[Federal Register Volume 80, Number 142 (Friday, July 24, 2015)]
[Notices]
[Pages 44019-44023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17911]


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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AD15


Proposed Directives on American Indian and Alaska Native 
Relations Forest Service Manual 1500, Chapter 1560 and Forest Service 
Handbook 1509.13, Chapter 10

AGENCY: Forest Service, USDA.

ACTION: Notice of Proposed Directives; request for comment.

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SUMMARY: The Forest Service proposes to revise its internal Agency 
directives for American Indian and Alaska Native Relations to establish 
better direction for the Agency to work effectively with Indian tribes. 
Specifically, the proposed directives modify Forest Service staff roles 
and responsibilities, establish staff training standards, describe 
authorities for working with Indian tribes, delineate consultation 
procedures, explain the historical trust and treaty responsibility 
underlying the government-to-government relationship, and outline 
Dispute Resolution options within the Forest Service. The proposed 
directives cross reference to other Forest Service directives, 
including those detailing aspects of Business Operations, National 
Forest System Management, State and Private Forestry, and Research and 
Development. The proposed directives were reorganized and revised to be 
consistent with the 2013 U.S. Department of Agriculture (USDA) 
Departmental Regulation No. 1350-002 ``Tribal Consultation, 
Coordination, and Collaboration''; Report to the Secretary, USDA Policy 
and Procedures Review and Recommendations: Indian Sacred Sites (2012), 
legislation (including the Culture and Heritage Cooperation Authority 
provisions of the Food, Conservation, and Energy Act of 2008 [Public 
Law 110-246; the Farm Bill]), and input from Forest Service Field 
staff. The directives were last revised in 2004, with an Interim 
Directive issued in 2012. These proposed directives have tribal 
implications as defined by Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' The 120-day consultation 
with Tribes was conducted from June 6, 2013, to November 27, 2013, 
consistent with the Executive Order and the current Forest Service 
directives. Tribal consultation

[[Page 44020]]

continued after October 6, 2013, and will end at the same time as the 
public comment period. All comments received so far have been 
supportive of the revised directives. Tribal consultation and public 
comment are invited and will be considered by the Agency in determining 
the scope of the final directives.

DATES: Comments must be received in writing by September 22, 2015.

ADDRESSES: Send comments electronically by following the instructions 
at the Federal eRulemaking portal at http://www.regulations.gov. 
Comments also may be submitted by email to [email protected] or by mail to 
Tribal Relations Directives Comments, USDA Forest Service, Attn: Fred 
Clark--OTR, 201 14th Street SW., Washington, DC 20024. Hand-delivered 
comments will not be accepted, and receipt of comments cannot be 
confirmed. If comments are sent electronically, do not send duplicate 
comments by mail. Please confine comments to issues pertinent to the 
proposed directives. Explain the reasons for any recommended changes. 
Where possible, refer to the specific wording being addressed. All 
comments, including names and addresses when provided, will be placed 
in the record and will be available for public inspection and copying. 
The public may inspect the comments received at 201 14th Street SW., 
Washington, DC between 8:30 a.m. and 4:30 p.m., Eastern Standard Time, 
Monday through Friday. Those wishing to inspect comments are encouraged 
to call ahead at 202-205-1514 to facilitate entry to the building.

FOR FURTHER INFORMATION CONTACT: Fred Clark, Director of the Office of 
Tribal Relations, 202-205-1514. Individuals who use telecommunication 
devices for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., 
Eastern Standard Time, Monday through Friday.
    Additional information concerning these documents may be obtained 
on the Internet at http://www.fs.fed.us/spf/tribalrelations/bundledconsultation.shtml.

SUPPLEMENTARY INFORMATION: 

Background and Need for the Proposed Directives

    The Forest Service and federally recognized American Indian and 
Alaska Native tribes (Indian tribes) share the value of restoring, 
sustaining, and enhancing the nation's forests and grasslands, 
providing and sustaining benefits to the American people. In many 
instances, Indian tribes continue their traditional uses of the 
nation's forests and grasslands to sustain their cultural identity and 
continuity. The Government's trust responsibilities and treaty 
obligations make it essential that the Forest Service engages with 
Indian tribes in a timely and meaningful consultation on policies that 
may affect one or more Indian tribes. However, consultation alone is 
not sufficient. In addition to consultation, coordination and 
collaboration together lead to information exchange, common 
understanding, informed decision-making, and mutual benefit. The 
importance of consultation and coordination with Indian tribes was 
affirmed through Presidential Memoranda in 1994, 2004, and 2009, in 
Executive Orders in 1998 and 2000, as well as in numerous statutes and 
policies. The value of collaboration is fully recognized within the 
Forest Service for all of its constituents, including Indian tribes. 
The proposed directives would implement a tribal relations framework 
that fosters more effective and efficient consultation with Indian 
tribes and Alaska Native Corporations, and better collaboration with 
individual American Indians and Alaska Natives, across the Agency.
    Every part of the Forest Service involves Tribal relations; every 
Forest Service employee shares in that responsibility. The proposed 
directives will help Forest Service employees improve their 
understanding of the requirements, complexities, and opportunities of 
Tribal relations. The purpose in revising the directives is to affect 
changes in behavior that will lead to enhanced relationships with 
Indian tribes, which in turn will enable the Forest Service to better 
accomplish its mission. The proposed directives will, therefore, result 
in more effective and efficient protection of tribal rights and 
interests, as well as better information for the Agency in its 
planning, decision making, and program delivery.
    Finally, the proposed directives will ensure the Forest Service is 
in compliance with and is held accountable to several recently enacted 
authorities, policies, and agreements. Authorities such as the Tribal 
Forest Protection Act of 2004 (Public Law 108-278) and the Food, 
Conservation, and Energy Act of 2008 (Pub. L. 110-246; the Farm Bill) 
include provisions that will be incorporated into the directives. In 
addition, the USDA promulgated a new regulation (DR1350-002, January 
18, 2013) on Tribal Consultation, Coordination, and Collaboration, with 
which the Forest Service must comply. The Secretary has also directed 
the USDA to implement the recommendations from the 2012 Report to the 
Secretary, USDA Policy and Procedures Review and Recommendations: 
Indian Sacred Sites. The recommendations require updates to the Forest 
Service directives. Finally, the Departments of Defense, Interior, 
Agriculture, and Energy, and the Advisory Council on Historic 
Preservation entered into a Memorandum of Understanding (MOU) on 
December 6, 2012, to improve the protection of and tribal access to 
Indian sacred sites through enhanced and improved interdepartmental 
coordination and collaboration. Elements of the Action Plan 
implementing that MOU which pertain to the Forest Service will be 
reflected in the revised directives.

Summary of Proposed Changes

    Under the proposed directives:
     Forest Service staff roles and responsibilities would be 
modified to emphasize working with Indian tribes. Delegation of the 
authority to serve as a Consultation Official passes through Line 
Officers, and the Forest Service Chief would be able to delegate 
consultation authority to non-line staff on a case-by-case basis as 
``Chief's representatives''.
     The requirement for a minimum 120-day tribal consultation 
period for national consultations from the Interim Directive on Tribal 
Consultation would continue.
     Guidance would be provided on who in the Forest Service 
may consult, processes, steps, and monitoring and evaluation measures 
to increase accountability.
     Authorities would be provided regarding State and Private 
Forestry, National Forest System, Research, and Business Operations 
opportunities to enable Forest Service staff to partner and contract 
with Indian tribes for mutual interest and/or benefit.
     Tribal history and sovereignty and the Forest Service 
treaty and trust responsibilities would be clarified.
     Training goals and core competencies would be established 
based on the 2013 USDA Departmental Regulation on Consultation training 
and the Sacred Sites Report to guide future training.
     Key definitions would be provided for applying the Tribal 
Relations directives and fulfilling the Federal trust and treaty 
resposibility to Indian tribes.
     A Dispute Resolution option for Indian tribes would be 
explained.
     New sections on closures, forest products, and 
confidentiality would be added in accordance with the Cultural

[[Page 44021]]

Heritage Cooperation Act (25 U.S.C. 3054-3056).
     A new section including policy on reburial of tribal 
remains on National Forest System lands would provide guidance.
     Cross-referencing to other Forest Service directives for 
topic-specific guidance would be added to faciliate use of the 
directives.

Section-by-Section Analysis

1. Forest Service Manual 1560

1563--Tribal Relations
    This proposed section outlines the Forest Service Tribal Relations 
policy generally. First, it defines Indian tribes per 25 U.S.C. 479a. 
It also emphasizes that Tribal Relations should go beyond consultation 
to include coordination and collaboration, recognizing the value of 
collaboration. The section encourages engagement with Alaska Native 
Corporations, non-federally recognized Tribes, Native Hawaiians, along 
with American Indian and Alaska Native individuals, communities, 
intertribal organizations, enterprises, and institutions.
1563.01--Authorities
    This proposed section emphasizes developing capacity of Agency 
personnel in fostering effective partnerships and protecting tribal 
rights, and seeking opportunities to enter into contracts, grants, and 
agreements. Furthermore, it encourages tribal participation in 
contracting and agreements as part of the Agency's trust 
responsibility.
    The proposed subsection on the U.S. constitution was revised to 
reflect the correct Articles corresponding to Indian tribes.
    The proposed subsection on treaty rights and the Federal trust 
responsibility was expanded to include specific citation of all 
relevant authorities.
    The proposed subsection on consultation and coordination listed 
additional authorities, including for cooperative land use planning on 
National Forest System lands. The subsection mandates consultation with 
Alaska Native Corporations under PL 108-199 and PL 108-177. It also 
emphasizes consultation with Alaska Native Corporations under EO 13175, 
the Federal Subsistence Board's Tribal Consultation Policy, and the 
Draft Alaska Native Claims Settlement Act Consultation Policy.
    The proposed subsection on cultural resources was expanded to 
specifically include consideration of Indian sacred sites per the 2012 
Report to the Secretary, USDA Policy and Procedures Review and 
Recommendations: Indian Sacred Sites. It also identifies the Forest 
Service Heritage Program as lead staff for cultural resources, and the 
Tribal Relations Program as lead staff for sacred sites, while 
recognizing overlap between the two categories. It also recognizes that 
actions protective of cultural resources, watersheds, animal or 
biological communities, and other natural resources that also protect 
an American Indian or Alaska Native sacred site may serve a secular 
purpose, as well as accommodate Tribal religion.
    Proposed subsections on National Forest System authorities were 
added, including one on the Tribal Forest Protection Act of 2004 (25 
U.S.C. 3115a) and the Cultural and Heritage Cooperation Authority (25 
U.S.C. 32A).
    The proposed subsection on Business Operations, Grants, and 
Agreements, Contracts, and Procurement with Indian tribes was 
significantly enhanced to include partnering authorities from the 
Forest Service Deputy Areas including the National Forest System, State 
and Private Forestry, and Research and Development. For example, it 
lists additional authorities for research support, emphasizing 
opportunities for Joint Venture Agreements with any entity or 
individual. In addition, numerous additional authorities for support 
under State and Private Forestry programs were listed, including forest 
health, fire assistance, and law enforcement.
    A proposed subsection on the coordination of law enforcement with 
authorities for self-determination and self-governance was added.
    The proposed subsection for supporting Tribal Colleges and 
Universities was enhanced and added to as well.
1563.02--Objectives
    This proposed section significantly expands the objectives of the 
Forest Service in meeting its trust responsibility. It also adds 
support for the UN Declaration on the Rights of Indigenous Peoples.
1563.03--Policy
    This proposed section expands Forest Service policy to consult with 
Indian tribes in a meaningful way, adding emphasis on tribal 
sovereignty. It also increases employee accountability through detailed 
reporting processes, up-front statements of potential impact on agency 
activities and proposed policies on Indian tribes (in ``Tribal Summary 
Impact Statements''), and certifications of compliance. The section 
recommends the use of negotiated rulemaking, mandates Departmental 
training in tribal relations for all Forest Service staff, and 
emphasizes the importance of keeping tribal culturally-sensitive and 
proprietary information confidential, especially regarding repatriation 
and reburial.
1563.04--Responsibility
    Proposed section 1563.04a expands reserved authority of the Forest 
Service Chief to delegate consultation authority.
    Proposed section 1563.04b expands responsibilities of all Deputy 
Chiefs to implement the Tribal Relations Program.
    Proposed section 1563.04c expands responsibilities and authorities 
of the Director of the Washington Office of Tribal Relations.
    Proposed section 1563.04d expands responsibilities of the Regional 
Tribal Relations Program Managers to include staff training at the 
regional and local level, annual reporting, and periodic compliance 
review.
    Proposed section 1563.04j expands responsibilities of Forest/
Grasslands Supervisors in fulfilling the trust responsibility mandate 
and consultation reporting.
    Proposed section 1563.04k expands responsibilities of District 
Rangers in fulfilling the trust responsibility and consultation 
mandate.
    Proposed section 1563.04j is new, expanding responsibilities of 
Forest/Grasslands Tribal Liaisons in fulfilling the trust 
responsibility and consultation mandate, including accountability 
(maintenance of consultation data).
    Proposed section 1563.04m is new, expanding responsibilities of 
Research and Development Tribal Liaisons in fulfilling the trust 
responsibility and consultation mandate related to research programs 
and activities, tribal data requests, traditional knowledge, and 
reporting.
    The final proposed section 1563.04n is new, expanding 
responsibilities of State and Private Forestry Tribal Liaisons in 
fulfilling the trust responsibility and consultation mandate related to 
research programs and activities, tribal data requests, traditional 
knowledge, and reporting.
1563.05--Definitions
    This proposed section includes definitions of terms used in the 
proposed directive. Several of the material definitions follow.
    Indian Tribe is defined as any Indian or Alaska Native tribe, band, 
nation, pueblo, village, or other community, the name of which is 
included on a list published by the Secretary of the Interior pursuant 
to section 104 of the

[[Page 44022]]

Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).
    Alaska Native Corporations are described as follows: created under 
the Alaska Native Claims Settlement Act, these corporations manage 
lands and resources for Alaska Natives. While not federally-recognized 
Indian tribes, consultation is required with these organizations in 
some instances as if they were Indian tribes pursuant to Public Law 
(Pub. L.) 108-199 and 108-477 directing all Federal agencies to consult 
with Alaska Native Corporations on the same basis as Indian tribes 
under E.O. 13175. This type of consultation is considered government-
to-corporation, rather than government-to-government.
    Trust responsibility is explained as arising from the United 
States' unique legal and political relationship with Indian tribes. It 
derives from the Federal Government's consistent promise, in the 
treaties that it signed, to protect the safety and well-being of the 
Indian tribes and tribal members in return for their willingness to 
give up their lands.
    Government-to-Government Consultation, or ``Tribal Consultation,'' 
is the timely, meaningful, and substantive dialogue between Forest 
Service Officials who have delegated authority to consult, and the 
official leadership of federally recognized Indian tribes, or their 
designated representative(s), pertaining to decisions or actions that 
may have tribal implications.
    As defined per Executive Order 13007, a sacred site is any 
specific, discrete, narrowly delineated location on Federal land that 
is identified by an Indian tribe, or Indian individual determined to be 
an appropriately authoritative representative of an Indian religion, as 
sacred by virtue of its established religious significance to, or 
ceremonial use by, an Indian religion; provided that the tribe or 
appropriately authoritative representative of an Indian religion has 
informed the Agency of the existence of such a site.
1563.10--Consultation With Indian Tribes and Alaska Native Corporations
    This proposed section simplifies steps in the consultation process 
generally, with details outlined in the following sections.
1563.11--General Consultation Requirements
    This proposed section clarifies protocols for meaningful 
consultation. It also expands and amends the table of authorities for 
consultation and coordination.
1563.12--Consultation, Monitoring, and Evaluation--Consulting Officials
    This proposed section substantially clarifies formal roles and 
responsibilities in consultation while emphasizing the value of 
informal staff communication in effective tribal relations.
1563.13--Consultation Timelines
    This proposed section substantially clarifies timelines for 
meaningful consultation.
1563.14--Consultation, Monitoring, and Evaluation
    This proposed section mandates accountability through use and 
management of a consultation database.
1563.15--Additional Consultation Considerations
    This proposed section addresses additional issues such as where to 
find additional guidance, compensation, and emergency situations.
1563.2--Dispute Resolution
    This proposed section expands on dispute resolution and appeal 
procedures for Indian tribes.
1563.3--Reburial of American Indian and Alaska Native Ancestral Remains 
and Cultural Items
    This proposed section expands guidance on repatriation and 
reburials, including general considerations as well as reviews.
1563.4--Closures for Traditional and Cultural Purposes
    This proposed new section covers closures for temporary and 
cultural purposes per 25 U.S.C. 32A Sec.  3054.
1563.5--Forest Products for Traditional and Cultural Purposes
    This proposed new section covers forest products for traditional 
and cultural purposes per 25 U.S.C. 32A Sec.  3055.
1563.6--Prohibition on Disclosure
    This proposed new section covers prohibition against disclosure per 
25 U.S.C. 32A Sec.  3056.
1563.7--Information and Technology Sharing
    This proposed new section emphasizes that the maintenance of 
traditional gathering, hunting, fishing, and other activities; and use 
of certain landscapes, sites, and locations that contain important 
natural and cultural resources should be considered in Forest Service 
land management planning and research activities. It also recommends 
that the Forest Service seek to identify traditional knowledge that 
tribal citizens hold regarding ecosystems that may be helpful in 
meeting management objectives of both the Forest Service and Tribes.
1563.8--References
    This proposed new section contains further explanatory information 
regarding authorities identified in section 1563.01--Authorities. 
Overall, it elaborates on treaty rights and the trust responsibility; 
cooperative land management and planning with Indian tribes; 
subsistence rights; tribal cultural resources and sacred sites within 
the National Forest System, including reburial; the Tribal Forest 
Protection Act; the Cultural and Heritage Cooperation Authority; 
grants, agreements, and contracts with Tribes across all Deputy areas; 
coordination of law enforcement with Tribes; and support of and 
engagement with Tribal Colleges and Universities.

2. Forest Service Handbook 1509.13

10.01--Authorities
    This proposed section refers the reader to FSM 1563 for relevant 
laws, Executive Orders, and regulations that govern Federal agencies' 
relationship with Indian tribes.
11--Consultation With Tribes
    This section expands on consultation roles and responsibilities, 
timelines, and processes while also encouraging collaboration prior to 
or concurrent with formal consultation.
    Proposed section 11.1 mandates consultation with Alaska Native 
Corporations in Alaska and clarifies consultation representatives.
    Proposed section 11.2 clarifies consultation timelines, including 
the fact that tribal consultation for National policies includes a 
minimum of 120 days.
    Proposed section 11.3 substantially expands and clarifies 
consultation process (type, modes, leveraging meetings) and steps for 
establishing consultation protocol and procedure with Indian tribes.
    Proposed section 11.5 outlines monitoring and evaluation of 
consultation, adding responsibilities for reporting to include 
maintenance of a consultation database, outcomes reporting, and 
compliance monitoring. It further requires that consultation input and 
outcomes be addressed in resulting policy, plan, project, or action. 
Finally, it adds additional responsibilities for monitoring and 
evaluation to include sustainability of

[[Page 44023]]

cultural resources and sacred sites, successes and additional 
opportunities for partnerships, socio-economic impacts, and customer 
(tribal) satisfaction.
12--Compensation
    This proposed section adds additional funding authorities for 
compensation for consultation, historic preservation.
13--Training
    This proposed section encourages mandated training, including 
alignment with recommendations in the 2012 Report to the Secretary, 
USDA Policy and Procedures 

Review and Recommendations: Indian Sacred Sites

13.3--Core Competencies
    This proposed section establishes core competencies in Tribal 
relations.
14--Exhibits
    This proposed section provide copies of additional authorities for 
management of Indian sacred sites.

Regulatory Certifications

Environmental Impact

    These proposed directives would establish direction for Forest 
Service staff in working with Indian tribes and American Indian and 
Alaska Native individuals. Section 31.1b of Forest Service Handbook 
1909.15 (57 FR 43180, September 18, 1992) excludes from documentation 
in an environmental assessment or environmental impact statement rules, 
regulations, or policies to establish service-wide administrative 
procedures, program processes, or instructions. The Agency's assessment 
for these proposed directives falls within this category of actions and 
that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or environmental impact 
statement.

Regulatory Impact

    These proposed directives have been reviewed under USDA procedures 
and Executive Order 12866, Regulatory Planning and Review. It has been 
determined that this is not a significant action. These proposed 
directives will 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. 
These proposed directives would not interfere with an action taken or 
planned by another agency nor raise new legal or policy issues. 
Finally, these proposed directives would not alter the budgetary impact 
of entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients of such programs.
    Moreover, these proposed directives have been considered in light 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has 
been determined that these proposed directives would not have a 
significant economic impact on a substantial number of small entities 
as defined by the act because they will not impose recordkeeping 
requirements on them; it would not affect their competitive position in 
relation to large entities; and it would not affect their cash flow, 
liquidity, or ability to remain in the market.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Agency has considered these proposed directives under the 
requirements of Executive Order 13132, Federalism, and has made an 
assessment that these proposed directives conform with the federalism 
principles set out in this Executive Order; would not impose any 
compliance costs on the States; and would not have substantial direct 
effects on the States or the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
Agency has determined that no further assessment of federalism 
implications is necessary at this time.
    These proposed directives have tribal implications as defined by 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' and the 120-day consultation with Indian tribes 
and Alaska Native Corporations was conducted from June 6, 2013 to 
October 6, 2013, as required.

No Takings Implications

    These proposed directives have 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 these proposed 
directives do not pose the risk of a taking of Constitutionally 
protected private property.

Civil Justice Reform

    These proposed directives have been reviewed under Executive Order 
12988, Civil Justice Reform. If these proposed directives were adopted, 
(1) all State and local laws and regulations that are in conflict with 
these proposed directives or which would impede its full implementation 
would be preempted; (2) no retroactive effect would be given to these 
proposed directives; and (3) it would not require administrative 
proceedings before parties may file suit in court challenging its 
provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Agency has assessed the effects of these proposed directives 
on State, local, and Indian tribal governments and the private sector. 
These proposed directives would not compel the expenditure of $100 
million or more by any State, local, or Indian tribal government or 
anyone in the private sector. Therefore, a statement under section 202 
of the act is not required.

Energy Effects

    These proposed directives have been reviewed under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. It has been determined that these 
proposed directives do not constitute a significant energy action as 
defined in the Executive Order.

Controlling Paperwork Burdens on the Public

    These proposed directives do not contain any additional 
recordkeeping or reporting requirements or other information collection 
requirements as defined in 5 CFR part 1320 that are not already 
required by law or not already approved for use. Accordingly, the 
review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) and its implementing regulations at 5 CFR part 1320 do 
not apply.

    Dated: July 6, 2015.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2015-17911 Filed 7-23-15; 8:45 am]
 BILLING CODE 3411-15-P