The U.S. Forest Service published in the FEDERAL REGISTER the attached proposed rule to implement its statutory authority to provide trees, portions of trees, and forest products to Indian tribes free of charge for noncommercial traditional and cultural purposes. 79 Fed. Reg. 44327. The deadline for filing comments is September 29, 2014.
The statutory authority for the proposed rule is section 8105 of the Food, Conservation, and Energy Act of 2008 (commonly known as the “2008 Farm Bill”) (codified at 25 U.S.C. § 3055). As explained in the preamble to the proposed rule, in December 2009, the Forest Service implemented this statutory authority by issuing an Interim Directive to the Forest Service Handbook and then began a process of consultation with tribes. The Interim Directive was subsequently revised and reissued and will remain in effect until June 2015. The Forest Service now proposes to codify the policy set out in the Interim Directive by adding a new section in the Code of Federal Regulations, specifically a new section in 36 C.F.R. Part 223, “Sale and Disposal of National Forest System Timber, Special Forest Products, and Forest Botanical Products.” The new section, 223.15, would be captioned “Provisions of trees, portions of trees, or forest products to Indian tribes for noncommercial traditional and cultural purposes.”
The proposed new section 223.15 cites and paraphrases the statutory language. It also provides definitions of three key terms: “Indian tribe,” “Traditional and cultural purpose,” and “Tribal officials.” The definitions of the first two terms are taken from statutory language in the 2008 Farm Bill. 25 U.S.C. § 3052(5), (9). “Indian tribe” means a tribe on the list recognized by the Secretary of the Interior. “Traditional and cultural purpose” is defined as: “The term ‘traditional and cultural purpose,’ with respect to a definable use, area, or practice means that a ‘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.'” The definition of “Tribal officials” has apparently been added to specify who is authorized to make a request on behalf of a tribe.
The proposed rule would use an assessment of the market value of trees, portions of trees, or other forest products as the means of determining which Forest Service official has authority to approve a request from a tribe. District Rangers and Forest Officers could approve requests not exceeding $25,000 in value in any one fiscal year. Higher value requests would require authorization from higher up the chain of command.
The preamble to the proposed rule includes the Forest Service’s responses to a number of comments that it received during consultation with tribes. Some of the comments raised the issue of what kinds of materials are included in “forest products.” The Forest Service response is that, while this term is not defined, it does not include gravel, animals, animal parts, insects, minerals, rocks, soil, water, or worms.
Some comments suggested that the rule should allow for forest products to be provided free of charge to individual tribal members, and some comments advocated including non-federally recognized tribes and individual members of such tribes. The Forest Service’s response is that the statutory authorization applies only to federally recognized tribes and, as such, this proposed rule is limited to federally recognized tribes. The Forest Service adds that it “is promulgating an entirely separate rule, the Special Forest Products and Forest Botanicals Final Rule,” which will be applicable to all individuals, including but not limited to members of federally recognized tribes.
Another comment addressed the need to maintain confidentiality of information relating to medicinal and ceremonial plants. The Forest Service response is that it “recognizes that confidentiality of medicinal and ceremonial plants is of the utmost concern to Indian tribes and shall, to the fullest extent allowed under law, maintain the confidentiality of culturally sensitive information provided by Tribes with the express expectation of confidentiality.” While this response does not include a citation, the clause “express expectation of confidentiality” is taken from another section of the 2008 Farm Bill (codified at 25 U.S.C. § 3056) which directs the Secretary of Agriculture to withhold such information from disclosure pursuant to the Freedom of Information Act.
Please let us know if we may provide additional information regarding the proposed rule on providing trees, portions of trees, and forest products to Indian tribes free of charge for noncommercial traditional and cultural purposes.
