[Federal Register Volume 81, Number 46 (Wednesday, March 9, 2016)]
[Notices]
[Pages 12447-12451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04804]
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AD15
Final 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 final directives.
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SUMMARY: The Forest Service has revised its internal Agency directives
for American Indian and Alaska Native Relations to update existing
direction for the Agency to work effectively with Indian tribes. The
directives were last revised in 2004, with an Interim Directive issued
in 2012. The final issuance of these directives, effective upon
publication, will provide consistent overall internal Forest Service
policy to: Explain the methods used to engage with tribes on a
government-to-government basis, describe the authorities for working
with tribes, delineate meaningful consultation procedures, and outline
dispute resolution options. The tribal and public comment period closed
concurrently on September 22, 2015. The Agency considered all comments
in developing these final directives.
DATES: These directives are issued March 9, 2016.
ADDRESSES: The Forest Service Manual and Handbook are available online
at http://www.fs.fed.us/spf/tribalrelations/. Single paper copies are
available by request to the Office of Tribal Relations, U.S. Forest
Service, at [email protected]. Additional information of how the Agency
considered public comment can be requested in writing to Office of
Tribal Relations, U.S. Forest Service, Sidney R. Yates Building, 201
14th Street SW., Washington, DC 20250-0003.
FOR FURTHER INFORMATION CONTACT: Fred Clark, Director, Office of Tribal
Relations, U.S. Forest Service, 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.
SUPPLEMENTARY INFORMATION:
1. Background and Need for the Final Directive
On January 18, 2013, the U.S. Department of Agriculture (USDA)
adopted Departmental Regulation No. 1350-002 on tribal consultation,
coordination, and collaboration. Departmental Regulations
institutionalize the broad programmatic direction for all USDA agencies
to develop and implement processes for tribal consultation,
coordination, and collaboration. This Departmental Regulation
explicitly holds the head of each USDA agency accountable for the
implementation of this policy. In March 2013, the Forest Service
(Agency) Office of Tribal Relations (OTR) began to review the Forest
Service manual and handbook to ensure it was consistent with the
Departmental Regulation as well as the 2012 Report to the Secretary,
USDA Policy and Procedures Review and Recommendations: Indian Sacred
Sites, and legislation (specifically the Culture and Heritage
Cooperation Authority provisions of the Food, Conservation, and Energy
Act of 2008 [Pub. L. 110-246; the Farm Bill]).
Upon reviewing these documents, it was necessary to amend the
Agency manual and handbook, and OTR began
[[Page 12448]]
to draft proposed directives which included tribal implications as
defined by Executive Order 13175, ``Consultation and Coordination with
Indian Tribal Governments.'' OTR began an initial 120-day consultation
with tribes on June 6, 2013, but extended the consultation period for
almost two years to thoroughly discuss the proposed directives in
various locations throughout the U.S. On July 24, 2015, the Forest
Service published the notice of proposed directives and request for
comment (80 FR 44019), and the comment period ended on September 22,
2015.
2. Content of Final Directives
The following is an overview of the content of the directives.
a. Forest Service Manual 1560
1563--Tribal Relations. This Forest Service Manual section outlines
the Forest Service Tribal Relations policy generally. It sets forth
direction 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 section provides information on
Constitutional Articles corresponding to Indian tribes, statutes (e.g.,
Tribal Forest Protection Act of 2004 [25 U.S.C. 3115a]), executive
orders, policies, Indian treaty rights, and provides context for the
Federal trust responsibility to tribes.
1563.02--Objectives. This section expands the objectives of the
Forest Service in meeting its trust responsibility and adds support for
the UN Declaration on the Rights of Indigenous Peoples.
1563.03--Policy. This section expands Agency policy to consult with
tribes in a meaningful way, document all consultation processes, and
keep confidential any information that is tribally sensitive or
proprietary.
1563.04--Responsibilities. This section outlines the
responsibilities in fulfilling the trust responsibility and
consultation mandate to the following Agency personnel: Chief, Deputy
Chiefs, Director of the Washington Office of Tribal Relations, Regional
Tribal Relations Program Managers, Forest/Grasslands Supervisors,
District Rangers, and all Tribal Liaisons within the Forest/Grassland,
Research and Development, and State and Private Forestry divisions.
1563.05--Definitions. This section provides definitions of the
terms commonly used to describe the Federal-Tribal relationship.
1563.10--Consultation with Indian Tribes and Alaska Native
Corporations. This section outlines the steps in the consultation
process generally, including subsections outlining the roles for
consulting officials, associated timelines, evaluations, and additional
considerations.
1563.2--Dispute Resolution. This 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 section expands guidance on
repatriation and reburials, including general considerations as well as
reviews.
1563.4--Closures for Traditional and Cultural Purposes. This
section describes closures for temporary and cultural purposes per 25
U.S.C. 32A Sec. 3054.
1563.6--Prohibition on Disclosure. This section covers prohibition
against disclosure per 25 U.S.C. 32A Sec. 3056.
1563.7--Information and Technology Sharing. This section describes
working with tribes to incorporate traditional ecological knowledge as
well as traditional tribal practices and locations that should be
considered in Forest Service land management planning and research
activities.
1563.8--References. This section elaborates in the authorities
identified in section 1563.01.
b. Forest Service Handbook 1509.13
10.01--Authorities. This section includes statutes, Executive
Orders, and regulations that govern Federal agencies' relationship with
tribes.
11--Consultation with Tribes. This section expands on consultation
roles and responsibilities, timelines, consultation process, and
monitoring and evaluation processes for compliance monitoring.
12--Compensation. This section includes funding authorities for
compensation for consultation, historic preservation.
13--Training. This section includes suggestions for mandated
training on sacred sites and related core competencies.
14--Exhibits. This section references additional authorities for
management of Indian sacred sites.
3. Public Comments
The Agency received only 15 comments on the proposed directives.
However, because of strong outreach, coordination, and consultation
conducted with tribal partners by OTR in the development of these
directives, the Agency did not anticipate receiving many comments. The
comments were generally supportive of these directives, and most were
from tribes or tribal offices that interact with the Forest Service in
a fairly routine manner. The following is a breakdown of the comments
provided about the directives and the Agency's response to those
comments.
FSM 1563
Categorization of the Manual Title
Several comments stated that the emphasis should be on the
government-to-government relationship because a federal-tribal
relationship is not ``External Affairs,'' but instead ``Internal
Affairs'' and believe these directives are mislabeled within this
category heading.
After considering this request, the Agency took no action. The
reason Forest Service Manual 1500, Chapter 1560, Section 1563 is listed
under the heading ``External Affairs'' is because it involves a party
that is not officially employed by the US Forest Service. Many other
relationships with organizations outside of the Agency are described
within Manual 1500, such as counties and local agencies, which are
under Section 1562. The heading is not intended to minimize the
government-to-governmental relationship Federal agencies have with
Indian tribes; rather, in this context, when a Forest Service employee
engages with any person or organization that is not an employee of the
US Forest Service (i.e., an internal party), it is external to the
Agency.
Federal Trust Responsibility
Several comments stated that although various individuals,
communities, intertribal organization, enterprises, or education
institutions may publicly identify as ``tribal,'' it is important to
note that these groups do not have the same legal status or rights as
federally recognized tribes (i.e., Federal trust responsibilities).
The Agency agrees and has modified the text accordingly. Forest
Service Handbook Section 1509.13, Chapter 10 reads: ``The rights of
tribal governments and their officials are not the same, nor should
they be treated the same as the general public.'' This language was
inserted into Manual 1500, Chapter 1560 for consistency. Moreover, the
trust responsibility is discussed at length in two separate sections in
the FSM 1560--the language has been slightly amended to ensure
consistency throughout the document.
[[Page 12449]]
Several respondents also noted the relationship between treaties
reserved rights and how they correlate under the trust responsibility.
Commenters want the Forest Service to understand how tribes regulate
their members' exercise of such rights, rights that are reaffirmed
individually through unique statutory references (e.g., individual
tribal treaty) as well as off-reservation treaty rights, separate
reservation homelands, and other reserved rights.
After considering these comments, the Agency did not take any
specific action. The directives explain the basis for treaty rights,
how tribes continue to exercise such rights today, and the trust
responsibilities the Agency holds. These directives were specifically
written for Forest Service employees to understand the broad
applicability and expansive nature of the Federal trust responsibility
as well as the more specific obligations under reserved treaty rights.
Using general descriptions encourages a flexible interpretation of
legal responsibilities and encourages building strong relationships
with individual Indian tribes, in the context of that tribe's treaty
status.
Federal Status of Tribes
Several comments identified that the authority to work with
federally recognized Indian tribes does not address relationships with
non-federally recognized tribes who may have a stakeholder interests in
the Federal agency actions.
After considering these comments, there is no clear legal standing
for the Forest Service to include non-federally recognized tribes, or
even other indigenous communities from the US (such as Native
Hawaiians), or from foreign territories that border US lands. Executive
Order 13175 ``Coordination and Consultation with Indian Tribes''
specifically defines Indian tribes as ``an Indian or Alaska Native
tribe, band, nation, pueblo, village, or community that the Secretary
of the Interior acknowledges to exist as an Indian tribe pursuant to
the Federally Recognized Indian Tribe List of 1994, 25 U.S.C. 479a.''
This is the baseline authority for all Federal agencies to engage and
consult with Indian tribes and (through other laws) Alaska Native
Corporations. Therefore, it is important to provide a framework within
the context of these directives for Forest Service employees to
understand how the Agency is legally obligated to engage with tribes
affected by the Federal trust responsibility, which is only extended to
federally recognized tribes, and with Alaska Native Corporations.
However, the Forest Service strongly supports working with tribes
and tribal communities notwithstanding federal acknowledgment. The
mechanisms and procedures used to accomplish those interactions and
partnerships are those contained in the Agency's overall authorities,
rather than in those for Indian tribes and Alaska Native Corporations.
Native American Graves Protection and Repatriation Act (NAGPRA)
There were a few comments on Alaska Native Corporations (ANCs)
having no legal standing as proper authorities for consultation for the
purposes of NAGPRA. If a corporation wishes to be a party to a NAGPRA
consultation, they should have express written consent from the tribe
that clearly identifies the corporation is acting as their agent.
The Agency agrees and has modified the text accordingly. The
following language has been inserted: ``Alaska Native Corporations
(ANCs) do not have legal authority to consult for NAGRPA purposes;
however, if an Alaska tribe expressly gives consent in writing that an
ANC is acting as their authorizing agent in a NAGPRA consultation, the
request should be considered.''
UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
One comment suggests that Article 19 should be included because
``consent'' is an important term to incorporate for tribes to enter
into any sort of relationship with a Federal entity.
After much consideration, the Agency agrees and has modified the
text accordingly. The US endorsed the UNDRIP in 2010. Simply, Article
19 calls on governments to secure the consent of indigenous peoples on
matters of general public policy. The US Department of State has yet to
issue guidance on the meaning and implications of consent in this
context, and the Agency therefore considers the UNDRIP as an ideal the
Federal Government should strive toward in its dealings with indigenous
peoples and as an important international perspective.
Role of Coordination and Collaboration
Several commenters noted there was no definition of collaboration
in the directives and if collaboration is to serve a purpose in support
of consultation, it should be clearly defined in the definitions
section. It should also be made clear that collaboration is not the
primary way the Forest Service intends to meets its trust
responsibilities with tribes nor is coordination ever to be done in
lieu of consultation.
The Agency agrees and has modified the text accordingly. The Forest
Service has included the definition of collaboration published in the
USDA Departmental Regulation on Tribal Consultation, Coordination, and
Collaboration (DR1350-002: January 18, 2013) to maintain consistency
across Agency guidance documents. Further, in Section 1563.03.e,
language was inserted that reads: ``To be clear, coordination and
collaboration with tribes are key to building long-term, meaningful
relationships and should be viewed as a component of daily operations;
however, tribal coordination and collaboration efforts do not supersede
or substitute tribal consultation on a specific topic.''
FSH 1509.13, Chapter 10
Treaty Rights
Several people commented on FSH1509.13, Section 13.3, Core
Competencies, subsection (1)(e) which is titled Legal Context. In
working with Indian tribes, there is nothing mentioned regarding
unratified treaties or unextinguished land titles, and these should be
specifically identified in this section.
After considering these comments, the Agency agrees and has
clarified and modified the text accordingly. The FSH is specifically
written for Forest Service employees to understand the broad
applicability and see the expansive nature of the federal trust
responsibility and treaty obligations. Using general descriptions
encourages a flexible interpretation of legal responsibilities and
encourages building strong relationships with individual Indian tribes,
while keeping their land title and treaty status in mind. The topics of
unratified treaties and unextinguished land titles (and the additional
topic of unsettled land claims) are now included in the section on Core
Competencies.
Sacred Sites
Many comments suggested that the Forest Service should request
sacred sites trainings be hosted by tribes and include tribal staff in
the development of internal Forest Service trainings. The Agency
reviewed the language and concluded this request was included that in
the proposed directives. Federal agencies often lack the framework to
contextualize tribal knowledge systems. However, Tribal staff and other
Native people can often more clearly identify and accurately assess
sacred sites issues. Language in section 13.2 states that Forest
Service employees should ``Invite AI/AN people to assist in developing
and delivering core curricula.'' Further,
[[Page 12450]]
Forest Service units are instructed to ``reach out to local Indian
tribes to ask for their assistance in both developing and delivering
training to Forest Service employees'' and to ``coordinate with local
Tribes when sponsoring Forest Service workshops and training to include
tribal perspectives.'' These aspects are incorporated directly from the
2012 Sacred Sites Report.
4. Regulatory Certifications
Environmental Impact
This final directive revises national Forest Service policy to
update existing direction for the Agency to effectively work together
with Indian tribes. Forest Service regulations at 36 CFR 220.6(d)(2)
exclude 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 has concluded that this final directive
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
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant regulatory actions. OIRA
has determined that this final policy action is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovated, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed these directives in a manner consistent with
these requirements.
Regulatory Flexibility Act
The Agency certifies that these directives will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.). These
directives will not impose record-keeping requirements on small
entities; they will not affect their competitive position in relation
to large entities; and they will not affect their cash flow, liquidity,
or ability to remain in the market.
Small Business Regulatory Enforcement Fairness Act
These directives are not considered major under 5 U.S.C. 804(2),
the Small Business Regulatory Enforcement Fairness Act. They will not
result in the expenditure by State, local, or tribal governments, in
the aggregate, or by the private sector of $100 million or more in any
one year. The directives' requirements will not result in a major
increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions.
Nor will these directives have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises because the rule is limited to consultation with federally
acknowledged Indian tribes.
Unfunded Mandates Reform Act
The directives do not impose an unfunded mandate on State, local,
or tribal governments or the private sector of more than $100 Million
per year. The dirctives do not have a significant or unique effect on
State, local, or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
No Takings Implications (E.O. 12630)
Under the criteria in Executive Order 12630, these directives do
not affect individual property rights protected by the Fifth Amendment
nor do they involve a compensable ``taking.'' A takings implication
assessment is therefore not required.
Federalism (E.O. 13132)
Under the criteria in Executive Order 13132, this document has no
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
These directives comply with the requirements of Executive Order
12988. Specifically, these directives were reviewed to eliminate
efforts and ambiguity and written to minimize litigation; and are
written in clear language and contains clear legal standards.
Consultation With Indian Tribes (E.O. 13175)
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments,'' 59 FR 22951 (May 4, 1994), supplemented by Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, 65 FR 67249 (Nov. 6, 2000), the Agency assessed these
directives to have tribal implications as defined in E.O. 13175. The
120-day consultation with Indian tribes and Alaska Native Corporations
was conducted from June 6, 2013, to October 6, 2013, as required, and
was further extended over a nearly two-year period.
Because of strong outreach, coordination, and consultation
conducted with tribal partners in the development of these directives,
the Agency received only 15 comments. The comments were generally
supportive of these directives, and most were from tribes or tribal
offices that interact with the Forest Service in a fairly routine
manner. Additional outreach to Indian tribes and intertribal
organizations will convey the availability of the final directives.
Paperwork Reduction Act
These final directives do not contain any 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.
National Environmental Policy Act
These directives do not constitute a major Federal action
significantly affecting the quality of the human environment because it
is of an administrative, technical, and procedural nature. See 43 CFR
46.210(i). No extraordinary circumstances exist that would require
greater review under the National Environmental Policy Act.
Effects on the Energy Supply (E.O. 13211)
This final policy action is not a significant energy action under
the definition in Executive Order 13211. A Statement of Energy Effects
is not required.
[[Page 12451]]
Dated: February 8, 2016.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2016-04804 Filed 3-8-16; 8:45 am]
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