Final Directives on American Indian and Alaska Native Relations Forest Service Manual 1500, Chapter 1560, and Forest Service Handbook 1509.13, Chapter 10, 12447-12451 [2016-04804]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 81, Number 46 (Wednesday, March 9, 2016)]
[Notices]
[Pages 12447-12451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04804]


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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AD15


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

AGENCY: Forest Service, USDA.

ACTION: Notice of final directives.

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SUMMARY: The Forest Service has revised its internal Agency directives 
for American Indian and Alaska Native Relations to update existing 
direction for the Agency to work effectively with Indian tribes. The 
directives were last revised in 2004, with an Interim Directive issued 
in 2012. The final issuance of these directives, effective upon 
publication, will provide consistent overall internal Forest Service 
policy to: Explain the methods used to engage with tribes on a 
government-to-government basis, describe the authorities for working 
with tribes, delineate meaningful consultation procedures, and outline 
dispute resolution options. The tribal and public comment period closed 
concurrently on September 22, 2015. The Agency considered all comments 
in developing these final directives.

DATES: These directives are issued March 9, 2016.

ADDRESSES: The Forest Service Manual and Handbook are available online 
at https://www.fs.fed.us/spf/tribalrelations/. Single paper copies are 
available by request to the Office of Tribal Relations, U.S. Forest 
Service, at OTR@fs.fed.us. Additional information of how the Agency 
considered public comment can be requested in writing to Office of 
Tribal Relations, U.S. Forest Service, Sidney R. Yates Building, 201 
14th Street SW., Washington, DC 20250-0003.

FOR FURTHER INFORMATION CONTACT: Fred Clark, Director, Office of Tribal 
Relations, U.S. Forest Service, 202-205-1514. Individuals who use 
telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. 
and 8:00 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

1. Background and Need for the Final Directive

    On January 18, 2013, the U.S. Department of Agriculture (USDA) 
adopted Departmental Regulation No. 1350-002 on tribal consultation, 
coordination, and collaboration. Departmental Regulations 
institutionalize the broad programmatic direction for all USDA agencies 
to develop and implement processes for tribal consultation, 
coordination, and collaboration. This Departmental Regulation 
explicitly holds the head of each USDA agency accountable for the 
implementation of this policy. In March 2013, the Forest Service 
(Agency) Office of Tribal Relations (OTR) began to review the Forest 
Service manual and handbook to ensure it was consistent with the 
Departmental Regulation as well as the 2012 Report to the Secretary, 
USDA Policy and Procedures Review and Recommendations: Indian Sacred 
Sites, and legislation (specifically the Culture and Heritage 
Cooperation Authority provisions of the Food, Conservation, and Energy 
Act of 2008 [Pub. L. 110-246; the Farm Bill]).
    Upon reviewing these documents, it was necessary to amend the 
Agency manual and handbook, and OTR began

[[Page 12448]]

to draft proposed directives which included tribal implications as 
defined by Executive Order 13175, ``Consultation and Coordination with 
Indian Tribal Governments.'' OTR began an initial 120-day consultation 
with tribes on June 6, 2013, but extended the consultation period for 
almost two years to thoroughly discuss the proposed directives in 
various locations throughout the U.S. On July 24, 2015, the Forest 
Service published the notice of proposed directives and request for 
comment (80 FR 44019), and the comment period ended on September 22, 
2015.

2. Content of Final Directives

    The following is an overview of the content of the directives.

a. Forest Service Manual 1560

    1563--Tribal Relations. This Forest Service Manual section outlines 
the Forest Service Tribal Relations policy generally. It sets forth 
direction beyond consultation to include coordination and 
collaboration, recognizing the value of collaboration. The section 
encourages engagement with Alaska Native Corporations, non-federally 
recognized tribes, Native Hawaiians, along with American Indian and 
Alaska Native individuals, communities, intertribal organizations, 
enterprises, and institutions.
    1563.01--Authorities. This section provides information on 
Constitutional Articles corresponding to Indian tribes, statutes (e.g., 
Tribal Forest Protection Act of 2004 [25 U.S.C. 3115a]), executive 
orders, policies, Indian treaty rights, and provides context for the 
Federal trust responsibility to tribes.
    1563.02--Objectives. This section expands the objectives of the 
Forest Service in meeting its trust responsibility and adds support for 
the UN Declaration on the Rights of Indigenous Peoples.
    1563.03--Policy. This section expands Agency policy to consult with 
tribes in a meaningful way, document all consultation processes, and 
keep confidential any information that is tribally sensitive or 
proprietary.
    1563.04--Responsibilities. This section outlines the 
responsibilities in fulfilling the trust responsibility and 
consultation mandate to the following Agency personnel: Chief, Deputy 
Chiefs, Director of the Washington Office of Tribal Relations, Regional 
Tribal Relations Program Managers, Forest/Grasslands Supervisors, 
District Rangers, and all Tribal Liaisons within the Forest/Grassland, 
Research and Development, and State and Private Forestry divisions.
    1563.05--Definitions. This section provides definitions of the 
terms commonly used to describe the Federal-Tribal relationship.
    1563.10--Consultation with Indian Tribes and Alaska Native 
Corporations. This section outlines the steps in the consultation 
process generally, including subsections outlining the roles for 
consulting officials, associated timelines, evaluations, and additional 
considerations.
    1563.2--Dispute Resolution. This section expands on dispute 
resolution and appeal procedures for Indian tribes.
    1563.3--Reburial of American Indian and Alaska Native Ancestral 
Remains and Cultural Items. This section expands guidance on 
repatriation and reburials, including general considerations as well as 
reviews.
    1563.4--Closures for Traditional and Cultural Purposes. This 
section describes closures for temporary and cultural purposes per 25 
U.S.C. 32A Sec.  3054.
    1563.6--Prohibition on Disclosure. This section covers prohibition 
against disclosure per 25 U.S.C. 32A Sec.  3056.
    1563.7--Information and Technology Sharing. This section describes 
working with tribes to incorporate traditional ecological knowledge as 
well as traditional tribal practices and locations that should be 
considered in Forest Service land management planning and research 
activities.
    1563.8--References. This section elaborates in the authorities 
identified in section 1563.01.

b. Forest Service Handbook 1509.13

    10.01--Authorities. This section includes statutes, Executive 
Orders, and regulations that govern Federal agencies' relationship with 
tribes.
    11--Consultation with Tribes. This section expands on consultation 
roles and responsibilities, timelines, consultation process, and 
monitoring and evaluation processes for compliance monitoring.
    12--Compensation. This section includes funding authorities for 
compensation for consultation, historic preservation.
    13--Training. This section includes suggestions for mandated 
training on sacred sites and related core competencies.
    14--Exhibits. This section references additional authorities for 
management of Indian sacred sites.

3. Public Comments

    The Agency received only 15 comments on the proposed directives. 
However, because of strong outreach, coordination, and consultation 
conducted with tribal partners by OTR in the development of these 
directives, the Agency did not anticipate receiving many comments. The 
comments were generally supportive of these directives, and most were 
from tribes or tribal offices that interact with the Forest Service in 
a fairly routine manner. The following is a breakdown of the comments 
provided about the directives and the Agency's response to those 
comments.

FSM 1563

Categorization of the Manual Title
    Several comments stated that the emphasis should be on the 
government-to-government relationship because a federal-tribal 
relationship is not ``External Affairs,'' but instead ``Internal 
Affairs'' and believe these directives are mislabeled within this 
category heading.
    After considering this request, the Agency took no action. The 
reason Forest Service Manual 1500, Chapter 1560, Section 1563 is listed 
under the heading ``External Affairs'' is because it involves a party 
that is not officially employed by the US Forest Service. Many other 
relationships with organizations outside of the Agency are described 
within Manual 1500, such as counties and local agencies, which are 
under Section 1562. The heading is not intended to minimize the 
government-to-governmental relationship Federal agencies have with 
Indian tribes; rather, in this context, when a Forest Service employee 
engages with any person or organization that is not an employee of the 
US Forest Service (i.e., an internal party), it is external to the 
Agency.
Federal Trust Responsibility
    Several comments stated that although various individuals, 
communities, intertribal organization, enterprises, or education 
institutions may publicly identify as ``tribal,'' it is important to 
note that these groups do not have the same legal status or rights as 
federally recognized tribes (i.e., Federal trust responsibilities).
    The Agency agrees and has modified the text accordingly. Forest 
Service Handbook Section 1509.13, Chapter 10 reads: ``The rights of 
tribal governments and their officials are not the same, nor should 
they be treated the same as the general public.'' This language was 
inserted into Manual 1500, Chapter 1560 for consistency. Moreover, the 
trust responsibility is discussed at length in two separate sections in 
the FSM 1560--the language has been slightly amended to ensure 
consistency throughout the document.

[[Page 12449]]

    Several respondents also noted the relationship between treaties 
reserved rights and how they correlate under the trust responsibility. 
Commenters want the Forest Service to understand how tribes regulate 
their members' exercise of such rights, rights that are reaffirmed 
individually through unique statutory references (e.g., individual 
tribal treaty) as well as off-reservation treaty rights, separate 
reservation homelands, and other reserved rights.
    After considering these comments, the Agency did not take any 
specific action. The directives explain the basis for treaty rights, 
how tribes continue to exercise such rights today, and the trust 
responsibilities the Agency holds. These directives were specifically 
written for Forest Service employees to understand the broad 
applicability and expansive nature of the Federal trust responsibility 
as well as the more specific obligations under reserved treaty rights. 
Using general descriptions encourages a flexible interpretation of 
legal responsibilities and encourages building strong relationships 
with individual Indian tribes, in the context of that tribe's treaty 
status.
Federal Status of Tribes
    Several comments identified that the authority to work with 
federally recognized Indian tribes does not address relationships with 
non-federally recognized tribes who may have a stakeholder interests in 
the Federal agency actions.
    After considering these comments, there is no clear legal standing 
for the Forest Service to include non-federally recognized tribes, or 
even other indigenous communities from the US (such as Native 
Hawaiians), or from foreign territories that border US lands. Executive 
Order 13175 ``Coordination and Consultation with Indian Tribes'' 
specifically defines Indian tribes as ``an Indian or Alaska Native 
tribe, band, nation, pueblo, village, or community that the Secretary 
of the Interior acknowledges to exist as an Indian tribe pursuant to 
the Federally Recognized Indian Tribe List of 1994, 25 U.S.C. 479a.'' 
This is the baseline authority for all Federal agencies to engage and 
consult with Indian tribes and (through other laws) Alaska Native 
Corporations. Therefore, it is important to provide a framework within 
the context of these directives for Forest Service employees to 
understand how the Agency is legally obligated to engage with tribes 
affected by the Federal trust responsibility, which is only extended to 
federally recognized tribes, and with Alaska Native Corporations.
    However, the Forest Service strongly supports working with tribes 
and tribal communities notwithstanding federal acknowledgment. The 
mechanisms and procedures used to accomplish those interactions and 
partnerships are those contained in the Agency's overall authorities, 
rather than in those for Indian tribes and Alaska Native Corporations.
Native American Graves Protection and Repatriation Act (NAGPRA)
    There were a few comments on Alaska Native Corporations (ANCs) 
having no legal standing as proper authorities for consultation for the 
purposes of NAGPRA. If a corporation wishes to be a party to a NAGPRA 
consultation, they should have express written consent from the tribe 
that clearly identifies the corporation is acting as their agent.
    The Agency agrees and has modified the text accordingly. The 
following language has been inserted: ``Alaska Native Corporations 
(ANCs) do not have legal authority to consult for NAGRPA purposes; 
however, if an Alaska tribe expressly gives consent in writing that an 
ANC is acting as their authorizing agent in a NAGPRA consultation, the 
request should be considered.''
UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
    One comment suggests that Article 19 should be included because 
``consent'' is an important term to incorporate for tribes to enter 
into any sort of relationship with a Federal entity.
    After much consideration, the Agency agrees and has modified the 
text accordingly. The US endorsed the UNDRIP in 2010. Simply, Article 
19 calls on governments to secure the consent of indigenous peoples on 
matters of general public policy. The US Department of State has yet to 
issue guidance on the meaning and implications of consent in this 
context, and the Agency therefore considers the UNDRIP as an ideal the 
Federal Government should strive toward in its dealings with indigenous 
peoples and as an important international perspective.
Role of Coordination and Collaboration
    Several commenters noted there was no definition of collaboration 
in the directives and if collaboration is to serve a purpose in support 
of consultation, it should be clearly defined in the definitions 
section. It should also be made clear that collaboration is not the 
primary way the Forest Service intends to meets its trust 
responsibilities with tribes nor is coordination ever to be done in 
lieu of consultation.
    The Agency agrees and has modified the text accordingly. The Forest 
Service has included the definition of collaboration published in the 
USDA Departmental Regulation on Tribal Consultation, Coordination, and 
Collaboration (DR1350-002: January 18, 2013) to maintain consistency 
across Agency guidance documents. Further, in Section 1563.03.e, 
language was inserted that reads: ``To be clear, coordination and 
collaboration with tribes are key to building long-term, meaningful 
relationships and should be viewed as a component of daily operations; 
however, tribal coordination and collaboration efforts do not supersede 
or substitute tribal consultation on a specific topic.''

FSH 1509.13, Chapter 10

Treaty Rights
    Several people commented on FSH1509.13, Section 13.3, Core 
Competencies, subsection (1)(e) which is titled Legal Context. In 
working with Indian tribes, there is nothing mentioned regarding 
unratified treaties or unextinguished land titles, and these should be 
specifically identified in this section.
    After considering these comments, the Agency agrees and has 
clarified and modified the text accordingly. The FSH is specifically 
written for Forest Service employees to understand the broad 
applicability and see the expansive nature of the federal trust 
responsibility and treaty obligations. Using general descriptions 
encourages a flexible interpretation of legal responsibilities and 
encourages building strong relationships with individual Indian tribes, 
while keeping their land title and treaty status in mind. The topics of 
unratified treaties and unextinguished land titles (and the additional 
topic of unsettled land claims) are now included in the section on Core 
Competencies.
Sacred Sites
    Many comments suggested that the Forest Service should request 
sacred sites trainings be hosted by tribes and include tribal staff in 
the development of internal Forest Service trainings. The Agency 
reviewed the language and concluded this request was included that in 
the proposed directives. Federal agencies often lack the framework to 
contextualize tribal knowledge systems. However, Tribal staff and other 
Native people can often more clearly identify and accurately assess 
sacred sites issues. Language in section 13.2 states that Forest 
Service employees should ``Invite AI/AN people to assist in developing 
and delivering core curricula.'' Further,

[[Page 12450]]

Forest Service units are instructed to ``reach out to local Indian 
tribes to ask for their assistance in both developing and delivering 
training to Forest Service employees'' and to ``coordinate with local 
Tribes when sponsoring Forest Service workshops and training to include 
tribal perspectives.'' These aspects are incorporated directly from the 
2012 Sacred Sites Report.

4. Regulatory Certifications

Environmental Impact

    This final directive revises national Forest Service policy to 
update existing direction for the Agency to effectively work together 
with Indian tribes. Forest Service regulations at 36 CFR 220.6(d)(2) 
exclude from documentation in an environmental assessment or 
environmental impact statement ``rules, regulations, or policies to 
establish Service-wide administrative procedures, program processes, or 
instructions.'' The Agency has concluded that this final directive 
falls within this category of actions and that no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or environmental impact statement.

Regulatory Impact

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant regulatory actions. OIRA 
has determined that this final policy action is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovated, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed these directives in a manner consistent with 
these requirements.

Regulatory Flexibility Act

    The Agency certifies that these directives will not have a 
significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.). These 
directives will not impose record-keeping requirements on small 
entities; they will not affect their competitive position in relation 
to large entities; and they will not affect their cash flow, liquidity, 
or ability to remain in the market.

Small Business Regulatory Enforcement Fairness Act

    These directives are not considered major under 5 U.S.C. 804(2), 
the Small Business Regulatory Enforcement Fairness Act. They will not 
result in the expenditure by State, local, or tribal governments, in 
the aggregate, or by the private sector of $100 million or more in any 
one year. The directives' requirements will not result in a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions. 
Nor will these directives have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises because the rule is limited to consultation with federally 
acknowledged Indian tribes.

Unfunded Mandates Reform Act

    The directives do not impose an unfunded mandate on State, local, 
or tribal governments or the private sector of more than $100 Million 
per year. The dirctives do not have a significant or unique effect on 
State, local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

No Takings Implications (E.O. 12630)

    Under the criteria in Executive Order 12630, these directives do 
not affect individual property rights protected by the Fifth Amendment 
nor do they involve a compensable ``taking.'' A takings implication 
assessment is therefore not required.

Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this document has no 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

    These directives comply with the requirements of Executive Order 
12988. Specifically, these directives were reviewed to eliminate 
efforts and ambiguity and written to minimize litigation; and are 
written in clear language and contains clear legal standards.

Consultation With Indian Tribes (E.O. 13175)

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' 59 FR 22951 (May 4, 1994), supplemented by Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, 65 FR 67249 (Nov. 6, 2000), the Agency assessed these 
directives to have tribal implications as defined in E.O. 13175. The 
120-day consultation with Indian tribes and Alaska Native Corporations 
was conducted from June 6, 2013, to October 6, 2013, as required, and 
was further extended over a nearly two-year period.
    Because of strong outreach, coordination, and consultation 
conducted with tribal partners in the development of these directives, 
the Agency received only 15 comments. The comments were generally 
supportive of these directives, and most were from tribes or tribal 
offices that interact with the Forest Service in a fairly routine 
manner. Additional outreach to Indian tribes and intertribal 
organizations will convey the availability of the final directives.

Paperwork Reduction Act

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

National Environmental Policy Act

    These directives do not constitute a major Federal action 
significantly affecting the quality of the human environment because it 
is of an administrative, technical, and procedural nature. See 43 CFR 
46.210(i). No extraordinary circumstances exist that would require 
greater review under the National Environmental Policy Act.

Effects on the Energy Supply (E.O. 13211)

    This final policy action is not a significant energy action under 
the definition in Executive Order 13211. A Statement of Energy Effects 
is not required.


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     Dated: February 8, 2016.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2016-04804 Filed 3-8-16; 8:45 am]
 BILLING CODE 3415-15-P