[Federal Register: October 21, 2008 (Volume 73, Number 204)]
[Notices]
[Page 62463-62465]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21oc08-22]
[[Page 62463]]
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC45
Stewardship Contracting, FSH 2409.19, Chapter 60
AGENCY: Forest Service, USDA.
ACTION: Notice of issuance of final directive; response to comment.
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SUMMARY: The Forest Service is issuing a final directive to Forest
Service Handbook 2409.19, chapter 60, Stewardship Contracting. The
directive provides direction to implement the provisions as authorized
in the Tribal Forest Protection Act (TFPA) of 2004 (25 U.S.C. 3115a).
On December 26, 2006, the Forest Service published in the Federal
Register for public notice and comments an interim directive regarding
guidance for, TFPA proposals. The agency considered all the comments
and made a number of changes to the final directive in response.
DATES: Final directive 2409.19--60 is effective October 21, 2008.
ADDRESSES: The full text of the final directive is available
electronically on the World Wide Web at http://www.fs.fed.us/im/
directives. The administrative record for this final directive is
available for inspection and copying at the office of the Director,
Office of Tribal Relations, USDA Forest Service, 2nd Floor Central,
Sidney R. Yates Federal Building, 1400 Independence Avenue, SW.,
Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday, except
holidays. Those wishing to inspect the administrative record are
encouraged to call Marsha Butterfield at (202) 205-4095 beforehand to
facilitate access to the building.
FOR FURTHER INFORMATION CONTACT: Marsha Butterfield, Office of Tribal
Relations, USDA Forest Service, (202) 205-4095.
SUPPLEMENTARY INFORMATION: The Forest Service Directive System consists
of the Forest Service Manual (FSM) and the Forest Service Handbook
(FSH), which contain the Agency's policies, practices, and procedures
and serve as the primary basis for the internal management and control
of programs and administrative direction to Forest Service employees.
The directives for all agency programs are set out on the World Wide
Web/Internet at http://www.fs.fed.us/im/directives.
The FSM contains legal authorities, objectives, policies,
responsibilities, instructions, and guidance needed on a continuing
basis by Forest Service line officers and primary staff to plan and
execute programs and activities, while the FSH is the principal source
of specialized guidance and instruction for carrying out the policies,
objectives, and responsibilities contained in the FSM.
On December 26, 2006, the Forest Service published an interim
directive in the Federal Register (71 FR 247) for 60-day public notice
and comment. The Forest Service received six letters in response to the
interim directive. Comments received were from Tribes or Tribal
Organizations. A summary of comments received and the agency's
responses follow:
General Comments
The Forest Service appreciates the comments that were provided.
Generally, respondents like and support the policy. Respondents
strongly supported the availability of sole source contracting
authorities and the section giving clear direction that the agency may
provide advice and information to Indian tribes in advance of tribes'
submitting TFPA proposals. Several respondents felt partnerships and
trust obligations seem to be what is missing from the draft policy.
Forest Service Manual 1563.04g (FSM) directs Forest Supervisors to seek
opportunities to develop partnerships with Tribes under all appropriate
Forest Service authorities.
Comment. Several respondents felt the policy was difficult to
figure out without the benefit and context of the surrounding
provisions into which the new provisions are being inserted.
Response. The complete text of chapter 60, FSH 2409.19 was
available for review. The agency did not receive any requests for the
complete text.
Comments on Specific Sections of the TFPA
Section 60.3 Policy. This section adds new direction for
preliminary collaboration and evaluations for a potential Tribal Forest
Protection Act project.
Comment. Respondents strongly supported clear direction that the
Forest Service may provide advice and information to Indian Tribes in
developing TFPA proposals.
Response. The agency is committed to implementation of the TFPA and
providing assistance and advice in potential TFPA proposals.
Section 60.4 Responsibility. This section updates responsibilities
of the Regional Foresters, Forest Supervisors, District Rangers,
Director of Forest Management, and Director of Office of Tribal
Relations.
Comment. Respondents appreciated the policy including agency
consultation with a potential applicant tribe before it develops and
submits its application.
Response. The agency is committed to the implementation of the TFPA
and consultation with Tribes.
Section 60.5 Definitions. This section adds definitions for
Bordering on and Adjacent to, Indian Forest Land and Rangeland, Indian
Tribe, National Forest System Lands, Public Lands, Secretary and Tribal
Community.
Comment. Concerns were expressed regarding the word ``proximity''
used in the definition of ``bordering on or adjacent to.'' There was
concern that it may be too restrictive for appropriate implementation
of the TFPA. Respondents said there must be flexibility in the
definition so that TFPA projects are not rejected based upon narrow
interpretations because of the use of the word ``proximity.'' The word
``proximity'' is not used in the Act.
Response. The definition for bordering on or adjacent to has been
removed from the final directive. Section 60.4 Responsibilities
provides direction on determination of what borders on or is adjacent
to after consultation with the Indian tribe.
Section 61.18 Response to Tribal Requests Made Under the Tribal
Forest Protection Act. This section provides direction for handling
responses to tribal requests made under the Tribal Forest Protection
Act.
Comment. Respondents were concerned that other options available
for implementing TFPA projects, in addition to stewardship contracting,
need to be included along with stewardship contracting. Respondents
requested that ``or other instrument'' be added after ``stewardship
contracting'' throughout the policy. Respondents said stewardship
contracting will most likely not be the only means by which TFPA
projects will be carried out.
Response. The words ``or other instrument'' was added after
``stewardship contracting'' where applicable throughout the policy.
Section 61.7 Notice of Denial Under the Tribal Forest Protection
Act. This section provides direction for notice of denial for projects
submitted under the Tribal Forest Protection Act.
Comment. Respondents requested ``stewardship'' be removed from
Section 61.7--Notice of Denial. Respondents expressed that Tribes enter
into agreements other than just stewardship contracts and agreements.
Response. The word stewardship was removed from the text.
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Comment. Respondents wanted ``pursuant to the TFPA'' added after
``with the FS'' to clarify the point.
Response. ``Pursuant to the TFPA'' was added after ``proposal'' for
clarification.
Section 62.14 Contract Type Under the Tribal Forest Protection Act.
Comment. Respondents strongly supported the availability of sole
source contracting authorities.
Response. Under the Tribal Forest Protection Act of 2004 the Forest
Service has the authority to consider a request made by a tribe to
protect Indian forest or range lands by resource type projects on
adjacent Federal lands. If the proposal holds merit, the Forest Service
may award without further competition as long as the procedures under
this authority are used.
General Response
Developing and sustaining partnerships is a fundamental action
which facilitates the fulfillment of the Federal trust responsibility.
The trust responsibility is a legally enforceable obligation, a duty,
on the part of the U.S. Government to protect the rights of Federally
Recognized Indian Tribes and Alaska Natives.
The United States Government has a unique legal and governmental
relationship with American Indian tribes as set forth in the U.S.
Constitution, treaties, statutes and Federal court decisions. The
Forest Service shares in the Federal government's overall trust
responsibility to Indian tribes. The primary step in fulfilling agency
responsibilities is for line officers to contact Indian tribal
governments through their elected officials and consult with them on
proposed actions that may have an effect on tribal rights, resources or
general interests.
Regulatory Certifications
Regulatory Impact
This final directive has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. This final
directive would not have an annual effect of $100 million or more on
the economy, nor adversely affect productivity, competition, jobs, the
environment, public health or safety, nor State or local Governments.
This final directive would not interfere with an action taken or
planned by another agency, nor raise new legal or policy issues.
Finally, this final directive would not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients of such programs. Accordingly, this final
directive is not subject to OMB review under Executive Order 12866.
Proper Consideration of Small Entities
This final directive has been considered in light of Executive
Order 13272 regarding proper consideration of small entities and the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It
has been determined that this final directive would not have a
significant economic impact on a substantial number of small entities
as defined by SBREFA.
Environmental Impact
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;
September 18, 1992) excludes from documentation in an environmental
assessment or impact statement ``rules, regulations, or policies to
establish Servicewide administrative procedures, program processes, or
instructions'' that do not significantly affect the quality of the
human environment. This final directive sets forth administrative
procedures for implementation of the TFPA and, as such, has no direct
effect on Forest Service decisions for land management activities.
No Takings Implications
This final directive is limited to establishment of administrative
procedures to respond to American Indian and Alaska Native proposed
work projects to enter into contracts and/or agreements with the Forest
Service. Projects would conduct land management activities on Forest
Service and BLM lands adjacent to Indian trust land and Indian
communities.
This final directive has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and it has been determined that the final directive
does not pose the risk of a taking of private property.
Federalism
Executive Order 13132, Federalism, requires consultation with State
and local officials when planned regulations and other policies have
substantial direct effects on the States. This final directive
establishes procedures for the TFPA which will be administered by the
Forest Service and implemented by participating Indian tribes.
Therefore, the agency has determined that there are no direct effects
on the States and no further assessment of federalism implications is
necessary.
Consultation and Coordination With Indian Tribal Governments
In accordance with Forest Service policy and Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, formal
consultation was conducted with Indian tribes on development of this
new policy in 2005. The draft TFPA policy was sent to regional FS
offices, where it was then sent to tribes in their respective regions
that have tribal land, rangeland, or tribal communities bordering on or
adjacent to NFS land, for consultation with those tribes. A 60-day
comment period was provided for the consultation and comment.
Energy Effects
This final directive has been reviewed under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this proposed
guideline does not constitute a significant energy action as defined in
the Executive order.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
which the President signed into law on March 22, 1995, the Department
has assessed the effects of this final directive on Tribal governments
and the private sector. This final directive does not compel the
expenditure of $100 million or more by any Tribal government or anyone
in the private sector. Therefore, a statement under section 202 of the
Act is not required.
Civil Justice
This final directive has been reviewed under Executive Order 12988,
Civil Justice Reform. After adoption of this final directive as final,
(1) All State and local laws and regulations that conflict with this
policy or that would impede full implementation of this policy will be
preempted (2) no retroactive effect would be given to this final
directive; and (3) this final directive would not require the use of
administrative proceedings before parties could file suit in court
challenging its provisions.
Conclusion
This final directive implements the provisions of the Tribal Forest
Protection Act which provides a tool for Indian tribes, as defined by
the Act, to propose work and enter into contracts and agreements with
the Forest Service (FS) or Bureau of Land Management (BLM) to restore
land under the
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jurisdiction of either agency, or to reduce threats, including from
fire or disease, on FS or BLM-administered lands adjacent to or
bordering on Indian trust land and Indian communities.
The full text of this handbook is available on the World Wide Web
at http://www.fs.fed.us./im/directives. Single paper copies are
available upon request from the address and telephone numbers listed
earlier in this notice as well as from the nearest regional office, the
location of which are also available on the Washington Office
headquarters homepage on the World Wide Web at http://www.fs.fed.us.
Dated: October 9, 2008.
Charles Myers,
Associate Deputy Chief, National Forest System.
[FR Doc. E8-25066 Filed 10-17-08; 11:15 am]
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