[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

[[Page 65896]]

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

[[Page 65897]]

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