs are set out on the World Wide 
Web/Internet at http://www.fs.fed.us/im/directives.
    The FSM contains legal authorities, objectives, policies, 
responsibilities, instructions, and guidance needed on a continuing 
basis by Forest Service line officers and primary staff to plan and 
execute programs and activities, while the FSH is the principal source 
of specialized guidance and instruction for carrying out the policies, 
objectives, and responsibilities contained in the FSM.
    On December 26, 2006, the Forest Service published an interim 
directive in the Federal Register (71 FR 247) for 60-day public notice 
and comment. The Forest Service received six letters in response to the 
interim directive. Comments received were from Tribes or Tribal 
Organizations. A summary of comments received and the agency's 
responses follow:

General Comments

    The Forest Service appreciates the comments that were provided. 
Generally, respondents like and support the policy. Respondents 
strongly supported the availability of sole source contracting 
authorities and the section giving clear direction that the agency may 
provide advice and information to Indian tribes in advance of tribes' 
submitting TFPA proposals. Several respondents felt partnerships and 
trust obligations seem to be what is missing from the draft policy. 
Forest Service Manual 1563.04g (FSM) directs Forest Supervisors to seek 
opportunities to develop partnerships with Tribes under all appropriate 
Forest Service authorities.
    Comment. Several respondents felt the policy was difficult to 
figure out without the benefit and context of the surrounding 
provisions into which the new provisions are being inserted.
    Response. The complete text of chapter 60, FSH 2409.19 was 
available for review. The agency did not receive any requests for the 
complete text.

Comments on Specific Sections of the TFPA

    Section 60.3 Policy. This section adds new direction for 
preliminary collaboration and evaluations for a potential Tribal Forest 
Protection Act project.
    Comment. Respondents strongly supported clear direction that the 
Forest Service may provide advice and information to Indian Tribes in 
developing TFPA proposals.
    Response. The agency is committed to implementation of the TFPA and 
providing assistance and advice in potential TFPA proposals.
    Section 60.4 Responsibility. This section updates responsibilities 
of the Regional Foresters, Forest Supervisors, District Rangers, 
Director of Forest Management, and Director of Office of Tribal 
Relations.
    Comment. Respondents appreciated the policy including agency 
consultation with a potential applicant tribe before it develops and 
submits its application.
    Response. The agency is committed to the implementation of the TFPA 
and consultation with Tribes.
    Section 60.5 Definitions. This section adds definitions for 
Bordering on and Adjacent to, Indian Forest Land and Rangeland, Indian 
Tribe, National Forest System Lands, Public Lands, Secretary and Tribal 
Community.
    Comment. Concerns were expressed regarding the word ``proximity'' 
used in the definition of ``bordering on or adjacent to.'' There was 
concern that it may be too restrictive for appropriate implementation 
of the TFPA. Respondents said there must be flexibility in the 
definition so that TFPA projects are not rejected based upon narrow 
interpretations because of the use of the word ``proximity.'' The word 
``proximity'' is not used in the Act.
    Response. The definition for bordering on or adjacent to has been 
removed from the final directive. Section 60.4 Responsibilities 
provides direction on determination of what borders on or is adjacent 
to after consultation with the Indian tribe.
    Section 61.18 Response to Tribal Requests Made Under the Tribal 
Forest Protection Act. This section provides direction for handling 
responses to tribal requests made under the Tribal Forest Protection 
Act.
    Comment. Respondents were concerned that other options available 
for implementing TFPA projects, in addition to stewardship contracting, 
need to be included along with stewardship contracting. Respondents 
requested that ``or other instrument'' be added after ``stewardship 
contracting'' throughout the policy. Respondents said stewardship 
contracting will most likely not be the only means by which TFPA 
projects will be carried out.
    Response. The words ``or other instrument'' was added after 
``stewardship contracting'' where applicable throughout the policy.
    Section 61.7 Notice of Denial Under the Tribal Forest Protection 
Act. This section provides direction for notice of denial for projects 
submitted under the Tribal Forest Protection Act.
    Comment. Respondents requested ``stewardship'' be removed from 
Section 61.7--Notice of Denial. Respondents expressed that Tribes enter 
into agreements other than just stewardship contracts and agreements.
    Response. The word stewardship was removed from the text.

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    Comment. Respondents wanted ``pursuant to the TFPA'' added after 
``with the FS'' to clarify the point.
    Response. ``Pursuant to the TFPA'' was added after ``proposal'' for 
clarification.
    Section 62.14 Contract Type Under the Tribal Forest Protection Act.
    Comment. Respondents strongly supported the availability of sole 
source contracting authorities.
    Response. Under the Tribal Forest Protection Act of 2004 the Forest 
Service has the authority to consider a request made by a tribe to 
protect Indian forest or range lands by resource type projects on 
adjacent Federal lands. If the proposal holds merit, the Forest Service 
may award without further competition as long as the procedures under 
this authority are used.

General Response

    Developing and sustaining partnerships is a fundamental action 
which facilitates the fulfillment of the Federal trust responsibility. 
The trust responsibility is a legally enforceable obligation, a duty, 
on the part of the U.S. Government to protect the rights of Federally 
Recognized Indian Tribes and Alaska Natives.
    The United States Government has a unique legal and governmental 
relationship with American Indian tribes as set forth in the U.S. 
Constitution, treaties, statutes and Federal court decisions. The 
Forest Service shares in the Federal government's overall trust 
responsibility to Indian tribes. The primary step in fulfilling agency 
responsibilities is for line officers to contact Indian tribal 
governments through their elected officials and consult with them on 
proposed actions that may have an effect on tribal rights, resources or 
general interests.

Regulatory Certifications

Regulatory Impact

    This final directive has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. This final 
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 final directive would not interfere with an action taken or 
planned by another agency, nor raise new legal or policy issues. 
Finally, this final 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 final 
directive is not subject to OMB review under Executive Order 12866.

Proper Consideration of Small Entities

    This final 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 final 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 Servicewide administrative procedures, program processes, or 
instructions'' that do not significantly affect the quality of the 
human environment. This final 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 final directive is limited to establishment of administrative 
procedures to respond to American Indian and Alaska Native 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 final 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 final 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 final 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 final 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 final directive on Tribal governments 
and the private sector. This final 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 final directive has been reviewed under Executive Order 12988, 
Civil Justice Reform. After adoption of this final 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 final 
directive; and (3) this final directive would not require the use of 
administrative proceedings before parties could file suit in court 
challenging its provisions.

Conclusion

    This final directive implements the provisions of the Tribal Forest 
Protection Act which provides a tool for Indian tribes, as defined by 
the Act, to propose work and enter into contracts and agreements with 
the Forest Service (FS) or Bureau of Land Management (BLM) to restore 
land under the

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jurisdiction of either agency, or to reduce threats, including from 
fire or disease, on FS or BLM-administered lands adjacent to or 
bordering on Indian trust land and Indian communities.
    The full text of this handbook is available on the World Wide Web 
at http://www.fs.fed.us./im/directives. Single paper copies are 
available upon request from the address and telephone numbers listed 
earlier in this notice as well as from the nearest regional office, the 
location of which are also available on the Washington Office 
headquarters homepage on the World Wide Web at http://www.fs.fed.us.

    Dated: October 9, 2008.
Charles Myers,
Associate Deputy Chief, National Forest System.
[FR Doc. E8-25066 Filed 10-17-08; 11:15 am]
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