[Federal Register Volume 81, Number 186 (Monday, September 26, 2016)]
[Rules and Regulations]
[Pages 65891-65897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22929]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AD00
Sale and Disposal of National Forest System Timber; Forest
Products for Traditional and Cultural Purposes
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The USDA Forest Service is implementing regulations under the
Food, Conservation, and Energy Act of 2008 (hereinafter the ``2008 Farm
Bill''). This rule provides for the provision of trees, portions of
trees, or forest products from National Forest System lands, free of
charge, to federally recognized Indian tribes (Indian tribes) for
traditional and cultural purposes. This rule implements section 8105 of
the 2008 Farm Bill.
DATES: This rule is effective October 26, 2016.
ADDRESSES: Information on this final rule may be obtained via written
request addressed to Director, Forest Management Staff, USDA Forest
Service, Mail Stop 1103, 1400 Independence Avenue SW., Washington, DC
20250 or by email to [email protected]. The public
may inspect comments previously received at the Office of the Director,
Forest Management Staff, Sidney Yates Building, Third Floor SW Wing,
201 14th Street SW., Washington, DC or via the world wide web/Internet
at http://www.fs.fed.us/forestmanagement/traditional_cultural/index.shtml. Visitors are encouraged to call ahead to 202-205-1766 to
facilitate entry to the building.
FOR FURTHER INFORMATION CONTACT: Joe Reddan, Assistant Director, Forest
Products, 202-557-6591 or Sharon Nygaard-Scott, Forest Service, Forest
Management Staff, 202-205-1766, during normal business hours.
Individuals who use telecommunication devices for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through
Friday.
SUPPLEMENTARY INFORMATION:
I. Background
The Forest Service is issuing this final rule to implement section
8105 of the 2008 Farm Bill (section 8105). Section 8105 has also been
codified in Title 25 of the U.S. Code, chapter 32A--Cultural and
Heritage Cooperation Authority (25 U.S.C. 3055--Forest Products for
Traditional and Cultural Purposes). Subject to certain statutory
limitations, section 8105 allows the Secretary of Agriculture to
provide Indian tribes with trees, portions of trees, or forest products
for traditional and cultural purposes. In this preamble to the final
rule, the term ``forest products'' is used as a shorthand for ``trees,
portions of trees, or forest products''. Specifically, section 8105(a)
provides that the Secretary may provide free of charge to Indian tribes
any trees, portions of trees, or forest products from National Forest
System land for traditional and cultural purposes.
However, pursuant to section 8105(b), Indian tribes are prohibited
from using any trees, portions of trees, or forest products provided
under section 8105(a) for commercial purposes. While the 2008 Farm Bill
does not define commercial purposes, it does define Indian tribe and
traditional and cultural purpose. Section 8102(5) defines Indian tribe
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 Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1). In
addition, per section 8102(9), traditional and cultural purpose, with
respect to a definable use, area, or practice, means that the use,
area, or practice is identified by an Indian tribe as traditional or
cultural because of the long-established significance or ceremonial
nature of the use, area, or practice to the Indian tribe.
On December 2, 2009, the Forest Service published an Interim
Directive (ID) to the Forest Service Handbook (FSH) 2409.18 to
implement section 8105 of the 2008 Farm Bill. The ID was reissued,
without change, four times (effective March 8, 2011 (ID 2409.18-2011-
1), June 7, 2012 (ID 2409.18-2012-2), December 6, 2013 (ID 2409.18-
2013-3), and May 14, 2015 (ID 2409.18-2015-1), and remains in effect
until November 14, 2016. This final rule will replace the Interim
Directive, which will be entered in FSH 2409.18, chapter 80, section
82.5.
The proposed rule was published in the Federal Register on July 31,
2014 (79 FR 44327), and a comment period ensued over a period of 60
days. The Forest Service received 12 written comments through 10
letters, and all were considered in the development of this final rule.
This rule establishes Forest Service policy for providing Indian
tribes with trees, portions of trees, or forest products for
traditional and cultural purposes. Based on the comments received on
the ID during formal government-to-government consultation, and those
received during the proposed rulemaking, as well as the Agency's
experience using the ID to implement section 8105 over the last 7
years, the Agency is now publishing this final rule.
This final rule adds Sec. 223.15 to 36 CFR part 223, subpart A.
Section 223.15(a) authorizes Regional Foresters or designated Forest
Officers to provide trees, portions of trees, or forest products to
Indian tribes free of charge for traditional and cultural purposes.
Section 223.15(b) restates the 2008 Farm Bill's statutory definitions
of ``Indian tribe'' and ``traditional and cultural purpose,'' and
includes the Forest Services' regulatory definition of ``tribal
officials.''
Sections 223.15(c) and (d) describe who can request trees, portions
of trees, or forest products for traditional and cultural purposes, and
where those requests should be directed. Tribal officials should submit
requests for trees, portions of trees, or forest products to their
local Forest Service District Ranger's office for routing to the
appropriate designated authority. In addition, tribal officials are
encouraged to explain their requests to the Regional Forester or
designated Forest Officer, and if necessary, how the request fits a
traditional and cultural purpose.
A designated Forest Officer is an individual whom the Regional
Forester has granted written authority to provide products under Sec.
223.15. Currently, there is no limitation on the number of requests or
authorizations per unit of a forest product or the number of requests
or authorizations per Indian tribe. There is currently no limitation on
the amount of trees, portions of trees, or forest products that can be
requested at any one time. However, Forest Officers cannot grant
materials in excess of the value limitations at Sec. 223.15(e) in any
given fiscal year.
Section 223.15(f) explains that the Forest Service may condition or
deny requests for trees, portions of trees, or forest products under
Sec. 223.15. Finally, Sec. 223.15(g) provides that all decisions made
under Sec. 223.15 must comply with the National Forest Management Act,
relevant land management plans, the
[[Page 65892]]
National Environmental Policy Act, the Endangered Species Act, and all
other applicable laws and regulations, and are subject to tribal treaty
and other reserved rights and the savings provisions of the Cultural
and Heritage Cooperation Authority (25 U.S.C. 8107(b)). The Forest
Service will do its best to process requests received in a reasonable
period of time, in light of these statutory and regulatory
requirements.
II. Formal Government-to-Government Consultation
After issuance of the December 2, 2009, Interim Directive (ID
2409.18-2009-2), the Forest Service formally entered into consultation
with Indian tribes, with the Regional Foresters extending invitations
to Indian tribes by May 1, 2010. This consultation was conducted under
Executive Order (EO) 13175, Consultation and Coordination with Indian
Tribal Governments. Indian tribes were provided the ID to FSH 2409.18,
and were invited to consult on proposed changes to 36 CFR part 223.
Government-to-government consultation occurred over a period of at
least 120 days, through September 1, 2010.
Regional Foresters were directed to invite all federally recognized
Indian tribes in their Region to consult. In addition, they were
directed to invite any federally recognized Indian tribes who have
expressed a historical connection to National Forest System lands in
their Region, even if they no longer reside there. To make the
consultation more effective, the Forest Service provided Indian tribes
with a question and answer document describing the Interim Directive
and Forest Services' intent to implement section 8105 of the 2008 Farm
Bill through proposed changes to 36 CFR part 223. Recommendations from
the Indian tribes have been incorporated, as appropriate, into this
final rule.
III. Summary of Comments and Responses
The Forest Service received 12 comments in response to the proposed
rule, several of which were similar in scope and nature. A summary of
the comments and the Agency's responses and actions taken to the
comments follow.
Savings Provisions comment: Three commenters expressed concern that
the proposed rule did not incorporate the savings provisions at 25
U.S.C. 3057(b), which protect existing tribal treaty and other reserved
rights, as well as agreements between the Forest Service and an Indian
tribe. Section 8105 has been codified in 25 U.S.C. 3055--Forest
Products for Traditional and Cultural Purposes. The savings provisions
at 25 U.S.C. 3057(b) apply to forest products for traditional and
cultural purposes. These savings provisions state that:
Nothing in the chapter--
(1) diminishes or expands the trust responsibility of the United
States to Indian tribes, or any legal obligation or remedy resulting
from that responsibility;
(2) alters, abridges, repeals, or affects any valid agreement
between the Forest Service and an Indian tribe;
(3) alters, abridges, diminishes, repeals, or affects any reserved
or other right of an Indian tribe; or
(4) alters, abridges, diminishes, repeals, or affects any other
valid existing right relating to National Forest System land or other
public land.
Savings Provisions response: The Forest Service has revised Sec.
223.15(g) of the final rule to incorporate the savings provisions
codified at 25 U.S.C. 3057(b). The revised Sec. 223.15(g) states: All
decisions made under this section must comply with the National Forest
Management Act, relevant land management plans, the National
Environmental Policy Act, the Endangered Species Act, all other
applicable laws and regulations, and are subject to tribal treaty and
other reserved rights and the savings provisions of the Cultural and
Heritage Cooperation Authority (25 U.S.C. 3057(b)).
Additionally, the authority citation under part 223 now includes
references to both 25 U.S.C. 3055 and 3057.
Prioritized Use and Access comment: One commenter proposed that the
collection of forest products for traditional and cultural purposes be
prioritized over other uses and that traditional gathering areas be
closed to other uses. The commenter indicated that frequently the
collection of forest materials occurs immediately preceding a
traditional or religious ceremony and requested assurance that access
to the traditional resources be prioritized and allowed, regardless of
the situation or season.
Prioritized Use and Access response: Authorized timeframes for
gathering, prioritization over other uses and needs, and access to
specific gathering areas may vary by request. The Forest Service is
responsible for balancing requests made under section 8105 of the 2008
Farm Bill with other planned, possible, and mandated uses in accordance
with its mandate to manage the national forests for multiple uses (16
U.S.C. 528-531). This rule provides one path for collection of forest
products, but prioritization of the various uses and purposes of forest
products and access to National Forest System lands are outside the
scope of this rule. Instead, the Forest Service determines how to
balance competing demands for forest products and land use when
revising or amending land management plans using the National Forest
System Land Management Planning process (36 CFR part 219). The planning
process requires responsible officials to actively engage stakeholders,
the public, and federally recognized Indian tribes using collaborative
processes where feasible and appropriate (36 CFR 219.4). Proposed
individual actions and projects subject to the NEPA requirements also
require opportunities for public participation and comment (36 CFR
220.4).
Indian tribes are encouraged to participate in these processes and
to work with and regularly communicate to local Forest Service
Officials the location of forest products used for traditional and
cultural purposes. Local Forest Service Officers will then be aware of
potential gathering areas and times when planning projects to mitigate
potential conflicting activities and requests. Information regarding
the locations of resources shared with Forest Service officials are
protected from sharing by the Prohibition on Disclosure (25 U.S.C.
3056). Assessment and determination for priority of use and access to
areas will be made at the Regional, National Forest, or local Ranger
District levels as appropriate based on local considerations, land
management plans, needs, and consultation with local Indian tribes.
This rule does not designate gathering areas. Section 223.15(f) of
the rule authorizes, however, denials of or the placing of conditions
on requests for access to gather. The reasons for the denials or
conditions include, but are not limited to:
(1) Protecting public health and safety;
(2) Preventing interference with Forest Service and/or commercial
operations;
(3) Complying with Federal and State laws and regulations;
(4) Ensuring sustainability; or
(5) Otherwise protecting National Forest System land and resources.
Adoption of Region 5 Policy as the National Rule comment: One
commenter represents an Indian Tribe within the State of California
that has been using the existing Region 5 Traditional Gathering Policy.
The Indian tribe is satisfied with the policy and has recommended that
this policy be used as a model and applied nationwide. The policy
referenced by
[[Page 65893]]
the commenter exists as a Regional Supplement to the Forest Service
Manual (FS Region 5, FSM 1500, ch. 1560, Amendment No: 1500-2007-1)
which sets out direction on traditional gathering policy within the
Region to promote consistency between Forest Service and Bureau of Land
Management in collaboration with local tribal communities.
Adoption of Region 5 Policy as the National Rule response: Regional
Forest Service and tribal interests, needs, and agreements may vary by
location, tradition, culture, and practice. Forest Service Regions have
the opportunity to supplement this rule, consistent with the policy
established herein, for best use in their area of administration. The
Region 5 policy was developed through collaboration and interests
specific to parties in the Region 5 area. Forest Service Region 9 also
has a document for use that includes considerations and direction for
application within FS Region 9 (Tribal Relations Strategic Framework
for the Eastern Region, Northeastern Area State & Private Forestry, and
Northern Research Station--2015). While the sharing of direction and
guidance on this topic is appropriate between Regions, the Regions may
implement this rule through supplements that are consistent with the
rule and that meet the particular needs of a Region based on applicable
laws, tribal treaty or other reserved rights, the parties involved, and
other local needs. Any new supplements must be consistent with the
rule. Any existing Regional supplements or policies should continue to
be implemented in accordance with Sec. 223.15(g). The Region 5
Traditional Gathering Policy will not be adopted as Agency-wide
direction in this rule.
Requests by Individuals comment: One commenter sought clarification
as to whether this rule allows individual tribal members to request
trees, portions of trees, or forest products for traditional and
cultural purposes, or whether such requests must be submitted by tribal
officials. Section 8105 of the 2008 Farm Bill states, ``the Secretary
may provide free of charge to Indian tribes any trees, portions of
trees, or forest products from National Forest System land for
traditional and cultural purposes.'' Section 8102 expressly defines the
terms ``Indian'' and ``Indian Tribe'' separately. The term ``Indian''
references an individual member of an Indian tribe. As defined in
section 8102, the term ``Indian Tribe'' references a ``tribe, band,
nation, pueblo, village, or other community'' which is included on the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).
Requests by Individuals response: For purposes of this rule,
authorization is limited to government (Forest Service)-to-government
(Indian tribe), rather than government-to-individual, provision of
trees, portions of trees, or forest products. Tribal officials should
submit requests on behalf of the Indian tribe. Individual members of
federally recognized Indian tribes should coordinate requests through
their tribal officials. Individual members of federally recognized
Indian tribes may also use existing provisions at 36 CFR part 223,
subpart A, which authorize free-use of trees, portions of trees, or
forest products to individuals, subject to limitations or circumstances
as stated in the regulations.
Scale of detail for requested material comment: One commenter
sought clarification as to whether requests are required to include
details as to the type and quantity of material being requested. The
2008 Farm Bill does not specify a process for requesting materials
authorized within section 8105.
Scale of detail for requested material response: It is important
that the requests for trees, portions of trees, and forest products
under this rule be complete, in order to prevent any misunderstandings,
or delays in processing, and to provide for efficient field
administration and gathering under authorized permits. The level of
detail required for requests may vary by location and type of material
due to the level of sensitivity and abundance of the item being
requested, to insure that Forest Service Officers can maintain
accountability and sustainable management of the forest products.
Additionally, tribal officials are encouraged to explain their requests
to Regional Foresters or designated Forest Service Officers, and if
necessary, how the request fits a traditional and cultural purpose.
Requests which do not include sufficient information for a Forest
Service Officer to make an assessment that the request fits a
traditional and cultural purpose and does not conflict with existing
plans, or maintain sustainable levels and management of the material(s)
requested, may be delayed or denied.
Levels for Authorizing Requests comment: One commenter requested
that the delegations of authority limitations within the proposed rule
(36 CFR 223.15(e)) be removed.
Levels for Authorizing Requests response: The levels set in the
proposed rule have not been removed or modified for the final rule.
``Limitations'' as specified in this final rule pertain to the level of
delegation authorized for approving free use requests as specified in
36 CFR 223.8. The levels proposed in this rule (Sec. 223.15) are an
increase from those which apply to other activities specified in Sec.
223.8. There is no limitation on the number of requests that can be
made or authorized per Indian tribe. These levels for delegating
authority of approval for requests made under this rule are necessary
to ensure consistency with the levels of accountability assigned to
each Forest Service Officer for management of National Forest System
lands and resources within their respective areas of responsibility.
The value limitations do not limit the amount of trees, portions of
trees, or forest products that Indian tribes may request through this
rule. If an Indian tribe makes a request that has a higher value than
the maximum which can be authorized by a local official, then the
request will be forwarded to a Forest Service Officer who has the
authority to grant the request. Pursuant to this rule, if the value of
the forest products requested is greater than the value that may be
locally granted, the request will be forwarded as follows--District
Ranger (value limitation $25,000), Forest Supervisor, (value limitation
$50,000), and Regional Forester (value limitation $100,000). Requests
that exceed $100,000 in value will be reviewed and approved by the
Chief of the Forest Service.
Definition of commercial comment: One commenter requested
clarification as to the definition for the term ``commercial
purposes''. Although the term ``commercial purposes'' was used in the
2008 Farm Bill (section 8105), a definition of the term was not
included in the definitions at section 8102.
Definition of commercial response: In consideration of this request
for clarification of the definition of the term ``commercial
purposes'', the Agency reviewed a number of existing definitions,
consulted existing Regional policy, and considered defining the term
within the final regulatory text. The Agency has decided, however, not
to define the term ``commercial purposes'' in this rule for the reasons
discussed herin.
The term ``commercial'' is used in other subparts of 36 CFR part
223 without definition. The need to define this term, and a definition
appropriate for application and administration, may vary by location
and the accepted traditional and cultural practices of the Indian
tribe(s) involved. In particular, Regional Forest Service
representatives expressed concern that defining the
[[Page 65894]]
term in the body of the rule could preclude varying levels of locally
accepted traditional and cultural practices. Regional Representatives
requested that we leave a definition of this term to Regional
discretion in order to best suit the partnerships and agreements
developed in consultation with Indian tribes and used within the
regions. Regions implementing this rule under the existing interim
directive and supplemental Regional guidance, specific for the region,
have not experienced issues to this point regarding what is or is not
deemed commercial for purposes of this rule.
Based on the lack of a definition for ``commercial purposes'' in
the 2008 Farm Bill, regular and undefined use of the term in other
Forest Service documents, and Forest Service Regional Staff's request
that the term be left undefined, this final rule does not include a
definition within the regulatory text.
Traditional barter and trade comment: One commenter requested
clarification of whether barter and trade is permitted for materials
obtained through this rule. Specifically, whether an Indian tribe may
barter or trade materials obtained pursuant to this rule as a means of
recouping the costs an Indian tribe incurs for planning, gathering, and
processing such materials.
Traditional barter and trade response: Barter and trade is not
expressly addressed in the regulatory text for this rule.
This rule derives from the authority and prohibitions within
section 8105 of the 2008 Farm Bill. The Forest Service is authorized to
provide trees, portions of trees, or forest products free-of-charge
from National Forest System land to Indian tribes for traditional and
cultural purposes, except when those purposes involve commercial use.
According to the definition in section 8102 of the 2008 Farm Bill, the
term ``traditional and cultural purpose,'' with respect to a definable
use, area, or practice, means that the use, area, or practice is
identified by an Indian tribe as traditional or cultural because of the
long-established significance or ceremonial nature of the use, area, or
practice to the Indian tribe. Barter and trade of materials obtained
through requests made under this rule, which meet the definition for a
traditional and cultural purpose and are not considered to be
commercial, may be acceptable. Tribal officials are encouraged to
explain their requests to Regional Foresters or designated Forest
Service Officers and, if necessary, describe how the request fits a
traditional and cultural purpose. Requests that do not include enough
information for a Forest Service Officer to make a reasonable
assessment that the request fits a traditional and cultural purpose and
will not be used for commercial purposes may be denied.
Similar to the term ``commercial'', the need to address barter and
trade may vary by location and the accepted traditional and cultural
practices of the Indian tribe(s) involved. Regions implementing this
rule under the existing interim directive and supplemental Regional
guidance, specific for the region, have not experienced issues to this
point regarding barter and trade for purposes of this rule.
Authorization of barter and trade will be left to Regional discretion
in order to best suit the partnerships and agreements developed in
consultation with Indian tribes and used within the region. Any forms
of barter and trade which are authorized in previous agreements, tribal
treaty, or other reserved rights will not be affected by this rule.
General Comment (1): One commenter expressed direct support of the
previously proposed rule.
General comment (1) response: This comment is acknowledged but
deemed outside of the scope of this rule. The Agency is adopting this
rule for the reasons stated within including the rule's consistency
with section 8105 and it meets the Agency's needs.
General Comment (2): One commenter offered to share information
regarding an organization that funds forest associations.
General Comment (2) response: The comment is is found to be outside
the scope of this rule.
Summary of Additional Changes
Use of the term ``noncommercial''--No comments were received in
response to the proposed rule's use of the term ``noncommercial''.
However, the term has been removed from both the title of section
223.15 as well as from section 223.15(d). Noncommercial was being used,
in the proposed rule, as a reference to the Farm Bill's prohibition on
commercial purposes, but, because it was not used in the Farm Bill, the
term has been removed from this final rule, to avoid any confusion and
for clarification purposes.
Section 223.15(d)--Although no comments were received, a minor
change was made to the wording in the last sentence, in section
223.15(d), describing how notification should take place when two or
more National Forests are involved in a single request. This was done
to ensure clarity regarding the notification requirement.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under U.S. Department of
Agriculture procedures and Executive Order 12866 on Regulatory Planning
and Review as amended by 13422. The Office of Management and Budget
(OMB) has determined that this is not a significant rule. This final
rule 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.
This final rule will not interfere with an action taken or planned by
another agency nor raise new legal or policy issues. Finally, this
action will 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 rule is not subject to OMB
review under Executive Order 12866.
Proper Consideration of Small Entities
This final rule has been considered in light of Executive Order
13272 regarding consideration of small entities and the Small Business
Regulatory Enforcement Act of 1996 (SBREFA), which amended the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by the Executive
Order. The final rule will have no adverse impact on small business,
small not-for-profit organizations, or small units of government.
Environmental Impact
This final rule has no direct or indirect effect on the
environment. The rules at 36 CFR 220.6(d)(2) exclude 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. The Department's assessment is that
this final rule falls within this category of actions, and that no
extraordinary circumstances exist that would require preparation of an
environmental assessment or environmental impact statement.
Federalism
The Department has considered this final rule under the
requirements of Executive Order 13132, Federalism, and concluded that
this action will not have substantial direct effects on the States,
[[Page 65895]]
on the relationship between the Federal Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, the Department has determined that no
further assessment of federalism implications is necessary at this
time.
Consultation With Tribal Governments
Pursuant to Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments, the Forest Service entered into
consultation with Indian tribes regarding this proposed rule. Beginning
on or before May 1, 2010, Indian tribes were provided with the Forest
Service's Interim Directive on section 8105 of the 2008 Farm Bill, and
were invited to consult on changes to 36 CFR part 223. In addition, the
Forest Service provided a question and answer document related to the
Interim Directive and regulatory actions the Agency was considering to
implement section 8105. Government-to-government consultation occurred
over a period of at least 120 days, through September 1, 2010. The
Forest Service received 88 comments as a result of consultation,
including some received after September 1; all were considered in the
development of the proposed rule.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12360, and it has been
determined that this action will not pose the risk of a taking of
private property.
Controlling Paperwork Burdens on the Public
With this submission, and upon OMB approval, the addition of the
collection requirements of Rule Identification Number 0596-AD00, OMB
no. 0596-0233 for federally recognized Indian tribes wishing to request
free use under the authority of section 8105 of the 2008 Farm Bill are
being added to OMB control number 0596-0085 Forest Products Removal
Permits and Contracts.
Title: Sale and Disposal of National Forest System Timber; Forest
Products for Traditional and Cultural Purposes.
OMB Control Number: 0596-0233.
Abstract: The information collection associated with the proposed
rule Sale and Disposal of National Forest System Timber; Forest
Products for Traditional and Cultural Purposes was published in the
Federal Register on July 31, 2014 (79 FR 44327) as OMB control number
0596-0085 Forest Products Removal Permits and Contracts, Regulatory
Identification Number 0596-AD00. The information collection included
updates made to charge permits and contracts as well as revisions made
to accommodate requests from Indian tribes for free use under section
8105 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-
246, 122 Stat. 1651) [hereinafter the ``2008 Farm Bill''], per the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and
implementing regulations at 5 CFR part 1320. No comments were received
regarding the information collection during the proposed rule's 60-day
notice and comment period. However, OMB has requested the information
collection requirements specific to the 2008 Farm Bill, be disclosed
separately as OMB 0596-0233. Upon review and approval from OMB, the two
information collections (OMB 0596-0223 and OMB 0596-0085) will be
merged. Therefore, through this Federal Register notice, the Agency is
providing an opportunity to comment on the information collection
associated with the final rule during the 30-day period between the
publication date and the effective date of the final rule.
As stated earlier in this final rule, section 8105 of the 2008 Farm
Bill provides the Secretary of Agriculture with discretionary authority
to provide trees, portions of trees, or forest products to Indian
tribes free of charge for traditional and cultural purposes provided
that the trees, portions of trees, or forest products are provided to
tribal officials on behalf of an Indian tribe for traditional and
cultural purposes; and the trees, portions of trees, or forest products
will not be used for commercial purposes.
Indian tribes seeking products under the 2008 Farm Bill authority
must make a request for free use. ``Requests . . . must be submitted to
the local Forest Service District Ranger's Office(s) in writing.
Requests may be made: (1) Directly by a tribal official(s) who has been
authorized by the Indian tribe to make such requests; or (2) By
providing a copy of a formal resolution approved by the tribal council
or other governing body of the Indian tribe.'' Additionally, ``[t]ribal
officials are encouraged to explain their requests to the Regional
Forester or designated Forest Officer and, if necessary, describe how
the request fits a traditional and cultural purpose. When an Indian
tribe requests forest products located on two or more National Forests,
authorized tribal officials should notify each of the affected Forest
Service District Ranger's Offices of the requests made on other
forests.'' Under section 8105 of the 2008 Farm Bill, there is no stated
maximum free use limitation for products requested by Indian tribes.
Additionally, there is no limitation to the number of requests that
each federally recognized Indian tribe may make under this final rule.
Should Indian tribes wish to obtain proof of possession, as may be
required in some States, they could be issued a FS-2400-8 free use
permit by the Forest Service. The FS-2400-8 form allows use of timber
or forest products at no charge (36 CFR 223.5-223.13). No changes are
being made to the free-use form as a result of the 2008 Farm Bill
provision. Upon receiving the permit, the permittee must comply with
its terms (36 CFR 261.6), which designate forest products that can be
harvested and under what conditions, such as limiting harvest to a
designated area or permitting harvest of only specifically designated
material. Only the minimum information necessary to comply with Federal
laws and regulations is collected. Agency personnel enter the
information provided by Indian tribes into a computerized database to
use for any subsequent requests made by the Indian tribe. The
information is printed on paper, which the applicant signs and dates.
Agency personnel discuss the terms and conditions of the permit or
contract with the applicant. The data gathered is not available from
other sources. The collected information will help the Forest Service
oversee the approval and use of forest products under section 8105 of
the 2008 Farm Bill. For example, the collected information will be used
to ensure applicants meet the criteria for free use of timber or forest
products authorized under section 8105 and to identify permittees in
the field by Forest Service personnel.
The following summarizes the information collection associated with
the final directive:
Estimate of burden: Reporting burden for the collection of
information is estimated to average 5 minutes per response.
Respondents: Federally recognized Indian tribes under section 8105
of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, 122
Stat. 1651).
Estimated Number of Respondents: 1,132.
Estimated Number of Annual Responses per Respondent: 1.5.
Estimated Total Annual Responses: 2,123.
Estimated Total Annual Burden Hours: 241.
Comment is invited on (1) whether this information collection is
necessary for the stated purposes and proper performance of the
functions of the
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Agency, including whether the information will have practical or
scientific utility; (2) the accuracy of the Agency's estimate of burden
associated with the information collection, including the validity of
the methodology and assumptions used; (3) ways to enhance the quality,
utility and clarity of the information to be collected; and (4) ways to
minimize the burden of the information collection on respondents,
including automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology. All
comments received in response to this notice, including names and
addresses when provided, will be a matter of public record. The
comments will be summarized and included in the request to OMB for
approval.
Energy Effects
This final rule has been reviewed under Executive Order 13211 of
May 18, 2001, and it has been determined that it has no effect on the
supply, distribution, or use of energy. This rule is administrative in
nature and, therefore, the preparation of a statement of energy effects
is not required.
Civil Justice Reform
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. When the final rule is adopted: (1) All State and
local laws and regulations that conflict with the final rule or that
would impede full implementation of this rule will be preempted; (2) no
retroactive effect will be given to the final rule; and (3) the
Department will not require the use of administrative proceedings
before parties could 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 Department has assessed the effects of this final rule on
State, local, and tribal governments and the private sector. This
action will not compel the expenditure of $100 million or more by any
State, local, or tribal government or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
List of Subjects in 36 CFR Part 223
Administrative practice and procedure, Exports, Forests and forest
products, Government contracts, National forests, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, the Forest Service, U.S.
Department of Agriculture, amends 36 CFR part 223 as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER,
SPECIAL FOREST PRODUCTS, AND FOREST BOTANICAL PRODUCTS
0
1. The authority citation for part 223 is revised to read as follows:
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, 25 U.S.C. 3055
and 3057, 113 Stat. 1501a, 16 U.S.C. 528 note; unless otherwise
noted.
0
2. Add Sec. 223.15 to subpart A to read as follows:
Sec. 223.15 Provision of trees, portions of trees, or forest
products to Indian tribes for traditional and cultural purposes.
(a) Pursuant to section 8105 of the Food, Conservation, and Energy
Act of 2008 (Pub. L. 110-246, 122 Stat. 1651) [hereinafter the ``2008
Farm Bill''], Regional Foresters or designated Forest Officers may, at
their discretion, provide trees, portions of trees, or forest products
to Indian tribes free of charge for traditional and cultural purposes
provided that:
(1) The trees, portions of trees, or forest products are provided
to tribal officials on behalf of an Indian tribe for traditional and
cultural purposes; and
(2) The trees, portions of trees, or forest products will not be
used for commercial purposes.
(b) The following definitions apply to this section:
Indian tribe. The term ``Indian tribe'' means 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 Federally Recognized Indian
Tribe List Act of 1994 (25 U.S.C. 479a-1).
Traditional and cultural purpose. The term ``traditional and
cultural purpose,'' with respect to a definable use, area, or practice,
means that the use, area, or practice is identified by an Indian tribe
as traditional or cultural because of the long-established significance
or ceremonial nature of the use, area, or practice to the Indian tribe.
Tribal officials: The term ``tribal officials'' means elected or
duly appointed officials of Indian tribal governments.
(c) Requests for trees, portions of trees, or forest products made
under this section must be submitted to the local Forest Service
District Ranger's Office(s) in writing. Requests may be made:
(1) Directly by a tribal official(s) who has been authorized by the
Indian tribe to make such requests; or
(2) By providing a copy of a formal resolution approved by the
tribal council or other governing body of the Indian tribe.
(d) Requests for trees, portions of trees, and forest products made
under this section must be directed to the appropriate Forest Service
District Ranger(s)' Office from which the items are being requested.
Tribal officials are encouraged to explain their requests to the
Regional Forester or designated Forest Officer and, if necessary,
describe how the request fits a traditional and cultural purpose. When
an Indian tribe requests forest products located on two or more
National Forests, authorized tribal officials should notify each of the
affected Forest Service District Ranger's Offices of the requests made
on other forests.
(e) Agency Line Officers and managers (who have been authorized by
name through official Forest Service correspondence) are authorized to
provide trees, portions of trees, and forest products under this
section subject to the following limitations:
(1) District Rangers and Forest Officers may provide material not
exceeding $25,000 in value in any one fiscal year to an Indian tribe;
(2) Forest Supervisors may provide material not exceeding $50,000
in value in any one fiscal year to an Indian tribe;
(3) Regional Foresters may provide material not exceeding $100,000
in value in any one fiscal year to an Indian tribe; and
(4) The Chief of the Forest Service may provide material exceeding
$100,000 in value to an Indian tribe.
(f) A request for trees, portions of trees, or forest products
under this section may be conditioned or denied for reasons including,
but not limited to the following:
(1) Protecting public health and safety;
(2) Preventing interference with Forest Service and/or commercial
operations;
(3) Complying with Federal and State laws and regulations;
(4) Ensuring sustainability; or
(5) Otherwise protecting National Forest System land and resources.
(g) All decisions made under this section must comply with the
National Forest Management Act, relevant land management plans, the
National Environmental Policy Act, the Endangered Species Act, all
other applicable laws and regulations, and are subject to tribal treaty
and other reserved rights and the savings
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provisions of the Cultural and Heritage Cooperation Authority (25
U.S.C. 3057(b)).
Dated: July 29, 2016.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2016-22929 Filed 9-23-16; 8:45 am]
BILLING CODE 3411-15-P